The five accused persons were charged with criminal abuse of duty as public officers as defined in section 174 of the Criminal Law (Codification and Reform) Act [Chapter 9:23].

The allegations against them were that between 3-23 May 2017, at ZINARA, the five accused had unlawfully, and in common purpose with each other, in the exercise of their functions and contrary to their duties as public officers, engaged third party companies to source foreign currency on the informal market on behalf of ZINARA.

This was in their capacities as Finance Director, Finance Manager, Accountant, Regional Engineer North, and Director Administration and Human Resources of ZINARA.

The companies in question whom they were said to have sourced were Access Finance (Pvt) Ltd, Grayriver (Pvt) Ltd, and Caudless Trading (Pvt) Ltd.

The five accused were said to have made payments amounting to US$2,940,558=69 to these three companies as consideration towards the servicing of a loan owed by ZINARA to the Development Bank of Southern Africa (DBSA) without authority of ZINARA Board of Directors for the purpose of showing favour to these three companies.

The first accused, Simon Mudzingwa Taranhike is the Finance Director of ZINARA. The second accused, Shadreck Matengabadza is the Finance Manager. The third accused, Stephen Matute, is the Accountant. The fourth accused, Givemore Tendai Kufa, is the Regional Engineer North, whilst the fifth accused, Precious Murove, is the Director Administration and Human Resources of ZINARA.

Each pleaded not guilty to the charge.

Their core defence was that the payments were not made on behalf of ZINARA but on behalf of Infralink (Pvt) Ltd (Infralink), and that, as such, ZINARA lacked locus standi in the matter.

Their resultant standpoint was that they could not have abused their duties as public officers when they were transacting on behalf of the private company.

Furthermore, they argued, that, in view of the circumstances surrounding the payment of the monies in settlement of the loan, the ZINARA Board itself, through its lawyers, had since withdrawn charges.

Additionally, they asserted that the payments made were with the full knowledge of the Chief Executive Officer (CEO) of ZINARA at the time they were made, and that, in any event, they had acted with the full mandate of their principal - Infralink.

They also drew attention, in their defence, to the letter written to the National Prosecuting Authority by their lawyers on behalf of the ZINARA Board, prior to the commencement of the trial.

The letter highlighted that the Board was never appraised of the criminal charges against its officers. Furthermore, there was no Board resolution from ZINARA authorising anyone to institute a criminal report. It additionally highlighted that ZINARA and Infralink are, at law, two separate legal entities and that ZINARA had no locus standi.

The letter equally emphasised the context under which the payments had been made, and, in particular, the dire contractual consequences of failure to pay. It concluded that:

“The ZINARA Board fully accepts that it is lawfully bound to assist the National Prosecution Authority in combating corruption and criminal conduct and would not spare any effort or resource in supporting the prosecution of a deserving case. However, the ZINARA Board's impartial consideration of the facts at hand has prompted the need to alert the National Prosecuting Authority on the needless damage that may arise to the standing of ZINARA in circumstances where, in its view, no palpable wrong was done.”

The State took a different view.

It proceeded on the basis of being the dominus litis, and, that, the accused persons had a case to answer.

The Government of Zimbabwe, through the Ministry of Finance and the Ministry of Transport, obtained a loan from the Development Bank of Southern Africa (DBSA) in 2011 for the sum of US$206 million. This was to be used in rehabilitating the road from Plumtree to Mutare.

ZINARA, which is a statutory entity involved in road maintenance, was the Ministry of Transport's nominee.

A private company called Infralink (Pvt) Ltd was formed as a special purpose vehicle for implementing the agreement and for receipt and remittance of the funds for repayment purposes.

ZINARA is a 70% shareholder and Group Five, a private entity, is a 30% shareholder in Infralink.

The latter nominated NMB Bank as the Bank through which repayment of the loan was to be made.

For purposes of servicing the loan, ZINARA ring-fenced certain revenue streams and toll gate collections on the Plumtree-Mutare road. It would collect this money for onward transmission to Infralink. In turn, Infralink would service the loan with the Development Bank of Southern Africa (DBSA).

This worked until foreign currency became a challenge in Zimbabwe.

Although bond notes were deposited into the account, these only operate within Zimbabwe. ZINARA began to experience serious challenges in remitting foreign currency to Infralink. NMB which was Infralink's bank, was unable to assist in securing the scarce resource. The result was that Infralink soon plummeted into unstainable repayment arrears as the debt continued to mount and mount.

It was against this background that the five accused persons are said to have used illegal means to service the debt in that they had sought to use companies outside the country to use their own monies whilst being reimbursed here in Zimbabwe at a premium.

Judith Kateera, who was the then Permanent Secretary in the Ministry of Finance and a Board member of ZINARA as well as chairperson of its Finance Committee, gave evidence.

According to her, at a meeting on 22 March 2017, the Finance Director, the first accused in this matter, had brought it to the Committee's attention that the loan obtained by ZINARA from the Development Bank of Southern Africa (DBSA) had accumulated arrears of US$14.5m and was attracting penalties of 200% over the 6% annual rate.

At a third Finance Committee meeting, held on 12 June 2017, the arrears had accumulated to US$21m.

The Finance Director reported, at that meeting, that, the Reserve Bank of Zimbabwe had only availed US$2.5m for purposes of repaying the arrears. Concerns had been raised that the debt was unsustainable and would threaten the very existence of ZINARA.

It was at this meeting that the first accused person had proposed that permission be granted to approach those on the market who could help extinguish the debt.

As chairperson of the Committee, her response had been that this would contravene the Money Laundering Act. The resolution, according to this witness, was that the Ministry of Transport, as the parent body, was to be approached for them to further engage the Ministry of Finance and the Reserve Bank of Zimbabwe. She had subsequently learnt of the unauthorised payment to Grayriver (Pvt) Ltd when the police approached her.

Albert Mugabe, who was then the chairperson of the ZINARA Board, told the court that the issue of the repayment of the loan was a regular issue on the ZINARA Board agenda.

He confirmed the challenges that NMB Bank had encountered in procuring US dollars despite the account being populated with bond notes. It was under these circumstances that the US dollars had been obtained outside the normal bank structures and used to service the runaway debt although the Board, which had oversight over polices, had not authorised the sourcing of foreign currency from third parties.

He agreed, in cross examination, that, making the payment did indeed relieve ZINARA of some of the penalties and that he would therefore not be surprised if the executive had sought ways to reduce the burden on ZINARA. He was not aware of any personal benefits that any of them had received.

Nancy Masiyiwa, the CEO of ZINARA, told the court that she had assumed office as head of ZINARA in September of 2016.

She described the core Executive team at ZINARA as consisting of herself, the director of finance, the human resources director, the technical director, and the corporate secretary. She is the one who chairs the Executive. The Executive reports to the Board of Directors. The CEO is the one who prepares the agenda for the Board and also presents the ZINARA report from the executive to the Board.

In terms of the actual day to day working structure between ZINARA and Infralink she highlighted that the chairperson of the ZINARA Board is also the chairperson of the Infralink Board and the corporate secretary for ZINARA is also the corporate secretary for Infralink. She further explained that the CEO of ZINARA is also the CEO of Infralink and that the financial director for ZINARA is also the same for Infralink. Group Five, Infralink's counterpart, has two representatives on the Infralink Board.

Amongst the accused persons, only the Finance Director sat on the Infralink Board.

She also highlighted, that, in reality, the Infralink Board rarely met as Infralink, and, if there were issues to be discussed, these were discussed by way of round robin.

Regarding the loan to the Development Bank of Southern Africa (DBSA) which was to be paid by Infralink through funds received from ZINARA, it would generally be discussed by the Executive within ZINARA where the Finance Director would give an update. It would also be discussed by the ZINARA Board.

According to her testimony, the Infralink Board rarely met as a Board. The overlapping Board members had gone to South Africa as Infralink Board members to discuss the restructuring of the loan sometime in March 2017.

She confirmed that, in June, the Finance Committee had indeed shot down the proposal to pursue foreign currency on the open market.

She told the court that the schedule of payments made by the accused was only brought to her attention when the serious fraud squad engaged her in June. Her evidence was that these payments should have been escalated to her office.

Whilst she admitted having asked the Finance Director, at the beginning of that year, to engage innovative thinking in raising funds to pay the debt, she had not said procedures should not be followed. She was unable to comment on whether the accused persons had received any benefits.

Patrick Takawira, the Treasure Director at FBC Bank, who was introduced to the second accused, Shadreck Matengabadza, by Mr Njanji from CBZ, which was ZINARA's bank, also gave his evidence. Its gist was that he, in turn, had introduced the two to Dr Hokonya, a business consultant who knew people who could pay in foreign currency outside the country and had capacity to assist.

Dr Hokonya, who had sourced the companies that were able to pay in rands confirmed that he had been introduced to the second accused, who, on behalf of ZINARA, had confirmed that they were looking for people who could effect payment on their behalf outside the country.

He had also received confirmation from the second accused that the Development Bank of Southern Africa (DBSA) in South Africa were agreeable to payments being made in rands in South Africa.

Solarwatts had been sourced to make the payment. It needed a receiving account in Zimbabwe to receive the payment from ZINARA. Solarwatts had indicated that the payment was to be made to a company known as Grayriver (Pvt) Ltd and had provided an account for it held at CBZ.

Solarwatts was supposed to pay an equivalent of US$250,000 to the Development Bank of Southern Africa (DBSA) on behalf of Infralink. This they had purportedly done in South Africa and ZINARA, in return, paid $300,000 into the Grayriver CBZ account here in Zimbabwe.

According to this witness, the other $50,000 was for commission from which he was to have received $25,000 as introduction fees. He told the court that he had paid his assistant, Chandler Moyo, whom he worked with, a sum of US$12,500 but had been unable to get his US$12,500 as the account had been subsequently frozen soon thereafter.

Chandler Moyo's evidence did not add much other than confirming that he did indeed assist Dr Hokonya in relaying information to and from the various players. He also revealed, that, after being paid his $12,500 the second accused had taken a loan of $2,500 from him which he had repaid.

Mr Shadreck Chezani, the investigation officer, was the final State witness.

He told the court that the matter had been anonymously reported to the police in May 2017. Interviews had thereafter been carried out at ZINARA and had established that something was not proper. A successful application to freeze the Grayriver account had been made. The investigation unearthed that four transactions had been made from the Grayriver account following the payment into the account of $300,000. Investigations had also established that the withdrawals had been fast and furious.

Besides the $12,500 paid to Chandler Moyo, a person purporting to be Honest Kugotsi had also made withdrawal. They had established that the particulars of the real Honest Kugotsi had been used and that the real person had nothing to do with the matter.

About $14,000 and another $60,000 had been used to purchase goods using his name.

Another fictitious person named Mckenzie had also withdrawn from the account. A fourth transaction involving $40,000 had also been made impersonating one of the directors of Grayriver (Pvt) Ltd, Magaisa Sobuza, who had in fact died in 2014.

He told the court that a total of $131,000 had been spirited away by the time the account was frozen and that the remainder of the amount remains frozen in the account.

Whilst a Munyaradzi Paraiwa had stepped forward to lay claim, the police had been unable to get hold of a person by that name at the address given.

Importantly, whilst a company called Grayriver (Pvt) Ltd does exist, the Investigating Officer explained that the account had initially been opened by one Collins Mupimbo who had been given certain documents by Mr Bruce Michael Blake from Grayriver in their business dealings to assist with opening an account for Grayriver at CBZ. The account had been opened. However, Mr Blake of Grayriver had discovered, some two weeks prior, that he could not use the account as he was being denied access.

The Investigating Officer also told the court that all the payments purportedly made on behalf of Infralink, through ZINARA, were still under investigation.

In particular, they were still investigating whether fraud and theft had been committed by any of the accused persons.

The rationale for bringing the matter to court when investigations were still in progress was said to be the fact that the focus of the complaint at this point was a separate one of criminal abuse of office in that the accused persons had acted negligently without authority.

He confirmed, in cross-examination, that the initial charges that they had filed were for theft and fraud but that they had since changed the charge to abuse of office since they realised, in the course of investigations, that the ZINARA Board had not authorised the payments.

The evidence of three other State witnesses, namely, the real Honest Kugotsi whose particulars had been fraudulently utilised to open the account; that of Bruce Michael Blake, who had given Grayriver (Pvt) Ltd's details to Collins Mupimbo to open an account at CBZ; and that of Tonderai Marange, an accountant at ZINARA who had subsequently received the anonymous call that precipitated the investigations, was admitted in terms of section 314 of the Criminal Procedure and Evidence Act [Chapter 9:07].

The first accused, Simon Taranhike, gave evidence which was crystalline that the reason Infralink fell into arrears in servicing its loan repayments to the Development Bank of Southern Africa (DBSA) was because they were unable to secure foreign currency from the Reserve Bank to repay the loan even though they had money in the local bank, NMB.

Representations to the Ministry of Transport and the Ministry of Finance, to assist in securing the necessary funds, had not borne any fruits. By March 2017, the arrears were ringing at $14m. As at December 2016, $232m had been paid on the loan of $206m but $171m was still owed in total.

It was following this December meeting that he had received instructions from the CEO on targets to be met the following year and on the need for innovative thinking to clear the debt.

He described to the court how the instructions, in essence, required him to raise $1.2 billion through stipulated tasks within a short period of time with consequences.

A resolution had been taken at the December meeting for Infralink representatives, inclusive of Group Five, to go to South Africa to meet with the Development Bank of Southern Africa (DBSA) with a view to negotiating on the loan repayments being made on rand and then being converted into US dollars, since the loan was in US dollars.

Another possibility explored was that of using $17m held in a reserve account to set off the 14m then accumulated in arrears.

A meeting had taken place in South Africa, in March 2017, with the Development Bank of Southern Africa (DBSA). Apart from the witness, the team that went to South Africa included the Chairperson of ZINARA and Infralink, Mr Albert Mugabe, the Deputy Chairperson, Mr Kamwi, the CEO, Ms Masiyiwa, and a member of the Board, Ms Mujokoro.

Whilst the payment plan to use reserve funds had been rejected on the grounds that Infralink were negotiating for restructuring with dirty hands, pleas to pay in rand had been made.

Following the meeting, and a lengthy debate with the Development Bank of Southern Africa (DBSA), a team had been tasked to put these representations, to pay in rand, in writing. This had been done, including the furnishing of the payment plan. Names of those companies that would pay in rand were also provided to DBSA. The Development Bank of Southern Africa (DBSA) had agreed to payment being made in rands.

The payments had then been made in May 2017 through the three companies found by Dr Hokonya.

A total of $2.1m was paid to the Development Bank of Southern Africa (DBSA) between 3 and 23 May 2017.

He also told the court that the value put on rand payments was not to exceed 30% of the expenses paid. He attributed the different rates and amounts paid to these payments having been effected on different dates.

He also confirmed giving the second accused explicit instructions to go to banks to get help in potentially settling the loan from rand based accounts. He was also adamant that ZINARA had only paid out in all cases upon receipt of confirmation that the money had indeed been received in the Development Bank of Southern Africa (DBSA) account and that all payments had gone through.

He denied that what he had done amounted to procuring money from unauthorised sources or that they had procured money on the open market since they had gone to CBZ, ZINARA's bank, which, in turn, had referred them to another Bank for assistance and subsequently to Dr Hokonya.

The second accused's evidence, Shadreck Matengabadza, the Finance Manager with ZINARA, essentially confirmed the chain of events, that, in that capacity he had gone to their relationship manager at CBZ, Mr Henry Njanji, who, in turn, had taken him to meet Patrick Takawira at FBC Bank, who, in turn, had introduced him to Dr Hokonya.

The latter had then put him in touch with Chandler Moyo as his point man.

It was the latter who had advised him that he had found a company in South Africa that could effect payments in rand. It was also Chandler Moyo who had provided the details for Grayriver (Pvt) Ltd and informed him that Solarwatts in South Africa, which had effected payments in rands, had said their money should be received by Grayriver (Pvt) Ltd.

He told the court that the schedule of rand payments that was before the court was not correct and had been tampered with by its compilers with altered figures as to what was paid out in order to fix him.

He opined that it was because of the discovery of the manipulations and flaws such as these that the Board had in fact attempted to have withdrawn the charges the accused persons were facing.

He too denied illegality in the dealings, emphasising that they were authorised to do so and were in fact paying expenses. He told the court that, with the benefit of hindsight, he now realised that the CEO had deliberately never wanted to sign anything from the finance department - always referring back to it anything that required action.

The third accused, Steven Mature, an accountant in ZINARA, who reports to the Finance Manager, described his duties as being to receive payment instructions and then passing these on to clerks to raise payment vouchers, send or effect RTGs.

He told the court that the payments made were fully authorised and relied on the CEO's letter of 9 January 2017 instructing the Finance Director to look at other ways of ensuring that the debt was paid; and the evidence of Infralink's Board minutes on the payment plan to the Development Bank of Southern Africa (DBSA).

The fourth accused, Tendai Kufa, an engineer within ZINARA, was said to have countersigned instructions to the bank to effect payment to the companies in the schedule that was placed before this court.

He explained that sometime from 22-23 May 2017, the first accused had been acting CEO as the CEO was away. He himself was Acting Director-Technical on behalf of the Director who was away. He had been invited to do sign-offs of all payments that had been done that day.

The Grayriver (Pvt) Ltd payment was amongst them and against it was indicated the Development Bank of Southern Africa (DBSA) loan repayment.

He had asked about it as he had never come across the name and was advised that they were being paid in line with developments that had taken place in Infralink regarding payments to Infralink. He was also told that the Finance Department had been advised and was aware. As he was talking to the Acting CEO, he took his word for it that all was above board. There was a supporting voucher from Finance and all protocols had been observed. He had therefore signed.

The fifth accused, Precious Murove, described his duties as the Director for Administration and Human Resources Management within ZINARA.

He is also responsible, among other things, for signing off all ZINARA and Infralink payments as a 'B' signatory. He is however not a Board member and does not attend Infralink meetings. His role is to only sign off as additional signatory.

His evidence was that the first accused was indeed authorised to look for local and individual partners to facilitate payment to the Development Bank of Southern Africa (DBSA). He told the court that the DBSA loan was discussed at three levels, namely, the ZINARA Board, the Finance Committee, and the Executive Committee. He confirmed, from internal correspondence (exhibit D6), that the issue that ZINARA was supplementing NMB funds by making payments in rands was fully known.

He explained, in cross examination, that the loan's importance to ZINARA, in executive meetings, arose from it having ceded revenue from three streams, namely, transit fees, tolling fees, and abnormal load fees for a period of ten years. As such, ZINARA had a direct interest in the repayment of the loan because it could not cede its revenue streams indefinitely since it would be prejudiced by doing so.

That being said, his standpoint was still that Infralink is a private entity and that it was Infralink that was getting the revenue streams from the ceded entities in order to pay the Development Bank of Southern Africa (DBSA). As such, the issue of the DBSA loan was, according to him, essentially an Infralink issue.

Public abuse of office impacts on the public's trust and confidence in public institutions. It can also have financial consequences. As one author, JOHN HATCHARD puts it:

“(T)he offence is essentially a support for integrity and good governance on the basis that those who are entrusted with State power must act for the public good. Whilst many of the reported cases involve police officers, the offence applies generally to officials in the public service, local government, and, arguably, those in the private sector providing public functions."

It has also been explained thus:

“The essence of the crime of misconduct of public office is either wilfully neglecting to carry out the public duty entrusted to you, or wilfully abusing it for some improper end.”

The offence of criminal abuse of duty as a public officer is clearly defined in our Criminal Law (Codification and Reform) Act (Code). The provision is described as re-enacting and expanding upon the previous section 4 of the Prevention of Corruption Act: see G. FELTOE, Commentary on the Criminal Law (Codification and Reform) Act [Chapter 9:23] November 2017.

Historically, neglect of duty, bribery, and extortion were at the core of abuse of public office: Hawkins Pleas of the Crown 1716-121 and 1824 as discussed by GRAHAM McBAIN in his article Modernising the Common Law Offence of Misconduct in a Public or Judicial Office, 7J. Pol. & L. 46 (2014).

Furthermore, crimes such as bribery, extortion, theft, and fraud which may also speak factually to various situations that involve public officers are separate offences in the Criminal Law (Codification and Reform) Act (Code).

Criminal abuse of duty as a public officer is defined as follows:

“174 Criminal abuse of duty as public officer

(1) If a public officer, in the exercise of his or her functions as such, intentionally -

(a) Does anything that is contrary to or inconsistent with his or her duty as a public officer; or

(b) Omits to do anything which it is his or her duty as a public officer to do; for the purpose of showing favour or disfavour to any person, he or she shall be guilty of criminal abuse of duty as a public officer and liable to a fine not exceeding level thirteen or imprisonment for period not exceeding fifteen years or both.

(2) If it is proved, in any prosecution for criminal abuse of duty as a public officer, that a public officer, in breach of his or her duty as such, did or omitted to do anything to the favour or prejudice of any person, it shall be presumed, unless the contrary is proved, that he or she did or omitted to do the thing for the purpose of showing favour or disfavour, as the case may be, to that person.”

To be guilty of abuse of public office, what can be gleaned from the above is that:

(i) One must be a public officer.

(ii) Must have engaged in conduct that is inconsistent with duty as a public officer.

(iii) Must act intentionally in the act of omission or commission.

(iv) The purpose of the conduct must be to show favour or disfavour to any one person.

The definition of public officer, as captured in our Criminal Law (Codification and Reform) Act (Code), is as follows:

“'public officer' means -

(a) A Vice-President, Minister, or Deputy Minister; or

(b) A governor appointed in terms of an Act referred to in section 111A of the Constitution; or

(c) A member of a council, board, committee, or other authority which is a statutory body or local authority or which is responsible for administering the affairs or business of a statutory body or local authority; or

(d) A person holding or acting in a paid office in the service of the State, a statutory body, or a local authority; or

(e) a judicial officer.”

The issues for decision essentially whittle down to two:

(i) Firstly, whether under the described factual circumstances the accused persons were acting as public officers; and

(ii) Secondly, whether they abused public office in their conduct in order show favour to the companies in question.

Whilst the Criminal Law (Codification and Reform) Act (the Criminal Code) is always the starting point in resolving any disputes where an area of law has been codified; however, as has been pointed out by G. FELTOE, Commentary on the Criminal Law (Codification and Reform) Act [Chapter 9:23] November 2017, codification has not obviated the need for judicial interpretation.

Additionally, to avoid judicial lag, and as a matter of persuasive comparative analysis rather than binding authority, we do well in an increasingly shrinking world to also understand how other jurisdictions have approached and interpreted the concept of abuse of public office.

The thrust of the argument proffered by the accused persons, as highlighted, is that the debt was an Infralink debt - which is a private company.

That Infralink is a private company set up as a special purpose vehicle by ZINARA and Group Five for purposes of carrying out public functions is not in dispute.

It is equally not in dispute that all five accused persons were employed by ZINARA, a statutory entity, and that only the Finance Director, among the accused, had an overlapping function in Infralink.

The fact that the Government is the major shareholder of an entity has been opined not to colour in any manner whatsoever its nature as a private entity where it is registered. Its employees are said to be not public officers.

As observed in the case of S v Chikumba 2015 (2) ZLR 382 (H)…, with reference to section 169 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] (the Code) as to who is a public officer, the court observed thus:

“The section does not refer to Government-controlled entities. It refers to persons holding office in the service of the State. To say the Chief Executive Officer of Air Zimbabwe Holdings, a private company, is the same thing as 'a paid office in the service of the State' is absurd. The Government is merely a shareholder in the airline. It is not the employer. In my view, the person referred to in that section is a civil servant who is employed directly by the State and paid directly by it.”

And, further, at p391C:

“It is true that the State may sometimes run its affairs indirectly through statutory corporations. But, the definition of 'public officer' caters for that. Section 169 defines a 'statutory body' to mean, among other things, '…, any body corporate established directly by or under an Act for special purposes specified in that Act.”

In this instance, the facts are very distinguishable from the above case in terms of what actually pertained on the ground in terms of the practical day to day link between ZINARA and Infralink.

In exhibit D4, which was placed before this court by the accused persons' counsel, an Infralink document compiled for the Minister of Finance and dated 24 February 2017, Infralink is described as a company under the management of ZINARA.

In actual practice, ZINARA had an almost indistinguishable interest in running the affairs of Infralink whose business was no doubt of a public nature - albeit it was a privately registered entity.

What is significant in this case is that whilst indeed Infralink is a private corporation, its management and administration was entirely in the hands of ZINARA employees because it was simply a special purpose vehicle set up for the management of a joint project between Government and an implementing partner.

There was, strictly speaking, no separate staff running the affairs of Infralink.

The Finance Director, at all times, wore two hats, as Finance Director of ZINARA and as Finance Director of Infralink. The CEO herself was clear about the crucial day to day overlaps within ZINARA and Infralink.

Crucially, Infralink's functions were undeniably of a public nature. It matters not that the fulfilment of the mandate was through a private company.

In the English case of R v Cosford, Falloon and Flynn [2013] 2 Cr App R8, for example, the court concluded that the important point is:

“Whether that duty is a public duty in the sense that it represents the fulfilment of one of the responsibilities of Government such that the public at large have a significant interest in its proper discharge.”

In that case, it was held that nurses in a prison setting, whether trained as prison officers or not, and whether or not the prison is run directly by the State or indirectly through a private company, paid by the State to perform its functions, had duties which fulfilled the requirement of a public office for this purpose: see a discussion of the case by GRAHAM McBAIN, Modernising the Common Law Offence of Misconduct in a Public or Judicial Office, 7 J. Pol. & L. 46 (2014)…,.

In this instance, even if the debt legally belonged to Infralink, which is a private corporation; when the facts, as described herein, are looked at in their entirety, it is hard to see how ZINARA can be said to be out of the picture or to be divorced from any actions taken by the accused in their capacity as public officers on behalf of Infralink.

However, the mere fact of being a public officer does not, on its own, automatically make one liable.

In the Hong Kong case of HKSAR v Wong Lin Kay [2012] 2 HKLRD 898, for example, the Hong Kong Court of Final Appeal, in deciding whether a public officer should be liable under the facts of a particular case, held that:

“The correct approach is not to attempt somehow to decide in the abstract or in isolation whether a person is or is not a public officer. One must examine what, if any, powers have been entrusted to the defendant in his official position for the public benefit, asking how if at all, the misconduct involves an abuse of those powers….,. If the defendant occupies a position which confers no such powers on him, he is not a candidate for prosecution for the offence even if he is employed by a local department or by an analogous public body.”

It was stated in that case, that, whilst in every day speech every employee of public sector may be termed a public officer that does not necessarily mean that all public sector employees are potentially liable for misconduct in public office.

A person may be a public sector employee and yet his job may not vest him with any relevant powers or discretions that are exercisable for the benefit of the public. Furthermore, the misconduct may not involve any abuse or have any relevance to the position he occupies.

In casu, the duties entrusted upon the Finance Director were essentially of a public nature whether within ZINARA or Infralink itself which was carrying out public functions.

He, in turn, delegated certain functions to some of the co-accused, as public officers, who all the while performed duties for ZINARA as the public authority managing Infralink's day to day affairs.

Simply put, the accused persons were public officers carrying out public functions on behalf of Infralink whose functions were themselves of a public nature.

Having thus observed, this court is of the view that the more crucial question therefore on which energy should be expended is whether the accused persons abused their offices as public officers by acting inconsistently to show favour to the companies in question.

This judgment involves two consolidated appeals from the High Court (the court a quo) being case numbers SC258/20 and SC285/20. The court issued a consolidation order dated 29 March 2021 by consent of the parties. Both appeals are based on the same record of proceedings and issues in the court a quo under Case No. HC6503/19.

It was therefore convenient to consolidate the two appeals because the matter was determined by the same judge a quo on the same facts and issues.

The two appeals arise from the same judgement. Each appellant lodged its own appeal against the same judgment in which they were contesting parties.

Both appeals bring into question the judgment of the court a quo which determined that the forensic audit conducted by the appellant, at the behest of the second respondent, was an administrative action subject to review by the court a quo.

In consequence thereof, the court a quo reviewed and set aside the forensic audit for irregularity coupled with costs at the higher scale.

In this judgment, the parties are cited as they appear in case number SC258/20 notwithstanding that in the second appeal they are cited in reverse order. BDO CHARTERED ACCOUNTANTS shall therefore be called the appellant. ROBIN VELA the first respondent and the AUDITOR GENERAL the second respondent.

The appellant, BDO CHARTERED ACCOUNTANTS, is a firm of accountants conducting business under the partnership of Ngoni Kudenga, Gladman Sabarauta, Martin Makaya, Gilbert Gwatiringa, and Jonas Jonga.

The first respondent is the erstwhile Board chairman of the National Social Security (NSSA), a body corporate established in terms of section 4 of the National Social Security Authority Act [Chapter 17:04].

The second respondent is the Auditor General of Zimbabwe appointed in terms of section 310 of the Constitution....,.

I now proceed to consider the appeal on the merits.

The synopses of both appeals are, to a large extent, common cause. The parties mainly differ on the interpretation and application of the law to the facts.

The undisputed facts are that the first respondent, Robin Vela, was the Board chairman of the National Social Security Authority (NSSA), during the period extending from July 2015 to March 2018.

After he left employment with the National Social Security Authority (NSSA), the second respondent, the Auditor General, appointed the appellant, BDO Zimbabwe Chartered Accountants (BDO), to conduct a forensic audit for the duration of his employment with NSSA.

In the exercise of its mandate, the appellant questioned a number of people - including the first respondent.

At the conclusion of its investigations, the appellant submitted an adverse report against the first respondent. Some of the adverse reports were that:

(a) He was responsible for the overpayment of Board fees.

(b) He interfered in management issues.

(c) His dealings with Medbank investments were not above board as a result they yielded losses.

Disgruntled by the adverse audit report, the first respondent sought to impugn it on review. He thus filed an application in the court a quo in terms of section (3)(1)(a) as read with section 4 of the Administrative Justice Act [Chapter 10:28] on the grounds that:

(1) In carrying out the audit, the appellant was exercising public power. Its conduct, in this respect, was therefore liable to judicial review.

(2) The appellant conducted the audit without the necessary jurisdiction.

(3) The audit report was biased, malicious, irrational, incompetent, and unfair in contravention of section 3(1)(a) of the Administrative Justice Act (AJA).

The appellant and the second respondent countered, that, the appellant's conduct, in compiling the audit report at the behest of the second respondent, was not subject to review because it was not an administrative authority whose actions are subject to review. The appellant's conduct was therefore neither an administrative decision nor administrative action subject to review.

The appellant further argued that its agreement with the second respondent, to carry out the forensic audit, was purely contractual, grounded in private law.

The allegations of bias, malice, and incompetence were denied on the basis that the audit did not target the first respondent personally but the National Social Security Authority (NSSA) in general. The allegations of unfairness and irrationality were likewise denied.

The court a quo found, that, the forensic investigation and the audit report produced by BDO Zimbabwe Chartered Accountants (BDO) were reviewable. It then proceeded to review the appellant's conduct when producing the forensic audit report.

At the conclusion of the review process, the court a quo held, that, the process leading up to the production of the audit report was fraught with bias because there was unequal treatment of the first respondent and two Ministers of State allegedly involved in corrupt activities. The failure to mention the impugned ministers' names in the forensic report was held to amount to incompetence.

The court a quo also found that BDO Zimbabwe Chartered Accountants (BDO) failed to give proper consideration to the first respondent's answers.

It then concluded that the first respondent was subjected to an unfair process in that he was denied the right to be heard which is guaranteed by section 3 of the Administrative Justice Act (AJA).

On that score, the court a quo found that BDO Zimbabwe Chartered Accountants (BDO), in its exercise of public authority while conducting the forensic audit, fell foul of the Administrative Justice Act as read with section 309 of the Constitution. Consequently, it issued the following order:

“IT IS ORDERED THAT:

3. The forensic audit of the National Social Security [NSSA] for the period 1 January 2015 to 28 February 2018, produced by the Auditor General of Zimbabwe by BDO Chartered Accountants, be reviewed and set aside in all those respects that pertain, whether directly and/or indirectly to the applicant.

4. Costs of suit shall be borne by the second respondent on the higher scale of legal practitioner and client scale.”

Aggrieved by that order, the appellant lodged an appeal to this court on the following five (5) grounds:

“1 The High court erred in finding that the appellant's carrying out of a forensic audit on the National Social Security Authority (NSSA) at the behest of the Auditor General (second respondent) constituted an administrative action which is subject to review at the first respondent's instance and on the alleged grounds.

2. The High Court erred in finding that the appellant, in its report under consideration, exhibited bias against the first respondent when there was no evidence supporting such finding.

3. The High court erred in concluding that the appellant did not apply its mind to the issues before it in the absence of any evidence controverting the findings made in the audit report.

4. The High court erred in concluding that the audit was unfair against the first respondent in circumstances where he had been given an opportunity to respond to the allegations against him and his responses had been taken into consideration before drawing any conclusions; and which such conclusions are not only supported by the evidence availed to the appellant but were properly explained in the audit report.

5. The High court erred in setting aside the audit report in all aspects pertaining to the first respondent in the absence of evidence demonstrating bias or incompetence or unfair treatment or pointing to any irregularities in every such aspect.”

The appellant's prayer is that the order of the court a quo be set aside and replaced by an order dismissing the first respondent's application with costs at an attorney client scale.

Although the five (5) grounds of appeal raise various issues for determination, ground number one is capable of resolving the appeal without delving into the other remaining grounds. This is because it has to do with a challenge to BDO Zimbabwe Chartered Accountants (BDO) jurisdiction to exercise public authority when contracted by a public authority to perform specific tasks on its behalf.

The simple issue that then arises from the first ground of appeal is whether the court a quo misdirected itself in holding that the appellant was exercising public authority, subject to judicial review, when it carried out the forensic audit for and on behalf of the Auditor General.

The facts of this case are by and large common cause. There are no material disputes of facts. It is common cause that the appellant is a private partnership carrying out business as a firm of Chartered Accountants under the style of BDO Zimbabwe Chartered Accountants.

In that capacity, it was contracted, by the Auditor-General, to carry out the forensic audit in question for and on behalf of the Auditor General.

It compiled the report, submitted it to the Auditor General - and moved out of the picture.

The first respondent took umbrage with the report, complaining that it put him in bad light. He then took the appellant's conduct and processes on review alleging various procedural irregularities; arguing that the appellant's conduct amounted to the exercise of public power which is subject to review.

BDO Zimbabwe Chartered Accountants (BDO) contention is that it was and is not an administrative authority. Accordingly, it did not take administrative action by compiling the forensic audit report. Its conduct was purely contractual. It conducted the forensic audit, not as a public body, but a private partnership contracted by the second respondent, the Auditor General. As such, it was not given authority to exercise administrative power or authority. Its processes and conduct, as a private entity, were therefore not subject to judicial review.

The first respondent accepted the factual position but contended that BDO Zimbabwe Chartered Accountants (BDO) was the agent of the Auditor-General. It is the hand through which the second respondent acted; as such, BDO Zimbabwe Chartered Accountants conduct could not be separated from that of its principal. For that reason, it was exercising public authority when it conducted the forensic audit on behalf of the Auditor General. Its conduct and processes were therefore subject to judicial review; so goes counsel for the first respondent's argument.

In countering the first respondent's appeal, counsel for BDO Zimbabwe Chartered Accountants (BDO) submitted, that, in taking the matter for review, the first respondent misconstrued and misunderstood the import and meaning of the term administrative authority as defined in section 2(1) of the Administrative Justice Act (AJA). The term is defined as follows:

“'Administrative authority' means any person who is -

(a) An officer, employee, member, committee, council, or board of the State or a local authority or parastatal; or

(b) A committee or board appointed by or in terms of any enactment; or

(c) A Minister or Deputy Minister authorised by any enactment to exercise or perform any administrative power or duty; and who has the lawful authority to carry out the administrative action concerned;”

The section is couched in clear and unambiguous language.

Nowhere does it confer or suggest that a private entity not mentioned in the section falls within the ambit or definition of administrative authority. The non-mentioning of private entities as wielding administrative authority means that they are excluded from having such authority.

In developing his argument, counsel for BDO Zimbabwe Chartered Accountants (BDO) placed reliance on the case of Chirwa v Transet 2008 (4) SA 367 (CC)…, which illustrates the attributes and characteristics which are peculiar to an administrative authority through which it may be defined and identified.

In that case, the Constitutional Court of South Africa observed that:

“Determining whether a power is 'public' is a notoriously difficult exercise. There is no simple definition or clear test to be applied. Instead, it is a question that has to be answered with regard to all relevant factors, including:

(a) The relation of coercion or power that the actor has in its capacity as a public institution;

(b) The impact of the decision on the public;

(c) The source of the power; and

(d) Whether there is a need for the decision to be exercised in the public interest.

None of these factors will be determinative; instead, a court must exercise its discretion considering their relative weight in the context.”

It is clear, as argued by counsel for BDO Zimbabwe Chartered Accountants (BDO), that, BDO does not fit anywhere within the statutory definition of 'administrative authority' or any of its attributes or characteristics laid down in Chirwa v Transet 2008 (4) SA 367 (CC).

With all due respect, counsel for the first respondent's argument, that, the mere fact that the Auditor General hired the appellant as its agent, conferred administrative authority on BDO Zimbabwe Chartered Accountants (BDO) is misplaced.

This is for the simple reason that section 309 of the Constitution, which creates the office of Auditor General, does not confer him/her with the power to confer administrative authority on anyone. The section reads:

“309 Auditor-General and his or her functions

(1) There must be an Auditor General, whose office is a public office but does not form part of the Public Service. [Subsection amended by Act 2 of 2021]

(2) The functions of the Auditor-General are —

(a) To audit the accounts, financial systems, and financial management of all departments, institutions, and agencies of Government, all provincial and metropolitan councils, and all local authorities;

(b) At the request of the Government, to carry out special audits of the accounts of any statutory body or Government-controlled entity;

(c) To order the taking of measures to rectify any defects in the management and safeguarding of public funds and public property; and

(d) To exercise other functions that may be conferred or imposed on him or her by or under an Act of Parliament.

(3) Public officers must comply with orders given to them by the (Auditor General) in terms of subsection 2(c).”

It is plain that section 309 of the Constitution confers administrative authority on the Auditor General and no one else.

Had the law-maker intended the Auditor General's agents to also wield administrative power, then, it would undoubtedly have said so. Its silence means that Parliament had no intention whatsoever to confer administrative authority on the Auditor-General's private agents.

Section 9 of the Audit Office Act [Chapter 22:18] merely authorises the Auditor General to hire private auditors to carry out audits and report to him/her in terms of the Act.

The section does not authorize the Auditor General to delegate his/her administrative authority to the hired auditors, who remain mere functionaries or aids of the Auditor General without any power of substitution.

In terms of the contract of service between BDO Zimbabwe Chartered Accountants (BDO) and the Auditor General, it is clear that BDO was merely hired as a vehicle to assist the Auditor-General to gather evidence in the course of executing its functions as a public administrative authority.

That contract did not convert BDO Zimbabwe Chartered Accountants (BDO) or confer administrative authority on it.

By carrying out investigations and submitting a forensic audit report to the Auditor General, BDO Zimbabwe Chartered Accountants (BDO) was not rendering any decision. It was merely providing the Auditor General with the means to help him/her to discharge his/her statutory functions.

BDO Zimbabwe Chartered Accountants (BDO), not being a public administrative authority, and not having made any decision in that capacity, the court a quo misdirected itself and fell into grave error by holding that BDO was exercising public administrative authority when it carried out the forensic audit in question.

BDO Zimbabwe Chartered Accountants (BDO), not having made any public administrative decision when compiling the forensic audit report, its conduct and processes, in that regard, were not subject to judicial review.

That being the case, all the other issues raised, and the entire review process carried out by the court a quo under case number HC6503/19, fall away.

Having regard to the complexity of the issues argued before us, it can hardly be said that BDO Zimbabwe Chartered Accountants (BDO) pursuit of this case amounts to an abuse of court process. Both parties had an arguable case though BDO emerged victorious. Costs follow the result at the normal scale.

It is accordingly ordered that:

1. The appeal succeeds with costs.

2. The judgment of the court a quo is set aside and substituted with the following:

“The application be and is hereby dismissed with costs.”

This is an application for review of the Judicial Service Commission's decision to advise the President that the question of removing the applicant from the office of a judge ought to be investigated.

The applicant is a judge of the Supreme Court and the Constitutional Court of the Republic of Zimbabwe.

The first respondent, the Judicial Service Commission (JSC) is a corporate body established in terms of section 189 of the Constitution of Zimbabwe Amendment (No.20) Act 2013.

The second, third and fourth respondents are the members of the tribunal appointed by the President to enquire into the question of the removal of the Judge from office.

The fifth respondent is the Permanent Secretary of the Ministry of Justice Legal and Parliamentary Affairs, the Co-ordinator of the Special Anti-Corruption Unit in the Office of the President as well as the Secretary of the Tribunal.

The sixth, seventh and eighth respondents are the President of the Republic of Zimbabwe (the President), the Minister of Justice, Legal and Parliamentary Affairs (the Minister) and the Attorney General of Zimbabwe (the AG) respectively.

As an administrative authority, the Judicial Service Commission (JSC) has a responsibility to take administrative action which may affect the rights, interests or legitimate expectations of any person. In so doing, section 3(1)(a) of the Administrative Justice Act [Chapter 10:23] (AJA) enjoins the JSC to act lawfully, reasonably, and in a fair manner.

On 13 December 2019, the Judicial Service Commission (JSC) held an extraordinary meeting. It resolved at that meeting to advise the President that the question of removing the applicant from the office of a judge ought to be investigated. The JSC addressed a letter to the President tendering the advice.

As his obligation, in terms of section 187(3) of the Constitution, the President appointed a 3 member Tribunal to enquire into the matter. As already indicated, the members are the second to fourth respondents, with the fifth respondent as its Secretary.

In the Zimbabwean Government Gazette Extraordinary dated 17 March 2020, the President made Proclamation 1 of 2020 which was published as Statutory Instrument 70 of 2020, SI70 of 2020 wherein, among other things, he established the Tribunal, appointed its members, Secretary, and set out the Tribunal's terms of reference.

The applicant is aggrieved by the Judicial Service Commission's decision to advise the President that the question of removing the former from the office of a judge ought to be investigated.

Acting in terms of section 4(1) of the Administrative Justice Act, the applicant has applied to this court, on review, to set aside the Judicial Service Commission's decision on the basis that it failed to act lawfully, reasonably, and fairly in coming up with the decision to advise the President. In other words, the applicant takes issue with the procedure adopted by the Judicial Service Commission (JSC) in coming up with that decision.

He also seeks certain consequential relief.

I pause to set out the Tribunal's terms of reference. They are:

“(i) To investigate into the matter of the removal from office of Honourable Justice Francis Bere JA;

(ii) To investigate into the matter of Honourable Justice Bere's conduct, whether it can be deemed to have been tantamount to gross misconduct;

(iii) To investigate whether the Honourable Judge conducted himself or presided over matters where there was conflict of interest;

(iv) To investigate any other matter which the Tribunal may deem appropriate and relevant to the enquiry;

(v) To consider all information submitted by the Judicial Service Commission and any other relevant information in order to arrive at an appropriate recommendation to the President;

(vi) To recommend to the President whether or not the Honourable Judge should be removed from office in terms of section 187 of the Constitution; and

(vii) To report to the President, in writing, the result of the inquiry within a period of five (5) months from the date of swearing in of the members.”

The grounds on which the application for review is based are:

“1. The absence of any of the three jurisdictional grounds for the removal of Judge prescribed under section 187(1) of the Constitution and the incontrovertible facts and circumstances upon which this would be founded;

2. The absence of specificity and lack of particularity of the exact nature of the conduct, the identity of a complainant, and the prejudice or quid pro quo to confirm the nature and gravity of the case;

3. An objection to the appointment of the Permanent Secretary, as secretary of the Tribunal, on the grounds and basis that she was an actor in the process leading to the applicant's suspension and the establishment of the Tribunal, something which gives credence to the applicant's contention that the decision to refer his matter to the President was completely unreasonable;

4. There is no prima facie material that has been alluded to in the Proclamation that would form the basis for a referral of a matter involving a senior Judge;

5. Gross irregularity in that the JSC, having procedurally decided to take a second bite at the cherry, failed to afford applicant the right to be heard in relation to the subsequent reply from Mr Ndudzo, at or before its purported meeting of 13 December 2019 in violation of the audi alteram partem rule;

6. The JSC, having reached a decision on the subject matter from the same basis and circumstances on 21 November 2019, and having communicated this to the applicant, could not revisit the matter subsequently as it had become functus officio;

7. The JSC lacked a quorum to sit on 13 December 2019 and to reverse its earlier decision;

8. To the extent that the allegations are understood and based on the documents attached to the founding affidavit, the allegations made are petty and do not meet the elevated criteria of gross misconduct or gross incompetency.”

For the purposes of this application, the issue of the investigation on the question of the removal of the applicant from the office of a Judge arose from a phone call made to Mr Ndudzo, who is a legal practitioner, as well as a complaint raised against him by Mr Moxon. The latter related to the applicant presiding over a matter between Meikles Limited and Widefree Investments (Pty) Ltd trading as Core Solutions.

Since I am required to determine this application on procedural grounds, it is not necessary for me to delve into the substance and details of the phone call and Mr Moxon's complaint.

All the respondents opposed the application....,.

The Judicial Service Commission (JSC) raised a number of preliminary points. The applicant raised one point in limine. I deal with the latter first.

Counsel for the applicant submitted, that, the Acting Secretary of the Judicial Service Commission (JSC), Mr Chikwanha, had no authority to represent the JSC in this matter.

It is Mr Chikwanha who deposed to the Judicial Service Commission's opposing affidavit.

I was urged to follow this court's decision in Francis Bere v Judicial Service Commission and 7 Ors HH269-20. In that matter, the court found, that, since it is the Judicial Service Commission which has the constitutional duty to advise the President that the question of removal of a Judge from office had arisen it could not delegate the function of defending that decision in a court of law to its Acting Secretary, who is not a member of the Judicial Service Commission (JSC).

That decision is under appeal on that point.

I was also referred to the following decisions for the argument, that, where a specific constitutional duty is imposed on a constitutional body, that duty cannot be delegated: President of the Republic of South Africa v South African Rugby Football Union 2000 (1) SA 1 (CC); Paradza v Chirwa 2005 (2) ZLR 94 (S).

Counsel for the applicant argued, that, the making of the constitutional decision to advise the President and defending that decision in a court of law constitute one act and can therefore not be delegated.

Reference was also made to CE Dube v PSMAS and Another SC73-19 for the submission, that, in persisting with representation through its Acting Secretary the Judicial Service Commission (JSC) was not properly before me.

The sum total of these arguments was to persuade me to find, that, the opposing affidavit deposed to by Mr Chikwanha, and filed together with the Notice of Opposition, was invalid. There was therefore no opposition by the Judicial Service Commission (JSC).

Counsel for the first respondent argued as follows:

(i) First, there stood on record a resolution by the Judicial Service Commission (JSC) wherein it resolved to clothe the Acting Secretary with authority to sign documents on behalf of the JSC in litigation matters.

(ii) Second, section 10(2) of the Judicial Service Act [Chapter 7:18] gives the Acting Secretary of the JSC the authority to carry out any function on behalf of the JSC as long as he has been so directed by it.

My view is that as long as there is evidence to satisfy the court that it is the Judicial Service Commission (JSC) which is litigating and not some unauthorised person acting in its name, the JSC is properly before me: see Total Zimbabwe (Pvt) Ltd v Power Coach Express (Pvt) Ltd 2010 (2) ZLR (H).

I have such evidence in the form of the resolution of the Judicial Service Commission (JSC).

I am satisfied that Mr Chikwanha, who sits in the meetings of the Judicial Service Commission (JSC) to take the minutes of the meetings and is knowledgeable of what he deposes to, is not on a frolic of his own.

I take the view, that, the ratio decidendi in Paradza v Chirwa 2005 (2) ZLR 94 (S) actually supports the Judicial Service Commission's position.

In deposing to the opposing affidavit, the Judicial Service Commission (JSC) is acting through its Acting Secretary whom it duly authorised to do so.

I find it absurd, that, the resolution would hold good for the Acting Secretary (the Chief Accounting Officer) to sign ordinary litigation papers for the Judicial Service Commission (JSC) but not litigation papers where the JSC's decisions, made in terms of the Constitution, are being defended in court.

The resolution does not make that distinction. It is wide enough to cover all litigation papers.

Further, the Judicial Service Act, which draws its life from the Constitution, gives the Acting Secretary the authority to discharge functions where the Judicial Service Commission (JSC) directs him to do so.

I am unable to agree, that, advising the President, as was done in this matter, is the same act as deposing to an affidavit defending that decision in a court of law.

I dismiss this point in limine.

The appellant's grounds of appeal raise four broad issues for determination which are as follows:

(i) Whether or not the court a quo erred in finding that the first respondent's Acting Secretary could depose to its opposing affidavit and act on its behalf.

(ii) Whether or not the appellant failed to prove that there was no quorum at the first respondent's meeting of 13 December 2019.

(iii) Whether the first respondent was functus officio as it is alleged to have reversed its decision of 21 November 2019.

(iv) Whether or not the appellant's right to be heard was violated.

I will deal with each of these issues in turn.

It was counsel for the appellant's argument, that, the first respondent was improperly before the court a quo as the deponent of its opposing affidavit, Mr Chikwana, had no authority to act on behalf of the first respondent.

In supporting this argument, great emphasis was placed on the decision made in Francis Bere v Judicial Service Commission and Ors HH269-20 wherein the court ruled, that, the Acting Secretary had no authority to depose to an affidavit on behalf of the first respondent as it is the constitutional duty of the first respondent to advise the President on the question of the removal of a judge from office and that such constitutional duty cannot be delegated.

In casu, the court a quo found, that, as Mr Chikwana was armed with a resolution to act on behalf of the first respondent and sits in its meetings, takes minutes as its secretary, and has full knowledge of the matter at hand, he thus had the capacity to depose to an affidavit on its behalf.

It is settled law that deponents to affidavits must be able to positively swear to the facts and averments therein. This position is set out in the High Court Rules 1971 (the Old Rules). Order 32 Rule 227(4)(a) provides as follows:

“B. GENERAL PROVISIONS FOR ALL APPLICATIONS

(4) An affidavit filed with a written application —

(a) Shall be made by the applicant or respondent, as the case may be, or by a person who can swear to the facts or averments set out in therein….,.”…,.

It is not in dispute that Mr Chikwana, at the time when the application was heard a quo, was the Acting Secretary of the first respondent. It is also common cause, that, as the secretary of the first respondent, he sits in its meetings, keeps its minutes, and is knowledgeable of all of the Commission's daily business.

It is also common cause, that, the first respondent issued a resolution in which the Acting Secretary was clothed with authority “to sign documents on behalf of the JSC in litigation matters.”

A resolution, by its nature, shows the true intentions of an entity.

The first respondent, like a company with a Board of Directors, acts through its Commissioners. It is the Commissioners who regulate its daily business and make binding decisions on behalf of the Commission.

In First Mutual Investment (Pvt) Ltd v Roussaland Enterprises (Pvt) Ltd and Ors HH301-17 the court noted the following:

“A company, as a legal person, has no mouth through which it articulates its intentions. It has no ears with which to hear. It has no sense of sight or smell. It has no mind of its own.

It speaks to no one except through its directors, not individually but collectively, through resolutions which they pass when they are assembled in one room for the purpose of transacting the business of the company.

Directors and no one else are, together, the eyes, ears, nose and mind of the company.

Hahlo brings out the above stated principle in a clear and lucid manner in his South African Company Law through cases, 6th ed. The learned author makes reference to the Board of Directors and their powers. He states at p343 as follows:

'The powers of the company vest in the directors as a Board, and not as individuals. Directors exercise their powers by passing resolutions at Board meetings; of which proper notice must be given to all directors, and at which a quorum must be present'…,.

The deponent to the founding affidavit had every opportunity to attach to his answering affidavit a resolution of the applicant's directors as the law required him to have done.

The resolution would have constituted clear evidence of his authority to depose to the founding affidavit. His decision not to attach the resolution left the applicant's case standing on nothing. He failed to convince the court that he was clothed with the requisite authority to speak for, and on behalf of his employer. The application cannot, on the mentioned basis, be allowed to stand.”…,.

In casu, the first respondent passed a resolution authorizing its Acting Secretary to act on its behalf in all litigation matters.

This was clearly enough evidence to show that Mr Chikwana was not on a frolic of his own and had the requisite authority to depose to the opposing affidavit on behalf of the first respondent.

After hearing argument on a point in limine raised by the first and third respondents (President of Zimbabwe and Minister of Finance and Economic Development) this Court issued the following order:

“1. The preliminary point raised by the respondents is upheld.

2. The matter is struck off the roll with costs.

3. The reasons for this order are to follow in due course.”

What follow are the reasons for that order.

The Presidential Powers (Temporary Measures) Act [Chapter 10:20] (“the Presidential Powers Act”) provides as follows:

“2 Making of Urgent Regulations

(1) When it appears to the President that -

(a) A situation has arisen or is likely to arise which needs to be dealt with urgently in the interests of defence, public safety, public order, public morality, public health, the economic interests of Zimbabwe or the general public interest; and

(b) The situation cannot adequately be dealt with in terms of any other law; and

(c) Because of the urgency, it is inexpedient to await the passage through Parliament of an Act dealing with the situation; then, subject to the Constitution and this Act, the President may make such regulations as he considers will deal with the situation.

(2) Regulations made in terms of subsection (1) may provide for any matter or thing for which Parliament can make provision in an Act: Provided that such regulations shall not provide for any of the following matters or things -

(a) Authorizing the withdrawal or issue of moneys from the Consolidated Revenue Fund or prescribing the manner in which withdrawals may be made therefrom; or

(b) Condoning unauthorized expenditure from the Consolidated Revenue Fund; or

(c) Providing for any other matter or thing which the Constitution requires to be provided for by, rather than in terms of, an Act; or

(d) Amending, adding to or repealing any of the provisions of the Constitution.

3….,. (not relevant)

(1) Copies of all regulations made in terms of section two shall be laid before Parliament no later than the eighth day on which Parliament sits next after the regulations were made.

(2) If Parliament resolves that any regulations that have been laid before it, in terms of subsection (1), should be amended or repealed, the President shall forthwith amend or repeal the regulations accordingly.

(3) Where any regulations have been amended or repealed in terms of subsection (2) in accordance with a resolution of Parliament, the President shall not, within a period of six months thereafter, make any further regulations in terms of section two that are identical in substance to the regulations before they were so amended or repealed, as the case may be.

Regulations made in terms of section two shall, to the extent of any inconsistency, prevail over any other law to the contrary, apart from regulations that have been made and are in force in terms of the Emergency Powers Act [Chapter 11:04].”

Pursuant to the provisions of section 2 of the Presidential Powers (Temporary Measures) Act, the President of the Republic of Zimbabwe, in a supplement to the Zimbabwe Government Gazette dated 31 October 2016, issued the Presidential Powers (Temporary Measures) (Amendment of Reserve Bank of Zimbabwe Act and Issue of Bond Notes) Regulations, 2016 (“the Bond Notes Regulations”).

Sections 2 and 3 of the Regulations, contained in Statutory Instrument 133/16, S.I.133 of 2016 provide:

“2. (1) The Reserve Bank of Zimbabwe Act [Chapter 22:15] (No.5 of 1999) (“the principal Act”) is amended by the insertion in Part VI ('Banknotes and Coinage') of the following section after section 44A -

“44B Legal Tender of Bond Notes and Coins

(1) The Minister may, by notice in a statutory instrument, prescribe that a tender of payment of bond notes and coins issued by the Bank that are exchangeable at par value with any specified currency other than Zimbabwean currency prescribed as legal tender for the purposes of section 44A shall be legal tender in all transactions in Zimbabwe to the same extent as that prescribed currency.

(2) Section 42 shall apply to bond notes prescribed under subsection (2) as they apply to banknotes.”

Following the publication of the above Regulations, the applicant filed a court application which she said was made in terms of section 167(2)(d) of the Constitution of Zimbabwe as read with Rules 15 and 27 of the Constitutional Court Rules 2016. She sought an order in the following terms:

“1. That, the first respondent be and is hereby declared to have failed to fulfil his constitutional obligation to obey section 134(a) of the Constitution of Zimbabwe 2013 by exercising Parliament's primary law-making powers through his making of Statutory Instrument 133 of 2016.

2. As a consequence arising from 1, that it be and is hereby declared that the Presidential Powers (Temporary Measures) (Amendment of Reserve Bank of Zimbabwe Act and Issue of Bond Notes) Regulations 2016 (SI133 of 2016) be and are hereby declared null and void and of no force or effect, having arisen from 1st Respondent failure to fulfil his constitutional obligation within the contemplation of section 167(2) as read with section 2 of the Constitution of Zimbabwe 2013.

3. That the 2nd Respondent be and is hereby declared to have failed to fulfil its constitutional obligation to protect section 134(a) of the Constitution of Zimbabwe 2013 by allowing section 2(2) of the Presidential Powers (Temporary Measures) Act (Chapter 10:20) to remain on the statute books long after the enactment of the Constitution of Zimbabwe 2013.

4. As a consequence arising from 2, that, section 2(2) of the Presidential Powers (Temporary Measures) Act (Chapter 10:20), to the extent to which it permits the making of a statutory instrument that amends an Act of Parliament be and is hereby declared null and void and of no force or effect, having remained on the statute books from 2nd Respondent failure to fulfil its constitutional obligation within the contemplation of section 167(2) as read with section 2 of the Constitution of Zimbabwe 2013 (sic).

5. That, the proposed introduction of bond notes by the Respondents be and is hereby declared unconstitutional and therefore null and void for arising from the failures by the 1st and 2nd Respondents to fulfil their constitutional obligations as aforesaid (sic).

6. That, the Respondents (if they oppose this application) jointly and severally pay the costs of this application the one paying the others to be absolved.”

In her founding affidavit, the applicant avers, that, in terms of section 90 of the Constitution, the first respondent, as President, has a constitutional obligation to uphold, defend, obey and respect the Constitution as the law of the nation.

Paragraph 10 of Schedule 6 to the Constitution provides, that, all existing laws continue in force but must be construed in conformity with the Constitution.

The law therefore imposes a constitutional obligation on the President not to invoke section 2(2) of the Presidential Powers Act which is clearly inconsistent with the Constitution.

He has a constitutional obligation not to resort to section 2(2) of the Presidential Powers Act to the extent that it purports to empower him to amend an existing Act of Parliament. That section fell away the moment section 134(a) of the Constitution became law.

Section 134 of the Constitution provides that Parliament's primary law making function cannot be delegated.

This means a Statutory Instrument cannot purport to amend an Act of Parliament.

The President's constitutional obligation is to ensure that he does not make statutory instruments that amend Acts of Parliament. Instead, he is obligated to initiate legislation to repeal such legislation.

In respect of Parliament, the applicant avers, that, the Bond Notes Regulations have usurped Parliament's primary law making power.

Parliament must not allow the President, or any member of the executive, to usurp legislative powers.

Parliament has therefore failed to fulfil its constitutional obligation in two respects:

(i) First, it ought not to have allowed section 2(2) of the Presidential Powers (Temporary Measures) Act to remain on the statute books for more than three years after the promulgation of the 2013 Constitution. Instead, it should have repealed that section.

(ii) Secondly, it ought to have taken steps, within 24 hours of the gazetting of the Bond Notes Regulations, to direct the President to repeal them.

The applicant made it clear that this was not an application made in terms of section 85(1) of the Constitution, but, rather, one under section 167(2) of the Constitution.

She submitted that it was not necessary, therefore, to allege a breach of any of her fundamental rights.

Having said so, however, and in order to demonstrate how the failure by the President and Parliament, in upholding their constitutional obligations, is affecting her, she listed the rights violated as:

(a) Equal protection and benefit of the law – section 56(1) of the Constitution;

(b) Private property rights – section 71(2) of the Constitution; and

(c) Choosing and carrying on any profession, trade or occupation – section 64 of the Constitution.

The third respondent (the Minister of Finance and Economic Development) filed opposing papers on behalf of both respondents (the President of Zimbabwe and Minister of Finance and Economic Development). He took a point in limine.

It was this.

The Presidential Powers (Temporary Measures) Act, under which the President acted, is still part of our law and the President is duty bound, in the exercise of his duties, to make use of it.

The opinion by the applicant that the Presidential Powers (Temporary Measures) Act is constitutionally invalid cannot be used to claim that the President has failed to discharge a constitutional obligation.

In fact, by using an existing law, the President is discharging his constitutional obligation, and, in these circumstances, one cannot approach the court in terms of section 167(2) of the Constitution.

If the complaint were on the constitutionality of the Presidential Powers (Temporary Measures) Act, then, the applicant could only have approached this Court in terms of section 85(1) of the Constitution and allege a breach of one or other of her rights.

The third respondent further stated, that, the validity of the Bond Note Regulations is currently before Parliament. That institution has the right to amend or repeal the said Regulations.

Further, in terms of section 9 of the Fifth Schedule to the Constitution, Parliament may also apply to this Court for a declaration of invalidity in respect of the Regulations.

Accordingly, the matter is not ripe for constitutional determination as there exists a process within the law for the determination of the fate of the statutory instrument.

Lastly, he submitted, that, since the applicant is not applying for redress of any breach of her rights in terms of section 85(1) of the Constitution, she does not have the right to directly make an application to this Court but should have made an application to the High Court which could have adequately dealt with the matter.

In its opposing papers, Parliament, represented by its Speaker, has submitted that section 117(1)(c), read together with section 134(a) of the Constitution, allows Parliament to confer legislative powers on another body or authority.

The Speaker has denied that Parliament has failed to fulfil its constitutional mandate since the statutory instrument in question is undergoing scrutiny by its Legal Committee.

In his opposing affidavit, the Governor of the Reserve Bank prays for the dismissal of the application with costs on the higher scale. He has stated as follows:

The Bond Note Regulations were meant to fortify and underpin the existing legal framework for the issuance of bond notes. That instrument was promulgated by the President pursuant to the lawful authority given to him by the Presidential Powers (Temporary Measures) Act, which Act remains part of our law as it has not been repealed by the Constitution.

In any event, paragraph 10 of the Sixth Schedule to the Constitution provides that all existing laws remain in force but must be construed in conformity with the Constitution.

He denies that the President has exercised primary law-making power as envisaged in section 134(a) of the Constitution.

On the basis of the papers before this Court, the first issue that arises for determination is whether the applicant has properly approached this Court in terms of section 167(2)(d) of the Constitution.

Should that question be answered in the positive, the issue that will follow is whether the President and Parliament have failed to fulfil their constitutional obligations....,.

Having concluded that the application is not properly before the court, that really should be the end of the matter.

However, for the sake of completeness and for the benefit of the parties, it is, in my view, desirable that this Court deals with the question whether the failure by the President to determine whether an existing law is constitutionally valid is a sufficient basis for a declaration of failure to fulfil a constitutional obligation.

Decided cases from across the Limpopo, with which I agree, distinguish, on the one hand, obligations that are readily ascertainable and those, on the other, which are not.

In Doctors for Life International v Speaker of The National Assembly & Ors 2006 (6) SA 416 (CC); 2006 (12) BCLR 1399 (CC), the South African Constitutional Court stated…,:

“It seems to me, therefore, that, a distinction should be drawn between constitutional provisions that impose obligations that are readily ascertainable and are unlikely to give rise to disputes, on the one hand, and those provisions which impose the primary obligation on Parliament to determine what is required of it, on the other.

In the case of the former, a determination whether those obligations have been fulfilled does not call upon a court to pronounce upon a sensitive aspect of the separation of powers.

An example of such a provision that comes to mind is a provision that requires statutes to be passed by a specified majority. The criteria set out are clear, and a failure to comply with them would lead to invalidity…,.”

In Von Abo v Government of The Republic of South Africa 2009 (2) SA 526 (T), in defining a failure to fulfil a constitutional obligation, the court stated thus:

“In Doctors for Life, NGCOBO J, writing for the court, observed that the word 'obligation' connotes a duty specifically imposed by the Constitution on Parliament to perform specified conduct.

It seems to me, that, by parity of reasoning, the same consideration applies to an 'obligation' relating to the President.

The Constitution carefully apportions powers, duties, and obligations to organs of State and its functionaries. It imposed a duty on all who exercise public powers to be responsible and accountable and to act in accordance with the law. This implies that a claimant who seeks to vindicate a constitutional right by impugning the conduct of a State functionary, must identify the functionary and its impugned conduct with reasonable precision.”

In Economic Freedom Fighters v Speaker of The National Assembly and Ors; Democratic Alliance v Speaker of The National Assembly & Ors 2016 ZACC 11, the court stated:

“An alleged breach of a constitutional obligation must relate to an obligation that is specifically imposed on the President or Parliament. An obligation shared with other organs of State will always fail the section 167(4)(e) test…,.”

In light of the above, the view I take, therefore, is that the President has no legal obligation to ascertain the validity of an existing law, and that, ultimately, the responsibility of determining whether a law is valid or not is that of the courts - unless the Constitution specifically invalidates that law.

Indeed, in a recent decision in City of Harare v Tawanda Mukungurutse & Ors SC46-18, the Supreme Court of Zimbabwe, whilst considering the question when invalidity of existing legislation occurs following a declaration of invalidity, cited with approval remarks by ACKERMANN J in Ferreira v Levin; Vryenhoek v Powel 1996 (1) SA 984 (CC); 1996 (1) BCLR 1, that:

“It is very seldom patent, and in most cases is disputed, that, pre-Constitutional laws are inconsistent with the provisions of the Constitution. It is one of this Court's functions to determine and pronounce on the validity of laws, including Act(s) of Parliament….,.”

In the result, therefore, the conclusion is irresistible, that, unless the Constitution makes specific provision to the contrary, neither the President nor Parliament can be expected to undertake an inquiry to determine which law is constitutional and which is not.

That is clearly the role of the courts.

In the present matter, what amounts to Parliament's primary law making function is the subject of serious dispute, particularly given the controls under the Presidential Powers Act that are exercised by Parliament.

In this situation, there can be no talk of a failure to fulfil a constitutional obligation.

The general consideration in constitutional litigation is that the promotion or advancement of constitutional justice should not be hindered by litigants who are discouraged from pursuing constitutional matters for fear of an order of costs being mulcted against them.

Du PLESSIS M, PENFOLD G & BRICKHILL J, in their text, Constitutional Litigation (1st edn, Juta & Co. Ltd, Cape Town, 2013) outline the reason underlying the general principle adopted by courts in South Africa that constitutional matters are generally decided without orders of costs. At page 129 they state as follows:

“The treatment of costs is important in all litigation but it is especially important in constitutional litigation. It is not in the interests of advancing constitutional justice that persons should be deterred from litigating to enforce and protect fundamental rights (in the case of Bill of Rights issues) or to uphold the principles and requirements of our foundational legal text (in litigation relating to non-Bill of Rights issues) through fear of an adverse costs order against them.”

In Motsepe v Commissioner of Inland Revenue 1997 (2) SA 898 (CC)…, the court stated as follows:

“In my view, one should be cautious in awarding costs against litigants who seek to enforce their constitutional right against the State, particularly where the unconstitutionality of a statutory provision is attacked, lest such orders have an unduly inhibiting or 'chilling' effect on other potential litigants in this category.”

However, inasmuch as it is generally undesirable to grant costs in constitutional matters, one must always be mindful that the award of costs is one within the discretion of the court unless otherwise specified by legislation.

This is further reinforced by the proviso to Rule 55(1) of our own Constitutional Court Rules 2016 which provides as follows:

“(1) Generally, no costs are awarded in a constitutional matter: Provided that, in an appropriate case, the Court or the Judge, as the case may be, may make such order of costs as it or he or she deems fit.”…,.

In Constitutional Litigation (1st edn, Juta & Co. Ltd, Cape Town, 2013)…, the learned authors state as follows;

“Any person deciding whether or not to litigate will need to assess the pros and cons of doing so. In this balancing exercise, the risk of a costs order, in the event that one is not ultimately successful, may act as a significant deterrent to bringing or defending litigation in the first place. It is one thing to pay the fees of one's own legal team, and quite another to take on the risk of also having to pay the other side's costs in the event of losing the case.”

The court, in Motsepe v Commissioner of Inland Revenue 1997 (2) SA 898 (CC), also stated as follows;

“This cautious approach cannot, however, be allowed to develop into an inflexible rule so that litigants are induced into believing that they are free to challenge the constitutionality of statutory provisions in this Court, no matter how spurious the grounds for doing so may be or how remote the possibility that this Court will grant them access. This can neither be in the interest of the administration of justice nor fair to those who are forced to oppose such attacks.”

Attention is also drawn to the recent decision of MALABA CJ in Liberal Democrats & Ors v President of the Republic of Zimbabwe E.D. Mnangagwa N.O. & Ors CC07-18, and, in particular, pages 24-26 of the judgment.

It is the court's view, that, this is an appropriate case for an order of costs.

As correctly pointed out by the first and third respondents, it is apparent that the applicant seeks to have section 2(2) of the Presidential Powers (Temporary Measures) Act [Chapter 10:20] declared unconstitutional.

That is also made clear in paragraphs 2 and 4 of her draft order quoted earlier in this judgment.

That is not the approach she adopted.

Where the constitutionality of subsidiary legislation is challenged, the proper channel is to approach this Court by way of direct access, in terms of section 85(1) of the Constitution, alleging that the particular statute or its provisions violate one or more of a person's fundamental rights.

It is one thing to allege that Parliament and the President have failed to fulfil a constitutional obligation and quite another to seek a declaratur that the conduct by either or the two is not in line with one or more provisions of the Constitution.

In the former instance, a litigant, by virtue of Rule 27(1) of the Constitutional Court Rules, as read with section 167(2)(d) of the Constitution, may make a court application supported by an affidavit setting out the constitutional obligation in question and what Parliament or the President has failed to do in respect of such obligation.

In the latter instance, however, the proper procedure would be to make an application in terms of section 85(1) of the Constitution seeking an order that such conduct be declared null and void for violating any one or more of the fundamental rights provided for in the Constitution.

The applicant clearly failed to follow the proper procedure before bringing her case before the court.

The defect was pointed out to her in the first and third respondents opposing affidavit and in their heads of argument.

The applicant had the opportunity to assess the pros and cons of proceeding with the application despite the indication that it was not properly before the court. She took a calculated risk. It was highlighted to her, at all times, that the application was opposed and that the respondents were seeking an order for costs upon its failure.

Moreover, an application based on similar facts had been filed by the applicant but had been dismissed by this Court in November 2016 on the basis that the application was speculative as no bond notes had been issued and the legal basis for their issuance had not, despite public announcements, been disclosed.

About three months after that dismissal, she filed the present application.

In all the circumstances, therefore, it is clear that an order for costs against the applicant is in the interests of justice. The principle that costs follow the event is therefore applicable.

For the above reasons, the preliminary point taken by the first and third respondents was upheld and the application consequently struck off the roll with costs.

This is an appeal against the judgment of the High Court handed down on 4 May 2018.

The appellant had, before that court, sought a declarator that the Presidential Powers (Temporary Measures) (Amendment of Electoral Act) Regulations 2016 published as Statutory Instrument 117/2017 were null and void and of no force or effect.

The appellant had also sought an order declaring the enabling Act, the Presidential Powers (Temporary Measures) Act [Chapter 10:20] to be inconsistent with the Constitution of Zimbabwe, and, as a consequence, the striking down of that Act.

In the alternative, the appellant sought a declaratur that section 2(2) of the Presidential Powers (Temporary Measures) Act [Chapter 10:20] is inconsistent with the Constitution and that the same be struck down.

After hearing argument from both parties, the High Court dismissed the application with costs. It is against that order that the appellant has now appealed to this Court.

The Presidential Powers (Temporary Measures) Act [Chapter 10:20] (“the Act”) provides as follows in section 2 thereof:

“2. Making of Urgent Regulations

(1) When it appears to the President that:

(a) A situation has arisen, or is likely to arise, which needs to be dealt with urgently in the interest of defence, public safety, public order, public morality, public health, the economic interests of Zimbabwe or the general public interest; and

(b) The situation cannot adequately be dealt with in terms of any other law; and

(c) Because of the urgency, it is inexpedient to await the passage through Parliament of an Act dealing with the situation; then, subject to the Constitution and this Act, the President may make such regulations as he considers will deal with the situation.

(2) Regulations made in terms of subsection (1) may provide for any matter or thing for which Parliament can make provision in an Act:

Provided that…,. (not relevant).”…,.

Section 5 of the Presidential Powers (Temporary Measures) Act provides:

“Regulations made in terms of section two shall, to the extent of any inconsistency, prevail over any other law to the contrary, apart from regulations that have been made and are in force in terms of the Emergency Powers Act [Chapter 11:04].”

Acting in accordance with the above provisions of the Presidential Powers (Temporary Measures) Act, the President of the Republic of Zimbabwe, who is the respondent in this matter, published, on 15 September 2017, in the Government Gazette Extraordinary, the Presidential Powers (Temporary Measures) (Amendment of Electoral Act) Regulations, SI117 of 2017 (“the Regulations”). The Regulations sought to amend certain sections of, and the Schedule to, the Electoral Act [Chapter 2:13].

On 20 October 2017, the applicant filed a court application seeking the declarators referred to and an order setting aside both the Presidential Powers (Temporary Measures) Act [Chapter 10:20] and the Presidential Powers (Temporary Measures) (Amendment of Electoral Act) Regulations, S.I.117 of 2017.

In his founding affidavit in the court a quo, the appellant, as applicant, stated as follows:

The Presidential Powers (Temporary Measures) Act is unconstitutional because it gives the President of the Republic of Zimbabwe the power to enact Regulations which override existing Acts of Parliament. Nowhere in the Constitution is the President given the power to make law as provided for in the Presidential Powers (Temporary Measures) Act.

Although section 116 of the Constitution states that the Legislature of Zimbabwe consists of Parliament and the President, it is clear that the President is involved only to the extent stipulated in Chapter 6 as read with the Fifth Schedule to the Constitution.

Section 134 of the Constitution makes it clear that Parliament may, in an Act of Parliament, delegate the power to make statutory instruments within the scope of and for purposes laid out in the Presidential Powers (Temporary Measures) Act but in no uncertain terms prohibits the delegation of Parliament's primary law making function.

It was never the intention that delegated legislation could have the effect of altering an existing Act of Parliament.

In terms of section 5 of the Presidential Powers (Temporary Measures) Act, the President has sweeping powers to make laws that transcend existing Acts of Parliament.

For that reason, the applicant sought an order striking down both the Presidential Powers (Temporary Measures) Act [Chapter 10:20] and the Presidential Powers (Temporary Measures) (Amendment of Electoral Act) Regulations, SI117/2017.

In his opposing affidavit, the respondent stated as follows:

The provisions of the Electoral Act amended by the Presidential Powers (Temporary Measures) (Amendment of Electoral Act) Regulations, S.I.117/2017 had not envisaged the use of the biometric voter registration system which requires voters to have fingerprints and photographs taken in addition to filling in forms.

The President accepted, that, in terms of section 2 of the Presidential Powers (Temporary Measures) Act, he can enact laws, but, submitted that any Regulations he makes are subject to scrutiny by Parliament which can resolve either to have them amended or repealed.

Further, and in any event, section 110 of the Constitution gives him the power conferred by the Constitution, an Act of Parliament, or other law, to enable him to exercise his functions as Head of State.

The reference to “other law” includes provisions of the common law, customary law, and international law in force in Zimbabwe.

Under the common law, the President has always enjoyed prerogative powers which entitle him to promulgate temporary legislation in urgent situations. Those prerogative powers have not been abolished under the Constitution and consequently remain at his disposal.

In its determination, the court a quo found, that, in invoking his powers under the Presidential Powers (Temporary Measures) Act, the respondent was not abusing the law-making function conferred upon him by the Act.

The new voters roll could not properly be covered by a law which Parliament would have introduced, debated, and passed into law without interfering with the requisite time lines of the 2018 harmonised elections.

The court a quo accepted, that, the question whether or not the Presidential Powers (Temporary Measures) Act is legal depends on the interpretation of the Constitution.

It found, that, the President's “necessary and unavoidable intrusion into the function of Parliament” is evident from a reading of section 86 of the Constitution.

It further found that “it is only the President who has the power to limit, through the Act, the people of Zimbabwe's fundamental rights and freedoms which are contained in the Constitution”.

The court also found that “because the President's law making power exists in the Act, the drafters of the Constitution did not include it in section 134 of the Constitution” and that “because his powers, as stated in section 86(2)(b) of the Constitution, relate to the limitation of the people of Zimbabwe's fundamental rights and freedoms in certain unforeseen circumstances, he could not effectively exercise the same under section 134 of the Constitution.”

The court consequently dismissed the application with costs.

Unhappy with the dismissal of his application by the court a quo, the appellant noted an appeal to this Court. His grounds of appeal are that:

“1.1 The court a quo erred as a question of law, in upholding the validity of the Presidential Powers (Temporary Measures) Amendment of Electoral Act Regulations 2016 published in Statutory Instrument 117/2017.

1.2 A fortiori, the court a quo erred in holding that the President could make law.

1.3 In addition, the court a quo erred in failing to hold that the Presidential Powers (Temporary Measures) Act [Chapter 10:20] was an unlawful delegation of legislative power and was therefore ultra vires the Constitution of Zimbabwe.

1.4 In the alternative, the court a quo failed to uphold that section 2(2) of the Presidential Powers (Temporary Measures) Act [Chapter 10:20] was null and void and of no force and effect to the fact that it permitted the making of laws overlooking Parliament.”…,.

In his prayer, he seeks an order setting aside the order of the court a quo, and, in its place, an order granting the relief he had sought before the court a quo.

In his submissions, the appellant states as follows:

Section 86 of the Constitution is just a limitation clause and does not allow the President to limit rights or to be the person who curtails the rights of persons. Section 86 of the Constitution only relates to a law of general application made and passed by Parliament and not by an individual.

The Presidential Powers (Temporary Measures) Act [Chapter 10:20], that is the subject of this appeal, amounts to Parliament outsourcing its original law-making powers.

The function of the President, under section 110 of the Constitution, is not to make law, but, merely to assent to a Bill, and, if he does not agree, to refer the Bill to the Constitutional Court for an opinion on its constitutionality.

He further argues, that, there is a difference between delegating authority to make subordinate legislation within the framework of a statute under which the delegation is made, and assigning primary law making power to another body.

In this case “the President is even higher than Parliament because he can amend what Parliament has done.”

On the remedy, the appellant submits, that, an order should be issued nullifying the Presidential Powers (Temporary Measures) Act [Chapter 10:20].

However, since the retrospective declaration of invalidity might produce significant disruption in the voter registration exercise, the court should make an order that limits the retrospective effect of any such declaration.

He makes it clear, that, he has no difficulty with the substance of the amendments and that the gravamen of his displeasure is the manner in which they were effected.

In his heads of argument, the President states, that, whilst he does not entirely agree with the reasoning of the court a quo, he agrees with the order made.

He submits, as he did before the court a quo, that, the Presidential prerogative is a power that attaches to the President by virtue of his office, and that, under the common law, he has always enjoyed prerogative powers which entitle him to promulgate temporary legislation in urgent situations. Those prerogative powers were never abolished but are now codified under the Presidential Powers (Temporary Measures) Act.

The reference to “other law” in section 110(1) of the Constitution includes, by necessity, the provisions of the common law in force in this country.

Lastly, he maintains, that, as the Presidential Powers (Temporary Measures) (Amendment of Electoral Act) Regulations, S.I.117/2017 have to be laid before Parliament for approval, this shows that Parliament, essentially, still retains its primary lawmaking power.

In the course of considering the possible disposition of this matter, a question of law arose, namely, whether the appellant could properly appeal to this Court against a determination of constitutional validity by the court a quo.

Being an important issue that could be dispositive of this matter, and in light of the fact that neither party had hitherto addressed the court on it, this Court asked both parties to file supplementary submissions within a given time frame.

This the parties proceeded to do.

In his supplementary heads of argument, the appellant has submitted, that, where the High Court, as in this case, issues an order of constitutional validity, that determination is subject to an ordinary appeal to this Court. Where, however, the same court issues an order of constitutional invalidity, then, that order must be referred to the Constitutional Court in terms of section 175 of the Constitution.

In other words, in the former case, there is no obligation that the order of constitutional validity be referred to the Constitutional Court for confirmation.

The appellant further submitted, that, in terms of section 43 of the High Court Act [Chapter 7:06], the Supreme Court has an obligation to hear and determine all appeals from the High Court of Zimbabwe, whether in the exercise of its original or appellate jurisdiction.

Further, in terms of section 21 of the Supreme Court Act, the Supreme Court has jurisdiction to hear and determine an appeal in any civil case from the judgment of any court or tribunal from which, in terms of any other enactment, an appeal lies to the Supreme Court.

In terms of section 22 of the Supreme Court Act, the Supreme Court shall have the power to confirm, vary, amend or set aside the judgment appealed against or give such judgment as the case may require.

There is, therefore, nothing in the High Court Act or Supreme Court Act, so the appellant argues, that takes away the power of the Supreme Court to entertain an appeal from the High Court. The only limitation is in respect of an order of Constitutional invalidity which must be confirmed by the Constitutional Court before it has any effect.

The appellant has further submitted, that, in light of the wording of section 175(3) of the Constitution, any interested person has a right to appeal or apply directly to the Constitutional Court to confirm or vary the order of constitutional validity.

Subsection (3) of section 175 of the Constitution refers to a court order made in terms of subsection (1) of that section, which subsection provides for an order of constitutional invalidity. The reference, in subsection (3), to an order concerning constitutional validity in terms of subsection (1) restricts the meaning of subsection (3) to orders of constitutional invalidity only.

In other words, the right to appeal to the Constitutional Court is restricted by the fact that such a right only applies to an order of constitutional invalidity provided for in subsection (1).

Further, Rule 31 of the Constitutional Court Rules refers to an order of constitutional invalidity and not an order of constitutional validity. The express mention of orders of constitutional invalidity excludes orders of constitutional validity.

In the event that the Supreme Court declares a law to be invalid, then, that order has to be confirmed by the Constitutional Court.

The respondent does not accept the appellant's submissions in this regard and submits that the Supreme Court has no jurisdiction to hear and determine such an appeal, because, in terms of section 175(1) of the Constitution only the Constitutional Court is empowered to confirm or vary an order concerning constitutional validity by any court.

Subsection (3) of section 175 of the Constitution refers to an order concerning constitutional validity by a court in terms of subsection (1). If subsection (1) and (3) of section 175 are read together, it becomes apparent that section 175 of the Constitution refers not only to orders of constitutional invalidity but also orders of constitutional validity.

Only the Constitutional Court is empowered to confirm or vary an order of Constitutional invalidity.

The Supreme Court would be unable to sufficiently deal with the issue of constitutional validity or invalidity of any law and is not in a position to vary or confirm any order concerning constitutional validity of any law. Although the Supreme Court is the final court in non-constitutional matters, it cannot usurp the powers of the Constitutional Court in this regard.

From the foregoing, it seems to me that two broad issues arise for determination before this Court:

(i) The first is whether an order of constitutional validity by the High Court can be appealed against to the Supreme Court rather than directly to the Constitutional Court.

(ii) The second is whether the Presidential Powers (Temporary Measures) Act is consistent with the Constitution of Zimbabwe.

I proceed to deal with these two issues in turn.

The question whether an order of constitutional validity is appealable to the Supreme Court is one of interpretation. To determine the question there is need to look at the provisions of the Constitution that have a bearing on this issue.

One must, I think, start with section 167(3) of the Constitution which states as follows:

“(3) The Constitutional Court makes the final decision whether an Act of Parliament or conduct of the President or Parliament is constitutional and must confirm any order of constitutional invalidity made by another court before that order has any force.”

Section 169(1) of the Constitution, in turn, provides:

“169 JURISDICTION OF SUPREME COURT

(1) The Supreme Court is the final court of appeal for Zimbabwe, except in matters over which the Constitutional Court has jurisdiction.”

This is then followed by section 175 of the Constitution which provides, in relevant part, as follows:

“175 POWERS OF COURTS IN CONSTITUTIONAL MATTERS

(1) Where a court makes an order concerning the constitutional invalidity of any law or any conduct of the President or Parliament, the order has no force unless it is confirmed by the Constitutional Court.

(2)…,. (Not relevant)

(3) Any person with a sufficient interest may appeal or apply, directly to the Constitutional Court to confirm or vary an order concerning constitutional validity by a court in terms of subsection (1).

(4)…,. (Not relevant)

(5) An Act of Parliament or rules of court must provide for the reference to the Constitutional Court of an order concerning constitutional invalidity made in terms of subsection (1) by a court other than the Constitutional Court.”

In Mawarire v Mugabe & Ors 2013 (1) ZLR 469, the Constitutional Court of Zimbabwe remarked as follows…,:

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

One must look to the words actually used and deduce what they mean within the context in which they appear: see Hewlett v Minister of Finance 1981 ZLR 571 (S) at 580.

If the words used are precise and unambiguous, then, no more is necessary than to expound them in their natural and ordinary sense: see The Sussex Peerage (1843-1845) 65 RR 11 at 55.

In essence, it is necessary to have regard to the words used and not to depart from their literal and grammatical meaning unless this leads to such an absurdity that the Legislature could not have contemplated it.”

Constitutional interpretation, however, often requires more than simply according words their literal or ordinary grammatical meaning. Various decided cases have also stressed the need for a generous and purposive interpretation to give expression to the underlying values of the Constitution.

In S v Makwanyane 1995 6 BCLR 665 (CC) the Constitutional Court of South Africa also stated, that, the provisions of the Constitution should not be construed in isolation but in their context.

It is permissible to have regard to the purpose and background of the legislation.

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

“Certainly no less important than the oft repeated statement that the words and expressions used in a statute must be interpreted according to their ordinary meaning is the statement that they must be interpreted in the light of their context.

But, it may be useful to stress two points in relation to the application of this principle.

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

A further consideration in the interpretation of a statute is that the legislature is presumed not to intend an absurdity, ambiguity, or repugnancy to arise out of the grammatical and ordinary meaning of the words it uses in an enactment.

Therefore, in order to ascertain the true purpose and intent of the legislature, regard is to be had, not only to the literal meaning of the words, but, also to their practical effect.

In this respect, the words in question must be capable of an interpretation that is consistent with the rest of the instrument in which the words appear.

In interpreting the provisions of the Constitution, it is, as stated, necessary to adopt a broad and generous approach and also to ensure that all the relevant provisions on the subject are considered.

As stated in Attorney-General v Dow (1992) BLR 119 (CA)…,:

“…, the very nature of a Constitution requires that a broad and generous approach be adopted in the interpretation of its provisions; that all the relevant provisions bearing on the subject for interpretation be considered together as a whole in order to effect the objective of the Constitution.”

Indeed, section 46 of our Constitution, which deals with the interpretation of Chapter 4, makes it clear, that, such interpretation must pay due regard to all the provisions of the Constitution, and, in particular, the principles and objectives set out in Chapter 2.

Section 331 of the Constitution, in turn, provides that section 46 of the Constitution applies, with any necessary changes, to the interpretation of the rest of the Constitution.

The Constitutional Court Rules 2016, in Rule 21, make provision for the matters that do not require the leave of the court. These include “appeals in terms of section 175(3) of the Constitution, against an order concerning the constitutional validity or invalidity of any law.”

It is apparent that the framers of the Rules considered that even an order of constitutional validity could be the subject of an appeal directly to the Constitutional Court and that leave to appeal was not necessary in such a case.

One must, I think, accept that the ordinary literal and grammatical interpretation of section 175(1) of the Constitution is that an order concerning the Constitutional invalidity of any law has no force or effect unless confirmed by the Constitutional Court. In my view, such an interpretation is in accord with section 169(3) of the Constitution which makes it clear that the Constitutional Court must confirm any order of constitutional invalidity made by another court before that order has any force.

The real question, as already noted, is: which court should hear and determine an appeal against an order of constitutional validity?

The Constitution has not, itself, stated to which court such an appeal shall lie.

It should also be accepted, that, in general, appeals from the High Court lie with the Supreme Court.

Section 169(3) of the Constitution, however, makes it abundantly clear, that, the Constitutional Court makes the final decision whether an Act of Parliament is constitutional.

It does not state that the Constitutional Court only makes the final decision on whether an Act of Parliament is invalid.

The clear intention that comes out from a careful reading of that section is that it is the Constitutional Court that makes the final decision on whether an Act of Parliament is constitutional or not. That means the Constitutional Court makes the final decision whether an Act of Parliament is valid or not.

In the event that an order of constitutional invalidity is made by a lower court, such an order has no effect until the Constitutional Court has confirmed such invalidity.

Section 175(3) of the Constitution provides, that, an interested person may appeal or apply directly to the Constitutional Court to confirm or vary an order concerning constitutional validity by a court in terms of subsection (1).

Whilst the subsection refers to subsection (1), it also refers to “an order concerning constitutional validity” – and not only constitutional invalidity.

An order concerning constitutional validity is exactly that. It is not limited to orders concerning constitutional invalidity only.

Taken together, therefore, sections 169(3) and 175(3) of the Constitution simply mean that an order of constitutional validity or invalidity may be appealed against directly to the Constitutional Court.

Bearing in mind that only the Constitutional Court makes the final decision on the validity of an Act of Parliament, it could not have been the intention of the legislature that an order concerning constitutional validity be the subject of an appeal to the Supreme Court in the normal way for the reason that the Supreme Court does not make the final decision on whether or not an Act of Parliament is valid.

Only the Constitutional Court has that jurisdiction.

In any event, the submission that an appeal against an order of constitutional validity should lie to the Supreme Court and not the Constitutional Court would result in a patent absurdity.

The Supreme Court is an Appellate Court and does not, itself, deal with matters at first instance. It does not itself declare, at first instance, an Act of Parliament to be valid or invalid.

Its powers, in terms of section 22 of the Supreme Court Act, are to confirm, vary, amend, or substitute the order appealed against. If it amends the order of the lower court, that amended order becomes the order of the lower court. Similarly, where it substitutes an order, that order becomes the order of the lower court.

In this case, the High court made an order that the impugned Act, the Presidential Powers (Temporary Measures) Act, was valid and constitutional.

The appellant wants this order set aside and replaced with an order declaring the Presidential Powers (Temporary Measures) Act unconstitutional.

Assuming, arguendo, that the Supreme Court were to agree with the appellant and grant the order substituting the order of the court a quo with one of constitutional invalidity, the Supreme Court would not itself have the power to refer the order to the Constitutional Court for confirmation. The order substituting the judgment of the High Court with one of invalidity would become a judgment of the High Court itself, to be actioned by that court.

The record would have to be returned to the High Court.

The High Court would, thereafter, refer the order of constitutional invalidity to the Constitutional Court for confirmation.

Such a process would be convoluted and unnecessary. An appeal from an order of constitutional validity directly to the Constitutional Court would resolve the issue of validity or invalidity once and for all.

Subsection (3) of section 175 of the Constitution could have been more elegantly worded to obviate possible confusion as to its interpretation.

It is garbled. Its gibberish.

Taking into account their ordinary signification, the words used in the subsection create uncertainty as to the real intention of the Legislature as regards appeals against orders concerning constitutional validity, which, no doubt, would include both orders of constitutional validity and invalidity.

One can understand a situation where a person with sufficient interest applies directly to the Constitutional Court to confirm an order of constitutional invalidity so that the order has force. It is, however, difficult to imagine an interested person appealing directly to the Constitutional Court to confirm an order, presumably made in its favour.

An interested person would, surely, appeal directly to the Constitutional Court to have an order either of constitutional validity or invalidity set aside and substituted with one to the contrary.

In the final analysis, however, it seems to me that the intention of the legislature was that appeals against both constitutional validity and invalidity be determined by the Constitutional Court, which has the jurisdiction to make the final decision in this regard.

Consequently, the appeal noted to this Court is invalid, and, for that reason, the matter ought to be struck off the roll.

For the sake of clarity, it must be stressed, that, it is the order of constitutional validity or invalidity which may be appealed directly to the Constitutional Court for that court “to confirm or vary” the order.

The right to appeal directly to the Constitutional Court does not apply to orders made in respect of other constitutional matters in which the Constitutional Court exercises concurrent jurisdiction with the other courts established under the Constitution.

In view of the above conclusion, it becomes unnecessary to consider the issue whether or not the Presidential Powers (Temporary Measures) Act is constitutional or not.

The question whether an appeal lies to the Supreme Court from an order of constitutional validity is one that has hitherto not come before this Court. It is a question that was, at worst, moot.

In the circumstances, an order that each party bears its own costs would appear to me to be the most appropriate.

The order of constitutional validity should have been the subject of an appeal directly to the Constitutional Court and not to this Court. The appeal filed with this Court is, therefore, irregular and a nullity. The matter ought therefore to be struck off the roll.

In the result, the following order is made:

The matter is struck off the roll with each party paying its own costs.

This is an ordinary opposed application which the applicant turned into an urgent one. He did so through a letter which he addressed to the Registrar of this court. The letter is dated 20 February 2018. It reads, in part, as follows:

“2. As you will be aware, the application, among other things, seeks to challenge the constitutionality of the Presidential Powers (Temporary Measures) Act [Chapter 10:20] amended to Electoral Act Regulations 2016 published in Statutory Instrument 117/2017.

3. As you are aware of, the regulations we (sic) enacted on 15 September 2017 and therefore they will naturally expire by 15 March 2017.

4. In order to avoid a situation where arguments will be academic on aspects of the regulations, and given the fact that both parties have filed heads of argument in this matter, we seek that the matter be determined urgently.”…,.

It is evident, from the foregoing, that, the applicant was rushing against time.

However, the application was, in my view, not urgent. It was more of self-created urgency than it was urgent in the sense which the rules of court contemplate.

The Regulations were published on 15 September 2017. The applicant did not apply, as he should have done, shortly after the publication of the Regulations. He only filed his application some thirty-five (35) days after the event. He filed it on 20 October 2017. He did not explain the cause of the delay.

The form which he employed showed, that, the application should not have been enrolled on applications which fall under Rule 244 of the High Court Rules 1971. It did not have a certificate from a legal practitioner. It did not give reasons for its urgency. It was filed under Form 29 instead of under Form 29B of the rules of this court.

Urgency was, therefore, created by the applicant himself.

He suddenly became aware of the date of the expiration of the Regulations. He, accordingly, requested the Registrar to draw the court's attention to his predicament, and, in the process, he moved the court to hear the application before the period of the expiration of the Regulations.

The applicant used the Regulations as his point of entry into the substance of the application.

The application has less business with the Regulations. It, in fact, has more business with the constitutionality or otherwise of the Presidential Powers (Temporary Measures) Act [Chapter 10.20].

Paragraph 2 of the applicant's letter of 20 February 2018 is relevant in the mentioned regard.

He states, in the same, that, the application seeks to challenge the constitutionality of the Presidential Powers (Temporary Measures) Act [Chapter 10:20]. This, in my view, is the thrust of the application.

The applicant describes himself as a Zimbabwean scholar, businessman, and human rights activist. He says he has a direct interest in issues which relate to the rule of law, constitutionalism, democracy, and Zimbabwe's electoral process.

I mention in passing, that, human rights activism and constitutionalism took root in Zimbabwe in the late 1980s and early 1990s. Many non-governmental organisations sprouted through the length and breadth of the country. Activists who fell into, and continue to remain in, this very important field of work brought the Government of the day to account for its conduct in such areas as the due observance of the rule of law, people's fundamental rights, democracy, and elections.

Persons of the mind of the applicant remain a thorn in the eyes of Government.

They made, and continue to make, it to remain on course. They criticized, and continue to criticize, the conduct of Ministers of Government and their Ministries. They, in short, remain a constant cause of concern to the three pillars of the State: namely, the executive, the judiciary, and the legislature. They worried, and continue to worry, the politicians especially those whose functions fall under the executive organ of the State.

Human rights activists are, therefore, a sine qua non aspect of any democratic order.

They make every effort to point out, as well as speak against, such deviant behaviour as corruption, inertia, unconstitutionalism and/or the absence of democratic principles. Their continued existence in a society is a most welcome development which governments the world over are encouraged to embrace and not ignore.

When such activists, as the applicant, request members of the executive to jump, the ideal situation is that the latter should not question why they are being asked to jump. The only question which they can, and should, ask is how high they should jump.

It is, therefore, in the context of the above stated matters, that this application would be considered as well as determined.

The applicant, it has already been stated, falls into the category of the above described group of persons. He lays stiff criticism on the continued existence of the Presidential Powers (Temporary Measures) Act.

He insists that the Presidential Powers (Temporary Measures) Act serves no meaningful purpose in an independent and democratic Zimbabwe. He advocates the strengthening, as well as the observance, of constitutional provisions which, he says, protect and advance the people's fundamental rights and freedoms. He lays emphasis on matters which relate to the rule of law, democracy, constitutionalism, and/or the doctrine of separation of powers amongst the three pillars of the State.

The thrust of the applicant's argument is that the Presidential Powers (Temporary Measures) Act is ultra vires the Constitution of Zimbabwe.

He submits that the President has abused the Presidential Powers (Temporary Measures) Act as and when he pleased.

The Presidential Powers (Temporary Measures) Act, he argues, allows the President to make law by decree as opposed to having the same made by Parliament which, in terms of the Constitution, is the law–making authority in Zimbabwe.

He insists that the Presidential Powers (Temporary Measures) Act must be struck off the country's statute books because its provisions are not consistent with those of the Constitution of Zimbabwe.

The application which is before me is unique.

It is unique in the sense, that, it is the first of its kind to test the constitutionality or otherwise of the Presidential Powers (Temporary Measures) Act after the coming into existence of the Constitution of Zimbabwe Amendment [No.20] Act of 2013.

The Presidential Powers (Temporary Measures) Act was promulgated in 1986. It survived all applications, and they were many, of the present nature. It did so largely because of some provision of the 1979 Constitution which provision ensured its continued existence in the country's statute books. That provision, it was argued, does not exist in the new Constitution which replaced the old one.

It follows, from the foregoing, that, case authorities which dealt with the continued existence or otherwise of the Presidential Powers (Temporary Measures) Act will not be of much assistance towards the determination of this application. The decisions were, no doubt, anchored upon the provision which ensured the retention of the Presidential Powers (Temporary Measures) Act.

The current application will, in the result, be decided on what, in my view, is the correct interpretation of the new Constitutional provisions.

It will be decided on the basis of provisions which define the role and functions of such State actors as the President, Parliament, and the Judiciary of an independent and democratic society such as the one in which we live.

I have already stated, in some part of this judgment, that, the applicant used the Presidential Powers (Temporary Measures) Amendment of Electoral Act Regulations, S.I.117 of 2017, as his point of entry into the application.

He criticizes the Presidential Powers (Temporary Measures) Amendment of Electoral Act Regulations, SI117 of 2017 which the President published on 15 September 2017. He says these are null, void, and of no force or effect.

He submits, that, only Parliament can make law in Zimbabwe. He insists that the President cannot do so.

He criticizes section 2(2) of the Presidential Powers (Temporary Measures) Act which he says purports to give to the President power to change, or over-ride, an Act of Parliament.

He states, that, the President's conduct, of publicizing the Presidential Powers (Temporary Measures) Amendment of Electoral Act Regulations, SI117 of 2017 is ultra vires the Act. He, therefore, moved the court to declare:

(a) The Presidential Powers (Temporary Measures) Act to be ultra vires the Constitution of Zimbabwe; or alternatively

(b) Section 2(2) of the Presidential Powers (Temporary Measures) Act a nullity; and

(c) The President's actions, of publishing the Presidential Powers (Temporary Measures) Amendment of Electoral Act Regulations, S.I.117 of 2017 to be ultra vires the Act.

He, in short, moved the court to make the declarations and set aside the Presidential Powers (Temporary Measures) Act as well as the Presidential Powers (Temporary Measures) Amendment of Electoral Act Regulations, SI117/2017 which flow from the same.

The respondent is the President of the Republic of Zimbabwe. He opposes the application.

He states, that, the Presidential Powers (Temporary Measures) Amendment of Electoral Act Regulations, SI117/2017, which he published, were necessitated by the biometric voter registration exercise which the country adopted in preparation for the July/August 2018 election. He says everyone who was on the old voters roll was expected to register through the newly adopted voter registration system.

He avers that he did not act outside the law.

Section 2(2) of the Presidential Powers (Temporary Measures) Act, he says, confers authority upon him to publish the Regulations as he did.

He submits that he did not go beyond the powers which the Constitution of Zimbabwe confers upon him. He drew my attention to his executive functions which are contained in section 110(1) of the Constitution.

He denies that his conduct, in publishing the Regulations, violated the Presidential Powers (Temporary Measures) Act or the Constitution.

He submits that, under the common law, he has always enjoyed prerogative powers which allowed him to make temporary legislation in urgent situations. He states that the current Constitution did not abolish his prerogative powers.

He insists that the Presidential Powers (Temporary Measures) Act conferred power on him to make law in the general public interest. He avers that the Act recognizes Parliament's law-making function. He denies that the Act confers sweeping powers upon him.

He moved the court to dismiss the application with costs.

The application was well-researched, well-argued, as well as presented.

It drew my attention to a number of important case authorities which, in a large measure, addressed the concerns of the applicant.

It cited six cases of the South African Constitutional Court, four case authorities from the courts of the United States of America, four cases which the Privy Council decided, and two case authorities which the Supreme Court of India decided, among others.

The cited cases brought to the fore such pertinent matters as the supremacy of a country's Constitution, the doctrine of separation of powers, rule of law, and issues which pertain to procedural and/or substantive legality by such State actors as the respondent in casu.

The cases were, no doubt, rich, informative, thoroughly persuasive, as well as educative.

That having have been said, sight must not, however, be lost of the fact that each case to which the applicant drew my attention was decided in context. The decision was not plucked from thin air and placed on paper. It was based on the country's Constitution and other pieces of legislation which were relevant to the case. The court was, in each case, interpreting the law as it existed in its jurisdiction as measured against the facts of the matter which was then before it.

I mention, at this stage, that, the facts of the cases to which the applicant drew my attention remain unknown to me. I also state that the Constitutions and other pieces of legislation which influenced the decision of the court in each cited case were not availed to me. My attention was only drawn to the important dicta which the courts pronounced in each case.

The above stated matters make it hard, if not impossible, for me to go along with the decided case authorities. That is so notwithstanding their persuasive value. I cannot, in other words, conclude that what the court in America, or India, or South Africa pronounced should apply to the case which is before me.

Judicial work does not work in a vacuum. It operates upon a set of rules, chief among which is a country's Constitution and any legislation which is relevant to a case which is being decided. It interprets the law as it exists in a country's Constitution and other law. It interprets those against a certain set of stated matters.

The current application will, therefore, be decided in the context of the Constitution of Zimbabwe Amendment (No.20) Act of 2013 as read with the Presidential Powers (Temporary Measures) Act [Chapter 10:20] [“the Act”] and matters which relate to the two pieces of legislation.

Amongst such matters is the birth of a new voters roll which the President made mention of in his opposition to the application.

The President made law when he published the 2017 Presidential Powers (Temporary Measures) Amendment of Electoral Act Regulations, SI117/2017. He rested his law-making conduct on section 2 of the Presidential Powers (Temporary Measures) Act.

The section allows him to make law, albeit of a temporary nature, in certain circumstances of urgency.

The section reads, in the relevant portion, as follows:

“2. Making of Urgent Regulations

(1) When it appears to the President that:

(a) A situation has arisen or is likely to arise which needs to be dealt with urgently in the interests of defence, public safety, public order, public morality, public health, the economic interests of Zimbabwe or the general public interest; and

(b) The situation cannot adequately be dealt with in terms of any other law; and

(c) Because of the urgency, it is inexpedient to await the passage through Parliament of an Act dealing with the situation; then, subject to this Constitution and this Act, the President may make such regulations as he considers will deal with the situation.”

It is evident, from the above-cited portion of the section, that, the President's discretion to make Regulations is only exercisable by him in the interests of the people of Zimbabwe as a whole. He does not exercise the discretion in the interests of a section of the population of the country. The use of the word 'public' which appears in the various facets for which the discretion is exercised says it all.

The President did not publish the Regulations for the fun of it.

He did not, as the applicant alleges, make an effort to abuse the law making function which the Presidential Powers (Temporary Measures) Act confers upon him. He states, and correctly so, that the advent of the biometric voter registration exercise which Zimbabwe contemplated to put into place made it necessary for him to act as he did.

His contention, with which l agree, was that the advent of a new voters roll could not properly be covered by a law which Parliament would have introduced, debated, and passed into law without interfering with the times-lines of the forthcoming 2018 harmonised election. It was, according to him, out of necessity and urgency that he published the Presidential Powers (Temporary Measures) Amendment of Electoral Act Regulations, S.I.117 of 2017.

He insists, and l agree, that the preparation of the new voters roll, as measured against the July/ August 2018 election, was not an event but process.

The background of the matter which relates to the publication of the Regulations is relevant.

I take judicial notice of the fact, that, for a considerable length of time in the past, the people of Zimbabwe urged Government to:

(i) Do away with the old voters roll which they said contained a lot of inconsistencies as well as unnecessary features;

(ii) Replace it with a new voters roll which was more credible than the old one. A voters roll which was credible in terms of voter population, its density in a particular area, and detail;

(iii) Remove the voters roll from the office of the Registrar-General and place it within the domain of the Zimbabwe Electoral Commission.

It is my view that the applicant, and others of a like mind, were at the forefront of the stated matter.

He made a statement to an equal effect in his founding affidavit. He and other human rights activists urged and encouraged Government to address their abovementioned concerns. They insisted that its attention to the same would render the forthcoming July/August 2018 election more credible than otherwise.

The President, as Head of State and Government, heeded the call of the people of Zimbabwe.

He remained alive to the fact, that, whatever was to be achieved in response to the people's concerns was to be supported by some law. He, therefore, published the Presidential Powers (Temporary Measures) Amendment of Electoral Act Regulations, SI117 of 2017 which, in his view, would take the place of the law which Parliament was constrained to make within the time which preceded the election.

That the President complied with the procedural legality of the Presidential Powers (Temporary Measures) Act requires little, if any, debate.

He, as the applicant stated, published the Regulations. He published them on 15 September 2017. He did so after he had notified the people of Zimbabwe of his intention to publish the same. He, in the mentioned regard, made substantial compliance with section 3 of the Presidential Powers (Temporary Measures) Act.

It cannot, in view of the above stated matter, be suggested that the President's conduct, in publishing the Regulations, was ultra vires the Presidential Powers (Temporary Measures) Act. He published them in terms of an existing law. The law conferred upon him the power to act as he did. He followed the procedural aspects of that law to the letter and spirit.

His conduct was above reproach. It was, and it remains, valid.

I have already stated, in the foregoing portions of this judgment, that, the Presidential Powers (Temporary Measures) Amendment of Electoral Act Regulations, S.I.117 of 2017 are not the subject of this application.

The subject, from the perspective of the applicant, is the Presidential Powers (Temporary Measures) Act itself.

If the Regulations were the issue, the applicant would have invoked section 3(1)(b) of the Presidential Powers (Temporary Measures) Act as read with subsection (2) of the same. He would, in other words, have objected to the publication of the Regulations when the President made his intention known to him, and others, through the Government Gazette Extraordinary, Volume XCV No.61.

The fact that the applicant did not object to the publication of the Regulations, at the time that the President's intention appeared in the Gazette, shows his real intention.

The intention is that he wanted to use the Regulations, after they had been published, as his entry point into criticizing the substance of the Presidential Powers (Temporary Measures) Act.

The observed matter, therefore, takes the discourse to the substantive legality or otherwise of the Presidential Powers (Temporary Measures) Act.

Whether or not the Presidential Powers (Temporary Measures) Act is substantively legal depends on the provisions, if any, of the Constitution which relate to it. This, in a nutshell, refers to the constitutionality or otherwise of the Presidential Powers (Temporary Measures) Act.

The question which we should ask and answer centres on whether or not the law-making function of the President, as conferred upon him by the Presidential Powers (Temporary Measures) Act violates the Constitution of Zimbabwe.

The same question, put differently, would read: did Parliament act within or without the Constitution when it conferred some of its law-making function in the Presidential Powers (Temporary Measures) Act to the President?

Succinctly and boldly stated, the same question reads: Is the Presidential Powers (Temporary Measures) Act in compliance with the Constitution of Zimbabwe (No.20) Act of 2013 (“the Constitution”)?

The legislative authority of Zimbabwe is reposed in the Legislature. This comprises Parliament and the President acting in accordance with this Chapter.

Sections 116, 117 and subsections (2), (3), 5(a), 6(a) and (b), 7(a), 8(a) and (b), (9) and (10) of section 131 of the Constitution of Zimbabwe spell out the complimentary roles which Parliament and the President play in Zimbabwe's law-making process. They check and balance each other's work. The one cannot make law without the input of the other and vice-versa.

The fact that the President can, in terms of section 131(8)(b) of the Constitution as read with subsection (9) of the section, refer a Bill to the Constitutional Court for advice on its constitutionality shows that the judiciary is, to some extent, involved in the law-making process. It ensures that all Bills which Parliament and the President pass into law must comply with the Constitution of Zimbabwe.

The checks and balances which exist in section 131 of the Constitution also exist in section 4 of the Presidential Powers (Temporary Measures) Act.

The President does not, therefore, have sweeping powers as the applicant alleges.

The Regulations which he makes are, as of necessity, subject to Parliamentary review and/or scrutiny. It is within the domain of Parliament to resolve that any Regulations which have been laid before it be either amended or even repealed. Once such a resolution has been made, the President has no option but to comply with the resolution of Parliament.

It follows from the foregoing, therefore, that, complete separation of powers of the three organs of the State, i.e the Executive, the Legislature and the Judiciary, is a myth. It is not achievable in the context of the Constitution of Zimbabwe.

I, in the mentioned regard, associate myself fully with the views which the Constitutional Court of South Africa was pleased to express in Ex parte Chairperson of the Constitutional Assembly: In Re: Certification of the Constitution of the Republic of South Africa 1996 (4) SA 744. It stated…, as follows:

“There is, however, no universal model of separation of powers, and, in democratic systems of government in which checks and balances result in the imposition of restraints by one branch of government upon another, there is no separation that is absolute….,.

The principle of separation of powers, on the one hand, recognizes the functional independence of branches of government. On the other hand, the principle of checks and balances focuses on the desirability of ensuring that the constitutional order, as a totality, prevents the branches of government from usurping power from one another. In this sense, it anticipates the necessary and unavoidable intrusion of one branch into the terrain of another. No constitutional scheme can reflect a complete separation of powers: The scheme is always one of partial separation.”…,.

The President's necessary and unavoidable intrusion into the function of Parliament is evident from a reading of section 86 of the Constitution. The section deals with the limitation of the people of Zimbabwe's fundamental rights and freedoms. It reads, in part, as follows:

“86 Limitation of Rights and Freedoms

(1) The fundamental rights and freedoms set out in this chapter must be exercised reasonably and with due regard for the rights and freedoms of other persons.

(2) The fundamental rights and freedoms set out in this chapter may be limited only in terms of a law of general application and to the extent that the limitation is fair, reasonable, necessary and justifiable in a democratic society based on openness, justice, human dignity, equality and freedom, taking into account all relevant factors, including -

(a)…,.;

(b) The purpose of the limitation, in particular whether it is necessary in the interests of defence, public safety, public order, public morality, public health, regional or town, planning or the general public interest….,.”…,.

The question which begs the answer is: who/which authority has the power to limit the people of Zimbabwe's fundamental rights and freedoms when any of the matters which are stated in section 86(2)(b) of the Constitution has arisen or is about to occur?

The applicant does not mention the person or authority who/which, in terms of a law of general application, can limit the people's rights and freedoms.

The limitation, no doubt, has far-reaching consequences. It relates to matters which, if left unattended, adversely affect a considerable portion of Zimbabwe's population - if not the people of Zimbabwe as a whole.

The President says the Presidential Powers (Temporary Measures) Act and the Constitution confers upon him that power to deal with any of the matters which are stated in section 86(2)(b) of the Constitution when such have arisen or are about to occur.

He states, in casu, that, it was in the interest of the general public of Zimbabwe that he made the Presidential Powers (Temporary Measures) Amendment of Electoral Act Regulations, SI117 of 2017.

That the general public interest was real as opposed to having been fanciful requires no debate. That was so, given the people's outcry for a new voters roll which had to replace the old one with which they were not satisfied.

Parliament could not make law within the time which remained to deal with the situation which was then at hand. Whatever process which pertained to the introduction into the country of a new voters roll required some law to be in place before it could be embarked upon.

The President, therefore, made that law in line with his law-making function as was provided for in the Presidential Powers (Temporary Measures) Act and the Constitution.

The verbatim repetition of section 86(2)(b) of the Constitution in section 2(1)(a) of the Presidential Powers (Temporary Measures) Act confirms the Constitution's recognition of the Presidential Powers (Temporary Measures) Act.

The stated matter confirms further, that, it is only the President who has the power to limit, through the Presidential Powers (Temporary Measures) Act, the people of Zimbabwe's fundamental rights and freedoms which are contained in the Constitution. Those can be limited when certain undesirable occurrences have arisen or are about to arise.

The President limits them in the interests of Zimbabwe's public good.

The drafters of the Constitution were, in my view, alive to the existence of the Presidential Powers (Temporary Measures) Act.

They crafted section 134 of the Constitution to confer power on Ministers of Government and such statutory bodies as the Zimbabwe Electoral Commission to make subsidiary legislation. They state, in the section, that, the legislation which these make should not go outside the enabling Act which establishes their law-making function.

Because the President's law-making power exists in the Presidential Powers (Temporary Measures) Act, the drafters of the Constitution did not include it in section 134 of the Constitution.

Because his powers, as stated in section 86(2)(b) of the Constitution, relate to limitation of the people of Zimbabwe's fundamental rights and freedoms in certain unforeseen circumstances, he could not effectively exercise the same under section 134 of the Constitution.

Paragraphs (b), (c) and (d) of the section would have disenabled him from effectively dealing with situations of disastrous consequences which he has to address in his capacity of Head of State and Government when such arise.

It was for the mentioned reasons, if for no other, that the Presidential Powers (Temporary Measures) Act conferred upon him power to deal with any situation which, in his view, would work against Zimbabwe's public interest in an adverse manner.

Section 5 of the Presidential Powers (Temporary Measures) Act accords to him the leeway to deal with the situation which would have arisen or is about to occur in a very effective as well as conclusive manner.

It allows him to override an Act of Parliament where such is necessary in the interests of the public good of Zimbabwe.

It makes little, if any, sense for the applicant to suggest that Ministers, whom the President appoints into cabinet, can make subsidiary legislations under section 134 of the Constitution and the appointing authority himself cannot.

The applicant's reading of section 134 of the Constitution is misplaced.

He overlooks the fact, that, its application relates to the making of law by Ministers of Government and statutory bodies. He remains oblivious to the fact, that, the President's law-making function is not covered under the section but under the Presidential Powers (Temporary Measures) Act and the Constitution.

The President states, and I agree, that, section 110(1) of the Constitution confers upon him the power to make law. It reads:

“(1) The President has the powers conferred by this Constitution and by any Act of Parliament or other law including those necessary to exercise the functions of Head of State.”…,.

It is his status, as Head of State and Government, which allows him to limit the people of Zimbabwe's fundamental rights and freedoms when a need to do so arises or is about to occur.

He will be complying with his duties as the President of Zimbabwe in the mentioned regard.

He will be, as is stated in section 90(2)(a) of the Constitution, promoting unity and peace for the benefit and well-being of the people of Zimbabwe.

It is evident, from the foregoing, that:

(a) The conduct of the President was not ultra vires the Presidential Powers (Temporary Measures) Act;

(b) The Regulations which he published were procedurally and substantively compliant with the law under which they were made; and

(c) The Presidential Powers (Temporary Measures) Act is not ultra-vires the Constitution of Zimbabwe.

The applicant, in my view, confused the President's ordinary law-making function, as it is stated in Chapter 6 of the Constitution, with his law making function as it exists in the Presidential Powers (Temporary Measures) Act as read with sections 86 and 110 of the Constitution.

He sought to do away with the President's law-making power as it is contained in the Presidential Powers (Temporary Measures) Act.

The Presidential Powers (Temporary Measures) Act, it has already been observed, is in complete harmony with the Constitution.

The application constituted an interesting exercise of the mind. It was more academic than it was real. It was devoid of merit. It cannot, therefore, stand.

The applicant did not prove his case on a balance of probabilities. The application is, accordingly, dismissed with costs.

The plaintiff is a co-operative society engaged in the noble business of providing housing for its members; one of whom was, until he was unceremoniously dismissed from membership, by letter dated 4 June 2015, the defendant in this matter.

Following the expulsion of the defendant, the plaintiff sued out a summons against him seeking an order for his eviction from a property known as Stand 5486 of 315 Retreat Township, Waterfalls, Harare (the Stand) on the pain of legal practitioner and client costs.

In its declaration, the plaintiff made the averments, that, the defendant had been admitted as a member of the co-operative in 2005 in terms of Clause 7 of the plaintiff's By-Laws. When he failed to meet his membership obligations, in terms of the same By-Laws, the defendant was initially suspended and subsequently expelled in terms of Clauses 21 and 23 of the By-Laws, thereby forfeiting the Stand which had been allocated to him by virtue of his membership.

As the defendant has refused to vacate the Stand, the plaintiff craved the grant of an eviction order aforesaid.

The action is contested by the defendant, who, after entering appearance to defend, also filed a special plea in the following:

“The defendant pleads to the claim as follows:

1.1 This Honourable Court does not have jurisdiction to hear this matter as it is a matter between a registered housing co-operative, namely, Nehanda Co-operative Society Limited and one of its members.

1.2 In terms of section 115 of the Co-operative Societies Act, the plaintiff should have first attempted to have the matter resolved by the housing co-operative. Failure of which the plaintiff would then have approached the Registrar in terms of section 115 of the Co-operative Societies Act.

Wherefore, the plaintiff's claim ought to be dismissed with costs on a legal practitioner and client scale.”

The plaintiff holds a different view.

According to the plaintiff, the matter was indeed dealt with by the co-operative, which first suspended and later expelled the defendant for his indiscretions in violation of the Bye-Laws. The defendant's fate was communicated to him by letter dated 4 June 2015. It reads:

“REF: NOTIFICATION OF SUSPENSION AND EXPULSION

You are hereby notified that at a special general meeting held at:
Venue: Nehanda Housing Co-operative site offices
Date: 30 May 2015
Time:1300hrs

You were suspended and expelled from being a member of the above-mentioned housing co-operative. You are therefore advised to visit the co-operative offices as soon as possible for a way forward in connection with your refunds as well as the necessary administrative issues, failure of which will result in the co-operative taking a legal route at your expense. Your co-operation will be greatly appreciated.”

The expulsion letter was signed by both the Secretary and the Chairperson of the co-operative.

As it turns out, subsequent to that outcome, the defendant was given an opportunity by the plaintiff to make representations on his expulsion. This was communicated to him by letter dated 15 May 2015 which notified him of the date of hearing for that purpose, namely, 30 May 2015.

What brought the defendant to that predicament was his failure to pay subscriptions for more than three (3) months; failure to attend meetings; and insubordination.

Apparently, the affliction of failing to attend meetings continued to bedevil the defendant, because, despite being notified of the date of the special general meeting to consider representations on his expulsion, the defendant still failed to attend that meeting and make representations as appears from the minutes of that meeting.

On a vote of 42 to 5, the members resolved to uphold the defendant's expulsion.

Counsel for the plaintiff insisted, that, the provisions of section 115 of the Co-operative Societies Act [Chapter 24:05] were complied with, because, subsequent to that, the dispute was indeed referred to the Registrar of the Co-operative Societies who delegated the responsibility of resolving the dispute between the parties to two (2) of his or her officials, namely, Ms Mutumhe and Ms Mutepfa.

By consent of the parties, I allowed counsel for the plaintiff to produce proof of such attendance which then necessitated the postponement of the matter for that purpose.

In doing so, it was hoped that proof that the dispute was referred to the Registrar would resolve the matter given that the defendant sought to bar the plaintiff from approaching this court on the single ground that it had not exhausted domestic remedies provided for in the Co-operative Societies Act.

Despite the production of the minutes of the Special General Meeting convened for that purpose, on 19 November 2016, which clearly show that the two (2) representatives of the Registrar had presided over the meeting and confirmed the majority decision of the members to expel the defendant, counsel for the defendant pursued the special plea.

She submitted, that, the manner in which the matter was dealt with at that meeting, and the outcome thereof, did not satisfy the provisions of section 115 of the Co-operative Societies Act in that the Registrar did not resolve the dispute.

There is no decision by the Registrar resolving the dispute between the member and the co-operative society as required by the Co-operative Societies Act.

I am therefore required to decide whether, after the dispute was referred, which is now common cause, the Registrar resolved it.

Counsel for the plaintiff submitted, that, indeed the Registrar dealt with and resolved the matter through his or her representatives by upholding the expulsion.

Counsel for the defendant's position is that the dispute was left hanging and unresolved.

I have said that the minutes, which the defendant has not attempted to challenge, and show that the defendant was actually in attendance at the meeting held on 19 November 2016, clearly demonstrate that the Registrar's representatives presided over the deliberations. They even conducted a poll for the members to have a second bite at the cherry, as it were, to decide whether to affirm or reverse the expulsion.

When the members still voted for the expulsion, they must be taken to have upheld it, washing their hands, Pilate style, of the matter before taking their leave.

Part of the minutes read:

“Ms Mutumhe and Ms Mutepfa explained the results and the meaning of the outcome to Mr Nkomazana and she also took the opportunity to plead to the members to hear Mr Nkomazana out, and, if possible, to assist him since he was now an elderly citizen with a family to cater for. Mr Nkomazana was given the chance to plead with the delegates as well as to explain his side of the story. Mr Nkomazana said that he never refused to subscribe his monthly contributions but had only fallen on hard times due to economic challenges which he faced during the respective period and he believed that his expulsion had a lot more into it than the debt owed….,. The delegates generally concurred that Mr Nkomazana remains expelled and advised him to desist from threatening other members by any means as he usually does. Ms Mutumhe and Ms Mutepfa concluded that they had finished their findings and were now going to leave us as a co-operative to discuss this issue so that we bring it to finality.”

Reading the minutes as a whole, and in light of that conclusion, it cannot be doubted that the Registrar exhausted his or her interventions and did not find the need to overturn the decision of the members.

The Registrar even allowed the defendant to mitigate and still found no reason to set aside the resolution of the members.

Can it be said, therefore, that domestic remedies provided for in the Co-operative Societies Act were not exhausted?

I think not.

In terms of section 115 of the Co-operative Societies Act [Chapter 24:05]:

“(1) If any dispute concerning the business of a registered society arises -

(a) Within the society, whether between the society and any member, past member or representative of a deceased member, or between members of the society or the management or any supervisory committee; or

(b) Between registered societies;
and no settlement is reached within the society or between the societies, as the case may be, the dispute shall be referred to the Registrar for decision.”

Subsection (2) interprets a dispute to include any claim by the society for a debt due to it from a member or past member, any claim by a member, and any dispute concerning the interpretation of a society's by-laws.

There is therefore no doubt that the dispute between the parties, over the defendant's failure to pay subscriptions, fell under the provisions of section 115 of the Cooperative Societies Act - even after his expulsion from the co-operative.

In terms of section 115(3) of the Co-operative Societies Act:

“Where a dispute has been referred to him in terms of subsection (1), the Registrar may –

(a) Settle the dispute himself; or

(b) Refer the dispute for settlement to an arbitrator or arbitrators appointed by him; or

(c) Refer the dispute to the Minister for decision.”

In light of the foregoing provisions, I find as fact, that, the matter was indeed referred to the Registrar in terms of section 115 of the Co-operative Societies Act and that the Registrar was entitled to delegate his or her responsibilities, in terms of that section, to Ms Mutumhe and Ms Mutepfa in order for them to resolve the dispute.

I also find as fact, that, the two (2) thoroughly investigated the matter and found nothing amiss with the manner in which the plaintiff had applied the by-laws in deciding to expel the defendant.

In fact, I am prepared to go as far as make a finding, that, the Registrar upheld the decision to expel the defendant.

If he or she had not done so, the contrary finding would appear ex facie the minutes. Quite to the contrary, what appears is a finding that there was nothing wrong with the process.

I do not agree with counsel for the defendant, that, no decision was taken by the Registrar merely because the representatives left the parties to try and find each other.

They did so after making a finding that the defendant had been properly expelled.

In any event, one gets the sense, that, this was the easiest of disputes to be resolved because it was common cause, that, the defendant had failed to pay subscriptions. There was nothing to resolve there. There was no challenge or dispute on the interpretation of the bye-laws.

In terms of clause 16 of the by-laws, every member has an obligation to abide, not only by the bye-laws but also by the majority decisions of the society.

Clause 21 allows for expulsion, even for any action considered disloyal or contrary to the interests of the society.

The defendant's special plea, which I have reproduced above, is predicated on the failure to refer the matter to the Registrar for resolution.

I have found that the matter was indeed referred to the Registrar.

The special plea is ill-founded.

Counsel for the defendant shifted ground when it became apparent that the dispute was referred. She submitted, instead, that, the dispute having been referred to the Registrar, the latter did not make a decision.

I have, again, found that a decision to uphold the expulsion was arrived at.

In fact, to suggest, as counsel for the defendant did, that that there must exist a judgment by the Registrar or his or her representative deciding the matter, is to worry about the form than substance.

I conclude that there is no merit in the special plea.

In the result, it is ordered that:

1. The special plea be and is hereby dismissed.

2. The costs shall be costs in the main cause.

This will be the fourth judgment in a series of applications that have been filed by the parties to this dispute.

The Chamber Application before the court has been styled as a Chamber Application or leave to “litigate” and “institute” action against the first respondent, a company under judicial management.

Whilst on the merits the application may have succeeded, the respondents have raised a number of procedural matters which require consideration by the court before going into the merits of the application.

The applicant prays for an order couched in the following terms:

“(i) That Applicant be granted leave to execute against first respondent's attached 800 harrows.

(ii) That the Applicant be granted leave to institute legal proceedings against 1st Respondent for any further outstanding levies due in terms of section 3 of the Manpower Planning and Development (Levy) Notice, Statutory Instrument 74/99 and any such surcharge imposed from the period starting from August 2011 to the date of this order.

(iii) That 1st Respondent and 2nd Respondent, Mr. Christopher Masani, pay costs of this application jointly and severally each paying the other to be absolved on an attorney and client scale.”

In case number HC3078/11, the applicant sued and obtained judgment against BMA Fasteners for US$9,350=13. The judgment was obtained on 12 January 2012 and a Writ of Execution was issued out of this court on 14 March 2012.

The Deputy Sheriff subsequently placed under judicial attachment harrows belonging to BMA Fasteners.

Efforts to execute the writ were fruitless as the respondents made various applications to stay the sale in execution.

The first respondent has now obtained an order of this court placing it under judicial management. Paragraph (c) of the Order provides as follows:

“All actions and applications and executions of all writs, summons, and other process against the respondent company shall be stayed and not proceeded without the leave of the Honourable Court.”

The application before the court is for leave of this court to execute the Writ issued by this court and to institute further proceedings to recover all due and outstanding levies.

The applicant contends, that, the provisional judicial manager is abusing the due process of the court to frustrate execution of the writs.

The respondents have raised the following points in limine:...,.

The founding affidavit was deposed to by one Nyasha Njowa, who is a Regional Manager employed by the Zimbabwe Manpower Development Fund.

The deponent claims to derive his authority from a letter dated 23 July 2002. The letter is signed by Dr Washington Mbizvo, the Permanent Secretary in the Ministry of Higher and Tertiary Education.

The said letter purports to confirm that the deponent is authorised to represent the Minister in any litigation for the recovery of outstanding training levies.

The letter is not written by the Minister, who, in terms of the Act, is authorised to act on behalf of the Ministry.

No proof was placed before the court to establish that the said Nyasha Njowa was authorised by the Minister to institute legal proceedings.

There was equally no proof to show, that, the Permanent Secretary in the Ministry was authorised by the Minister to act in the manner he did.

It seems to me to be quite clear, that, the founding affidavit was improperly secured in that there was no legal basis upon which Nyasha Njowa could purport to represent the Minister in these proceedings.

The maxim delegatus non potest delegare would apply to the circumstances of the matter before the court: in other words, the Permanent Secretary could not delegate authority to sue even if it were proved that he was himself properly authorised.

See Mhanyami Fishing and TSPT Co-op Soc Ltd v Director General, Parks and Wildlife Management Authority and Others 2011 (1) ZLR 555.

The applicant failed to prove, that, Nyasha Njowa was properly authorised to depose to the founding affidavit, and, for that reason, the application cannot survive this second preliminary point.

This is an appeal and cross-appeal against parts of the judgment of the Special Court (for Income Tax Appeals) dated 11 October 2019 dismissing some of the appellant's objections against the respondent's amended assessments, and setting aside some of the respondent's amended assessments.

In this judgment, I will refer to the appellant as the main appellant and the respondent as the cross appellant.

The detailed facts of the case can be summarised as follows:

The main appellant is a company registered in terms of the laws of Zimbabwe and a subsidiary of Delta Corporation (the Holding Company). The two companies are separate and distinct from each other but share the same acronym. The holding company carries on business in the beverages and agro-industrial sectors of the Zimbabwean economy.

The cross-appellant is, in terms of the Income Tax Act [Chapter 23:06], the authority responsible for the collection of taxes in Zimbabwe.

In 1958, the predecessor to the holding company entered into an exclusive franchise agreement with a Canadian Company which owned the LL beverage trademark.

In 1970, two further trademarks, CB and CBL were included in the franchise agreement.

The last trademark, EL, was added to the franchise agreement in 2004.

The franchisee is the owner of four local beverage trademarks CL, BL, ZL and GPL. The parties interchangeably referred to trademarks as brands in their franchise agreements.

In terms of the 1970 agreement, the holding company had the right, subject to the terms and conditions of each agreement, to transfer, assign and sub-licence its subsidiaries to manufacture and sell the trademarked beverages. The holding company was obliged to pay to the franchisor royalty fees for the trademarks computed against prescribed sales and technical fees for the technical assistance provided and calculated on a cost-recovery basis.

Before the court a quo, evidence was led to the effect, that, in 2002, the Canadian Company was taken over by the Dutch company, International Management BV, which, in turn, executed an undated and unsigned Technical Support and Assistance (“TSA”) agreement with the holding company retrospectively to 1 January 2002.

The Dutch company was a subsidiary of SAB Miller International BV, an English public company.

The Dutch company undertook to provide, in person or by proxy, to the local holding company, its accumulated international expertise and know-how in the manufacture, management and distribution of beverages.

The Group of the holding company was defined as the holding company and “any existing and future subsidiaries.”

Know-how was elaborately defined to include all aspects of purchasing raw materials, product manufacture and brand development, plant and waste management, packaging and distribution, consumer research, and performance management systems.

The term subsidiary carried five different meanings which ranged from majority shareholder control, to majority votes garnered by agreement with other shareholders in financial policy, management, and supervision of the holding company by the Dutch company.

The term turnover encompassed Group gross sales revenue from all beverages and malt inclusive of taxes and excise duties.

Clause 3 contemplated the provision of know-how to the Group and “the relevant company in the Group” under the direction of the Board of the holding company.

The holding company undertook to do all such things and pass all such resolutions necessary to effect the terms of the agreement. It also agreed to ensure that its subsidiaries adopt, ratify, or confirm any lawful support rendered by the Dutch company to such subsidiaries.

In terms of clause 5, the holding company was responsible for the payment of an annual fee equal to 1.5 percent of the total Group turnover payable quarterly, on a pro rata basis, within 30 days after the end of each quarter.

The payment was to be in United States dollars, at the best available market rate in Zimbabwe, but, subject to the necessary exchange control and other Governmental approvals.

In the absence of foreign currency, the holding company would apply the fee to purchase its ordinary shares on behalf of the Dutch company in the name of an affiliate.

A new agreement was concluded on 1 September 2006 and renewed on 1 August 2011.

The Dutch company continued to provide know-how in the production, distribution, and management of beverages in the Group and the relevant company in the Group.

In the interim, on 30 April 2007, the holding company executed a royalty agreement with the Dutch company, International BV, which replaced the royalty agreement of 14 December 2001.

On 1 February 2008, the main appellant's Board of Directors resolved to execute an administrative and contractual services agreement with the holding company authorising the holding company to enter into administrative, technical, and contractual services arrangements with third parties on its behalf.

It resolved to be bound by such agreements and to bear the costs and benefits arising therefrom.

The contemplated Administrative, Technical and Contractual Service Agreement was concluded on 8 February 2008.

The main appellant bound itself to assume all royalty and exploitation of user rights and brands and trademarks agreements, services agreements, lease agreements, bonds, supplier contracts, employment contracts, and any other routine matters authorised for execution by the Board or its management executed by the holding company as its own.

On 19 August 2011, the exchange control authority granted authority to the holding company to pay royalties of up to 5 percent to the Dutch company less withholding tax.

Again, on 18 March 2013, the exchange control authority granted the main appellant authority to renew the Technical Services Assistance agreement and make payment of fees of up to 1.5 percent of the Group's annual turnover excluding sales of CBL, LL and EL less withholding tax and an additional 1 percent of the holding company's turnover less withholding tax on another product, CL, in recognition of the invention, design and know-how of the franchisor.

The turnover and fees were to be certified by a reputable firm of auditors.

On 14 April 2016, the cross appellant issued six (6) amended manual Notices of Assessment for Income Tax to the main appellant. The amended assessments related to the tax years ending on 31 December 2009, 2010, 2011, 2012, 2013 and 2014. The cross-appellant levied a payment by the main appellant of over US$42 million, including penalty and interest.

By letter dated 20 April 2016, the main appellant objected to the assessments.

In response, the cross appellant issued revised assessments and sent these to the main appellant without an explanation.

In its revised assessments, the cross-appellant conceded several issues raised by the main appellant in its objection and reduced the total amount claimed to around US$30 million.

By letter dated 9 May 2016, the main appellant revised and re-lodged further objections.

The cross appellant disallowed all grounds of the main appellant's further objections.

Aggrieved by that decision, the main appellant appealed to the Special Court for Income Tax Appeals.

The issues placed before the court a quo for determination, as per the joint pre-trial conference minute, are as follows:

“1. Whether or not the respondent was correct in disallowing royalties pertaining to the brands/trademarks?

2. Does the fact that a written technical services agreement exists between Delta Corporation and SAB Miller Management BV prevent the appellant from deducting such fee payments as expenses?

3. Did the appellant incur technical fees, which it sought to deduct as expenses?

4. Was the respondent correct in disallowing technical fees, which are expressed as a percentage of turnover?

5. Had Delta's tax affairs, relating to the tax year ending 31 December 2009, prescribed as at the date of the assessment?

6. If not, whether the respondent correctly disallowed the expenditure apportioned by the holding company as management charges?

7. Whether or not the respondent was correct in disallowing consumable stocks claimed by the appellant.

8. Whether or not the respondent was correct in disallowing prepaid expenses claimed by the appellant?

9. Is appellant entitled to deduct the inventory revaluation in question?

10. Whether or not the respondent was correct in disallowing expenses described as computer software cost in the tax computation?

11. Is respondent's imposition of penalties of 50% justified?

12. Whether or not interest should be payable by the appellant.”

After hearing the parties and perusing documents filed of record, the court a quo ordered that:

“1. The revised manual assessments numbers 0006754, 0006755, 0006756, 0006757, 0006758 and 0006759 issued by the Commissioner on 5 May 2016 for the tax years ended 31 December 2009, 2010, 2011, 2013 and 2014 respectively be and are hereby set aside.

2. The Commissioner is directed to issue further revised assessments that incorporate the contents of this judgment. He shall specifically:

(a) Allow in full the deductions claimed by the appellant for royalties and technical fees in respect of the 2009, 2010, 2011, 2012, 2013 and 2014 tax years.

(b) Reopen the 2009 assessment and add back the sum of US$150,722 in respect of head office expenses, to the appellant's taxable income.

(c) Add back all the deductions, if any, made by the appellant in respect of head office expenses to the appellant's taxable income for the years 2010 to 2014.

(d) Add back the deductions for consumable stock, in their respective amounts, to the appellant's taxable income in respect of each tax year in issue.

(e) Add back the prepayments, in their respective amounts, in each tax year in issue.

(f) Allow the deduction in the sum of US$603,792 in respect of the stock revaluation adjustment in the 2010 tax year.

(g) Add back the computer software deductions of US$2,059,238 in their respective amounts, in the 2013 and 2014 tax years.

(h) Charge a penalty of 10% on the additional tax payable in each respective tax year.

(i) Waive in full any interest from the additional tax.”

Aggrieved by the decision of the court a quo, the main appellant noted an appeal against part of the judgment to this Court. The cross appellant cross-appealed against part of the same decision.

The appeals were noted on the following grounds:

“1. The court a quo erred in law by holding, that, the legislative intent behind the Income Tax Act [Chapter 23:06] was clearly to match the expense incurred to the income produced in the same tax year.

2. The court a quo erred in law by holding, that, when determining the deductibility of the expense of unused consumables the relevant question was whether 'the appellant had an unconditional legal obligation to purchase' them.

3. The court a quo erred in law by finding, that, the appellant decided to 'purchase consumables in excess of its annual requirements' in circumstances where there was no evidence warranting such a finding before the court.

4. The court a quo erred by disallowing all deductions for consumable stocks in circumstances where it has found that deductions for consumables are allowed in the year when they were consumed.

Relating to issue 5: 'Prepaid expenditure'

5. The court a quo erred in law by apparently expecting opinion evidence, on a question of law relating to the requirement of paying excise duty, from a witness of fact.

6. The court a quo erred in law by appearing to hold, without expressly stating its finding, that, the appellant's obligation to pay excise duty on clear beer removed from the excise bonded warehouse constituted a 'premature discharge of a contingent liability.'

7. The court a quo erred in law by appearing to hold, without expressly stating its finding, that, the appellant's obligation to pay for an annual insurance premium that straddled two tax years constituted a 'premature discharge of a contingent liability.'”

“1. The Special Court for Income Tax Appeals erred in allowing as a deduction, in terms of section 15(2(a) of the Income Tax Act [Chapter 23:06], expenses relating to royalties in respect of each tax year in issue when the cross-respondent was not a party to the agreement in terms of which such royalties were payable.

2. The court a quo further erred in finding that payments made in respect of trademarks or brands were expenditure incurred for the purposes of the cross-respondent producing income.

3. The court a quo further erred in finding, that, the cross-respondent was entitled to pay fees in terms of the Technical Services Agreement which was concluded between Delta Corporation Limited and SAB Miller Management BV to which the cross-respondent was not a party.

4. The court a quo erred in finding, that, the cross-respondent was entitled to pay fees in terms of the Technical Services Agreement at the rate of 1.5% of turnover when it was clear that SAB Miller itself was charged fees on a cost-plus mark-up basis by its South African sub-contractors and when the Group policy was that the cost plus mark-up basis was the method of charging such fees.

5. The court a quo further erred in finding, that, the cross-respondent was entitled to pay and deduct the amount of US$603,792 in respect of inventory revaluation, as an expense incurred against its income in terms of section 15(2)(a) of the Income Tax Act when the value of the stock adjusted had already been factored into the computation of the gross profit which was subject to the income tax.

6. The court a quo further grossly erred in finding, that, the cross-appellant was not correct in imposing a penalty of 50% of the taxes due upon the assessments on the cross-respondent.

7. The court a quo further grossly erred in setting aside the interest imposed upon the cross-respondent when it was not shown that the Commissioner of the cross-appellant had been grossly unreasonable in imposing such interest at 10%.”

Counsel for the main appellant, in the main appeal, submitted, that, the appellant bought consumables which did not run out in the first year and were carried into the second year. He further submitted, that, deductions could only be made in the first year and that the matching principle did not apply.

Counsel for the appellant submitted, that, the matching principle cannot be used as it apportions costs over two tax years as there were un-utilised consumables carried over from the year of purchase.

He contended, that, the cause of action arose when the consumables were bought and the expense was incurred in year one. To that end, he argued that the appellant has to deduct the expenses of the purchases in year one and that there should be no splitting of the expenses into both years.

Counsel for the main appellant asserted, that, the statutory prepaid expenditure on record, establishes that the expenditure was incurred in terms of statute and cannot therefore be a prepayment as alleged by the respondent. He submitted, that, the court a quo was correct in allowing the deductions but it was not clear how it went on to make a finding in favour of the respondent.

Counsel for the main appellant submitted, that, the court a quo erred by disallowing all deductions for consumable stocks in circumstances where it had found that deductions for consumables are allowed in the year when they were consumed.

Concerning the fifth ground of appeal, relating to stock and trading stock, counsel for the main appellant argued, that, deductions were meant for stock in general to avoid double deductions.

On the imposition of penalties, counsel for the main appellant averred, that, the matter would have to be remitted to the court a quo for it to determine whether or not section 98 of the Income Tax Act applies.

In relating to the cross appellant's grounds of appeal number six and seven, on penalty and interest, counsel for the main appellant argued, that, the proceedings were neither an appeal in the strict sense nor a review, as the court a quo can consider evidence placed before it and come up with a decision on penalty and interest based on its own discretion.

On whether or not brands and trademarks contribute towards the making of income, counsel for the main appellant submitted, that, they significantly contribute in the making of income.

In respect of inventory revaluation, he submitted that they were correctly allowed in terms of paragraph 4 of the Second Schedule of the Income Tax Act.

In respect of the technical services, he argued that the court a quo correctly found that they were deductible.

Counsel for the cross appellant submitted, that, the consumables the main appellant sought to deduct were not utilized in the year of purchase, therefore, in terms of section 15(2)(a) of the Income Tax Act, one cannot interpret the section without taking into consideration the purpose for which the expense was incurred.

He argued, that, the matching principle applied as the purchase of consumables should be for the purpose of making an income in the tax year in which the purchases were made.

Counsel for the cross-appellant contended, that, the consumables were bought in excess and could not all be deducted in the same tax year. He submitted, that, the excess consumables were not consumed and did not generate income.

He further submitted, that, it is by the reasonable interpretation of the law that the matching principle must be applied.

He argued, that, the deduction for payments of royalties should not be allowed as there is no nexus between the main appellant and the holder of the royalties.

Concerning ground of appeal number two, he submitted, that, trademarks, brands, and the know-how generate little money unless advertised.

He further submitted, that, the advertising costs are deductible and that it is the advertising that generates income and that if the products are not advertised they remain as stock.

Counsel for the cross appellant asserted, that, there was no evidence proving that brands and trademarks contribute towards the making of income.

In relation to the main appellant's third and fourth grounds of appeal, he submitted, that, the court a quo found that the main appellant's witness was not a credible witness.

He contended, that, it was the SAB Miller policy to pay on a cost-plus mark-up basis, but, the court a quo found that the appellant was obliged to pay the holding company on a turnover basis of 1.5 percent.

Concerning prepayment of excise duty insurance premiums, counsel for the cross-appellant averred that the court a quo did not hear evidence on this issue as none was placed before it.

On technical fees, counsel for the cross-appellant submitted, that, the court a quo should have determined whether or not the agreement between the Dutch company and Delta Corporation (Private) Limited and that between the main appellant and Delta Corporation was not aimed at tax avoidance.

In respect of inventory revaluation, he submitted that the deduction should not have been allowed as that would amount to a double deduction.

Counsel for the main appellant submitted, that, the question of whether or not the main appellant was a party to the agreement was a factual finding on which the cross appellant had made a concession to the effect, that, the agreement was genuine.

He averred that the cross appellant's case was whether or not a deduction could be allowed, and, on the other hand, its case was that deductions were justified if there was an obligation to pay.

He therefore argued, that, the cross-appellant was approbating and reprobating.

In respect of the use of trademarks to make an income, counsel for the main appellant submitted, that, one can make an income from brands or trademarks, which is a sign of the quality of the product. He argued that section 8(1) of the Income Tax Act defines gross income and income in a way which establish that income can be generated by a brand or a trademark.

Counsel for the main appellant averred, that, the Exchange Control Act allowed the charging of these fees and sets an upper limit of 3 percent.

The appeals raise the following issues for determination:

1. Whether or not the court a quo correctly found, that, the legislative intent behind the Income Tax Act was to match the expenses incurred to the income produced in the same tax year and to allow the deduction of statutory prepayments which cover a period beyond the year of taxation in the tax year of payment.

2. Whether or not the court a quo erred in ordering the Commissioner to add back to the main appellant's taxable income deductions for consumables used to make an income in the year of taxation.

1. Whether or not the court a quo erred in allowing the deduction of royalties by the main appellant when it was not a party to the agreement between the Dutch company and its holding company for the use of the Dutch company's brands and trademarks.

2. Whether the court a quo erred when it allowed the main appellant's deduction of payments of technical services without resolving whether or not such deductions contravened section 98 of the Income Tax Act.

3. Whether the court a quo erred when it allowed the main appellant's deduction of US$603,792 for inventory revaluation.

4. Whether or not the court a quo was correct in reducing to 10 percent the 50 percent penalty imposed and waiving in full the interest charged.

It must be stressed, that, the Special Court for Income Tax Appeals is not a court of appeal in the strict sense because when it hears these appeals, it is a re-hearing of the matter and it exercises its own discretion. It can even hear and rely on evidence and submissions which were not placed before the Commissioner.

This position was stated in Sommer Ranching (Pvt) Ltd v Commissioner of Taxes 1999 (1) ZLR 438 (SC)…, where GUBBAY CJ emphasized that:

“Presently, it is well settled that in an appeal against a decision where the Commissioner exercised a discretion, the Special Court is called upon to exercise its own original discretion. Nor is it restricted to the evidence which the Commissioner had before him. The appeal to the Special Court is not only a rehearing, but, can involve the leading of evidence and the submission of facts and arguments of which the Commissioner was unaware: see also Commissioner for Inland Revenue v da Costa 47 SATC 87 (A) at 95; 1985 (3) SA 768 (A) at 775B-G; K v Commissioner of Taxes 1993 (1) ZLR 142 (S) at 147B-F; 55 SATC 276 (ZS) at 281.”

The appeal before the court a quo was therefore not merely a review of the correctness of the Commissioner's determination, but, the court was required to exercise its own independent discretion unaffected by that of the Commissioner....,.

It is the cross appellant's contention, in its first ground of appeal, that, the court a quo erred in allowing the deduction of royalties paid by the main appellant in terms of an agreement which did not relate to it but to Delta Corporation (Private) Limited, its holding company.

It further contented, that, the brands and trademarks for which royalties were being paid do not produce income and are therefore not allowable deductions in terms of section 15(2)(a) of the Income Tax Act.

Counsel for the main appellant argued, that, brands and trademarks produce income and are deductible in terms of section 15(2)(a) of the Income Tax Act.

The court a quo, in determining this part of the main issue, said:

“Mr Magwaliba argued that trademarks, without marketing and promotion, were worthless and incapable of producing any income. I agree with Mr Tivadar, that, that contention is incorrect for several reasons. The trademark or brand embodies the appearance, prestige, goodwill, reputation and taste of the trademarked beverage. In my view, the product and the trademark are indivisible.”

I respectfully agree with the reasoning of the court a quo.

A product's standing and marketability is enhanced by its trademark which has acquired a reputation and become desirable on the market.

The trademarks in issue are of international repute.

They, in my view, add value to the main appellant's beverages and make it possible for the appellant to make an income from the trademarked products.

It is apparent from the various agreements entered into between the franchisors and the holding company, that, what was being sought was to benefit from the reputation of the international brands and trademarks.

In respect of the royalties, the issue is whether or not the main appellant was a party to the agreements on the royalties which were to be paid for, or had ratified the agreements entitling it to claim its payments for them as deductions in its tax returns.

A reading of the record establishes, that, the agreements in terms of which royalties were payable were entered into by Delta Corporation or its predecessors in title and there is no specific mention of the appellant.

There is, however, mention of Delta Corporation's subsidiaries. It is common cause that the main appellant is a subsidiary of Delta Corporation (Private) Limited.

The main appellant sought to produce minutes of its Board of Directors to prove that it had ratified the contract in terms of which royalties were due.

The court a quo disregarded them as they had not been procedurally produced.

It was however the cross appellant's case, that, if there existed a resolution to the effect that the appellant ratified the agreement, such ratification would put the appellant's case beyond doubt.

However, of importance, and not refuted by the cross appellant, is the fact that the authenticity of the Administrative, Technical and Contractual Service Agreement was proved before the court a quo through the evidence of the main appellant's witness.

In its judgment, the court a quo, commenting on this issue, said:

“It seems to me, that, the authenticity of the Administrative, Technical and Contractual Service Agreement, of 8 February 2008, was established by the sole witness's evidence.

In that agreement, the appellant ratified the royalty agreement concluded by the holding company and accepted the extension of the 'user pays' principle to it. It accepted that the royalty agreement was contracted on its behalf. It was agreed that it was the sole user of the know-how and the three trademarks to which the royalty agreement related.

It does not seem to me, that, the respondent can properly protest, on behalf of the licensor, on the use of the know how and trademarks and the concomitant payments arising therefrom.

In my view, the agreement between the appellant and the holding company was valid and binding. It was not impugned by the respondent.

The appellant incurred the unconditional legal obligation to pay the licensor in terms of the Administrative, Technical and Services Agreement concluded with the holding company and the Royalty Agreement concluded between the holding company and the Dutch company.”…,.

The court a quo, relying on the evidence of the main appellant's witness, found the agreement, dated 8 February 2008, valid and binding.

This finding, and the cross-appellant's concession, proved that the deduction of royalties was in terms of the law.

This is an appeal against the judgment of the High Court (“the court a quo”) handed down on 5 June 2019 wherein the appellant's application to set aside an arbitral award was dismissed for lack of merit.

After hearing argument from both parties and considering the submissions made, the court dismissed the appeal.

The court indicated that reasons for the decision would follow in due course. These are the reasons.

The background of the dispute is that the first respondent was the registered owner of a sporting complex known as Harare Sports Club, which it leased to the appellant, then known as Zimbabwe Cricket Union, through a Notarial Agreement of Lease (“the lease”) signed on 16 July 1999.

At the time, the Zimbabwe dollar was the official currency in the country.

The rental payable was fixed in that currency at $40,000 per month.

In terms of clause 3(c) of the lease, the rent was to be escalated on an annual basis, at a rate to be agreed between the parties. In terms of clause 20 of the lease, in the event that the parties failed to agree on the rent, the rental was to be determined and set by an independent arbitrator appointed by mutual agreement between the parties.

The decision of the arbitrator was to be final and binding on the parties.

When the multi-currency system was introduced, at the beginning of 2009, the parties failed to agree on the rent chargeable in foreign currency.

The matter was referred to arbitration in terms of clause 3(c) of the lease.

The parties could not agree on the appointment of the arbitrator.

The first respondent made an application to the court a quo seeking an order authorising the Commercial Arbitration Centre to appoint the second respondent as the arbitrator.

The application was made in terms of Article 11(4) of the United Nations Commission on International Trade Law (“the UNCITRAL Model Law”) as set out in the First Schedule to the Arbitration Act [Chapter 7.15] (“the Arbitration Act”).

Article 11(4) of the Model Law recognises the right of the parties to agree on a procedure of appointing an arbitrator but provides, that, should they fail to agree on the procedure to be followed, the arbitrator may be appointed by the High Court upon request of either party.

The appellant opposed the application, arguing that Article 11(4) of the UNCITRAL Model Law empowers the High Court to appoint an arbitrator of its own accord.

The contention was that the High Court had no power to delegate the authority to appoint an arbitrator to another body, such as the Commercial Arbitration Centre.

The appellant also argued, that, the dispute over the appropriate rental for the property was governed by the Commercial Premises (Rent) Regulations, Statutory Instrument No.176 of 1983 (“the Rent Regulations”) and, as such, should be determined by the Commercial Rent Board.

The appellant further argued, that, clause 3(c) of the lease was invalid by virtue of section 29 of the Rent Regulations.

Section 29 of the Rent Regulations provides, that, any agreement by which any party purports to limit his or her or its right to proceed under the Rent Regulations for the determination of a fair rent or the variation thereof is void.

The court a quo was not persuaded by the argument. It was also not persuaded by the argument that it had no authority to delegate the power to appoint an arbitrator to the Commercial Arbitration Centre.

It held, that, the parties were bound by the procedure for the resolution of the dispute arising from the contract they had agreed upon.

The court a quo made the order directing the Commercial Arbitration Centre to appoint the second respondent as the arbitrator in the dispute between the parties.

As a result of the order of the court a quo, the second respondent was appointed the arbitrator in the dispute regarding the rentals.

Having heard the matter, he issued the arbitral award which is the subject of the appeal.

Two applications were made to the court a quo. They were consolidated for purposes of hearing and the determination of the issues raised.

In the first application, the appellant sought the setting aside of the arbitral award in terms of Article 34 of the UNCITRAL Model Law. In the second application the first respondent sought the registration of the award in terms of Article 35 of the UNCITRAL Model Law.

The court a quo was of the view, that, a party to arbitration cannot approach it for review of the arbitral award on the ground that the arbitrator made an incorrect decision. It held that the courts only interfere with an arbitral award where the reasoning or conclusion goes beyond mere faultiness or incorrectness. The courts only interfere with an arbitral award which can be regarded as constituting a palpable inequity, so far-reaching and so outrageous in its defiance of logic or acceptable moral standards as to cause a fair-minded person to regard it as unbearably hurting all sense of justice and fairness.

The court a quo further expressed the view, that, the decision that had been reached by the second respondent was supported by the facts. It held that the second respondent applied his mind to the matter and came to a conclusion which was not contrary to the public policy of Zimbabwe.

The application for setting aside the arbitral award was found to be meritless and dismissed. Consequently, the application for the registration of the arbitral award was granted.

Dissatisfied with the decision of the court a quo, the appellant noted the appeal.

The main argument, on appeal, was that the court a quo misdirected itself in finding that the second respondent's award on the rentals payable was not susceptible to being set aside. It was also argued that the court a quo misdirected itself when it endorsed a formula by the second respondent for rent variation other than the one contemplated by the parties in terms of the lease. The contention was that the second respondent had no authority to determine the issue of rent variation in terms of a formula other than the one contemplated by the parties.

The first respondent argued, that, the decision of the court a quo was un-impeachable because the appellant had not challenged the second respondent's ruling on whether he had jurisdiction to hear the matter. It was also argued that the appellant had failed to meet the required standard for proving that the arbitral award was in conflict with the public policy of Zimbabwe.

The issue for determination was whether the appellant met the requirements of Article 34 of the UNCITRAL Model Law. Article 34 provides as follows:

“Application for setting aside as exclusive recourse against arbitral award

(1) Recourse to a court against an arbitral award may be made only by an application for setting aside in accordance with paragraphs (2) and (3) of this article.

(2) An arbitral award may be set aside by the High Court only if —

(a) The party making the application furnishes proof that —

(i) A party to the arbitration agreement referred to in Article 7 was under some incapacity, or, the said agreement is not valid under the law to which the parties have subjected it, or, failing any indication on that question, under the law of Zimbabwe; or

(ii) The party making the application was not given proper notice of the appointment of an arbitrator of the arbitral proceedings or was otherwise unable to present his case; or

(iii) The award deals with a dispute not contemplated by or not falling within the terms of the submission to arbitration, or contains decisions on matters beyond the scope of the submission to arbitration, provided that, if the decisions on matters submitted to arbitration can be separated from those not so submitted, only that part of the award which contains decisions on matters not submitted to arbitration may be set aside; or

(iv) The composition of the arbitral tribunal or the arbitral procedure was not in accordance with the agreement of the parties, unless such agreement was in conflict with a provision of this Model Law from which the parties cannot derogate, or, failing such agreement, was not in accordance with this Model Law; or

(b) The High Court finds, that —

(i) The subject-matter of the dispute is not capable of settlement by arbitration under the law of Zimbabwe; or

(ii) The award is in conflict with the public policy of Zimbabwe.

(3) An application for setting aside may not be made after three months have elapsed from the date on which the party making that application had received the award, or, if a request had been made under Article 33, from the date on which that request had been disposed of by the arbitral tribunal.

(4) The High Court, when asked to set aside an award, may, where appropriate and so requested by a party, suspend the setting aside proceedings for a period of time determined by it in order to give the arbitral tribunal an opportunity to resume the arbitral proceedings or to take such other action as in the arbitral tribunal's opinion will eliminate the grounds for setting aside.

(5) For the avoidance of doubt, and without limiting the generality of paragraph (2)(b)(ii) of this Article, it is declared that an award is in conflict with the public policy of Zimbabwe if —

(a) The making of the award was induced or effected by fraud or corruption; or

(b) A breach of the rules of natural justice occurred in connection with the making of the award.”

The court a quo held, that, the arbitral award could not be found to be in conflict with public policy of Zimbabwe because the second respondent did not escalate the rent in terms of the parties agreement.

In ZESA v Maphosa 1999 (2) ZLR 452 (S)..., it was stated that:

“Under Article 34 or 36, the court does not exercise an appeal power and either uphold or set aside or decline to recognise and enforce an award by having regard to what it considers should have been the correct decision. Where, however, the reasoning or conclusion in an award goes beyond mere faultiness or incorrectness and constitutes a palpable inequity that is so far reaching and outrageous in its defiance of logic or accepted moral standards that a sensible and fair minded person would consider that the conception of justice in Zimbabwe would be intolerably hurt by the award, then, it would be contrary to public policy to uphold it.

The same consequence applies where the arbitrator has not applied his mind to the question or has totally misunderstood the issue, and the resultant injustice reaches the point mentioned above.”

The position is settled, that, a party to arbitration cannot come to court because the arbitrator was wrong.

The allegation in the court a quo was that the second respondent's decision to enforce a clause in the agreement requiring the parties dispute over the escalation of rent to be submitted to the arbitration procedure was a breach of section 29 of the Rent Regulations.

Section 29 of the Commercial Premises (Rent) Regulations, SI176 of 1983 (the Rent Regulations) provides:

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

The court a quo held, that, the Rent Regulations were not applicable because cricket activities did not relate to commercial enterprises.

The order of the court a quo was not appealed against.

The second respondent was therefore bound to perform his duties. The second respondent had the power to act in the manner he did.

This judgment is a two-in-one.

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

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

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

The award itself was delivered on 28 August 2018.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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