Final Orders re: Approach iro Effect of an Order of Dismissal

SC71-14 : EDWARD TAWANDA MADZA and OTHERS vs REFORMED CHURCH IN ZIMBABWE DAISYFIELD TRUST and REFORMED CHURCH OF ZIMBABWE and NAISON TIRIVAVI and DUTCH REFORMED CHURCH
Ruled By: ZIYAMBI JA, GARWE JA and HLATSHWAYO JA

Having concluded the matter was not urgent, the proper course would have been to remove the matter from the roll of urgent matters to allow the appellants, if so minded, to place the matter before the High court on the ordinary roll for determination.

The order of dismissal was improper in the circumstances.

The main question faced by a Judge presented with an 'urgent application' is to decide whether or not to give priority to the application by dealing with it on an urgent basis. In arriving at a decision on this issue, he or she is called upon to exercise discretion. Such discretion must be exercised judicially taking into account the factors urged in favour of, and against, an urgent hearing.

If, on perusal of the papers, the Judge comes to the conclusion that the matter is urgent enough to merit an urgent hearing, then he or she conducts a hearing and gives such order as he thinks fit. But if the conclusion is reached, however, that the matter is not urgent, he or she must refuse to hear the application and remove it from the roll, in which event the applicant has the option of enrolling his matter for hearing on the ordinary roll of court applications.

It is a contradiction in terms to dismiss a matter on the twin bases that it is not urgent and that the applicant has no locus standi for the latter basis indicates that a decision on the merits of the application has been made in which event the applicant is barred from placing the matter on the ordinary roll for determination. The effect of the dismissal on the latter basis is that the applicant is put out of court and is deprived of his right to have the matter properly ventilated in a court application or trial. Where, however, the matter is struck off the roll for lack of urgency, the applicant, if so advised, may place the matter on the ordinary roll for hearing.

The learned Judge, in giving his reasons for finding that the matter was not urgent, made certain findings of fact which involved the merits. For example, he found that the appellants' Board was dissolved on July 12 - a fact of which the appellants claim they were unaware; and that the appellants had not established locus standi to act for the Board or to seek the remedy sought in the draft provisional order.

Those issues went to the heart of the matter.

In proceeding to determine them and to make those findings of fact, the court misdirected itself….,.

COSTS

The appeal has partially succeeded in that this Court has found that the order dismissing the application was improper. The appellants are therefore entitled to their costs of this appeal.

Accordingly, it is ordered as follows:

1. The appeal succeeds in part.

2. The judgment of the court a quo is altered to read as follows:

“The matter is not urgent. It is removed from the roll.

The applicants shall pay the costs of this application.”

3. The respondents shall pay the costs of the appeal.

SC03-15 : PORTLAND HOLDINGS LIMITED vs TUPELOSTEP INVESTMENTS (PROPRIETARY) LIMITED and TOBACCO WAREHOUSE & EXPORT t/a BAK LOGISTICS
Ruled By: ZIYAMBI JA, GOWORA JA and OMERJEE AJA

However, over and above these criticisms, the High Court, having decided to determine the matter on the issue of urgency, dismissed the application on the basis that it was not urgent.

This was not the proper course to follow.

Instead, it should have removed the matter from the roll on the basis that it lacked urgency. Such a course would have left the door open for the appellant to place the matter before the court for determination as an ordinary court application. In Madza & Ors v The Reformed Church in Zimbabwe Daisyfield Trust SC71-14, ZIYAMBI JA remarked as follows:

“However, having concluded the matter was not urgent, the proper course would have been to remove the matter from the roll of urgent matters to allow the appellants, if so minded, to place the matter before the High Court on the ordinary roll for determination. The order of dismissal was improper in the circumstances.”…,.

I respectfully associate myself with the dicta by her Ladyship. It follows that the dismissal of the application for want of urgency is improper.

It is also contended, on behalf of Portland that, in addition to this, the court fell into further error by commenting on the merits of the case. It is contended that even if this court were to remit the matter for hearing before the High Court a plea of res judicata could be successfully raised by the respondents.

I agree, in Purchase v Purchase 1960 (3) SA 383, CANEY J had this to say…,:

“…,. He submitted that that dismissal of an application had the effect of an absolution; he likened that to dismissal of an action, which is an absolution from the instance. Becker v Wertheim, Becker and Leveson, 1943 (1) P.H. F 34 (A.D.). I am disinclined to agree with him, for I think that dismissal and refusal have the same effect, namely, a decision in favour of the respondent.”

This principle was approved in African Farms & Townships v C.T. Municipality 1963 (2) S.A 555 by STEYN CJ where he stated as follows…,:
“Counsel for the appellant further argued that the order in the original proceedings, which as such is an order dismissing the application, is to be equated with absolution from the instance, leaving the issue undecided. In my view there is no substance in that argument. As Sande, De Diversis Regulis ad L 207, points out, the res judicata is not so much the sentia, the sentence or the order made, as the lis or negotium, the matter in dispute or question at issue about which the sentia is given, or the causa which is determined by the sentia judicis. As pointed out in Purchase v Purchase 1960 (3) SA 383 (N) at p 385, dismissal and refusal of an application have the same effect, namely, a decision in favour of the respondent. The equivalent of absolution from the instance would be that no order is made, or that leave is granted to apply again on the same papers. In Commissioner of Customs v Airton Timber CO Ltd 1926 CPD 351 at p 359, WATERMEYER J, draws a distinction between the actual judgment and the reasons for judgment, and the question is not necessarily determined by the judgment, the matter is not res judicata.”

HH366-16 : JOHANNES TOMANA vs JUDICIAL SERVICE COMMISSION and THE MINISTER OF JUSTICE LEGAL AND PARLIAMENTARY AFFAIRS
Ruled By: MAKONI J

After rendering judgment in HH281-16, whereby the applicant and the first respondent sought referral of certain questions to the Constitutional Court, I set the urgent chamber application filed by the applicant for hearing. To give a brief background, the urgent chamber application was filed on 25 February 2016. The first respondent filed its Notice of Opposition on 29 ...

To give a brief background, the urgent chamber application was filed on 25 February 2016. The first respondent filed its Notice of Opposition on 29 February 2016. Both parties proceeded to file Heads of Argument in relation to the urgent chamber application. The applicant then filed the Chamber Application For Referral To The Constitutional Court in terms of section 175(4) of the Constitution of Zimbabwe. His reason for filing the application is as explained in paragraph 2.6, particularly 2.6(a), of his Heads of Argument filed on 16 May 2016;

“Applicant was prepared to argue the urgent chamber application that he had filed up until first respondent attached to its opposing papers a letter which had the effect of undermining the application. It was from that development that the constitutional angle arose.”

In the meantime, the urgent chamber application remained in abeyance until I then set it down for hearing…,.

At the hearing, and after a lot of heckling, counsel for the applicant indicated that the applicant intended to file a constitutional application challenging the refusal to refer the applicant's question to the Constitutional Court. On being asked how the contemplated application would impact on the Urgent Chamber Application, he indicated that it would have a direct impact on the current proceedings.

What the applicant was raising with the Constitutional Court was a jurisdictional issue i.e. whether I could hear the substance of the matter. It was the applicant's absolute right to approach the Constitutional Court to have that question determined. On whether the matter remained urgent, under the circumstances, he submitted that the matter be removed from the roll of urgent matters; it goes to the roll of ordinary matters and to be related to as such. He relied, for this proposition, on Phenias Mariyapera v Eddie Pfugari (Pvt) Ltd & Anor SC03-14 and Madza & Others v The Reformed Church in Zimbabwe Daisufield Trust & Others SC71-14. He said the two cases held that when a matter is removed from the roll of urgent matters, it is not thrown out. It moves, by operation of law, to the roll of non-urgent matters.

Counsel for the first respondent, in response, indicated that the first respondent was opposed to the application to have the matter referred to the roll of ordinary applications. He did not accept the position of the law as put forward by counsel for the applicant. There had been eight hearings on an urgent basis, and, suddenly, the applicant now wants to be referred to the ordinary roll. He requested for an opportunity to file Heads of Argument on the procedure adopted by the applicant and seek punitive costs as he believed that the applicant was abusing the legal process. His request was granted and he filed the Heads of Argument.

At the resumption of the hearing Mr Mpofu withdrew from the matter and Mr Hashiti took over. It was apparent that the first respondent was not opposed, per se, to the procedure adopted by the applicant but was concerned about the issue of costs. Mr Hashiti, who now appeared for the applicant, advanced two points in support of the applicant's position regarding the issue of costs. He submitted that since the substantive matter is still in issue, the question of costs is to be reserved for the final determination of the matter. He submitted that this course would not dis-entitle any party of its costs. It simply defers the question to be determined on the return day. He further submitted that the practice of this court has always been that in seeking interim relief, costs are always reserved for determination on the return day. The second point was that the matter has not been referred to the opposed roll on account of lack of urgency. The matter is being removed from the urgent roll on account of court processes that has an effect of stalling the determination of the urgent matter.

Counsel for the first respondent, in response, submitted that the first and second respondents were not at court voluntarily but were brought by the applicant on a certificate of urgency drawn by the applicant's legal practitioners. It was a smoke and mirrors argument that urgency only falls away when there is a finding by the court. The conduct of the applicant shows lack of sincerity in persuing the matter on an urgent basis. The parties were entitled to a determination of some sort regarding the urgent application. He further submitted that should the court refer the matter as prayed, an order of costs, on a legal practitioner client scale, ought to be made, for wasted costs.

As regards the point that the matter cannot be heard pending the determination of the constitutional application, counsel for the first respondent made the following three points;

(i) The constitutional application is an ordinary application. It does not seek interim relief nor does it request a stay of the present proceedings.

(ii) There is no interim order that has been granted by this court, therefore, there is no return day to talk of. The fate of the matter is completely open.

(iii) The applicant wishes to continue bringing parties to court without any consequences.

He concluded his submissions by praying that the applicant pays the wasted costs.

Mr Hashiti, in reply, submitted that there is an interim order that the matter be referred to the opposed roll. The return date is when the matter is heard on the merits.

What to do with a matter that has been deemed to be not urgent has now and again presented problems in this court. The position is now settled and there might be need to repeat it for the benefit of those who might still have problems on how the proceed. The issue was clearly spelt out in Madya & Others v The Reformed Church in Zimbabwe Daisufield Trust & Others SC71-14 where ZIYAMBI JA…, stated the following;

“However, having concluded the matter was not urgent, the proper course would have been to remove the matter from the roll of urgent matters to allow the appellants, if so minded, to place the matter before the High Court on the ordinary roll for determination. The order of dismissal was improper in the circumstances.”…,.

Further down in the judgment, and after having dealt with the contradiction in terms to dismiss a matter on the twin bases that the matter is not urgent and that the applicant has no locus standi and the effect of such dismissal she, again, made the point;

“…,. The effect of the dismissal on the latter basis (lack of locus standi) is that the applicant is put out of court and is deprived of his right to have the matter properly ventilated in a court application or trial. Where, however, the matter is struck off the roll for lack of urgency the applicant, if so advised, may place the matter on the ordinary roll for hearing.”…,.

The underlined phrases seem to suggest that the option is left to the applicant to chart his new course of action. If referral to the ordinary roll was by operation of the law, as suggested by Mr Mpofu, the court would have said so.

In casu, it is not the court that has deemed the matter not urgent. Instead, it is the applicant who has elected to remove the matter from the roll of urgent matters and have it referred to the ordinary roll. The first respondent does not oppose the course suggested by the applicant. It has, however, contended that the applicant must do so against a sanction in the form of an appropriate order of costs in relation to the urgent application.

The issue for determination is whether the applicant should pay costs for the urgent application and at what scale....,.

(1) The matter is removed from the urgent roll.

HH258-15 : TETRAD HOLDINGS LIMITED and OTHERS vs NATIONAL SOCIAL SECURITY AUTHORITY and THE SHERIFF FOR ZIMBABWE N.O.
Ruled By: MAFUSIRE J

This was an urgent chamber application for a stay of execution.

It was filed on 6 March 2015. It was brought to my chambers at 17:15 hours three days later, i.e. on 9 March 2015. There were eleven applicants. Their case was that on 6 March 2015, i.e. the date the application was filed, the Sheriff, the second respondent herein, was scheduled to sell a number of properties belonging to applicants two to eleven.

The basis for seeking a stay was that the first respondent, National Social Security Authority (hereafter referred to as “NSSA”), had a judgment against the first applicant, Tetrad Holdings Limited (hereafter referred to as “Tetrad Holdings” or simply “Holdings”). It was said that that judgment had been obtained in error. NSSA's debt was said to be with Tetrad Investment Bank Limited (hereafter referred to as “Tetrad Bank” or simply “the Bank”) and not with Tetrad Holdings.

Apparently, Tetrad Investment Bank Limited was a subsidiary of Tetrad Holdings Limited.

However, in the founding papers, it was stressed that Tetrad Investment Bank Limited and Tetrad Holdings Limited were two distinct and separate entities. As such, it was said that an application for the rescission of the National Social Security Authority's (NSSA) judgment against Tetrad Holdings Limited had already been filed with this court. Thus, it was argued, if the Sheriff's sale went ahead there would be prejudice, not only to the shareholders of the applicants but also to the creditors.

After reading the papers, I agonised over whether or not to set down the matter for hearing.

The application was extremely economic with information. For example, other than describing all the applicants as companies incorporated according to the laws of Zimbabwe, and mentioning that the National Social Security Authority (NSSA) had a judgment against Tetrad Holdings Limited, which judgment was what the Sheriff was executing, the founding papers said nothing about the nature of the relationship between NSSA, as the judgment creditor, and the rest of the applicants. But, the main matter in which the writ of execution had been issued being a debt collection claim, I guessed that respondents two to eleven must have been guarantors or sureties of some sort. As it turned out, indeed they were.

But, that was not all.

The certificate of urgency, signed on 6 March 2015, said the matter was urgent because the sale was scheduled to take place that day; that Tetrad Holdings Limited was not, and had never been, the National Social Security Authority's (NSSA) debtor, but that it was Tetrad Investment Bank Limited that was; that for that reason the application for rescission of judgment had excellent prospects of success, and that, if the matter was not heard on an urgent basis, there was a risk of irreparable prejudice to the applicants' shareholders and creditors.

Only one date was mentioned, namely 6 March 2015 - the date of the sale.

Nothing was said about when the National Social Security Authority (NSSA) had obtained the judgment. It was not mentioned when the applicants had become aware of that judgment. No information was given as to what action, if any, the applicants had taken upon getting to know about that judgment. Neither the date of NSSA's writ nor that of the Sheriff's attachment was given. The property that the Sheriff had attached and was selling was not disclosed. Finally, it was not said when the application for rescission of judgment had been filed.

I turned to the founding affidavit and the rest of the papers. They were essentially an extension of the certificate of urgency.

Only two other dates were mentioned, namely, 8 August 2014 and 16 February 2015. It was said 8 August 2014 was when Tetrad Investment Bank Limited had held a Scheme Meeting with its creditors which the National Social Security Authority (NSSA) had attended, which, allegedly signified NSSA's acceptance that its debt was with the Tetrad Investment Bank Limited not Tetrad Holdings Limited. It was said 16 February 2015 was when the Sheriff had served the notice of sale on Tetrad Investment Bank Limited.

That was about all that the founding affidavit ever disclosed by way of additional information. The rest were basically legal arguments on why the sale had to be stopped....,.

The case number for that rescission application was just left blank!...,.

The urgent chamber application was classically a dog's breakfast. But, in spite of my serious misgivings at that stage, I set it down for hearing on 12 March 2015. I decided to let the applicants have their day in court....,.

On urgency, it was said the National Social Security Authority's (NSSA) judgment had been given on 28 March 2014. That was almost a year ago. NSSA's writ had been served on 15 August 2014 but the applicants had turned the Sheriff away on the basis that execution had been suspended pending an order for leave to convene a Scheme Meeting in terms of the Companies Act [Chapter 24:03]. On 20 August 2014 and 10 October 2014 NSSA had sent the Sheriff back to the applicants with the writ. Movable properties for applicants two to eleven had then been attached.

Thus, the National Social Security Authority (NSSA) argued, the applicants had been aware of the attachment as far back as August 2014 but had chosen to do nothing until the day of the sale - almost seven months later.

On 16 February 2015, the applicants had been served with the Notice of Sale - again they had chosen to do nothing.

Only on 27 February 2015 did they file an ordinary court application for the condonation of the late filing of the application for rescission of judgment. However, they had withdrawn that application on 5 March 2015. They had then proceeded to file the urgent chamber application on the next day, 6 March 2015....,.

As I invited the parties into my chambers, it was manifestly obvious that the applicants could not reasonably persist with their urgent chamber application in the state that it was in.

Indeed, counsel for the applicants advised that it was no longer necessary to argue the aspect of urgency and waste the court's time. He said that what the applicants would now request was that the matter be removed from the roll for urgent matters and referred to the ordinary roll. The parties could be granted the liberty to file supplementary affidavits. The costs could be made in the cause.

He submitted that the applicants were not prepared to withdraw their urgent chamber application, and that they could not be forced to do so. He said whether I could strike off the matter from the roll for urgent cases or simply refer it to the ordinary roll would amount to the same thing because, ultimately, the matter would one day be heard on the ordinary roll.

Unfortunately for the applicants, their stance was not an agreed position with the National Social Security Authority (NSSA), something which counsel for the applicants, from the remarks which prefaced his submissions, had obviously anticipated. Counsel for NSSA insisted that the matter should simply be dismissed with costs on the higher scale of attorney and client because the application had undoubtedly been an abuse of the court process.

Seeing my inclination towards dismissing the application with costs, counsel for the applicants argued, forcefully, that where a judge decides that a matter brought to him under a certificate of urgency, is, in fact not urgent, the proper course is to refer it to the ordinary roll or strike it off the roll for urgent matters. The judge should then leave the question of costs for determination together with the merits of the case.

He said if I were to order costs at that stage, the applicants would have to seek my leave to appeal to the Supreme Court, thereby entailing the matter being heard again. He submitted that if I were to dismiss the application it would mean that I would have decided the merits of the case yet these had not been argued before me.

He said there were a number of Supreme Court decisions to the effect that if a judge finds the matter not to be urgent the proper course is to strike it off and not to dismiss it. At that stage, counsel for the applicants did not have the citation of those cases but only remembered some of the parties involved. He offered to make the judgments available to me later on.

After hearing argument from both sides I was of the view that the applicants' case for urgency had lacked merit right from the onset; that by refusing to withdraw it and insisting that it be referred to the ordinary roll where they would try and patch it up by filing supplementary affidavits, and that by also insisting that the question of costs be left over for determination together with the merits, the applicants were trying to have their cake and eating it.

I felt I had the discretion to refer or not to refer to the ordinary roll an application that is brought under a certificate urgency when it is not urgent.

However, in this case it was my strong view that the applicants had not supplied me with any useful information that would have enabled me to decide whether or not their case merited to be dealt with on an urgent basis. They had dragged the respondents to court. When they had submitted their application in the first place they had obviously taken the view that it had been complete. However, it was obvious that they now realised how seriously defective it had been. So, instead, of doing the logical thing, namely, to withdraw it and tender wasted costs, they were now cleverly trying to salvage the situation by seeking a referral of the matter to the ordinary roll so that they could supplement their pleadings. In the process they hoped to avoid paying the wasted costs.

I considered that such conduct was inappropriate and that the applicants had to be mulcted in costs. In the end I dismissed the application with costs on an attorney and client scale. I stressed, in my ex tempore pronouncement, that it was because of the serious lack of merit on the aspect of urgency that I was dismissing it.

Subsequent to my order, counsel for the applicants supplied a number of authorities on the point that where a judge decides that an urgent chamber application is in fact not urgent, the proper course is to strike it off the roll.

The first was a judgment of this court by UCHENA J in African Consolidated Resources Plc & Ors v Minister of Mines and Mining Development & Ors 2010 (1) ZLR 208 (H). At p215D-E of his judgment the learned judge said:

“Mr Mutamangira urged this court to dismiss the application if the court found in favour of any of the respondents' preliminary issue.

As I cannot deal with other issues in view of my finding that the application is not urgent, the order sought by the respondents is not appropriate. A finding that a case is not urgent does not mean that the applicant's case has no merits. It means the case does not qualify for hearing on an urgent basis in terms of Rule 244 of the High Court Rules. It should simply take its place among cases awaiting to be set-down for hearing in terms of the rules applicable to [non]-urgent applications. See the comments of CAMERON JA in Commissioner, South African Revenue Service v Hawker Air Services (Pty) Ltd; Commissioner, South African Revenue Services v Hawker Aviation Partnership & Ors 2006 (4) SA 292 (SCA) at 299F–300A.

A case judged to be not urgent should simply be struck off the roll for it to be proceeded with like any other case.”

The second case was that of Phineas Mariyapera v Eddies Pfugari (Private) Limited & Anor SC03-14. On pp1 and 2 of the cyclostyled judgment ZIYAMBI JA said:

“Mr Uriri, for the appellant, in his submissions before us, raised two points. Firstly, that having found the matter was not urgent, the court a quo should simply have removed the matter from the roll and not dismissed it. Secondly, that the order of punitive costs was an improper exercise of the court's discretion and that an award of costs on the ordinary scale would have been the appropriate order.

Dealing with the first issue, Mr Uriri conceded that although the court dismissed the application, such dismissal was not on the merits and therefore would not give rise to a plea of res judicata in any future proceedings. This was, in our view, a proper concession. However, the point needs to be made that in a case such as this one the correct order to be made would be that the matter be removed from the roll, rather than dismissed. The order of the court a quo will be amended accordingly.

On the second issue, namely, the award of costs on the higher scale, we find that the court a quo did make certain findings of fact which could not properly be made without an enquiry into the merits of the matter. However, there were other findings of fact which were either common cause or apparent on the papers, and undisputed, which were properly taken into account by the Court in the determination of the issue….,.

We accordingly find that there is no basis on which it can be said that there was an improper exercise of the court's discretion in awarding costs on the higher scale such as would warrant interference by this Court.”

The third case was Air Zimbabwe (Private) Limited & Anor v Stephen Nhuta & Ors SC65-14. At p5 of the cyclostyled judgment, ZIYAMBI JA said:

“The first ground of appeal makes no sense because the court a quo did not decline to hear the matter. Indeed, having found that the matter was not urgent it nevertheless proceeded to hear and determine it on an urgent basis. In so doing, the court a quo contradicted itself. What it should have done, once a finding of lack of urgency was made, was to strike or remove the matter from the roll of urgent matters and not proceed to hear the merits for, once a hearing has taken place and a decision made on the merits, the question of urgency becomes irrelevant.”

The fourth and last case was that of Edward Tawanda Madza v The Reformed Church in Zimbabwe Daisyfield Trust & Ors SC71-14. Again, the same learned judge of appeal said…,:

“The learned Judge was of the view that the urgency was created by the appellants….,. We do not find any impropriety in the learned Judge's exercise of his discretion in this regard.

However, having concluded the matter was not urgent, the proper course would have been to remove the matter from the roll of urgent matters to allow the appellants, if so minded, to place the matter before the High Court on the ordinary roll for determination. The order of dismissal was improper in the circumstances.

Accordingly, it is ordered as follows:

1….,.

2. The judgment of the court a quo is altered to read as follows:

'The matter is not urgent. It is removed from the roll. The applicants shall pay the costs of this application.'

3….,.”

It seems to me that what the above authorities were concerned with was the dismissal of the entire urgent chamber application as if it would have been determined on the merits.

That was neither the order that I gave in this case nor the import of it.

In my view, an urgent chamber application is one in which there is, unavoidably, the initial or opening application for the matter to be heard on an urgent basis. Only after this has succeeded can the merits of the dispute be considered.

In my view, the application for the matter to be treated as urgent is an inevitable adjunct of the actual application on the merits. Urgency has its own set of considerations. So what I dismissed in this case was that antecedent application for the matter to be heard on urgent basis. Even though both parties and myself did from time to time touch on the merits during the hearing, nonetheless I restricted my order of dismissal to the aspect of urgency. The applicants had not been prepared to withdraw it. I could not force them to do so. But, I did not feel bound to accede to their request to have the matter referred to the ordinary roll. What they had presented to me in the first place had been a complete application by itself. They had made their bed of roses. They could only lie on it.

My order of costs on the higher scale was informed by the spuriousness of the application for the matter to be heard on an urgent basis, and the applicants' attitude that, notwithstanding their realisation and manifest acceptance of the paucity of their papers, they, nonetheless, sought to avoid paying the costs that they had caused the respondents to incur.

I found it unacceptable.

HH173-15 : BAYRICH ENTERPRISES (PVT) LTD vs XGMA ZIMBABWE (PVT) LTD and THE SHERIFF
Ruled By: MATHONSI J

On 10 February 2015 the applicant filed the same urgent application in HC1216/15 on the same set of facts, the same founding affidavit and the same annexures which it merely photocopied for HC1356/15. In short, the applicant issued the same application twice after the first one was set down before UCHENA J on 13 February 2015 ...

HH03-11 : JOYCE MADZORERA vs DAVID SHAVA
Ruled By: CHATUKUTA J

The applicant seeks an order for the ejectment of the respondent and any other person in occupation through him, from Stand 1741 Unit A, Seke, Chitungwiza and costs on a higher scale. The background to the application is that on 6 November 2001, the respondent purchased the property from one Gloria Madzorera. The respondent instituted proceedings in ...

The applicant seeks an order for the ejectment of the respondent and any other person in occupation through him, from Stand 1741 Unit A, Seke, Chitungwiza and costs on a higher scale.

The background to the application is that on 6 November 2001, the respondent purchased the property from one Gloria Madzorera.

The respondent instituted proceedings in case no. HC2793/02 for an order to compel Gloria Madzorera to cede her interests and rights in the property into his name. The application was granted in default on 19 June 2002. The rights and interests of the late Tafirenyika Madzorera in the property were duly ceded into his name. On 9 August 2002, and in case no. HC6518/02, Gloria Madzorera filed an application for the rescission of the order granted under case no. HC2793/02.

The application was opposed.

Although Gloria Madzorera filed an answering affidavit and heads of argument, the matter was never set down for hearing at the instance of either party.

However, the property belonged to and was registered in the name of Tafirenyika Madzorera.

Tafirenyika Madzorera had died on 13 August 2000 before the sale of the property to the respondent. Tafirenyika Madzorera's estate was registered with the Master of the High Court and on 31 July 2003. The applicant was appointed executrix dative of Tafirenyika Madzorera's estate.

On 6 January 2005, the applicant filed an application in case no. HC59/05 seeking an order for the rescission of the judgment in case no. HC6518/02 in terms of Rule 449 of the High Court Rules, 1971. The basis of the application was that the property belonged to the estate of the late Tafirenyika Madzorera and that Gloria Madzorera did not have the authority of the Master of the High Court to dispose of that property. It was contended that the court had erroneously granted the order for cession because it was not aware, at the time, that the property belonged to a deceased estate.

The application was granted on 9 March 2005 in default of the respondent.

On 4 May 2005, the respondent filed an urgent chamber application, and was, on 10 May 2005, granted an interim interdict restraining the applicant from registering the property back into the name of the estate or into the name of any third party or advertising the sale of rights and interests in the property. The respondent was ordered to file an application for rescission within seven days of the interim order.

The respondent filed the application for rescission on 15 August 2005 in case no. HC3953/05. The basis for the application was that the order granted in case no. HC59/05 did not set aside the order granted in his favour in case no. HC2793/02. The applicant could not, therefore, reverse the cession because the order was extant. The respondent further contended that the applicant did not have the locus standi to have sought the rescission of case no. HC2793/02 because she had not been a party to that case.

It appears the application was argued by both parties and was dismissed.

Following the dismissal of the application, the respondent refused to vacate the property. He insisted, in a letter from his legal practitioners of instant, and dated 30 November 2007, that case no. HC2793/02, which granted him the right to have the property ceded into his name, had not been set aside by the order in case no. HC59/05. He stated that there were two conflicting orders and that the order in case no. 2793/02 took precedent.

The applicant then filed the present application because of the respondent's resistance to vacate the property.

The order in case no. HC59/05 reads as follows:

“IT IS ORDERED THAT:

1. That application succeeds with costs.

2. That the court order under case no. 6518/02 be and is hereby set aside.

3. That third Respondent is directed to set aside the said cession and re-register the rights and interests in Stand 1741 Unit “A”, Seke, Chitungwiza to the Estate Late Charles Tafirenyika Madzorera.”

Arising from the above background, it is the applicant's contention that the order clearly reversed any gains that the respondent had obtained in case No. HC2793/02. It was also clear that there was an error in case no. HC59/05. It was contended that the error does not detract from the fact the court ordered the reversal of the cession of rights and interests in the property back into the name of the estate of the Late Tafirenyika Madzorera. The respondent's application for rescission of judgment (case No. HC3953/05) was dismissed, and, therefore, the applicant had the right, on behalf of the estate, to seek for the respondent's ejectment from the property.

The applicant further submitted that reference referred to a non-existent order of court was an apparent error. She applied for an order, in terms of Rule 449, correcting the order so that it reflected the correct case number for the order that was set aside.

The respondent raised the same arguments it raised in the application for rescission in case no. HC3953/05 - which was dismissed. He contended that the order in HC2793/02 was not rescinded and therefore was extant. He further argued that the court had erroneously granted an order to the applicant who had not been a party to case no. HC2793/02.

The respondent opposed the application to correct the order in case no. HC59/05 arguing that the court could not correct the order in the absence of the reasons for the dismissal of the application in case no. HC3953/05.

It appears to me to that there are basically two issues....,.

The first issue is the effect of the dismissal of the respondent's application for rescission in case no. HC3953/05.

The effect of the dismissal of the application in case no. HC3953/05, is, in my view, that the order in case no. HC59/05 reversing the cession into the respondent's name remained extant.

I am of the view that the reasons for judgment are necessary only in so far as a court is required to determine the correctness of an order arrived at.

I am not being asked to consider the correctness of the order in case no. HC3953/05. It is not competent for me to even consider that case given that it is an order of this court. Such consideration would amount to a review of this court's own decision.

I therefore do not believe it is competent for me to consider the submissions raised by the respondent which were raised in his application for rescission in case no. HC3935/05.

HB107-09 : HONOURED NCUBE vs MILTON NCUBE and ELIZABETH NCUBE
Ruled By: NDOU J

Under HC 1995/08, the respondents were the applicants.This is an application for dismissal for want of prosecution of the respondents' application under case HC1995/08, and the discharge of the provisional order granted therein in terms of Order 32 Rule 236(4)(b) of the High Court Rules, 1971.The salient facts are that ...

CC10-16 : EVERJOY MEDA vs MAXWELL SIBANDA and ZAMBE GWASIRA and THE SHERIFF OF THE HIGH COURT OF ZIMBABWE and THE REGISTRAR OF DEEDS
Ruled By: CHIDYAUSIKU CJ, MALABA DCJ, ZIYAMBI JCC, GWAUNZA JCC, GOWORA JCC, MAVANGIRA JCC, BHUNU JCC and UCHENA JCC

At the end of hearing argument for both parties, the Court dismissed the application with costs on the legal practitioner and client scale. It was indicated that reasons for the decision would follow in due course. These are they. The applicant approached the Court in terms of section 85(1)(a) of the Constitution of the ...

These are they.

The applicant approached the Court in terms of section 85(1)(a) of the Constitution of the Republic of Zimbabwe Amendment (No.20) 2013 (“the Constitution”) which provides that any person acting in their own interests is entitled to approach a court alleging that a fundamental right or freedom enshrined in Chapter V has been, is being, or is likely to be infringed and the court may grant appropriate relief.

The applicant is customarily married to the second respondent. During the subsistence of the marriage, immovable property known as Stand No.48 Dan Judson Road, Milton Park, Harare (“the property”) was acquired and registered in the name of the second respondent. The couple separated in 2001 and the second respondent moved out of the said property. The ownership of the house was not changed at the Deeds Registry and title remained with the second respondent.

In 2010, the second respondent entered into a business transaction with the first respondent in terms of which he undertook to cut timber at the latter's plantation. The second respondent failed to perform his obligations in terms of the agreement leading to the first respondent suing him for breach of contract and loss of future earnings. The first respondent obtained a default judgment from the High Court and proceeded to attach the property, which was still in the name of the second respondent. The first respondent also applied to the High Court for an order declaring the property especially executable.

The applicant opposed the application on the basis that she was entitled to 50% share of the property. She argued that the property could not be sold in execution, to recover her husband's debts.

The court a quo granted the order sought by the first respondent declaring the property especially executable.

The applicant did not appeal against the judgment. It remains extant.

Instead, the applicant approached the Court, in terms of section 85(1) of the Constitution, alleging that she has personal rights to the property which have been infringed by the order declaring the property especially executable. She alleged the right to property enshrined in section 71(3) of the Constitution has been infringed.

The founding affidavit made no reference to any other fundamental human right enshrined in Chapter V of the Constitution being infringed.

Counsel for the first respondent took several points in limine.

Counsel for the first respondent argued that the application was improperly before the Court because the remedy the applicant should have utilized was that of an appeal to the Supreme Court as the application was in response to the judgment of the High Court. He argued that the Constitutional Court has no jurisdiction to overturn an extant order of the High Court in a constitutional application not alleging that the decision was a violation of the right to equal protection of the law. Counsel for the first respondent argued that if the decision of the High Court was on a constitutional point raised before that Court the applicant ought to have approached the Court by way of appeal on that point in terms of section 167(5)(b) of the Constitution. He further argued that the court a quo's decision was based on the interpretation and application of sections 2 and 14 of the Deeds Registries Act [Chapter 20:05] on real rights and the effect of their registration.

According to counsel for the first respondent, having not appealed against the order of the court a quo, the applicant cannot have it set aside without impugning the constitutionality of the statutory provisions in terms of which the judgment was made.

Counsel for the applicant indicated that he had instructions to withdraw the matter and sought to apply that the matter be withdrawn. Counsel for the first respondent opposed this application arguing that the matter should not be withdrawn but that the Court exercise its discretion and dismiss the matter with costs on a higher scale.

While parties may, at any time before a matter is set down, withdraw a matter, with a tender of costs, the same does not hold true for a matter that has already been set down for hearing.

Once a matter is set down, withdrawal is not there for the taking.

The applicable principles are set out in ERASMUS 'Superior Court Practice' B1-304. A person who has instituted proceedings is entitled to withdraw such proceedings without the other party's concurrence and without leave of the court at any time before the matter is set down. The proceedings are those in which there is lis between the parties one of whom seeks redress or the enforcement of rights against the other. An application for appropriate relief on the grounds of alleged violation of a right is such a proceeding.

Once a matter has been set down for hearing it is not competent for a party who has instituted such proceedings to withdraw them without either the consent of all the parties or the leave of the court. In the absence of such consent or leave, a purported notice of withdrawal will be invalid. The court has a discretion whether or not to grant such leave upon application. The question of injustice to the other parties is germane to the exercise of the court's discretion. It is, however, not ordinarily the function of the court to force a person to proceed with an action against his will or to investigate the reasons for abandoning or wishing to abandon one.

See Abramacos v Abramacos 1953 (4) SA 474 (SR); Pearson & Hutton NNO v Hitseroth 1967(3) 591 (E)…,; Protea Assurance Co Ltd v Gamlase 1971 (1) SA 460 (E)…,; Huggins v Ryan NO 1978 (1) SA 216 (R)….,; Franco Vignazia Enterprises (Pty) Ltd v Berry 1983 (2) SA 290 (C)….,; Levy v Levy 1991 (3) SA 614 (A)…,; HERBSTEIN & VAN WINSEN 'The Civil Practice of the High Courts and Supreme Court of Appeal of South Africa' (5ed)…,..

From the above authorities, it is the law that a court, having satisfied itself that a matter is properly before it, can refuse to grant an application for withdrawal of the matter.

Faced with this compelling position of the law, counsel for the applicant then sought to argue that there was no application before the Court to dismiss. It was his view that as an application in terms of section 85(1)(a) of the Constitution was brought before the Court instead of an appeal against the judgment of the court a quo the matter was improperly before the Court.

Counsel for the applicant failed to appreciate the import of section 85(1) of the Constitution. The section provides:

“85 Enforcement of fundamental human rights and freedoms

(1) Any of the following persons, namely -

(a) Any person acting in their own interests;

(b)…,.

(c)…,.

(d)…,.

(e)…,.

is entitled to approach a court alleging that a fundamental right or freedom enshrined in this Chapter has been, is being, or is likely to be infringed, and the court may grant appropriate relief, including a declaration of rights and an award of compensation.”…,.

It is clear from a reading of section 85(1) of the Constitution that a person approaching the Court in terms of the section only has to allege an infringement of a fundamental human right for the Court to be seized with the matter. The purpose of the section is to allow litigants as much freedom of access to courts on questions of violation of fundamental human rights and freedoms with minimal technicalities. The facts on which the allegation is based must of course appear in the founding affidavit.

Whether or not the allegation is subsequently established as true is a question which does not arise in an enquiry as to whether the matter is properly before the Court in terms of section 85(1) of the Constitution.

In this case, the applicant alleged in the founding affidavit that her right to property had been infringed.

Whether her allegation is true or not is not the issue. What matters is that she alleged a violation of a fundamental human right and as such the Court was properly seized with the matter. The question of the veracity of the allegation would have been tested on the basis of evidence placed before the Court.

The Court agrees with counsel for the first respondent that there is an application before it to dismiss….,.

It was the unanimous decision of the Court that the matter be dismissed.

HH147-16 : TATENDA MANDUNA vs ALLIANCE INSURANCE (PVT) LTD
Ruled By: MUSHORE J

The facts of this matter are these:

On 1 February 2013, the plaintiff insured his vehicle against the risk of fire, accident, and loss, through the defendant company, by way of a comprehensive insurance policy.

In terms of the insurance policy, the plaintiff was to receive full cover for his vehicle, a Volvo S60, subject to the payment of his monthly premium.

The plaintiff informs, that, sometime in April 2013, he was involved in a motor car accident at a roundabout at Warren Park along the Harare and Bulawayo Road, and that, as a result of the accident, his motor vehicle was damaged beyond repair. According to the plaintiff, he reported the accident to the police at Warren Park Police station resulting in an investigation into the accident. The police carried out an investigation into the accident, and, having concluded that the plaintiff was responsible for the accident, they caused the plaintiff to pay a deposit fine of US$200 for driving without due care and attention.

Shortly thereafter, the plaintiff lodged a claim with the defendant company claiming payment of the sum insured arising from accident damage, which, according to the plaintiff, was in the amount of US$11,000.

The plaintiff tells us that, on 3 May 2013, the defendant accepted the plaintiff's claim and generated a loss acceptance form in order to compensate the plaintiff in the sum of US$9,000.

However, apparently, when the funds failed to arrive and reach the plaintiff's account it was then that the plaintiff enquired with the defendant as to when payment would be made. The defendant then made it known to the plaintiff that it had no intention of settling the plaintiff's claim.

Factually, the defendant, on the other hand, presented a very different version of the events surrounding the plaintiff's claim.

It was the defendant's case, that, when the plaintiff lodged a claim for compensation for the loss, the defendant, as usual, conducted its own investigation and that it was then that the defendant declined payment of the sum to the plaintiff citing that it had formed the view that the plaintiff's claim may be fraudulent in that the plaintiff had conspicuously failed to make known the place where the accident was alleged to have taken place.

In fact, the position which the defendant made known to the plaintiff was that, in the circumstances, it was not under any lawful obligation to compensate the defendant for his loss.

The plaintiff, however, remained convinced that he ought to be compensated by the defendant for his loss and so he instituted the current legal proceedings against the defendant.

The defendant has opposed the action and filed a joint special plea and the plea on the merits.

The matter was placed before me for trial.

On the trial date, the defendant presented his preliminary argument on the special plea taken. The thrust of the defendant's special plea, as pleaded, was that, in terms of the Policy Document which specifically dictates the terms of the agreement between the parties, and in particular Clause 14 thereof, the plaintiff has no right of action against the defendant.

Clause 14 of the Policy Document is framed as follows:

“Should any difference arise between the Company and the Insured as to the amount of any claim under this policy, the same shall be referred to arbitration in accordance with the statutory provisions for the time being in force applicable thereto, and the obtaining of any award shall be a condition precedent to any right of action against the Company.”

By filing and moving the special plea, the defendant is resolute in its thinking that the plaintiff has approached this court prematurely because the plaintiff's claim in this case is essentially one which falls under the purview of Clause 14 resulting in the matter being one for determination by way of arbitration.

To this end, the defendant is of the opinion, that, because the current dispute pertains to “the amount of any claim” then the arbitration clause should compel me to refuse to entertain the matter and to refer it first to arbitration.

Thus, the defendant has confined itself to an interpretation of Clause 14 to render this matter as being improperly before me at the first instance.

The plaintiff, on the other hand, has raised a legal argument in seeking to dissuade me from upholding the Special Plea.

The plaintiff argues, that, even in the face of there being an arbitration clause in an agreement such as the one in casu, because this court enjoys inherent jurisdiction then this court ought to entertain the matter without it being referred to arbitration because this court is not bound by the 'submission' (sic) clause.

I take it that what the plaintiff meant to put across, in using the terminology “submission” clause, is that he meant that this court need not be bound by a clause calling upon the parties to submit to the jurisdiction of an arbitrator.

The plaintiff's reasoning is skewed for the following reasons:

(i) Firstly, this court is not bound by the 'submission' clause. It is the parties who bound themselves to the arbitration agreement when they entered into the contract of insurance.

(ii) Secondly, this court entered the fray with respect to the likelihood of having to make a determination on the arbitration clause when the defendant filed its special plea.

(iii) Thirdly, because of sanctity of contract, the plaintiff cannot, as of a right, insist that this court must impose its inherent jurisdiction on this dispute and simply override its obligation to peer into the efficacies of the reference to arbitration simply because the plaintiff chose to file a suit in this court. The whole point of filing a special plea is that the defendant is voicing its objection to the plaintiff's choice of forum for which the defendant requires a determination.

(iv) Fourthly, this court is seized with a deliberation on the points raised in the special plea, first, because it is only if the court finds, that, a reference to arbitration may run contrary to the justice of the matter, that this court will invoke its inherent jurisdiction.

(v) Fifthly, an arbitration agreement does not oust the inherent jurisdiction of this court, and, therefore, it cannot be concluded that a litigant who files a special plea is intent on trying to exclude this court from exercising its inherent jurisdiction.

I am emboldened in my reasoning because ample judicial precedent exists on this point which is aligned with my view.

MAFUSIRE J's dicta in Conplant Technology (Private) Limited v Wentspring Investments (Private) Limited HH965-15 is instructive.

In that case, (which was a court action) the defendant filed a special plea in which it relied on an arbitration clause which ousted the jurisdiction of the High Court where 'any dispute' had arisen and required determination. The defendant, who pleaded that the matter should first be referred to arbitration, filed a special plea to that effect.

The learned Judge had a far more complicated task than the task at hand here, but, be that as it may, the principles expounded by him in that case are aligned to those occurring in the current case.

In that case, the learned Judge referred to the Arbitration Act [Chapter 7:15] in his deliberations, and, in particular, Article 8(1) of the Model Law, First Schedule to the Arbitration Act [Chapter 7:15].

Article 8(1) of the Model Law, First Schedule of the Arbitration Act states:

“A court of law before which proceedings are brought in a matter which is subject of an arbitration agreement shall, if a party so requests, not later than when submitting his first statement on the substance of the dispute, stay those proceedings and refer the parties to arbitration unless it finds that the agreement is null and void, inoperative, or incapable of being performed.”

The learned Judge agreed with the defendant and determined that the parties' first port of call was to defer the matter to arbitration. He premised his decision from an understanding of the binding nature of such clauses to the parties to a contract when he said:

“In my view, and in my own words, it is now settled, that, a clause in a contract to refer a dispute to arbitration is binding on the parties. A party is not at liberty to resile from that clause at any time he may wish to do so. In terms of Article 8 of the Arbitration Act, where a party makes a timeous request for referral to arbitration, the court has to stay the matter and refer the dispute to arbitration unless the agreement is null and void, or is inoperable, or is incapable of being performed.”

In Bitumat Ltd v Multicom HH142-00 the learned SMITH J's opinion and decision, with respect to the application of arbitration clauses, is that they ought to be observed if the parties have entered into an agreement with an Arbitral Court.

MAKARAU JP…, made the same observation in Shell Zimbabwe (Pvt) Ltd v Zimsa (Pvt) Ltd 2007 (2) ZLR 366 when she simply said…,:

“Thus, in my view, while the court is bound to give effect to arbitration clauses in agreements, it is not bound to do so in circumstances where arbitration is not the expressed or implied first choice dispute resolution mechanism of the parties.”

In the current case, the plaintiff and the defendant clearly bound themselves to the terms of the policy document, and, in so doing, elected the arbitration route in circumstance where a dispute has arisen with respect to 'the payment of any amount.'”

Now, I have perused the clause 14 itself (in the current matter) and formed my own opinion as to what was intended by the parties when they contracted, and, quite simply, and within my understanding of Clause 14 as it appears on the Policy document itself, the parties intended, that, if a difference were to arise which concerns the amount of any claim, then, and in that event, the parties should first proceed to arbitration for a determination of the dispute.

The language used and its meaning is simple, and is not confusing nor is it shrouded in mystery. Therefore, it seems to me to that the arbitration clause is relevant to the current set of facts.

I turn now to a further point raised by the plaintiff in his heads of argument.

In the alternative, the plaintiff seeks to dissuade me from allowing a stay of the proceedings on the basis that even were the arbitration to proceed, the matter would still have to be further ventilated by way of court action before it is ultimately disposed of.

By this, the plaintiff seems to me to be saying that if I were to refer the matter to arbitration, then, in so doing, I would be prolonging the speedy dispensation of this case because the parties would still have to proceed with the matter in this court.

I have difficulty comprehending the point taken by the plaintiff because it seems to me, that, if the matter were to proceed to arbitration, the arbitrator's decision would result in a pronouncement on liability which would not have to be canvassed in this court thereafter.

There have been instances where the court has exercised its judicial discretion in favour of the matter continuing in court without reference to arbitration but that is because the justice of the matter called for that.

In Yorigaami Maritime Construction v Nissho-Iwal 1977 (4) CPD 682, the arbitration clause required the parties to proceed to arbitration in Japan. Basically, the claim before the court was one of damages and the assessment of such damages.

In determining the special plea taken, the court favoured overriding the reference to arbitration, and, instead, insisted on hearing the dispute locally in Cape Town. This was because the court recognised, that, it would not be efficacious for the matter to be heard in Japan. The shipping vessels which founded jurisdiction were docked in Cape Town. Investigations as to liability were to take place in Cape Town and all the witnesses were resident in Cape Town.

Further, the expert witnesses could never be compelled to testify in Japan.

Thus, it being obvious that the justices in the matter would be compromised by a reference to arbitration in Japan, all the above factors weighed in favour of the court exercising its inherent jurisdiction to hear and determine the matter.

In the result, and in applying the reasoning expounded to in Yorigaami Maritime Construction v Nissho-Iwal 1977 (4) CPD 682 to the facts of this case, I cannot find any reason (neither has one been pleaded) to conclude that the plaintiff would be prejudiced in the conduct of his case where I to allow the special plea taken and thus refer the matter to arbitration. Such a reference would not be prejudicial to the just dispensation of the plaintiff's claim.

It is my finding, that, it was appropriate for the defendant to file and move the special plea.

I will now go slightly off-topic to comment upon a factual observation which I made when reading the papers which I feel deserves mention.

In the plaintiff's pre-trial conference minute, the plaintiff referred to clause 14 and imputed his understanding of the clause itself with particular emphasis on what the plaintiff deemed to be the most significant portion of it.

When I peered closely at the minute filed by the plaintiff, I realized that the plaintiff had erroneously and/or negligently read the salient part of the clause as being;

“A. ISSUES

The plaintiff submits that the issues for the trial court in this matter are as follows:

(i) Whether or not a claim for breach of insurance contract (sic) and a claim for full cover/compensation of the comprehensively insured motor vehicle can be said to be an 'amount of 'the' claim' in toto as opposed to a claim of a party thereof? In other words, whether the dispute between the parties relates to the “amount/quantum of the claim per se.

(ii)…, etc.”…,.

Now, looking at Clause 14 itself, and paraphrasing it, it does not read in the manner that the plaintiff explains. In fact, the clause under scrutiny, as pleaded by the defendant in its special plea, reads as follows:

“SPECIAL PLEA

1. The plaintiff does not have a right of action against the Defendant. The insurance policy based on which the Plaintiff is insured by the Defendant, and based on which the Plaintiff sought to institute the present proceedings, clearly provides, under clause 14 of the conditions, that:

“Should any difference arise between the Company and the Insured as to the amount of 'any' claim under this policy shall be referred to arbitration in accordance with the statutory provisions for the time being in force applicable thereto, and the obtaining of any award shall be a condition precedent to any right of action against the company.”…,.

In other words, the plaintiff wrongly substituted the word 'any' with the word 'the'.

Even though the plaintiff incorrectly recorded the clause in this matter, the discord between the parties would still pertain to “the amount of claim”, or put differently, what amount, if any, the defendant would be obligated to pay to the plaintiff.

Returning to the plaintiff's objections, the plaintiff took another point. In the plaintiff's words, he argued as follows:

“It is further submitted, that, in suspending a pending matter before it, there must have been a proper application for stay of proceedings for consequential reference to arbitration by a party who alleges that the matter is one that is arbitrable (sic) in the arbitration tribunal as per agreement of the parties.

Filing heads of argument on the special plea of arbitration is not such application as there are only three ways in which applications can be done in our law, that is, in terms of Order 32 Rule 226 of the High Court of Zimbabwe Rules, oral applications done during the course of the hearing, or as common law applications.

The defendant had simply filed its heads of arguments on the special plea, and had not made an oral application for a stay of proceedings on the grounds that the matter had to be referred to arbitration. Accordingly, the special plea is not properly before the court and ought to be dismissed.”

If the plaintiff is saying that the defendant ought to have made a special oral application for the action to be stayed, prior to applying for the special plea to be granted, then, I disagree with the plaintiff.

The effect of the defendant having filed and taken the special plea is that where the determination favours the defendant, then, and in that event, the proceedings are effectively stayed.

I had already mentioned, that, at the commencement of the trial, the defendant applied that the Special Plea be determined.

I directed the parties to submit Heads of Argument and that is how both parties filed their respective arguments with the court.

In my view, there is no need for a litigant taking a special plea to first argue for a stay and then ask the court to consider the special plea. The point taken is illogical and frankly disingenuous. The plaintiff needs to be disabused of the notion that the special plea is not properly before the court.

Order 21 Rule 138 of the High Court Rules states:

“138 Procedure on filing special plea, exception or application to strike out

When a special plea, exception, or application to strike out has been filed -

(a) The parties may consent, within ten days of the filing to such special plea, exception or application being set down for hearing in accordance with sub rule (2) of Rule 223;

(b) Failing consent, either party may, within the further period of four days, set the matter down for hearing in accordance with sub rule (2) of Rule 223;

(c) Failing such consent, and such application, the party pleading specially, excepting, or applying shall, within a further period of four days, plead over the merits if he has not already done so and the special plea, exception, or application shall not be set down for hearing before the trial.”

All that the defendant was required to do, to give the court notice that it was taking a special plea, was simply to file a special plea - which it in actual fact did.

By so filing the special plea, the defendant gave the plaintiff notice of the point it intended to take. If the plaintiff reasonably apprehended that the special plea taken was intended to waylay the requirement that there be finality to litigation, then, the plaintiff ought to have exercised his prerogative to set the matter down as envisaged in Rule138(b) of the High Court Rules.

The plaintiff is in no position to complain about the special plea not having been dealt with prior to the trial date because the plaintiff neglected to utilise his option to bring about an earlier determination of the special plea by invoking Rule 138(b) of the High Court Rules.

The plaintiff did not do so, and, therefore, the scenario envisaged in Rule 138(c) of the High Court Rules came about, and, clearly, then, the matter would only be resolved at the trial hearing - which is what happened.

In fact, the parties both agreed, in their joint pretrial minute filed of record on 5 February 2015, that, the first issue to be tackled was an adjudication of the arbitration clause.

I therefore disagree with the plaintiff on this point taken.

I need to address the relief sought by the defendant in the event that the special plea is upheld.

The defendant has asked, that, in upholding the plea, the court should order that the plaintiff's claim be dismissed with costs on a legal practitioner scale and referred to arbitration in compliance with the Policy.

I am hesitant to go as far as pronouncing a dismissal on the action altogether because I have only turned my attention on the aspect of the proper forum.

If I were to order a dismissal, it may place the entire issue into the realms of res judicata and my reluctance to do so is so as not to confuse the parties that my ruling is on the merits which is obviously not the position.

It is to that end that I will avoid giving the parties the impression that I have entertained the merits. Thus, my pronouncement will go as far as dealing with item (1) on the pre-trial conference issues which was:

“1. Whether or not the matter should be referred to arbitration.”

From a reading of clause 14 itself, the arbitrator will be seized with a determination of the Issues 2 and 3 recorded on the joint pre-trial minute which pertain to the issue of the amount and which are recorded as follows:

“2. Whether the plaintiff or the defendant breached the terms of the insurance policy? and

“3. How much is the quantum payable by the defendant to the plaintiff, if any?”

I therefore order as follows:

1. The current proceedings are stayed, and that, in terms of Clause 14 of the arbitration clause in the policy document, the matter is referred to arbitration for determination.

2. Costs are to be costs in the cause.

HH164-18 : TRUSTEES FOR THE TIME BEING OF TONGOGARA COMMUNITY SHARE OWNERSHIP TRUST vs MATRIX REALTY (PVT) LTD
Ruled By: MUREMBA J

This is an application for rescission of a default judgment where the applicant prays for relief in the following terms:

“It is ordered that:

1. The application be and is hereby granted.

2. The apparent delay in bringing an application for rescission of judgment in terms of the rules shall be condoned.

3. Default judgment granted by this court, on 24 May 2017, in Case No. HC1863/17, be and is hereby rescinded.

4. The respondent and its legal practitioners de bonis propriis shall jointly and severally the one paying the other to be absolved pay the costs of this application on a legal practitioner and client scale.”

The background to this matter can be aptly summarized as follows:

The applicant and a company called Kelor Investments (Pvt) Ltd entered into an agreement of sale of immovable property. The contract was brokered by the respondent and the contract stated that the respondent would be entitled to agent's commission at the rate of 5% of $950,000 plus 15% VAT; the said $950,000 being the purchase price at which the immovable property in question was sold.

The parties to the contract agreed, that, the respondent was entitled to agent's commission from the seller, and, further, that, in the event of breach of the contract, the party in breach would be liable for payment of the said commission to the respondent.

It happened, that, the applicant, being the buyer, after signing the contract, did not pay the purchase price by the agreed timeline, only to write a letter to the seller's lawyers saying it was cancelling the contract.

The respondent sued for its commission from the applicant in the sum of US$54,625 on the basis that it was the applicant which had breached the agreement of sale.

The respondent obtained a default judgment after the applicant failed to file opposing papers within the prescribed time.

It is this default judgment, granted by this Court on 24 May 2017, in Case No. HC1863/17, which is now subject of this application for rescission.

At the hearing, the respondent, having abandoned the point raised in limine, that, the application was improperly before the court having been filed out of time, the matter was then argued on the merits.

The basis for the application for rescission of judgment, as averred in the applicant's founding affidavit, was that judgment was fraudulently sought by the respondent before the expiration of the dies induciae and was erroneously granted by this court.

The applicant also averred it has a bona fide defence to the respondent's claim.

In opposition, the respondent denied all that the applicant averred and proved that it had not obtained the default judgment fraudulently. It further averred that the applicant had no bona fide defence to its claim.

In the answering affidavit, the applicant departed from the allegations of fraud by the respondent and pleaded mistake on its part in failing to file its notice of opposition on time.

Clearly, there was a conflict between the averments in the founding affidavit and the averments in the answering affidavit.

Despite this apparent conflict, the applicant went ahead with the matter as it was, filed heads of argument and had the matter set down for hearing.

During the hearing, I asked counsel for the applicant to explain and reconcile the apparent conflict in the applicant's founding affidavit and the answering affidavit.

Counsel for the applicant, having realized the rough terrain of the applicant's case, moved for the withdrawal of the application and tendered costs to the respondent.

Despite the intention to withdraw the application, counsel for the respondent moved an application for dismissal of the applicant's application with costs on a higher scale arguing that the matter had already been argued, and, as such, there was need to bring finality to litigation in the matter.

The application for dismissal of the application was opposed by the applicant.

It is this oral application for dismissal which is now the subject matter of this judgment.

The question is: under what circumstances should a court exercise its discretion in favour of a dismissal of a matter in the face of an intended withdrawal?

It is unfortunate that the rules of this court do not deal with the issue of withdrawal of matters.

In support of his application for dismissal, counsel for the respondent drew the attention of the court to a number of South African cases and one Zimbabwean constitutional case of Everjoy Meda v Maxiwell Matsvimbo Sibanda & 2 Others CC10-16 which apparently makes reference to a number of South African authorities.

In that case, the applicant approached the Constitutional Court alleging infringement of her right to property. The matter was set down for hearing. At the hearing, the first respondent's counsel who happened to be the same Mr Mpofu who is representing the respondent in the current matter, took several points in limine.

When it was the applicant's counsel, Mr Uriri's turn to respond, he indicated that he had instructions to withdraw the matter.

MALABA DCJ…, had this to say;

“Mr Uriri, for the applicant, indicated that he had instructions to withdraw the matter and sought to apply that the matter be withdrawn. Mr Mpofu opposed this application arguing that the matter should not be withdrawn, but that the Court exercises its discretion and dismiss the matter with costs on a higher scale.

While parties may, at any time before a matter is set down, withdraw a matter, with a tender of costs, the same does not hold true for a matter that has already been set down for hearing. Once a matter is set down, withdrawal is not there for the taking.

The applicable principles are set out in ERASMUS 'Superior Court Practice' B1-304.

A person who has instituted proceedings is entitled to withdraw such proceedings without the other party's concurrence and without leave of the court at any time before the matter is set down. The proceedings are those in which there is lis between the parties one of whom seeks redress or the enforcement of rights against the other. An application for appropriate relief on the grounds of alleged violation of a right is such a proceeding.

Once a matter has been set down for hearing it is not competent for a party who has instituted such proceedings to withdraw them without either the consent of all the parties or the leave of the court. In the absence of such consent, or leave, a purported notice of withdrawal will be invalid.

The court has a discretion whether or not to grant such leave upon application.

The question of injustice to the other parties is germane to the exercise of the court's discretion. It is, however, not ordinarily the function of the court to force a person to proceed with an action against his will or to investigate the reasons for abandoning or wishing to abandon one.

See: Abramacos v Abramacos 1953 (4) SA 474 (SR); Pearson & Hutton NNO v Hitseroth 1967 (3) 591 (E) at 593D, 594H; Protea Assurance Co Ltd v Gamlase 1971 (1) SA 460 (E) at 465G; Huggins v Ryan NO 1978 (1) SA 216 (R) at 218D; Franco Vignazia Enterprises (Pty) Ltd v Berry 1983 (2) SA 290 (C) at 295H; Levy v Levy 1991 (3) SA 614 (A) at 620B; HERBSTEIN & Van WINSEN 'The Civil Practice of the High Courts and Supreme Court of Appeal of South Africa' (5ed) p750.

From the above authorities, it is the law that a court, having satisfied itself that a matter is properly before it, can refuse to grant an application for withdrawal of the matter.”

This case summarises what the other authorities say on the same issue. The case is self–explanatory.

In casu, the matter was set down for hearing, and, it was during the hearing, and in the course of making submissions, that, the applicant's counsel sought to withdraw the matter.

Clearly, under the circumstances, the applicant needed the consent of the respondent to withdraw or the leave of the court in the absence of the consent of the respondent.

In granting the leave, the court exercises its discretion.

The court can either grant or refuse the application. Where justice requires that finality in litigation be reached, if possible, and where the withdrawal amounts to an abuse of process, the court may decline leave to withdraw.

In casu, I am not inclined to grant the leave to withdraw because it is clear that the applicant now wants to withdraw its application because of the glaring conflict that is between its founding affidavit and answering affidavit - which conflict it has always been aware of.

The applicant became aware that the allegation of fraud it had made in its founding affidavit was false at the time the respondent filed its notice of opposition and when the same parties were involved in separate legal proceedings for stay of execution pending the hearing of the present application for rescission.

The applicant could have withdrawn its application at that stage - but it did not.

Instead, it went ahead and filed its answering affidavit, now tendering a new and contrary explanation of mistake on its part. It went ahead and had heads of argument prepared. In the heads of argument, its counsel even discussed the conflict, but, despite that, the applicant went ahead and had the matter set down for hearing. It did not see the need to withdraw.

In opposing the withdrawal, counsel for the respondent submitted, that, the applicant was alerted to the falsity of the explanation in its founding affidavit in good time but it did not take heed. He further submitted, that, even in the morning of the hearing date, before the hearing had commenced, he asked for a withdrawal of the matter without consequences, but counsel for the applicant was not forthcoming.

It was only upon the realisation that the court was taking issue with the contradiction in its papers, during the hearing, that the applicant sought to withdraw.

Allowing a withdrawal under such circumstances will set a bad precedent as parties will move to withdraw cases in the middle of arguments each time they realize that a matter is not going their way.

The disadvantage of withdrawals is that they do not bring finality to matters.

After the matter has been withdrawn, the applicant can rectify the perceived errors and re-lodge the same application thereby inundating the courts with too many cases. Clearly, this will be an abuse of court process.

In light of the foregoing, I will not grant the applicant leave to withdraw the application for rescission of the default judgement.

In opposing the application to withdraw, counsel for the respondent moved an application for dismissal of the applicant's application arguing that the matter had already been argued.

The case authorities, including the case of Everjoy Meda v Maxwell Matsvimbo Sibanda & 2 Others CC10-16 do not say that if the court declines the applicant the leave to withdraw its application then it (the court) should automatically dismiss the application.

I believe, that, after the refusal to withdraw, the matter should be allowed to proceed to be heard fully to enable the court to give judgment in the usual manner.

In the case of A v B and C 1976 (4) SA 31…, GOLDIN J had this to say;

“An order dismissing applicant's application can therefore only be granted by consent (which is not the case in the present case) or upon the court giving judgment in the usual manner….,..Where the Court is to give judgment in the usual manner implies that the court has to consider the merits of the case. The belated withdrawal cannot deprive the court of its discretion to proceed with the hearing of the matter.”

In Everjoy Meda v Maxwell Matsvimbo Sibanda & 2 Others CC10-16 it was held;

“It is, however, not ordinarily the function of the court to force a person to proceed with an action against his will or to investigate the reasons for abandoning or wishing to abandon one.”….,.

These authorities show that if a withdrawal is declined, the court will continue to hear the matter and then make a determination on the merits.

An applicant who brings an application for rescission of a default judgment under Order 9 Rule 63(2) has the onus to show “good and sufficient cause” for the court to exercise its powers in his favour. The factors which are normally considered by the court, in deciding whether there is 'good and sufficient cause' are;

(a) The reasonableness of the applicant's explanation for the default;

(b) The bona fides of the application to rescind the judgment; and

(c) The bona fides of the defence on the merits of the case and whether the defence carries some prospect of success.

In casu, when counsel for the applicant indicated that he was seeking to withdraw the matter he had not yet finished arguing the matter. He was still arguing on the reasonableness of the applicant's explanation for the default.

On the other hand, counsel for the respondent had not yet had the opportunity to argue for the respondent in response.

I will thus order that the parties fully argue the matter for a determination on the merits.

Consequently, it is ordered that:

1. The application for withdrawal of the application for rescission of the default judgment be and is hereby dismissed.

2. The hearing of the application for rescission of the default judgment shall proceed.

3. Costs shall be in the cause.

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.

In the judgment HH604-18, the learned judge made an order that “this order shall not be suspended by any appeal by either party but shall remain in force not withstanding such appeal.”

The first respondent was dissatisfied with the judgment. He noted an appeal against that judgment.

The notice of appeal was not attached to the papers but it appears common cause that such appeal was noted.

The applicant, in its founding affidavit, did not relate to the appeal nor deny its existence save in the answering affidavit, in paragraph 4, where, in denying that the matter is lis pendens, the applicant contended that an order was made that the noting of an appeal would not suspend the operation of judgment no. HH604-18.

The first respondent, on the other hand, averred that his appeal was also against the order decreeing the judgment to remain operational despite the noting of the appeal.

The applicant also averred that the “purported” appeal did not affect this application.

I cannot agree in view of my interpretation that transfer in terms of Rule 361 cannot be proceeded with until the court challenge processes given in Rules 359(8) and (9) have been finalized.

The applicant also attached the judgment of the HONOURABLE BERE JA delivered under case no. SC843/18 and bearing case citation SC02-19.

In that application, the first respondent filed an urgent application seeking interim relief that transfer of the property be stayed pending the determination of his appeal against the judgment HH604-18.

The learned judge dismissed the application for want of form and for the first respondent's failure to apply for condonation or to give an explanation for not using Form 29 or Form 29B of the rules of court.

The learned judge expressed his displeasure at what he described as “errant conduct” by the first respondent in engaging in endless and hopeless litigation to frustrate full execution on the judgment.

The learned judge's remarks were expressed obiter because the first respondent's application was found lacking or wanting as to form.

What, however, did not escape my attention was that neither MATHONSI J…, nor BERE JA made an order specific that the fourth respondent should transfer the property to the applicant.

The learned judges ruled in favour of the continuation of due process of execution.

The first respondent then purported to correct his defective application, which had been dismissed by BERE JA for want of form, by filing another application on 21 January 2019 seeking the same relief as sought in the dismissed application.

Under case no SC15-19, the Honourable GWAUNZA DCJ struck the application off the roll.

I imagine that since the same application had not been struck off the roll by BERE JA, but dismissed, it was incompetent for the first respondent to file the same application seeking the same relief.

The earlier dismissal had the effect of res judicata on the issue.

SC81-21 : FRANK HUMBE vs DESMOND MUCHINA and SPARKLES SERVICES (PVT) LTD and GODFREY MUNYAMANA and SHERIFF OF ZIMBABWE and FADZAYI MUNYAMANA
Ruled By: BHUNU JA, MATHONSI JA and KUDYA AJA

The appellant brought an urgent chamber application in the High Court for a stay of the execution of a judgment obtained by the first respondent against the second and third respondents on 12 February 2018 in the sum of US$352,851=30 together with interest and costs of suit.

By judgment delivered on 21 August 2020, the High Court dismissed the application with costs.

This appeal is against that judgment dismissing the appellant's urgent application.

THE FACTS

The third and fifth respondents, who are husband and wife, hold title to Stand 67 Guildford Estate Township of Subdivision H of Guildford of Borrowdale Estate, also known as No.67 Guildford Crescent, Borrowdale, Harare (the house) by Deed of Transfer Number 1447/2009.

On 15 November 2013, they entered into a Deed of Sale in terms of which they sold the house to the appellant for US$380,000 payable in certain instalments from 30 November 2013 to 30 June 2014.

There is no convergence between them as to whether the full purchase price was paid.

The appellant alleges having paid part of the purchase price through the sale of his own neighbouring house, through the agency of the second respondent, and part of it through the sale to the third respondent of his Mercedes Benz S Class motor vehicle.

The appellant alleges, further, that, although he failed to pay the cash balance of the purchase price in accordance with the agreement, he has however paid it in full.

On the other hand, the third and fifth respondents position is that the appellant defaulted in his payments, and, after giving him the requisite 30 days notice, in terms of the Deed of Sale, they duly cancelled the agreement.

Notwithstanding such cancellation, the appellant still sued the second, third, and fifth respondents in case number HC11367/15, which was filed on 20 November 2015, for an order compelling transfer of the house to himself and for their eviction from it.

The summons action in question was defended and does not appear to have been prosecuted with any zeal thereafter.

Meanwhile, the second and third respondents were sued by the first respondent, in case number HC11601/17, which summons action was filed on 14 December 2017. He obtained judgment against them on 12 February 2018 in the sum of US$352,851=30 plus interest and costs of suit aforesaid.

A writ was thereafter issued which the fourth respondent was instructed to execute. In pursuance whereof the house in dispute was placed under judicial attachment.

Following the attachment, the appellant lay a claim to the house motivating the fourth respondent to institute interpleader proceedings under case number HC7525/19.

By judgment delivered on 9 June 2020, in The Sheriff for Zimbabwe v Humbe & Anor HH378-20, CHINAMORA J dismissed the appellant's inter-pleader claim and declared the house executable.

The judgment remains extant and has not been appealed against.

Instead, the appellant filed a further application, on 21 July 2020, under case number HC3805/20. He sought an order setting aside the writ of execution in terms of which the house was attached.

The basis of the application was that the Sheriff was enjoined by Rule 326 of the High Court Rules to first diligently pursue the attachment of a debtor's movable property before going against immovable property.

In addition, the appellant took the view that the house could not be the subject of execution as it was res litigiosa having been the subject of litigation in HC11367/15.

In the same application, the appellant also sought a declaration that his rights in the house “preceded” those of the first respondent. He also sought an order that the house be transferred to him.

This, the appellant sought, in spite of the judgment of CHINAMORA J, issued on 9 June 2020, which, as I have said, remains extant.

At the same time that the appellant filed the court application, in case number HC3805/20, he also filed the urgent chamber application for interim relief of a stay of execution which is the subject of the present appeal.

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

The stay of execution was sought pending the finalisation of his claim in HC11367/15 and his application for a declaratory order and the setting aside of the writ which is case number HC3805/20.

DECISION A QUO

The court a quo found, that, the appellant had failed to pay the full purchase price for the house in terms of the Deed of Sale. In doing so, the court a quo was fortified by the fact that the Deed of Settlement signed by the appellant and the third respondent, on 12 December 2017 which, although later repudiated by the third respondent as having been procured by duress, acknowledged that there was still an outstanding sum of US$50,000.

The court a quo recognised that both Rules 326 and 327 of the High Court Rules provide for options to a party which applied for the issuance of a writ. They do not provide a remedy to the appellant.

After criticizing the interim relief sought by the appellant, which was the same as the final order sought, the court a quo wondered how the appellant could have filed further applications in the face of the judgment of CHINAMORA J which I have alluded to above.

It was the court a quo's finding, that, given that the house was registered in the names of the third and fifth respondents, they hold real rights over the house.

The appellant never acquired any real rights over it.

The attachment of the house by the Sheriff, in pursuance of a writ of execution, gave the first respondent, as the judgment creditor in whose favour the writ was issued, a pignus judiciale on it created by the attachment. That is to say, an attachment creates a judicial mortgage on the property so attached.

The conclusion of the court a quo was that the appellant failed to establish a prima facie right over the house as would entitle him to a stay of execution.

His claim, through inter pleader proceedings, having failed, and the house declared executable, the appellant was seeking “to mount a second bid based on essentially the same facts.” He was precluded from doing so because the court a quo had already pronounced itself on the issue.

Overcome by grief as a result, the appellant launched this appeal on grounds set out below:

GROUNDS OF APPEAL

1. The court a quo erred in fact and grossly misdirected itself in finding that the appellant breached the contract of sale by failing to pay the full purchase price by the date that the price was due.

2. The court a quo erred in fact and grossly misdirected itself in finding that the appellant caused the arrest and prosecution of the fifth respondent on fabricated allegations of fraud and coerced the third respondent to sign the Deed of Settlement using the fifth respondent's arrest.

3. The court a quo erred at law and grossly misdirected itself in finding that the dispute between the parties, in the instant matter, is res judicata.

4. The court a quo erred at law and grossly misdirected itself in disregarding that the property in dispute is res litigiosa and in further failing to give any reasons for such discount.

5. The court a quo erred at law and grossly misdirected itself in disregarding that the application was an application for stay of execution pending a court application in terms of Rule 340 of the Rules of the High Court and in failing to give any reasons for such discount.

6. The court a quo erred at law and grossly misdirected itself in determining that the interim relief was the same as the final relief, and, as such, the relief could not be granted when in fact the interim and final reliefs were different; and, even if the reliefs were the same, the court could and it ought to have granted it either way even if it were to be found to be the same.

7. The court a quo erred at law and grossly misdirected itself in exercising its discretion without addressing the requirements of and purpose for proceedings for stay of execution.

8. The court a quo erred at law and grossly misdirected itself in finding that Rule 326 of the High Court Rules can only be invoked by a person who applied for the writ of execution.

ISSUE FOR DETERMINATION

Clearly, the grounds of appeal stray from the field of discourse. They seem to attack every pronouncement in the judgment a quo without identifying the ratio decidendi.

The court a quo dismissed the application because it made a finding that the appellant failed to prove a prima facie right over the house. This was moreso regard being had that the same court had already pronounced itself when it declared the house executable.

In that regard, only one issue commends itself for determination in this appeal: it is whether the court a quo erred in dismissing the application for stay of execution.

THE LAW

The appellant approached the court a quo for a stay of execution pending the prosecution of a summons claim to compel transfer of the house to himself, which by then had been pending for five (5) years, and a court application which seeks both a declaratory order that he possesses superior rights in the house and that the house be transferred to him.

The court application also seeks the setting aside of a writ issued in favour of the first respondent against a house not registered in the appellant's name but those of the judgment debtors in that suit.

The execution of a judgment is a process of the court.

The court therefore retains an inherent power to manage that process having regard to the applicable rules of procedure.

What is required for a litigant to persuade the court to exercise its discretion in favour of granting a stay in the execution of the court's judgment has been stated in a number of cases.

In Mupini v Makoni 1993 (1) ZLR 80 (S)…, this Court stated the position of the law quite clearly:

“In the exercise of a wide discretion, the court may, therefore, set aside or suspend a writ of execution, or, for that matter, cancel the grant of a provisional stay. It will act where real and substantial justice so demands. The onus rests on the party seeking a stay to satisfy the court that special circumstances exist.

The general rule is that a party who has obtained an order against another is entitled to execute upon it.

Such special reasons against execution issuing can be more readily found where, as in casu, the judgment is for ejectment or the transfer of property, for, in such instances, the carrying of it into operation could render the restitution of the original position difficult: see Cohen v Cohen (1) 1979 ZLR 184 (G) at 187C; Santam Ins Company Limited v Paget (2) 1981 ZLR 132 (G) at 134G–135B; Chibanda v King 1983 (1) ZLR 116 (H) at 119C-H; Strime v Strime 1983 (4) SA 850 (C) at 852A.”

It is settled in this jurisdiction, that, a judgment creditor is entitled to attach and have sold in execution the property belonging to the judgment debtor. This is so even in a situation where a third party has a personal right against such a debtor in respect of the same property. The position is the same even where the personal right of the third party preceded the attachment of the property: see HERBSTEIN and Van WINSEN, Civil Practice of The Superior Courts in South Africa 3Ed…, (quoted with approval in Maphosa & Anor v Cook & Ors 1997 (2) ZLR 314 (H)…,.).

To that should be added the hallowed principle of our law, that, the conveyance of ownership in immovable property from person to person is achieved through the registration of transfer at the deeds registry. Real rights in an immovable property are held only by registration at the Deeds Registry.

This was underscored by this Court in the seminal remarks made in Takafuma v Takafuma 1994 (2) ZLR 103 (S)…,;

“The registration of rights in immovable property, in terms of the Deeds Registries Act [Chapter 20:05], is not a mere matter of form. Nor is it simply a devise to confound creditors or the tax authorities. It is a matter of substance. It conveys real rights upon those in whose name the property is registered. See the definition of 'real right' in section 2 of the Act. The real right of ownership, or jus in re propria, is 'the sum total of all the possible rights in a thing' – see WILLE's Principles of South African Law 8ed p255.”

A party which lays a claim to property which has been placed under judicial attachment by the Sheriff, in the discharge of his or her duties as the executive of the court, has remedies provided for in the Rules of Court.

Such a party is required to submit a claim to the Sheriff in order to trigger the institution, by the latter, of interpleader proceedings in terms of Order 30 of the High Court Rules.

The court resolves the conflicting claims of parties in inter-pleader proceedings by either upholding the claimant's claim or dismissing it.

Where it finds the claimant's claim to be without merit, the court, in addition to dismissing the claim, ordinarily declares the property under attachment executable. The result is the opposite where the claim is upheld.

In the present case, after raising essentially the same arguments as in the urgent chamber application, the subject of this appeal, the appellant's interpleader claim was dismissed by the court a quo. It declared the house executable at the instance of the first respondent.

APPLICATION OF THE LAW TO THE FACTS

The first respondent has an extant judgment in his favour issued against the second and third respondents. The judgment is sounding in money, and, it was in pursuance of it, that a writ of execution was issued against the house.

The house is registered at the Deeds Registry in the name of one of the judgment debtors. It is the same house which the appellant lays a claim to by virtue of a Deed of Sale which ran into turbulence.

The dispute between the appellant and those of the respondents who sold the house to him had not been resolved by the courts at the time that the first respondent instructed the Sheriff to attach the house for sale in execution.

On the authorities that I have made reference to above, the judgment creditor, who is the first respondent, was entitled, at law, to have attached and sold in execution, the house which is registered in the name of his debtor.

The appellant is a third party who only has personal rights exercisable against the debtor in respect of the ownership and possession of the house.

As much as those personal rights came about prior to the attachment, or may have arisen prior to the first respondent's cause of action - that is of no moment in law.

The court a quo cannot be faulted for its finding that the attachment of the house in execution created a judicial mortgage or pignus judiciale.

The appellant's situation is exacerbated by the failure of his interpleader claim and the prior declaration made by the court a quo, that the house was executable in favour of the first respondent.

In dismissing the appellant's claim to the same house, CHINAMORA J, who determined the interpleader, relied on a line of authorities to the effect, that, where the house is registered in the name of the judgment debtor, he or she remains the owner of the property. For that reason, it is susceptible to execution.

The learned Judge concluded:

“In casu, the judgment debtor has title to the property. It is indeed immovable property. However, I propose to equate possession in the case of movable goods to title in respect of immovable property. To the extent that possession and title raise a rebuttable presumption of ownership, the principle in Zandberg v Van Zyl 1910 AD 258 at 272 applies to immovable property. The starting point is to examine the legal implication of title. Title confers real rights in immovable property. It cannot be gainsaid that a title deed is prima facie proof that a person enjoys real rights over the immovable property defined in the deed.”

The Sheriff for Zimbabwe v Humbe & Anor HH378-20.

It is against the foregoing background that the appellant approached the court a quo, for the second time, seeking a stay of execution to enable him to pursue the determination of the parties rights in the house all over again.

Those rights had already been determined by the same court in a judgment that was not impugned and remains extant.

In my view, the court a quo cannot be faulted for coming to the conclusion, that, after the appellant had chosen to pursue interpleader proceedings, which failed, he could not mount a second bid in the same court based, essentially, on the same facts.

It is true that the court a quo had already pronounced itself on the status of the house having declared it executable.

It is not the number of times that a litigant approaches the court seeking recourse which determines a matter in the litigant's favour - but the existence of a sustainable cause of action.

In this case, there was none.

DISPOSITION

I have set out what an applicant for a stay of execution is required to establish in order to motivate the exercise of the court's discretion in his or her favour, namely, that special circumstances exist for the court to halt its own execution process.

The appellant dismally failed to discharge that onus.

This is a case in which the same property had been declared executable by judgment of the same court. He had not appealed that judgment leaving it binding against the parties.

It would have been extremely incompetent for the court a quo to grant a stay of two judgments of its own definitively settling the rights of the parties.

In addition, the house, lawfully registered in the name of a judgment debtor, had been placed under attachment in execution of a valid judgment.

The appellant only possessed personal rights against the debtor which could not override real rights in law.

There was no legal basis for a stay and certainly no special circumstances as would invite the court to grant it.

I do not agree with counsel for the second, third, and fifth respondent's submissions that the appropriate order should have been the striking off of the application from the roll.

The reasons advanced for that proposition are clearly wrong.

The application was determined on the merits, the court having found that it lacked merit. It could only be disposed of by its dismissal.

Regarding the question of costs, this is an ill-conceived appeal, wholly without merit, and predicated on extraneous grounds. I see no reason why costs should not follow the result.

In the result, it be and is hereby ordered as follows:

1. That the appeal is dismissed.

2. That the appellant shall bear the costs.

SC93-21 : RINOS TERERA vs GEORGE LOCK and CK HOLLAND t/a HOLLAND ESTATE AGENT and ZIMBABWE HOUSING COMPANY (PVT) LTD and THE REGISTRAR OF DEEDS
Ruled By: CHITAKUNYE AJA

This is an opposed chamber application for condonation of non-compliance with the Supreme Court Rules 2018 and for extension of time within which to appeal.

Though at the outset the applicant did not state the Rule that was not complied with and the Rule under which this application is brought, it is apparent from the founding papers that the Rule not complied with is Rule 38(1)(a) and the application is in terms of Rule 43(1) of the aforesaid rules.

The intended appeal is against a judgment of the High Court handed down on 29 October 2020 upholding special pleas and dismissing the applicant's claim.

The applicant seeks an order in the following terms:

1. The application for condonation for non-compliance with the Supreme Court Rules 2018 be and is hereby granted.

2. That the application for extension of time within which to file and serve the appeal in terms of the Rules be and is hereby granted.

3. The appeal shall be deemed to have been filed on the date of this order.

4. There will be no order as to costs.

BACKGROUND

The applicant issued summons against the respondents on 9 June 2020 seeking an order:

(a) That the agreement of sale between the applicant and the first respondent be declared valid and still operational;

(b) Declaring the agreement of sale that was entered into between the first, second, and third respondents null and void;

(c) Nullifying the transfer of title of land by the fourth respondent into the third respondent's name; and

(d) That respondents pay costs of suit.

The facts giving rise to the above claim may be encapsulated as follows:

The applicant entered into an agreement of sale with the sellers of an immovable property described as Lot Number 17 Weirmouth Small Holdings of Weirmouth on 23 June 2014, namely, Laureen Tatenda Mvududu and Maureen Mazviita Middleton.

The first and second respondents acted as agents for the sellers in the transaction.

The agreement was in the names of the sellers.

The agreement of sale was subsequently cancelled and the applicant was advised of the same on 14 September 2015.

On 22 January 2016, that same property was sold to the third respondent through the agency of the first and second respondents.

Transfer was subsequently effected to the third respondent in that same year.

In his suit, the applicant did not cite the sellers upon whose mandate the first and second respondents acted.

The three cited respondents filed special pleas seeking the dismissal of the applicant's claim.

The first and second respondents sought the dismissal of the claim on the grounds, that, the claim had prescribed, that they had been wrongly cited, that the matter was res judicata and lis pendens.

The third respondent also sought the dismissal of the claim on the grounds, that, the claim had prescribed, the matter was res judicata, and that the applicant was estopped from claiming the setting aside of the third respondent's title deeds.

The applicant argued, that, the claim has not prescribed and that the matter was neither res judicata nor lis pendens.

He also argued, that, the sale to the third respondent was not above board. He alleged that the sale to the third respondent was fraudulent since there was no proper cancellation or termination of the sale agreement between him and the sellers.

The issues for determination on the special pleas were as follows:

(i) Whether or not the claim had prescribed;

(ii) Whether or not the matter was res judicata;

(iii) Whether or not the matter is lis pendens;

(iv) Whether or not the non-joinder of the former registered owners who sold the immovable property to the third respondent was fatal to the claim; and

(v) Whether or not the applicant was estopped from claiming the setting aside of the third respondent's title deeds.

After hearing submissions on the special pleas, the court a quo noted, that, the issue of lis pendens was not persisted with as the case that had given rise to it, namely, HC67/2020, had since been withdrawn by the applicant.

The court a quo proceeded to make a determination on the other grounds.

It held that the first and second respondents, being the agents who facilitated the sale and subsequent transfer of property to the third respondent for and on behalf of their principals, were unnecessarily joined to the action procedure.

The sellers and transferors having been known, their non-joinder in the case was thus fatal.

The non-joinder was coupled with misjoinder of the first and the second respondents who were discharging legal functions for and on behalf of their principals; there was therefore no valid claim against them.

The court further held, that, in terms of the Prescription Act [Chapter 8:11], section 15(d), the claim should have been made within three (3) years of the cause of action.

The judge a quo reasoned, that, the cause of action arose in 2015 when the applicant was notified of the cancellation of his agreement of sale with the sellers. It was also noted, that, despite knowledge that the property had subsequently been sold and transferred to the third respondent, in 2016, the applicant had not acted to protect his perceived interests till June 2020 when he issued the summons in question.

In upholding the special pleas, the court a quo stated thus:

“Considering the totality of submissions, it is clear, that, the cancellation of the sale agreement between the Plaintiff and the first and second defendants principals was communicated as early as 2015. Further communication, in 2016, and subsequent sale of the property to third defendant, culminating in transfer in 2016, was to the knowledge of the Plaintiff. The Plaintiff, despite the knowledge, did not take action until June 2020 when he issued summons. The Defendants special plea, that the Plaintiff's claim must be dismissed on the basis of prescription, estoppel, non-joinder, and misjoinder is well supported by the facts of this matter. The special pleas must succeed.”

Accordingly, the applicant's claim was dismissed.

The applicant was aggrieved by the decision of the court a quo.

In terms of Rule 38(1)(a) he ought to have noted his appeal within 15 days from the date of judgment. He was unable to do so hence this application for condonation of non-compliance with the Rule and extension of time within which to appeal.

APPLICANT'S SUBMISSIONS

The applicant submitted that he only became aware of the judgment on 2 November 2020.

He further submitted, that, the reason for the late noting of the appeal was that he had assumed that he could file the appeal within thirty (30) days of that date. As a result of that assumption, he attested to the founding affidavit on 21 December 2020. When he later approached court to inquire on the matter he was informed that he was out of time as the dies induciae was fifteen (15) days.

The applicant did not, however, disclose the date he approached court.

It could certainly not have been before 21 December 2020.

He conceded, that, he had failed to give a reasonable explanation for the delay between 21 December 2020, when he attested to the affidavit, and 31 March 2021 when he filed the present application.

He, in fact, acknowledged that he had not rendered any explanation for that latter period of the delay.

The applicant averred, that, he, however, had bright prospects of success on appeal because the court a quo had failed to deal with the issues on the merits.

RESPONDENTS SUBMISSIONS

All the respondents opposed the application and contended that the delay was inordinate and the applicant had not proffered a reasonable explanation for the delay.

They also contended, that, there were no prospects of success on appeal as not only were the grounds of appeal defective, but they, in fact, did not impugn the decision of the court a quo in upholding the special pleas.

As far as the respondents were concerned, the applicant has not met the requirements for condonation of failure to file the appeal in time and for an extension of time within which to file the notice of appeal.

Both counsel for the respondents were in unison on these submissions.

Counsel also submitted that the applicant had approached the court on the wrong Rule, as he had made reference to Rule 30 and Rule 38 in the application.

They further submitted, that, the applicant had been very provocative in his language and relentless in the manner in which he approached the courts, which amounts to an abuse of court process.

The applicant had virtually attacked court officials, including the Judge a quo, on matters that had not been placed before that court.

They thus prayed that the application be dismissed with costs on a higher scale as a measure of censure and to caution the applicant to take court business seriously and desist from bitter and paranoid conduct.

ISSUE FOR DETERMINATION

The issue for determination is whether or not the applicant has established sufficient cause for the grant of the order sought.

APPLICATION OF THE LAW TO THE FACTS

It is trite, that, where a litigant realises that they have fallen foul of court rules, they ought to apply for condonation without delay. The litigant must give an acceptable explanation for the failure to comply with the particular rule and for the delay in approaching court seeking condonation: see Viking Woodwork (Private) Limited v Blue Bells Enterprises (Private) Limited 1998 (2) ZLR 249 (S)...,.

One must be candid with the court in their explanation in order to satisfy the court that the explanation is reasonable and deserves the court's empathy and that there are prospects of success on appeal if granted the indulgence.

In Kodzwa v Secretary for Health & Anor 1999 (1) ZLR 313 (S)..., the court aptly indicated that:

“The factors which the court should consider in determining an application for condonation are clearly set out in HERBSTEIN & Van WINSEN's The Civil Practice of the Supreme Court of South Africa, 4ed, by Van Winsen, Cilliers and Loots at pp897-898 as follows:

'Condonation of the non-observance of the rules is by no means a mere formality. It is for the applicant to satisfy the court that there is sufficient cause to excuse him from compliance…,.

The court's power to grant relief should not be exercised arbitrarily and upon the mere asking, but with proper judicial discretion, and, upon sufficient and satisfactory grounds being shown by the applicant.

In the determination whether sufficient cause has been shown, the basic principle is that the court has a discretion, to be exercised judicially upon a consideration of all facts, and, in essence, it is a matter of fairness to both sides in which the court will endeavour to reach a conclusion that will be in the best interests of justice.

The factors usually weighed by the court in considering applications for condonation…, include;

(i) The degree of non-compliance;

(ii) The explanation for it;

(iii) The importance of the case;

(iv) The prospects of success;

(v) The respondent's interest in the finality of his judgment;

(vi) The convenience of the court; and

(vii) The avoidance of unnecessary delay in the administration of justice.'”

In Bessie Maheya v Independent Africa Church SC58-07, MALABA JA..., reiterated the position as follows:

“In considering applications for condonation of non-compliance with its Rules, the Court has a discretion, which it has to exercise judicially, in the sense that, it has to consider all the facts and apply established principles bearing in mind that it has to do justice. Some of the relevant factors that may be considered and weighed one against the other are:

(i) The degree of non-compliance;

(ii) The explanation therefor;

(iii) The prospects of success on appeal;

(iv) The importance of the case;

(v) The respondent's interests in the finality of the judgment;

(vi) The convenience to the Court; and

(vii) The avoidance of unnecessary delays in the administration of justice.”

It is pertinent that the application must be bona fide and be premised on relevant factors. The applicant must be candid with the court on the factors he/she seeks to rely on in the application.

In casu, the applicant sought to rely on:

(i) The extent of the delay, which he deemed not inordinate;

(ii) The explanation for the delay; and

(iii) Prospects of success.

These factors must be considered in their proper perspective....,.

PROSPECTS OF SUCCESS ON APPEAL

It is settled, that, where no acceptable explanation for non-compliance with the Rules has been given by an applicant seeking condonation for the late noting of an appeal, one must, at the very least, show very good prospects of success if the indulgence is to be granted: see Mahachi v Barclays Bank of Zimbabwe SC06-06; and Kombayi v Berkout 1988 (1) ZLR 53 (SC).

The applicant is required to show that he has an arguable case on appeal.

In Essop v S [2014] ZASCA 114, the court aptly stated the following...,.:

“What the test of reasonable prospects of success postulates is a dispassionate decision, based on the facts and the law, that a court of appeal could reasonably arrive at a conclusion different to that of the trial court.

In order to succeed, therefore, the appellant must convince this Court, on proper grounds, that he has prospects of success on appeal and that those prospects are not remote, but have a realistic chance of succeeding.

More is required to be established than that there is a mere possibility of success, that the case is arguable on appeal, or that the case cannot be categorised as hopeless. There must, in other words, be a sound, rational basis for the conclusion that there are prospects of success on appeal.”…,.

See Dzvairo v Kango Products SC35-17.

In casu, the main issue for determination is whether or not the court a quo erred in upholding the special plea and dismissing the claim as a result.

For an appeal to enjoy any prospects of success it must attack the findings of the court a quo on the issues before it for determination. Grounds of appeal that do not address or attack the findings upon which the determination was made would have no prospects of success at all.

In casu, the court a quo's determination was on the special plea.

The court a quo upheld the special plea and dismissed the applicant's claim on the grounds that the claim had prescribed; that there was non-joinder and mis-joinder; and that the applicant was estopped from seeking the setting aside of the third respondent's title.

The applicant's grounds of appeal do not attack any of the above findings by the court a quo.

Instead, the purported grounds of appeal, defective as they are, pertain to issues that were not argued before the court a quo.

The grounds of appeal are crafted as follows:

“1. Non-Refund of the applicant's deposit of US$35,000 binds parties to this agreement.

2. The court a quo deliberately violated section 74 of the Constitution. No competent court ever heard this case which then ordered the cancellation of the agreement of sale.

3. Third respondent is a criminal accomplice as he bought a disputed property well aware a dispute existed.

4. The court a quo erred at law for deliberately non recuse (sic) of herself in a case (the Judge) has interest in, second respondent is an agent of the High Court Sheriff at Mutare High Court, fair judgment is impossible.

5. Conflict of interest as second respondent's duties as an Estate Agent and an Agent of the Sheriff of the High Court are in conflict.

6. Gross misconduct and criminal abuse of office by the Judge to preside in a case she has interest in.

7. Deliberate violations of the agreement of sale by the Judge, second respondent has no power of attorney, the purported cancellation by second respondent is unlawful and of no effect or force.

8. The court a quo deliberately ignores double sale by first and second respondents to third respondent.

9. The court a quo cannot prove a breach, neither do respondents.

10. The court a quo erred by assuming this case was brought to court in June 2020, when in fact it was at the courts in August 2017. See annexure E.

11. Fraudulent court orders, Annexures 'J' 0224983 and 'K' HC2042/19 are a result of a fraudulent Notice of set down urgent chamber application Annexure 'I' HC1377/19 as it is not served on the applicant. It has a wrong surname, wrong address, and faxed at odd hours of business, 2:11am.”

The grounds of appeal do not challenge findings that he was advised of the cancellation of the agreement of sale in 2015 hence when he filed the summons in issue, on 9 June 2020, a period of more than 3 years had lapsed; that the first and second respondents were merely acting as agents for the owners of the property who were known to the applicant and so could not be sued in place of known principals; and that he knew about the sale and transfer to the third respondent in 2016, and, so, by the time he issued the summons in question, a period of three years had lapsed.

It may also be noted, that, the relief that he seeks on appeal is on the merits and is the same as in the summons.

The relief is thus incompetent as it is premised on the merits of the matter when the intended appeal ought to have been on the determination on the special pleas.

Clearly, the applicant has lamentably failed to establish an arguable case on appeal for which I can grant the order sought.

There are no prospects of success at all.

The respondents counsel, in seeking costs on the higher scale, alluded to the litigious nature of the applicant in spite of extant court orders against him which he has not challenged and the fact that the property in question was transferred to the third respondent in 2016 to his knowledge.

Transfer to the third respondent was effected more than three years ago yet the applicant still drags the respondents to court on unsustainable claims.

In this regard, they submitted, that, the applicant has been constantly in and out of the courts in a plethora of matters, some of which were referred to as case numbers HC1236/17, HC8602/17, HC1377/19, HC2042/19, MUTP 3015-16/18, Mutare Magistrates Court 2102/17, not to mention open files before the Anti-Corruption Court, the Law Society of Zimbabwe, and the Judicial Service Commission Secretariat.

The applicant clearly is very litigious and unrelenting despite advice that his complaints were not sustainable.

It is in the interests of justice that court proceedings be brought to finality.

Competent orders affording real rights to the third respondent remain extant as the applicant has not appealed against them.

They thus submitted that the applicant be mulcted with costs on a higher scale.

I am inclined to agree with the respondents on this point.

The applicant's Achilles heel is his failure to seek appropriate legal advice in pursuit of litigation. In the result, he has pursued wrong causes, just as in this case, whereby, instead of appealing against the findings by the court a quo on the special plea, he opted to attack issues that were not determined by the court a quo.

In this regard, during the hearing, effort was made to direct him to the real issues at hand as he had submitted heads of arguments unrelated to the findings on the special plea.

The applicant seems to be confused as to the extent of the issues he can raise on appeal. He appears headstrong that this Court, if it is to condone his non-compliance, should proceed to hear his cause on the issues the court a quo did not hear at all.

The inevitable consequence is that he has caused the respondents to defend the spurious processes thus incurring unnecessary costs. The respondents were thus justified in seeking costs on a punitive scale.

DISPOSITION

Accordingly, it is ordered that -

The application for condonation of non-compliance with the Rules, and extension of time within which to appeal, be and is hereby dismissed with costs on the legal practitioner and client scale.

Appealed
SC97-21 : THE TRUSTEES FOR THE TIME BEING OF CORNERSTONE TRUST and JULIUS MAKONI and THE TRUSTEES FOR THE TIME BEING OF RYVONNE TRUST vs NMB BANK LTD
Ruled By: HLATSHWAYO JA, PATEL JA and MAVANGIRA JA

This is an appeal against the entire judgment delivered by the Honourable Justice Zhou in the High Court of Zimbabwe.The order sought to be impugned reads as follows:“IT IS ORDERED THAT:1. Judgment be and is hereby given in favour of the plaintiff against the first, second, and third defendants jointly ...

This is an appeal against the entire judgment delivered by the Honourable Justice Zhou in the High Court of Zimbabwe.

The order sought to be impugned reads as follows:

“IT IS ORDERED THAT:

1. Judgment be and is hereby given in favour of the plaintiff against the first, second, and third defendants jointly and severally the one paying the others to be absolved for:

(a) Payment of US$1,105,748=90 plus interest at the rate of 15 per cent per annum from the 9 September 2015; such interest calculated monthly and in advance on the said sum and capitalized to the date of payment in full.

(b) Payment of collection commission in accordance with the Law Society's By-Laws.

(c) Payment of plaintiff's costs of suit on the legal practitioner and client scale.

(d) A declaration that the immovable property, being a certain piece of land situate in the district of Salisbury called Remainder of Lot 6 Rietfontein, measuring, 1,2129 hectares held by the second defendant under Deed of Transfer No.4388/1991 is executable.

2. The first defendant's claim in reconvention be and is hereby dismissed with costs on the legal practitioner and client scale.”

The background of this matter may be summarised as follows:

The second appellant is a shareholder in the respondent and has previously occupied the positions of Chief Executive Officer, Executive Director, and Director therein.

The respondent in this matter issued summons against the appellants in the court a quo claiming USD$1,105,748=90 being indebtedness arising from a loan agreement between the first appellant and the respondent.

The second and third appellants bound themselves as guarantors/sureties and co-principal debtors of the first appellant in relation to the loan agreement.

As security, the second appellant gave Power of Attorney to register a mortgage bond over his property, in favour of the respondent. As further security, the third appellant pledged certain executable shares.

It was the respondent's case a quo that the first appellant defaulted in the performance of its obligations in terms of the loan agreement, necessitating the institution of legal proceedings for the recovery of the outstanding amount.

The respondent sought that the appellants be held jointly and severally liable for the indebtedness.

The appellants disputed the respondent's claim on two main premises:

It was argued, for the first appellant, that, the person who purported to enter into the loan agreement with the respondent was not authorised to do so.

Additionally, the second appellant disputed that he granted the Power of Attorney used to register the mortgage bond over his property.

The appellants further lodged a counter claim against the respondent's claim, which counter-claim was subsequently sought to be withdrawn during the course of the proceedings a quo.

The application for withdrawal was unsuccessful and the counterclaim was eventually dismissed.

At the conclusion of proceedings, the court a quo made adverse credibility findings against the second appellant, who it determined was untruthful.

It was found, that, the first appellant was the alter ego of the second appellant, who used the former to secure funds for his benefit from the respondent.

Additionally, the court a quo was of the view, that, the second appellant had signed a Power of Attorney for the registration of a mortgage bond in order to secure an advance from the respondent.

With regard to the third appellant, it was found that it had properly bound itself as surety to the loan facility agreement.

Resultantly, it was determined that the appellants were jointly and severally liable for the indebtedness and that the respondent was entitled to recover from the appellants the principal sum owing in terms of the loan facility agreement.

Aggrieved, the appellants have lodged the present appeal on the following grounds:

GROUNDS OF APPEAL

1. With respect, the court a quo erred at law in dismissing the first appellant's claim in reconvention; which claim was withdrawn before the conclusion of leading evidence. At law, the respondent was not entitled to insist on judgment pertaining a disputation to which not all datum had been made available and the contestation inter parties not finalised.

2. The court a quo also erred in sustaining the respondent's claim as against the appellants. At law, the respondent was enjoined to prove the existence of loan agreement and that the attendant funds were advanced in terms of that agreement. In casu, the evidence led a quo clearly demonstrated that the monies claimed to have been advanced were never paid out in accordance to the structures of the agreement on which the claim was predicated; resultantly, no sustainable claim could have been mounted by the respondent.

3. The court a quo grossly misdirected itself in conflating the affairs of the first appellant with those of the second appellant. At law, the first and second appellant's obligation to the respondent were independent of each other. More critically, no evidence was led substantiating the notion that the first appellant ever received funds from the respondent thereby actuating the need to resort to the second and third respondent's suretyship and securitisation.

4. The court a quo grossly misdirected itself in dismissing the second appellant's evidence on the back of its anomalous finding that he was dishonest and not a credible witness. Such findings are palpably irregular in that the court a quo did not take full cognisance of all the second appellant's evidence and attendant explanation regarding the existence of his independent loan with the respondent which loan the respondent was not relying on.

From the foregoing, two identifiable issues are before the court:

(i) Firstly, there is need to determine whether or not the court a quo properly dismissed the appellants counterclaim given their application for withdrawal of the same.

(ii) The second issue for determination is whether or not the court a quo misdirected itself in holding the appellants jointly and severally liable to the respondent for the indebtedness arising from the disputed loan facility agreement.

On the first point for consideration, it is common cause that the appellants withdrew their counter claim pursuant to the commencement of proceedings but prior to the close of their case.

It is also common cause that the respondent objected to the purported withdrawal.

It is accepted by both parties, that, a party is only entitled to withdraw a claim after the matter has been set down and the hearing has commenced - subject to the court's leave or the parties consent to do so. The position of the law is well articulated in the case of Liberal Democrats & Ors v President of the Republic of Zimbabwe E.D Mnangagwa N.O. & Ors CC07-18…, wherein it was stated:

“The case of Meda v Sibanda and Ors 2016 (2) ZLR 232 (CC) is authority for the principle that a party cannot withdraw at will a matter that has been set down for hearing. The party intending to withdraw the matter must obtain the consent of the other party and the leave of the Court. The purported withdrawal would otherwise have no legal effect. Rule 53(2) of the Rules gives effect to the principle by providing as follows:

'53. Withdrawal

(2) A person instituting any proceedings may, at any time before the matter has been set down, and, thereafter, by consent of the parties or leave of the Court, withdraw such proceedings, in either of which event he or she shall deliver a notice of withdrawal and shall embody in such notice an undertaking to pay costs.'”…,.

In urging the court to exercise its discretion in their favour, the appellants submitted, that, a court ought to except to an application for withdrawal in cases where, for instance, the withdrawal amounts to an abuse of court process.

While the position of the law, as captured by the appellants, cannot be faulted, a court is imbued with wide discretionary powers in determining whether or not an application for withdrawal will be granted. The said discretionary powers include a variety of considerations by the court in the pursuance of ensuring justice between litigating parties.

The respondent submitted, that, the application for withdrawal of the appellants counterclaim was appropriately denied, given the fact that evidence had already been led thereon.

It is apparent from the record, that, at the time that the appellants sought to withdraw their counter claim, the matters therein had already been substantively canvassed in evidence.

The court a quo's refusal to grant the application for withdrawal was predicated on a consideration of the very same fact, namely, that the counter-claim was already the subject of the hearing before it and substantive submissions had already been made thereon.

In my view, there is no palpable misdirection in the court a quo's decision to deny the appellants application for withdrawal. Given the broad discretionary powers conferred upon the court in electing to grant or deny the said application, there do not appear to me justifiable grounds to interfere with the determination of the court a quo in that regard.

View Appeal
HH466-18 : NMB BANK LTD vs THE TRUSTEES FOR THE TIME BEING OF CORNERSTONE TRUST and JULIUS MAKONI and THE TRUSTEES FOR THE TIME BEING OF RYVONNE TRUST
Ruled By: ZHOU J

The plaintiff, a commercial Bank, claims against the three defendants payment of a sum of money amounting to US$1,105,748=90 together with interest thereon at the rate of 15% per annum calculated from the 9th September 2015 to the date of payment in full; such interest to be calculated monthly and in advance and capitalized.

The plaintiff also claims collection commission and costs of suit on the legal practitioner and client scale, as well as an order declaring a certain immovable property, described in the summons as a certain piece of land situate in the District of Salisbury called the Remainder of Lot 6 of Reitfontein, measuring 1,2129 hectares, to be specially executable.

The claim is for money advanced to the first defendant pursuant to loan and overdraft facilities and in respect of which the second and third defendants are said to have executed deeds of suretyship and guarantorship.

The claim is contested by all the defendants.

The first defendant also made a claim in reconvention against the plaintiff for payment of a sum of US$1,672,010=.

The claim in reconvention was abandoned by the first defendant during the course of the trial.

Counsel for the defendants indicated that the first defendant was withdrawing the claim in reconvention.

The plaintiff, as it is entitled to do, insisted, that, notwithstanding the withdrawal, the court must give judgment in favour of the plaintiff in respect of the counter claim.

That attitude is supportable at law: see A v B and C 1976 (4) SA 31 (RA); Abramacos v Abramaos 1953 (4) SA 474 (SR)…,; Huggins v Ryane NO & Ors 1978 (1) SA 216 (R).

In A v B and C 1976 (4) SA 31 (RA)…, GOLDIN J said:

“Generally, notice of withdrawal does not automatically end litigation, because defendant or respondent may be entitled to insist upon judgment in their favour after the merits have been considered and argued so as to enable the court to arrive at its decision. Notwithstanding notice of withdrawal by an applicant or plaintiff, the court has a discretion to give defendant or respondent an opportunity to establish his right to judgment.”

The withdrawal of the claim in reconvention was sought after evidence had been led on it by both the plaintiff and the first defendant.

In fact, the plaintiff had to lead evidence from a handwriting expert, Leonard Tendai Nhari, in respect of the claim in reconvention. His evidence was that the loan agreement allegedly entered into between LTB Limited and the plaintiff, upon which the claim in reconvention was founded, was not signed by a representative of the plaintiff.

The evidence of the signature, when compared with the usual signatures of Mario dos Remedios, who was alleged to have signed on behalf of the plaintiff, is clearly different and bears no resemblance to his usual signature.

It is irrelevant that the first defendant had not yet closed its case when it sought to withdraw the claim.

The plaintiff is therefore entitled to judgment in its favour in respect of the claim in reconvention....,.

1....,.

2. The first defendant's claim in reconvention be and is hereby dismissed with costs on the legal practitioner and client scale.

SSC99-21 : JAISON ZHUWAKI vs THE STATE
Ruled By: CHITAKUNYE AJA

On 9 April 2021, I struck off this matter from the roll and gave reasons extempore. The applicant has requested for written reason for my decision. These are the reasons.In this application, the applicant seeks to challenge the decision of the High Court handed down on 3 May 2018 dismissing ...

On 9 April 2021, I struck off this matter from the roll and gave reasons extempore. The applicant has requested for written reason for my decision. These are the reasons.

In this application, the applicant seeks to challenge the decision of the High Court handed down on 3 May 2018 dismissing his application for condonation and leave to appeal in person. The application was purportedly filed in terms of Rule 21 of the Supreme Court Rules 2018.

The applicant seeks an order in the following terms:

“1. The application against refusal for condonation for the late filing of an appeal be and is hereby granted.

2. The appellant is hereby granted leave to prosecute an appeal in person to the High Court.

3. The appellant shall file his notice of appeal by the Registrar of the High Court.”

BACKGROUND

The applicant was convicted for contravening section 65(1) of the Criminal Law (Codification and Reform) Act [Chapter 9.23] and sentenced to 20 years imprisonment of which 2 years were suspended on condition of future good behaviour on 19 November 2013 by a Regional Magistrate at Chinhoyi Regional Court.

He did not appeal against both conviction and sentence within the requisite period.

On 21 March 2017, the applicant applied for condonation of late filing of an appeal and leave to appeal in person with the High Court.

That application was dismissed by CHATUKUTA J on 3 May 2018 under case number CON 61/17.

On 29 May 2018, the applicant filed a similar application before the same court.

It is pertinent to note, that, in this second application, the applicant did not disclose the fact that he had a similar application dismissed on 3 May 2018 by the same court.

The respondent did not file any response to that second application.

This second application was heard and granted by MUNANGATI-MANONGWA J on 22 July 2019 under case number CON 142/18.

The applicant did not, however, proceed to file the appeal despite the granting of that order.

Instead, on 13 August 2020, the applicant filed another application, in case number CON 308/20, for extension of time within which to file the appeal. This application sought an extension of time within which to comply with the order granted in CON 142/18.

In response to this latest application, the respondent contended, that, in case number CON 142/18 the applicant did not disclose to the court that his initial application had been dismissed in CON 61/17 on 3 May 2018. The respondent thus contended, that, the order in case number CON 142/18 was a nullity as the court was functus officio.

As a consequence, TAGU J dismissed the application to extend the order in CON 142/18 on 3 November 2020.

The applicant, having considered and conceded that both orders by MUNANGATI-MANONGWA J and TAGU J were invalid at law, decided to approach this Court in a bid to challenge the order of 3 May 2018.

In that case (CON 61/17) the Judge had found that the period of delay of 2 and a half years (it was in fact 3 and a half years) was inordinate, and that the reasons for the delay were also contradictory and were not reasonable in the circumstances.

The Judge a quo also held, that, there were no prospects of success on appeal against both conviction and sentence, as such, the application was dismissed in toto....,.

It is trite that the intended appeal must be against the decision of the court a quo.

The grounds of appeal in the draft notice of appeal filed with the application must relate to the findings by the court a quo in dismissing his application for condonation and leave to appeal in person. It is from such grounds that the court will assess whether there is an arguable case for appeal warranting a hearing of the appeal.

It is only upon a favorable result that an appeal will be before this Court in terms of the filed draft notice of appeal.

It is imperative to note, that, the draft notice of appeal filed with this application is a draft notice of appeal to the High Court and not an appeal to the Supreme Court.

It pertains to findings by the Regional Magistrate.

In short, the notice of appeal is against the Regional Court's judgment and not the determination by the High Court.

The prospects of success I am enjoined to consider must relate to the judgment of the court a quo on the application that had been placed before it.

The applicant's failure to appreciate the matter before me is epitomized by the nature of the relief he sought.

The relief, in effect, is for the setting aside of the court a quo's judgment and substituting it with an order granting leave to note his appeal in the High Court out of time and leave to prosecute the appeal in person.

Such a relief is incompetent as this is not an appeal but ought to be an application to note an appeal to the Supreme Court out of time. It is not the appeal itself....,.

As the applicant was a self-actor the nature of the relief to eventually grant would have been within my discretion had he properly set out a case for extension of time within which to appeal.

However, the failure to proffer any acceptable explanation or justification for steps taken after the dismissal of the initial application, and the lack of any grounds of appeal attacking the court a quo's judgment, make it clear that there is no proper application for extension of time within which to note an appeal in terms of Rule 21 of the Supreme Court Rules 2018.

The applicant was, for all intents and purposes, seeking to be granted what the court a quo denied him without filing a proper appeal.

Accordingly, the matter was struck off the roll.

HB28-15 : SIMELENI DUBE vs CHRISTOPHER DUBE
Ruled By: MAKONESE J

This application has been brought to court in terms of the provisions of Order 11 Rule 75(1) of the High Court Rules 1971 for the dismissal of claims filed by the respondent in an action under case number HC568/13.

The applicant contends, that, the respondent's claims are frivolous and vexatious.

The application is opposed by the respondent who forcefully argued, through his legal counsel, that the application for dismissal is misguided and an abuse of court process.

Background

The parties were married to each other in terms of the Marriage Act [Chapter 5:11]. The marriage was terminated by order of this court on 28 June 2012.

The respondent was in default.

Both parties reside in the United Kingdom, having left Zimbabwe almost a decade ago.

The terms of the divorce order were as follows:

“1. A decree of divorce be and is hereby granted.

2. Custody of the minor child, namely, Thabiso Dube (male) born on the 22 May 1995 be awarded to the plaintiff with the defendant enjoying access to the child.

3. An order for maintenance at £200 per month.

4. Plaintiff be awarded the following property as her sole and exclusive property:

Wall Unit, plants and ornaments, 2 piece sofas, TV stand, desktop computer, computer table, canon printer, fridge, 4 plate stove, ST Joseph stand and shops (plus movables thereat).

5. Defendant be and is hereby awarded as his sole and exclusive property and the movable assets at the Parklands home, specifically the following:

Double door fridge, 4 plate stove, six kitchen chairs and table, microwave, kitchen utensils, dining room suite, lounge suite, glass TV stand, 2 TVs, sharp radio, phone table, 3 beds, 2 bedroom suites, chest of drawers, dressing table and stool, curtains, Gwanda homestead (plus household goods thereat and livestock).

6. An order that the matrimonial home, being number 16, St David's Road, Parklands, Bulawayo, be sold by the plaintiff or her lawful agents and the proceeds of the sale be shared equally between the parties.

7.1 For the purposes of sale and transfer of the matrimonial home to the successful purchaser, the plaintiff be and is hereby authorized to nominate the conveyancer to attend to such transfer and the Deputy Sheriff, Bulawayo be and is hereby authorized and directed to sign all transfer documents vide the defendant.

7.2 No order as to costs.”

On 1 March 2013, the respondent filed an action in this court seeking the following relief:

“An order directing defendant to deliver all movable assets awarded to the plaintiff by the High Court in case number HC3446/11 housed at number 16 St Davids Road Parklands, Bulawayo, which assets the defendant unlawfully and wrongfully caused to be removed therefrom during the period extending from June 2012 to an unknown date, or, alternatively, failing such delivery payment of the value of the assets in the sum of US$22,960=.”

In paragraph 4 of his Declaration, the plaintiff states as follows:

“Paragraph 5 of the divorce order between the parties awarded the defendant all assets at the Parklands home of the parties including the movable assets listed in Annexure 'A' hereto.”

I note that Annexure “A” referred to in paragraph 4 of the Declaration is in effect the Order for divorce issued by the court on 28 June 2012.

The plaintiff then remarkably claims, in paragraph 5 of his Declaration, that:

“In addition to the assets named in paragraph 5 of Annexure 'A' the parties had also acquired the assets listed in Annexure 'B' attached hereto.”

What is of serious concern is that Annexure “B” is a two page long list of items of property not included or referred to in the original divorce order.

The respondent alleges these assets were acquired by the parties during the course of the marriage.

It is clear that paragraph 5 of the Declaration contradicts the order sought by the plaintiff.

The clear intention of the respondent can only be to mislead the court, because, in the summons, the plaintiff (respondent) in this matter purports to claim the assets (or the values thereof) which were awarded to him in terms of the divorce order.

This is in fact not the case.

The plaintiff is attempting to revisit the distribution of matrimonial assets via the back door. This cannot be proper. The assets have clearly been overvalued so that they equate to US$22,960=, an amount which the applicant claims will wipe out her half share in the sale of the matrimonial house as ordered by the court.

The Legal Position

The respondent is not the owner of the assets listed in Annexure “B” of the summons. The said assets are supposed to be matrimonial property, or assets of the spouses, as defined in section 7(a) of the Matrimonial Causes Act [Chapter 5:13].

It is settled law, that, matrimonial assets can only be dealt with in an action for divorce, judicial separation, or nullity of marriage in terms of section 2(1) of the Matrimonial Causes Act which states as follows:

“Action for divorce, judicial separation or nullity or marriage means an action by which a decree of divorce, judicial separation, or nullity of marriage or other relief in connection therewith is applied for…,.”

In this matter, the established facts are that the parties were divorced by an order of this court granted on 28 June 2012. The divorce order was granted in default of the respondent.

If the respondent was aggrieved with the terms of the divorce order, he should have applied for an order rescinding the judgment of the court in order to obtain what he may have considered to be a just and equitable distribution in terms of section 7(1)(a) of the Matrimonial Causes Act which provides as follows:

“7(1) Subject to this section, in granting a decree of divorce, judicial separation, or nullity of marriage, or, at any time thereafter, an appropriate court may make an order with regard to -

(a) The division, apportionment or distribution of the assets of the spouses, including an order that any asset be transferred from one spouse to the other;”

It is my view, that, the respondent's claim, in the main action, should have been dealt with as a matrimonial action in terms of the Matrimonial Causes Act.

The respondent's claims, as presently framed, are bad at law to the extent that they are frivolous and vexatious.

Rule 75(1) of the High Court Rules is designed to assist a defendant by enabling him to apply to court to dismiss a frivolous and vexatious action.

Such an application is the converse of an application for summary judgment and much the same considerations apply, namely, whether the plaintiff has an arguable case. The court will not dismiss an action under this Rule unless satisfied that the likelihood of the case succeeding stands outside the realm of probability altogether.

An action is deemed vexatious if it is impossible to succeed.

See the case of Wood NO v Edwards 1986 (2) RLR 212 and the case of Rogers v Rogers and Another 2008 (1) ZLR 330.

In Rogers v Rogers and Another 2008 (1) ZLR 330 MALABA JA had this to say…,;

“Summary dismissal of an action, in terms of Rule 79(2) of the Rules, is an extraordinary remedy to be granted in exceptional cases. The reason is that granting the remedy has the effect of interfering with the elementary right of free access to the court. The object of the Rule is to enable the court to stop an action which should not have been launched.”

The learned Judge went on to state as follows:

“It appears to me, that, a plaintiff who commences action in a court of law when he has no reasonable grounds to do so has no cause of action. An action without a good cause of action is obviously unsustainable.”

In casu, I am satisfied, that, when the respondent commenced legal proceedings in the manner he did, under case number HC568/13, he knew that he was misleading the court. At the very least, he was aware that the property that he was seeking to obtain through legal process was property that fell outside the initial order of divorce. The respondent was clearly aware, that, if he sought to rescind the default judgment he could do so and invoke the provisions of the Matrimonial Causes Act for an equitable distribution of assets. He elected, however, to proceed on facts that sought to mislead.

The conduct of the respondent, in my view, amounts to abuse of court process. The applicant is entitled to costs in a higher scale.

In the circumstances, I make the following order:

1. The action filed under case number HC568/13 be and is hereby dismissed on the ground that it is frivolous and vexatious.

2. Judgment of absolution from the instance is hereby granted.

3. Respondent is ordered to pay costs on the legal practitioner and client scale.

SC08-16 : CFI RETAIL (PRIVATE) LIMITED vs ERIC MANYIKA
Ruled By: MALABA DCJ, ZIYAMBI JA and GOWORA JA

After hearing counsel for the appellant, the appeal was allowed with costs and the order of the court a quo set aside. The matter was remitted to the court a quo for it to be determined on the merits. It was indicated that reasons for the decision would follow in ...

These are they

The respondent was employed by the appellant as an Empty Bottles Clerk until August 2009 when he was retired after having attained the retirement age of sixty (60) years in January 2009. Mr Manyika had originally been an employee of the then Farmers Co-op. He had joined the Farmers Co-op Pension Fund in 1982. Under that Pension Fund's regulations the date of retirement was said to be January 2014. In 1995, there were changes in the company and a merger which saw the creation of the CFI Pension Fund. The pension regulations were changed with the passage of time. Under the CFI Pension Fund regulations, the age of retirement was lowered to 60 years and all the employees were informed of the change through their subsidiaries. The information was also communicated to the employees through their payslips. The same information was also placed on the notice boards which were accessible to all employees.

The respondent was still of the belief that his retirement age was sixty-five (65) years which would have been reached on 30 January 2014. According to the new pension regulations, the respondent should have been retired from work in January 2009. He was however retired in August 2009. The appellant admitted that there was an oversight on their part as there had been changes in the Human Resources Department. Mr Manyika unsuccessfully pleaded with the appellant to remain at work until January 2014.

Mr Manyika was aggrieved by the decision of the appellant and approached a labour officer complaining of unfair labour practice. The dispute was referred to compulsory arbitration.

After hearing both parties, the arbitrator issued the following award:

“Having carefully considered both oral and written submissions and evidence from both parties, I hereby declare that:

1. Respondent committed an unfair labour practice by prematurely retiring Eric Manyika on 31 August 2009 having given him short notice.

2. In light of this finding, and as a remedy to the unfair labour practice, I hereby order respondent to comply with one of the two options given below:

Either: (a) Reinstate claimant without loss of pay and benefits from 1 September 2009 and keep him to the pay roll until his normal retirement age on 13 January 2014;

(b) If reinstatement is no longer an option for whatever reason, pay claimant the following:

(i) Full pay and benefits from 1 September 2009 to 31 July 2011.

(ii) Cash-in-lieu of leave from 1 September 2009 to 31 July 2011.

(iii) 12 months pay as damages for loss of employment before normal retirement age.

(iv) 3 months notice pay.

(v) Any other terminal benefits which claimant may be legally entitled.”

The appellant was aggrieved by the decision of the arbitrator and approached the Labour Court. The appellant lodged an application for interim determination in terms of section 92E(3) of the Labour Act [Chapter 28:01] (“the Act”). It however withdrew the application.

On the day of the hearing, the respondent raised a point in limine alleging that the appellant had approached the court with dirty hands since it had not complied with the arbitrator's decision.

The Labour Court held that the appellant ought to have complied with the arbitrator's award before approaching the court. It upheld the point in limine and dismissed the appeal from the arbitral award.

The appellant noted an appeal to this Court on the following grounds:

1. The court a quo erred at law in finding that the appellant's failure to comply with an arbitration award it was appealing against constituted dirty hands and even then, to the extent that the appellant should be denied audience.

2. The court a quo erred at law and erred grossly on the facts in finding that the appellant was contemptuously failing to comply with the award. In so finding, the court disregarded the fact that the amount payable by the appellant to the respondent was not quantified.

3. The court a quo erred at law in finding that the appellant had dirty hands when the appellant's non-compliance was one in the context of a pending application for interim relief.

4. Assuming, without conceding, that the appellant's hands were dirty such as to be denied audience, the court a quo erred at law in dismissing the appellant's appeal for the reason alone. Instead, the court a quo should have denied the appellant audience but postponed the matter till such time when the appellant had complied with the arbitration award.

Section 92E of the Labour Act [Chapter 28:01] provides as follows:

“Section 92E: Appeals to the Labour Court generally:

(1) An appeal in terms of this Act may address the merits of the determination or decision appealed against.

(2) An appeal in terms of subsection (1) shall not have the effect of suspending the determination or decision appealed against.

(3) Pending the determination of an appeal, the Labour Court may make such interim determination in the matter as the justice of the case requires.”

Section 92E(2) of the Labour Act [Chapter 28:01] only provides that the noting of an appeal to the Labour Court against a determination or decision does not have the effect of suspending the operation of the determination or decision appealed against. The purpose of the section is to provide for the effect of the noting of an appeal in terms of the Act on the enforcement of the determination or decision. The provision is the reversal of the common law principle that the noting of an appeal against a judgment or decision of a tribunal or lower court suspends the execution of the judgment or decision pending the determination of the appeal.

Section 92E(2) of the Labour Act [Chapter 28:01] does not impose an obligation on a party appealing against the determination or decision to act in terms of the determination or decision appealed against pending determination of the appeal. In other words, there is no provision requiring the appellant to first comply with the determination or decision appealed against in order to preserve the right of appeal.

There are remedies available to a party in whose favour the determination or decision appealed against has been made for its enforcement in the absence of an interim determination made by the Labour Court suspending the determination or decision appealed against pending determination of the appeal. The effect of the section is that it leaves the party in whose favour the determination or decision was given with a right to enforce the determination or decision appealed against by having it registered with the High Court or any Magistrates Court in terms of section 98(14) of the Labour Act [Chapter 28:01].

Section 92E(3) of the Act has no effect at all on the right to appeal.

It leaves the appellant with a right to apply for an interim determination suspending the execution of the determination or decision appealed against. The right holder may exercise the right or choose not to do so. He or she is not obliged to apply to the Labour Court for an interim determination. The fact that a party has opted, in the exercise of discretion, not to exercise a right given by law does not mean that he or she is guilty of approaching the court with dirty hands. Both parties are equally protected by the law as they have remedies available to them.

When the Labour Court refuses to hear an appeal on the basis that the appellant has not complied with the determination or decision appealed against, it is creating a remedy not provided for by the law.

The court a quo misapplied the principle of dirty hands to the facts of the case.

The principle of dirty hands governs a situation where a party is under a direct obligation imposed by law to act in a specific manner; which obligation the party deliberately refuses to perform. It is a time honoured principle based on the need for litigants who approach a court of law seeking relief to do so with the required degree of truthfulness and honesty. It does not apply in cases where the appellant fails to act in terms of a determination or decision appealed against under section 92E of the Labour Act [Chapter 28:01] because he or she would not be under an obligation to first comply with the determination or decision appealed against in order to be heard.

The right to be heard by a court in proceedings that have been properly instituted is a fundamental right that should not be lightly denied to a party.

In this case, the appellant was not guilty of contempt of court as suggested by the Labour Court because it was exercising the right to appeal to the court given by law. The court was obliged to hear the appellant in the appeal which was properly before it.

In the case of Zimbabwe Mining Development Corporation & Anor v African Consolidated Resources PLOC SC01-10, CHIDYAUSIKU CJ stated the following:

“The right of appeal is fundamental and critical to our justice system. Where the law confers the right of appeal on a litigant it should not be rendered nugatory or abrogated without due process. Due process requires that a case proceeds to finality, namely, the giving of a judgment. Once a judgment is given, the losing party who has a right to appeal is entitled, if he so wishes to note an appeal.”

See also Claudius Marimo and Anor v The Minister of Justice, Legal and Parliamentary Affairs SC25-06.

A party wishing to apply to the Labour Court for interim determination pending determination of the appeal against an arbitral award would have to consider the question whether the award appealed against is enforceable. The party contemplating to have the award registered with the High Court or Magistrates Court pending determination of the appeal by the Labour Court would have to consider the same question.

In this case, the award was not sounding in money.

It simply directed payment of damages. The parties were given the option of approaching the arbitrator in the event that they failed to agree on the quantum of damages. It goes without saying that the award could not be executed because the person in whose favour it was made could not even register it. That explains why the respondent did not take steps to enforce the award pending determination of the appeal notwithstanding the effect of section 92E(2) of the Labour Act [Chapter 28:01]. It also explains why the appellant was entitled, in the circumstances, not to apply for an interim determination.

If an arbitral award is patently ultra vires the jurisdiction of the arbitrator or is for some reason not executable what would happen if the Labour Court refuses to hear and determine the appeal on the ground that the appellant must first comply with the award appealed against?

It is clear that the right to be heard in the determination of the appeal noted in terms of the Labour Act remains extant even where an interim determination in the matter of the determination or decision appealed against is made.

At law, there cannot be a determination of an appeal without a hearing.

If the right to be heard on appeal were to be denied to the appellant on the ground that it had not applied for and obtained an interim determination suspending execution of the arbitral award, it would mean that the granting of an interim determination is obligatory when section 92E(3) of the Labour Act [Chapter 28:01] is a discretionary provision. A party may apply for an interim determination only when it realizes that there are chances of the determination or decision appealed against being executed pending determination of the appeal.

Section 92E(3) of the Labour Act is not limited to applications for suspension of determinations pending the outcome of the appeal. It is further not limited to interim determinations sought by a litigant against whom the determination or decision appealed against was made. A litigant in whose favour a determination was made, who is faced with an appeal against the determination or decision, may seek an interim determination.

If the court a quo's decision refusing to hear the appellant on the basis that it had not complied with the order was based on a sound principle of law, it would mean that the order would never be enforced and there would never be an appeal.

What is worse is that the court a quo dismissed the appeal instead of removing it from the roll.

View Appeal
HH373-15 : CARE INTERNATIONAL IN ZIMBABWE vs ZIMBABWE REVENUE AUTHORITY and DESMOND MANINIMINI and SURVIVAL HARDWARE (PRIVATE) LIMITED
Ruled By: MTSHIYA J

The first point in limine raised by the first respondent, that the applicant had not complied with section 196(1) of the Customs and Excise Act [Chapter 23:02] (“the Act”), is of crucial importance because all the other points can only be dealt with if the applicant is properly before the court - that includes points raised by the other respondents. ...

“6.1 The Application before this Honourable Court is premature and irregular. I aver so because Applicant has not complied with the mandatory provisions of section 196(1) of the Customs Act. The said section makes it mandatory that before instituting proceedings against the 1^st Respondent one shall first give sixty days notice of its intention to institute civil proceedings against the 1^st Respondent before the proceedings are instituted.

6.2 In the present case, the Applicant has not given any notice to the 1^st Respondent as required by the said section as read with the State Liabilities Act [Chapter 8:14].

6.3 Over the years, it has been the approach of this Honourable Court that the failure to give the required notice renders the application fatally defective, and, I aver that the present case is no exception and it should be dismissed.

6.4 I am further advised that no court of law has the discretion to dispense with strict compliance with the provisions of a statute. Again, it follows that the present application is invalid for want of compliance with section 196(1) of the Act.

6.5 On the above basis, this application ought to the dismissed with costs.”…,.

As the first point in limine raised by the first respondent is to the effect that there is no valid application before the court, it is therefore imperative to start by examining that point. That is important because if that point is upheld, everything else in casu will, in my view, indeed fall away. Upholding the point in limine will mean that the application is fatally irregular and cannot be entertained.

It is important to proceed by indicating the exact provisions of the law that the first respondent is relying on in raising its first point in limine.

Sections 6 and 7 of the State Liabilities Act [Chapter 8:14] provide as follows:

“6. Notice to be given of intention to institute proceedings against State and officials in respect of certain claims

(1) Subject to this Act, no legal proceedings in respect of any claim for -

(a) Money, whether arising out of contract, delict or otherwise; or

(b) The delivery or release of any goods;

and whether or not joined with or made as an alternative to any other claim, shall be instituted against -

(i) The State; or

(ii) The President, a Vice-President or any Minister or Deputy Minister in his official capacity; or

(iii) Any officer or employee of the State in his official capacity;

unless notice, in writing, of the intention to bring the claim has been served in accordance with subsection (2) at least sixty days before the institution of the proceedings.

(2) A notice referred to in subsection (1) -

(a) Shall be given to each person upon whom the process relating to the claim is required to be served; and

(b) Shall set out the grounds of the claim; and

(i) Where the claim arises out of goods sold and delivered or services rendered, shall specify the date and place of the sale or rendering of the services and shall have attached copies of any relevant invoice and requisition, where available; and

(ii) Where the claim is against or in respect of an act or omission of any officer or employee of the State, shall specify the name and official post, rank or number and place of employment or station of the officer or employee, if known.

(3) The court before which any proceedings referred to in subsection (1) are brought may condone any failure to comply with that subsection where the court is satisfied that there has been substantial compliance therewith or that the failure will not unduly prejudice the defendant.

(4) For the purposes of this section, legal proceedings shall be deemed to be instituted by the service of any process, including a notice of application to court and any other document by which legal proceedings are commenced, in which the claim concerned is made.

7. Exemptions

Section six shall not apply to -

(a) A claim in which the debt concerned has been admitted to the claimant, expressly and in writing; or

(b) A counter-claim; or

(d) A claim in respect of which the defendant has waived, expressly and in writing, the notice required by section six.”

The above exemptions are not relevant in casu.

Section 196 of the Customs and Excise Act [Chapter 23:02] (“the Act”) as amended by Act No.17 of 1999 provides as follows:-

“196 Notice of action to be given to officer

(1) No civil proceedings shall be instituted against the State, the Commissioner or an officer for anything done or omitted to be done by the Commissioner or an officer under this Act or any other law relating to customs and excise until sixty days after notice has been given in term of the State Liabilities Act [Chapter 8:15].

(2) Subject to subsection (12) of section one hundred and ninety-three, any proceedings referred to in subsection (1) shall be brought within eight months after the cause thereof arose, and if the plaintiff discontinues the action, or if judgment is given against him, the defendant shall receive, as costs, full indemnity for all expenses incurred by him in or in respect of the action and shall have such remedy for the same as any defendant has in other cases where costs are given by law.”

Section 2 of the Customs and Excise Act [Chapter 23:02] defines the Commissioner referred to in section 196(1) above as follows:

“'Commissioner' means -

(a) The Commissioner in charge of the department of the Zimbabwe Revenue Authority which is declared, in terms of the Revenue Authority Act [Chapter 23:11], to be responsible for assessing, collecting and enforcing the payment of duties in terms of this Act; or

(b) The Commissioner-General of the Zimbabwe Revenue Authority, in relation to any function which he has been authorised under the Revenue Authority Act [Chapter 23:11] to exercise.”

The above definition creates a link between the Customs and Excise Act [Chapter 23:02] and the Revenue Authority Act [Chapter 23:11], particularly when read together with sections 38 and 39 of the Revenue Authority Act.

Sections 38 and 39 of the Revenue Authority Act provide as follows:

“38 Savings

Where, before the fixed date -

(a) The Commissioner of Taxes; or

(b) The Director of Customs and Excise; or

made any assessment or decision, or issued any notice or directive, or did any other thing whatsoever in terms of an Act specified in the First Schedule, and that assessment, decision, notice, directive or other thing had or was capable of acquiring effect immediately before the fixed date, it shall be deemed to have been made, issued or done, as the case may be, by the appropriate Commissioner or officer in terms of the Act concerned as amended by this Act, and shall continue to have effect or to be capable of acquiring effect, as the case may be, accordingly.

39 Construction of certain references

Any reference in any enactment, other than a provision of an Act amended by the Third Schedule, or in any document to -

(a) The Director or Controller of Customs and Excise, shall be construed as a reference to the Commissioner in charge of the department which is declared, in terms of subsection (2) of section twenty-one, to be responsible for assessing, collecting and enforcing the payment of duties under the Customs and Excise Act [Chapter 23:02];

(b) The Department of Customs and Excise, shall be construed as a reference to the department referred to in paragraph (a);

(i) In relation to value added tax, shall be construed as a reference to the Commissioner in charge of the department which is declared, in terms of subsection (3) of section twenty-one, to be responsible for assessing, collecting and enforcing the payment of the value-added tax leviable under the Value Added Tax Act [Chapter 23:12];

(ii) In relation to any other tax or impost, shall be construed as a reference to the Commissioner in charge of the department which is declared, in terms of subsection (2) of section twenty-one, to be responsible for assessing, collecting and enforcing the payment of the taxes leviable under the Income Tax Act [Chapter 23:06];

(d) The Department of Taxes, shall be construed as a reference to the department referred to in paragraph (c).”

In view of the foregoing clear provisions of the law, there can be no doubt that the Commissioner referred to in section 196(1) of the Customs and Excise Act [Chapter 23:02] is the Commissioner-General responsible for the supervision and management of the first respondent.

It is common cause that the notice referred to in section 196(1) of the Customs and Excise Act [Chapter 23:02] was not given to the Commissioner General or the first respondent before the filing of this application.

The first respondent is an authority established in terms of section 3 of the Revenue Authority Act [Chapter 23:11] and its functions are given under section 4 of that Act as follows:

“4. Functions and powers of Authority

(1) The functions of the Authority shall be -

(a) To act as an agent of the State in assessing, collecting and enforcing the payment of all revenues; and

(b) To advise the Minister on matters relating to the raising and collection of revenue; and

(c) To perform any other function that may be conferred or imposed on the Authority in terms of this Act or any other enactment.

(2) For the better exercise of its functions, the Authority shall have the power, subject to this Act, to do or cause to be done, either by itself or through its agents, all or any of the things specified in the Second Schedule, either absolutely or conditionally and either solely or jointly with others.”

The operations of the authority are supervised and managed by a Commissioner-General, whose functions are stipulated under section 19(4) of the Revenue Authority Act [Chapter 23:11] as follows:

“(4) The Commissioner-General shall be responsible, subject to the Board's control, for -

(a) Supervising and managing the Authority's staff, activities, funds and property; and

(b) Performing such other functions as the Board may assign to him or as may be conferred or imposed on him by or under this Act or any other enactment.”

There is no dispute regarding the position or authority of the Commissioner-General in relation to the transition from the former office of Director or Controller of Customs and Excise under the Act. The authority, as agent of the State, and under the supervision and management of the Commissioner-General, is charged with carrying out the functions spelt out in the Act and also in section 19(4) of the Revenue Authority Act as quoted above. That explains the continued protection granted under sections 196 and 6 of the Customs and Excise Act and the State Liabilities Act respectively.

It was argued that in enacting the Revenue Authority Act, Parliament was already aware of the provisions of section 196 of the of the Customs and Excise Act, as amended by Act No.17 of 1999, but it did not deem it necessary to expressly extend the protection to the new entity called the Zimbabwe Revenue Authority (i.e. first respondent).

That argument, however, does not go far to explain why the legislature did not expressly remove the protection from the agent of the State, now seized with exactly the same functions that were formerly executed by the department of Customs and Excise.

It cannot be denied that the Authority (first respondent) is as an agent of the State and continues to carry out the functions of the former department of Customs and Excise. The law protecting the former officers and the former department of Customs and Excise is still in our statutes. The protection has been retained for the benefit of the first respondent and its officers.

It is important, at this stage, to also take note of the endorsement on the official Notice of Seizure issued to the applicant on 27 September 2012. The relevant endorsement reads as follows:

“If you wish, you may, within three months from the date of this notice, make your own written representations to the Port Manager of the Port shown on this notice, for the release of the goods.

Additionally or alternatively you may, within three months from the date of this notice and subject to the submission of written notification, 60 days beforehand, in terms of the provisions of section 196 of the Act, institute proceedings for the recovery of the goods from the Commissioner or for the payment of compensation in respect of any dangerous or perishable goods which have been disposed of by the Commissioner.

If the Commissioner does not release the goods following representations made by you or if you do not institute proceedings within the period specified, any goods declared to be forfeited will become the property of the State without compensation.”

The endorsement on the seizure notice cannot be taken lightly. It explains the law and those affected, like the applicant, should obey the mandatory provisions of the law. There was, therefore, a clear need, on the part of the applicant, to give the requisite notice to the first respondent before making this application.

Failure to give the notice was, in my view, fatal.

There is, therefore, no proper application before the court, and, as already stated, upholding this point in limine, means that the court cannot proceed to do anything else. I liken this position to a situation, where, in an urgent application, the court, upon making a finding that there is no urgency, cannot proceed to the merits.

I am also unable to ignore the authorities relied on by the first respondent, namely, Tasmine P/L v Zimbabwe Revenue Authority HB115-09; Ronald Machacha v Zimbabwe Revenue Authority HB186-11; Puwayi Chiutsi v Commissioner of Police and Zimbabwe Revenue Authority and Anor HH65-05; and Bethy Dube v ZIMRA HB02-14, where the need to comply with section 196(1) of the Customs and Excise Act [Chapter 23:02] was emphasized.

In Puwayi Chiutsi v Commissioner of Police and Zimbabwe Revenue Authority and Anor HH65-05, BHUNU J said:

“Apart from the need to exhaust domestic remedies before approaching the courts, section 196 precludes the applicant from approaching the courts before observing laid down procedures…,. As the laid down, 60 days period has not yet expired, this application is ill-conceived and premature. The section is mandatory and admits of no exception because it constitutes a prohibition without making provision for any exception.”

In addition to the mandatory need for notice, I fully associate myself with the above.

I agree with the first respondent that there is no valid application before the court, and, accordingly, the rest of the other issues raised by the respondents cannot be delved into. This finding estoppes me from going any further.

I therefore order as follows:

1. The first point in limine raised by the first respondent be and is hereby upheld.

2. The application is not properly before the court and is therefore dismissed with costs.

SC144-21 : FARAI MATSIKA and FAIRGOLD INVESTMENTS (PRIVATE) LIMITED vs MOSES CHINGWENA and 38 OTHERS
Ruled By: BHUNU JA

This is an opposed application for condonation of late noting of an appeal and extension of time within which to file a notice of appeal. The applicant brings the application in terms of Rule 43 of the Rules of Court 2018.THE PARTIESThe first applicant is a former employee of the ...

THE PARTIES

The first applicant is a former employee of the third respondent (the company). He was employed as its Chief Executive Officer. He was dismissed from employment sometime in 2015 following disciplinary proceedings.

The first applicant claimed to own 30% shares in the third respondent through the agency of the second applicant, a duly incorporated company, and, to that extent, a juristic person.

His claim to the directorship of the company is in dispute. He claims to be duly authorised to represent the second applicant, a factor which is also disputed by the respondents.

The first and second respondents are natural persons bearing the same surname of 'Chingwena'.

The third to ninth respondents are duly incorporated companies.

The 10th, 11th, 15th-22nd, 29th, 33rd respondents are also duly incorporated companies clothed with juristic personality.

The remaining parties, though cited, did not appear to oppose the appeal.

The 4th to 38th respondents are companies in which the first appellant alleges the company has investments liable to his 30% claim of the shares allegedly held by the third respondent therein.

THE LAW

The law relating to applications of this nature is well known such that it cannot be the subject of any controversy. The requirements for the application to succeed were spelt out in Kombayi v Berckout 1988 (1) ZLR 53 (S). These are:

(a) The extent of the delay;

(b) The reasonableness of the delay; and

(c) The prospects of success on appeal....,.

BRIEF SUMMARY OF THE CASE

The first applicant approached the court a quo in terms of section 196(1) as read with section 198 of the Companies Act [Chapter 24:03] complaining that the affairs of the company, Croco Holdings (Private) Limited are being, or have been, conducted in a manner that is oppressive or unfairly prejudicial to the interests of some part of the members including himself. The section provides as follows:

“196 Order on Application of Member

A member of a company may apply to the court for an order in terms of section one hundred and ninety-eight on the ground, that, the company's affairs are being, or have been, conducted in a manner which is oppressive or unfairly prejudicial to the interests of some part of the members, including himself, or that any actual or proposed act or omission of the company, including an act or omission on its behalf, is or would be so oppressive or prejudicial.”

The first applicant deposed to the founding affidavit wherein he averred, that, he owns 30% shares in the company whereas the first respondent owns the remaining 70%.

His complaint is that the first respondent has been, and is, abusing his position as the majority shareholder.

He alleged that the first respondent was conducting the company's affairs in an oppressive and prejudicial manner to its members including him.

He averred, that, the first respondent and he were the promoters and founding directors of the company. The first respondent had, however, fraudulently removed his name from the company's register of directors.

He proffered some documentary evidence tending to show that he was an initial subscriber of shares and Director of the company. To that end, he submitted, that, all the essential company records showed that he owned 30% of the shares in the company. He contended that he subscribed for the shares in terms of a shareholding agreement he signed on 27 May 2006.

The first applicant cast aspersions on the first respondent alleging that since 2014 he had conducted himself contrary to the Shareholders Agreement. He further accused the first respondent of making decisions outside the forum of the Board of Directors.

It was his averment, that, in frustration, he offered to sell his shares to the first respondent but he was evasive and non-committal. Eventually, the first respondent turned the tables against him and began to dispute his shareholding in the company. They, however, subsequently met and agreed that the shares be evaluated before disposal. Despite having ordered that evaluation of the shares be carried out, the first respondent, again, made an about turn and denied ever having entered into such an agreement with him.

Having failed to resolve their differences amicably, the first applicant alleged that the first respondent proceeded to suspend him from work leading to his dismissal from employment. He has since challenged his dismissal in the courts.

On that score, he complained, that, the first respondent had violated his rights as a shareholder which rights are protected by the Companies Act. Consequently, he implored the court a quo to provide him with the following relief:

“WHEREUPON after reading documents filed of record and hearing counsel;

IT BE AND IS HEREBY ORDERED THAT:

1. A forensic audit and valuation of the 3rd respondent and its investments in the 4th to 38th respondent be and is hereby ordered to be conducted by an accounting firm registered in terms of the Public Accounts and Auditors Act [Chapter 27:12] to be appointed by the 39th respondent within 5 days of granting this order, all fees and costs of the evaluation being paid by the 3rd respondent.

2. 3rd respondent be and is hereby ordered to pay the applicants the full value of thirty percent (30%) of its total issued ordinary shares and 30% of its investments in the 4th to the 38th respondents within 5 days of completion of the forensic audit and valuation; such value having been established in terms of paragraph 1 above.

3. 3rd respondent be and is hereby directed to reduce 3rd respondent's share capital once the full amount of its thirty percent (30%) issued ordinary shares have been paid by 3rd respondent.

4. The Sheriff of the High Court and/or his lawful deputies be and are hereby ordered to execute terms of paragraph 2 above.

5. The 1st respondent pays the costs of suit on a legal practitioner and client scale.”

The respondents opposed the application, arguing that the first applicant was never a shareholder of the company.

They accused him of relying on forged fraudulent documents and challenged him to prove how he had acquired the alleged company shares.

Riding on that challenge, they raised a point in limine disputing his locus standi.

They submitted, that, only a member of a company, in the form of a shareholder, can bring an application in terms section 196 as read with section 198 of the Companies Act. The first applicant, not being a shareholder of the company, was not a member of the company, and, therefore, not qualified to bring the application before the court a quo.

As a second point in limine, the respondents challenged the first applicant's authority to represent the second applicant.

FACTUAL FINDINGS OF THE COURT A QUO

The court a quo found, that, the application was founded on material falsehoods based on fraudulent documents. Both the Shareholders Agreement and the share transfer documents were adjudged to be fraudulent documents. It also found, that, in relation to the point in limine, the applicant was unable to explain two conflicting CR2 documents.

Thus, the court a quo upheld both points in limine.

Ultimately, the learned judge a quo upheld the two preliminary points, and, in the process, found, that, the application was bad at law in that it did not meet the requirements of section 95 as read with section 196 of the Companies Act.

In the result, he dismissed the application with costs....,.

For the sake of completeness, I however feel constrained to briefly deal with his other complaint, that, after finding that the first applicant had no locus standi, the court a quo ought to have struck the matter off the roll instead of dismissing it.

There is absolutely no merit in this submission for the simple reason, that, the court was clothed with an unfettered discretion.

It is trite, that, Appellate Courts are always loathe to interfere with the exercise of judicial discretion save where the exercise of such discretion is injudicious or contrary to public policy.

The learned judge a quo was alive to the fact that he had discretion whether or not to dismiss the application.

Having carefully examined the facts and the law he exercised his discretion with admirable efficacy. In dismissing the application, he placed reliance on the case of Masukusa v National Foods Ltd & Anor 1983 (1) ZLR 232 (HC) where McNALLY J…, had this to say:

“Where the facts are in dispute, the court has discretion as to whether to dismiss the application or allow the matter to go to evidence. The first course is appropriate where an applicant should, when launching his application, have realised that a serious dispute of fact was inevitable.”

The learned judge a quo took the view, that, the applicant took a conscious risk by taking the application route in the face of glaring facts pointing to a serious dispute of facts.

For that reason, he had to bear the consequences of the ineptitude of his lawyers who chose the wrong procedure.

The course of action taken by the learned judge a quo finds support in the dictum of MULLER JA in Tamarillo (Pty) Ltd v BN Aitken (Pty) Ltd 1982 (1) SA 398 (AD)…, quoted with approval in Masukusa v National Foods Ltd & Anor 1983 (1) ZLR 232 (HC) where he observed that:

“A litigant is entitled to seek relief by way of notice of motion. If he has reason to believe that the facts essential to the success of his claim would probably be disputed, he chooses that procedure at his peril; for the court, in the exercise of its discretion, might decide neither to refer the matter for trial nor to direct that oral evidence on the disputed facts be placed before it, but, to dismiss the application.”

The first applicant had previously engaged the first respondent and they had failed to reach an amicable settlement.

He therefore knew, as a matter of fact, that, the respondents were disputing his claim that he was the owner of any shares in the company. By extension, he knew, or ought to have known, that, they were also disputing his documentary evidence tending to prove that he had a 30% shareholding in the company otherwise they would not have disputed his claim.

The first applicant's conduct, in providing fraudulent evidence, as demonstrated elsewhere in this judgment, could only aggravate matters to his detriment.

This is, therefore, a proper case where the naivety of the applicants lawyers was properly visited on their clients as the applicants were not entirely free from blame.

In the final analysis, no fault or misdirection can be laid at the learned judge a quo's door in his treatment of the substantive issues and verdict.

SC146-21 : THE GARRAT TRUST vs CREATIVE CREDIT (PRIVATE) LIMITED
Ruled By: BHUNU JA

This is an application for condonation of late noting of appeal and extension of time within which to note the appeal in terms of Rule 43 of the Supreme Court Rules 2018.

The application is opposed.

The matter was argued on 24 November 2020. At the conclusion of argument the parties were granted the opportunity to canvas the possibility of an amicable settlement. The matter was then postponed sine die pending settlement, failure of which the court would proceed to determine the application.

The parties did not, however, come back to the court within a reasonable time to advise it of the outcome of their negotiations.

Prompted by the inordinate delay, on 1 June 2021, I asked the Registrar to write to the parties enquiring about the outcome of the envisaged settlement.

The enquiry elicit no response.

Having received no response, I directed that the matter be set down for 11 October 2021.

At that hearing, the parties, again, agreed to a further two weeks postponement to canvas settlement. The matter was then postponed to 18 October 2021 by consent of the parties.

At the resumed hearing, on 18 October 2021, the applicant was in default. Counsel for the respondent, however, advised that the parties had failed to settle their dispute thereby paving the way for me to determine the application.

I now proceed to determine the application on the merits.

FACTUAL BACKGROUND

The applicant is a Trust duly registered in terms of the laws of Zimbabwe whereas the respondent (the company) is a duly registered juristic person in accordance with the laws of Zimbabwe.

It is common cause, that, the applicant owns 50 per cent shares in the respondent.

On 19 February 2019, the applicant made an application in the High Court (the court a quo) for the liquidation of the respondent company. It sought liquidation of the company on the basis that the directors had irretrievable differences as they were deadlocked on the management of the company.

The respondent opposed the application, raising a counterclaim coupled with a point in limine in the process.

It is convenient to deal with the point in limine first before delving into the merits of the application.

THE POINT IN LIMINE

The point in limine raised by the company is procedural in nature.

Counsel for the company submitted, that, the application before the court a quo was fatally defective for failure to comply with the mandatory provisions of section 5(4)(a) and (b) of the Insolvency Act [Chapter 6:07].

The court a quo upheld the point in limine hence the appeal.

The section provides as follows:

“5. Application by debtor for the liquidation of a trust, company, private business, corporation, co-operative or other debtor other than a natural person or partnership

(1)…,.

(b) By the company, or one or more directors or by one or more members for an order to wind up the company on the grounds that –

(i) The directors are deadlocked in the management of the company, and the members are unable to break the deadlock; and

A. Irreparable harm is resulting or may result from the deadlock; or

B. The company business cannot be conducted to the advantage of members, generally, as a result of the deadlock: or

(ii) The members are deadlocked in voting power, and have failed, for a period that includes at least two financial years, to elect successors to directors whose terms have expired; or

(iii) It is just and equitable for the company to be liquidated.

…,.

(4) Every application to the court referred to in subsection (1) except an application by the registrar of companies in terms of subsection 1(e) and the Master in terms of paragraph (h) of that subsection must be accompanied by -…,.

(a) A statement of affairs of the debtor corresponding substantially with Form A of the First Schedule; and

(b) A certificate of the Master, not issued more than four days before the date on which the application is to be heard by the Court, that sufficient security has been given for the payment of all costs in respect of the application that might be awarded against the applicant.”

It is common cause that the applicant did not comply with the mandatory provisions set out in section 5(4)(a) and (b) of the Insolvency Act in so far as the application was not accompanied by a statement of affairs of the debtor corresponding substantially with Form A of the First Schedule. That omission was in contravention of paragraph (a) above.

Secondly, there was no Master's certificate as is required by paragraph (b).

In paragraph 5.9 of its heads of argument, the applicant concedes that the application before the court a quo was in fact a nullity where it says:

“In casu, the application a quo was fatally defective and same should have been struck off the roll and not determined on the merits.”

On that score, counsel for the applicant argues, that, the court a quo committed a gross irregularity by proceeding to deal with the merits of proceedings which were a nullity at law.

It is correct to say, that, the learned judge a quo found that the applicant failed to comply with the strict mandatory provisions of the law, and that, therefore, the application before him was a nullity.

At page 5 of his cyclostyled judgment, the learned judge properly relied on the dictum in Air Duct Fabricators (Pvt) Ltd v A M Machado & Sons (Pvt) Ltd HH54-16.

That case is authority for the proposition, that, failure to comply with a mandatory course of action invalidates the thing done.

Having correctly articulated the law, the learned judge a quo appreciated that he ought to have struck the application off the roll as a nullity for want of compliance with the law. He however did not strike off the application but went on to consider the company's counter application.

In his own words, this is what he had to say at page 5 of HH606-20:

“So much for the preliminary point which the entity raised. It is not without merit. But, for the need on my part to consider the application as a whole, the same would have been struck off the roll with costs. I remain alive to the fact that the parties placed before me an application and a counter-application. It is therefore necessary for me to consider both and make a determination, which, in my view, serves the interests of the parties.”

Having said that, the learned judge a quo went on to consider the merits of the counter application and issued the following order at page 17 of HH606-20:

“I have considered all the circumstances of this case. I remain alive to the fact that the counter-application in favour of the entity in terms of paragraph (d) of subsection (2) of section 197 of the Companies Act. I am satisfied that the requirements which are mentioned in section 196 of the Companies Act are met.

It is in the result ordered that:

(a) The main application be and is hereby dismissed with costs.

(b) The main order in the draft of the counter application be and is hereby granted.”

Thus, the learned judge a quo determined both the main application and the counter-application notwithstanding the fact that he had previously observed that the proper course of action to take was to strike off the main application for want of compliance with the mandatory provisions of the law.

ANALYSIS OF THE FACTS AND THE LAW

On the facts before him, the learned judge was undoubtedly correct in his view, that, the main application ought to be struck off for none-compliance with the law. The applicant's failure to comply with the mandatory procedural requirements of the law meant that the application was not properly before the court a quo.

The proper order in that regard is to strike off the proceedings as a nullity.

In Chirosva Minerals (Pvt) Ltd v Minister of Mines and Ors 2011 (2) ZLR 274, the court held, that, the disregard of a peremptory provision in a statute is fatal to the validity of the proceedings affected.

What this means is that the main application that was launched in the court a quo, without the statement of affairs of the debtor and the Master's certificate, as required by law, was void, and, to that extent, a legal nullity.

The leading case on the effect and import of void proceedings is Mcfoy v United Africa Co Ltd [1961] 3 ALL ER 1169…,. In that case, LORD DENNING observed that:

“If an act is void, then, it is, in law, a nullity. It is not only bad but incurably bad. There is no need for an order of court for it to be set aside. It is automatically null and void without more ado, although it is sometimes more convenient to have the court declare it to be so. And every proceeding which is founded on it is also bad. You cannot put something on nothing and expect it to stay there. It will collapse.”…,.

On the basis of the law, as articulated through the cases, once the learned judge had taken the correct view that the main application upon which the counter application was founded was a nullity, he ought to have declared the application a nullity and stop there.

Since the counterclaim was founded on a nullity, it had no independent existence of its own. It would therefore have collapsed together with the main application as it was riding on the back of the main application.

Faced with the same situation in Care International Zimbabwe v ZIMRA & Ors HH373–15…,.; 2015 (1) 567…, MTSHIYA J, sitting in the same court, had this to say:

“I agree with the first respondent, that, there is no valid application before the court, and, accordingly, the rest of the issues raised by the respondents cannot be delved into. The finding estops me from going any further.”

MTSHIYA J was undoubtedly correct that once an application is found to be fatally defective the court cannot go on to determine any other issues based on the defective application.

In light of established precedent, it is plain that the learned judge a quo strayed into the morass of irregularity when he proceeded to determine both the main application and the counter application in circumstances where it was clear to him that the main application was a nullity.

There is, therefore, merit in the applicant's complaint, that, the court a quo could have misdirected itself by failure to strike off the main application, and, by extension, the counter-application.

DISPOSITION

For the foregoing reasons, I find that the applicant has bright prospects of success on appeal. It is accordingly ordered that:

1. The application for condonation of late noting of appeal and extension of time within which to note the appeal be and is hereby granted.

2. The notice of appeal shall be filed and served within five (5) days of this order.

3. There shall be no order as to costs.

SC86-14 : W. CHOMUREMA and E. MUZOKOMBA vs TELONE
Ruled By: GWAUNZA JA

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

The applicants are appearing before a judge of this Court for the third time, their earlier applications having been dismissed on procedural grounds.

Essentially, in this, and the previous two applications, the applicants are requesting this Court to give to them leave, which they perceive to have been denied by the Labour Court, to file a belated appeal against their dismissal from employment with the respondent.

In this quest, the two have made tracks back and forth between the Labour Court and this Court, with the result that the matter is now hopelessly entangled in procedural niceties.

It became evident to me that this 'tangle' had to be unravelled first before a way forward could be ascertained. This is particularly so given that the legally unrepresented, but determined, applicants are pressing to have their day in court, albeit, they complicated matters further by filing lengthy and repetitive submissions with each application they brought before both the courts.

Accordingly, after hearing the parties, and, in order to enable me to properly determine the matter, I directed them to re-construct the record and arrange all the applications, and other papers, in the order they had been filed. I indicated I would then peruse the record and give any directions that may be necessary to unlock the process and have the matter move forward.

This would, at the same time, point the applicants to any options that may be open to them in terms of the way forward.

Chronicled below, in conveniently numbered paragraphs, are the relevant facts of the matter, as well as the sequence of events, in so far as I have been able to make them out. I have interspersed the narration/analysis with relevant observations or findings of my own;

1. The applicants are former employees of the respondent; they were dismissed on misconduct charges of theft and fraud in 2009.

2. Having unsuccessfully pursued all internal remedies for redress, they appealed to the Labour Court, on the 30th of October 2009 against their dismissal. In a detailed judgment, the Labour Court dismissed the appeal having found that the two had been properly charged, convicted, and dismissed.

3. The two resolved to appeal to this court but failed to apply to the Labour Court for leave to appeal within the 30-day period which is stipulated in that court's rules.

This, in my view, is where their problems started.3. The two resolved to appeal to this court but failed to apply to the Labour Court for leave to appeal within the 30-day period which is stipulated in that court's rules.

This, in my view, is where their problems started.

4. On the 16th of March 2010, some sixty-six days beyond the stipulated time limits, the applicants filed an application in the Labour Court titled “APPLICATION FOR LEAVE TO APPEAL TO THE SUPREME COURT.”

The relief sought, according to their draft order, mirrored the same title.

A look at the founding affidavit shows that the applicants appreciated the fact that their application would be filed out of time, and that, therefore, they would need to secure condonation of the late filing of the application.

This is evidenced by paragraph (viii) of the founding affidavit, which reads as follows;

“I humbly urge this Honourable Court to condone the delay in this application for leave to appeal to the Supreme Court on the basis that:

(i) I travelled to my rural home ending up in too much delay of noting an appeal (sic).

(ii) As a self-actor, I took too long to find the Labour Court Rules that I can prepare my application.” (sic)

The request for condonation, apart from not being reflected in the title of the application, was, in addition, not incorporated into the draft order.

As indicated later in this judgment, the Judge a quo took the view, that, no application for condonation was before the court.

5. Nevertheless, the Judge issued the following order on the 23rd of June 2010;

“The application for leave to appeal to the Supreme Court be and is hereby denied on the basis that it was out of time and the reason for the delay was not a reasonable one.”…,.

I find this order to be incomprehensible in a number of respects;

(a) Having taken the view that there was no proper application for condonation of the late application for leave to appeal to the Supreme Court, it is not clear why or how the court could have proceeded to 'dismiss' the application for leave to appeal to the Supreme Court.

(b) The reasons given for the 'dismissal' of the application for leave to appeal to the Supreme Court are reasons properly associated with an application for condonation of failure to comply with the rules of the court;

(c) While the reasons might have suggested that the Labour Court had in fact entertained an application for condonation of the late filing of the application for leave to appeal, the court dispelled this notion by specifically stating in its order, that, it had dismissed the application for leave to appeal to the Supreme Court; and

(d) Even were it to be taken that the court entertained the application for condonation, the absence of an order specifically granting such condonation establishes otherwise.

6. What is evident, though, is that the Labour Court did not consider the merits of the application for leave to appeal to the Supreme Court. Indeed, it could not have properly done so without first condoning the late filing of such an application. The applicants were barred, and, at that point in time, out of court.

The applicants should have filed a composite application;

(a) For condonation of the late filing of the application for leave to appeal; and

(b) For leave to appeal to the Supreme Court.

Because they did not do so, the application for leave to appeal to the Supreme Court was not properly before the Labour Court.

7. I am of the firm view, that, instead of dismissing the application for leave to appeal to the Supreme Court for the reasons it gave, the Labour Court should have properly struck the application off the roll.

It is also my opinion, that, since a court cannot dismiss what is not before it, the Labour Court's order of 23 June 2010, was incompetent.

8. Had the Labour Court struck the matter of the roll, the applicants would most likely have been alerted to the need to file a proper application with the same court, for condonation, together with one for leave to appeal to the Supreme Court.

9. As this did not happen, the applicants, who felt aggrieved by the decision 'dismissing' their application for leave to appeal, and had no reason to believe the order to be incompetent, mistakenly, but understandably (being legally unrepresented), filed a chamber application before this court on the 19th of July 2010, under case number SC175/10.

They sought the leave of a Judge to appeal to it (purportedly) in terms of section 92F(3) of the Labour Court Act (“the Act”).

10. The application was dismissed in chambers by GARWE JA on the 14th of December 2010, without considering the merits thereof. This was on the basis, that, this Court could not consider the application for leave to appeal to it before:

(i) Condonation for the late filing of that application in the Labour Court had been obtained; and

(ii) The leave of the Labour Court had been properly sought and denied.

11. After the dismissal of their application by a Judge of this Court, significantly, not on the merits, as indicated in paragraph 9, the applicants approached the Labour Court on the 21st of December 2010 and filed a composite application for -

(i) Condonation of the late filing of the application for leave to appeal to the Supreme Court against the Labour Court's order of 30 October 2009; and

(ii) Leave to appeal to the Supreme Court.

12. On the 21st of February 2011, the Labour Court made a ruling that it could not 'plough the same road' as it had already made a decision on that particular issue. It made the following order;

“1. The Court has dealt with the application for leave to appeal and dismissed it on 23 June 2010;

2. The court is thus functus officio and must dismiss the present application;

3. The application is accordingly dismissed.”…,.

13. It is my considered view, based on the foregoing analysis, that the Labour Court was misguided in its view that it had already heard and determined the application for leave to appeal to this Court. As stated above, and despite the wording of its order of 23 June 2010, the court had NOT properly heard nor determined the application for leave to appeal against its decision of 30 October 2009.

14. In stating this, I am fully cognisant of the fact, that, I am not sitting as an Appeal Court to consider this matter.

Accordingly, as a single judge in chambers, I cannot make, and indeed, should not be taken to be making, a final pronunciation on the matter.

Such a task would properly be within the preview of an appeal bench of this Court.

With this in mind, I nevertheless hazard to express the view, that, contrary to its finding, the Labour Court was, in effect, not functus officio and should properly have entertained the application filed by the applicants on 21 December 2010.

It seems to me, that, the Labour Court judge failed to appreciate the fact, that, the applicant's seemingly repeated filing of the same application was traceable, in part, to the court's failure from the onset (i.e. 16 March, 2010) to indicate to the applicants (by striking the matter off the roll) that they could not apply to it for leave to appeal to the Supreme Court without first seeking its condonation of the late filing of such application.

That the court fully appreciated that this was the correct sequence of events to be followed, is evident from the following observations contained in the judge's reasons for the decision in the question;

“The reason (for dismissing the application of 21 December 2010, for condonation and for leave to appeal) are that on 23 June 2010 an application for leave to appeal was dismissed because it was filed out of time. At that time, no application for condonation was made….,.

The two applications that were filed sought to resuscitate a matter that had been dealt with to finality - at least before this Court. Should I condone the application for leave that has already been denied? I could not consider the second application for leave to appeal because I had already denied it. It was water under the bridge. I could not deal with the application because it was ill timed. It ought to have preceded the first application for leave which I had already dismissed.”

15. A couple of pertinent observations can be made from this rather unclear reasoning.

(i) Firstly, the judge a quo properly realised that the first application by the appellants needed to be preceded by an application for condonation of its late filing. The learned judge, however, then fell into the error of not fully appreciating the implication of this default vis a vis the application for leave to appeal to the Supreme Court.

This was that, absent an application for condonation of late filing of the application for leave to appeal, there was nothing before the court to dismiss.

The later application could not stand on its own, being premised on nothing.

(ii) Secondly, since the dismissal in question was, in my view, incompetent, there would have been nothing to prevent the court from hearing the two applications.

Thus, nothing was dealt with 'to finality'.

16. Be that as it may, the applicants did not, as they may have done, take the requisite steps to appeal to this Court against the Labour Court's finding that;

(i) It was functus officio; and

(ii) That, it had already dealt with the application for leave to appeal to the Supreme Court.

17. The applicants, instead, came back to this court seeking an order for leave to appeal against the court a quo's decision on the main dispute.

18. Needless to say, this application was repetitive and therefore improper.

The ground upon which the first application had been dismissed, that is, absence of condonation by the Labour Court, was still in point.

19. The application was heard and dismissed by GARWE JA on 17 November 2011. As a mark of its displeasure, this Court ordered that the applicants pay costs on the higher scale.

20. To the extent that this court had earlier dismissed the same application, albeit, and also without considering the merits, it could have been argued that the matter was res judicata and that this court was functus officio.

The judge, however, did not make a pronouncement nor issue an order to this effect.

21. The appellants apparently felt they could still pursue the dispute, and, in a manner suggestive of their now being totally confused and entangled in a true web of procedural technicalities, the relentless applicants went back to the Labour Court on 7 December 2011 and filed an application with this somewhat confusing title;

“CHAMBER APPLICATION FOR CONDONATION FOR LATE FILING OF AN APPLICATION FOR LEAVE TO APPEAL AGAINST THE DENIAL OF CONDONATION AND APPLICATION FOR LEAVE TO APPEAL AGAINST THE DENIAL OF CONDONATION FOR LEAVE TO APPEAL TO THE SUPREME COURT”

What immediately becomes evident from this title is the fact, that, the application in question was premised on the view, that, an application for condonation of the late filing of an application for leave to appeal to the Supreme Court had been heard and refused by the Labour Court.

The opposite was in fact the case.

The learned judge, in the excerpt from her judgment that is cited in paragraph 14 above, made it very clear why she was not going to entertain such an application. Nor did she, in the end, do so.

The application was therefore misguided.

22. Having, again, found no satisfaction from the Labour Court, the applicants have now, yet again, approached this Court with this application, which is no less misguided than the last one they made before the Labour Court (see above).

The application brings nothing new to this Court unless it is to demonstrate the applicants sheer determination to pursue the matter to what they perceive to be its logical conclusion - whatever pitfalls may stand in their way.

As this Court has entertained the same matter several times, it is my view, that, the court is now functus officio.

The dispute has gone round in circles for a period of over five years and there must be finality to litigation.

The application now before me is, in any case, not sustainable in its current form.

Accordingly, the application is dismissed with costs.

Back Main menu

Law Portal
Zimbabwe

Final Orders re: Approach iro Effect of an Order of Dismissal

SC71-14 : EDWARD TAWANDA MADZA and OTHERS vs REFORMED CHURCH IN ZIMBABWE DAISYFIELD TRUST and REFORMED CHURCH OF ZIMBABWE and NAISON TIRIVAVI and DUTCH REFORMED CHURCH
Ruled By: ZIYAMBI JA, GARWE JA and HLATSHWAYO JA

SC03-15 : PORTLAND HOLDINGS LIMITED vs TUPELOSTEP INVESTMENTS (PROPRIETARY) LIMITED and TOBACCO WAREHOUSE & EXPORT t/a BAK LOGISTICS
Ruled By: ZIYAMBI JA, GOWORA JA and OMERJEE AJA

HH366-16 : JOHANNES TOMANA vs JUDICIAL SERVICE COMMISSION and THE MINISTER OF JUSTICE LEGAL AND PARLIAMENTARY AFFAIRS
Ruled By: MAKONI J

HH258-15 : TETRAD HOLDINGS LIMITED and OTHERS vs NATIONAL SOCIAL SECURITY AUTHORITY and THE SHERIFF FOR ZIMBABWE N.O.
Ruled By: MAFUSIRE J

HH173-15 : BAYRICH ENTERPRISES (PVT) LTD vs XGMA ZIMBABWE (PVT) LTD and THE SHERIFF
Ruled By: MATHONSI J

HH03-11 : JOYCE MADZORERA vs DAVID SHAVA
Ruled By: CHATUKUTA J

HB107-09 : HONOURED NCUBE vs MILTON NCUBE and ELIZABETH NCUBE
Ruled By: NDOU J

CC10-16 : EVERJOY MEDA vs MAXWELL SIBANDA and ZAMBE GWASIRA and THE SHERIFF OF THE HIGH COURT OF ZIMBABWE and THE REGISTRAR OF DEEDS
Ruled By: CHIDYAUSIKU CJ, MALABA DCJ, ZIYAMBI JCC, GWAUNZA JCC, GOWORA JCC, MAVANGIRA JCC, BHUNU JCC and UCHENA JCC

HH147-16 : TATENDA MANDUNA vs ALLIANCE INSURANCE (PVT) LTD
Ruled By: MUSHORE J

HH164-18 : TRUSTEES FOR THE TIME BEING OF TONGOGARA COMMUNITY SHARE OWNERSHIP TRUST vs MATRIX REALTY (PVT) LTD
Ruled By: MUREMBA 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

SC81-21 : FRANK HUMBE vs DESMOND MUCHINA and SPARKLES SERVICES (PVT) LTD and GODFREY MUNYAMANA and SHERIFF OF ZIMBABWE and FADZAYI MUNYAMANA
Ruled By: BHUNU JA, MATHONSI JA and KUDYA AJA

SC93-21 : RINOS TERERA vs GEORGE LOCK and CK HOLLAND t/a HOLLAND ESTATE AGENT and ZIMBABWE HOUSING COMPANY (PVT) LTD and THE REGISTRAR OF DEEDS
Ruled By: CHITAKUNYE AJA

Appealed
SC97-21 : THE TRUSTEES FOR THE TIME BEING OF CORNERSTONE TRUST and JULIUS MAKONI and THE TRUSTEES FOR THE TIME BEING OF RYVONNE TRUST vs NMB BANK LTD
Ruled By: HLATSHWAYO JA, PATEL JA and MAVANGIRA JA

View Appeal
HH466-18 : NMB BANK LTD vs THE TRUSTEES FOR THE TIME BEING OF CORNERSTONE TRUST and JULIUS MAKONI and THE TRUSTEES FOR THE TIME BEING OF RYVONNE TRUST
Ruled By: ZHOU J

SSC99-21 : JAISON ZHUWAKI vs THE STATE
Ruled By: CHITAKUNYE AJA

HB28-15 : SIMELENI DUBE vs CHRISTOPHER DUBE
Ruled By: MAKONESE J

SC08-16 : CFI RETAIL (PRIVATE) LIMITED vs ERIC MANYIKA
Ruled By: MALABA DCJ, ZIYAMBI JA and GOWORA JA

View Appeal
HH373-15 : CARE INTERNATIONAL IN ZIMBABWE vs ZIMBABWE REVENUE AUTHORITY and DESMOND MANINIMINI and SURVIVAL HARDWARE (PRIVATE) LIMITED
Ruled By: MTSHIYA J

SC144-21 : FARAI MATSIKA and FAIRGOLD INVESTMENTS (PRIVATE) LIMITED vs MOSES CHINGWENA and 38 OTHERS
Ruled By: BHUNU JA

SC146-21 : THE GARRAT TRUST vs CREATIVE CREDIT (PRIVATE) LIMITED
Ruled By: BHUNU JA

SC86-14 : W. CHOMUREMA and E. MUZOKOMBA vs TELONE
Ruled By: GWAUNZA JA

Categories

Law Portal Zimbabwe

Final Orders re: Approach iro Effect of an Order of Dismissal

SC71-14 : EDWARD TAWANDA MADZA and OTHERS vs REFORMED CHURCH IN ZIMBABWE DAISYFIELD TRUST and REFORMED CHURCH OF ZIMBABWE and NAISON TIRIVAVI and DUTCH REFORMED CHURCH Ruled By: ZIYAMBI JA, GARWE JA and HLATSHWAYO JA

SC03-15 : PORTLAND HOLDINGS LIMITED vs TUPELOSTEP INVESTMENTS (PROPRIETARY) LIMITED and TOBACCO WAREHOUSE & EXPORT t/a BAK LOGISTICS Ruled By: ZIYAMBI JA, GOWORA JA and OMERJEE AJA

HH366-16 : JOHANNES TOMANA vs JUDICIAL SERVICE COMMISSION and THE MINISTER OF JUSTICE LEGAL AND PARLIAMENTARY AFFAIRS Ruled By: MAKONI J

HH258-15 : TETRAD HOLDINGS LIMITED and OTHERS vs NATIONAL SOCIAL SECURITY AUTHORITY and THE SHERIFF FOR ZIMBABWE N.O. Ruled By: MAFUSIRE J

HH173-15 : BAYRICH ENTERPRISES (PVT) LTD vs XGMA ZIMBABWE (PVT) LTD and THE SHERIFF Ruled By: MATHONSI J

HH03-11 : JOYCE MADZORERA vs DAVID SHAVA Ruled By: CHATUKUTA J

HB107-09 : HONOURED NCUBE vs MILTON NCUBE and ELIZABETH NCUBE Ruled By: NDOU J

CC10-16 : EVERJOY MEDA vs MAXWELL SIBANDA and ZAMBE GWASIRA and THE SHERIFF OF THE HIGH COURT OF ZIMBABWE and THE REGISTRAR OF DEEDS Ruled By: CHIDYAUSIKU CJ, MALABA DCJ, ZIYAMBI JCC, GWAUNZA JCC, GOWORA JCC, MAVANGIRA JCC, BHUNU JCC and UCHENA JCC

HH147-16 : TATENDA MANDUNA vs ALLIANCE INSURANCE (PVT) LTD Ruled By: MUSHORE J

HH164-18 : TRUSTEES FOR THE TIME BEING OF TONGOGARA COMMUNITY SHARE OWNERSHIP TRUST vs MATRIX REALTY (PVT) LTD Ruled By: MUREMBA 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

SC81-21 : FRANK HUMBE vs DESMOND MUCHINA and SPARKLES SERVICES (PVT) LTD and GODFREY MUNYAMANA and SHERIFF OF ZIMBABWE and FADZAYI MUNYAMANA Ruled By: BHUNU JA, MATHONSI JA and KUDYA AJA

SC93-21 : RINOS TERERA vs GEORGE LOCK and CK HOLLAND t/a HOLLAND ESTATE AGENT and ZIMBABWE HOUSING COMPANY (PVT) LTD and THE REGISTRAR OF DEEDS Ruled By: CHITAKUNYE AJA

Appealed SC97-21 : THE TRUSTEES FOR THE TIME BEING OF CORNERSTONE TRUST and JULIUS MAKONI and THE TRUSTEES FOR THE TIME BEING OF RYVONNE TRUST vs NMB BANK LTD Ruled By: HLATSHWAYO JA, PATEL JA and MAVANGIRA JA

View Appeal HH466-18 : NMB BANK LTD vs THE TRUSTEES FOR THE TIME BEING OF CORNERSTONE TRUST and JULIUS MAKONI and THE TRUSTEES FOR THE TIME BEING OF RYVONNE TRUST Ruled By: ZHOU J

SSC99-21 : JAISON ZHUWAKI vs THE STATE Ruled By: CHITAKUNYE AJA

HB28-15 : SIMELENI DUBE vs CHRISTOPHER DUBE Ruled By: MAKONESE J

SC08-16 : CFI RETAIL (PRIVATE) LIMITED vs ERIC MANYIKA Ruled By: MALABA DCJ, ZIYAMBI JA and GOWORA JA

View Appeal HH373-15 : CARE INTERNATIONAL IN ZIMBABWE vs ZIMBABWE REVENUE AUTHORITY and DESMOND MANINIMINI and SURVIVAL HARDWARE (PRIVATE) LIMITED Ruled By: MTSHIYA J

SC144-21 : FARAI MATSIKA and FAIRGOLD INVESTMENTS (PRIVATE) LIMITED vs MOSES CHINGWENA and 38 OTHERS Ruled By: BHUNU JA

SC146-21 : THE GARRAT TRUST vs CREATIVE CREDIT (PRIVATE) LIMITED Ruled By: BHUNU JA

SC86-14 : W. CHOMUREMA and E. MUZOKOMBA vs TELONE Ruled By: GWAUNZA JA

Categories

Your Donation.

Law Portal
Zimbabwe

SC71-14 : EDWARD TAWANDA MADZA and OTHERS vs REFORMED CHURCH IN ZIMBABWE DAISYFIELD TRUST and REFORMED CHURCH OF ZIMBABWE and NAISON TIRIVAVI and DUTCH REFORMED CHURCH
Ruled By: ZIYAMBI JA, GARWE JA and HLATSHWAYO JA

SC03-15 : PORTLAND HOLDINGS LIMITED vs TUPELOSTEP INVESTMENTS (PROPRIETARY) LIMITED and TOBACCO WAREHOUSE & EXPORT t/a BAK LOGISTICS
Ruled By: ZIYAMBI JA, GOWORA JA and OMERJEE AJA

HH366-16 : JOHANNES TOMANA vs JUDICIAL SERVICE COMMISSION and THE MINISTER OF JUSTICE LEGAL AND PARLIAMENTARY AFFAIRS
Ruled By: MAKONI J

HH258-15 : TETRAD HOLDINGS LIMITED and OTHERS vs NATIONAL SOCIAL SECURITY AUTHORITY and THE SHERIFF FOR ZIMBABWE N.O.
Ruled By: MAFUSIRE J

HH173-15 : BAYRICH ENTERPRISES (PVT) LTD vs XGMA ZIMBABWE (PVT) LTD and THE SHERIFF
Ruled By: MATHONSI J

HH03-11 : JOYCE MADZORERA vs DAVID SHAVA
Ruled By: CHATUKUTA J

HB107-09 : HONOURED NCUBE vs MILTON NCUBE and ELIZABETH NCUBE
Ruled By: NDOU J

CC10-16 : EVERJOY MEDA vs MAXWELL SIBANDA and ZAMBE GWASIRA and THE SHERIFF OF THE HIGH COURT OF ZIMBABWE and THE REGISTRAR OF DEEDS
Ruled By: CHIDYAUSIKU CJ, MALABA DCJ, ZIYAMBI JCC, GWAUNZA JCC, GOWORA JCC, MAVANGIRA JCC, BHUNU JCC and UCHENA JCC

HH147-16 : TATENDA MANDUNA vs ALLIANCE INSURANCE (PVT) LTD
Ruled By: MUSHORE J

HH164-18 : TRUSTEES FOR THE TIME BEING OF TONGOGARA COMMUNITY SHARE OWNERSHIP TRUST vs MATRIX REALTY (PVT) LTD
Ruled By: MUREMBA 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

SC81-21 : FRANK HUMBE vs DESMOND MUCHINA and SPARKLES SERVICES (PVT) LTD and GODFREY MUNYAMANA and SHERIFF OF ZIMBABWE and FADZAYI MUNYAMANA
Ruled By: BHUNU JA, MATHONSI JA and KUDYA AJA

SC93-21 : RINOS TERERA vs GEORGE LOCK and CK HOLLAND t/a HOLLAND ESTATE AGENT and ZIMBABWE HOUSING COMPANY (PVT) LTD and THE REGISTRAR OF DEEDS
Ruled By: CHITAKUNYE AJA

Appealed
SC97-21 : THE TRUSTEES FOR THE TIME BEING OF CORNERSTONE TRUST and JULIUS MAKONI and THE TRUSTEES FOR THE TIME BEING OF RYVONNE TRUST vs NMB BANK LTD
Ruled By: HLATSHWAYO JA, PATEL JA and MAVANGIRA JA

View Appeal
HH466-18 : NMB BANK LTD vs THE TRUSTEES FOR THE TIME BEING OF CORNERSTONE TRUST and JULIUS MAKONI and THE TRUSTEES FOR THE TIME BEING OF RYVONNE TRUST
Ruled By: ZHOU J

SSC99-21 : JAISON ZHUWAKI vs THE STATE
Ruled By: CHITAKUNYE AJA

HB28-15 : SIMELENI DUBE vs CHRISTOPHER DUBE
Ruled By: MAKONESE J

SC08-16 : CFI RETAIL (PRIVATE) LIMITED vs ERIC MANYIKA
Ruled By: MALABA DCJ, ZIYAMBI JA and GOWORA JA

View Appeal
HH373-15 : CARE INTERNATIONAL IN ZIMBABWE vs ZIMBABWE REVENUE AUTHORITY and DESMOND MANINIMINI and SURVIVAL HARDWARE (PRIVATE) LIMITED
Ruled By: MTSHIYA J

SC144-21 : FARAI MATSIKA and FAIRGOLD INVESTMENTS (PRIVATE) LIMITED vs MOSES CHINGWENA and 38 OTHERS
Ruled By: BHUNU JA

SC146-21 : THE GARRAT TRUST vs CREATIVE CREDIT (PRIVATE) LIMITED
Ruled By: BHUNU JA

SC86-14 : W. CHOMUREMA and E. MUZOKOMBA vs TELONE
Ruled By: GWAUNZA JA