Rules of Construction or Interpretation re: Proviso, Severable or Stand Alone Provisions and In Pari Materia Principle

CC06-15 : ANNA CHIHAVA and BOAS MAPUVA and ZISHE CHIZANI vs THE PROVINCIAL MAGISTRATE FRANCIS MAPFUMO N.O. and THE PROSECUTOR GENERAL
Ruled By: CHIDYAUSIKU CJ, MALABA DCJ, ZIYAMBI JCC, GWAUNZA JCC, GARWE JCC, GOWORA JCC, HLATSHWAYO JCC, GUVAVA JCC and CHIWESHE AJCC

In his book 'Principles of Legal Interpretation - Statutes, Contracts and Wills' 1st Ed...,. E A KELLAWAY..., in reference to the maxim 'in pari materia' the learned author states:“According to Roman-Dutch law, a later enactment not clear as to its meaning, which has analogous provisions with regard to, or clauses ...

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SC54-18 : CITY OF HARARE vs FARAI MUSHORIWA
Ruled By: PATEL JA, UCHENA JA and ZIYAMBI AJA

In the context of the broad powers of review exercisable by the courts, BENNION: Statutory Interpretation…, opines that:“The operation of the doctrine of ultra vires is wider in relation to bylaws than statutory instruments….,. This is because, in relation to by-laws, the courts regard themselves as entitled to examine not ...

HH37-08 : MOVEMENT FOR DEMOCRATIC CHANGE and MORGAN TSVANGIRAI vs CHAIRPERSON, ZIMBABWE ELECTORAL COMMISSION and CHIEF ELECTIONS OFFICER, ZIMBABWE ELECTORAL COMMISSION
Ruled By: UCHENA J

The first applicant, the Movement for Democratic Change, is a political party, commonly known as the (“MDC”). It will be referred to as the first applicant. The second applicant, Mr Morgan Tsvangirai, is its President. He was the first applicant's Presidential candidate in the just ended harmonized elections held on ...

The first respondent is the Chairman of the Zimbabwe Electoral Commission, a Commission established in terms of section 61(1) of the Constitution of Zimbabwe. He was appointed in terms of section 61(1)(a) of the Constitution. He will be referred to as the first respondent. The Zimbabwe Electoral Commission is commonly known as (“ZEC”), in reference to the abbreviation of its name. It will be referred to as ZEC in this judgment.

The second respondent is the Zimbabwe Electoral Commission's (ZEC) Chief Elections Officer appointed in terms of section 11 of the Zimbabwe Electoral Commission Act [Chapter 2:12], hereinafter called the Zimbabwe Electoral Commission Act. He will be referred to as the second respondent.

The Facts

The first respondent, through the Zimbabwe Electoral Commission (ZEC), conducted harmonised elections which were held on 29 March 2008. The elections were contested by candidates aspiring for the following positions, Councilors of local authorities, Members of the House of Assembly and the Senate, and President of the Republic of Zimbabwe.

It is common cause that the contestants of the first three positions now know the results of their elections. The results were announced at the Ward Constituency, House of Assembly and Senatorial constituency levels. The winners were declared by the respective Ward and Constituency Elections Officers. House of Assembly and Senatorial results have also been announced by the National Collation Centre presided over by the second respondent.

It is conceded, by the respondents, that this was merely for the benefit of the general public as the legal requirements had been satisfied at constituency level.

The applicants, who have an interest in Presidential election results, filed an urgent application seeking this court's provisional order, compelling the respondents to announce the results.

The respondents, while conceding that Presidential results have not yet been announced, contented that they will announce them when they are ready.

They contented, in limine, that, they are not subject to the jurisdiction of this court....,.

Jurisdiction

On 6 April 2008, before this case could be heard on the merits, counsel for the respondents submitted that this court did not have jurisdiction to hear the applicant's application. He relied on the provisions of section 61(5) of the Constitution which provides as follows:

“(5) The Zimbabwe Electoral Commission shall not, in the exercise of its functions in terms of subsection (4), be subject to the direction or control of any person or authority.”

The provisions of subsection (4) which are relevant to this application are found in sub-section (4)(1)(a). They provide as follows:

“(4) The Zimbabwe Electoral Commission shall have the following functions -

(a) To prepare for, conduct and supervise –

(i) Elections to the office of President and to Parliament; and

(ii) Elections to the governing bodies of local authorities; and

(iii) Referendums; and
to ensure that those elections and referendums are conducted efficiently, freely, fairly, transparently and in accordance with the law.”

Counsel for the respondents submitted that this court has no jurisdiction to hear the applicants complaint, and should, therefore, dismiss the application with costs.

Counsel for the applicants submitted that the respondents are subject to the jurisdiction of this court and that is why section 18 of the Zimbabwe Electoral Commission Act provides for the citing of the first respondent as a nominal citee. He further submitted that the court has jurisdiction to inquire into any complaint against the Zimbabwe Electoral Commission (ZEC) provided that it observes ZEC's independence if it is complying with the provisions of the law. He further submitted that this court can intervene if the respondents stray from the provisions of the law.

I agree with counsel for the applicants submissions as it could never have been intended by the legislature, that the Zimbabwe Electoral Commission (ZEC) could conduct itself outside the provisions of the law, including the provisions of section 61(4) of the Constitution itself, and still remain outside the jurisdiction of this court.

The clear intention of the Legislature, in section 61(5) of the Constitution, was to ensure the Zimbabwe Electoral Commission's independence - provided it was operating within the law.

It has to exercise its functions as provided by subsection (4) for it to enjoy that immunity.

It cannot, for example, conduct elections unfairly, outside the law, and which are not free and fair, but, on being sued, insist that the courts have no jurisdiction over it. The court would, in such circumstances, have jurisdiction to hear and determine complaints against the Zimbabwe Electoral Commission (ZEC).

It was for these reasons that I ruled that this court has jurisdiction to hear the applicants application....,.

The Merits

On the merits, the applicants contented, through Tendai Biti's founding affidavit dated 3 April 2008, that there has been an unreasonable delay in the processing and announcement of Presidential results. They submitted that the harmonised elections, having been held on 29 March 2008, the results for the Presidential poll should have been announced.

They accused the respondents of employing delaying tactics by announcing the already declared results for the House of Assembly and the Senate.

They submitted that the respondents were thereby avoiding their primary responsibility.

They explained the procedure laid down in sections 64, 65, and the Second Schedule of the Electoral Act which should have been followed and said it should not have taken long to collate, verify, and announce the results.

They submitted that the procedure to be followed signifies the Legislature's intention that the results of the poll must be processed and be announced without any undue delays.

On the issue of delays, counsel for the respondents submitted that, the respondents had not strayed from what the electoral laws require them to do. They can, therefore, not be compelled to release the results when they were operating within the law.

He submitted that there was no provision in the Electoral Act requiring the respondents to collate, verify, and announce the results in a specified period. He therefore argued that the respondents were entitled to act at their own discretion, but in terms of the electoral laws.

Provisions of the electoral laws and their interpretation

The question of whether or not the respondents are operating within the law can only be determined after an analysis of provisions of the Electoral Act [Chapter 2:13] which deal with the transmission of Presidential results from polling stations through constituency centres to the Chief Elections Officer.

Section 64(2) of the Electoral Act provides for the transmission of polling station return as follows:

“(2) Immediately after affixing a polling station return on the outside of the polling station in terms of subsection (1)(e), the presiding officer shall personally transmit to the constituency elections officer for the constituency to which the polling station belongs –

(a)…,.

(b) The poling station return certified by himself or herself to be correct:
provided that, if, by reason of death, injury or illness, the presiding officer is unable, personally, to transmit the ballot box, packets, statement and polling station return under this subsection, a polling officer who was on duty at the polling station shall personally transmit these.”…,.

It is clear from the provisions of this section that polling station returns and other election results material must be urgently, and under the personal care of the presiding officer, be sent to the Constituency Elections Officer.

Even the death, injury, or illness of the presiding officer is not allowed to delay the transmission of the polling station returns and other election result materials to the Constituency Elections Officer.

In the event of death, injury, or illness a polling officer must take over and deliver them with the same urgency the presiding officer should have done.

The Presidential polling station return is part of the material to be urgently transmitted.

The Second Schedule to the Electoral Act, in paragraph 1(1) and (2) provides for the further handling and transmission of Presidential results. It provides:

“(1) After the number of votes received by each candidate, as shown in each polling station return has been added together in terms of subparagraph (1) of sub-section (3) of section 65 and the resulting figure added to the number of postal votes received by each candidate, the constituency elections officer shall forthwith -

(a) Record on the constituency return the votes obtained by each candidate and the number of rejected ballot papers in such a manner that the results of the count for each polling station are shown on the return;

(b) Display the completed constituency return to those present and afford each candidate or his or her election agent the opportunity to subscribe their signature thereto; and

(c) Transmit to the Chief Elections Officer, by hand, through a messenger, the constituency return or a copy thereof certified by the constituency elections officer to be correct.

(2) Immediately after arranging for the constituency return to be transmitted in terms of paragraph (c) of sub-paragraph (1), the constituency elections officer shall affix a copy of the constituency return on the outside of the constituency centre so that it is visible to the public.”

The provisions of paragraph 1 of the Second Schedule clearly express the urgency with which the constituency return has to be transmitted to the (“second respondent”), the Chief Elections Officer.

A reading of subparagraph (1)(c) and sub-paragraph (2) reveals the urgency through the use of the word “immediately” and the fact that the affixing of the constituency return outside the constituency centre can only be attended to after the Constituency Elections Officer has arranged for the transmission of the constituency return to the Chief Elections Officer.

The question that has to be answered is why should these returns be urgently transmitted from polling stations and constituency centres if the legislature did not expect the Chief Elections Officer to equally attend to them without delay?

The inquiry must be taken to the next and subsequent stages of the process.

Paragraph 2(1) of the Second Schedule provides:-

“(1) The Chief Elections Officer shall give reasonable notice, in writing, to each candidate or his or her chief election agent, of the time and place where the Chief Elections Officer will verify and collate all the constituency returns.”

Counsel for the respondents seems to rely on this paragraph for the absolute discretion he claims for the respondents.

It is true no time within which the notice shall be given is specified; but, does it mean the second respondent was intended to take whatever time he deemed necessary before inviting the candidates for the collation and verification of the constituency returns?

An analysis of paragraph 2(1) of the Second Schedule seems to reveal that the apparent relaxation of the urgency previously insisted on in the preceding sections and paragraphs could be for the benefit of the invitees.

The Chief Elections Officer must await their arrival before the collation and verification starts.

Even if that was the intention of the legislature, he could have been required to invite them forthwith or immediately.

It must be noted that these returns will be transmitted, by hand, from all constituencies scattered throughout the country. The distance between each Constituency Centre and the National Collation Centre determines the arrival of each return.

The legislature could, in those circumstances, have provided for urgency soon after the receipt of the last return. The fact that it did not leaves its intention unclear.

However, in the construction of statutes, the intention of the legislature can be ascertained from the context within which the provision in question is found.

This part of the Second Schedule to the Electoral Act should therefore be construed in conformity with the whole Schedule and other provisions of the Electoral Act.

The inquiry must therefore move on to the remaining provisions under paragraph 2.

Paragraph 2(2) and (3) of the Second Schedule to the Electoral Act provides as follows:

“(2) At the time and place notified for the verification and collation of the constituency returns referred to in subparagraph (1), and, in the presence of such candidates, their chief elections agents, and observers as are present, the Chief Elections Officer shall display each constituency return to those present and shall, on request, allow a candidate or chief election agent of a candidate to make notes of the contents of each constituency return.”

This paragraph establishes that, at the time notified, the collation and verification should start and continue - irrespective of the absence of other candidates.

The words “as are present” are instructive.

The urgency which seems to have been abandoned in subparagraph (1) seems to have been resumed.

In paragraph 2(3), the legislature provided:

“(3) When the Chief Elections Officer has completed the verification of the constituency returns under sub-paragraph (2), the Chief Elections Officer shall, in the presence of such persons referred to in subparagraph (2) as are present, add together the number of votes received by each candidate as shown in each constituency return.”

This means, once the invitees referred to in subparagraph (1) arrive, verification and collation shall continue - in their presence.

We move on to paragraph 3(1) which provides:

“3(1) Subject to subparagraph (2), after the number of votes received by each candidate, as shown in each constituency return, has been added together in terms of sub paragraph (3) of paragraph 2, the Chief Elections Officer shall forthwith declare the candidate who has received (the qualifying votes in terms of (a) and (b)) to be duly elected as President of the Republic of Zimbabwe with effect from the day of that declaration.”

This means, once the verification and collation starts, it continues until the winning candidate is forthwith declared the President of Zimbabwe if the result produces a winner with a majority of the votes cast.

This clearly proves urgency is resumed from the time the invitees come till the declaration of the winner.

This means, from the transmission of the polling and constituency returns, the legislature intended that officials must urgently forward returns to the Chief Elections Officer, who must, from the arrival of invited candidates or their agents, urgently collate and verify and declare the result of the Presidential poll.

Counsel for the applicants submitted that section 110(3) of the Electoral Act must be factored in, in ascertaining the legislature's intention on whether or not the respondents were intended to act with urgency.

The section provides as follows:

“Where two or more candidates for President are nominated, and, after a poll taken in terms of subsection (2), no candidate receives a majority of the total votes cast, a second election shall be held within twenty-one days after the previous election in accordance with this Act.”

He further submitted that the possibility of a second election, within twenty-one days, is consistent with the urgency expressed in the sections and paragraphs already discussed above.

He said the time for the second election is fast approaching, and, according to his calculation, the second election must be held on 19 April 2008.

He submitted that the legislature, being aware of the possibility of a re-run, could not have intended paragraph 2(1) of the Second Schedule to give the second respondent a wide discretion as to when he should collate and verify constituency returns.

The limited period between the first and second election suggests that the first election's results must be processed with urgency to avoid prejudicing candidates who will be contesting the second election.

The processing of Presidential results must, in my view, be given priority when compared to the announcement by the National Collation Centre of other elections which have no possibility of a re-run.

I am therefore satisfied that the legislature intended that Presidential election results should be processed without any undue delay.

It is, however, not in dispute that the legislature did not specify the period within which Presidential results should be collated, verified, and announced.

Counsel for the applicants said it must be within a reasonable time and relied on the provisions of section 3(1)(b) of the Administrative Justice Act [Chapter 10:28] hereinafter called the Administrative Justice Act.

It provides as follows:

“(1) An administrative authority which has the responsibility or power to take any administrative action which may affect the rights, interests or legitimate expectations of any person shall –

(a) Act lawfully, reasonably, and in a fair manner; and

(b) Act within the relevant period specified by law, or, if there is no such specified period, within a reasonable period after being requested to take the action by the person concerned.”

Counsel for the respondents contented that the Administrative Justice Act does not apply to the respondents as the Zimbabwe Electoral Commission is not an administrative authority.

Counsel for the applicants contented that it is and relied on its being created in terms of section 3 of the Zimbabwe Electoral Commission Act.

Counsel for the respondents submitted that section 3 of the Zimbabwe Electoral Commission Act has since been repealed and substituted.

He is correct.

The provisions which created the Commission in the Zimbabwe Electoral Commission Act was repealed and substituted by one which provides for the procedure it shall follow and how it shall perform its functions.

The Zimbabwe Electoral Commission, as it now stands, was established in terms of section 61(1) of the Constitution.

Counsel for the applicants countered that, in any event, the second respondent remains within the meaning of “an administrative authority” as defined by section 2 of the Administrative Justice Act, as he is authorized by “an enactment to exercise or perform any administrative power or duty.”

I agree with counsel for the applicants submission as the Chief Elections Officer is employed by the Zimbabwe Electoral Commission (ZEC), in terms of section 11 of the Zimbabwe Electoral Commission Act, and his duties and functions are specified in that section.

The remaining issue on that aspect is whether the establishment of the Zimbabwe Electoral Commission (ZEC) by the Constitution excludes it from the definition of an “administrative authority.”

Counsel for the applicants further submitted that the Zimbabwe Electoral Commission (ZEC) remains an “administrative authority” by virtue of the provisions of Parts I and II of the Schedule to the Administrative Justice Act.

Counsel for the respondents submitted that, that is not the correct way of determining whether or not the Zimbabwe Electoral Commission (ZEC) is an administrative authority.

Counsel for the applicants submission is premised on the fact that the Zimbabwe Electoral Commission (ZEC) is not mentioned among the administrative authorities for which the application of the Administrative Justice Act is limited or excluded.

It is true that the Zimbabwe Electoral Commission (ZEC) is not mentioned in Parts I and II of the Schedule, but, the limitation and exclusion must only apply to those who fall under the definition of “administrative authority”. Those who do not fall within the definition need no limitation or exclusion from the application of the Administrative Justice Act as they are already not affected by its application.

I would therefore agree with counsel for the respondents that the fact that the Zimbabwe Electoral Commission (ZEC) was not mentioned in Parts I and II does not assist in the determination of whether or not it is an “administrative authority.”

Counsel for the applicants sought to establish the validity of the applicant's claim that the Zimbabwe Electoral Commission (ZEC) had acted outside the law by proving that it, as an “administrative authority”, had not announced the Presidential results within a reasonable time.

In my view, the conduct of the Zimbabwe Electoral Commission (ZEC) should be measured against section 61(4)(a) of the Constitution which provides as follows:

“The Zimbabwe Electoral Commission shall have the following functions -

(a) To prepare for, conduct, and supervise -

(i) Elections to the office of President and to Parliament;

(ii) Elections to the governing bodies of local authorities;

(iii) Referendums; and
to ensure that those elections and referendums are conducted efficiently, freely, fairly, transparently, and in accordance with the law.”

The standard set by the legislature in the Constitution is for the Zimbabwe Electoral Commission (ZEC) to perform any function required of it by the legislature through the Constitution, the Electoral Act or the Zimbabwe Electoral Commission Act, efficiently, freely, fairly, transparently, and in accordance with the law.

The use of the word “efficiently”, when construed in conformity with the urgency provided for in the Electoral Act, means the Zimbabwe Electoral Commission (ZEC) must act accurately and timeously.

In this case, the question to be answered is: did the respondents act efficiently, fairly, transparently, and in accordance with the law towards the collation, verification, and announcement of Presidential results?

If they did, that should be the end of the inquiry. If they did not, the failure must be identified before this court can intervene and order compliance.

When the above criteria is applied to the facts of this case and the law, as provided in the Electoral Act, the applicants' allegations that there was delay seems to be justified by the legislature's intention that the election results must be processed without undue delay.

This intention is revealed through the provisions which provide for the urgent transmission of polling station returns and constituency returns to the Chief Elections Officer, and how he should conduct the collation, verification and declare the winning candidate.

In the absence of an explanation, the delay between 29 March 2008 and 4 April 2008 seems to be unjustified and points to a lack of efficiency.

The period between the holding of the elections and the date of the application is six days.

Three other elections, involving greater numbers of candidates, were processed and finalized at their levels within two days of the date of the elections.

The work to be done by the Chief Elections Officer is made simpler by the counting and collation done at polling stations and constituency levels. All he has to do is to verify and display the constituency returns and add the figures thereon to identify the winning candidate whom he should forthwith declare the President of Zimbabwe.

This task, should all things being equal, not have taken the second respondent up to 4 April 2008 to announce the Presidential results.

The explanation

The respondents explained the delay through CHIWESHE J's opposing affidavit. In paragraph 18 of his opposing affidavit he said:

“In response to the letter of 2 April 2008, Annexure 'B', I had, prior to receiving the application, which was served on me last night, prepared a press statement, which I intended to release, not only to inform the applicants of the Commission's position on these issues, but to the country and world at large. I attach a copy of the statement and request this honourable court to incorporate it as part of this affidavit. The statement relates extensively and accurately to the correct legal position. This statement is annexed as Annexure 'C'”.

At pp 2 to3 of Annexure “C” he explained that the Zimbabwe Electoral Commission (ZEC) had received several complaints in terms of section 67A of the Electoral Act.

At 2 of Annexure “C” he said:

“In this process, sight must not be lost of the provisions of section 67A(1) of the Electoral Act (Electoral Laws Amendment Act No.17/07) which provides as follows:

'(1) Within 48 hours after a constituency elections officer has declared a candidate to be duly elected in terms of section 66(1), any political party or candidate that contested the election in the ward or constituency concerned may request the Commission to conduct a recount of votes in one or more of the polling stations in the ward or constituency.'

This is a right accorded to a candidate or a political party that contested an election for either of the House of Assembly. The same is also applicable to a Presidential candidate by virtue of the provisions of Part XVIII in section 112, which imports Part XIII of the Electoral Act (where section 67A is found).

For the avoidance of doubt, I relate to this section below:

'Subject to this Part, the provisions of Parts XIII, (other than sections 66, 67, and 68, for which the provisions of the Second Schedule are substituted), XIV, and XV, shall apply, with any changes that may be necessary to an election to the office of President'.”

After explaining the effect of a miscounting, even by one vote, could have on a Presidential election, CHIWESHE J concluded, at pp3 – 4, by saying:

“The Commission, it must be put on record, has received several complaints in terms of section 67A.

The Commission is in the process of considering the evidence submitted, to determine whether a recount should or should not be done? The question, as to whether to order a re-count, or not, is entirely in the discretion of the Commission. This is provided in section 67A(7) which provides -

'The Commission's decision on whether or not to order a recount, and, if it orders one, the, extend, of the recount shall not be subject to appeal.'”

Interpretation of the Law applicable to the explanation

The prospect, of a recount, generated spirited legal arguments for and against it.

Counsel for the applicants submitted that section 67A, being part of section 67, was excluded from the sections which were imported into Part XVII by section 112. He further argued that section 67A does not apply to Presidential elections because it is not found in Part XVII where Presidential elections are provided for.

Counsel for the respondents argued that section 67A is a section of the Electoral Act in its own right and was imported into Part XVII by virtue of its not having been mentioned among the sections excluded by section 112.

I agree with counsel for the respondents because a section in a statute has its own separate existence even if it shares a section number with another section. It is distinguished from the preceding section by the letter added to the section number it shares with the preceding section.

A section in a statute is constituted by the provisions after its section number up to the last subsection under it.

In this case, section 67 ends with subsection (3), and the next section, which is section 67A, follows.

Section 67A was not in the original Electoral Act. It was introduced by section 48 of Act 17 of 2007.

If the legislature intended to make it part of section 67 it would have introduced it into the Act as a sub-section of section 67.

A new section is usually placed in the part of the statute where it fits into the scheme of the Act.

In this case, it was placed between section 67, which provides for the notification of the result of an election, and section 68, which provides for the publication of the names of elected candidates in the Gazette, because that is where a recount conveniently fits into the scheme of the Electoral Act. It determines the winning candidate whose name should be published.

I am therefore satisfied that section 67A enjoys a separate existence from section 67.

Therefore, its exclusion from the sections of Part XIII, excluded by section 112 from importation into Part XVII, means it was imported into Part XVII.

Counsel for the applicants summed up by submitting that even if section 67A is held to be part of Part XVII it does not apply to Presidential elections because they have not yet been announced. He, for that argument, relied on section 67A(1)'s provision that the complaint by a party or candidate must be made within forty-eight hours after a candidate for that election has been declared duly elected.

Counsel for the respondents submitted that the forty-eight hours within which the complaint must be raised, after the winning candidate has been declared, does not apply to Presidential elections because section 112 provides for “necessary changes” in the importation of Parts XIII, XIV and XV into Part XVII.

Section 67A, as already found, is part of Part XVII by virtue of its importation thereto by section 112. It therefore applies to Presidential election results with the necessary changes referred to by section 112.

I however do not agree with counsel for the respondents that the necessary changes extend to the substantive provisions of section 67A.

Where, in a statute, a provision from one Part of a statute is imported into another part of the same statute, to “apply, with any changes that may be necessary” the court interpreting that statute is not allowed to re-enact the relevant provision. It can only make necessary changes to make the provisions fit into the importing Part.

That power is limited to the names of officers who act in the importing Part, the sections empowering them to act, and the places where they are authorized to act, etc.

The substantive provisions cannot be changed. They are in fact the reason for the importation. They are intended to influence the provisions of the importing Part.

In this case, section 67A(1) will, after the necessary changes have been made, read as follows:

“(1) Within forty-eight hours after the Chief Elections Officer has declared a candidate to be duly elected in terms of section 110(6), as read with the provisions of the Second Schedule, any political party or candidate that contested the election for the office of President, may request the Commission to conduct a recount of votes in one or more of the polling stations.”

In its changed form, section 67A(1) means a re-count can only be requested within forty-eight hours after the declaration of the results of the Presidential election.

A recount, before the announcement of the results, is, in terms of section 67A(1), as imported into Part XVII, not provided for.

If the request for a recount, in terms of section 67A(1), is the reason for the delay in announcing the Presidential results, the delay is based on an incorrect interpretation of section 67A(1). It would thus be an invalid reason for delaying the announcement of the Presidential election results.

Counsel for the respondents further submitted that even if the forty-eight hours apply the Zimbabwe Electoral Commission (ZEC), can, on its own initiative, order a recount in terms of section 67A(4) which provides as follows -

“The Commission may, on its own initiative, order a recount of votes in any polling stations if it considers there are reasonable grounds for believing that the votes were miscounted and that, if they were, the miscount would have affected the result of the election.”

Counsel for the applicants submitted that section 67A(4) should not be read in isolation, but together with section 67A(1). He submitted that if read in the context of the whole section, it means any re-count contemplated by it can only be done after the announcement of the results.

An analysis of section 67A(4) reveals that the Zimbabwe Electoral Commission (ZEC) can act on its own initiative to order a recount.

It does not state when it can do so as is specified in respect of subsection (1).

The information on which it may act can come from any source - including a complaint as provided in subsection (1). It simply should have reasonable grounds for believing that votes were mis-counted.

If the legislature intended to restrict the first respondent to considering a recount after the announcement it could have made reference to sub-section (1) as is done in subsection (3). The wide discretion given to the first respondent on this aspect is confirmed by the provisions of subsection (7) of section 67A. It provides as follows:

“(7) The Commission's decision on whether or not to order a recount, and, if it orders one, the extent of the recount, shall not be subject to appeal.”

The fact that the Zimbabwe Electoral Commission's decision to recount, and the extent thereof, is not subject to an appeal means that it was intended to act independently and that its decision would be final.

The provision barring an appeal simply means the Zimbabwe Electoral Commission (ZEC) has been given a very wide discretion as to whether or not to order a recount.

The provision that the Zimbabwe Electoral Commission's decision shall not be subjected to an appeal also means this court cannot inquire into that decision.

This should therefore be the end of the inquiry, as the Zimbabwe Electoral Commission's conduct can only be open to the jurisdiction of this court when it strays from the law.

I should therefore find that the reason proffered by the respondents, for their failure to timeously announce the Presidential results, is legally valid. It can, therefore, justify the delay. The respondents have not strayed from the law. This court is therefore not entitled to intervene and order the respondents to announce the results on the basis of failure to comply with the law.

Counsel for the respondents sought costs against the applicants' and their legal practitioners, on the higher scale.

He submitted that the applicants' application was not necessary as the applicants could have sought for information from the respondents. He also relied on the fact that there are no time limits within which the respondents are required to act: a fact which the applicants should have known.

Counsel for the applicants, in response to the issue of costs, said, if any costs are to be ordered they should be on the ordinary scale.

He disputed that the application could have been avoided as their letter of 2 April 2008 was not responded to.

The issue of costs is in the court's discretion. That discretion must be exercised in a manner that does not discourage litigants from approaching the courts.

Electoral matters are very important to candidates, political parties, and the nation.

In this case, the whole nation is waiting for results. The applicants were anxious at the time they made their application. Their legal practitioners wrote a letter expressing anxiety and demanding the results - but did not get a reply till they resorted to this application. They should not be penalized by costs on the higher scale for making an application in circumstances where delay is conceded but has now been explained because of their application.

I would, in the result, dismiss the application with costs on the ordinary scale.

View Appeal
HH768-15 : NAVAL PHASE FARMING PL and BEACH FARMS PL and TAWANDA NYAMBIRAI vs MINISTER OF LANDS AND RURAL RESETTLEMENT and BERNARD MAKOKOVE and STEPHEN CHIURAYI and MALVERN DZVAIRO
Ruled By: CHIGUMBA J

This is a case whose circumstances present the proverbial can of worms or Pandora's Box scenario, which nevertheless must be opened, examined, and adjudicated upon, in the interests of justice. The question that is exercising the mind of the court is this; In what instances would it be proper for this court to exercise its jurisdiction of ...

This is a case whose circumstances present the proverbial can of worms or Pandora's Box scenario, which nevertheless must be opened, examined, and adjudicated upon, in the interests of justice.

The question that is exercising the mind of the court is this;

In what instances would it be proper for this court to exercise its jurisdiction of judicial review and consider whether agricultural land which was purportedly identified in terms of the Land Acquisition Act [Chapter 20:10], and subsequently listed in Schedule 7 of the former Constitution in terms of section 16B of Constitutional Amendment Number 17 of 2005, was acquired lawfully - ten years after such 'identification, listing and acquisition'….,.

This is a court application in which the applicants seek the following relief;

“That it be declared that;

1. The purported acquisition of Duncanston, Kopje Alleen, The Beach and Rusfontein by the 1^st respondent is invalid.

2. The occupation of Kopje Alleen, The Beach and Rusfontein by the respondents and all those claiming title through them is illegal…,.”

(d) The requirements of a declaratur

Section 14 of the High Court Act [Chapter 7:06] provides that:

“14 High Court may determine future or contingent rights

The High Court may, in its discretion, at the instance of any interested person, inquire into and determine any existing, future or contingent right or obligation, notwithstanding that such person cannot claim any relief consequential upon such determination.”

This is the basis of this court's jurisdiction - to issue a declaratur.

It is a discretionary remedy which involves a finding by the High Court as to a person's legal status, rights or obligations. It cannot be directly enforced.

The applicants will not be able to use such a declaratur as a cause of action to evict the second to fourth respondents. The applicants must show that the second to fourth respondents do not hold valid title which authorizes them to occupy the farms in question first.

Even then, it is only the first respondent, the Constitutional current holder of title in the farms, pursuant to Schedule 7 of the former Constitution, which can cancel the fourth to sixth respondent's offer letters and offer the land to the applicants, and issue the applicants with legally recognized authority to occupy the agricultural land such as an offer letter, a permit or a land settlement lease. If the applicants persuade this court to declare that the acquisition of their farms was contrary to the stipulated procedure, they would have to approach this court, again, on notice to the first respondent, for an order de-listing their farms from Schedule 7. Such an order would be subject to confirmation by the Constitutional Court, being an order which purportedly alters the former Constitution in its Schedule 7.

What remains to be seen is whether the applicants are entitled to the declaratur that they seek.

(e) The Land Acquisition Act and section 16B (Constitutional Amendment Number 17 of 2005)

Section 16B(2)(a) as read with section 16B(3)(a) of Constitutional Amendment Number 17 of 2005 of the former Constitution provided that all land which had previously been identified for resettlement purposes vested in the State, with full and unchallengeable title, with effect from the effective date.

The case of Chisvo & Anor v Peter & OrsHH23-06 is authority for this proposition, as read with Campbell (Private) Limited & Anor v the Minister of National Security Responsible for Land, Land Reform & Resettlement & AnorSC49-07 and Commercial Farmers Union & Ors v The Minister of Lands & Rural Resettlement & Ors SC31-10.

The court in Chisvo & Anor v Peter & OrsHH23-06 took time to expound on the procedures which governed land acquisition before section 16B came into force as follows;

“The procedures governing the acquisition of agricultural land for resettlement purposes are presently embodied in Part III of the Land Acquisition Act [Chapter 20:10]. To a significant extent, these procedures have been superseded by the provisions of section 16B of the Constitution of Zimbabwe. Section 16B was promulgated and came into force on the 14^th of September 2005. In terms of section 16B(2)(a) as read with section 16B(3)(a), all agricultural land that was previously identified for resettlement purposes vested in the State, with full and unchallengeable title therein, with effect from that date.

For present purposes, however, the Court is seized with events which occurred well before the enactment of section 16B of the Constitution and must therefore be guided by the relevant provisions of the Land Acquisition Act. Section 5(1) of the Act requires the acquiring authority to give a Preliminary Notice of its intention to acquire any land. Section 5(3) enables the acquiring authority to withdraw any such Preliminary Notice at any time.

Section 8(1) empowers the acquiring authority to issue an Acquisition Order in respect of any land identified for compulsory acquisition. By virtue of section 8(3), the effect of an Acquisition Order is to immediately vest title of the land concerned in the acquiring authority, whether or not compensation therefor has been agreed upon, fixed or paid in terms of Part V or VA of the Act.

In terms of section 9(1)(b), the making of an Acquisition Order constitutes notice, in writing, to the owner or occupier to vacate the land within 45 days after the order is served upon him and to vacate his living quarters within 90 days of such service.

Where the acquisition of the land is challenged, section 7(1) enjoins the acquiring authority, within 30 days of issuing the Acquisition Order, to apply to the Administrative Court for an order confirming the acquisition. In terms of section 7(4)(b), the Administrative Court may only confirm the acquisition of rural land if it is satisfied that the acquisition is reasonably necessary for the utilisation of that land for, inter alia, settlement for agricultural or other purposes.

Also pertinent is section 10A(1) of the Act which enables the acquiring authority to revoke an Acquisition Order within 6 months after making the order. In terms of section 10A(2), such revocation must be effected by notice in the Gazette followed by written notice served on the landowner.”

The section 5 Preliminary Notice of intention to acquire land was to be published in the Government Gazette once a week for two consecutive weeks in the area where the land was situated. It is common cause that all of the applicants' farms had valid Preliminary Notices duly gazetted. It is also common cause that the first respondent sought to confirm the acquisition of Kopje Alleen Farm and Rusfontein Farm only, and that the applications for confirmation were withdrawn before the Administrative Court, which ruled that the withdrawal rendered the section 5 and section 8 notices null and void.

In terms of section 5(2) of the Land Acquisition Act [Chapter 20:10], once a Preliminary Notice had been published, the owner of the land was not at liberty to dispose of the land or to alienate it without the permission of the acquiring authority.

So, on 21 September 2000, when the third applicant purported to acquire shares in the second applicant, the agreement did not contravene section 5(2) of the Land Acquisition Act [Chapter 20:10] because the risk and profit passed to the third applicant only when the purchase price was paid. The evidence on record is that the third applicant obtained a loan, secured by a mortgage bond over the farms, to pay for the acquisition of the farms sometime in 2001. It is not clear whether the purchase price was paid in full as at 2001, in light of the affidavit of Mr. Firimon Mvarume, which is dated 6 March 2001, and the letter of Mr. F. Zimuto, which is dated 9 July 2002.

What is clear from the papers filed of record is that, as at 9 July 2002, the third applicant owed NMB Bank the sum of USD$39,997,367= in respect of the 'acquisition costs of the farms and working capital'. We are not told whether the acquisition costs had been paid in full. We do know that the Bank loan was secured by mortgage bonds and that the Bank had custody of the title deed to the farms. It is not clear when, if at all, risk and profit in the second applicant passed to the third applicant. The Management Agreement, in respect of the first applicant…, presents its own special brand of problems.

The agreement purports to appoint the first applicant, the owner of Rusfontein Farm, as its manager and supervisor on 25 October 2001, for a fee of seven million dollars and payments of US forty thousand a month from 31 September 2001 to 31 January 2002. There is no doubt, whatsoever, in my mind that this Management Agreement contravened the provisions of section 5(2) of the Land Acquisition Act [Chapter 20:10] which prohibited the alienation of land which had been identified for compulsory acquisition by being gazetted.

The parties hatched an elaborate plot to defeat the purpose of section 5 of the Land Acquisition Act [Chapter 20:10]. We know this because the parties expressly say so themselves in their agreement.

Clause 8…,; the first applicant was granted an option to purchase the farm subject to the condition that 'in the event of the farm being removed from the list of designated rural land in terms of the Act, the owner undertakes to take such steps as may be necessary to transfer the property' to the first applicant, and, in particular, to obtain a Certificate of No Present Interest as stipulated in the Regulations.

Clause 8.4 goes on to stipulate that in the event of the farm being acquired, as specified in the Act, any compensation adjudged to be payable to the owner under the Act, or any other law, shall be payable to the first applicant.

The owner ceded its rights to compensation to the first applicant.

Although the wording of the 'Management Agreement' is clever, and on the face of it appears to comply with the provisions of section 5 of the Land Acquisition Act [Chapter 20:10], it is more probable than not that it was an elaborate scheme designed to sell Rusfontein Farm to the third applicant and to cede; which is the same as alienating the rights of the owner in the farm to the third applicant whilst delicately negotiating the legal minefield and appearing to comply with the Land Acquisition Act. Cession of rights is tantamount to alienation or disposal of rights which would have been contrary to section 5(2)(c) of the Land Acquisition Act [Chapter 20:10] in the absence of permission or consent by the acquiring authority.

A look at section 11 of the agreement between the parties will show how true this is.

There was to be no further exchange of remuneration when or if the option to purchase was exercised, and in the event that the farm was acquired, the first applicant was to be entitled to any compensation payable to the owner. The probabilities support the conclusion that the applicants did not have full title to the farms on the dates when the first respondent caused them to be gazzetted. The evidence is not clear as to the exact dates when the applicants became vested with full rights and the title between 2000-2002 when the Bank took possession of the title deeds. The third applicant admitted that the relevant forms at the company's office were only filed sometime in 2002.

How then was the first respondent expected to acquire knowledge of the change of directorship and/or ownership?

Preliminary Notices remained in force for a period of ten years from the date of first publication in a Government Gazette. The prescribed method for the withdrawal of a Preliminary Notice was set out in section 5(7) of the Land Acquisition Act [Chapter 20:10] as follows;

“(7) An acquiring authority may, at any time -

(a) Withdraw a preliminary notice, by publishing notice of its withdrawal in the Gazette and serving notice of its withdrawal on every person on whom the preliminary notice was served;

(b) Withdraw a notice in terms of subsection (3) by serving written notice of its withdrawal on every person on whom the first-mentioned notice was served.”

It is common cause that the first respondent withdrew the application for confirmation of acquisition of the applicants' farms before the Administrative Court which ruled that the section 5 Preliminary Notice was rendered null and void by such withdrawal.

With all due respect to the Administrative Court, section 5(7) of the Land Acquisition Act [Chapter 20:10] expressly stipulated that the Preliminary Notice could be withdrawn by publishing a notice of withdrawal in the Government Gazette and serving notice of withdrawal on every person on whom the preliminary notice was served.

This was not done.

An order of nullity ought to have been accompanied by an order that the first respondent comply with the provisions of section 5(7) of the Land Acquisition Act [Chapter 20:10]. In my view, in the absence of publication in the Government Gazette of a notice to withdraw the Preliminary Notice, it remained in force for a period of ten years from the date of its first publication.

I am fortified in my view by the provisions of section 7(5) of the Land Acquisition Act [Chapter 20:10], which govern the confirmation of acquisition of land, which provides that;

“(5) Where the Administrative Court refuses to grant an order referred to in subsection (1), the Administrative Court shall -

(a) Order the acquiring authority to withdraw the preliminary notice and any notice served in terms of subsection (3) of section five…,.”

It follows that the farms were validly 'identified' in terms of section 5 of the Land Acquisition Act [Chapter 20:10]. Section 16B(2)(a) of the former Constitution provides for the vesting in the State, with full agricultural title, land 'that was identified on or before 8 July 2005, in the Gazette or Gazette Extraordinary under section 5(1) of the Land Acquisition Act [Chapter 20:10]…, and which is itemized in Schedule 7, being agricultural land required for resettlement purposes. It is correct that there are three requirements;

(a) The land should have been identified on or before 8 July 2005 under section 5 of the Land Acquisition Act [Chapter 20:10].

(b) The land must have been itemized in Schedule 7 of the former Constitution.

It is my considered view that all of these three requirements were met in the circumstances of this case.

I am not persuaded by the contention submitted on behalf of the applicants, that because Schedule 7 of the former Constitution did not itemize the specific farms but itemized the Government Gazettes in which the farms were listed this did not constitute valid itemization for purposes of section 16B of the former Constitution.

The section 5 Preliminary Notices could not, at law, be withdrawn by an order of nullification by the Administrative Court which was expressly mandated to order the acquiring authority to withdraw the preliminary notices by publication in the Government Gazette and serve on all interested parties - as provided in terms of section 7 of the Land Acquisition Act [Chapter 20:10]. The language of section 7(5) of the Land Acquisition Act [Chapter 20:10] is peremptory, which means that there was no discretion on the part of the Administrative Court to purport to withdraw the preliminary notices by way of a court order declaring them to be null and void.

In the circumstances, it is this court's finding that the applicant' farms were duly itemized in Schedule 7 of the former Constitution.

In any event, a reading of the provisions of section 16B(3)(a) and (b) of the former Constittuion will show that once agricultural land had been validly identified and listed in Schedule 7, the acquisition could not be challenged, especially if the challenge was based on whatever law governed the acquisition of land on the effective date (the Land Acquisition Act).

All that the applicants were left with, in terms of section 16B(3)(b) of the former Constitution, is a right to claim compensation….,.

In Campbell (Private) Limited & Anor v the Minister of National Security Responsible for Land, Land Reform & Resettlement & AnorSC49-07…, the provisions of section 16B(3) of the former Constitution were set out as follows;

“(3) The provisions of any law referred to in section 16(1) regulating the compulsory acquisition of land that is in force on the appointed day and the provisions of section 18(1) and (9) shall not apply in relation to land referred to in subsection (2)(a) except for the purpose of determining any question related to the payment of compensation referred to in subsection (2)(b), that is to say, a person having any right or interest in the land –

(a) Shall not apply to a court to challenge the acquisition of the land by the State, and no court shall entertain any such challenge;

(b) May, in accordance with the provisions of any law referred to in section 16(1) regulating the compulsory acquisition of land that is in force on the appointed day, challenge the amount of compensation payable for any improvements effected on the land before it was acquired.”

At page 17 of the judgment, the court explains to us what these provisions mean, as follows;

“Section 16B of the Constitution is a complete and self-contained Code on the acquisition of privately-owned agricultural land by the State for public purposes. Its provisions relate exclusively to the acquisition of agricultural land. By the use of the non-obstante clause, 'notwithstanding anything contained in this Chapter', at the beginning of subs (2), the Legislature gave the provisions of s16B overriding effect in respect of the regulation of matters relating to the acquisition of all agricultural land identified by the acquiring authority in terms of s16B(2)(a).”

There is merit in the contention that on a proper interpretation, section 16B(3) of the former Constitution precludes an aggrieved party from challenging the compulsory acquisition of land on the basis of sections 16(1), 18(1) and 18(9) of the former Constitution....,.

With the coming into effect of Constitutional Amendment Number 17 of 2005, and the advent of section 16B of the former Constitution, with its overriding non-abstante clause, it appeared as if certainty had been entrenched in the Constitution in relation to all agricultural land that had been identified and listed in Schedule 7 of the former Constitution - which include the applicants' farms which are the subject matter of this application....,.

The farms were lawfully identified in terms of the Land Acquisition Act. They were lawfully listed in terms of Schedule 7 of the former Constitution. The second to fourth respondents hold validly issued offer letters. The applicants are not entitled to the eviction of the second to fourth respondents. The applicants are not entitled to the declaratur that they seek. They lost all rights in the farms to the first respondent - except the right to compensation.

For these reasons, the application before the court be and is hereby dismissed with costs.

Appealed
HH591-18 : CAINOS CHINGOMBE and TENDAI KWENDA vs CITY OF HARARE and MINISTER OF LOCAL GOVERNMENT, PUBLIC WORKS AND NATIONAL HOUSING and HOSEA CHISANGO N.O. and GEORGE MAKINGS N.O. and CHENAI GUMIRO N.O.
Ruled By: MATHONSI J

Of course, the first and third respondents took a point in limine challenging the jurisdiction of this court to determine this matter on the ground that it is purely a labour dispute to which the Labour Court enjoys exclusive jurisdiction by virtue of the ouster provision contained in section 89(6) of the Labour Act[Chapter 28:01]; but, this application centres around the validity of the suspension of the two (2) applicants, who are senior officials of the first respondent having been employed as Human Capital Director and Finance Director respectively.

It evolves around the determination of which employment law is applicable to the disciplinary action taken against the applicants, between the relevant provisions of the Urban Councils Act [Chapter 29:15] and the Labour Act [Chapter 28:01] with its attendant Labour (National Employment Code of Conduct) Regulations, S.I.15 of 2006.

The first respondent is a municipal authority constituted in terms of the Urban Council Act and charged with the responsibility of running the affairs of the capital city, Harare. It has been cited herein along with the second respondent, the Minister under whose portfolio the municipality falls as well as the current Town Clerk, the third respondent, and two (2) gentlemen (George Makings N.O. and Chenai Gumiro N.O.) who were put together to constitute a disciplinary committee to preside over the proceedings wherein the applicants are facing charges of misconduct.

They complete the cast as fourth and fifth respondents but saw no reason to oppose the application.

The second respondent, in typical Pilate style, submitted a letter, through the Civil Division of the Attorney General's Office, stating that he is not opposed to the order sought and will abide the decision of this court.

This left the first and third respondents to their devices as the only contestants.

The facts are generally common cause. They are that;

Sometime in 2016, the then Minister of Local Government, Public Works and National Housing commissioned an audit, conducted by the Ministry's Internal Auditors, whose brief was, among other things, to ascertain the level of compliance by Harare City Council with a directive the Minister had issued directing Local Authorities to rationalise salaries and allowances of their employees.

Following the special audit, conducted from 14 April 2016 to 21 June 2016, the auditors submitted a report, dated 30 June 2016, which made certain findings including that the two (2) applicants as well as the Chamber Secretary had negative audit observations:

“Where the Minister should, through the council, cause them to show reason why the three should not be charged with misconduct, suspended from duty, and further investigations to be carried out.”

Following that damning Ministerial audit, the first respondent was jolted into action constituting its own special tribunal led by Justice Leslie George Smith (Retired) whose very wide terms of reference included the establishment of whether there was any abuse, embezzlement, or other irregularities with the disbursement of Council funds from August 2015; assessment of the quantum of financial and other prejudice to council, and the amount attributed to each senior executive; establishment of the nature of the offence committed by each senior executive; and whether, in the interests of residents and the public, they are still fit and proper to hold office.

As an indictment against the two (2) applicants, the special tribunal made several findings of impropriety drawing the conclusion;

“The Tribunal found, that, almost invariably, the activities falling within the subject areas of its Terms of Reference were conducted contrary to relevant statutes or in the absence of sanctioning council resolutions or in direct violation of extant council resolutions or contrary to written contracts of employment or in direct violation of Council policies.

Much of the activities bear demonstrable traits of fraud, corruption, criminal abuse of office, and even forgery…,.

Almost all the senior executives under review acquiesced, or were complicit, in these activities. This would obviously be because they were all beneficiaries of the patent departures. The City continued to suffer prejudice and will possibly continue to do so.”

At a Special Council Meeting, held on 20 December 2017, which received the report of the Special Tribunal, it was resolved, that, the report be accepted and adopted and that four (4) senior executives, including the two (2) applicants, be suspended and that an Acting Town Clerk be appointed given that one of those to be suspended was the then Acting Town Clerk.

The new Acting Town Clerk was to then suspend the applicants and cause them to appear before a disciplinary committee appointed by the Mayor.

The third, fourth and fifth respondents were subsequently appointed in pursuance of that Council resolution.

The third respondent immediately swung into action dishing letters of suspension, dated 31 December 2017, to the applicants, in terms of which they were advised that their suspensions were in terms of section 6(1) of the Labour (National Employment Code of Conduct) Regulations, SI15 of 2006.

By similar letters, dated 5 January 2018, the two (2) were required to appear before a disciplinary committee comprising of the fourth and fifth respondents on 11 and 15 January 2018.

The applicants would have none of it.

Acting in league, they brought this application before this court seeking a declaratur and consequential relief. The draft order containing that relief reads:

“IT IS ORDERED:

1. That, it be and is hereby declared that the suspension of the applicants, pursuant to resolutions by a special council meeting of the 1st respondent held on 20th December 2017 and communicated to the applicants by letters of the 3rd respondent dated 31 December 2017, is in contravention of section 140 of the Urban Councils Act [Chapter 29:15] and is null and void and of no force or effect.

2. That, it be and is hereby declared that the disciplinary proceedings against the applicants flowing from the aforesaid resolution by a special council meeting of the 1st respondent held on 20th December 2017 and implemented by letters of the 3rd respondent dated 5th January 2018 are in contravention of section 140 of the Urban Council Act [Chapter 29:15] and are null and void and of no force or effect.

3. That, as a consequence of 2 above, it be and is hereby declared that the disciplinary proceedings presided over by the 4th and 5th respondents are in contravention of section 140 of the Urban Councils Act [Chapter 29:15] and are null and void and of no force or effect.

4. That, it be and is hereby declared, that, in respect of senior officials of a council, non-compliance with section 140 of the Urban Councils Act [Chapter 29:15] cannot be remedied merely by resorting to the use of the procedures set out in the Labour (National Employment Code) Regulations, 2006, SI15/2006.

5. That, for the avoidance of doubt, it be and is hereby declared that the 1st and 2nd applicants are still the Human Capital Director and Finance Director, respectively, of the first respondent.

6. The respondents (if they oppose this order) shall pay the costs of this application on a legal practitioner and client scale.”

The gravamen of the applicants' case is that, in their capacities as Human Capital Director and Finance Director, respectively, they are each classified as senior officials of the first respondent as defined in section 131 of the Urban Council Act. As such, their conditions of service, including discipline and dismissal, are regulated by sections 139 and 140 of that Act and not by the Labour Act [Chapter 28:01] in terms of which the National Employment Code, 2006, under which they are being disciplined, was promulgated.

As their suspensions were instigated by councillors at a Special Meeting of 20 December 2017 and implemented by the third respondent in terms of the Labour Act, the entire process is contrary to the Urban Councils Act and therefore null and void. They are therefore entitled to reinstatement.

The application, as I have said, is opposed by the first and third respondents, the Minister who received the initial recommendation from auditors for the suspension of the applicants' having departed, the current Minister says he is not opposed to the application.

The respondents' case is that the application is essentially for a review of the first respondent's decision to suspend the applicants and is disguised as one for a declaratur. For that reason, it is a labour dispute to which the Labour Court enjoys exclusive jurisdiction to the exclusion of this court....,.

On the merits, the respondents assert, that, it is Council which is the employer and not individual employees of it. Therefore, Council was at liberty to instigate the suspension of its employees on suspicion of misconduct. In that regard, the first respondent acted within the confines of the law when it suspended the applicants in terms of the Labour Act as read with the National Employment Code.

That legislation, which exists parallel to the Urban Councils Act, applies to every employer and employee of this country not specifically excluded thereby entitling the first respondent, as such employer, to utilise its provisions and not the Urban Councils Act, section 140(3), of which does not override the Labour Act.

To the extent that the disciplinary proceedings are being conducted in terms of the applicable law they cannot possibly be unlawful.

The respondents further argue, that, if the applicants contend that senior council officials can only be disciplined in terms of section 140 of the Urban Councils Act, that means there are inconsistencies between the two (2) Acts given that the Labour Act also applies. In that event, the Labour Act prevails by virtue of its section 2A.

Apart from that, the Labour Act should be the preferred choice given its progressive provisions which not only advance social justice but also guarantee better protection to the rights of employees.

Indeed, the applicants have not suggested that resort to the National Employment Code is prejudicial to them....,.

On the merits, I am required to decide the question I have already related to at the commencement of this judgment, namely, the validity of the suspension of the applicants in terms of section 6(1) of the National Employment Code in light of them being senior officials of the municipality as defined in section 131 of the Urban Councils Act.

This is because, as senior officials, section 140 of the Urban Councils Act regulates the disciplinary proceedings against them. At the same time, the Labour Act also applies to them as employees.

Counsel for the applicants submitted that section 140 of the Urban Councils Act is still part of our law and has not been repealed. To that extent, the applicants should have been dealt with in terms of its provisions.

He submitted, further, that, section 2A of the Labour Act has no application given that there is no inconsistency between the two (2) statutes. In fact, the two (2) statutes are reconcilable by following the procedure set out in section 140(3) all the way up to section 140(5) of the Urban Councils Act.

If following an inquiry provided for therein, one decides to discharge a senior official that is still possible without resort to the Labour Act as provided for in section 140 of the Urban Councils Act.

Counsel for the applicants conceded that section 140 of the Urban Councils Act contains repugnant provisions authorizing Council to summarily dismiss an employee which would inevitably be inconsistent with the Labour Act protecting, as it does, social justice and safeguarding the rights of employees against unfair dismissal.

To that effect, he conceded, that, the provisions relating to summary dismissal must be taken to have been impliedly repealed by the Labour Act. The rest of the provisions are still part of our law and must be complied with. Therefore, the first respondent should proceed in terms of section 140 of the Urban Councils Act....,.

Section 140 of the Urban Council Act [Chapter 29:15] provides:

“140 Conditions of service of other senior officials

(1) Subject to subsection (2) and to the conditions of service of the senior officials concerned, a council may, at any time, discharge a senior official -

(a) Upon notice of not less than three months; or

(b) Summarily, on the ground of misconduct, dishonesty, negligence, or any other ground that would, in law, justify discharge without notice.

(2) A council shall not discharge a senior official unless the discharge has been approved by the Local Government Board; provided that the discharge of a medical officer of health shall, in addition, be subject to the approval of the Minister responsible for health in terms of section 11 of the Public Health Act [Chapter 15:09].

(3) If it appears to a Town Clerk that any other senior official of the council has been guilty of such conduct that it is desirable that that official should not be permitted to carry on his work, he -

(a) May suspend the official from office and require him to leave his place of work; and

(b) Shall forthwith notify the mayor or chairman of the council, as the case maybe in writing, of such suspension.

(4) Upon receipt of a notification of suspension, in terms of subsection (3), the mayor or chairperson shall cause the suspension to be reported at the first opportunity to the council.

(5) Where a council has received a report of a suspension in terms of subsection (4), the council shall without delay –

(a) Conduct an inquiry or cause (an) inquiry to be conducted into the circumstances of the suspension; and

(b) After considering the results of the inquiry, decide whether or not –

(i) To lift the suspension; or

(ii) To do any one or more of the following –

(A) Reprimand the senior official concerned;

(B) Reduce the salary, any allowance payable to the senior official;

(C) Transfer the senior official to another post or grade, the salary of which is less than that received by him or her at the date of the imposition of the penalty.

(D) Impose a fine not exceeding level five or three month's salary, which fine may be recovered by deductions from the salary of the senior official;

(E) Subject to subsection (2) discharge the senior official.”

It is significant that counsel for the applicants was careful not to advance the enforcement of subsections (1) and (2) of section 140 of the Urban Councils Act which contain the power to summarily dismiss a senior official. He readily conceded that subsection (1) has been repealed, by implication, by the Labour Act....,.

Section 2A of the Labour Act [Chapter 28:01] provides, in relevant part;

“2A Purpose of Act

(1) The purpose of this Act is to advance social justice and democracy in the work place by –

(a) Giving effect to the fundamental rights of employees provided for in Part II;

(b)…,.;

(c)…,.;

(d) The promotion of fair labour standards;

(e)…,.;

(f) Securing the just, effective, and expeditious resolution of disputes and unfair labour practices.

(2)…,.

(3) This Act shall prevail over any other enactment inconsistent with it.”…,.

View Appeal
SC177-20 : CAINOS CHINGOMBE and TENDAI KWENDA vs CITY OF HARARE and MINISTER OF LOCAL GOVERNMENT, PUBLIC WORKS AND NATIONAL HOUSING and HOSEA CHISANGO N.O. and GEORGE MAKINGS N.O. and CHENAI GUMIRO N.O.
Ruled By: GOWORA JA, GUVAVA JA and MAKONI JA

Following their suspension from employment by the first respondent, the appellants, on 2 February 2018, filed an application with the High Court seeking a declaratur to the effect that such suspension was unlawful as well as consequential relief.On 3 October 2018, the High Court dismissed the application with each of ...

Following their suspension from employment by the first respondent, the appellants, on 2 February 2018, filed an application with the High Court seeking a declaratur to the effect that such suspension was unlawful as well as consequential relief.

On 3 October 2018, the High Court dismissed the application with each of the parties being made to pay its own costs.

This appeal is against that judgment.

BACKGROUND FACTS

The first respondent is a municipal authority constituted in accordance with the provisions of the Urban Councils Act [Chapter 29:15]. It is the authority responsible for running the affairs of Harare. The second respondent is the Government official tasked with the administration of the Act. The third respondent is cited in his official capacity as the acting Town Clerk for the first respondent. The fourth and fifth respondents were members tasked with the hearing of disciplinary proceedings against the two appellants.

The two appellants are senior officials within the employ of the first respondent, (“City of Harare”). Such appointments are governed by section 134 and 135 of the Urban Councils Act.

Following allegations of gross mismanagement in the affairs of the City of Harare, the Government caused a special audit to be conducted into the affairs of the municipality. On 20 December 2017, a special meeting was convened by councilors to receive the report on the special audit.

Following upon the meeting aforesaid, the third respondent was directed, by a resolution passed at the meeting of the council, to write letters of suspension to the appellants.

On 31 December 2017, the third respondent addressed letters to the appellants advising them of their suspension from employment with immediate effect and without pay and benefits in terms of section 6(1) of the Labour (National Employment Code of Conduct) Regulations, 2006, S.I.15 of 2006 (the “National Code of Conduct”).

On 5 January 2018, the appellants were invited to attend a disciplinary hearing on 15 January 2018 to enquire into the alleged offences detailed in the letters of suspension.

On 10 January 2018, the appellants launched an application with the High Court, under urgent cover, to interdict the conduct of the disciplinary proceedings. The matter was deemed not urgent and was not heard. The applicants then launched the proceedings which are the subject matter of this appeal.

PROCEEDINGS BEFORE THE HIGH COURT

Before the High Court, the appellants contended that the Urban Councils Act rigidly regulates the appointment and conditions of service of senior officials. To that end, any aspect involving the appointment, discipline, and dismissal of senior officials contrary to the Act was void and of no effect.

They contended that section 140 of the Urban Councils Act is specific and mandatory and that, in terms of its provisions, a senior official facing suspicion of misconduct cannot be suspended by councillors. It was averred, that, in terms of section 140 of the Urban Councils Act, only the Town Clerk had the mandate to place a senior official on suspension. It was suggested, that, the reliance, by the first respondent, on SI15 of 2006 in effecting the suspension and the consequent disciplinary proceedings pursuant thereto was wrong and unlawful.

Turning to the appointment of the disciplinary committee, the appellants contended, that, there was no scope within section 140 of the Urban Councils Act for the Mayor to appoint a disciplinary committee. His decision to do so, and the appointment itself, were therefore illegal. As a result, the failure to comply with the provisions of section 140 of the Urban Councils Act rendered the entire process an illegality.

The application was opposed by the first and third respondents who took a preliminary point. The respondents contended, that, the High Court did not have the requisite jurisdiction to determine the application.

It was submitted, that, although disguised as an application for a declaratur, what the appellants were seeking was a review of the suspension.

As regards the merits, the respondents averred that the employer was the City of Harare and not particular individuals who were also employees of the same. The councillors represent the City of Harare and it was their mandate to make the decision to suspend the two appellants. In that regard, the City of Harare had acted within the confines of the law when it suspended the appellants in terms of the Labour Act [Chapter 28:01] and the National Code of Conduct. The respondents denied that the suspension and the scheduled disciplinary proceedings were unlawful and prayed that the application be dismissed with costs.

The learned judge in the court a quo, based on the relief sought in the draft order, was of the considered view that the High Court had the requisite jurisdiction to determine the application. This was because, as he stated, the relief sought was that of a declaratory order, and the Labour Court was not empowered, in terms of its enabling Act, to grant declaratory orders.

He discounted the contention by the respondents, that, what the appellants draft order sought was an order for their reinstatement disguised as a declarator.

I am inclined to believe that the learned judge erred, in that he then proceeded to determine the matter on the merits as to whether the applicable law was the Labour Act or the Urban Councils Act.

The court a quo found that the appellants were employees as defined in section 2 of the Labour Act. The learned judge concluded that the only employees who were excluded from the Labour Act were those whose conditions of service were covered by the Constitution and the appellants did not fall in that category.

It was common cause that the City of Harare did not itself have a Code of Conduct providing for the discipline of its employees, and, accordingly, in terms of section 12B of the Labour Act, in the absence of a code of conduct, the National Code of Conduct was the default code for disciplining employees.

The court dismissed the application.

On the issue of costs, it was the view of the learned judge, that, given the two pieces of legislation seemingly providing for the discipline and dismissal of employees in the employ of the City of Harare, it was to be expected that the appellants would bring an application to court for the determination of their right to administrative conduct that is lawful. In addition, he surmised that the matter raised important legal issues. Accordingly, he ordered that each party should bear its own costs.

THE APPEAL

Aggrieved by the dismissal, the appellants have brought this appeal on two grounds. It is contended that the court erred in law:

(i) In finding that section 140 of the Urban Councils Act [Chapter 29:15] had been repealed by section 2A of the Labour Act [Chapter 28:01];

(ii) In not finding that the suspension of, and the disciplinary proceedings against, the appellants were null and void and of no force or effect for being in contravention of section 140 of the Urban Councils Act [Chapter 29:15].

The appellants pray that the appeal be allowed with the judgment of the court a quo being set aside to allow the grant of the application. They also pray for consequential relief in the form of the declaratur sought in the court below.

ISSUE(S) ARISING FOR DETERMINATION

The sole issue for determination, on appeal, therefore, is whether the court a quo erred in finding that section 140 of the Urban Councils Act had been implicitly repealed by the Labour Act.

However, before determing the merits of the appeal it is necessary to determine whether or not the court a quo was correct in assuming jurisdiction over the matter in the first place.

WHETHER THE COURT A QUO CORRECTLY ASSUMED JURISDICTION

Subsequent to the promulgation of the 2013 Constitution, there has arisen, within the jurisdiction, some confusion on the extent of the jurisdiction enjoyed by the High Court as a court of first instance - especially as relates to matters concerned with employment disputes.

The Supreme Court has determined, in Nhari v Mugabe & Ors SC161-20, that, the High Court has no jurisdiction in issues of labour and employment and that such issues fell to be determined under the Labour Act.

In that case, the court had to consider whether, under section 171 of the 2013 Constitution, the High Court could be said to enjoy original jurisdiction over all civil and criminal matters throughout Zimbabwe.

In this exercise, the Supreme Court had to construe the provisions of sections 171 and 172 of the Constitution which specifically made provision for the jurisdiction of the High Court and the Labour Court respectively. The court said:

“The same Constitution that conferred original jurisdiction on the High Court over all civil and criminal matters also made provision for the creation of other specialised courts, whose jurisdiction over specialized areas of the law, and the exercise of such jurisdiction, was left entirely to Acts of Parliament.

In other words, it is the Constitution itself which has permitted the establishment of these specialized courts, and, in the same breath, provided for the issue of jurisdiction and exercise of such jurisdiction to be left to an Act of Parliament.

Section 172 of the Constitution, which establishes the Labour Court, is not made subject to section 171 which creates the High Court.

The two sections are in pari materia and must therefore be construed together.

In making provision for the establishment of specialised courts in Acts of Parliament, the Constitution has not in any way attempted to fetter or restrict the jurisdiction that is to be conferred upon such courts, or to make such jurisdiction subject to section 171 which creates and provides for the jurisdiction of the High Court.

It could not, therefore, have been the intention of the legislature that the High Court would have jurisdiction in all civil and criminal cases without exception.

An interpretation that the High Court has unlimited jurisdiction in all cases would clearly lead to an absurdity.

The High Court would then have jurisdiction to determine matters that are in the province of say, the Military Courts. The High Court could, in these circumstances, be called upon to deal with petty cases involving the application of customary law at first instance or discipline at the work place.

Were the High Court to have jurisdiction to hear and determine every case in Zimbabwe, it would get bogged down in matters over which it may have very little expertise, or in petty matters that should ordinarily not detain the court.

It would cease being the High Court as we know it.

Such an absurdity could not have been in the contemplation of the legislature when it provided for the jurisdiction and exercise of such jurisdiction by the court in section 171 of the Constitution.”

In the context of this case, the court a quo assumed jurisdiction on the premise that the appellants were seeking relief in the form of a declaratur and that the Labour Court was not empowered to grant declaratory orders.

The learned judge found, that, the matter was properly before him on the sole premise that the relief sought was that of a declarator as opposed to an application for reinstatement.

It is a settled position in our law, that, as a creature of statute, the Labour Court has not been imbued with the power to issue declaratory orders.

The manner in which the relief was framed did indeed suggest that the appellants were seeking declaratory orders.

In order to decide whether or not the matter was properly before the High Court, I must have regard to the premise upon which the appellants approached the court. In other words, the resolution of the question on jurisdiction is hinged on the dispute that was placed for adjudication before the court a quo.

The contention made on behalf of the appellants was that the City of Harare had, in effecting their suspensions and seeking to discipline them, used the wrong law and that, to that extent, they were entitled to a declaration of rights, thus imbuing the High Court with the necessary jurisdiction.

This, it was argued, was due to the fact, that, the Labour Court, being a special court set up in terms of the Labour Act, was a creature of statute and could only do that which its eanabling Act provided for.

In deciding whether or not a litigant is seeking a declaratur or some other relief, a court must be guided by the grounds upon which the application is made and the evidence in support of the order prayed for.

In Geddes Ltd v Tawonezvi 2002 (1) ZLR 479 (S)…, MALABA JA…, stated:

“In deciding whether an application is for a declaration or a review, a court has to look at the grounds of the application and the evidence produced in support of them. The fact that an application seeks declaratory relief is not, in itself, proof that the application is not for review.

In City of Mutare v Mudzime & Ors 1999 (2) ZLR 140 (S), MUCHECHETERE JA quoted with approval from Kwete v African Publishing Trust & Ors HH21-98, where, at p3 of the cyclostyled judgment, SMITH J said:

'It seems to me, with all due respect, that, in deciding whether or not, in an application for damages or reinstatement arising from alleged wrongful dismissal, the provisions of Rule 259 of the High Court Rules should be complied with, one should look at the grounds on which the application is based, rather than the order sought…,. It seems to me anomalous that one should be permitted to file an application for review out of time, without seeking condonation, as long as a declaratory order is sought. A declaratory order is, after all, merely one species of relief available on review.'

In this case, the respondent was not attacking Mrs Madyara's decision to suspend him from work, the disciplinary proceedings she presided over, or the decision of the employer to dismiss him from employment.

He was in fact treating these decisions and proceedings as a nullity.

In other words, they were as good as not having happened and there was no route leading to them upon which they could be reviewed. The ground on which he was treating these decisions and proceedings as a nullity, was that Mrs Madyara had no legal authority or jurisdiction to make the decisions and institute disciplinary proceedings against him.”

Contrary to the remarks of the learned MALABA JA…, above, the appellants argue, that, in suspending them and preferring charges of misconduct, the City of Harare had failed to give effect to the provisions of section 140 of the Urban Councils Act rendering such conduct illegal. They contended, that, the employer was not at large to ignore the specific provisions of the Act and find comfort in S.I.15 of 2006.

The order sought by the appellants in the court a quo was to the following effect:

“1. That, it be and is hereby declared that the suspension of the applicants, pursuant to resolutions by a special Council meeting of the first respondent, held on 20 December 2017 and communicated to the applicants by letters of the third respondent dated 31 December 2017, is in contravention of section 140 of the Urban Councils Act [Chapter 29:15] and is null and void and of no force and effect.

2. That, it be and is hereby declared that the disciplinary proceedings against the applicants, flowing from the aforesaid resolutions by a special Council meeting of the first respondent held on 20 December 2017 and implemented by letters of the 3rd respondent dated 5 January 2018, are in contravention of section 140 of the Urban Councils Act [Chapter 29:15] and are null and void and of no force and effect.

3. That, as a consequence of 2 above, it be and is hereby declared that the disciplinary proceedings presided over by the fourth and fifth respondents are in contravention of section 140 of the Urban Councils Act [Chapter 29:15] and are null and void and of no force and effect.

4. That, it be and is hereby declared that, in respect of senior officials of a council, non-compliance with section 140 of the Urban Councils Act [Chapter 29:15] cannot be remedied merely by resorting to the use of the procedures set out in the Labour (National Employment Code of Conduct) Regulations 2006, S.I. 15/2006.

5. That, for the avoidance of doubt, it be and is hereby declared that the first and second applicants are still the Human Capital Director and Finance Director, respectively, of the first respondent.

6. The respondents (if any oppose this order) shall pay the costs of this application on a legal practitioner and client scale.”

The appellants seek to challenge their suspension under what they term an illegal process not provided for by law. In my view, they were challenging the choice of law by the employer and the legality of the entire process.

The starting point, in my view, must be the Labour Act.

It sets out which employees and employers are subject to its provisions in the determination of disputes in the workplace. Sections 2A and 3 of the Labour Act are pertinent in this regard. Section 3 of the Labour Act provides as follows:

“3 Application of Act

(1) This Act shall apply to all employers and employees except those whose conditions of employment are otherwise provided for in the Constitution.

(2) For the avoidance of any doubt, the conditions of employment of members of the Public Service shall be governed by the Public Service Act [Chapter 16:04].

(3) This Act shall not apply to or in respect of —

(a) Members of a disciplined force of the State; or

(b) Members of any disciplined force of a foreign State who are in Zimbabwe under any agreement concluded between the Government and the Government of that foreign State; or

(c) Such other employees of the State as the President may designate by statutory instrument.”

I begin this inquiry with a consideration of section 3 of the Labour Act.

In sub section (1), it states, in unequivocal terms, that, the Labour Act shall apply to all employers and employees except for those whose conditions of employment are governed by the Constitution.

In subsection (2) and (3) members of the Public Service and the disciplined forces are specifically excluded from the application of the Labour Act.

The appellants have not argued that they fall within the category of employees whose conditions of employment are excluded from the application of the Labour Act.

In turn, section 2A of the Labour Act [Chapter 28:01] is in the following terms:

“2A Purpose of Act

(1) The purpose of this Act is to advance social justice and democracy in the workplace by —

(a) Giving effect to the fundamental rights of employees;

(b) (repealed)…,.;

(c) Providing a legal framework within which employees and employers can bargain collectively for the improvement of conditions of employment provided for under Part II;

(d) The promotion of fair labour standards;

(e) The promotion of the participation by employees in decisions affecting their interests in the workplace;

(f) Securing the just, effective, and expeditious resolution of disputes and unfair labour practices.

(2) This Act shall be construed in such manner as best ensures the attainment of its purpose referred to in subs (1).

(3) This Act shall prevail over any other enactment inconsistent with it.”…,.

A perusal of the section makes it clear to the reader that the intended purpose is to ensure that employees are accorded the legal framework for the enforcement of their rights within the work place as guaranteed by law.

However, for present purposes, section 2(1)(f) is the pertinent provision as it seeks to ensure the securing of a just, effective, and expeditious resolution of disputes and unfair labour practices.

In casu, the dispute centres upon which statute the City of Harare should have resorted to in disciplining the appellants.

The City of Harare contends that section 140 of the Urban Councils Act is inconsistent with the Labour Act, and, to that extent, is inapplicable in the determination of labour disputes within its workplace.

The appellants do not dispute that there is no Code of Conduct in existence governing the discipline and dismissal of senior employees within the workplace of the City of Harare. Their contention is that section 140 of the Urban Councils Act affords them all the protection they require, as employees, and that to depart from the specific provision of the said section and discipline them in terms of any other law is to perpetuate an illegality.

Section 140 of the Urban Councils Act reads:

“140 Conditions of service of other senior officials

(1) Subject to subsection (2) and to the conditions of service of the senior official concerned, a council may, at any time, discharge a senior official —

(a) Upon notice of not less than three months; or

(b) Summarily on the ground of misconduct, dishonesty, negligence, or any other ground that would, in law, justify discharge without notice.

(2) A council shall not discharge a senior official unless the discharge has been approved by the Local Government Board: provided that the discharge of a medical officer of health shall, in addition, be subject to the approval of the Minister responsible for health in terms of section 11 of the Public Health Act [Chapter 15:09].

(3) If it appears to a Town Clerk that any other senior official of the council has been guilty of such conduct that it is desirable that that official should not be permitted to carry on his work, he —

(a) May suspend the official from office and require him forthwith to leave his place of work; and

(b) Shall forthwith notify the mayor or chairman of the council, as the case may be, in writing, of such suspension.

(4) Upon receipt of a notification of suspension, in terms of subsection (3), the mayor or chairperson shall cause the suspension to be reported, at the first opportunity, to the council.

(5) Where a council has received a report of a suspension, in terms of subs (4), the council shall, without delay —

(a) Conduct an inquiry or cause an inquiry to be conducted into the circumstances of the suspension; and

(b) After considering the results of the inquiry, decide whether or not —

(i) To lift the suspension; or

(ii) To do any one or more of the following —

(A) Reprimand the senior official concerned;

(B) Reduce the salary any allowance payable to the senior official;

(C) Transfer the senior official to another post or grade, the salary of which is less than that received by him or her at the date of the imposition of the penalty;

(D) Impose a fine not exceeding level five or three months' salary, which fine may be recovered by deductions from the salary of the senior official;

(E) Subject to subsection (2), discharge the senior official.”

Sub-section (1) above makes for uncomfortable reading as it seems to suggest that the council can summarily dismiss an employee on the grounds of misconduct, dishonesty, negligence, or any other ground, in law, that would justify such discharge without notice.

In his judgment, the learned judge in the court a quo stated that counsel for the appellants had conceded that section 140 of the Urban Councils Act contained repugnant provisions authorizing the Council to summarily dismiss an employee and that this would inevitably be inconsistent with the Labour Act, protecting as it does, social justice within the workplace and safeguarding the rights of employees against unfair dismissal.

This provision is not only inconsistent with section 2(1) of the Labour Act but is also in violation of the audi alteram partem principle. It is particularly inconsistent with subsection (1)(f) of the Labour Act which ensures that an employee is afforded a just and effective legal framework for the resolution of disputes in the workplace.

Before this Court, counsel for the appellants accepted that the provision is inimical to the interests of the employee at large. He suggested that the court not have regard to subsection (1) of section 140 of the Urban Councils Act.

View Appeal
SC161-20 : STANLEY NHARI vs ROBERT MUGABE and DR GRACE MUGABE and GUSHUNGO DAIRY HOLDINGS (PVT) LTD
Ruled By: GARWE JA, MAVANGIRA JA and MAKONI JA

This is an appeal against the judgment of the High Court upholding the special plea by the respondents that the High Court did not have jurisdiction to determine issues of employment and labour law.

At the centre of the dispute between the parties, both in the court a quo and before this Court, is the question whether the High Court, which now enjoys original jurisdiction over all civil and criminal matters throughout Zimbabwe pursuant to section 171 of the Constitution 2013, has jurisdiction to determine all matters including issues of labour and employment.

Having carefully considered all the constitutional provisions that have a bearing on this matter, as well as case law authority, I am in no doubt that the powers of the High Court are not unbounded and that in the sphere of labour and employment law, the court does not have jurisdiction to determine such matters in the first instance.

BACKGROUND FACTS

The appellant was employed as General Manager of the third respondent in terms of an unwritten agreement and commenced such employment in or about January 2007.

It appears, from the pleadings, that, the employment relationship hit stormy waters, and, in 2015, the appellant's employment was terminated.

At the relevant time, the first respondent was the President of the Republic of Zimbabwe whilst the second was his wife and the country's First Lady.

In July 2018, the appellant, as plaintiff, issued a summons against all three respondents claiming various sums of money which he contended were due.

In his declaration, the appellant claimed that the third respondent was the first and second respondents' alter ego and that it constituted the economic entity through which the first and second respondents pursued their economic interests.

He claimed, that, as General Manager, he was required to perform all such tasks as are customarily undertaken by a person in that position and that, in addition, he was required to do work that had nothing to do with his position as General Manager of the third respondent.

On 6 October 2015, “by use of illegitimate influence, force and might”, the first and second respondents “required” him to relinquish his position but was however ordered to continue working until 6 November 2015.

The relief sought consequent upon the above developments is captured in his declaration as follows:

“2.1. As a result of the unlawful termination of the employment relationship, plaintiff is owed by defendants damages for a period extending from 1 October 2015 to 6 November 2015 being the sum of $8,909=14 computed on the basis of the salary that plaintiff was earning, which sum the defendants have refused to pay.

2.2. Plaintiff is also owed $69,492=69 in accrued leave days reckoned from 1 January 2007 to 6 November 2015 such leave accruing at 25 days per year.

2.3. At the time of the termination of relationship between the parties, the plaintiff was entitled, by agreement, to a motor vehicle or to the value of such vehicle being US$90,000. Defendants have refused to allow plaintiff to recover this benefit.

2.4. Upon the enforced termination of the employment relationship, first and second defendants used public media to denigrate plaintiff at various gatherings in a manner that imperilled his future prospects of employment.

2.5. The acts(s) of the defendants in interfering with the plaintiff's prospects are wrongful and deliberate and resulted in plaintiff losing potential employment and has consequently yielded loss of US$588,000 which is due from defendants to plaintiff.”

The respondents, as defendants, filed a plea-in-bar in which they averred that the High Court had no jurisdiction to entertain the matter because it was a purely labour dispute in respect of which the Labour Court had jurisdiction in the first instance as provided for in section 89(6) of the Labour Act [Chapter 28:01].

They further contended that the cause of action was the alleged non-payment of post-termination of employment wages and benefits.

That being the position, in terms of section 13 of the Labour Act, the allegation, if proved, would constitute an unfair labour practice which fell to be dealt with under section 93 of the Labour Act.

In terms of section 89(6) of the Labour Act, the High Court has no jurisdiction in the first instance to hear and determine such a matter. Whilst accepting that in terms of section 171(1) of the Constitution 2013 the High Court has original jurisdiction over all civil and criminal matters throughout Zimbabwe, the respondents further submitted that, by section 172(2) and (3), the same Constitution has circumscribed matters over which the Labour Court has exclusive jurisdiction.

In its determination, the High Court accepted, that, in terms of section 171(1) of the Constitution 2013, the High Court has jurisdiction over all civil and criminal matters in Zimbabwe.

Relying on a number of decisions of the same court, the court found that, regard being had to section 172 of the Constitution 2013 which provides for the establishment of the Labour Court, the intention of the legislature was that, in labour matters, the Labour Court be the court of first instance.

The court further found that the Constitution recognizes the distinction between labour matters and civil matters in general.

It also found that in any event section 13 of the High Court Act [Chapter 7:06] makes it clear that it is subject to the High Court Act itself and any other law.

Since section 2A(3) of the Labour Act provides that the Act prevails over any other enactment inconsistent with it, section 89(6) of the Labour Act would prevail over section 13 of the High Court Act.

The court, after analysing each of the plaintiff's claims, came to the conclusion that they were all rooted in Labour Law, and, therefore, only the Labour Court had jurisdiction to determine them.

The court acknowledged that there were conflicting High Court decisions on the matter, with some holding, that, with the advent of the new Constitution, the High Court now enjoyed jurisdiction to determine all matters, including those that originate from labour and employment, whilst other decisions are to the contrary.

It was "in light of this unhappy state of the law” that the court determined that an award of punitive costs was not warranted. In the result, the court upheld the special plea.

Instead of striking the matter off the roll for want of jurisdiction, the court dismissed it with costs.

PROCEEDINGS BEFORE THIS COURT

Unhappy with the above determination, the appellant filed a notice of appeal with this Court. His grounds of appeal are that:

1. The court a quo erred in finally and definitively dismissing his claims on the basis of procedural impropriety.

2. The court a quo erred in finding that the High Court does not have jurisdiction to deal with the claims that were brought to it by the appellant, more particularly those that related to delictual damages and the motor vehicle.

3. The court a quo grossly erred and misdirected itself at law by making a finding that the claims brought by the appellant were labour in character.

APPELLANT'S SUBMISSIONS BEFORE THIS COURT

In his submissions, the appellant states as follows:

The extent of the jurisdiction of the High Court is provided for in section 171 of the Constitution 2013. That section provides that the High Court has original jurisdiction over all civil and criminal matters throughout Zimbabwe and that an Act of Parliament may provide for the exercise of jurisdiction by the court.

That Act of Parliament is the High Court Act which provides, in section 13 thereof, that, the High Court shall, subject to the Act itself and any other law, have original civil and criminal jurisdiction over all persons and over all matters within Zimbabwe.

In other words, so the argument goes, the extent of the jurisdiction is conferred by the Constitution whilst the exercise of that jurisdiction is in terms of section 13 of the High Court Act.

The appellant further submits that section 172(2) of the Constitution 2013 (which creates the Labour Court), on the other hand, provides that the Labour Court shall have such jurisdiction over matters of labour and employment as may be conferred upon it by an Act of Parliament and that such Act of Parliament may provide for the exercise of jurisdiction by the Court.

Therefore, the jurisdiction of the Labour Court is not in terms of the Constitution but rather an Act of Parliament.

Relying on the Supreme Court decision in Agribank v Machingaifa & Another 2008 (1) ZLR 244 (S), SC61-07 which held that the Labour Court has no jurisdiction to grant declaratory orders and that only the High Court may do so, the appellant further submitted that there is no provision in the Labour Act in terms of which the claims made by the appellant can be made to the Labour Court.

More specifically, a litigant cannot approach the Labour Court claiming delictual damages.

Lastly, the appellant submitted that the decision to dismiss the claim is wrong because it is final and definitive. It closes the door for the appellant despite the finding by the court that the claims fell to be determined by the Labour Court.

Once the court found that it had no jurisdiction, there was no claim before it to dismiss.

Whilst the claims have a labour character, they are not referred to in section 89(1) of the Labour Act as matters over which the Labour Court has exclusive jurisdiction.

He accordingly sought an order setting aside the decision of the court a quo and remitting the matter to the court a quo for a determination on the merits.

RESPONDENTS' SUBMISSIONS BEFORE THIS COURT

The respondents, per contra, argue that the High Court was correct in finding that it had no jurisdiction to hear and determine the claims set out in the declaration.

Section 13 of the Labour Act provides, in clear terms, that, any person who has his employment terminated shall be entitled to the wages and benefits due to him up to the time of, inter alia, such determination or dismissal and that the employer shall pay such entitlements as soon as is reasonably practicable after the event and failure to do so shall constitute an unfair labour practice.

The remedy for forced labour is to be found in section 4A of the Labour Act [Chapter 28:01.

The accrued leave days and motor vehicle benefit are clearly the entitlements envisaged in section 13 of the Labour Act.

The last claim for damages for loss of employment are not delictual but rather damages allegedly suffered by the appellant in his employment prospects.

A failure by an employer to pay post termination wages and other benefits is an unfair labour practice.

The procedure for dealing with unfair labour practices is provided for in section 93 of the Labour Act.

The respondents further submit that the court a quo was correct in dismissing the claim and for this proposition relied on the decision of this Court in Doelchem v Pichanick 1999 (1) ZLR 390, and HERBSTEIN & Van WINSEN, The Civil Practice of the High Courts of South Africa, 5th Ed…,.

Once a special plea of jurisdiction succeeds, the court quashes the claim.

It is not always the case that where a court pronounces a dismissal, the matter cannot be brought back. For example, a court that determines that there are disputes of fact in a case can dismiss the claim on that basis only.

It was the respondents' final submission that the Constitution has deliberately demarcated cases that are civil, criminal, employment and labour. It would defeat the intention of the legislature were it to be held that the High Court has jurisdiction to deal with labour matters.

As regards the claim for $558,000 damages for loss of employment prospects, the respondents conceded, during oral argument, that this fell outside the jurisdiction of the Labour Court.

ISSUE(S) ARISING FOR DETERMINATION

From the above submissions by the parties, it seems to me there is essentially one issue that arises for determination. That issue, stated broadly, is whether the High Court has jurisdiction to deal with matters of labour and employment in the first instance.

To answer the question there is need, in my view, to consider the proper approach to the interpretation of a Constitution.

The ultimate question is whether the Constitution does in fact confer jurisdiction on the High Court to deal with all issues - including issues of labour and employment.

There is no doubt that there are conflicting decisions in the High Court on whether the court has jurisdiction to deal with all civil and criminal matters, a fact alluded to by the court a quo in its judgment.

Before the advent of the current Constitution, the position was settled, that, the High Court had no jurisdiction in matters of labour and employment. Indeed, in decided cases such as Zimtrade v Makaya 2005 (1) ZLR 427 (H), 429 and DHL International (Pvt) Ltd v Madzikanda 2010 (1) ZLR 201 (H), 204-5, HH51-10 the High Court itself accepted that it had no jurisdiction in these matters.

The court further accepted that it would have been a mockery of the clear intention of the legislature to create a special court in circumstances where the jurisdiction of that court could be defeated by the framing of disputes as common law causes of action despite the fact that the Labour Act would have made specific provision for the same.

The repealed 1980 Constitution had provided, in section 81, for the creation of the High Court with such jurisdiction as was to be conferred upon it by an Act of Parliament, namely, the High Court Act.

It was the High Court Act which conferred full original jurisdiction on the High Court in all civil and criminal matters throughout Zimbabwe.

The coming into effect of the current Constitution changed this position.

In section 171(1), the Constitution itself has provided for the establishment of the High Court with original jurisdiction over all civil and criminal matters throughout Zimbabwe.

In Chiweshe & Ors v Air Zimbabwe Holdings (Pvt) Ltd 2014 (2) ZLR 837 (H), HH688-14, a claim for outstanding salaries was held to be a purely debt collection matter which could be entertained by the High Court, depending on the amount(s) to be collected.

Further, in Confederation of Zimbabwe Industries v Mbatha HH126-15, the High Court held that section 171(1) of the Constitution 2013 overrides section 89(6) of the Labour Act, and that, consequently, the High Court has original jurisdiction over all matters - including those of a labour nature.

In Stanley Machote v Zimbabwe Manpower Development Fund HH813-15, the High Court expressed the view that, in interpreting the Constitution, one must take into account other applicable constitutional provisions that have a bearing on the matter.

Contrary to decisions of the same court cited in the last paragraph, it found that only the Labour Court is empowered to determine labour matters at first instance.

This determination was followed, in other decisions of the same court, such as Nyanzara v Mbada Diamonds (Private) Limited 2016 (1) ZLR 195 (H), HH63-16, which specifically found that the legislature had circumscribed matters of labour over which the Labour Court shall exercise exclusive jurisdiction in the first instance to the exclusion of other courts - the High Court included.

As the court a quo correctly noted, there is an “unhappy state of the law” in this regard. There is need for a clear and definitive pronouncement by this Court on this issue.

APPROACH TO CONSTITUTIONAL INTERPRETATION

In general, the principles governing the interpretation of a Constitution are basically the same as those governing the interpretation of statutes.

One must look to the words actually used and deduce what they mean within the context in which they appear. If the words used are precise and unambiguous, then, no more is necessary than to expound them in their natural and ordinary sense.

One does not depart from the literal and grammatical meaning unless this leads to such an absurdity that the legislature could not have contemplated it; Mawarire v Mugabe & Ors 2013 (1) ZLR 469 (CC), CC01-13…,.

Constitutional interpretation, however, often requires more than simply according words their literal or ordinary grammatical meaning.

In S v Makwanyare 1995 6 BCLR 665 (CC), the Constitutional Court of South Africa underscored the position, that, “whilst paying due regard to the language that has been used, an interpretation of the Bill of Rights must be generous and purposive and give…, expression to the underlying values of the Constitution.”

The court underscored the need for provisions of the Constitution to be construed together, in their context, which includes the history and background of the adoption of the Constitution together with the other provisions of the Constitution itself.

The court further stated that it was permissible, in interpreting a Constitution, to have regard to the purpose and background of the legislation in question.

The court cited with approval remarks in Jaga v Donges N.O. and Another 1950 (4) SA 653A, 662G-H that:

"Certainly no less important than the oft repeated statement that the words and expressions used in a statute must be interpreted according to their ordinary meaning is the statement that they must be interpreted in the light of their context. But, it may be useful to stress two points in relation to the application of this principle.

The first is that the context, as here used, is not limited to the language of the rest of the statute regarded as throwing light of a dictionary kind on the part to be interpreted. Often of more importance is the matter of the statute, its apparent scope and purpose, and, within limits, its background.”

It is an accepted principle of interpretation that where two sections of a statute deal with the same subject matter, these should be read together: Aziz v Divisional Council, Cape and Another 1962 (4) SA 719A, 726E.

The very nature of a Constitution requires that a broad and generous approach be adopted in the interpretation of its provisions and that all relevant provisions bearing on the subject for interpretation be considered together as a whole in order to effect the objective of the Constitution: Attorney General v Dow (1992) BLR 119 CA, 131-3; Shumba & Ors v Minister of Justice, Legal & Parliamentary Affairs & Ors CC04-18.

The purposive approach requires that interpretation should not depend exclusively on the literal meaning of words according to the semantic and grammatical analysis. The interpreter must endeavour to infer the design or purpose which lies behind the legislation.

Words should only be given their ordinary grammatical meaning if such meaning is compatible with their complete context.

Put another way, therefore, the legislature is presumed not to intend an absurdity, ambiguity or repugnancy to arise out of the grammatical and ordinary meaning of the words that it uses in an enactment. The words used must be construed in a way that makes sense rather than nonsense.

The words must be construed in a way that is consistent with the rest of the instrument in which the words appear.

THE CONSTITUTIONAL PROVISIONS GIVING RISE TO THE DISPUTE

Sections 171 and 172 of the Constitution 2013 provide, in relevant part, as follows:

"171 JURISDICTION OF HIGH COURT

(1) The High Court –

(a) Has original jurisdiction over all civil and criminal matters throughout Zimbabwe;

(b)–(d)…,. (not relevant)

(2) An Act of Parliament may provide for the exercise of jurisdiction by the High Court and for that purpose may confer the power to make rules of court.

(3)…,. (not relevant)

(4)…,. (not relevant)

172 LABOUR COURT

(1)…,. (not relevant)

(2) The Labour Court has such jurisdiction over matters of labour and employment as may be conferred upon it by an Act of Parliament.

(3) An Act of Parliament may provide for the exercise of jurisdiction by the Labour Court and for that purpose may confer the power to make rules of court.”

One must accept, as one should, that the ordinary grammatical meaning of section 171(1) of the Constitution 2013 is that the High Court has original jurisdiction over all civil and criminal matters throughout Zimbabwe.

Had the Constitution stopped there, then no-one could properly argue that the High Court does not have jurisdiction to hear and determine all criminal and civil matters - inclusive of labour matters.

But, the Constitution went further to create other courts with specialised functions.

The same Constitution that created a High Court with original jurisdiction over all civil and criminal matters throughout Zimbabwe, in terms of section 171(1), went on to create, in section 172, a Labour Court with such jurisdiction over matters of labour and employment as may be conferred upon it by an Act of Parliament, which Act of Parliament was also to provide for the exercise of jurisdiction by that court.

The Constitution went further, in sections 173 and 174, to create an Administrative Court as well as other courts and tribunals whose establishment, composition, jurisdiction, and exercise of jurisdiction was to be provided for in Acts of Parliament. These include the Magistrates Courts, Customary Law Courts, other courts subordinate to the High Court, and tribunals for arbitration, mediation, and other forms of alternative dispute resolution.

Customary Law courts primarily exercise jurisdiction in cases involving the application of customary law; whilst a number of other courts, such as the Electoral Court, Fiscal Appeal Court, Special Court for Income Tax Appeals are established under particular Acts of Parliament.

The Electoral Court, for example, has exclusive jurisdiction, in terms of section 161 of the Electoral Act [Chapter 2:13], to hear appeals, applications, and petitions in terms of the Act but has no jurisdiction to try any criminal case.

Then, there are military courts established under Part VI of the Defence Act [Chapter 11:02], whose jurisdiction and exercise of such jurisdiction are provided for under that Act, with appeals from such courts being heard by the Court Martial Appeal Court established under Part VIII of the Act.

All these courts are established pursuant to the Constitution.

The Constitution has recognised the need for the creation of other specialized courts and has provided that an Act of Parliament may confer jurisdiction and the exercise of such jurisdiction by these courts.

Now, if the intention of Parliament, when regard is had to section 171(1) of the 2013 Constitution, was to confer, without qualification, the High Court with original jurisdiction over all civil and criminal matters in Zimbabwe, then these other provisions in the Constitution would be surplusage and completely unnecessary.

The same Constitution that conferred original jurisdiction on the High Court over all civil and criminal matters also made provision for the creation of other specialised courts, whose jurisdiction over specialised areas of the law, and the exercise of such jurisdiction, was left entirely to Acts of Parliament.

In other words, it is the Constitution itself which has permitted the establishment of these specialized courts, and, in the same breath, provided for the issue of jurisdiction and exercise of such jurisdiction to be left to an Act of Parliament.

Section 172 of the Constitution 2013, which establishes the Labour Court, is not made subject to section 171, which creates the High Court.

The two sections are in pari materia and must therefore be construed together.

In making provision for the establishment of specialised courts in Acts of Parliament, the Constitution has not in any way attempted to fetter or restrict the jurisdiction that is to be conferred upon such courts, or to make such jurisdiction subject to section 171 which creates and provides for the jurisdiction of the High Court.

It could not, therefore, have been the intention of the legislature that the High Court would have jurisdiction in all civil and criminal cases without exception.

An interpretation that the High Court has unlimited jurisdiction in all cases would clearly lead to an absurdity. The High Court would then have jurisdiction to determine matters that are in the province of say, the Military Courts. The High Court could, in these circumstances, be called upon to deal with petty cases involving the application of customary law at first instance or discipline at the work place.

Were the High Court to have jurisdiction to hear and determine every case in Zimbabwe, it would get bogged down in matters over which it may have very little expertise, or in petty matters that should ordinarily not detain the court.

It would cease being the High Court as we know it.

Such an absurdity could not have been in the contemplation of the legislature when it provided for the jurisdiction and exercise of such jurisdiction by the court in section 171 of the Constitution 2013.

Given what I have just said, I agree with the remarks by CHITAPI J in Nyanzara v Mbada Diamonds (Private) Limited 2016 (1) ZLR 195 (H), HH63-16…, that:

“What the legislature has done, and acting by virtue of powers granted to it by the Constitution, is to circumscribe matters of labour over which the Labour Court shall exercise exclusive jurisdiction in the first instance to the exclusion of other courts, which, of necessity, must include the High Court…,.

In my reasoning, an exercise of original jurisdiction over a matter does not mean that the exercise of such jurisdiction, original as it may be called, is to be exercised in a manner which usurps or defeats the intention of the legislature where the legislature will have passed a law by virtue of powers given to it by the same Constitution…,.

The Labour Court is a special court created to deal with matters of employment and does so through exercising powers granted under an Act of Parliament.

The Constitution does not limit the powers which the legislature can give to the Labour Court and the giving of exclusive jurisdiction to the Labour Court in specific matters by the Legislature….,.

The High Court, in my judgment, should exercise its original jurisdiction taking into account existing legislative provisions in place unless the same are unconstitutional….,.

Any other interpretation would have unintended consequences whereby the Labour Court will be rendered redundant as a special court with litigants petitioning the High Court in respect of every labour dispute….,."

In this regard attention is also drawn to the comments of MAKONI J…, in Triangle Limited & Three Others v Zimbabwe Sugar Milling Industry Workers' Union and Three Others HH74-16 and TSANGA J's remarks in Stanley Machote v Zimbabwe Manpower Development Fund HH813-15.

What this Court stated in Guwa & Anor v Willoughby's Investments (Pvt) Ltd 2009 (1) ZLR 368 (S), SC31-09, still holds true and succinctly captures the current position at law on the jurisdiction and exercise of jurisdiction by the High Court. At paragraph 14 and page 383C-E this Court remarked:

“In terms of jurisdiction, the distinction between the Supreme Court and the High Court may be summarised as follows:

Except where specifically empowered, the Supreme Court has no jurisdiction to hear or determine any matter and may only exercise powers in respect of an appeal in terms of the provisions of the Act and Rules of Court. The High Court, on the other hand, has the jurisdiction to hear all matters except where limitations are imposed by law.

In other words, whilst the Supreme Court may do nothing that the law does not permit, the High Court may do anything that the law does not forbid.”

I reach the conclusion, therefore, that, the High Court does not in fact enjoy the jurisdiction to deal with each and every civil and criminal matter in Zimbabwe. Whilst it has original jurisdiction to deal with such matters, such jurisdiction has been fettered and truncated by the Constitution itself which has made provision for the creation of specialised courts whose jurisdiction may, in the process, oust the original jurisdiction of the High Court in specific areas.

In view of the above conclusion, it becomes unnecessary to consider the implications of section 13 of the High Court Act because that section is subject to the Constitution, and, in any event, section 2A of the Labour Act makes it clear that the Labour Act shall prevail over any other enactment inconsistent with it.

HH74-16 : TRIANGLE LTD and HIPPO VALLEY ESTATES LTD and MKWASINE ESTATE and THE ZIMBABAWE SUGAR ASSOCIATION EXPERIMENT STATION (PVT) LTD vs ZIMBABWE SUGAR MILLING INDUSTRY WORKERS' UNION and OTHERS
Ruled By: MAKONI J

The applicants approached this court seeking a provisional order in the following terms:“TERMS OF FINAL ORDER SOUGHTThat you show cause to this Honourable Court why a final order should not be made in the following terms:1. The 1st respondent, its members, and all other persons acting through it and on ...

The applicants approached this court seeking a provisional order in the following terms:

“TERMS OF FINAL ORDER SOUGHT

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

1. The 1st respondent, its members, and all other persons acting through it and on its instructions be and are hereby interdicted from embarking on a collective job action arising from the dispute around the 2015 to 2016 collective bargaining agreement, pending the finalisation of the dispute in accordance with due process.

2. That the 1st respondent shall pay the costs of this application on a legal practitioners and client scale.

INTERIM RELIEF

Pending confirmation or discharge of the final order the applicants are granted the following interim relief:

1. The 1st respondent, its members, and all other persons acting through it and on its instructions be and are hereby interdicted from embarking on a collective job action.

2. Should any member of the 1st respondent resort to the said collective job action, such action shall be unlawful and the applicants shall have the right to bring such member before a disciplinary hearing.

3. The 2nd respondent shall, within 7 working days of this order, convene a meeting of the parties to the dispute for purposes of referring the matter to arbitration.

4. That leave is hereby granted to the applicants' legal practitioners or the Sheriff to attend to the service of this order forthwith upon the respondents in accordance with the Rules of High Court.”

The background to the matter is that the first respondent (Zimbabwe Sugar Milling Industry Workers Union) embarked on a collective job action sometime between 27 November 2015 to around 18 December 2015. As a result of the intervention of the second respondent (the Minister of Public Service, Labour and Social Welfare), the applicants and the first respondent agreed to the termination of the collective job action which termination took effect on 18 December 2015.

I must, at this stage, point out that there is a dispute between the parties whether the collective job action was suspended or terminated. The first respondent argues that it was suspended whilst the applicants argue that it was terminated.

The parties were supposed to resume efforts to resolve the dispute by way of due process from where they had left. This failed for reasons I will not go into.

The first respondent then wrote advising the applicants that it was resuming the collective job action.

The applicants then brought the present proceedings seeking to interdict the first respondent from embarking on a collective job action.

It is the applicants position that the parties agreed to the termination of the collective job action. It was not suspended. It cannot be resurrected.

The threatened and purported resumption of the collective job action is defective and such action will be unlawful for want of compliance to the provisions of the Labour Act [Chapter 28:01] (The Act) on collective job action.

The application was opposed by the first (Zimbabwe Sugar Milling Industry Workers Union) and fourth (Sugar Production Milling Allied Workers Union of Zimbabwe) respondents....,.

The first respondent raised, in limine, that this court has no jurisdiction to deal with this matter.

Counsel for the first respondent contended, that, in terms of section 89(6) of the Labour Act, the Labour Court was given exclusive jurisdiction to entertain labour disputes.

In terms of section 104 of the Labour Act, the employees are entitled to go on strike. If the employer regards the job action as illegal he will be entitled to act in terms of section 106 to apply for a show cause order returnable to the Labour Court which then disposes of the matter in terms of section 107. It further contended, that, in terms of section 106(2)(b), the second respondent (the Minister of Public Service, Labour and Social Welfare) can issue interim orders which include suspension of the collective job action.

The applicants seek to interdict the first respondent to embark on a collective job action which it perceives to be unlawful. The applicants are asking the court to take the powers given to the second respondent in terms of section 104 of the Labour Act.

Counsel for the first respondent further submitted that the relief that the applicants seek is available in the Labour Court.

Paragraph 2 of the Provisional Order is a declaratur which is not competent as interim relief.

In paragraph 3, they seek to compel the second respondent to convene a meeting of the parties for purposes of referring the matter to arbitration. Such relief can be obtained in terms of the Labour Act.

Counsel for the first respondent further submitted that the applicants had not exhausted the available domestic remedies.

They could appeal in the Labour Court in terms of section 110(1) of the Labour Act.

The applicants have since filed an application in the Labour Court for the determination of the substantive dispute between the parties.

Why should they then bring this issue before this court?

He further contended that whilst the court has residual powers to grant declarators and interdicts; in casu, show cause orders are specifically provided for in the Labour Act.

On his part, counsel for the applicants submitted the Labour Act does not confer on the Labour Court the power to grant interdicts.

The applicants, sometime in November 2015, approached the second respondent for a show cause order. It has not been determined. Rather, the second respondent came up with a parallel process which led to the stoppage of the collective job action. The fact that the show cause order application has not been determined, for two months, is an indication that the second respondent cannot offer effective alternative remedies.

He further contended that if the court were convinced that the collective job action was terminated instead of being suspended, then the court ought to find in favour of the applicants. The interdictory relief that the applicants seek amounts to a disposal order.

He confirmed that the applicants have filed an application in the Labour Court. They therefore require that the status quo ante be maintained until the main dispute has been disposed of.

He made reference of section 4(1) of the Administrative Justice Act [Chapter 10:28] which provides for relief to persons aggrieved by the actions of an administrative authority.

He contended that section 110 of the Labour Act does not apply to the current situation as no show cause order has been made or rejected. This has rendered this particular domestic remedy ineffective. The applicants can only approach the High Court.

To buttress his argument, he made reference to Confederation of Zimbabwe Industries v Rita Marque Mbatha HH125-15 where MATHONSI J found that section 171(a) of the Constitution of Zimbabwe has reinstated the jurisdiction of this court on Labour Court matters which had been ousted by section 89(6) of the Labour Act.

Jurisdiction

Section 89(6) of the Labour Act provides as:

“No court, other than the Labour Court, shall have jurisdiction in the first instance to hear and determine an application, appeal, or matter referred to in subsection (1).”

It was settled position in our law that the High Court, or any other court, has no jurisdiction to hear and determine labour disputes which are subject to resolution in terms of the Labour Act: see Tuso v City of Harare 2004 (1) ZLR; and Border Timbers (Pvt) Ltd v Export Processing Zones Labour Board and Others SC46-09.

This was the position until Confederation of Zimbabwe Industries v Rita Marque Mbatha HH125-15 wherein MATHONSI J expressed the view that section 171(1) of the Constitution re-instated the jurisdiction of the High Court over labour matters.

In Stanley Machote v Zimbabwe Manpower Development Fund HH813-15, TSANGA J had occasion to relate to the question whether the Constitution had reinstated the jurisdiction of the High Court in labour matters. She was also referred to Confederation of Zimbabwe Industries v Rita Marque Mbatha HH125-15.

At p4 of the cyclostyled judgment she had this to say:

“As stated, when a court has original jurisdiction this refers to its standing and right to hear a case as the first court of first instance.

Constitutionally, the High Court has indeed been conferred with unfettered power to exercise original jurisdiction in all civil and criminal matters as argued by the respondent. Such original jurisdiction is exercisable even in matters regulated by statute.

However, whilst section 171(1)(a) does confer upon the High Court original jurisdiction over all civil and criminal matters throughout Zimbabwe, this overall authority also has to take into account other applicable constitutional provisions as well as legislation in force that in reality places some breaks or limits on its exercise of original jurisdiction in specific instances.

Thus, section 172(2) of the Constitution gives the Labour Court 'jurisdiction over labour matters as conferred by an Act of Parliament'.

The applicable Act of Parliament in labour matters is the Labour Act [Chapter 28:01].

As stated, its section 89(6) clearly confers on the Labour Court jurisdiction in the first instance; jurisdiction to hear and determine any applications, appeals, or other matters stipulated in that Act.

The Labour Act is thus a delegated piece of legislation in labour matters in terms of which it is empowered to determine all labour matters as a court of first instance and as also as a court of appeal.

It can be said, that, at least in labour matters, there is express legislative exclusion by an Act of Parliament of the High Court's original jurisdiction that is envisaged by section 171.

In the face of what is tantamount to legislative exclusion of the High Court's original jurisdiction in labour matters, there would have to be a powerful 'need' for upsetting the implied exclusion of the High Court's original jurisdiction in labour matters. It is not the intention of the legislature, in granting the High Court original jurisdiction, to create unwarranted conflict with legislation in force.”

I agree entirely with the sentiments expressed by TSANGA J.

Provisions of the Constitution cannot be read in isolation.

If section 171(1) is read with section 172, it becomes clear that “all matters” in section 171(1) excludes matters over which a specialized court, such as the Labour Court, is established.

The absurdity that will arise is that while the Labour Court is set up with elaborate mechanisms to deal with labour disputes, litigants will by-pass it and approach the High Court.

This would render the establishment of specialised courts nugatory. This would not have been the intention of the drafters of the law.

HH842-19 : BARIADIE INVESTMENTS (PVT) LTD vs PUWAYI CHIUTSI and TENDAI MASHAMHANDA and REGISTRAR OF DEEDS and SHERIFF OF THE HIGH COURT OF ZIMBABWE N.O. and ELLIOT ROGERS
Ruled By: CHITAPI J

The applicant prays for an order that Deed of Transfer No.708/19 made in favour of the second respondent should be cancelled and that the prior Deed of Transfer No.8421/2000 in the name of the first respondent, and from which transfer in favour of the second respondent was made should be revived.

Upon revival of the prior Deed, the applicant prays for an order that the property conveyanced therein, called Remainder of Subdivision C of Lot 6 of Lot 1890 to 195 (inclusive) measuring 4,377 square metres be transferred, by the third respondent, into the applicant's name.

I must note that the part of the order sought, directing transfer by the third respondent, is incompetent.

The third respondent is the Registrar of Deeds. The Registrar of Deeds does not transfer properties but registers them. A conveyancer, acting under a power of attorney given by the owner of the property or transferor is the one who transfers the property to the transferee. The Registrar of Deeds, as the name clearly denotes, registers the transfer documents subject to all requirements imposed by applicable law being met.

For the benefit of the applicant, the duties of a Registrar are set out in section 5 of the Deeds Registries Act [Chapter 20:05] as read with the Deeds Registries Regulations S.I.236 of 2018.

The court does not create a duty outside what the law permits for the Registrar to perform.

The relief sought, for the court to order the third respondent to transfer the property, assuming that the current holding Deed is cancelled as prayed for is therefore a non sequitur and cannot be granted.

The applicant also prays for costs against the first respondent and any other respondent who opposes the application on the scale of legal practitioner and client.

The basis of the application is succinctly set out in paragraph 8 of the founding affidavit deposed to by the applicant company's Managing Director, Kingstone Hamutendi Munyawarara who stated that he is aware of the facts of the matter. He states as follows in paragraph 8 of the said affidavit:

“8. The application is premised on the fact that the said property was sold to the applicant by the fourth respondent in execution proceedings against the first respondent in HC3331/14. First respondent, whilst aware that the property had already been sold to the applicant by the Sheriff, fourth respondent hereto, purported to sell and transfer the property to the second respondent.”...,.

The applicant's case, as set out in the founding affidavit, was to the following effect:

It averred, that, it was declared the highest bidder at a judicial auction held on 18 September 2017 wherein the first respondent's property, which had been judicially attached, was up for sale to satisfy the judgment in case no. HC3331/14 made in favour of the fifth respondent against the first respondent.

The applicant was declared the highest bidder, having offered US$270,000 for the property.

Following the dismissal of an objection to the confirmation of the sale, filed by the first respondent, the applicant avers that it paid the purchase price of $270,000 to the fourth respondent as confirmed by the letter from the fourth respondent, dated 6 November 2018, addressed to the fifth respondent's legal practitioners as execution creditor.

The applicant paid transfer fees to the fifth respondent's legal practitioners in the sum of US$23,100 on 9 November 2018 as per proforma invoice of the same date prepared by the fifth respondent's legal practitioners.

The applicant attached a copy of judgment no. HH604-18 by MATHONSI J…, wherein the first respondent had, in case no. HC11349/17, challenged the fourth respondent's decision to confirm the sale of the property to the applicant.

Judgment HH604-18 was delivered on 3 October 2018 and the first respondent's challenge to confirmation was dismissed.

Judgment no. HH604-18 also disposed of case no. HC2650/18 brought by the fifth respondent herein as applicant therein. Case no's HC11349/17 and HC2650/18 were consolidated for purposes of hearing.

In case no. HC2650/18, the fifth respondent prayed for a declaratur to be made by the court to the effect that once the Sheriff had confirmed a sale, after dismissal of any objection(s) made in terms of Rule 359(7), then the Sheriff was obliged to pass transfer to the purchaser as provided for in Rule 361 of the High Court Rules (1971).

The court dismissed the application for the declaratur.

In dismissing the application for the declaratur, the learned judge, albeit agreeing that Rule 361 in its wording appeared to support the fifth respondent's interpretation, that, following confirmation of the sale and compliance with sale conditions, the Sheriff was required to transfer the property to the purchaser against payment of the purchase price; it made sense for the Sheriff to await giving transfer to the purchaser until all objection procedures had been exhausted.

The learned judge also held that the court had the discretion to regulate its processes.

In commenting on the provisions of section 14 of the High Court Act [Chapter 7:06] which gives this court jurisdiction to determine existing, future, and contingent rights, the learned judge, after referring to several decided cases, correctly held that the grant of a declaratory order was a discretionary matter for the court.

In my view, there is a further consideration which attaches to the interpretation of Rule 361.

The consideration has to do with rules of statutory interpretation. Rules of court, as with other legislative statutes, are read as a whole and not as a collection of isolated phrases.

Rule 361 should be read together with the rest of the rules regarding execution on immovable property.

Rule 359(8) and (9) provide that the Sheriff's decision to confirm a sale is open to challenge by “any person” who is aggrieved by the Sheriff's decision made in terms of Rule 359(7), that is, to confirm or cancel the sale.

The person challenges the decision by way of court application made within one month of the Sheriff's decision.

In terms of subrule 9 of Rule 359, the court may confirm, vary, or set aside the Sheriff's decision or “make such order as the court considers appropriate in the circumstances.”

It cannot have been the rule maker's intention that the Sheriff should carry out a concomitant transfer of the property upon his or her confirmation of the sale without allowing for the exercise by aggrieved parties of their right to object to court. Such interpretation would render nugatory the rights of objectors aggrieved by the Sheriff's decision.

Therefore, Rule 361 should be read as directing the Sheriff to transfer the property following his or her confirmation of the sale, only after allowing for the objection period of one month to lapse and no aggrieved party has applied to court to set aside the Sheriff's decision, or after all court processes have been exhausted in the event that an aggrieved party has applied to court.

This includes the appeal process which would need to be exhausted where the challenge by an aggrieved person has progressed that far.

It must therefore follow, that, even if l was to cancel the Deed of Transfer in favour of the second respondent, an order of the transfer of the property to the applicant by the fourth respondent can only be made if all court processes have been completed to finality.

SC140-21 : MBCA BANK (PRIVATE) LIMITED (Now known as Nedbank Zimbabwe Limited) vs ZIMBABWE REVENUE AUTHORITY
Ruled By: GUVAVA JA, UCHENA JA and MAKONI JA

This is an appeal against the whole judgment of the Special Court for Income Tax Appeals, dated 28 November 2019, upholding the respondent's amended assessment of tax against the appellant.FACTSThe facts of the case can be summarised as follows;The appellant is a registered Bank in Zimbabwe. It is also a ...

This is an appeal against the whole judgment of the Special Court for Income Tax Appeals, dated 28 November 2019, upholding the respondent's amended assessment of tax against the appellant.

FACTS

The facts of the case can be summarised as follows;

The appellant is a registered Bank in Zimbabwe. It is also a subsidiary of MBCA Holdings Limited a local holding company, which, in turn, is a subsidiary of Nedbank Limited (Nedbank) a South African company.

The respondent is an authority established in terms of the Revenue Authority Act [Chapter 23:11]. It is responsible for assessing, collecting, and enforcing payment of taxes to the State.

On 5 June 2012, the appellant filed its income tax self-assessment with the respondent for the tax year ending 31 December 2011.

On 27 June 2012, the respondent's Commissioner of Investigations and International Affairs launched a tax review of the appellant's operations for the period spanning January 2009 to May 2012.

The exercise resulted in the respondent issuing amended manual notices of assessment for Income Tax numbers 203324818 and 20324821 for the tax years 2010 and 2011 respectively.

The amended notice of assessment in respect of the 2010 tax year was subsequently withdrawn, whilst the amended assessment in respect of the 2011 tax year resulted in additional tax and penalties amounting to US$944,614=80.

The appellant objected to the amendment for the tax year ending 31 December 2011.

The respondent dismissed the objection after which the appellant appealed to the Special Court for Income Tax Appeals (the court a quo).

The issue before the court a quo was the validity of the amended assessment of Income Tax number 20324821, for the 2011 tax year.

The respondent disallowed the appellant's deductions pertaining to “expenditure incurred on general administration and management” in terms of section 16(1)(r) of the Income Tax Act [Chapter 23:06] and debts written off by the appellant in its income tax self assessment as “bad debts” in terms of section 15(2)(a) as read with section 15(2)(g) of the Income Tax Act.

It was established before the court a quo, that, the appellant is a subsidiary of MBCA Holdings Limited a local holding company, which, in turn, is a subsidiary of Nedbank Limited (Nedbank) a South African company.

In terms of section 143(1)(b) of the then Companies Act [Chapter 24:03] the appellant was deemed to be a subsidiary of Nedbank (South Africa).

During the 2011 tax year, Nedbank (South Africa) met several expenses on behalf of the appellant including travelling costs, telecommunications costs, and postage and freight costs. It also rendered services such as Group technology infrastructure and operation support services, system support service for the Africa Banking and e-commerce, strategic planning assistance, and risk advisory service assistance.

The appellant subsequently paid Nedbank (South Africa) for the incurred expenses and accounted for all the payments made thereto, including reimbursement, payment for services rendered, and general and specific administration costs through a single ledger account headed “Operating Costs”.

The respondent's amended assessment was based on its treatment of all the payments made to Nedbank (South Africa) by the appellant as general administration and management costs.

The respondent disallowed all amounts in excess of limits set in terms of section 16(1)(r)(ii) of the Income Tax Act.

In respect of bad debts, the respondent's position was that bad debts could only be claimed in terms of section 15(2)(g) of the Income Tax Act and that the debts written off as “bad debts” by the appellant, for the 2011 income tax year, failed to meet the criteria established in terms section 15(2)(g) of the Income Tax Act.

PROCEEDINGS BEFORE THE COURT A QUO

In proceedings before the court a quo, the appellant submitted, that, general costs and not specific costs fell under the purview of section 16(1)(r) of the Income Tax Act, while the respondent adopted the contrary view, that, section 16(1)(r) of the Income Tax Act did not differentiate between general and specific costs, but, rather, gave effect to all costs incurred by a subsidiary company to its holding company as general administration and management expenses which were deductible in terms of the formula provided by section 16(1)(r)(i)and (ii) of the Income Tax Act.

In determining the appeal, the court a quo held, that, section 16(1)(r) of the Income Tax Act constituted an anti-tax avoidance measure against a local taxpayer by limiting its allowable deductions in respect of general administration and management expenses incurred by a foreign holding company.

It held, that, the provisions were enacted by the legislature to prevent local subsidiary companies and their foreign holding companies from colluding to overload expenses on the local entity whilst simultaneously reducing its Zimbabwean tax liability and increasing the foreign entity's profits.

In respect of all the payments made by the appellant to Nedbank (South Africa), the court a quo held that section 16(1)(r) as read with section 26(2) of the Income Tax Act was applicable.

The appellant was therefore confined to the prescribed deductible income limits provided for in section 16(1)(r)(ii) of the Income Tax Act.

In view of the foregoing, the court a quo determined, that, the expenses deducted by the appellant in favour of Nedbank (South Africa) fell into the category of “expenditure on general administration and management” in terms of section 16(1)(r) of the Income Tax Act.

The court a quo took into consideration the Shorter Oxford English Dictionary definition of the term 'administration' and 'management' respectively, and determined that the former related to “the act of administering, management” and the latter to “the act or manner of managing, administrative skill.”

The court a quo was, however, of the view, that, the definitions were not the determinant factors of the issue, as “all of the appellant's contracted functions (were) headlined as management of sorts” in the appellant's accounting books.

It held, that, the pertinent issue for consideration was the proper definition of the word 'general' which definition was held to pertain to “all or most of the parts of the whole, completely or approximately universal within implied limits.”

After determining the issue of deductible income in terms of section 16(1)(r) of the Income Tax Act, the court a quo considered whether or not the bad debts claimed by the appellant were allowable deductions in terms of section 15(2)(g) of the Income Tax Act.

The bad debts claimed by the appellant, in its 2011 tax assessment, pertained to the sum of US$2,250,365=17 being unsatisfied loans due to the appellant from its four Bulawayo-based corporate clients.

The respondent was not satisfied, that, the debts written-off by the appellant constituted bad debts in terms of section 15(2)(g) of the Income Tax Act.

The appellant contended, that, loss sustained and written off by a banking institution or money-lending business (such as itself) from loans, constituted a deductible loss as contemplated in section 15(2)(a) of the Income Tax Act.

The appellant argued, that, bad debts in the case of banking institutions and money-lending institutions come into existence by operation of law as contained in paragraphs 20, 22, 24 and 25 of the Banking Regulations 2000, SI205 of 2000 (the Regulations).

The appellant wrote off the four unsatisfied loans in terms of paragraph 22(e) of the Banking Regulations 2000, S.I.205 of 2000, at the lapse of 360 days, which, it argued, placed them in the ambit of section 15(2)(a) of the Income Tax Act.

The court a quo held, that, a past due date loan could not be categorised as a loss when the loan was well secured and/or where legal action to satisfy the loan has commenced. It held that a loan could be classified as a loss when it is established that it can no longer be recovered.

It was established, that, the appellant had not commenced legal proceedings against its first borrower when the debt was written off.

It was therefore held, that, the appellant had failed to discharge the onus upon it to prove, on a balance of probabilities, that the loan was not recoverable at the time that the loss was declared.

In respect of the appellant's remaining three borrowers, it was established, that, their matters were under legal proceedings, wherein the respondent had secured judgments against the borrowers but had only partially recovered the total amount due to it. Sureties for the three borrowers had not yet been sued.

The court a quo held, that, the appellant had failed to establish, on a balance of probabilities, that the debts written off were unrecoverable and constituted a loss.

It held, that, the appellant had failed to establish loss as provided for in terms of paragraph 22(e) of the Banking Regulations 2000, S.I.205 of 2000 or debt in terms of section 15(2)(g) of the Income Tax Act, thus precluding the appellant from claiming income tax deductions thereon.

The court a quo therefore dismissed the appellant's appeal.

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

GROUNDS OF APPEAL

“1. The court a quo erred in finding that there is no distinction between the expenditure incurred on general administration and management as contemplated by section 16(1)(r) of the Income Tax Act [Chapter 23:06] and remuneration for reimbursement of specific services or expenses paid by a subsidiary to a holding company.

2. The court a quo erred in finding that the disputed expenses constituted expenditure on general administration and management as contemplated by section 16(1)(r) of the Income Tax Act and were properly disallowed.

3. The court a quo erred in finding that bad debts written off by a commercial bank (specifically in terms of the Banking Regulations SI205/2000) cannot constitute expenses incurred for the purpose of trade or in the production of income as contemplated by section 15(2)(a) of the Income Tax Act.

4. The court a quo erred in finding that the disputed debts could not be categorized as losses in terms of paragraph 22(e) of the Banking Regulations.

5. Alternatively, the court a quo erred in finding, that, the disputed debts were not bad debts and therefore deductible from the appellant's income in terms of section 15(2)(g) of the Income Tax Act.”

The appeal raises two issues for determination:

1. Whether or not the court a quo erred in determining that there was no distinction between general costs, as provided for in section 16(1)(r) of the Income Tax Act, and specific costs incurred by a subsidiary in favour of its foreign holding company.

2. Whether or not the court a quo erred in finding that the disputed debts were improperly written off as bad debts and therefore not deductible from the appellant's income in terms of section 15(2)(a) or section 15(2)(g) of the Income Tax Act.

SUBMISSIONS MADE BY THE PARTIES

Counsel for the appellant submitted, that, the court a quo did not make a finding on the nature of the services, but, rather, the recipient of the services. He further submitted, that, the nature of the expenses was not distinguished as that is not in the judgment of the court a quo.

On the deductibility of bad debts, he argued, that, as per Salisbury Board of Executors Ltd v Commissioner of Taxes 1941 SR 147, such deductions depended on whether the losses are in the course of the business of banking or money lending.

He contended, that, debts written off constitute losses of a revenue nature.

Counsel for the appellant submitted, that, section 15(2)(a) and (g) of the Income Tax Act are distinct and it was difficult to see which one the court a quo was using between the two.

He asserted, that, section 15(2)(a) of the Income Tax Act applied primarily to and regulates a situation where there is a secondary consideration. He contended, that, in terms of section 15(2)(a), all that needs to be proved is that bad debts were written off. Counsel for the appellant argued, that, the criterion in the banking regulation was met bringing the claim in the purview of section 15(2)(a) and not (g) of the Income Tax Act.

Counsel for the respondent submitted, that, the judgment of the court a quo is correct.

He argued, that, when interpreting any statute, the context is a major consideration as indicated in Zambezi Gas (Pvt) Limited v N R Barber (Pvt) Limited & Anor SC03-20.

Counsel for the respondent submitted, that, the appellant and Nedbank (South Africa) are related parties.

He further argued, that, the agreement between the parties stated that the services were general.

He contended, that, the heading thereon is management support agreement between the appellant and Nedbank (South Africa) and that the nature of the services is clear from the agreement itself.

Counsel for the respondent argued, that, the purpose of section 16(1)(a) of the Income Tax Act is not to distinguish between general and specific costs.

He submitted, that, a specific service may be paid for in an exercise of rendering general and administrative services. He further submitted, that, in any event, the appellant's witness stated, that, all expenses can be labelled under specific expenses.

Concerning the issue of bad debts, counsel for the respondent submitted, that, Salisbury Board of Executors Ltd v Commissioner of Taxes 1941 SR 147 is not relevant in this case as section 15(2)(g) of the Income Tax Act was not in existence in its current form at the time of the (1941) judgment.

He argued, that, the thrust of the respondent's submission is that there were no actual losses incurred.

He further argued, that, in 2011, the appellant held security which was sufficient to cover the debts and that it was its duty, in terms of section 15(2)(g) of the Income Tax Act, to be satisfied that the debts were bad.

Counsel for the respondent contended, that, the discretion of the Commissioner was properly exercised.

In response, counsel for the appellant submitted, that, the respondent was attempting to use the agreement to blanket all expenses as general when there is a clear distinction in the provision of services.

Concerning the issue of bad debts, he argued, that, the main consideration was that it was a loss incurred in the course of trade.

APPLICATION OF THE LAW TO THE FACTS

2. Whether or not the court a quo erred in finding that the disputed debts were improperly written off as bad debts and therefore not deductible from the appellant's income in terms of section 15(2)(a) or section 15(2)(g) of the Income Tax Act

The court a quo upheld the decision of the respondent that the disputed debts were improperly written off as bad debts as the appellant had collateral security in respect of each debt. The evidence placed before the court a quo establish that each debt was secured by a mortgage bond over immovable property and sureties.

It held, that, the appellant had failed to produce any documents justifying the need to write-off the debts and that the Commissioner had properly disallowed the deductions of bad debts.

Counsel for the appellant relied on the decision in Salisbury Board of Executors Ltd v Commissioner of Taxes 1941 SR 147, where it was held, that, such deductions depended on whether the losses are in the course of the business of banking or money-lending.

The court a quo held, that, the issue before that court was not on the interpretation of section 15(2)(g) of the Income Tax Act but was an obiter statement hesitantly made in passing.

A reading of the case confirms the court a quo's observation.

Commenting on the effect of Salisbury Board of Executors Ltd v Commissioner of Taxes 1941 SR 147, counsel for the respondent said it was an irrelevant precedent as the case was considering the statute as it then was and not as it now is.

I agree with his submission.

A statute which has been amended should be interpreted according to its current wording.

An interpretation given to it before an amendment which substantially altered the law is not binding precedent.

In this case, section 15(2)(g) of the Income Tax Act was amended and substituted by Act 10 of 2009 and now reads as follows:

“(g) The amount of any debts due to the taxpayer, to the extent to which they are proved to the satisfaction of the Commissioner to be bad, if such amount is included in the current year of assessment or was included in any previous year of assessment in the taxpayer's income either in terms of this Act or a previous law;
[Paragraph substituted by Act 10 of 2009].”

The section must be read together with the Banking Regulations SI205 of 2000 which also came into force long after the 1941 decision.

These changes must therefore be taken into account in interpreting the amended law.

I therefore agree with the court a quo, that, Salisbury Board of Executors Ltd v Commissioner of Taxes 1941 SR 147 is not a reliable precedent, and had no binding effect on the court a quo.

The purpose of amending a law is to bring into effect the legislature's current intention.

The legislature's new intention must prevail over its former intention.

Reference to the former law must be construed to mean the law which was in existence immediately before the amendment and subsection of section 15(2)(g) of the Income Tax Act by Act 10 of 2009. It does not mean the law as it was in 1941 as the 1941 provision and those which followed it were rendered inoperative by the coming into force of the 2009 amendment.

Section 15(2)(a) of the Income Tax Act provides for deductions which can be made by a taxpayer as follows:

“(2) The deductions allowed shall be —

(a) Expenditure and losses to the extent to which they are incurred for the purposes of trade or in the production of the income except to the extent to which they are expenditure or losses of a capital nature;”

The provisions of section 15(2)(a) of the Income Tax Act provide, in general, for deductions of expenditure and losses incurred for the purposes of trade which can be deducted to the extent to which they are expenditure or losses of a capital nature.

It is apparent, that, section 15(2)(a) is of general application. Its provisions are subordinated to those of section 15(2)(g) which provides for the circumstances under which the deduction of losses can be allowed.

Section 15(2)(g) of the Income Tax Act, which provides for the circumstances under which bad debts can be deducted, provides as follows:

“(2) The deductions allowed shall be —

(g) The amount of any debts due to the taxpayer to the extent to which they are proved to the satisfaction of the Commissioner to be bad, if such amount is included in the current year of assessment or was included in any previous year of assessment in the taxpayer's income either in terms of this Act or a previous law;”...,.

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SSC01-14 : TELECEL ZIMBABWE (PRIVATE) LIMITED vs ATTORNEY- GENERAL OF ZIMBABWE N.O.
Ruled By: ZIYAMBI JA, GARWE JA and PATEL JA

This is a matter on appeal from a decision of the High Court handed down on 19 October 2011. It concerns the powers of the Attorney-General, the respondent, in the specific context of private prosecutions by corporate entities.

The factual circumstances of this matter are common cause.

In early 2010, four senior employees of the appellant were charged with a massive fraud of about US$1,700,000 perpetrated against the appellant.

Because of the respondent's position that there was overwhelming evidence against the accused persons, all of them were initially denied bail. At a later stage, the charges against them were withdrawn before plea following a directive by the respondent that there was insufficient evidence to prosecute.

Consequently, the appellant sought a certificate nolle prosequi which was withheld and declined by the respondent.

The appellant then applied to the High Court, on review, for that decision to be set aside as being both unlawful and grossly irrational.

The High Court held, that, a private company, as distinct from a private individual, had no locus standi to institute a private prosecution.

The learned judge a quo adopted, and applied, the position taken by the South African Appellate Division in interpreting the equivalent statutory provisions in South Africa.

He accordingly decided, that, it was not necessary to determine the further question as to the respondent's discretion to withhold his certificate.

The first issue, on appeal, is whether or not a private company is entitled to bring a private prosecution.

The second issue, which is inter-related with the first, is whether the respondent has the discretion to issue or withhold his certificate nolle prosequi where he declines to prosecute at the public instance.

GOVERNING STATUTORY PROVISIONS

Part III of the Criminal Procedure and Evidence Act [Chapter 9:07] (the CP&E Act) regulates the institution of private prosecutions. Section 13 confers the right to prosecute in the following terms:

“In all cases where the Attorney-General declines to prosecute for an alleged offence, any private party, who can show some substantial and peculiar interest in the issue of the trial arising out of some injury which he individually has suffered by the commission of the offence, may prosecute, in any court competent to try the offence, the person alleged to have committed it.”

Persons, other than those referred to in section 13 of the Criminal Procedure and Evidence Act, who are entitled to prosecute, are identified in section 14 of the Criminal Procedure and Evidence Act:

“The following shall possess the right of prosecution –

(a) A husband, in respect of offences committed against his wife;

(b) The legal guardians or curators of minors or mentally disordered or defective persons, in respect of offences committed against their wards;

(c) The wife or children or, where there is no wife or child, any of the next-of-kin of any deceased person, in respect of any offence by which the death of such person is alleged to have been caused;

(d) Public bodies and persons, on whom the right is specially conferred by statute, in respect of particular offences.”

Section 16 of the Criminal Procedure and Evidence Act deals with the grant of certificates nolle prosequi by the Attorney General and their production for the purpose of criminal proceedings. It provides as follows:

“(1) Except as is provided by subsection (2), it shall not be competent for any private party to obtain the process of any court for summoning any party to answer any charge, unless such private party produces to the officer authorised by law to issue such process a certificate signed by the Attorney-General that he has seen the statements or affidavits on which the charge is based and declines to prosecute at the public instance, and, in every case in which the Attorney General declines to prosecute, he shall, at the request of the party intending to prosecute, grant the certificate required.

(2) When the right of prosecution referred to in this Part is possessed under any statute by any public body or person, in respect of particular offences, subsection (1) shall not apply.”

ORIGINS OF RIGHT OF PRIVATE PROSECUTION

Before addressing the status of corporate entities in the prosecutorial context, it seems necessary to delineate the historical background to private prosecutions generally.

As was recognised and restated in section 89 of the former Lancaster House Constitution:

“Subject to the provisions of any law for the time being in force in Zimbabwe relating to the application of African customary law, the law to be administered by the Supreme Court, the High Court, and by any courts in Zimbabwe subordinate to the High Court shall be the law in force in the Colony of the Cape of Good Hope on 10th June 1891 as modified by subsequent legislation having in Zimbabwe the force of law.”

According to DUGARD: South African Criminal Law and Procedure – Vol. IV Introduction to Criminal Procedure (1977)…, the Roman-Dutch law of criminal procedure and evidence remained in force at the Cape until the early 19th century.

Following various alterations to the structure of the courts in the Cape, this adjectival law was radically anglicised by Ordinance No.40 (1828) and Ordinance No.72 (1830) to form the foundations of our modern law (ibid. at p25).

As regards the institution of prosecutions, the British Government accepted that the conditions prevailing in the Cape did not permit the unmodified adoption of the English system of private prosecution. Accordingly, the right of prosecution was vested in the Attorney-General, but, where he declined to prosecute, a private individual might prosecute in respect of an injury to himself or to someone under his care (ibid. at p25).

In principle, therefore, the law governing private prosecutions, both in Zimbabwe and in South Africa, does not originate in the Roman-Dutch law but is derived from the English common law.

In England, during the 17th and 18th centuries, the system of criminal procedure that prevailed was predominantly one of private prosecutions. No public official was designated as a public prosecutor, either locally or nationally, although the local justice of the peace sometimes assumed that role.

In essence, private citizens were responsible for preserving the peace and maintaining law and order. Crimes were regarded as being committed, not against the State, but against a particular individual or family. Thus, the prosecution of almost all criminal offences was usually initiated and conducted by the victim or his or her relative.

The distinctive feature of the common law was that it was not a privilege, but the duty, of the private citizen to preserve the peace and bring offenders to justice. Consequently, no authority was vested in the King to dictate if, and when, a private individual could institute criminal proceedings.

With the passage of time, King's attorneys were appointed to intervene in matters of particular interest to the King or to initiate and conduct prosecutions in his name. This led to the origin and evolution of the so-called law officers of the Crown, vested with the specific function of advising and litigating on behalf of the King.

The late 19th century saw the passage of the Prosecution of Offences Act 1879 which first introduced the office of Director of Public Prosecutions. However, this Act did not fundamentally undermine private prosecutions because public prosecutors enjoyed very limited authority.

Again, the successor Act of 1908 did not substantially increase the powers of public prosecutors.

It was only with the enactment of the Prosecution of Offences Act 1985 that England established an effective system of public prosecution through the Crown Prosecution Service. Even then, this Act continued to preserve a limited right of private prosecution.

RIGHT OF PRIVATE COMPANY TO PROSECUTE

The above historical synopsis demonstrates, that, the right of private prosecution originates in the reparation of individual injuries and the vindication of individual as opposed to corporate rights.

The interests that the right to prosecute is conceived to safeguard are manifold. They are certainly not confined to purely pecuniary loss or the kind of injury that might ordinarily be sustained by corporate entities in the normal course of their business.

This rationale is aptly and eloquently captured by Van Den HEEVER AJP in Attorney-General v Van der Merwe and Bornman 1946 OPD 197…,.:

“Prosecution is not primarily designed to recover compensation. I do not think, therefore, that the expression 'substantial and peculiar interest' was intended…, to convey only a pecuniary interest in respect of which the prosecutor may obtain compensation or restitution. The object of the phrase was clearly to prevent private persons from arrogating to themselves the functions of a public prosecutor and prosecuting in respect of offences which do not affect them in any different degree than any other member of the public; to curb, in other words, the activities of those who would otherwise constitute themselves public busybodies.

The interest the legislature had in mind may be pecuniary, but, may also be such that it cannot sound in money – such imponderable interests, for example, as the chastity and reputation of a daughter or ward, the inviolability of one's person or the persons of those dear to us.

Permission to prosecute in such circumstances was conceived as a kind of safety-valve.

An action for damages may be futile against a man of straw and a private prosecution affords a way of vindicating those imponderable interests - other than the violent and crude one of shooting the offender. The vindication is real: it consoles the victim of the wrong; it protects the imponderable interests involved by the deterrent effect of punishment, and it sets at naught the inroad into such inalienable rights by effecting ethical retribution. Finally, it effects atonement, which is a social desideratum.”

In the case of Salisbury Bottling Co. (Pvt) Ltd & Ors v Central African Bottling Co. (Pvt) Ltd 1958 (1) SA 750 (FC) all the parties involved were corporate entities.

Our Federal Supreme Court canvassed the right of private prosecution under section 19 of [Cap 28] (the predecessor to section 13 of the Criminal Procedure and Evidence Act [Chapter 9:07]) as an alternative remedy to the grant of damages or an interdict.

In that context, the court did not draw any specific distinction as between private individuals and companies. However, it did not consider or make any definitive ruling on the point presently under review.

The authority relied upon, and followed, by the court below, in rejecting the appellant's locus standi to prosecute, is the South African case of Barclays Zimbabwe Nominees (Pvt) Ltd v Black 1990 (4) SA 720 (AD).

The court in that case held, that, the phrase “private person” in section 7(1)(a) of the Criminal Procedure Act No.51 of 1977 (the equivalent of section 13 in the Criminal Procedure and Evidence Act [Chapter 9:07]), as read in the context of section 7 and the Act as a whole, should be interpreted as meaning only a natural person.

MILNE JA, delivering the unanimous decision of the Appellate Division, elaborated several reasons for arriving at that conclusion:

(i) The definitions of the word “private” in the Oxford Dictionary (2nd ed.) are indicative of natural rather than artificial characteristics (at 722E-F and 723B-C);

(ii) The reference to “some injury which he individually suffered” is peculiarly apposite in the case of natural persons (at 723C-G);

(iii) Section 8(1) of the 1977 Act (the equivalent of our section 14(d) of the Criminal Procedure and Evidence Act) draws a clear distinction between natural persons and corporate bodies (at 725A-B);

(iii) Section 10(2) of the 1977 Act, which requires the signature of the indictment, charge sheet or summons, specifically differentiates between a private prosecutor and a corporate body (at 725C-E); and lastly

(iv) The need to obviate any resort to self-help, as articulated in Attorney-General v Van der Merwe and Bornman 1946 OPD 197 underscores the point that “a corporate body, as such, has no human passions and there can be no question of the company, as such, resorting to violence” (at 726F-G).

Although, as was clearly recognised by the learned judge a quo, the South African and Zimbabwean statutes are broadly in pari materia, I think it necessary to highlight certain critical differences between them.

(i) First and foremost, section 7(1) of the South African Act confers the right to prosecute on “any private person…, either in person or by a legal representative”; section 13 of the Criminal Procedure and Evidence Act provides that “any private party…, may prosecute.”

(ii) Secondly, the right to prosecute under statute is exercisable in terms of section 8(1) of the South African Act by “any body upon which or person upon whom” such right is expressly conferred; by virtue of section 14(d) of the Criminal Procedure and Evidence Act, it is exercisable by “public bodies and persons on whom” it is specially conferred.

(iii) Thirdly, there is no equivalent in the Criminal Procedure and Evidence Act of section 10(2) of the South African Act which requires the signature of the indictment, charge sheet or summons by the “prosecutor or his legal representative.”

(iv) Fourthly, section 11(1) of the South African Act refers to the failure of “the private prosecutor” to appear on the day set down for trial; section 18(1) of the Criminal Procedure and Evidence Act refers to such failure by “the prosecutor, being a private party.”

Ultimately, the most fundamental distinction between the two statutes is the usage of “private person” in the South African Act as contrasted with the references to “private party” in the Criminal Procedure and Evidence Act.

The word “person” in its principal sense, is defined in The Shorter Oxford English Dictionary 3rd ed. 1978 as “an individual human being; a man, woman, or child”. However, in its legal sense, it is defined to mean “a human being (natural person) or body corporate or corporation (artificial person), having rights or duties recognised by law.”

Again, in the legal context, the word “party” is defined as “each of two or more persons (or bodies of people) that constitute the two sides in an action at law, a contract, etc.”

In my view, these definitions, coupled with the differences that I have highlighted as between the South African and Zimbabwean statutes, tend to diminish the persuasive authority of the Appellate Division's otherwise cogent reasoning in Barclays Zimbabwe Nominees (Pvt) Ltd v Black 1990 (4) SA 720 (AD).

In England, as I have stated earlier, the Prosecution of Offences Act 1985 [Cap 23] now provides the regulatory framework for a comprehensive system of public prosecution.

Section 1 of this Act establishes the Crown Prosecution Service consisting of the Director of Public Prosecutions, Crown Prosecutors, and other subordinate staff.

In terms of section 3, the Director of Public Prosecutions, acting under the superintendence of the Attorney-General, is charged with the duty of, inter alia, taking over the conduct of all criminal proceedings instituted on behalf of any police force, as well as instituting criminal proceedings in important or difficult cases or where it is otherwise appropriate to do so.

In any event, section 6 explicitly preserves the right of private prosecution as follows:

“(1) Subject to subsection (2) below, nothing in this Part shall preclude any person from instituting any criminal proceedings or conducting criminal proceedings to which the Director's duty to take over the conduct of proceedings does not apply.

(2) Where criminal proceedings are instituted in circumstances in which the Director is not under a duty to take over their conduct, he may nevertheless do so at any stage.”

Prior to 1985, the importance of the private right to prosecute is illustrated by the reliance placed upon it by LORD WOOLF CJ in R (Hunt) v Criminal Cases Review Commission [2001] QB 1108 at para 20:

“Great importance has always been attached to the ability of an ordinary member of the public to prosecute in respect of breaches of the criminal law.”

The continuing survival of that right, to the extent provided for by section 6 of the 1985 Act, was vouchsafed by the House of Lords in Jones v Whalley [2007] 1 AC 63.

Any judicial curtailment of the right was not readily countenanced. As was observed by MITTING J in R (Ewing) v Davis [2007] EWHC 1730 (Admin) at para 23:

“…, if the right of private prosecution is to be taken away or subjected to limitation, it is for Parliament to enact and not for the courts, by decision, to achieve.”

The position of corporate entities in England is no different.

That the right of private prosecution can be exercised by a corporate body was confirmed by the Divisional Court in R (Gladstone PLC) v Manchester City Magistrates Court [2005] 1 WLR 1987.

More recently, the correctness of that position was re-affirmed by the Court of Appeal and the Supreme Court in a case involving the Financial Service Authority (the FSA).

The central issue in that case was whether the Financial Service Authority (the FSA) had the power to prosecute offences other than those referred to in sections 401 and 402 of the Financial Services and Markets Act 2000.

The Financial Service Authority (the FSA) contended, that, as a body corporate with legal personality, it had the common law power to bring prosecutions in respect of other offences.

The Financial Service Authority (the FSA) is a company limited by guarantee, incorporated in June 1985. The Memorandum and Articles of Association of the FSA express its objects and powers in broad terms.

The Act of 2000 did not create the Financial Service Authority (the FSA) or turn it into a statutory corporation, but, assumed its existence as a body corporate.

The Court of Appeal (Criminal Division), in R v Rollins and McInerney [2009] EWCA (Crim) 1941, rejected the contention, that, sections 401 and 402 of the Act, together, created a complete regime of offences that the Financial Service Authority (the FSA) could prosecute. It was held by RICHRADS LJ, at para 30:

“For our part, we can see no reason why the general right of private prosecution should not be enjoyed by the FSA. The right is not excluded by FSMA 2000 or any other statutory provision to which our attention has been drawn, and the powers conferred on the FSA, by its Memorandum of Association, are easily wide enough to cover the institution of criminal proceedings within the scope of its objects.”

The Court of Appeal accordingly concluded, that, the Financial Service Authority (the FSA) did have the power to prosecute offences beyond those referred to in sections 401 and 402 of the Act.

This decision was upheld on appeal to the Supreme Court in R v Rollins [2010] UKSC 39.

It was held, that, a corporation enjoyed the same power to prosecute as did any individual under the common law right of private prosecution. Sir JOHN DYSON SCJ, delivering the judgment of the court, enunciated this position as follows, at paras 8-9:

“Every person has the right to bring a private prosecution: see, for example Gouriet v Union of Post Office Workers [1978] AC 435, 497H per Lord Diplock. The right to bring private prosecutions has been expressly preserved by section 6 of the Prosecution of Offences Act 1985….,.

Nothing in section 6(1) excludes bodies corporate from the definition of 'any person'.

A corporation may therefore bring a prosecution provided that it is permitted to do so by the instrument that gives it the power to act. As Lord Mance noted in Jones v Whalley [2007] 1 AC 67 at para 38, private prosecutions 'may be initiated by private bodies such as high street stores, by charities such as NSPCC and RSPCA, or by private individuals….,.'”

For these reasons, the broad prosecutorial right of the Financial Service Authority (the FSA) was confirmed at paras 11-14:

“The general position, therefore, is that the FSA has always been able to bring any prosecution subject to statutory restrictions and conditions and provided that it is permitted to do so by its Memorandum and Articles of Association. Most statutes which create offences do not specify who may prosecute or on what conditions. Typically, they simply state that a person who is guilty of the offence in question shall be liable to a specified maximum penalty, it being assumed that anybody may bring the prosecution….,.

The general position before the enactment of FSMA was that the FSA had the power of a private individual to prosecute, provided that this fell within the scope of its objects and prosecution was not precluded or restricted by the terms of the relevant statute.”

Turning to the relevant provisions of the Criminal Procedure and Evidence Act, I would accept that some of the phraseology employed in section 13 of the Criminal Procedure and Evidence Act, in particular, the reference to “some injury which he individually has suffered” strongly supports the proposition that the right to prosecute conferred by that provision is confined to natural as opposed to artificial persons.

On the other hand, the references to “public bodies and persons” and “public body or person” in sections 14 and 16 of the Criminal Procedure and Evidence Act respectively, suggest otherwise.

The term “private party” itself, as used in Part III of of the Criminal Procedure and Evidence Act, is defined in section 12, in a fashion that is plainly tautologous and unhelpful, to mean:

“a person authorized by section thirteen or fourteen to prosecute any offence.”

In the context of the Criminal Procedure and Evidence Act as a whole, section 2 contemplates a broad definition of “person” in the following terms:

“'person' and 'owner' and other like terms, when used with reference to property or acts, include corporations of all kinds, and any other association of persons capable of owning or holding property or doing acts, and they also, when relating to property, include any department of the State.”

A broader connotation of the words under review is further supported by section 3(3) of the Interpretation Act [Chapter 1:01] which provides that in every enactment:

“'person' or 'party' includes –

(a) Any company incorporated or registered as such under an enactment; or

(b) Any body of persons, corporate or un-incorporated; or

(c) Any local or other similar authority.”

Also relevant for present purposes is section 9 of the Interpretation Act which prescribes rules as to gender and number as follows:

“(1) Unless the context otherwise requires, words importing female persons include male persons and juristic persons and words importing male persons include female persons and juristic persons.

(2) Words in the singular include the plural and words in the plural include the singular.”

One of the paramount principles of statutory construction is that the law should not be subject to casual change.

As was succinctly put by LORD DEVLIN in National Assistance Board v Wilkinson [1952] 2 QB 648:

“It is a well-established principle of construction, that, a statute is not to be taken as effecting a fundamental alteration in the general law unless it uses words that point unmistakably to that conclusion.”

BENNION: Statutory Interpretation…, elaborates the principle against casual change as follows:

“It is a principle of legal policy, that, law should be altered deliberately rather than casually, and that Parliament should not change either common law or statute law by a sidewind, but only by measured and considered provision. In the case of common law, or Acts embodying common law, the principle is somewhat stronger than in other cases.

It is also stronger the more fundamental the change is.

The court, when considering, in relation to the facts of the instant case, which of the opposing constructions of the enactment would give effect to the legislative intention, should presume that the legislator intended to observe this principle. The court should therefore strive to avoid adopting a construction which involves accepting that Parliament contravened the principle.”

Having regard to the English authorities cited above, it is clear that the common law right of private prosecution was not confined to natural persons, but extended, as well, to juristic and artificial entities.

That common law right migrated to the Cape Colony through Ordinance No.40 (1828) and Ordinance No.72 (1830) and remained intact until 10 June 1891, at which stage it became an integral part of our law (cf. section 89 of the former Constitution).

The critical question is whether the right of private prosecution, as embodied in statute, has been modified by the Criminal Procedure and Evidence Act (or its predecessors) so as to exclude private corporations from its ambit.

The governing rule of statutory interpretation dictates, that, the provisions of Part III of the Criminal Procedure and Evidence Act should be construed, insofar as is consistent with their language and context, so as to preserve the common law components of the right to prosecute rather than to diminish or extinguish them.

I do not perceive, in these provisions, any clear or positive legislative intention to alter pre-existing rights or to constrict the common law position relative to corporations.

This interpretation is fortified by the reality that a company is, in essence, an association of persons and therefore should, albeit subject to its obvious physical limitations, enjoy the same rights and privileges as the individual members comprising it - including the right of prosecution.

The fact that it is devoid of human passions and has no personal interests to protect should not, in principle, detract from that right.

Its interests may be of a purely material or pecuniary character, but, they constitute a proper basis for the right to prosecute.

This was clearly recognised in Attorney-General v Van der Merwe and Bornman 1946 OPD 197…, and in Levy v Benatar 1987 (1) ZLR 120 (S)…,.

To answer the question posed above, it seems to me that a liberal and inclusive construction of section 13 of the Criminal Procedure and Evidence Act accords not only with the definition of “person” and “party” in section 2 of that Act but also with the broad definition of those terms in section 3(3) of the Interpretation Act.

It also accords with the rule of interpretation prescribed by section 9(1) of the Interpretation Act, viz. that words importing male persons include female persons and juristic persons.

Moreover, this construction is neither inconsistent with the context of section 13 of the Criminal Procedure and Evidence Act nor does it lead to any absurdity.

I accordingly take the view, that, the right of private prosecution conferred by that provision vests in natural as well as artificial persons - including private corporations.

HH11-13 : FLORENCE SIGUDU vs MINISTER OF LANDS AND RURAL RESETTLEMENT N.O. and PHINEAS CHIHOTA
Ruled By: PATEL J

The applicant in this matter seeks an order declaring the legality of her occupation of a piece of farmland in Seke District and the nullification of the consolidation of that land with an adjoining farm.

She also seeks the eviction of the second respondent and an order for costs against him.

The first respondent (the Minister) resists the application on the ground, that, the applicant's right to occupy the land was withdrawn.

The second respondent has not filed any notice of opposition and is accordingly in default.

The first respondent was required to file his heads of argument in March 2012, and, having failed to do so, was automatically barred.

However, there being no objection from the applicant, the bar imposed upon the first respondent was uplifted by consent, and his failure to file heads timeously was also condoned.

Any costs incurred by reason of his late filing of heads of argument are to be borne by the first respondent.

Background

In 2002, the Minister allocated Subdivision 2 of Denby Farm to the applicant through an offer letter dated 2 June 2002.

Thereafter, the applicant took occupation, prepared the land, moulded bricks for farm buildings, and purchased equipment in anticipation of commencing farming activities.

In 2005, the Provincial Lands Committee held a meeting chaired by the second respondent. The meeting took a decision to consolidate the applicant's farm (Subdivision 2) with the farm allocated to the second respondent (Subdivision 9) and further resolved that the applicant should vacate her farm.

The Minister's position is that the consolidation in dispute was procedurally effected and that the applicant's offer letter was automatically withdrawn because she had failed to comply with the conditions attaching to the offer of land.

It is common cause that there was no formal communication of the withdrawal to the applicant - even after a written request by her lawyers.

The applicant asserts, that, her right to occupy the farm has not lapsed or been legally terminated and therefore still subsists.

She also challenges the legality of the consolidation process as being tainted by bias and corruption, having been influenced by the second respondent for his own benefit.

Additionally, she contends that any offer letter or lease issued to the second respondent is not superior to her offer letter and cannot override her right to occupy the farm.

Issues for Determination

At the hearing of this matter, the applicant's counsel did not persist with his point in limine contesting the authority of the deponent to the opposing affidavit. Consequently, the following issues emerged for determination:

(a) Whether the applicant had duly complied with the conditions attaching to her offer letter.

(b) The legality of the process consolidating Subdivisions 2 and 9 of Denby Farm.

(c) Whether the first respondent was entitled, or empowered, to withdraw the offer letter.

(d) Whether the applicant's offer letter was duly withdrawn or cancelled.

(e) Whether the applicant's right to occupy still subsists and whether it is accordingly recognisable and enforceable.

Compliance with Conditions

The conditions applying to the applicant's offer letter required her to take up personal and permanent residence on the holding upon acceptance of the offer, which was to be communicated to the Minister within 30 days of receipt.

The applicant avers, that, she took occupation of the farm soon after it was allotted to her and confirmed her acceptance of the offer by notice dated 29 June 2002.

The Minister's deponent simply states, that, the applicant failed to take up residence or to occupy the land, without addressing her detailed averments as to the manner in which she took occupation.

On balance, I am satisfied that the applicant's evidence is to be preferred over the Minister's bare denial. I accordingly find, that, she did comply with the conditions of occupation stipulated in her offer letter....,.

Power to Withdraw Offer Letter

One of the conditions attaching to the applicant's offer letter (and indeed all offer letters issued by the Minister) states, that, the offer may be cancelled or withdrawn for breach of any of the conditions set out therein.

The applicant's position in this regard, as elaborated by her counsel, is that the Minister can only exercise powers stipulated by statute. He cannot withdraw the offer in the absence of an explicit statutory power to that effect.

In principle, where the power to create, grant or do anything is conferred by statute, the administrative authority endowed with that power can only terminate, revoke, or undo that thing by or under that or another statute.

In any such case, any administrative action entailing the termination or variation of statutory rights that is not expressly or impliedly authorised by statute is ultra vires the enabling statute, and, consequently, unlawful.

Powers may be presumed to have been impliedly conferred because they constitute a logical or necessary consequence of powers which have been expressly conferred or because they are ancillary or incidental to those powers.

As regards implied powers generally, see BAXTER: Administrative Law (1984)…,.

What arises for determination herein is the existence or otherwise of a statutory basis for the creation and termination of rights granted by offer letters.

The standard offer letter in use under the Land Reform and Resettlement Programme (Phase II) states, that, the offer is made in terms of the Agricultural Land Settlement Act [Chapter 20:01].

However, no specific provision of the Agricultural Land Settlement Act is cited in this regard.

Turning to the Agricultural Land Settlement Act itself, Part III thereof regulates the settlement of agricultural land owned by the State.

Section 7 broadly enables the Minister of Lands to establish schemes or make other provision for, inter alia, the settlement of persons on and the alienation to such persons of agricultural land.

In terms of section 8, and subject to the Agricultural Land Settlement Act, the Minister may, for this purpose, issue leases to applicants in respect of holdings of land.

By virtue of section 9, no such lease may be issued to any applicant until the application has been referred to the Agricultural Land Settlement Board for its consideration and report under section 10.

Thereafter, section 11 provides for the issuance of a lease on such terms and conditions as may be fixed by the Minister.

Section 17(2) of the Agricultural Land Settlement Act specifically empowers the Minister to cancel the lease if the lessee fails to comply with any term or condition of his lease.

It is evident from these provisions, that, the settlement of land under the Agricultural Land Settlement Act is to be effected through the issuance of leases following investigations and reports by the Agricultural Land Settlement Board.

The Agricultural Land Settlement Act clearly does not contemplate the allocation of land for settlement through offer letters, either on their own or as precursors to formal leases. By the same token, the Agricultural Land Settlement Act does not entitle the Minister, or any other authority, to cancel offer letters or to terminate rights conferred thereunder.

The only statutory reference to offer letters is to be found in the Gazetted Lands (Consequential Provisions) Act [Chapter 20:28].

The principal object of this Act is spelt out in its long title, viz. to make certain provisions that are consequential to the enactment of section 16B of the Constitution.

That section was introduced by Act No.5 of 2005 (Amendment No.17) and provided for the compulsory acquisition of all gazetted land. More particularly, section 16B(6) of the Constitution envisages an Act of Parliament making it a criminal offence for any person, without lawful authority, to possess or occupy gazetted land or other State land.

In keeping with this constitutional injunction, section 3(1) of the Gazetted Lands (Consequential Provisions) Act stipulates, that, no person may hold, use or occupy gazetted land without lawful authority.

The term 'lawful authority' is defined in section 2(1) of the Gazetted Lands (Consequential Provisions) Act to mean an offer letter or permit or land settlement lease, and the phrase 'lawfully authorised' is to be construed accordingly; while 'offer letter' means a letter issued by the acquiring authority that offers to allocate to the offeree any gazetted land described in that letter.

Section 6 of the Gazetted Lands (Consequential Provisions) Act validates any offer letter issued on or before the fixed date (i.e. the date of commencement of the Act) that is not withdrawn by the acquiring authority.

The object of all of these provisions is quite clear.

It is to endow the holder of a valid offer letter with the requisite lawful authority to hold, use, and occupy Gazetted land and thereby shield him or her from being prosecuted, convicted, and evicted under section 3 of the Gazetted Lands (Consequential Provisions) Act.

Beyond this, the Gazetted Lands (Consequential Provisions) Act does not provide for the actual allocation or settlement of Gazetted Land, whether by offer letter, permit, or lease. Nor does it provide for the cancellation or withdrawal of any such offer letter, permit, or lease.

It follows from all of the foregoing, that, there is no proper statutory basis for the creation or termination of rights granted by offer letters in general.

Their basis is essentially administrative and their existence or otherwise is consequently subject to purely administrative rules and discretion – which must, of course, be exercised lawfully, reasonably, and fairly, but, which are unavoidably open to the possibility of abuse and malpractice.

This is precisely what appears to have happened in this case.

I am constrained to add, that, this is not an entirely satisfactory basis for the implementation of the land reform programme generally.

It seems to me, that, the administration and allocation of land for resettlement purposes, whatever the modality or form of allocation, should be properly and effectively regulated, so as to create a land allocation regime that is clear, transparent, and accountable, and susceptible to judicial scrutiny to ensure due process and compliance.

This could be achieved by way of regulations framed either under the Agricultural Land Settlement Act [Chapter 20:01] or under the Rural Land Act [Chapter 20:18].

I am fortified in this view by the general proposition, that, there can be no power without the requisite authority.

As is explained by BAXTER: Administrative Law (1984)…, citing Municipality of Green Point v Powell's Trustees (1848) 2 Menzies 380…, and Roberts v Hopwood [1925] AC 578 (HL)…,.:

“Except in the case of an exercise of power under the prerogative, a public authority has no powers other than those which have been conferred upon it by legislation.”

As regards administrative practices evolved through directives, circulars, and the like, but without specific statutory authority, the learned author observes, at p399, that they are:

“Permissible, even desirable, for so long as they do not conflict in any way with the empowering legislation under which the public authority acts nor infringe legally protected rights and interests.

Such practices cannot themselves constitute authority for the infringement of rights and interests; the notion that the administration could constitute a self-generating source of authority is completely alien to the principle of constitutional legality.

It is true, that, administrative practice may shape the procedures adopted by public authorities, and this has been recognised by the courts. As such, however, customary practices do not constitute a source of authority which justifies the infringement of rights and interests; at best, they may be construed as necessary or incidental to the proper functioning of the public authority concerned, and, therefore, impliedly authorised by the empowering legislation anyway.

The claim that custom might constitute a source of administrative power in itself is unacceptable and has been at least since Entick v Carrington (1765) 19 St Tr 1029, and there is no judicial authority to support it.”

HH707-15 : RICHARD MATTHEWS vs CRASTER INTERNATIONAL (PRIVATE) LIMITED
Ruled By: MAFUSIRE J

This was an application for the registration of an arbitral award. It was opposed.

Before the arbitrator, the within named applicant was the Claimant. The respondent herein was also the respondent therein.

The applicant was a former employee of the respondent.

The arbitration happened after the cessation of the employer-employee relationship. That cessation had been mutually and amicably agreed upon. Both parties were also agreed, in principle, that, the applicant was due a terminal package. However, they were not agreed as to the nature and quantum of that package.

It was for the determination of the appropriate terminal package that the matter was referred to arbitration.

The arbitrator was a retired judge of this court, Justice Smith. The operative part of his award read as follows:

“My award, therefore, is that the Respondent pays the Claimant -

(a) USD7,000 being his salary for August 2007;

(b) USD42,000 as a severance package;

(c) Cash-in-lieu of the leave he had acquired and not taken as at 4 September 2009 in line with the Respondent's leave policies.”

I have highlighted paragraph (c) of the award because argument for and against registration was partly centred on it.

The proceedings before me commenced by way of a chamber application. The heading to the application was:

“CHAMBER APPLICATION FOR REGISTRATION OF AN ARBITRAL AWARD IN TERMS OF SECTION 98(14) OF THE LABOUR ACT”

The highlighted portion was another source of argument.

The applicant vehemently sought to disown the reference to section 98(14) of the Labour Act, saying it was a mistake. He said his application had been made in terms of Article 35 of the Arbitration Act [Chapter 7:15], and not in terms of the Labour Act [Chapter 28:01].

On the other hand, the respondent sought to firmly bind the applicant to the letter of his heading.

It shall soon become apparent why the parties took such positions.

The opposition to the application was based on four grounds:

(i) The first was that paragraph (c) of the arbitral award did not sound in money. As such, it was unregistrable.

For support, the respondent cited the cases of Mandiringa & Ors v National Social Security & Ors 2005 (2) ZLR 329 (H) and Herbert Sauramba & Ors v Mitchells Bakery Mutare HH134-10.

(ii) The second ground of opposition was that the award had made no provision for Pay As You Earn tax (“PAYE”) in terms of the Income Tax Act [Chapter 23:06]. As such, the award was incomplete and therefore not registrable. Otherwise, to register it in that form, the court would be countenancing an illegality.

(iii) The third ground of opposition was that the applicant had failed to attach to his application for registration, a duly authenticated original of the arbitral award or a duly certified copy thereof. As such, he had breached the peremptory provisions of the Arbitration Act.

(iv) The fourth and last ground of opposition was that the respondent had earlier on obtained an arbitral award of its own against the applicant for an amount far in excess of what the applicant had been awarded in the arbitral award that he was seeking to register. As such, the principle of set-off had to be applied in order to do justice between man and man.

Otherwise, it would be inequitable that the applicant, who was owed much less by the respondent, should seek to recover from the respondent, which was owed much more by the applicant, when the two arbitral awards in question were intrinsically linked to each other, more particularly in that they had arisen out of the same set of facts and from the same relationship....,.

(b) Arbitral award not sounding in money

As I understand them, the ratio decidendi of Mandiringa & Ors v National Social Security & Ors 2005 (2) ZLR 329 (H) and Herbert Sauramba & Ors v Mitchells Bakery Mutare HH134-10 was that the purpose of registering an arbitral award, in terms of section 98(14) of the Labour Act, is so that it can be enforced; that, as such, for one to sue out a writ of execution to enforce an arbitral award, it must necessarily sound in money, and that an award that does not specify the sum due is incomplete and incapable of registration as an order of this court.

In my view, section 98(14) of the Labour Act and Article 35 of the Arbitration Act are in pari materia.

On the face of it, both provisions facilitate the registration of arbitral awards with the conventional courts for the purpose of enforcement.

In section 98(14) of the Labour Act, any party to whom an arbitral award relates may submit for registration to either the court of the magistrate, or the High Court, the copy of the arbitral award given to him in terms of sub-section (13).

The choice of court depends on the quantum of the award. Any award in excess of the monetary jurisdictional limit of the Magistrate's Court is to be submitted to this court.

In Article 35 of the Arbitration Act, an arbitral award, irrespective of the country in which it was made, is binding upon its registration with this court.

That the purpose for registering an arbitral award, in terms of section 98(14) of the Labour Act, is for enforcement is made clear by the next sub-section, namely, subsection (15).

It says, that, where an arbitral award has been registered, it shall have the effect “…, for purposes of enforcement…,” of a civil judgment of the appropriate court.

Similarly, with Article 35 of the Arbitration Act, that the purpose for registration is enforcement is self-evident from both the intrinsic provisions of the Article itself as well as the heading to it.

Sub-article 35(1) of the Arbitration Act says that the arbitral award, upon application to the High Court “…, shall be enforced…,” subject to the other provisions.

Sub-article 35(2) of the Arbitration Act also provides that the party applying for the “…, enforcement…,” of the award has to submit the original or certified copy.

The heading of the Article as a whole is “Recognition and enforcement.”

In casu, the applicant sought to wriggle out of the provisions of section 98(14) of the Labour Act, evidently to escape the conclusion in Mandiringa & Ors v National Social Security & Ors 2005 (2) ZLR 329 (H) and Herbert Sauramba & Ors v Mitchells Bakery Mutare HH134-10.

In my view, for the respondent to have insisted on binding the applicant to section 98(14) of the Labour Act, just because the heading to his application said so, was to insist on form prevailing over substance.

It was common cause, that, the reference of the dispute to arbitration had not been made in terms of the Labour Act. The arbitrator had not been appointed in terms of the Labour Act. The reference to arbitration, and the appointment of the arbitrator, had both been made in terms of the Arbitration Act.

For the above reason, I accept the applicant's submission that the applicant's reference to section 98(14) of the Labour Act in the heading to his founding papers was a mistake.

Furthermore, other than that the mistake may have deprived the respondent, on the face of it, the immediate opportunity to automatically rely on the case authorities aforesaid, and, other than that the mistake may have inconvenienced both the respondent and the court, I find no other discernible prejudice caused to the respondent.

Therefore, the applicant's mistake, in referring to section 98(14) of the Labour Act in its heading to its application, is excused.

The application to amend the heading by deleting the reference to section 98(14) of the Labour Act is hereby granted.

However, excusing the applicant for the mistake aforesaid does not altogether determine the point in issue.

If section 98(14) of the Labour Act and Article 35 of the Arbitration Act are in pari materia, as I believe they are, then, in my view, a legal finding on the one should be relevant to the other.

I find myself in agreement, with all due respect, with the views of MAKARAU J…, in Mandiringa & Ors v National Social Security & Ors 2005 (2) ZLR 329 (H) and CHIWESHE JP in Herbert Sauramba & Ors v Mitchells Bakery Mutare HH134-10.

In casu, paragraph (c) of the arbitral award was undoubtedly incomplete.

If an award is one that must sound in money and it is not, then, in my view, it is incapable of registration. It is incomplete.

In this case, if the parties went for arbitration to determine the nature and quantum of the terminal package due to the applicant, then, it is rather surprising that they came out of that arbitration with only two-thirds of the award having been quantified.

An order that an employer must pay his ex-employee cash-in-lieu of the leave due to him, and not taken for the period in question, is not complete.

Counsel for the applicant argued that it was complete because the leave days and their sum total were both capable of easy ascertainment.

But, that kind of approach is precisely what was rejected in the cases referred to above.

In particular, in Mandiringa & Ors v National Social Security & Ors 2005 (2) ZLR 329 (H), MAKARAU J said…,.:

“The awards did not compute the loss that each employer had to make good even if he chose to reinstate the respective applicant. It is conceded that while such computations are relatively easy by comparing what a similarly placed employee received in emoluments over the same period, the issue remains, that, the quantum thereof is not part of the award made and was not determined as part of the arbitration proceedings in the presence of both parties. It was not agreed upon in any one of the matters.”…,.

I agree with the learned judge's approach.

In casu, paragraph (c) of the arbitral award did not specify the period the leave was due to the applicant. It did not specify the number of those leave days. Naturally, it did not specify the quantum. It did not state what the respondent's leave policies were.

Before me, none of the parties said they were agreed on any of these items. Thus, the field for potential disagreement on them in the future was vast.

Counsel for the applicant argued, that, this did not render the award incapable of registration.

He conceded, that, it was not possible to sue out a writ of execution to enforce that part of the award if it remained in that form. However, he argued that the parties could always go back to the arbitrator for clarification if a dispute subsequently arose.

But, that precisely is the problem. The award was simply incomplete.

Counsel for the applicant's approach would entail the registration application being made and being heard twice. In my view, there was no conceivable basis for overburdening this court like that. The applicant simply had to submit for registration an award that was complete.

Therefore, I hold that paragraph (c) of the arbitral award by Retired Justice Smith, on 28 June 2012, was incapable of registration as an order of this court because it was incomplete, more particularly, in that it did not sound in money....,.

In this matter, paragraph (c) of the arbitral award by Retired Justice Smith, dated 28 June 2012, relating to the payment of cash-in-lieu of leave, is not capable of registration as an order of this court as it is incomplete, more particularly, in that it does not sound in money, the amount due not having been specified.

SC23-24 : EDWARD MUDYAVANHU vs CAIRNS FOODS LIMITED
Ruled By: MAKONI JA, MATHONSI JA and CHATUKUTA JA

This is an appeal against the whole judgment of the Labour Court of Zimbabwe (the court a quo) sitting at Harare, dated 27 July 2022. After hearing submissions from the appellant and counsel for the respondent, the court dismissed the appeal with costs indicating that reasons for the order would ...

FACTS

The appellant was employed by the respondent as a Management Accountant. In 2001, his employment was terminated after a restructuring exercise. The appellant challenged the termination. The challenge resulted in a judgment handed down by MAKAMURE J on 13 April 2004, under LC/H/35/2004, who ruled, that, the appellant had been wrongfully dismissed from employment and ordered that he be paid damages as compensation for the wrongful dismissal.

In 2009, the appellant filed an application for quantification of damages in the Labour Court. In a judgment handed down on 27 May 2009, MHURI J quantified the damages payable in the total amount of Zimbabwean dollars $26,076,252.

In 2020, the appellant approached the High Court seeking registration of the judgment by MHURI J. DUBE J…, struck the matter off the roll. She found that the matter was improperly before the court as the award was denominated in Zimbabwean dollars which was no longer a usable currency during the period in question.

Following the striking off of the matter from the roll by the High Court, the appellant approached the Labour Court, again, under case number LC/H/APP/43/20 seeking an order for the evaluation of his salaries and benefits owed to him by the respondent. In that application, the appellant sought a variation of his damages which had been quantified in 2009 in Zimbabwean dollars to be varied to reflect a quantum of 'Zimbabwean dollars as they are currently valued'.

MANYANGADZE J, in dealing with the application, struck the matter off the roll on 3 July 2020, for the reason, that, it was improperly before the court as the appellant sought relief which had already been rendered by the court.

In September 2021, the appellant sought to contest the judgment by MANYANGADZE J, by way of appeal. He sought condonation for late filing of an application for leave to appeal as he was out of time. The application was made under case number LC/H/462/21. The application was struck off the roll by CHIVIZHE J for failure to meet the requirements of an application for condonation.

PROCEEDINGS IN THE COURT A QUO

The appellant then proceeded to make an application, in terms of paragraph 5 of Practice Direction 3 of 2013 (Practice Direction), under case number LC/H/206/22, for reinstatement of LC/H/APP/43/20 which had been struck off the roll by MANYANGADZE J on 3 July 2023.

The application for reinstatement was opposed by the respondent who averred, that, in terms of Rule 36 of the Labour Court Rules, the appellant had thirty days within which to apply for the reinstatement of LC/H/APP/43/20. In this regard, the respondent argued, that, the appellant was out of time to seek the reinstatement he sought.

The respondent also opposed the application on the basis, that, the application before MANYANGADZE J had been struck off the roll because it had been made on the basis of a subject matter which had already been disposed of by the same court. The respondent thus argued, that, reinstating the application would not result in any tangible result.

On 27 July 2022, CHIVIZHE J dealt with the application for reinstatement and found, that, the Practice Direction was introduced with a view to ensuring the uniform use of legal terms and the application of those terms in the Superior Courts.

The court noted, that, the Practice Direction was not created to replace court rules, and, as such paragraph 5 of the Practice Direction had to be read together with Rule 36 of the Labour Court Rules, 2017.

In this regard, the court found, that, as the appellant's matter had been struck off the roll because of a jurisdictional basis, and not on the basis of failure to comply with rules, the court was functus officio. The matter could not therefore be reinstated in terms of paragraph 5 of the Practice Direction.

The court further found, that, the appellant's recourse was in Rule 36 of the Labour Court Rules. The court, however, noted, that, the appellant could only resort to that Rule within 30 days of becoming aware of the abandonment of his matter, and that, in the circumstances of the case, the appellant had brought his matter two years after the last order was issued.

The application was thus struck off the roll.

THE APPEAL

Dissatisfied by the decision of the court a quo, the appellant noted the present appeal on the following grounds of appeal:

GROUNDS OF APPEAL

“(i) The learned judge erred at law in deciding the matter on the basis of procedural technicalities when the parties had revealed to the court a consensual position for resolution of matters on the basis of merits.

(ii) Applying the requirements of Rule 36 of the Labour Court Rules 2017 in a matter that is under the regulation of, and was brought to court in terms of paragraph 5 of the Superior Courts Practice Direction 3 of 2013.”

The appellant sought the following relief, that;

“1. The appeal be allowed with costs.

2. The Labour Court order LC/ORD/499/2022 be set aside and substituted with the following:

(i) The application in case number LC/H/APP/43/20, for valuation, on the basis of the prevailing currency, of salaries, benefits and severance pay owed to Applicant by Respondent, be and is hereby, reinstated to the roll.

(ii) The Registrar be and is hereby ordered to set the matter down for hearing at the earliest convenience.

(iii) Respondent to pay cost of suit.”

PROCEEDINGS BEFORE THIS COURT

The appellant argued, that, the court a quo erred in refusing to grant the application for reinstatement of case LC/H/APP/43/20 which was his only remedy in view of the fact that it was struck off the roll. He further argued, that, the court erred as his remedies for reinstatement were provided for in the proviso to paragraph 5 of the Practice Direction.

The Court explained to the appellant, that, the application which he sought to reinstate had been struck off the roll because the court did not have jurisdiction to deal with the matter on the basis that it was functus officio. The issue had already been dealt with by MHURI J.

The court also directed the appellant's attention to the fact, that, paragraph 5 of the Practice Direction could not apply to the matter in casu. It could only be resorted to in instances where a matter is struck off the roll for infractions of the Rules.

The appellant maintained, that, the court a quo erred in striking his matter from the roll and that he had a remedy to reinstate his matter under the proviso to paragraph 5 of the Practice Direction.

Per contra, counsel for the respondent argued, that, the reinstatement which was sought by the appellant could not be attained as he could not reinstate a matter where the Labour Court had already pronounced itself on the issue at hand.

Counsel for the respondent further argued, that, the court a quo did not err in finding that the Practice Direction could not be used to reinstate the matter.

With that, counsel prayed that the appeal be dismissed with costs.

ISSUE FOR DETERMINATION

Whether or not the court a quo erred in striking off the roll the appellant's application.

APPLICATION OF THE LAW TO THE FACTS

Whether or not the court a quo erred in striking off the appellant's application

The court a quo struck off the appellant's application for reinstatement on the basis, that, the applicant wrongly applied the Practice Direction in making the application.

The court a quo opined, that, the appellant's matter, having been struck off the roll in 2020, had been deemed abandoned and the appellant could only, therefore, in the circumstances, have recourse to Rule 36 of the Labour Court Rules 2017.

It was also the court a quo's position, that, Rule 36 required the application to have been made within 30 days of the party becoming aware of the abandonment. The application was brought two (2) years after the last order, and it was, on that basis, that, the court struck the application off the roll.

The appellant's position is simply, that, because MANYANGADZE J, for whatever reason, ultimately struck his matter off the roll, his remedies lie in the Practice Direction.

In his application before the court a quo, and his initial submissions, he relied on the entire paragraph 5 of the Practice Direction. After the intervention of the court, regarding the applicability of that paragraph, he then sought to rely, only, on the proviso to paragraph 5.

The Practice Direction 3 of 2013, which provides for the meaning of the phrase 'struck off the roll' provides as follows, in the relevant parts:

“3. The term shall be used to effectively dispose of matters which are fatally defective and should not have been enrolled in that form in the first place.

4. In accordance with the decision in Matanhire vs BP & Shell Marketing Services (Pvt) Ltd 2004 (2) ZLR 147 (S) and S vs Ncube 1990 (2) ZLR 303 (SC), if a Court issues an order that a matter is struck off the roll, the effect is that such a matter is no longer before the Court.

5. Where a matter has been struck off the roll for failure by a party to abide by the Rules of the Court, the party will have thirty (30) days within which to rectify the defect, failing which the matter will be deemed to have been abandoned.

Provided that a Judge may, on application, and for good cause shown, reinstate the matter on such terms as he deems fit.”…,.

It was the appellant's argument, that, the proviso allows a party to seek reinstatement, and that, a Judge can grant the application on 'good cause shown'. He contended, that, the general provision, that is paragraph 5, which makes reference to failure to abide by the rules, and Rule 36 of the Labour Court Rules 2017, relied on by the court a quo, did not apply.

In the case R v Dibdin 1910 Probate…, LORD FLETCHER MOULTON…, in the Court of Appeal, said:

“The fallacy of the proposed method of interpretation (i.e. to treat a proviso as an independent enacting clause) is not far to seek. It sins against the fundamental rule of construction, that, a proviso must be considered in relation to the principal matter to which it stands as a proviso.

It treats it as if it were an independent enacting clause instead of being dependent on the main enactment.

The Courts, as for instance in such cases as Ex parte Partington 6 Q.B. 649; In re Brockelbank 23 Q.B. 461; and Hill v East and West India Dock Co. 9 App. Cas. 448, have frequently pointed out this fallacy, and have refused to be led astray by arguments such as those which have been addressed to us, which depend solely on taking words absolutely in their strict literal sense, disregarding the fundamental consideration that they appear in a proviso.”

A proviso cannot be treated as an independent clause but has to be considered in relation to the principal matter to which it stands as a proviso.

The argument by the appellant, that, he was only relying on the proviso to paragraph 5 'sins against the fundamental rule of construction, that, a proviso must be considered in relation to the principal matter to which it stands as a proviso.'

Reliance by the appellant on the proviso was totally misplaced.

SC38-23 : SOUTH AFRICAN AIRWAYS LIMITED vs MINISTER OF ENVIRONMENT, WATER AND CLIMATE and CIVIL AVIATION AUTHORITY OF ZIMBABWE
Ruled By: MATHONSI JA, KUDYA JA and MUSAKWA JA

On 8 January 2020, the High Court ordered the appellant to pay to the first respondent:

1. The sum of US$877,435 being the outstanding meteorological weather services fees (Met fees) for the period January 2006 to 30 April 2014;

2. All and further outstanding meteorological weather service fees (Met fees) from 1 May 2014 to the date of final payment;

3. Interest on the above sums at the prescribed rate from the date of the service of summons to date of final payment; and

4. Costs of suit on a legal practitioner and client scale.

The appellant appeals against this order.

THE FACTS

The appellant is a South African public company registered in terms of section 4(3) of the South African Airways Act 2007. It operates an international airline service with flights to and from Zimbabwe.

The first respondent is the Minister of Environment, Water and Climate (the Minister). He administers the Meteorological Services Act [Chapter 13:12] and its subsidiary legislation, the Meteorological Services (Aviation Weather Services) Regulations 2005, Statutory Instrument 32/2005.

The second respondent is the Civil Aviation Authority of Zimbabwe (CAAZ). It is a statutory corporation, established on 1 January 1999, in terms of section 4 of the Civil Aviation Act [Chapter 13:16]. At the material time, it managed all the airports and aerodromes in Zimbabwe.

The Meteorological Services Department (MSD) was established in 1925. It is mandated, by legislation, to produce aeronautical weather services in Zimbabwe for the benefit of the general public and private players.

On 2 April 2004, the Meteorological Services Act mandated the Meteorological Services Department (MSD) to charge private players, amongst whom was the aviation industry, for the provision of these services on a cost recovery basis. The modalities for implementing the cost recovery measures were instituted, in consultation and by agreement, with the Airline Operators Committee between 13 June 2004 and 15 September 2004. The resultant tariffs were based on the cost and life span of the equipment used and the cost of providing the service.

These aeronautical weather services were predicated upon the International Civil Aviation Organization (ICAO) and the World Meteorological Organization specifications and guidelines. They were categorized as landing, en-route or over flight, and departure fees. They were to be availed to the aviation industry through the Civil Aviation Authority of Zimbabwe (CAAZ).

The set tariffs were operationalized on 1 May 2005.

On 23 June 2006, the Meteorological Services Department (MSD) concluded an agreement with the Civil Aviation Authority of Zimbabwe (CAAZ). In terms of clause 7.1 of the agreement, CAAZ became the collection agent for the cost recovery fees chargeable to the individual airlines which serviced the local air space.

Thereafter, CAAZ charged individual airlines for its own specified services in terms of the Aviation (Aeronautical Telecommunications and Information Services Regulations 2004; Aviation (Air Traffic Services) Regulations 2010; Aviation (Air Navigation) Regulations 2004; and Aviation (En-route Navigation Facilities) (Fees) Regulations, SI 67/1997.

It combined services supplied by the Meteorological Services Department (MSD) in a composite invoice but under the single and distinct rubric of “Met Fees”.

The appellant, and a few select airlines, paid the specified Civil Aviation Authority of Zimbabwe (CAAZ) fees but declined to pay for the meteorological weather service fees (Met Fees).

The recalcitrant airlines sought the resolution of the impasse through the mediation of IATA and ICAO between 26 July 2006 and 26 July 2010. Notwithstanding the breakdown of the fees by type and cost of each respective service by CAAZ to the mediators, the negotiations failed.

By an act of State, the Meteorological Services Department (MSD) was transferred from the Minister of Transport and Infrastructural Development to the first respondent (the Minister of Environment, Water and Climate) on 7 February 2014.

An adverse audit report by the Auditor-General prompted the Minister of Environment, Water and Climate (the Minister) to issue summons against the appellant on 20 August 2014 seeking the payment of the amounts that form the subject matter of this appeal. The summons was served on 22 August 2014.

The appellant entered its plea on 9 June 2015.

It, inter alia, raised a special plea in bar of prescription (in terms of section 15(c)(ii) of the Prescription Act [Chapter 8:11]) to the claims preceding 22 August 2008.

It admitted, firstly, in paragraphs 2.2-2.4 of its plea, that, the Civil Aviation Authority of Zimbabwe (CAAZ) was a collection agent of the Minister of Environment, Water and Climate (the Minister) at all material times; and, secondly, that, it had indeed received the aeronautical services.

It, however, sought to avoid the claims on the main basis, that, it had discharged all its obligations; and, in the alternative, that, if it was found liable, then, it should be reimbursed the putative judgment debt by the Civil Aviation Authority of Zimbabwe (CAAZ).

At its instance, the Civil Aviation Authority of Zimbabwe (CAAZ) was, by consent, joined to the proceedings a quo as the second defendant, on 8 March 2016.

On 7 August 2016, the Civil Aviation Authority of Zimbabwe (CAAZ) pleaded that it was enjoined by sections 45, 45(1)(o) of the Civil Aviation Act as read with sections 3(1) and (4) of SI 67/97 and Article 15 of the Chicago Convention on International Civil Aviation to charge, for its own account, boarding fees, bussing fees, parking fees, landing fees and navigation or en route fees for the use of its airport facilities and air space.

In addition to these charges, it levied the airlines the similarly named landing, en route, and departure fees under the acronym “Met fees” on behalf of the Meteorological Services Department (MSD) for the use of the aeronautical weather services provided to the airlines by the MSD.

To wit, the appellant averred that the Met fees levied on the globalized invoice constituted a duplication of the separate and distinct line items of the same name charged for the account of the Civil Aviation Authority of Zimbabwe (CAAZ).

THE ISSUES REFERRED TO TRIAL A QUO

The court a quo was required to determine whether the claims prior to 22 August 2008 had prescribed, and, whether the appellant was indebted to the Minister of Environment, Water and Climate (the Minister) in the amount claimed or in any lesser amount.

In determining the second issue, the court a quo was enjoined to decide whether there had been any duplication of the landing, en route, and departure fees chargeable for the account of the Civil Aviation Authority of Zimbabwe (CAAZ) and the unpaid Met fees sought by the Minister.

THE EVIDENCE

The monthly tax invoices issued to the appellant between 2009 and 2016 show, that, the meteorological weather service fees (Met fees) constituted between 4 percent and 7 percent of the similarly named fees charged for the account of the Civil Aviation Authority of Zimbabwe (CAAZ). The number of airline operators in Zimbabwe during the 2006 to 2016 period ranged between a minimum of 45 and a maximum of 85 airlines. An average of 60 percent of the airlines paid the Met fees.

The appellant produced proof of monthly payments of the fees charged less the disputed Met fees for the period November 2008 to January 2017. It declared, in its respective remittances, that, it would not pay the Met fees until the dispute was resolved.

The Minister of Environment, Water and Climate (the Minister) called the oral testimony of his former Meteorological Services Department (MSD) Fund Administrator, Morris Vengesai Sahanga.

He narrated the consultations and agreement reached with the airlines for the levying of the meteorological weather service fees (Met fees). He asserted, that, at the time, all the airlines appreciated the distinction between the similarly named prospective charges sought by the MSD. The aviation weather services provided to airlines encompassed temperature, wind direction and speed, and atmospheric pressure forecasts to the airlines flying over, landing in, and departing from Zimbabwe.

The information was relayed through the Civil Aviation Authority of Zimbabwe (CAAZ).

He produced the monthly schedules and the invoices of the amounts billed, paid, and unpaid by the appellant during the period from 1 January 2009 to the date of summons.

He asserted, that, the Met fees due to the MSD were distinct from those of a similar name charged by CAAZ for its own account. The Met fees were for the provision of the aviation weather services that he narrated while those for the account of CAAZ were for the use of CAAZ's infrastructure and the Zimbabwe air space.

The Permanent Secretary, Grace Tsitsi Mutandiro, testified that the Meteorological Services Department (MSD) was transferred to the Minister of Environment, Water and Climate (the Minister) with all its assets and liabilities.

The Civil Aviation Authority of Zimbabwe (CAAZ) charges were for the use of the local airspace and its landing and take-off infrastructure and not for the utilization of weather information.

The appellant's application for absolution from the instance was dismissed in a separate judgment, issued as HH173-19, on 6 March 2019.

Thereafter, it dispensed with the calling of oral evidence in preference to the documentary evidence produced by consent at the commencement of trial.

The Civil Aviation Authority of Zimbabwe (CAAZ) declined to participate in the trial, opting to abide by the order of the court.

THE CONTENTIONS A QUO

It was common cause, that, the amounts sought for the period January 2006 to 21 August 2008 is in the total sum of US$274,944 consisting of US$104,085 for 2006; US$96,637 for 2007; and US$74,222 for the period commencing 1 January 2008 to 21 August 2008.

The appellant contended, that, the claims preceding 22 August 2008 constituted a debt owed to the State, which, in terms of section 15(c)(ii) of the Prescription Act, prescribes after six (6) years.

It further argued, that, the claimed meteorological weather service fees (Met fees), subsequent to 22 August 2008, duplicated landing and en route fees charged for the account of the Civil Aviation Authority of Zimbabwe (CAAZ), which it discharged in full.

It also argued, that, the Minister of Environment, Water and Climate (the Minister) lacked locus standi to sue for the fees in question on the following bases:

(i) Firstly, that, the claim arose before the Meteorological Services Department (MSD) was assigned to him.

(ii) Secondly, that, an unspecified section of the Meteorological Services Act conferred the exclusive right to sue or be sued on the Director of the Meteorological Services Department (MSD).

(iii) Lastly, that, sections 6(1)(d), 45(1) and 47 of the Civil Aviation Act, which came into effect on 1 January 1989, imbues the Civil Aviation Authority of Zimbabwe (CAAZ) with the sole and exclusive power to provide aeronautical information services and charts of aerodromes, air traffic control, meteorological services, hazards to air navigation, and the right to levy fees and charges.

In its closing submissions, the appellant also argued, that, the Minister of Environment, Water and Climate (the Minister) did not have a cause of action against it.

Per contra, the Minister of Environment, Water and Climate (the Minister) contended, that, the meteorological weather service fees (Met fees) constituted a tax, which, in terms of section 15(a)(iii) of the Prescription Act, only prescribed after a period of 30 years.

He also contended, that, the appellant did not pay any Met fees, which were demonstrably distinct from the similarly named fees paid to the Civil Aviation Authority of Zimbabwe (CAAZ) for the use of its own facilities and infrastructure.

In regards to locus standi, he contended, that, as the Minister in charge of the Meteorological Services Department (MSD), who assumed its assets and liabilities on assignment, he had the necessary legal standing to recover its debt in terms of section 3 of the State Liabilities Act [Chapter 8:14] as read with section 39 of the Interpretation Act [Chapter 1:01].

The Minister also contended, that, he had not only a statutory cause of action but also a contractual one.

THE FINDINGS OF THE COURT A QUO

The court a quo found against the appellant on all the issues that were referred to trial. It held, that, the Minister of Environment, Water and Climate (the Minister), as the authority assigned to administer the Meteorological Services Department (MSD) and its constituent legislation, had the requisite statutory locus standi to sue for the recovery of the debt notwithstanding that some of it had been incurred when the MSD fell under the auspices of the Minister of Transport and Infrastructural Development.

It further held, that, the Meteorological Services Department (MSD) was neither autonomous nor imbued with legal capacity, but, falls under the aegis of the Minister assigned to administer the Meteorological Services Act when action is instituted.

It reasoned, that, the provisions of sections 3, 4, 6 and 8 of the Meteorological Services Act gave the Minister a direct and substantial interest and over-arching control in the operations of the Meteorological Services Department (MSD).

It also held, that, the Minister of Environment, Water and Climate derived his locus standi from the common cause fact, that, the Civil Aviation Authority of Zimbabwe (CAAZ) was an agent of the Meteorological Services Department (MSD).

It further found, that, the Minister's cause of action against the appellant, and his legal right to sue for any debts accrued before the Meteorological Services Act was assigned to him.

On prescription, the court held, that, the debt was in the nature of a tax and would therefore prescribe after a period of 30 years. It further held, that, the essential factors that constitute a tax, which were enunciated in Nyambirai v National Social Security Authority & Anor 1995 (2) ZLR 1 (S)…, were fully met.

The court a quo reasoned, in its judgment, at p899 of the appeal record, that:

“In casu, we are dealing with some levies that the first defendant is obligated to pay under the relevant enactments, especially the MSA. For that reason, this is not only a debt due to the State but also levied under some enactments. It would not be correct to strictly interpret that the debt is owed to the State only and disregard statutory obligations. I would therefore agree, that, the debt in casu is also covered under section 15(a), and, for that reason, part of the debt is not prescribed.”

THE GROUNDS OF APPEAL

The appellant is aggrieved by the findings of the court a quo. It appeals to this Court on the following grounds:

“1. The court a quo erred and misdirected itself in law in failing to find, that, the first respondent's claim, in so far as it related to the period prior to 22 August 2014, had prescribed by dint of the provisions of section 15(c)(ii) of the Prescription Act [Chapter 8:11].

2. Having found, as it did, that, the administration of the Meteorological Services Act [Chapter 13:21] was assigned to the 1st respondent on the 7th February 2014, the court a quo erred in law in finding, as it did, that, the 1st respondent had a statutory claim against the appellant retrospectively, to wit, from January 2006.

3. The court a quo erred and misdirected itself in law in failing to find, that, by dint of the provisions of section 6(3) of the Meteorological Services Act [Chapter 13:21], the 1st respondent had no direct statutory nexus with the appellant in respect of the provisions of the meteorological weather services and could therefore not sustain a statutory claim against the appellant.

4. The court a quo erred and misdirected itself in failing to find, that, by dint of the provisions of sections 6(1)(d), 45 and 47 of the Civil Aviation Act [Chapter 13.16], the statutory duty to provide meteorological services to the appellant, and other airlines, exclusively reposed in the Civil Aviation Authority of Zimbabwe (the second respondent herein).

5. By extension, the court a quo further erred in then failing to find, that, only the Civil Aviation Authority of Zimbabwe could institute a claim for meteorological services against the appellant.

6. It being common cause, that, the appellant had, during the material period, paid the meteorological services to the Civil Aviation Authority of Zimbabwe (2nd respondent herein) the court erred in failing to find, that, the claim by the 1st respondent constituted a duplication of the same statutory claim.

7. Overall, having found as it correctly did, that, the disposition of this matter turned on questions of law only, the court a quo erred and misdirected itself at law by failing to determine the question of the establishment of a cause of action by the 1st respondent by reference to the applicable statutory provisions.

8. The court a quo erred in granting an order for costs on a legal practitioner and client scale in situations where there was no basis for such punitive costs.”

It seeks the success of the appeal with costs and the setting aside of the judgment and its substitution with a dismissal of the first respondent's claim with costs.

THE ISSUES ON APPEAL

These eight grounds of appeal raise the following three issues:

1. Whether or not the respondent had locus standi to institute proceedings and had a cause of action against the appellant.

2. Whether or not the court a quo erred when it held, that, part of the claim had not prescribed.

3. Whether or not the court a quo could properly impose costs on a higher scale.

THE SUBMISSIONS BEFORE THIS COURT

Counsel for the appellant submitted, that, the question of whether or not the Minister had established a cause of action as against the appellant could be dispositive of the appeal.

In this regard, he contended, in the main, that, notwithstanding that the Meteorological Services Department (MSD) was the ultimate source of the meteorological services, the Civil Aviation Authority of Zimbabwe (CAAZ), and not the Minister, had, in terms of sections 6(1)(d), 45 and 47 of the Civil Aviation Act, the exclusive statutory duty to provide meteorological services to the appellant.

He also took the alternative point, that, such a statutory duty could possibly fall on the Director of the Meteorological Services Department (MSD) and not his Minister.

He premised the alternative contention on the provisions of section 6(3) of the Meteorological Services Act, which reposes on the Director the power to make suitable financial arrangements for the provision of meteorological services with other State entities.

He resultantly conceded the validity of the agreement executed between the Meteorological Services Department (MSD) and the Civil Aviation Authority of Zimbabwe (CAAZ) on 23 June 2006.

He however contended, tongue in cheek, that, the effect of that agreement was that the MSD could only seek recompense from CAAZ and not the appellant.

He, therefore, nailed his contentions on the mast of the Civil Aviation Act and submitted, that, as the Meteorological Services Act did not expressly confer the Minister with the requisite right of action as against the appellant, it was remiss of the court a quo to find that he had both the locus standi and the concomitant cause of action to sue the appellant.

Regarding the question of prescription, he submitted, that, it was not necessary for the appellant to lead evidence to establish the existence of prescription. This was because the facts from which the issue of prescription could be determined were correctly found by the court a quo to have been common cause.

He therefore contended, that, the claims prior to 22 August 2008 had been extinguished by prescription. He strongly argued that these claims constituted an ordinary debt owed to the State and were not in the nature of a tax. They had, thus, prescribed after a period of six years and would not do so after thirty years.

Counsel for the Minister made the contrary contentions, which we summarize in this paragraph and in paragraphs [24] and 25].

The failure by the appellant to lead evidence on the existence of prescription or the prescribed amounts was fatal to its special plea.

The requirement to lead evidence to establish a special plea is enunciated in Van Brooker v Mudhanda & Anor and Pierce v Mudhanda & Anor SC05-18…, and in HERBSTEIN and Van WINSEN: The Civil Practice of the High Courts of South Africa, 5th ed…,.

The question of the Minister's entitlement to sue for the debt owed to the Meteorological Services Department (MSD) was asserted in paragraphs 3 to 5 of his declaration.

It was not disputed by the appellant, in paragraph 3.2 of its plea, which was never subsequently amended. It is therefore taken to have been admitted.

The appellant also expressly admitted, that, the Civil Aviation Authority of Zimbabwe (CAAZ) was the Minister's duly authorized collecting agent to whom it had paid the claimed amounts.

It could, therefore, not properly argue against the Minister's causa or locus standi without amending its pleadings or leading any evidence.

The date of assignment to the Minister could not, and did not, retrospectively affect the existence of the cause of action nor his legal capacity to claim the debt.

The assignment of functions did not create a new law nor extinguish extant obligations that arose before the assignment.

This position is codified by section 39 of the Interpretation Act [Chapter 1:01], which, in essence, equates an assignment with a cession.

The statutory cause of action is to be found in the Meteorological Services Act and the Meteorological (Aviation Weather Services) Regulations SI 32/2005.

These two pieces of legislation impose an obligation upon the appellant to pay for the services that it enjoys when its aeroplanes use Zimbabwean's airspace and airports. These extant pieces of legislation, and the administrative acts made under them, enjoy a presumption of validity, remain lawful and binding, bidding obedience from all subjects of the law - inclusive of the appellant.

ANALYSIS

The second, third, fourth and fifth grounds of appeal raise the sole issue of whether or not the Minister had the legal standing to sue the appellant in respect of the provision of the aeronautical weather services.

The seventh ground of appeal deals with the question of whether he had a cause of action as against the appellant. Aligned to it is the sixth ground, which relates to the duplication between the claimed “Met fees” and the landing and over flight fees paid to the Civil Aviation Authority of Zimbabwe (CAAZ).

The first ground deals with the issue of prescription, while the last ground questions the propriety of the court a quo's costs order.

WHETHER OR NOT THE MINISTER HAD THE REQUISITE LOCUS STANDI TO SUE THE APPELLANT

Counsel for the appellant attacked the Minister's legal standing to claim for the aeronautical weather services on the main basis, that, he lacked a statutory basis to sue the appellant.

In the alternative, counsel contended, that, the Minister could not properly sue for debts incurred before 7 February 2014, which was the date on which the administration of the Meteorological Services Act was assigned to him.

Per contra, counsel for the first respondent argued, that, the Minister had the requisite legal standing to sue in the two impugned instances.

Counsel for the appellant's main argument, that, the Civil Aviation Authority of Zimbabwe (CAAZ) and not the Minister had the sole and exclusive locus standi to sue the appellant was predicated on the provisions of sections 6(1)(c) and (d), 45(1)(a) to (d) and (o) and 47(1), (2) and (3) of the Civil Aviation Act. These sections provide the following:

“6. Functions of Authority

(1) Subject to this Act, the functions of the Authority shall be —

(c) To provide aviation meteorological services in relation to Zimbabwe;

(d) To provide aeronautical information services with respect to aerodromes, air traffic control and facilities, meteorological services, hazards to air navigation and such other matters relating to air traffic as may be prescribed or as the Authority may consider appropriate;

45. Aeronautical information services and publications

(1) The Authority shall provide aeronautical services, which shall comprise the collection and dissemination of aeronautical information and instructions with respect to —

(a) Aerodromes; and

(b) Air traffic control services and facilities; and

(c) Communication and air navigation services and facilities; and

(d) Meteorological services and facilities; and

(o) Fees and charges.

47. Meteorological services

(1) The Authority shall be responsible for providing aviation meteorological services in Zimbabwe.

(2) The Authority shall ensure that information concerning weather conditions is provided to all aircraft in Zimbabwean airspace in a timely and orderly fashion.

(3) The Minister shall ensure that the State provides meteorological information to the Authority on terms and conditions agreed between the State and the Authority.”

On the other hand, counsel for the first respondent relied on the provisions of section 3 of the State Liabilities Act [Chapter 8:14] and sections 4(1)(a) and (e), 6(1)-(4), 7, 8 and 11 of the Meteorological Services Act for his contrary contention.

Section 3 of the State Liabilities Act provides that:

"3. Proceedings to be taken against Minister of department concerned

In any action or other proceedings which are instituted by virtue of section two, the plaintiff, the applicant, or the petitioner, as the case may be, may make the Minister to the headship of the Ministry or department concerned has been assigned nominal defendant or respondent:

Provided that, where the headship of the Ministry or department concerned has been assigned to a Vice-President, he may be made nominal defendant or respondent.”

The sections of the Meteorological Services Act cited by counsel for the first respondent provide that:

“4. Functions of the Department

(1) Subject to this Act, the functions of the Department shall be to —

(a) Construct, establish, acquire, maintain and operate seismological and meteorological undertakings;

(e) Provide specific operational meteorological services to major users such as the aviation, agriculture, energy, defence, tourism, and water resources industries;

(2) The Department shall have the power to —

(b) Do or cause to be done, with the approval of the Minister, and the Minister responsible for finance, either by itself, or through its agents, any of the things specified in the First Schedule.

“6. Charges, levies and fees

(1) The Director shall have power, subject to any directions of the Minister, and, in consultation with the Minister responsible for finance, to charge and levy fees for the services specified in Part I of the Second Schedule.

(2) No charges or fees shall be levied for the services specified in Part II of the Second Schedule.

(3) The Director shall, subject to the approval of the Minister, enter into financial arrangements with other State departments for payment in respect of specialised services provided to them by the Department.

(4) The Minister, with the approval of the Minister responsible for finance, and, in consultation with the Director, may, by statutory instrument, prescribe the amounts of levy to be paid by persons or associations who obtain for their own or collective use, meteorological products and services provided by the Department.”

Part I of the Second Schedule reads as follows:

“SECOND SCHEDULE (Section 6)

SERVICES OFFERED BY THE DEPARTMENT

PART I

SERVICES OFFERED ON A COST RECOVERY BASIS

1. Aeronautical services to the aviation industry at all airports.

2. Special weather and climate-related publications for specific users.”

Section 3 of the Meteorological Services Act creates the Meteorological Services Department (MSD) while section 5 places the day to day control and management of the MSD under a Director, who, in turn, operates under the control and direction of the Minister assigned to administer the Act.

In terms of section 7 “all moneys received by the Department (from) the fees and charges payable for services and facilities provided by the Department levied in terms of section six” fall under the auspices of the Meteorological Services Fund, which, at the material time, was regulated by a Constitution drawn up in terms of section 30 of the Audit and Exchequer Act [Chapter 22:03].

Section 8 gives the Minister overarching powers over the Director, relating to policy which the Minister considers to be necessary in the national interest, which the Director is obliged to obey.

Lastly, section 11 imbues the Minister with wide powers to amend the First and Second Schedules to the Act.

In both his oral and written submissions, counsel for the appellant conceded, that, while the Civil Aviation Act was promulgated before the Meteorological Services Act, both statutes were extant.

Counsel for the first respondent also conceded, that, the latter promulgation of the Meteorological Services Act neither expressly nor impliedly repealed the earlier provisions of the Civil Aviation Act that dealt with the provision of aeronautical weather services to the aviation industry and the concomitant levying of the requisite fees.

Both counsel correctly agreed that there exists in our law the presumption of validity of legislation until declared otherwise by a competent court: see Econet Wireless (Pvt) Ltd v Minister of Public Service & Ors 2016 (1) ZLR 1066 (S)…,.

Further, that our courts are required to construe legislative provisions, be it in disparate Acts or the same Act, in conformity with each other, so as to give effect to each provision.

It is pertinent to note, that, counsel for the appellant did not impugn the validity of the above cited provisions of the Meteorological Services Act.

A clear reading of those provisions places the Meteorological Services Department (MSD), and its Director, under the control and direction of the Minister. Neither the MSD nor its Director are vested with the legal capacity to sue or be sued.

Indeed, the Meteorological Services Department (MSD) is not an autonomous department.

The position is settled in our law, that, a statutory body can only sue or be sued if it is imbued with the legal capacity to do so: see Privatization Agency of Zimbabwe & Anor v Ukubambana Kubatana Investments (Pvt) Ltd & Anor SC09-03…,.

In casu, had the legislature intended the Meteorological Services Department (MSD) to have the legal capacity to sue or be sued, it would have expressly said so, as it expressly did in respect of the Civil Aviation Authority of Zimbabwe (CAAZ) in section 4 of the Civil Aviation Act.

The very fact that the Meteorological Services Department (MSD) is a department under the control and direction of the Minister accords him with the legal capacity to sue and be sued in its place.

We, therefore, agree with counsel for the first respondent firstly, that, the Minister is reposed, by the Meteorological Services Act, with the statutory direct and substantial interest to sue and be sued on behalf of the Meteorological Services Department (MSD).

Secondly, that, section 3 of the State Liabilities Act, by making a Minister a nominal defendant or respondent in any suit launched against his or her department, accords to him or her the correlative power to be an applicant or plaintiff in cases such as the present one.

Thus, the fact that the Civil Aviation Authority of Zimbabwe (CAAZ) could have sued the appellant in its own right, under the provisions of the Civil Aviation Act, does not detract from the power of the Minister to do so under the Meteorological Services Act.

SC85-23 : ZIMBABWE REVENUE AUTHORITY vs MUROWA DIAMONDS (PRIVATE) LIMITED
Ruled By: UCHENA JA, KUDYA JA and MWAYERA JA

The appellant seeks the vacation of the whole judgment handed down by the Special Court for Income Tax Appeals (the court a quo) that was handed down on 23 December 2020. The court a quo set aside the amended income tax assessments issued to, and the penalty imposed against the ...

THE FACTS

The matter a quo was premised on a Stated Case.

The appellant is a revenue collection statutory body corporate, established in terms of the Revenue Authority Act [Chapter 23:11]. The respondent is a limited liability company registered under the laws of Zimbabwe. It operates a mining lease title issued on 28 March 2001 and amended on 11 September 2001. It has the exclusive mining rights to 28 diamond mining claims covering 23,716 hectares in the Masvingo Mining District. It sells the diamonds outside Zimbabwe.

In October 2017, the appellant conducted a tax review of the self-assessment returns submitted by the respondent in respect of the 2010 to 2015 tax years. The appellant re-computed the income tax payable for the tax years ended 31 December 2014 and 2015. It added back to taxable income, thereby disallowing, the deductions in respect of mining royalties, which the respondent had paid pursuant to section 244 of the Mines and Mineral Act [Chapter 21:05].

The basis for the disallowance was that the royalties were of a capital nature and not of a revenue nature.

The appellant reasoned, that, the royalties were of a capital nature because they were paid to secure an enduring benefit in respect of the diamond mining rights conferred upon the respondent by the Government of Zimbabwe (GOZ).

On 30 October 2017 and 1 November 2017, the appellant issued two notices of additional assessments together with their respective additional assessments. The appellant also imposed 100 percent penalties for the resultant tax shortfall in the aggregate sum of US$2,558,692=50 for the 2014 tax year. The respondent objected to the additional assessments on 24 November 2017. The objection was disallowed by the appellant on 25 January 2018. The respondent appealed against the determination disallowing the objection to the Special Court on 9 April 2018.

The appeal was successful.

THE CONTENTIONS A QUO

Counsel for the respondent a quo contended, that, as the royalties were chargeable on the minerals or mineral products that had been disposed of in the year of assessment, they would be deductible from taxable income pursuant to the general deduction formula, viz, section 15(2)(a) of the Income Tax Act [Chapter 23:06]. He submitted that the appellant incorrectly added back the royalties to taxable income by treating them as being of a capital nature when, in law, they were of a revenue nature.

He strongly contended, that, charging royalties would not result in the acquisition, establishment, or improvement of the mining location from which minerals or mineral products would be won. Rather, they were paid ad valorem the disposed minerals. The purpose of the royalties was to preserve the respondent's right to dispose of the extracted minerals.

He also submitted, that, the repeal of section 15(2)(f)(iii) of the Income Tax Act, with effect from 1 January 2014, did not abrogate the clear and un-ambiguous text of the general deduction formula or the effect of section 16 of the Income Tax Act, both of which remained extant.

Counsel for the appellant made the following contrary submissions:

The general deduction formula predated the introduction of section 15(2)(f)(iii) of the Income Tax Act. The latter provision was introduced into the Income Tax Act by section 8 of the Finance Act No. 10/2003 and took effect on 1 January 2004. The provision permitted a payer of royalties to deduct them from its taxable income.

Section 7(a) of the Finance Act No.1/2014 repealed section 15(2)(f)(iii) of the Income Tax Act with effect from 1 January 2014. The deduction of royalties was removed by legislative diktat.

Additionally, royalties constitute capital expenditure and are not deductible under the general deduction formula.

The deductions done by the appellant, in the two self-assessments returns, were improper and therefore properly disallowed in the impugned additional assessments. The dollar for dollar penalty imposed by the appellant was in accordance with the moral turpitude and demonstrable lack of diligence of the taxpayer. In terms of section 46 of the Income Tax Act the incorrect self-assessment return avoided the payment of the correct tax and was done with the intention of defrauding the fiscus. It could not properly be waived in any manner or form.

THE FINDINGS OF THE COURT A QUO

The court a quo held, that, the royalty payable under Part XIV of the Mines and Minerals Act to the Government, by a miner, is tax deductible because it falls into the ambit of revenue and not capital.

It also found, that, the contemplated deduction disallowance specified in the Minister of Finance and Economic Development's 2013 National Budget Speech to Parliament, and the resultant repeal of section 15(2)(f)(iii) of the Income Tax Act, did not alter the underlying revenue nature of the mining royalties in issue. The actions of the Minister and Parliament were negated by the overarching reach of the general deduction formula, which was un-affected by the two events.

The court a quo reasoned, that, the source of the royalty determined its nature.

It held, that, as the royalty was paid from the income earned from the disposal of the won minerals and mineral products, it constituted an operational expense incurred in the production of income and not an operational expense incurred in the establishment, creation, acquisition, or improvement of the mining location, mining equipment, or mining infrastructure.

The ratio decidendi of the court a quo is encapsulated in paragraph 25 of the judgment, which I reproduce below:

“[25] Whilst it is paid in lieu of the right to mine, nonetheless, it does not bring into being an asset for the enduring benefit of a miner. It is an expense associated with the operation of a business for the purpose of earning income as opposed to a cost of performing the income-earning operations or of establishing or improving or adding to the income-earning machinery. So, I would set aside the respondent's assessment on this basis.”

The court a quo further held, that, it was not necessary to resort to extrinsic aids alluded to in section 15B(1) and (2) of the Interpretation Act [Chapter 1:01] where the text is clear and unambiguous. It therefore held, that, the deduction of the royalties was governed by the general deduction formula, which predated the repealed provision, and was therefore not affected by the interposition of the repealed provision.

Aggrieved, the appellant appealed to this Court on the following grounds of appeal:

THE GROUNDS OF APPEAL

1. The court a quo erred in law in finding that royalties paid by the respondent, in terms of section 244 of the Mines and Minerals Act [Chapter 21:05], are an allowable deduction in terms of section 15 of the Income Tax Act [Chapter 23:06];

2. The court a quo erred in law in finding as it did, or taken to have done, that the amendments to section 15(2)(f)(iii) to the Income Tax Act [Chapter 23:06] in 2004, 2014, and 2019 did not alter the deductibility of royalties as a deductible expense for the relevant periods.

3. The court a quo erred in law in setting aside the penalty in circumstances where the appellant was empowered, in terms of section 46(1) of the Income Tax Act [Chapter 23:06], to levy such a penalty.

The appellant seeks the success of the appeal, the vacation of the judgment of the court a quo and its substitution by a dismissal of the respondent's appeal in the court a quo.

THE ISSUE

Whether notwithstanding the repeal of section 15(2)(f)(iii) of the Income Tax Act, royalties payable under section 244 of the Mines and Minerals Act constitute an allowable deduction under the general deduction formula, section 15(2)(a) of the Income Tax Act.

THE SUBMISSIONS BEFORE THIS COURT

Counsel for the appellant submitted, that, the royalties were not deductible in the 2014 and 2015 tax years because of the repeal of section 15(2)(f)(iii) of the Income Tax Act.

The provision in question allowed the deduction of section 244 mining royalties between 1 January 2004 and 31 December 2013 before it was repealed on 1 January 2014.

He contended, that, the court a quo manifestly erred in disregarding the clear intention of the legislature that derives from the repeal of the formerly permissive provision when it allowed the deduction of these royalties. He strongly contended that the logical effect of the repeal was that the royalties under consideration were no longer deductible.

He also contended, that, the royalties constituted a non-deductible expenditure of a capital nature under the general deduction formula.

He further submitted, that, it was therefore remiss of the court a quo to allow their deduction in these circumstances.

Per contra, counsel for the respondent submitted, that, the court a quo correctly set aside the additional assessments issued by the appellant on 31 October 2017 and 1 November 2017.

He contended, that, the repeal of section 15(2)(f)(iii) of the Income Tax Act, at the dawn of the 2014 tax year, did not automatically alter the essence of royalties as a deductible revenue expense incurred to earn income. He argued that the continued existence of the general deduction formula, after the repeal of section 15(2)(f)(iii) of the Income Tax Act, permitted the deduction of all revenue expenses whose deduction was not disallowed by section 16 of the Income Tax Act.

He contended, that, royalties, being deductions of a revenue nature and not of a capital nature, which were also not precluded from deduction by section 16 of the Income Tax Act, were properly deductible under the general deduction formula. He relied on the dicta in AS School & Ors v Zimbabwe Revenue Authority SC61-17…, for the proposition that the mere repeal of a permissive statutory provision would not necessarily erode the targeted rights as long as they continued to be preserved by an existing provision in the same or in a different enactment.

He contended, that, as the royalties were payable for the right to dispose of won minerals or mineral products and not the right to mine these minerals, they constituted expenses defrayed to raise or earn income.

He further argued, that, they did not constitute expenses incurred in securing the right to mine and were therefore not of a capital nature.

THE LAW

The statutory provisions relevant to the determination of this appeal, which govern the allowable deductions of mining expenditure in general, and mining royalties in particular, during the 2014 and 2015 tax year were provided in section 2, 15(1), (2)(a), (f) and (4), 16 and the Fifth Schedule of the Income Tax Act [Chapter 23:06] (the Act).

Mining royalties were specifically mentioned in Part XIV of the Mines and Minerals Act [Chapter 21:05].

In tax law, section 15(2)(a) of the Income Tax Act is often referred to as the general deduction formula. This is because it is the general provision which underpins all allowable deductions. The other 34 subsequent paragraphs (b) to (ll), unlike the general deduction formula, delineated specific deductions that were allowed a taxpayer under section 15(2).

The specific provision that related to mining operations was section 15(2)(f).

However, in terms of section 15(4) of the Income Tax Act, a taxpayer was obliged to choose a single provision to make its allowable deduction, where such a deduction could be made under more than one provision of the Income Tax Act....,.

The general deduction formula constitutes a catch-all provision for all allowable deductions that are not of a capital nature....,.

Section 15(4) of the Income Tax Act..., provides that:

“(4) Where, in respect of any amount, a deduction would, but for this subsection, be allowable under more than one provision of this Act, and whether it would be so allowable in respect of the same or different years of assessment, the taxpayer shall not be entitled to claim that such amount shall be deducted more than once, and, where the deduction would, but for this subsection, be allowable under more than one provision of this Act in respect of the same year of assessment, the taxpayer shall elect under which one of those provisions he wishes to claim such amount as a deduction.”

Section 15(4) of the Income Tax Act recognizes, that, an allowable deduction can be based on more than one provision of section 15(2) of the Income Tax Act or of any other section of the Act. The only thing that it does is to prevent a taxpayer from double dipping. A taxpayer is precluded by this sub-section from deducting the same amount twice where an allowable deduction can be claimed under two or more provisions of the Income Tax Act.

SSC89-23 : FUNNY MACHIPISA vs NGONI NDUNA N.O. and THE NATIONAL PROSECUTING AUTHORITY
Ruled By: UCHENA JA, MATHONSI JA and CHATUKUTA JA

This is an appeal against the whole judgment of the High Court Harare, dated 6 July 2022, dismissing the appellant's application for the review of the first respondent's refusal to find the appellant not guilty in spite of his having upheld the appellant's exception, taken together with the plea, in ...

BACKGROUND FACTS

The facts giving rise to this appeal are as follows:

The appellant is employed by the City of Harare (“the City Council”) as Deputy Director of Housing and Community Services, and was, at the time of the alleged commission of the offence, the Acting Director of Housing and Community Services when the incumbent was attending a week-long workshop in Kadoma.

In June 2021, he was arraigned before the first respondent, facing a charge of “criminal abuse of duty as a public officer, in contravention of section 174 of the Criminal Law (Codification and Reform) Act [Chapter 9:23]” (the Criminal Law Code).

The allegations levelled against him are that he irregularly and fraudulently allocated non-existent Stands to various persons who had applied for Stands to the City Council but were not yet due for allocation of Stands and some who were not on the City Council's waiting list.

The first objection, taken by way of exception, was taken with the consent of the parties in terms of section 170(2) of the Criminal Procedure and Evidence Act. At that stage, the appellant only objected and did not plead to the charge.

It enabled the first respondent to order the second respondent to amend the charge in terms of section 170(3) of the Criminal Procedure and Evidence Act to which it added an alternative charge of fraud.

The amended charges were read to the appellant, who pleaded and excepted to them, in terms of section 180(4) of the Criminal Procedure and Evidence Act.

In his exception, the appellant pointed out certain irregularities in the amended charges, such as, the failure to specify how he showed favour to the persons he allocated the non-existent Stands to.

The first respondent upheld the exception.

It ordered, that, the trial should proceed on the basis of the charge he ordered the prosecution to amend and prefer against the appellant in terms of section 170(3) of the Criminal Procedure and Evidence Act.

The appellant demanded a verdict of not guilty and an acquittal.

His counsel contended, that, after his exception was upheld, he was entitled to a verdict of not guilty and an acquittal as his plea remained hanging in the air pending the charge the first respondent had ordered the second respondent to amend.

In his submissions on the appellant's demand to be found not guilty and acquitted, the State's counsel conceded, that, the appellant was indeed entitled to a verdict of not guilty.

In his ruling, the first respondent refused to return a verdict of not guilty, as demanded by the appellant, notwithstanding the concession made by the prosecution. He, ruled that:

“Section 170(3) of the Code provides what happens where an exception has been made it (sic) is stated that:

'(3) Any court before which any objection is taken in terms of subsection (1) or (2) may, if it is thought necessary and the accused is not prejudiced as to his defence, cause the indictment, summons or charge to be forthwith amended in the requisite particular by some officer of the court or other person, and thereupon the trial shall proceed as if no such defect had appeared.'

In the event of an exception being upheld, the indictment shall be amended and the trial shall proceed as if no such defect had appeared.”…,.

Aggrieved by the first respondent's refusal to return a verdict of not guilty, the appellant filed an application for review in the court a quo.

The basis of his application is stated in his notice of application, which partly reads as follows:

“Illegality: The decision by the first respondent [in State v Funny Machipisa ACC158/20] not to return a verdict of 'Not Guilty' after upholding the applicant's exception, which exception had been taken in terms of section 180(4) of the Criminal Procedure and Evidence Act [Chapter: 9:07], is illegal as a contravention of section 180(6) of the Criminal Procedure and Evidence Act [Chapter 9:07]. The applicant was entitled, as of right, to a 'Not Guilty' verdict once an exception which he had taken after pleading 'Not Guilty' had been upheld.”

SUBMISSIONS MADE IN THE COURT A QUO

Submissions made by the appellant

In moving for a not-guilty verdict..., counsel for the applicant argued that the first respondent's decision was tainted by either 'gross irregularity' or by being 'clearly wrong.' He contended, that, the not-guilty plea which he tendered inevitably ought to have been followed by a not-guilty verdict. It could not “hang in the air waiting for an amended charge.”

He submitted, that, section 180(6) of the Criminal Procedure and Evidence Act provides that any person who has pleaded is entitled to a verdict. He therefore submitted, that, the first respondent's decision violated that provision and, as such, constituted a gross irregularity.

The applicant's counsel further contended, that, section 180(6) of the Criminal Procedure and Evidence Act should be read together with section 8(b) of the Criminal Procedure and Evidence Act, which makes an acquittal mandatory whenever charges are withdrawn after a plea.

The second respondent's submissions

In countering the appellant's averments, counsel for the second respondent contended, that, there was no irregularity in the first respondent's decision. He submitted, that, the first respondent acted in accordance with the law. He further submitted, that, the first respondent has the discretion to direct the prosecution to amend the charge, among other options.

Counsel for the second respondent further contended, that, an order to amend a charge is an interlocutory ruling.

It is a ruling made in the course of ongoing, uncompleted proceedings, which superior courts do not interfere with except in exceptional circumstances where it would have been established that the lower court committed a gross irregularity or was clearly wrong. He further argued, that, no gross irregularity had been proven in respect of the manner in which the trial court conducted the proceedings, warranting interference by the court a quo.

In spite of his earlier resistance to the application for review, counsel for the second respondent subsequently changed course and conceded, that, the first respondent erred and his decision should be set aside on review.

DETERMINATION OF THE COURT A QUO

After hearing counsel, the court a quo held that it could not interfere with un-terminated proceedings, as there was no justification for such intervention. It did not agree with the submissions of the applicant's and second respondent's counsel, that, the first respondent erred in refusing to find the appellant not guilty.

In arriving at its decision, that the trial court had correctly applied the law, the court a quo said:

“In casu, the pertinent question is, does the first respondent's decision fall into the exceptional category reflecting gross irregularity?

We think not.

An examination of the first respondent's ruling shows, that, he took guidance from the applicable law. To begin with, he exercised the discretion provided for in section 171 of the Criminal Procedure and Evidence Act, where an accused person decides to both plead and except to the charge. Section 171 reads:

'(1) When the accused excepts only and does not plead any plea, the court shall proceed to hear and determine the matter forthwith, and, if the exception is over-ruled, he shall be called upon to plead to the indictment, summons or charge.

(2) When the accused pleads and excepts, together, it shall be in the discretion of the court whether the plea or exception shall be first disposed of.'

…,.

The first respondent exercised his discretion in terms of subsection (2) and dealt with the exception first.

What was he then going to do with the plea of not guilty, which had been tendered together with the exception?

The first respondent was guided by section 170(3), which allows amendment of the indictment summons or charge provided such amendment does not prejudice the accused in his defence.

This section provides as follows:

'(3) Any court before which any objection is taken in terms of subsection (1) or (2) may, if it is thought necessary, and the accused is not prejudiced as to his defence, cause the indictment, summons or charge to be forthwith amended in the requisite particular by some officer of the court or other person, and, thereupon, the trial shall proceed as if no such defect had appeared.'

A significant aspect of the first respondent's ruling is the distinction he draws between the upholding of an exception and the quashing of the charge. These are different courses of action provided for in section 170(1). The accused either excepts to the charge, or…,.”

It further dealt with situations where a superior court can interfere with unterminated proceedings. It stated, that, the test for intervening in un-terminated proceedings is high, as repeatedly emphasized by case law. It found no gross irregularity in the first respondent's ruling, and dismissed the application before it.

Aggrieved, the appellant noted the present appeal on the following grounds:

GROUNDS OF APPEAL

The appellant's grounds of appeal read as follows:

“1. The court a quo improperly exercised its discretion and misdirected itself in finding, that, there was no gross irregularity in the first respondent's refusal to return a verdict of 'Not Guilty' after upholding the appellant's exception to the charge, which exception had been taken in terms of section 180(4) of the Criminal Procedure and Evidence Act [Chapter 9:07].

2. The court a quo erred in law and misdirected itself in not finding, that, the first respondent's refusal to return a verdict of 'Not Guilty' after upholding the appellant's exception to the charge, which exception had been taken in terms of section 180(4) of the Criminal Procedure and Evidence Act [Chapter 9:07], was so clearly wrong as to warrant its review before the termination of proceedings.”

SUBMISSIONS MADE BEFORE THIS COURT

Appellant's submissions

Counsel for the appellant submitted, that, both parties agreed, before the trial court, that, the appellant was entitled to a verdict of not guilty after the exception was upheld. It was further submitted that the first respondent refused to return a verdict of not guilty, notwithstanding the concession made by the second respondent, resulting in the appellant's application for review before the court a quo.

He submitted, that, in terms of section 180(6) of the Criminal Procedure and Evidence Act, any person who has pleaded to a charge is entitled to a verdict, and that, after upholding the exception, the trial court ought to have returned a verdict of 'Not Guilty' as had been pleaded.

He further submitted, that, the court a quo was not clear in its approach to reviewing un-terminated proceedings in that it should have first asked itself whether the appellant established the grounds of review.

He also argued, that, if review grounds exist, it ought to have questioned the degree to which the grounds of review had been established. He submitted that the court a quo did not render a decision on this issue.

He further submitted, that, if one pleads 'Not Guilty' and the charge is thrown out, one remains not guilty and proceedings should come to an end at that stage.

He argued, that, the trial court had no authority to amend the charge, in view of the fact, that, the exception was taken, together with the plea, in terms of section 180(4) of the Criminal Procedure and Evidence Act.

Counsel for the appellant also contended, that, section 171(2) of the Criminal Procedure and Evidence Act gives the court discretion on what it can dispose of first when an accused person pleads and excepts at the same time.

He submitted that the court a quo has jurisdiction to review unterminated proceedings, and the court ought to take a two-staged approach in such circumstances, which are:

1. It must ask itself, has the appellant established the grounds of review?

2. If the grounds for review exist, it should ask itself a second question, have the grounds been established to the required degree?

In respect of the above questions, counsel for the appellant argued, that, the court a quo erred when it held that there was no irregularity in the proceedings before the first respondent.

He further emphasised, that, if one pleads not guilty and the charge is thrown out, one remains not guilty at that stage. He argued that proceedings should come to an end at that stage and that the State should start a fresh action.

He argued, that, the first respondent had no authority to order an amendment after the exception had been taken together with the plea. He argued that a plea of 'Not Guilty' cannot hang in the air.

He contended that the discretion must be exercised in a way that disposes of the matter.

Submissions by the second respondent

Conversely, counsel for the second respondent submitted, that, there was no gross misdirection as the court a quo exercised its discretion judiciously.

She submitted, that, since the appellant pleaded and excepted to the charges at the same time, section 171(2) of the Criminal Procedure and Evidence Act allows the court discretion on which to dispose of first, between the plea and the exception.

She further submitted, that, the discretion was properly exercised in moving for an amendment of the charge in terms of section 170(3) of the Criminal Procedure and Evidence Act - after upholding the exception.

STAY OF PROCEEDINGS IN THE TRIAL COURT

At the end of their submissions, the parties applied for the stay of proceedings in the Magistrates Court until judgment in this case is handed down.

We agreed with the parties and ordered that the proceedings before the trial court be stayed pending the determination of this appeal.

SUPPLEMENTARY HEADS

During the preparation of this judgment, it became apparent to the court that there was need to give the parties an opportunity to make submissions on the interpretation of section 170(2) and (3) of the Criminal Procedure and Evidence Act, on the issue of whether or not it was competent for the first respondent to order the amendment of the charge when the appellant had pleaded and excepted in terms of section 180(4) of the Criminal Procedure and Evidence Act.

The need arose as this Court has to determine whether or not the first respondent could lawfully invoke the provisions of section 170(3) of the Criminal Procedure and Evidence Act, after upholding the appellant's exception, taken together with the plea of 'Not Guilty' in terms of section 180(4) of the Criminal Procedure and Evidence Act.

That issue had not been adequately covered by the parties at the hearing of the appeal.

Appellant's Supplementary Heads

In his supplementary heads, counsel for the appellant submitted, that, section 170(2) of the Criminal Procedure and Evidence Act does not arise because it only deals with objections and not exceptions. He further submitted, that, the appellant pleaded and excepted in terms of section 180(4) of the Criminal Procedure and Evidence Act. He submitted that section 170 of the Criminal Procedure and Evidence Act has a very restricted scope as it only applies to objections that attack “formal defects apparent on the face of the charge.”

He submitted, that, what the appellant raised were not formal defects apparent on the face of the charge, but were objections which went to the root of the charge.

He stressed, that, the exception the appellant raised, in terms of section 180(1) of the Criminal Procedure and Evidence Act, was an attack on the ground that the charge did not disclose the offence in question.

Second Respondent's Supplementary Heads

In her supplementary heads, counsel for the second respondent confirmed that the appellant pleaded and excepted in terms of section 180(4) of the Criminal Procedure and Evidence Act.

Contrary to her earlier concession, in paragraphs 7 and 9 of her supplementary heads, the second respondent's counsel argued that the appellant wrongfully pleaded and excepted to the charge in terms of section 170(2) of the Criminal Procedure and Evidence Act.

She, on that basis, prayed for the dismissal of the appellant's appeal.

ISSUES FOR DETERMINATION

The issues which fall for determination are:

1. Whether or not, in view of the provisions of section 170(3) of the Criminal Procedure and Evidence Act, it is competent for a Magistrate, after taking a plea and an exception at the same time, other than in terms of section 170(2) of the Criminal Procedure and Evidence Act, and upholding the exception, to thereafter order the prosecution to amend the charge in terms of section 170(3) of the Criminal Procedure and Evidence Act.

2. Whether, in view of the provisions of section 180(1) of the Criminal Procedure and Evidence Act, the appellant could competently except and plead in terms of section 180(4) of the Criminal Procedure and Evidence Act.

3. Whether or not the court a quo erred in finding, that, there was no gross irregularity or illegality in the first respondent's upholding of the appellant's exception and plea together, and ordering the second respondent to amend the charge in terms of section 170(3) of the Criminal Procedure and Evidence Act.

THE LAW

The first and second issues which arise for determination in this case call for the interpretation of the legal framework governing objections and exceptions taken to charges by accused persons in terms of section 170(2) and (3), 171(1) and (2) and section 180(1) and (4) of the Criminal Procedure and Evidence Act.

Objections and exceptions are provided for by section 170(1) to (3), section 171(1) and (2), and section 180(1) and (4) of the Criminal Procedure and Evidence Act.

Section 170(1) to (3) of the Criminal Procedure and Evidence Act provides for objections by way of exceptions as follows:

“(1) Any objection to an indictment for any formal defect apparent on the face thereof shall be taken by exception or by application to quash such indictment before the accused has pleaded, but not afterwards.

(2) Any objection to a summons or charge for any formal defect apparent on the face thereof which is to be tried by a magistrates court shall be taken by exception before the accused has pleaded, but not afterwards.

(3) Any court before which any objection is taken in terms of subsection (1) or (2) may, if it is thought necessary and the accused is not prejudiced as to his defence, cause the indictment, summons or charge to be forthwith amended in the requisite particular by some officer of the court or other person, and thereupon the trial shall proceed as if no such defect had appeared.”...,.

Section 170(1) of the Criminal Procedure and Evidence Act applies to objections in the High Court. It does not apply to the Magistrate's Court. The Magistrates Court is excluded by the use of the word “indictment” which only applies to the High Court.

Section 136 of the Criminal Procedure and Evidence Act confines an indictment to the High Court as follows:

“(1) When a person charged with an offence has been committed for trial or sentence, and it is intended to prosecute him before the High Court, the charge shall be in writing in a document called an indictment.”…,.

Section 170(2) of the Criminal Procedure and Evidence Act, which applies to objections in the Magistrates Court, does not allow an accused person to plead and except at the same time. It only allows the accused to except to the charge before he pleads to it.

It is therefore incompetent for an accused to plead and except to a charge in terms of section 170(2) of the Criminal Procedure and Evidence Act.

Section 170(3) of the Criminal Procedure and Evidence Act can only be invoked when an objection has been taken in terms of section 170(1) or (2) of the Criminal Procedure and Evidence Act. When no objection has been taken in terms of section 170(1) or (2), a court cannot invoke the provisions of section 170(3) of the Criminal Procedure and Evidence Act.

The use of the words “any court before which any objection is taken in terms of subsection (1) or (2) may” limits the court's authority to order an amendment of a charge or indictment to situations where an objection, in terms of an exception, would have been made in terms of section 170(1) or (2). That authority cannot be exercised without it first having been triggered by the provisions of section 170(1) or (2) of the Criminal Procedure and Evidence Act.

Section 171 of the Criminal Procedure and Evidence Act reads:

“(1) When the accused excepts only and does not plead any plea, the court shall proceed to hear and determine the matter forthwith, and, if the exception is overruled, he shall be called upon to plead to the indictment, summons or charge.

(2) When the accused pleads and excepts, together, it shall be in the discretion of the court whether the plea or exception shall be first disposed of.”

In terms of section 171(2) of the Criminal Procedure and Evidence Act, a court can exercise its discretion on which to dispose of first, the exception or the plea.

After determining the exception first, and upholding it, a court cannot exercise its discretion in terms of section 170(3) of the Criminal Procedure and Evidence Act, because, section 170(3) can only be resorted to after determining an objection in terms of either section 170(1) or (2) of the Criminal Procedure and Evidence Act.

Section 180(1), (4) and (6) of the Criminal Procedure and Evidence Act provides as follows:

“(1) If the accused does not object that he has not been duly served with a copy of the indictment, summons, or charge or apply to have it quashed under section one hundred and seventy-eight, he shall either plead to it or except to it on the ground that it does not disclose any offence cognizable by the court.

(2)…,.

(3)…,.

(4) The accused may plead and except together.

(5)…,.

(6) Any person who has been called upon to plead to any indictment, summons or charge shall, except as is otherwise provided in this Act or in any other enactment, be entitled to demand that he be either acquitted or found guilty by the judge or magistrate before whom he pleaded:”...,.

Section 180(1) of the Criminal Procedure and Evidence Act provides, that, an accused shall either plead to or except to a charge on the ground that it does not disclose any offence cognisable by the court. This means, an accused who has been served with a copy of the indictment, summons or charge, shall either plead or except the charge on the ground that it does not disclose any offence cognisable by the court.

The use of the word “shall” and as emphasized by the use of the word “either” in the same sentence means an accused who excepts because the charge is not cognisable by the court can only except. He cannot except and plead at the same time.

He can only take one of the two options provided by section 180(1) of the Criminal Procedure and Evidence Act.

Section 180(4) of the Criminal Procedure and Evidence Act allows an accused to plead and except together. It however does so permissively by using the word “may” as opposed to the mandatory provisions of section 180(1) which provides that an accused shall either plead or except to the charge.

It must also be stated, that, the use of the word “may” in section 180(4) of the Criminal Procedure and Evidence Act cannot be read to give a right contrary to the mandatory provisions of section 180(1).

A plea of not guilty or guilty, in terms of section 180(2) of the Criminal Procedure and Evidence Act, can only be entered by an accused who accepts, that, the charge discloses an offence cognisable by the court.

If the accused believes that the charge is not cognisable by the court, he does not plead to it. He should except to it.

Section 180(6) of the Criminal Procedure and Evidence Act entitles an accused who has pleaded, except as is otherwise provided in this Act or in any other enactment, to demand that he be either acquitted or be found guilty by the judge or magistrate before whom he pleaded.

The use of the words “except as is otherwise provided in this Act or in any other enactment be entitled” means an accused can only demand and be granted a verdict if there is no other provision in this Act, or any other enactment, on which the trial can proceed bearing in mind the circumstances of each case.

The prosecution can, in response, agree or disagree with the accused's demand.

If it disagrees, it must point out the law which provides for the procedure in terms of this Act or any other enactment in terms of which the court must act in determining whether or not to grant the accused's demand for a verdict. In the absence of such procedure which applies in the circumstances of an accused, in terms of this Act or any other enactment, the accused will be entitled to a verdict.

It must be stressed, that, if there is no justification for granting a verdict, the court should order that the trial must proceed...,.

1. Whether or not, in view of the provisions of section 170(3) of the Criminal Procedure and Evidence Act, it is competent for a Magistrate, after taking a plea and an exception at the same time, other than in terms of section 170(2,) and upholding the exception, to thereafter order the prosecution to amend the charge in terms of section 170(3) of the Criminal Procedure and Evidence Act

The first objection/exception, on the basis of which the original charge was amended, was with the consent of the parties. The charge was correctly amended because the parties had consented to an objection being taken before plea, in terms of section 170(2) of the Criminal Procedure and Evidence Act.

It entitled the first respondent to lawfully order the amendment of the charge in terms of section 170(3) of the Criminal Procedure and Evidence Act.

After the charge had been amended, the appellant pleaded 'Not Guilty' and excepted to it. The exception and plea were allegedly taken in terms of section 180(4) of the Criminal Procedure and Evidence Act.

As already explained under the analysis of the law, section 170(3) of the Criminal Procedure and Evidence Act does not apply to circumstances other than when an objection will have been taken before the court in terms of section 170(1) and (2) of the Criminal Procedure and Evidence Act.

This issue is answered by the law.

The court a quo therefore erred when it held, that, the first respondent correctly ordered the prosecution to amend the charge in terms of section 170(3) of the Criminal Procedure and Evidence Act.

2. Whether, in view of the provisions of section 180(1) of the Criminal Procedure and Evidence Act, the appellant could competently except and plead in terms of section 180(4)

The appellant allegedly excepted and pleaded in terms of section 180(4) of the Criminal Procedure and Evidence Act.

I say allegedly because the appellant took the exception and plea on the basis, that, the charge did not disclose an offence cognizable by the court. That places the appellant's exception under the provisions of section 180(1) of the Criminal Procedure and Evidence Act.

In paragraph 6 of his supplementary heads, counsel for the appellant said:

“In this case, it was an exception, as the attack was on the ground that the charge did not disclose the offence in question. This sort of exception is permitted by section 180(1) of the Criminal Procedure and Evidence Act [Chapter 9:07].”

Once it is established, that, such an exception falls under section 180(1) of the Criminal Procedure and Evidence Act it cannot be taken together with the plea.

The appellant's exception and plea, together, in circumstances where the exception should have been taken in terms of section 180(1) of the Criminal Procedure and Evidence Act is incompetent because they were made contrary to the provisions of the law.

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Law Portal
Zimbabwe

Rules of Construction or Interpretation re: Proviso, Severable or Stand Alone Provisions and In Pari Materia Principle

CC06-15 : ANNA CHIHAVA and BOAS MAPUVA and ZISHE CHIZANI vs THE PROVINCIAL MAGISTRATE FRANCIS MAPFUMO N.O. and THE PROSECUTOR GENERAL
Ruled By: CHIDYAUSIKU CJ, MALABA DCJ, ZIYAMBI JCC, GWAUNZA JCC, GARWE JCC, GOWORA JCC, HLATSHWAYO JCC, GUVAVA JCC and CHIWESHE AJCC

View Appeal
SC54-18 : CITY OF HARARE vs FARAI MUSHORIWA
Ruled By: PATEL JA, UCHENA JA and ZIYAMBI AJA

HH37-08 : MOVEMENT FOR DEMOCRATIC CHANGE and MORGAN TSVANGIRAI vs CHAIRPERSON, ZIMBABWE ELECTORAL COMMISSION and CHIEF ELECTIONS OFFICER, ZIMBABWE ELECTORAL COMMISSION
Ruled By: UCHENA J

View Appeal
HH768-15 : NAVAL PHASE FARMING PL and BEACH FARMS PL and TAWANDA NYAMBIRAI vs MINISTER OF LANDS AND RURAL RESETTLEMENT and BERNARD MAKOKOVE and STEPHEN CHIURAYI and MALVERN DZVAIRO
Ruled By: CHIGUMBA J

Appealed
HH591-18 : CAINOS CHINGOMBE and TENDAI KWENDA vs CITY OF HARARE and MINISTER OF LOCAL GOVERNMENT, PUBLIC WORKS AND NATIONAL HOUSING and HOSEA CHISANGO N.O. and GEORGE MAKINGS N.O. and CHENAI GUMIRO N.O.
Ruled By: MATHONSI J

View Appeal
SC177-20 : CAINOS CHINGOMBE and TENDAI KWENDA vs CITY OF HARARE and MINISTER OF LOCAL GOVERNMENT, PUBLIC WORKS AND NATIONAL HOUSING and HOSEA CHISANGO N.O. and GEORGE MAKINGS N.O. and CHENAI GUMIRO N.O.
Ruled By: GOWORA JA, GUVAVA JA and MAKONI JA

View Appeal
SC161-20 : STANLEY NHARI vs ROBERT MUGABE and DR GRACE MUGABE and GUSHUNGO DAIRY HOLDINGS (PVT) LTD
Ruled By: GARWE JA, MAVANGIRA JA and MAKONI JA

HH74-16 : TRIANGLE LTD and HIPPO VALLEY ESTATES LTD and MKWASINE ESTATE and THE ZIMBABAWE SUGAR ASSOCIATION EXPERIMENT STATION (PVT) LTD vs ZIMBABWE SUGAR MILLING INDUSTRY WORKERS' UNION and OTHERS
Ruled By: MAKONI J

HH842-19 : BARIADIE INVESTMENTS (PVT) LTD vs PUWAYI CHIUTSI and TENDAI MASHAMHANDA and REGISTRAR OF DEEDS and SHERIFF OF THE HIGH COURT OF ZIMBABWE N.O. and ELLIOT ROGERS
Ruled By: CHITAPI J

SC140-21 : MBCA BANK (PRIVATE) LIMITED (Now known as Nedbank Zimbabwe Limited) vs ZIMBABWE REVENUE AUTHORITY
Ruled By: GUVAVA JA, UCHENA JA and MAKONI JA

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

CC13-23 : PATRICIA DENGEZI vs MUNYARADZI NYAMURURU and XOLISAN MOYO and CHAMPIONS INSURANCE COMPANY LTD and COMMISSIONER GENERAL OF POLICE and MINISTER OF HOME AFFAIRS
Ruled By: MALABA CJ, GWAUNZA DCJ, GARWE JCC, MAKARAU JCC, GOWORA JCC, HLATSHWAYO JCC and PATEL JCC

View Appeal
SC84-22 : TN HARLEQUIN LUXAIRE LTD vs MBERIKUNASHE MASVIMBO and 14 OTHERS
Ruled By: GARWE JA, HLATSHWAYO JA and GUVAVA JA

SSC01-14 : TELECEL ZIMBABWE (PRIVATE) LIMITED vs ATTORNEY- GENERAL OF ZIMBABWE N.O.
Ruled By: ZIYAMBI JA, GARWE JA and PATEL JA

HH11-13 : FLORENCE SIGUDU vs MINISTER OF LANDS AND RURAL RESETTLEMENT N.O. and PHINEAS CHIHOTA
Ruled By: PATEL J

HH707-15 : RICHARD MATTHEWS vs CRASTER INTERNATIONAL (PRIVATE) LIMITED
Ruled By: MAFUSIRE J

SC23-24 : EDWARD MUDYAVANHU vs CAIRNS FOODS LIMITED
Ruled By: MAKONI JA, MATHONSI JA and CHATUKUTA JA

SC38-23 : SOUTH AFRICAN AIRWAYS LIMITED vs MINISTER OF ENVIRONMENT, WATER AND CLIMATE and CIVIL AVIATION AUTHORITY OF ZIMBABWE
Ruled By: MATHONSI JA, KUDYA JA and MUSAKWA JA

SC85-23 : ZIMBABWE REVENUE AUTHORITY vs MUROWA DIAMONDS (PRIVATE) LIMITED
Ruled By: UCHENA JA, KUDYA JA and MWAYERA JA

SSC89-23 : FUNNY MACHIPISA vs NGONI NDUNA N.O. and THE NATIONAL PROSECUTING AUTHORITY
Ruled By: UCHENA JA, MATHONSI JA and CHATUKUTA JA

Categories

Law Portal Zimbabwe

Rules of Construction or Interpretation re: Proviso, Severable or Stand Alone Provisions and In Pari Materia Principle

CC06-15 : ANNA CHIHAVA and BOAS MAPUVA and ZISHE CHIZANI vs THE PROVINCIAL MAGISTRATE FRANCIS MAPFUMO N.O. and THE PROSECUTOR GENERAL Ruled By: CHIDYAUSIKU CJ, MALABA DCJ, ZIYAMBI JCC, GWAUNZA JCC, GARWE JCC, GOWORA JCC, HLATSHWAYO JCC, GUVAVA JCC and CHIWESHE AJCC

View Appeal SC54-18 : CITY OF HARARE vs FARAI MUSHORIWA Ruled By: PATEL JA, UCHENA JA and ZIYAMBI AJA

HH37-08 : MOVEMENT FOR DEMOCRATIC CHANGE and MORGAN TSVANGIRAI vs CHAIRPERSON, ZIMBABWE ELECTORAL COMMISSION and CHIEF ELECTIONS OFFICER, ZIMBABWE ELECTORAL COMMISSION Ruled By: UCHENA J

View Appeal HH768-15 : NAVAL PHASE FARMING PL and BEACH FARMS PL and TAWANDA NYAMBIRAI vs MINISTER OF LANDS AND RURAL RESETTLEMENT and BERNARD MAKOKOVE and STEPHEN CHIURAYI and MALVERN DZVAIRO Ruled By: CHIGUMBA J

Appealed HH591-18 : CAINOS CHINGOMBE and TENDAI KWENDA vs CITY OF HARARE and MINISTER OF LOCAL GOVERNMENT, PUBLIC WORKS AND NATIONAL HOUSING and HOSEA CHISANGO N.O. and GEORGE MAKINGS N.O. and CHENAI GUMIRO N.O. Ruled By: MATHONSI J

View Appeal SC177-20 : CAINOS CHINGOMBE and TENDAI KWENDA vs CITY OF HARARE and MINISTER OF LOCAL GOVERNMENT, PUBLIC WORKS AND NATIONAL HOUSING and HOSEA CHISANGO N.O. and GEORGE MAKINGS N.O. and CHENAI GUMIRO N.O. Ruled By: GOWORA JA, GUVAVA JA and MAKONI JA

View Appeal SC161-20 : STANLEY NHARI vs ROBERT MUGABE and DR GRACE MUGABE and GUSHUNGO DAIRY HOLDINGS (PVT) LTD Ruled By: GARWE JA, MAVANGIRA JA and MAKONI JA

HH74-16 : TRIANGLE LTD and HIPPO VALLEY ESTATES LTD and MKWASINE ESTATE and THE ZIMBABAWE SUGAR ASSOCIATION EXPERIMENT STATION (PVT) LTD vs ZIMBABWE SUGAR MILLING INDUSTRY WORKERS' UNION and OTHERS Ruled By: MAKONI J

HH842-19 : BARIADIE INVESTMENTS (PVT) LTD vs PUWAYI CHIUTSI and TENDAI MASHAMHANDA and REGISTRAR OF DEEDS and SHERIFF OF THE HIGH COURT OF ZIMBABWE N.O. and ELLIOT ROGERS Ruled By: CHITAPI J

SC140-21 : MBCA BANK (PRIVATE) LIMITED (Now known as Nedbank Zimbabwe Limited) vs ZIMBABWE REVENUE AUTHORITY Ruled By: GUVAVA JA, UCHENA JA and MAKONI JA

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

CC13-23 : PATRICIA DENGEZI vs MUNYARADZI NYAMURURU and XOLISAN MOYO and CHAMPIONS INSURANCE COMPANY LTD and COMMISSIONER GENERAL OF POLICE and MINISTER OF HOME AFFAIRS Ruled By: MALABA CJ, GWAUNZA DCJ, GARWE JCC, MAKARAU JCC, GOWORA JCC, HLATSHWAYO JCC and PATEL JCC

View Appeal SC84-22 : TN HARLEQUIN LUXAIRE LTD vs MBERIKUNASHE MASVIMBO and 14 OTHERS Ruled By: GARWE JA, HLATSHWAYO JA and GUVAVA JA

SSC01-14 : TELECEL ZIMBABWE (PRIVATE) LIMITED vs ATTORNEY- GENERAL OF ZIMBABWE N.O. Ruled By: ZIYAMBI JA, GARWE JA and PATEL JA

HH11-13 : FLORENCE SIGUDU vs MINISTER OF LANDS AND RURAL RESETTLEMENT N.O. and PHINEAS CHIHOTA Ruled By: PATEL J

HH707-15 : RICHARD MATTHEWS vs CRASTER INTERNATIONAL (PRIVATE) LIMITED Ruled By: MAFUSIRE J

SC23-24 : EDWARD MUDYAVANHU vs CAIRNS FOODS LIMITED Ruled By: MAKONI JA, MATHONSI JA and CHATUKUTA JA

SC38-23 : SOUTH AFRICAN AIRWAYS LIMITED vs MINISTER OF ENVIRONMENT, WATER AND CLIMATE and CIVIL AVIATION AUTHORITY OF ZIMBABWE Ruled By: MATHONSI JA, KUDYA JA and MUSAKWA JA

SC85-23 : ZIMBABWE REVENUE AUTHORITY vs MUROWA DIAMONDS (PRIVATE) LIMITED Ruled By: UCHENA JA, KUDYA JA and MWAYERA JA

SSC89-23 : FUNNY MACHIPISA vs NGONI NDUNA N.O. and THE NATIONAL PROSECUTING AUTHORITY Ruled By: UCHENA JA, MATHONSI JA and CHATUKUTA JA

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Law Portal
Zimbabwe

CC06-15 : ANNA CHIHAVA and BOAS MAPUVA and ZISHE CHIZANI vs THE PROVINCIAL MAGISTRATE FRANCIS MAPFUMO N.O. and THE PROSECUTOR GENERAL
Ruled By: CHIDYAUSIKU CJ, MALABA DCJ, ZIYAMBI JCC, GWAUNZA JCC, GARWE JCC, GOWORA JCC, HLATSHWAYO JCC, GUVAVA JCC and CHIWESHE AJCC

View Appeal
SC54-18 : CITY OF HARARE vs FARAI MUSHORIWA
Ruled By: PATEL JA, UCHENA JA and ZIYAMBI AJA

HH37-08 : MOVEMENT FOR DEMOCRATIC CHANGE and MORGAN TSVANGIRAI vs CHAIRPERSON, ZIMBABWE ELECTORAL COMMISSION and CHIEF ELECTIONS OFFICER, ZIMBABWE ELECTORAL COMMISSION
Ruled By: UCHENA J

View Appeal
HH768-15 : NAVAL PHASE FARMING PL and BEACH FARMS PL and TAWANDA NYAMBIRAI vs MINISTER OF LANDS AND RURAL RESETTLEMENT and BERNARD MAKOKOVE and STEPHEN CHIURAYI and MALVERN DZVAIRO
Ruled By: CHIGUMBA J

Appealed
HH591-18 : CAINOS CHINGOMBE and TENDAI KWENDA vs CITY OF HARARE and MINISTER OF LOCAL GOVERNMENT, PUBLIC WORKS AND NATIONAL HOUSING and HOSEA CHISANGO N.O. and GEORGE MAKINGS N.O. and CHENAI GUMIRO N.O.
Ruled By: MATHONSI J

View Appeal
SC177-20 : CAINOS CHINGOMBE and TENDAI KWENDA vs CITY OF HARARE and MINISTER OF LOCAL GOVERNMENT, PUBLIC WORKS AND NATIONAL HOUSING and HOSEA CHISANGO N.O. and GEORGE MAKINGS N.O. and CHENAI GUMIRO N.O.
Ruled By: GOWORA JA, GUVAVA JA and MAKONI JA

View Appeal
SC161-20 : STANLEY NHARI vs ROBERT MUGABE and DR GRACE MUGABE and GUSHUNGO DAIRY HOLDINGS (PVT) LTD
Ruled By: GARWE JA, MAVANGIRA JA and MAKONI JA

HH74-16 : TRIANGLE LTD and HIPPO VALLEY ESTATES LTD and MKWASINE ESTATE and THE ZIMBABAWE SUGAR ASSOCIATION EXPERIMENT STATION (PVT) LTD vs ZIMBABWE SUGAR MILLING INDUSTRY WORKERS' UNION and OTHERS
Ruled By: MAKONI J

HH842-19 : BARIADIE INVESTMENTS (PVT) LTD vs PUWAYI CHIUTSI and TENDAI MASHAMHANDA and REGISTRAR OF DEEDS and SHERIFF OF THE HIGH COURT OF ZIMBABWE N.O. and ELLIOT ROGERS
Ruled By: CHITAPI J

SC140-21 : MBCA BANK (PRIVATE) LIMITED (Now known as Nedbank Zimbabwe Limited) vs ZIMBABWE REVENUE AUTHORITY
Ruled By: GUVAVA JA, UCHENA JA and MAKONI JA

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

CC13-23 : PATRICIA DENGEZI vs MUNYARADZI NYAMURURU and XOLISAN MOYO and CHAMPIONS INSURANCE COMPANY LTD and COMMISSIONER GENERAL OF POLICE and MINISTER OF HOME AFFAIRS
Ruled By: MALABA CJ, GWAUNZA DCJ, GARWE JCC, MAKARAU JCC, GOWORA JCC, HLATSHWAYO JCC and PATEL JCC

View Appeal
SC84-22 : TN HARLEQUIN LUXAIRE LTD vs MBERIKUNASHE MASVIMBO and 14 OTHERS
Ruled By: GARWE JA, HLATSHWAYO JA and GUVAVA JA

SSC01-14 : TELECEL ZIMBABWE (PRIVATE) LIMITED vs ATTORNEY- GENERAL OF ZIMBABWE N.O.
Ruled By: ZIYAMBI JA, GARWE JA and PATEL JA

HH11-13 : FLORENCE SIGUDU vs MINISTER OF LANDS AND RURAL RESETTLEMENT N.O. and PHINEAS CHIHOTA
Ruled By: PATEL J

HH707-15 : RICHARD MATTHEWS vs CRASTER INTERNATIONAL (PRIVATE) LIMITED
Ruled By: MAFUSIRE J

SC23-24 : EDWARD MUDYAVANHU vs CAIRNS FOODS LIMITED
Ruled By: MAKONI JA, MATHONSI JA and CHATUKUTA JA

SC38-23 : SOUTH AFRICAN AIRWAYS LIMITED vs MINISTER OF ENVIRONMENT, WATER AND CLIMATE and CIVIL AVIATION AUTHORITY OF ZIMBABWE
Ruled By: MATHONSI JA, KUDYA JA and MUSAKWA JA

SC85-23 : ZIMBABWE REVENUE AUTHORITY vs MUROWA DIAMONDS (PRIVATE) LIMITED
Ruled By: UCHENA JA, KUDYA JA and MWAYERA JA

SSC89-23 : FUNNY MACHIPISA vs NGONI NDUNA N.O. and THE NATIONAL PROSECUTING AUTHORITY
Ruled By: UCHENA JA, MATHONSI JA and CHATUKUTA JA