Proof of Service, Return of Service, Address and Manner of Service re: Administrative Process & Acknowledgement of Receipt

HH63-16 : ASWEL NYANZARA vs MBADA DIAMONDS (PRIVATE) LIMITED
Ruled By: CHITAPI J

The applicant is a former employee of the respondent. He was employed in the position of Asset Protection Officer.

On 11 November 2014, the applicant was served with a notice to terminate his employment with the respondent. The notice period which the applicant was given was three (3) months effective from 11 November 2014, to be served from home i.e. the applicant was not to report for work but would nonetheless be paid his salary.

In the aforesaid notice to terminate the applicant's employment contract the respondent stated:

“…, the corporate hereby undertakes to pay the notice period and all outstanding payments due to you on a monthly basis spreading over a period of four months through the corporate's payroll until all such is extinguished in full. These payments shall be made subject to such statutory deductions as are applicable. A statement of account denoting how much you are entitled to shall be availed to you by the 30th November 2014. Kindly approach the human resources department for your termination clearances and statement of account, and affix your signature to the tear off below to signal your receipt of this letter…,.”

The letter of notice was delivered upon the applicant who refused to sign the tear off slip.

Nothing turns upon the applicant's refusal to sign the tear off slip because the validity of the termination being a unilateral act by the respondent (employer) would not require acceptance by the applicant (employee) through signing the letter.

It is sufficient for its validity that the letter was conveyed upon the applicant....,.

By letter dated 29 November 2014, the respondent wrote to the applicant setting out the amounts which it acknowledged to be owing by it to the applicant....,.

As with the letter of termination of employment on notice, which the applicant refused to sign, he also did not sign the letter setting out the statement of account....,.

The applicant attributes his failure to sign the letter to the fact that he is a layman and thought it unnecessary to sign the copy...,.

Although the respondent appears to take issue with the failure by the applicant to sign the statement of account in acknowledgment, it is, in my view, a matter or omission of no great moment because the authenticity of annexure 'C' is common cause between the parties.

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

At the hearing of this matter the plaintiff Bank was in default.

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

At the pre-trial conference it was declared that this matter be referred to trial as a Stated Case. The agreed facts were as follows;

1. On 14 February 1992, the plaintiff and African Savanna Touring (Pvt) Ltd entered into an agreement in terms of which the plaintiff lent to African Savanna the sum of Pound Sterling 102,063= which sum was repayable on certain terms and conditions which are not mentioned in the instant case.

2. By way of written guarantee dated 27 August 1992, the defendant guaranteed the indebtedness of African Savanna Touring in an amount not exceeding Z$600,000=.

3. African Savanna Touring having breached the agreement entered into between itself and the plaintiff; the plaintiff instituted legal proceedings and obtained judgment in the sum of Z$2,300,743=90. This judgment remains unsatisfied.

4. By way of letter dated 21 June 1994, the defendant gave the plaintiff notice of termination of the said guarantee with effect from 21 July 1994.

5. On 11 October 1994, Northridge (Private) Limited (Insurance Agents), representing African Savannah Touring Company, wrote to the plaintiff requesting a copy of the old Financial Guarantee Bond 6260327187.

6. By way of letter dated 20 October 1994, the plaintiff forwarded to Northwood (Private) Ltd a copy of the guarantee. The plaintiff retained the original guarantee.

The plaintiff sues the defendant for payment of the sums indicated in the guarantee in satisfaction of the judgment it obtained against African Savanna Touring. The plaintiff contends that as the guarantee is a guarantee in respect of only one transaction, and not a continuing guarantee, the defendant was not entitled, at law, to withdraw from the said guarantee and is therefore liable to effect payment.

On the other hand, the defendant contends that it was entitled, as of law, to withdraw from the said agreement and that even if it was not, the plaintiff, in any event, accepted the defendant's termination of the suretyship. Further, the defendant contends that, in any event, the plaintiff's claim is prescribed.

At the pre-trial conference, the parties adopted the following issues:

1. Was the defendant entitled, at law, to terminate the guarantee on notice?

2. Did the plaintiff accept the termination?

3. Has the plaintiff's claim prescribed?

The guarantee under consideration relates to a single transaction. As such, at law, the defendant cannot resile from the arrangement.

In Lennard Clothing Manufacturing (Pvt) Ltd v Van Rhyn Interiors (Pvt) Ltd 1974 (1) RLR 207 the principle was established that where the obligation of a guarantor relates to a single contract, such guarantee cannot be terminated upon due notice. The answer to the first issue, therefore, is that, at law, the defendant was not entitled to terminate the guarantee.

The guarantee was for an indefinite period. In other words, it would hold for as long as the plaintiff remained indebted. For that reason, the question of prescription cannot arise. In my view, the third issue must therefore be decided in favour of the plaintiff; namely, that the guarantee could not have prescribed.

However, the plaintiff would appear to have accepted the cancellation of the guarantee and must therefore be held to have waived any rights he might have legally exercised in enforcing the same.

The letter of termination, dated 21 June 1994, was forwarded to the applicant, and, it would appear, was received by them on 23 June 1994, as evidenced by their date stamp that appears on a photocopy of that letter.

In addition, the applicants were duly advised by their agents, Northridge Insurance Agents, of the cancellation. The plaintiff's conduct, in not challenging the purported cancellation, and, indeed, in returning the old guarantee, which had been requested as a result of the purported cancellation, indicates that they had indeed accepted the fact of cancellation.

It was for these reasons that judgment was granted in favour of the defendant with costs.

HH298-17 : ZAMBE NYIKA GWASIRA vs MAXWELL SIBANDA and N.Z. INDUSTRIAL & MINING SUPPLIES and REGISTRAR OF DEEDS and SHERIFF OF ZIMBABWE
Ruled By: MATANDA-MOYO J

This is a chamber application for dismissal of an application for stay of execution for want of prosecution in terms of section 236(3)(b) of the High Court Rules, 1971.

The first respondent filed an application for stay of execution pending the determination of an application for rescission on 18 November 2016 - case no. HC11759/16 refers. The applicant filed a notice of opposition on 1 December 2016: such notice of opposition was served upon the first respondent the same day.

On 25 January 2017 the applicant filed this application.

After receiving the application for dismissal, the first respondent immediately filed answering affidavits and heads of argument in case HC11759/16. That main matter was set down for hearing.

It was at such hearing that the court was advised of the existence of this present application.

The parties agreed that this current application be referred to me for determination before dealing with the application for stay of execution.

Rule 236(3) of the High Court Rules provides;

“Where the respondent has filed a notice of opposition and an opposing affidavit, and, within one month thereafter, the applicant has neither filed an answering affidavit nor set the matter down for hearing, the respondent, on notice to the applicant, may either -

(a) Set the matter down for hearing in terms of Rule 223; or

(b) Make a chamber application to dismiss the matter for want of prosecution, and the judge may order the matter to be dismissed with costs or make such other order on such terms as he thinks fit.

(c)…,.”

From a reading of the above it is clear that a judge has a wide discretion in a matter for want of prosecution in deciding whether to dismiss or not. The remedy is not available on asking.

Obviously, this Rule is designed to ensure that there is finality to litigation.

This Rule serves to ensure, that, once a litigant has instituted proceedings by way of application, matters are swiftly disposed. The Rule is meant to ensure that litigants are serious in the disposal of their application brought before the court. Matters must not be left stagnant before the court.

A respondent to the application has a choice to either set the matter down for hearing or to apply for its dismissal.

The respondent herein opted for dismissal.

As reiterated above, whether to grant the application or not is in the discretion of the court after scrutinising factors such as;

(i) The length of delay in fling an answering affidavit and setting the matter down;

(ii) The explanation thereof; and

(iii) Prospects of the respondent's success in the main matter.

It is common cause that the first respondent was served with the applicant's papers on 1 December 2016. In terms of Rule 236(3) of the High Court Rules, the first respondent was supposed to file his answering affidavit a month later, that is, by the third of January 2017. He did not.

This application was filed some three weeks after the deadline.

The first respondent's response to the application was that he had already filed his answering affidavit as well as heads of argument at the time of this application.

I have perused the file dealing with the application for stay of execution, HC11759/16, and found, that, the answering affidavit was filed on 31 January 2017 after the application for dismissal had been filed on 25 January 2017. According to the stamp on the application, the respondent's legal practitioners received same on 25 January 2017.

It is therefore not correct that the answering affidavits were filed before the respondents were aware of this present application.

HB04-15 : BULAWAYO CITY COUNCIL vs TRISHUL PROPERTIES
Ruled By: TAKUVA J

This is an application for summary judgment in terms of Order 10 Rule 64 of the High Court Rules 1971.

The applicant, a local authority is obliged by the law to provide certain services to residents of the City of Bulawayo which services include the provision of road maintenance, refuse collection, and water and sewer services.

The respondent is a resident of the City of Bulawayo and is the registered owner of a certain immovable property otherwise known as Number 58A Robert Mugabe Way, Bulawayo.

In fulfillment of its legal obligations, the applicant provided the services stated above to the respondent and raised service charges amounting to US$20,126=40.

The respondent failed and/or refused to pay the above mentioned service charges and the applicant issued a summons on 10 December 2013 claiming:

(a) Payment of $20,126=40 being the total service charge due and payable;

(b) Interest a tempore morae, at the prescribed rate, from the 30th day of January 2011 to the date of payment;

(c) Costs of suit.

The summons was served on the respondent on 13 December 2013 and it entered appearance to defend on 17 December 2013. On 10 January 2014, the respondent's legal practitioners requested for further particulars as follows:

“To enable the defendant to plead, plaintiff should supply the following particulars;

1. It is alleged in para 3 of plaintiff's declaration that it provided services to defendant, and, as such, is entitled to levy; rates; road levy; water, and other services; of the $20,126=40, how much is for:

(i) Rates;

(ii) Road levy;

(iii) Water; and

(iv) Other services.

2. The said sum is $20,126=40 is for which period (sic), a full itemized breakdown is requested.

3. The claimed sum is said to have a component of rates:

(a) How much is the monthly rates in respective of the property;

(b) Since the rates are a percentage of the value of the property, how much is the property valued at.”

The applicant supplied its further particulars on 18 March 2014 as follows:

“Plaintiff replies to defendant's request for further particulars as follows:

1. Ad paragraph 1 thereof

(i) The charges vary from month to month but charges are calculated as shown from Annexure “A” hereto which represent the charges for 30th November 2013 totalling $770=36 and for 31st December 2013 in the sum of $699=27.

(ii) For the period 30th January 2011 to the 30th November 2013 amounting to $20 215=50. See Annexure “B” hereto”.

2. Ad paragraph 2 thereof

See Annexure “B” hereto.

3. Ad paragraph 3 thereof

(a) $500 see Annexure “A” hereto.

(b) Land valued at $393,500 and improvements valued at $65,000. See Annexure 'A' hereto.”

The respondent, who was supposed to have filed his plea on or before 3 April 2014 in terms of the Rules of this Court, failed to do so.

The applicant applied for summary judgement on 17 April 2014 on the ground that the respondent has no bona fide defence and that the appearance to defend, and the request for further particulars, were nothing more than ways of buying time.

The application was vigorously opposed on the following grounds:

1. Wilful Disregard of the Law

The submission here is that the present application ought to be dismissed for want of compliance with the peremptory provisions of section 279 and 281 of the Urban Councils Act (hereinafter called the Act). Section 281 reads:

“Legal proceedings for recovery of rates

No legal proceedings for the recovery of rates shall be instituted against any person referred to –

(a) In subsection 2 of section two hundred and seventy-nine unless the council has complied with that subsection and the owner has failed, within fourteen days, to comply with the demand served on him in terms of that subsection requiring him to pay the amount stated therein; or

(b) In subsection (3) of section two hundred and seventy nine unless he has failed, within thirty days, to comply with the demand served on him in terms of that subsection requiring him to pay the amount stated therein, subject to the maximum amount provided for in that subsection.”

Section 279 of the Urban Councils Act states:

“Liability to pay rates

1. The person who is the owner of any property on the date on which any rate fixed and levied by the council becomes due and payable shall be primarily liable for that rate.

2. If, on the date on which a rate becomes due and payable, the owner primarily liable has failed to pay that rate, a demand in writing may be served on him requiring him to pay the amount stated therein within fourteen days of the service of the demand.

3. If the owner primarily liable for a rate fails to comply with the demand referred to in subsection (2) then any person who, at any time during the period in respect of which such rate was fixed and levied –

(a) Is the occupier of the property concerned, shall, if a demand in writing is served on him by the council, be liable for such rate together with any other unpaid rates in respect of such property, not exceeding the amount of any rent in respect of such property due by him but not yet paid at the time of the demand and shall thereafter continue to pay such rents to the council until the amount of the unpaid rates has been paid off;

(b) As agent or otherwise, receives any rent in respect of such property, shall, if a demand in writing is served on him by the council, be liable for such rate, together with any other unpaid rates in respect of that property, not exceeding the amount of any such rent paid to him subsequent to that demand, subject to the deduction by the agent of commission due to him for the collection of that rent.

(c) The persons referred to in paragraphs (a) and (b) of subsection (3) shall be liable for the rates to the amount specified therein jointly and severally with each and with the owner primarily liable.

4….,.”

The crisp point made by the respondent is that, in terms of these provisions, it was incumbent upon the applicant to serve the respondent with a demand, in writing, requiring it to settle its dues within (14) fourteen days from the date of such demand.

It was further contended that these provisions are peremptory in that the applicant cannot institute legal proceedings before serving the owner with the demand giving him fourteen (14) days to comply.

In casu, since such a demand has not been issued by the applicant, it has failed to comply with the law and the proceedings are a nullity, so the argument goes.

The respondent relied on:

(a) MAXWELL: Interpretation of Statutes (7th ed)…,.

(b) Nkisimane & Others v Santam Insurance Co. Ltd 1978 (2) SA 430 (A)…,.

The respondent's first proposed line of defence is that the applicant's messenger, one Kevin Adams, lied under oath that a letter required to be served upon the respondent in terms of section 279 and 281 of the Urban Councils Act was served on the respondent when in fact no such letter was served.

It was further submitted that the respondent has since filed a police report against the messenger for perjury.

The respondent believed that the letter was prepared merely as an afterthought after the summons had already been issued and after the applicant had realized that the failure to comply with the Urban Councils Act was fatal to its case. This fact, according to the respondent, is supported by the fact that the letter is not signed and there is no acknowledgment of receipt by the respondent.

The applicant's submission was that Kevin Adams did not lie at all and therefore the dirty hands principle does not apply.

As regards the argument that Trishul does not exist, the applicant submitted that this does not make sense because the Deputy Sheriff served a summons on 13 December 2013 at the same place on a manager called Trishul. After the summons was served on Trishul, the respondent entered an appearance to defend. This means the respondent saw the summons.

In my view, it is not a mere coincidence that Kevin Adams and the Deputy Sheriff would visit the same place, on different dates, and claim to have seen the same person if that person did not exist.

Clearly, the Deputy Sheriff did not lie because the respondent acted on the document that was served on 13 December 2013. Earlier, on 14 November 2013, Kevin Adams had delivered a letter to a Mr Trishul at the same premises.

For these reasons, l find that the dirty hands principle cannot be sustained as there is no evidence that Kevin Adams lied.

Appealed
HH287-20 : PENELOPE STONE and RICHARD BEATTIE t/a THE STONE/BEATTIE STUDIO vs CENTRAL AFRICAN BUILDING SOCIETY and RESERVE BANK OF ZIMBABWE and MINISTER OF FINANCE & ECONOMIC DEVELOPMENT
Ruled By: ZHOU J

This is an application for an Order that:

1. The first Respondent pays a sum of US$142,000 together with interest thereon at the rate of 5% per annum from 28 November 2016 to the date of payment within seven days from the date of this order.

2. In the alternative, the Applicants ask that the first and second Respondents be ordered to pay the said sum of money jointly and severally the one paying the other to be absolved.

3. The further alternative relief is for the Exchange Control Directive No. RT120/2018 to be declared a nullity, or, in the further alternative, that section 44B(3) and (4) of the Reserve Bank of Zimbabwe Act [Chapter 22:15] be declared unconstitutional.

4. Costs of suit are, in the main, sought against the first Respondent, and, in the alternative, against all the Respondents jointly and severally the one paying the others to be absolved.

The application is opposed by all the respondents.

The factual background to this matter is as follows:

The applicants are partners in a firm of architects trading under the name The Stone/Beattie Studio. The partnership has a savings account, number 1005428905, with the first respondent, which was opened in 2011. This account was opened after the introduction of the multi-currency system which became operational in February 2009.

The account was a United States Dollar account.

On 4 May 2016, the Governor of the second respondent issued a press statement under the title: “Measures to deal with cash shortages whilst simultaneously stabilising and stimulating the economy.”

In that statement, the Governor of the second respondent acknowledged the prevailing shortage of cash, the factors contributing to such shortage, and the impact that these factors had had on the economy, among other issues. He announced some monetary policy measures instituted to address the challenges which he highlighted as afflicting the multi-currency system.

In paragraph 13 of the written statement, the Governor announced that the Reserve Bank had established a USD200 million foreign exchange and export incentive facility which was supported by the African Export-Import Bank (Afreximbank) to provide cushion on the high demand for foreign exchange and to provide an incentive facility of 5% on all foreign exchange receipts, including tobacco and gold sale proceeds.

He proclaimed that in order to guard against possible abuse of the facility through capital flight, the facility was to be granted to qualifying foreign exchange earners in bond coins and notes which would continue to operate alongside the currencies within the multi-currency system and at a par with the United States Dollar.

The statement also promised the introduction of the Zimbabwe Bond Notes of denominations of $2, $5, $10…, to facilitate portability given the magnitude of the USD200 million backed facility. The facility would, further, be used to discount trade-related paper in order to provide liquidity for business trading operations.

The BOND currency was made part of the family of currencies in the multi currency basket.

In the same statement, the Governor announced that the process to configure the RTGS system into the multicurrency was already underway.

It did come - in that on 31 October 2016, the Presidential Powers (Temporary Measures) Regulations, 2016 which were contained in Statutory Instrument 133 of 2016, SI133 of 2016, were enacted in terms of section 2 of the Presidential Powers (Temporary Measures) Act [Chapter 10:20].

As at the end of October 2016, the applicants account number, 1005428905, had a credit balance of US$142,000.

In response to the enactment of the Presidential Powers (Temporary Measures) Regulations 2016, S.I.133 of 2016, referred to above, the applicants wrote a letter, dated 28 November 2016, to the first respondent. The material portions of the letter are as follows:

“RE: The STONE/BEATTIE STUDIO Savings Account No. 1005428905

The attached printed statement of the above account, dated today's date, records that CABS is the custodian of US$142,000 (one hundred and forty two thousand United States Dollars) deposited and held on behalf of The Stone/Beattie Studio.

You are advised there will be no further deposits into or withdrawals from this account after today's date until written instruction is given to you by the partners, named below, being the authorized signatories, or their successors.

Yours faithfully
P.D. STONE/R.H.S. BEATTIE”

The letter is signed by the two applicants.

A statement showing a credit balance which was attached to the letter is part of the documents attached to the founding affidavit.

The applicants have also adduced proof of delivery of that letter.

HH309-15 : IRENE ZINDI vs ZIMBABWE FARMERS DEVELOPMENT COMPANY LIMITED
Ruled By: MWAYERA J

Generally, service on an employee, or agent, or responsible person is deemed appropriate; Rule 39(1) and (2) of the High Court Rules.

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Law Portal
Zimbabwe

Proof of Service, Return of Service, Address and Manner of Service re: Administrative Process & Acknowledgement of Receipt

HH63-16 : ASWEL NYANZARA vs MBADA DIAMONDS (PRIVATE) LIMITED
Ruled By: CHITAPI J

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

HH298-17 : ZAMBE NYIKA GWASIRA vs MAXWELL SIBANDA and N.Z. INDUSTRIAL & MINING SUPPLIES and REGISTRAR OF DEEDS and SHERIFF OF ZIMBABWE
Ruled By: MATANDA-MOYO J

HB04-15 : BULAWAYO CITY COUNCIL vs TRISHUL PROPERTIES
Ruled By: TAKUVA J

Appealed
HH287-20 : PENELOPE STONE and RICHARD BEATTIE t/a THE STONE/BEATTIE STUDIO vs CENTRAL AFRICAN BUILDING SOCIETY and RESERVE BANK OF ZIMBABWE and MINISTER OF FINANCE & ECONOMIC DEVELOPMENT
Ruled By: ZHOU J

HH309-15 : IRENE ZINDI vs ZIMBABWE FARMERS DEVELOPMENT COMPANY LIMITED
Ruled By: MWAYERA J

Categories

Law Portal Zimbabwe

Proof of Service, Return of Service, Address and Manner of Service re: Administrative Process & Acknowledgement of Receipt

HH63-16 : ASWEL NYANZARA vs MBADA DIAMONDS (PRIVATE) LIMITED Ruled By: CHITAPI J

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

HH298-17 : ZAMBE NYIKA GWASIRA vs MAXWELL SIBANDA and N.Z. INDUSTRIAL & MINING SUPPLIES and REGISTRAR OF DEEDS and SHERIFF OF ZIMBABWE Ruled By: MATANDA-MOYO J

HB04-15 : BULAWAYO CITY COUNCIL vs TRISHUL PROPERTIES Ruled By: TAKUVA J

Appealed HH287-20 : PENELOPE STONE and RICHARD BEATTIE t/a THE STONE/BEATTIE STUDIO vs CENTRAL AFRICAN BUILDING SOCIETY and RESERVE BANK OF ZIMBABWE and MINISTER OF FINANCE & ECONOMIC DEVELOPMENT Ruled By: ZHOU J

HH309-15 : IRENE ZINDI vs ZIMBABWE FARMERS DEVELOPMENT COMPANY LIMITED Ruled By: MWAYERA J

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Law Portal
Zimbabwe

HH63-16 : ASWEL NYANZARA vs MBADA DIAMONDS (PRIVATE) LIMITED
Ruled By: CHITAPI J

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

HH298-17 : ZAMBE NYIKA GWASIRA vs MAXWELL SIBANDA and N.Z. INDUSTRIAL & MINING SUPPLIES and REGISTRAR OF DEEDS and SHERIFF OF ZIMBABWE
Ruled By: MATANDA-MOYO J

HB04-15 : BULAWAYO CITY COUNCIL vs TRISHUL PROPERTIES
Ruled By: TAKUVA J

Appealed
HH287-20 : PENELOPE STONE and RICHARD BEATTIE t/a THE STONE/BEATTIE STUDIO vs CENTRAL AFRICAN BUILDING SOCIETY and RESERVE BANK OF ZIMBABWE and MINISTER OF FINANCE & ECONOMIC DEVELOPMENT
Ruled By: ZHOU J

HH309-15 : IRENE ZINDI vs ZIMBABWE FARMERS DEVELOPMENT COMPANY LIMITED
Ruled By: MWAYERA J