Appeal, Leave to Appeal, Leave to Execute Pending Appeal re: Grounds of Appeal iro Belated Pleadings ito Approach

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SC59-16 : ZIMRE PROPERTY INVESTMENTS LIMITED vs SAINTCOR (PVT) LTD t/a V. TRACK and JOHN SHUMBA
Ruled By: ZIYAMBI JA, GARWE JA and GOWORA JA

In a judgment handed down in January 2014, the court a quo upheld the plea of prescription raised by the respondents, and, consequently, dismissed the claim against the respondents with costs.Against that order, the appellant now appeals to this court.BACKGROUNDIn October 2012, the appellant, as plaintiff, issued summons against both ...

In a judgment handed down in January 2014, the court a quo upheld the plea of prescription raised by the respondents, and, consequently, dismissed the claim against the respondents with costs.

Against that order, the appellant now appeals to this court.

BACKGROUND

In October 2012, the appellant, as plaintiff, issued summons against both respondents before the High Court, Harare, claiming payment of the sum of $30,094=98 being arrear rentals in respect of the respondents tenancy of premises known as Shop 5, Zimre Centre, Corner Kwame Nkrumah Avenue and Leopold Takawira Street, Harare.

The second respondent had bound himself as surety and co-principal debtor in respect of the first respondent's indebtedness.

In their plea, the respondents, as defendants, raised the defence of prescription. More specifically, they averred, that, in instituting proceedings on 19 October 2012, more than three years after the debt became due, the claim had become time-barred.

The plea was not set down for hearing. Instead, the defendants pleaded over to the merits in the same plea.

In its replication, the appellant denied that the claim had prescribed. It averred, that, the first defendant had, on 22 October 2009, acknowledged the debt and had undertaken to pay the outstanding amount in full by 10 November 2009.

There was no rejoinder by the respondents.

In a joint pre-trial conference minute, the parties agreed, that, the issues requiring determination at trial were:

(a) Whether the plaintiff's claim had prescribed;

(b) Whether the first respondent had breached the lease agreement by failing to pay rental and other costs;

(c) Whether the respondents were liable to pay the sum of US$30,094=98 together with interest and costs of suit;

(d) Whether there had been mutual termination of the agreement between the parties and whether the appellant had unlawfully and unilaterally ejected the respondents from its premises; and

(e) Whether such conduct had resulted in the respondents suffering damages “in respect of the first respondent's assets and business” and, if so, the quantum thereof.

PROCEEDINGS BEFORE THE COURT A QUO

At the hearing of the matter, the respondents, through their lawyer, sought the leave of the court to deal with the issue of prescription first and lead evidence on it.

Despite opposition from the appellant, the court a quo decided that the issue of prescription be determined first, and, thereafter, depending on the outcome, the court would again hear evidence on the remaining issues.

In its judgment, the court a quo was of the view, that, the issue that fell for determination was the authenticity of the letter purportedly written by one Annet Mbedzi on behalf of Saintcor Holdings in October 2009.

In this regard, it made a number of observations.

The letter was not written on any letterhead, unlike in previous correspondence; it reflected the appellant's postal address; the letter was also written on behalf of Saintcor Holdings, a company both parties were agreed does not exist and was not a party to the lease agreement; the letter was addressed to a Mr Muringani, but, the name had been cancelled in black ink and in its place the name Muringi inserted; nowhere in the letter is it suggested that Saintcor Holdings was acknowledging indebtedness on behalf of Saintcor (Pvt) Ltd.

On a consideration of all these features, the court a quo concluded, that, the letter had not been written on behalf of the first respondent.

Consequently, the court upheld the plea of prescription and dismissed the plaintiff's claim with costs, hence this appeal.

GROUNDS OF APPEAL

In its grounds of appeal, the appellant has attacked the decision of the court a quo on the basis that it:

(a) Erred in fact and at law in holding that the appellant's claim had prescribed;

(b) Misdirected itself by holding that the letter that was received by the appellant on 22 October 2012 was not authentic;

(c) Misdirected itself by making a finding that the author of the letter that was received by the appellant on 22 October 2009 did not have authority to author the same.

It is apparent from the above grounds, that. it is the conclusion reached by the court a quo, that the letter in question had not been written on behalf of the respondent that the appellant is challenging.

PRELIMINARY ISSUES RAISED BY THE RESPONDENTS

In their heads of argument, the respondents raised two points in limine:

(i) The first was that the judgment of the court a quo reflects three different dates as the dates when the judgment was handed down.

The date of the judgment reflected in the Notice of Appeal is at variance with the date appearing ex facie the judgment itself, and, consequently, there has been no compliance with Rule 29 of the Rules of this Court.

(ii) Secondly, the relief sought is defective as it seeks to substitute the decision of the court a quo with one referring the matter back to the court a quo itself.

In his response, counsel for the appellant drew the attention of the court to a letter from the Registrar of the High Court which states, that. the ex-tempore judgment was handed down on 10 February 2015, which is the date appearing in the Notice of Appeal.

On the prayer, he conceded, that, the wording was inelegant but argued that the relief sought was clear. He submitted that the inelegance does not invalidate the appeal as ultimately the court will make an order it deems appropriate in the circumstances.

After hearing argument on the two preliminary issues, this court was of the view, that, the issues be rolled over for determination together with the issues that arise on the merits.

APPELLANT'S SUBMISSIONS ON APPEAL

In both his heads of argument and oral submissions, counsel for the appellant raised the following issues:

(i) First, that the judgment of the court a quo does not derive from the pleadings.

(ii) Second, the appellant's cause of action was predicated upon a valid cancellation of the lease agreement. Such cancellation was effected on 18 November 2009 and the cause of action would have accrued on that day. Therefore, when the appellant issued summons on 22 October 2012, the debt had not prescribed.

(iii) Third, that the appellant would have had no reason to cause the letter of 22 October 2012 to be generated. Once it had accepted that the letter had not been generated by the appellant, the court should have concluded that the letter had indeed been authored by the respondents.

(iv) Fourth, that the second respondent knew how to contact Annet Mbedzi, the author of the letter in question. Annet Mbedzi had been involved in the goings-on at the premises of the first respondent, and yet both respondents had not found it proper to call him.

(v) Lastly, counsel for the appellant submitted, that, it was improper for the court to have heard evidence piecemeal. Once the plea of prescription had not been set down and the respondent had then proceeded to plead over to the merits, the court should have heard evidence on all the issues and an assessment of the credibility and integrity of the witnesses undertaken only after all the evidence had been led.

RESPONDENTS SUBMISSIONS ON APPEAL

In response, counsel for the respondents made the following submissions:

(i) First, that, what is being attacked by the appellant are findings of fact which cannot be interfered with on appeal in the absence of a finding of irrationality on the part of the trial court.

(ii) Second, that, the court a quo was correct in its findings that the letter received by the appellant on 22 October 2009 had not been written by or for the respondents. This is because the appellant had admitted that, by that date, the first respondent had been evicted from the premises, and, consequently, the first respondent would not have used that address in correspondence with the appellant.

(iii) Third, that, the appellant has not established a lawful basis for the suggestion that the judgment does not derive from the pleadings as no leave of the court had been sought to advance argument on this ground, contrary to the Rules of this court. In any event, the respondents, in their plea, had placed prescription in issue.

(iv) Lastly, that, the debt did not become due on cancellation since rent was due monthly in advance, and, therefore, the cause of action arose whenever such rental was not paid on due date. The appellant had, in any event, evicted the first respondent in August 2009 for non-payment of rent and the “debt” included outstanding rentals up to the date of such eviction.

ISSUES FOR DETERMINATION

It is clear from the above, that, a number of issues arise before this court. These will be dealt with in turn....,.

SUBMISSION BY THE APPELLANT THAT JUDGMENT DOES NOT DERIVE FROM PLEADINGS

Counsel for the appellant argued, that, the judgment of the court a quo does not derive from the pleadings.

In particular, he drew attention to the allegation in the declaration, that, the respondents had acknowledged their indebtedness, which acknowledgment the respondents accepted in their plea but which they alleged had been actuated by duress and undue influence.

How, in these circumstances, the court found that there had been no acknowledgment and that the acknowledgment relied upon was fraudulent baffles the mind.

In response, counsel for the respondents has taken two points:

(i) First, that this argument does not flow from any of the grounds of appeal; and

(ii) Secondly, that, in any event, the judgment does in fact derive from the pleadings.

I agree with counsel for the respondents in both respects.

There are three grounds in the appellant's Notice of Appeal and none of them deal with the submission.

Rule 32(2) of the Rules of this court is clear in this regard. An appellant shall not be heard in support of any ground of appeal not set out when the appeal was entered, unless leave of the court is first sought and granted.

Further, in terms of subrule 3, an applicant may apply to amend the grounds of appeal either before or at the hearing of the appeal.

This was not done in the present matter.

Therefore, the appellant cannot be allowed to raise this argument for the first time in heads filed before this court.

HH99-18 : C F (PVT) LTD vs ZIMBABWE REVENUE AUTHORITY
Ruled By: KUDYA J

This is an appeal against four amended income tax assessments number 20211442 for the year ending 31 December 2009; 20211443 for the year ending 31 December 2010; 202211446 for the year ending 31 December 2011; and 20211448 for the year ending 31 December 2012 that were issued against the appellant by the respondent on 27 June 2014….,.

On 25 July 2014, the appellant objected to the amended assessments in terms of section 62 of the Income Tax Act [Chapter 23:06]. On 22 October 2014, all the objections were disallowed save for a few relating to penalties.

The appellant gave notice of its intention to appeal on 30 October 2014 and duly filed the present appeal on 18 December 2014.

The appellant called the evidence of two witnesses, an independent tax consultant, LM, who worked for the respondent for the 16 years to 2006 and its Managing Director. In addition, it produced four voluminous documentary exhibits in excess of 500 pages, exhibits 1 to 4.

The respondent called its Chief Investigations Officer, OM, who has held that office since 2011 but with a total of 14 years experience, produced a 9 paged documentary exhibit, exhibit 5, and relied on the mandatory R11 documents.

Background

The appellant was incorporated on 29 September 1995 and underwent two name changes, on 24 April 1996 and 9 October 2014….,.

The second name change was precipitated by the acquisition of the South African registered sister company by the appellant's holding company on 1 June 2005.

Sometime in 2010…, the respondent commenced the tax compliance investigation on the appellant that resulted in the amended tax assessments that gave rise to this appeal. The appellant's main business activities in the four years in question were in the importation, distribution, and marketing of motor vehicles and spare parts of a specified brand….,.

The 1996 Distributor-Assembler Agreement

Initially, on 24 June 1997, the appellant entered into a detailed 53 article distributor-assembler three year agreement, the original agreement, with NML, a Japanese conglomerate engaged in the development, manufacture, and assembly and worldwide distribution and sale of an international brand of various models of motor vehicles and spare parts, retroactively from 1 April 1996….,.

The appellant had access to the conglomerate's trademarks, trade names, and engineering technology and was authorised to purchase, manufacture, assemble, market, distribute, and sell certain models of the brand, knocked down components, and spare parts through a network of dealers appointed by the appellant and approved by the conglomerate in Zimbabwe.

The ordering, production, shipment prices, and payment of the vehicles and components, in an amount sufficient to cover the price, was regulated by Articles 5 to 7 of exhibit 3….,.

The appellant met the full cost and expenses of the shipment and demurrage, and storage costs of the vehicles and spare parts. The risk for loss or damage passed to the appellant once the goods crossed the ship's rail at the port of shipment - but ownership and title of the goods was retained by the conglomerate until the payment obligation had been discharged.

It was discharged by payment into an L/C bank account opened in the name of the conglomerate by a bank acceptable to the conglomerate by irrevocable letters of credit at sight in favour of the conglomerate at which point the appellant simultaneously received the shipping documents for the relevant goods through that opening bank.

Because the timelines for ordering and the confirmation of the orders and payment preceded the production of the vehicles, ownership passed to the appellant on delivery of the vehicle FOB past the ship's rail at the port of shipment.

The appellant was solely responsible for securing Government licences and permits required to complete payments for and importation of the ordered goods….,.

The terms and conditions contemplated a cash before delivery sale.

The conglomerate could export and deliver to, and sell in Zimbabwe, brand vehicles in its own name through the agency of the appellant and pay the appellant for the services rendered.

The conglomerate played an active advisory role in the establishment of the appellant's business and was entitled to receive prescribed mandatory reports at specified periods and to inspect the appellant's operations.

The appellant undertook to maintain sufficient working capital and investment capital to enhance its business activities.

Each party was, in terms of Article 39-2, responsible for any and all expenditure incurred and assumed in the performance of its duties, obligations, and responsibilities.

Article 44 provided that:

“This agreement does not constitute either party as the agent or legal representative of the other party for any purpose whatsoever. Neither party is granted any expressed or implied right or authority to assume or to create any obligation or responsibility on behalf or in the name of the other party or to bind the same in any manner whatsoever.”

The appellant was also required to purchase a specified minimum number of vehicles, gain market share, and, in the event of a decline due to circumstances beyond its control, implement agreed counter measures to arrest the decline or risk termination of the agreement.

It appears to me, that, these were standard terms and conditions found in international contracts for the facilitation of international trade as demonstrated by their striking similarity with the conditions found in Lendalease Finance (Pty) Ltd v Corporacion de Mercadeo Agricola & Ors 1976 (4) SA 464 (A) especially in regards to the payment arrangements and the passing of both risk and ownership.

The 1 August 2007 Memorandum of Understanding

The appellant and the related party…, whom I shall refer in this judgment as the intermediary, signed a memorial of the procedures for importation of vehicles into Zimbabwe in the Memorandum of Understanding dated 1 August 2007.

The intermediary was required to place monthly production orders with the brand suppliers. The importation value of the consignment was reflected in a manual invoice issued by the intermediary to the appellant. The vehicles were imported into Zimbabwe and held in the appellant's bonded warehouse as consignment stock with the intermediary retaining ownership of the vehicles until payment was made. Once payment was made, the invoice was stamped by customs officials and duty and other imposts paid for the consignment by a clearing agent before ownership was transferred to the appellant. The appellant, in turn, invoiced and transferred the vehicles to an authorised dealer for sale.

The Distribution Agreement of 25 April 2011

On 25 April 2011, the appellant and the conglomerate entered into a “Distribution Agreement”…, consisting of 39 Articles with retroactive effect…, from 1 February 2007.

It appeared to be a reproduction of an incomplete Distribution Agreement dated 31 January 2007 that was only signed and initialled by the appellant's Managing Director….,.

It substituted the original agreement.

The preamble, structure, and, in most respects, the contents, mirrored word for word the original agreement. The noticeable change was the wholesale removal of the right to purchase knocked-down kits for assembling from and the transfer of technological assistance and assembly by the conglomerate to the appellant.

Articles 21, 22 and 23 mirrored word for word Articles 5, 6 and 7 of the original agreement in respect of the ordering, production, and shipment of the vehicles and spare parts.

Article 24, like Article 10 in the original agreement, dealt with the supply of spare parts whose purchase prices were computed on a cost, insurance and freight (CIF) or free on board (FOB) basis derived from a price list provided by the conglomerate.

The grounds for termination were generally similar to those in the original agreement.

The Memorandum on Sales and Purchase of the Conglomerate Vehicles of 25 April 2011

The appellant and the conglomerate entered into a memorandum on Sales and Purchases of brand vehicles with the intermediary, retroactive from 1 February 2007, soon after signing the Distribution Agreement.

The appellant appointed and the conglomerate approved the appointment of the intermediary as the intermediary for the sale and purchase of the vehicles from the conglomerate under the Distribution Agreement.

The three parties agreed that the intermediary would purchase the vehicles from the conglomerate and sell them to the appellant.

The parties all incorporated the ordering, pricing, and payment and supply of spare parts provisions in Articles 21, 23 and 24 of the Distribution Agreement. They further agreed that any violation or default of those provisions, by the intermediary, would be ascribed to the appellant.

The Management Services Agreement between the Appellant and the Intermediary of 2 March 2009

On 2 March 2009, the appellant and the intermediary entered into a Management Services/Technical Services Agreement which was governed by the laws of Zimbabwe and took effect on 1 March 2009.

They were motivated by the introduction of the multi-currency financial regime in Zimbabwe. It was to run for an indefinite period. The intermediary undertook to:

“Provide administrative services, financial services and support and logistical services and support to help appellant achieve its goals in terms of gaining market share, growth and profitability…, ensure that new developments and systems will be properly communicated together with appropriate facilitation of technical support, system materials and training…, (and) be available to provide help and guidance on any aspect of the business mentioned, at the request of appellant.”

In regards to the computation of the fees, the parties agreed that:

“The intermediary will calculate the fees based on both the turnover reported by appellant and also the level of input that has been provided in terms of this agreement. The fees to be provided for shall be 2% of turnover; however, this will not necessarily be the amount finally invoiced. The amount finally invoiced shall not exceed 4% of turnover.”

And, in respect of payment, they agreed that:

“Payment of the management fees shall ordinarily be made in the year following that on which the fees have been based on receipt of an invoice from the intermediary. For cash flow purposes, it will be permissible to make part payments, but, at least two half-yearly payments will be required.”

The implementation and operation of the agreements

The evidence of the appellant's Managing Director was that the intermediary, a Mauritian registered short-term credit financier interposed between the conglomerate and the appellant in the purchase of the vehicles and spare parts destined to Zimbabwe.

Customers in Zimbabwe would place an order on the brand model of their choice, either to the appellant or an approved dealer appointed by the appellant. The appellant would group the orders and submit a bulky order of the required stock of vehicles, four (4) months in advance, to the intermediary, which, in turn, placed orders with the conglomerate.

The conglomerate would build the ordered vehicles for the intermediary.

The intermediary would purchase the vehicles, in its own name, from the conglomerate, and consign them directly to the appellant's bonded warehouse in Zimbabwe.

The intermediary retained ownership of the consignment in bond until it was paid.

Ownership vested in the appellant upon payment of the purchase price equivalent to the value for duty purposes.

Thereafter, the appellant would, where applicable, pay customs duty, surtaxes, and VAT based on the agreed value, through a clearing agent, before the consignment was released from the bonded warehouse and delivered to the approved dealer and end user.

The appellant used to import stock from a South African related party and the conglomerate under value rulings 18 and 29 of 2001 before the advent of the French holding company. These were replaced by value ruling 15 of 2007, on 5 November 2007, following upon protracted negotiations between the appellant and the respondent that commenced on 26 March 2006….,.

A sample of the documents used in the consignment of the vehicles from the intermediary to the appellant were captured on pp14 to 38 of exhibit 2 and pp1 to 9 of exhibit 5.

These were commercial invoices, telegraphic transfers, and Zimra certificates of origin, bills of entry, and customs clearance certificates.

These commercial invoices…, denoted the intermediary as the supplier and the appellant as the purchaser and consignee.

The vehicles were fully described by model, chassis and engine number, colour, and year of manufacture.

The order number, dates of issue and delivery, method of shipment, origin and destination together with the terms of payment, the free on board purchase price, the cost of freight, insurance and total CIF price, denominated in United States dollars, were also indicated.

The certificates of origin…, certified that each vehicle was manufactured by the supplier in South Africa and bore the same information contained in the commercial invoice in regards to the supplier, consignee, and description of the vehicle.

The bills of entry…, were completed by the clearing agent and identified the intermediary as the exporter or consignor.

They identified the country of supply and destination, the description, and total invoice value of each vehicle separately from the freight and insurance charges.

The customs clearance certificates…, for each vehicle were issued by Zimra.

They contained the full description of the vehicle shown in the commercial invoice. The cost, freight, and insurance price for each vehicle sold was captured in a combined invoice…, issued by the intermediary to the appellant, which the appellant submitted to its bankers with instructions to pay the intermediary by telegraphic transfer….,.

The sequence of dates on these documents showed that an advance payment by telegraphic transfer was made on 12 February 2007, the certificate of origin was presented on 15 April 2007 while the commercial invoice was issued on 24 April 2007 and the vehicle was cleared by a bill of entry at the port of entry on 9 May 2007. Thereafter, a customs clearance certificate was issued on 19 June 2007.

It was common ground, that, the intermediary's consignment was delivered to Zimbabwe and warehoused by the appellant in bond.

It was common cause, that, the appellant did not suffer any exposure to foreign currency risk or credit risk since the end users were required to make payment before the relevant vehicles were dispatched from South Africa…, in 2009 and 2010.

However, in 2011 and 2012, the appellant was exposed to foreign currency risk through the importation of inventory, the liability of which was settled in South Africa in a carrying amount of US$264,729 and US$294,956 respectively….,.

It was common ground that the appellant received vehicle prepayments in the sum of US$2,064,187…, in 2010 that was subsequently revised to US$4,693,512…, in the 2011 financial statements, US$3,086,165 in 2011…, and US$755,673…, in 2012.

Summary of the Tripartite Arrangement

The nature and scope of the tripartite arrangement between the parties was concisely set out by counsel for the respondent in paragraph 5 of his written heads of argument.

A customer placed an order to the appellant through an approved dealer appointed by the appellant. The appellant placed orders with the intermediary, which, in turn, procured the motor vehicles from the conglomerate.

The appellant received the motor vehicles in Zimbabwe and kept them in a bonded warehouse.

Ownership of the motor vehicles remained with the intermediary until duty had been paid by the appellant.

The purchase of a motor vehicle by a customer resulted in the payment of duty to the respondent by the appellant before the vehicle was released to the customer.

The intermediary was paid the transaction value of the motor vehicle, which, according to the letter of the appellant to the respondent, of 8 August 2007, included a 5% administration charge and interest of the selling price on the price list…, in which was incorporated its mark-up of between 7.5% and 10%.

The appellant was responsible for rentals, marketing expenses, and payment of duty.

It sold the vehicles to the dealers at a mark-up of 7.5% and the dealers sold the vehicle to the end customer.

Concessions made at the commencement of the appeal hearing

At the commencement of hearing, the appellant confirmed the concession first made in the letter of 19 June 2014, that, it was remiss in failing to charge the intermediary a mark-up of 7% for transit services rendered in the sum of US$2,240 for 2009, US$2,505=87 for 2010 US$2,198=13 for 2011 and US$3,273=40 for 2012 in respect of vehicles exported by the intermediary to Zambia, Malawi and Tanzania.

Again, the appellant conceded, that, it paid management fees to the intermediary when such fees were not due in the sum of US$130,000 in 2009, US$140,000 in 2010, US$256,629 in 2011 and US$140,000 in 2012.

In the same vein, the respondent conceded, that, it wrongly raised notional interest at the rate of 24% in the sum of US$97,279=92 in respect of the 2012 loan to GS and in the sum of US$106,953=12 for 2010, US$266,879=52 for 2011 and US$124,666=80 for 2012 in respect of the loans availed to ADI.

Assessment of witnesses

The appellant acted in a devious manner in regards to management fees. Its conduct amounted to a deliberate act of transfer pricing which was done with intent to avoid tax.

The production of backdated agreements gave the impression that these were created as a response to the tax investigation.

This was apparent from the purported agreement of 31 January 2007 which had the appellant's signatures only that was rejected by the respondent and resulted in the production of duly signed agreement of 25 April 2011 backdated to 1 February 2007.

The Managing Director misled the court that the appellant provided functional analysis input under duress, contrary to his letter of 12 July 2013 in which he requested two weeks within which to provide the requested information, thus affording the appellant in excess of a month from the date of the initial request.

He disputed making prepayments to the intermediary yet the financial statements, in note 17 on p71 of exhibit 1, show that US$4,693,512 was paid in 2010 and US$3,086,165 in 2011 before the vehicles were exported in bond.

He falsely averred, and thus copied the evidence adduced by the Tax Consultant in his presence, that, the audits for his company commenced in November of each year in contradistinction to the timelines indicated in the audit engagement letter.

The tax consultant prevaricated on what the respondent's generally prevailing practice in regards to provisions was.

The chief investigations officer failed to demonstrate how he arrived at the apportionment ratio he used in his functional analysis. He testified that the appellant misled the respondent by claiming ownership of the consignment stock at the time he applied for the value ruling, contrary to the contents in the letters written by the appellant at that time.

The issues referred for determination

At the pre-trial hearing of 2 June 2015, the following issues were referred for determination. In view of the concessions made by the respondent at the commencement of trial, it is no longer necessary to outline in respect of the loans advanced by the appellant to GS and ADI.

Sharing of profits/transfer pricing

1. Whether or not the respondent is precluded from adopting its current stance on this issue on account of either:

1.1 The value ruling issued by it; or

1.2 The fact that duties and taxes were assessed and paid to it on a different basis.

2. Whether the respondent is entitled to invoke section 24 of the Act to deem income to have accrued to the appellant which was not actually received by it.

Expenses relating to Leave Pay and Audit Fees

1. Whether it was proper of the appellant and open to the appellant to make provision for the costs in question.

2. Whether the respondent was precluded from issuing amended assessments by virtue of the provisions of section 47 of the Act.

Penalties

1. What, if any, penalties are payable to the respondent.

I proceed to deal with each issue in turn....,.

The practice generally prevailing

I must point out, that, this alternative ground was not raised by the appellant in the objection letter and cannot be considered unless leave, based on agreement or good cause, has been granted in terms of section 65(4) of the Income Tax Act.

The appellant did not seek leave and none was granted.

I decided to deal with the point simply because it raised an important issue regarding the use of the Assessors Handbook in determining the existence of a practice generally prevailing in the Commissioner's office....,.

The Tax Amnesty

It was common cause, that, the tax amnesty was not raised in the letter of objection of 25 July 2014 for the reason that it had not yet come into existence at that time.

The appellant raised it in paragraph 72 of its case on 18 December 2014 and the respondent responded to it in paragraph 43 of the Commissioner's case....,.

At the tail end of his oral submissions, counsel for the appellant moved the Court, in terms of the proviso to section 65(4) of the Income Tax Act, to consider the introduction of the tax amnesty argument, which had not been raised in the notice of objection, on two grounds:

(i) The first was that it was physically and legally impossible to raise it in the objection; and

(ii) The second was that such exclusion offended the appellant's constitutional right to equal treatment, protection, and benefit of the law enshrined in section 56(1) and (6) of the Constitution.

Counsel for the respondent opposed the application on the ground that the constitutional argument was constrained by the absence of evidence on the point.

In both his written and oral submissions, counsel for the appellant emphasized, that, the enactment of the tax amnesty under consideration was constitutional, but, that the denial of the tax amnesty benefit to certain categories of taxpayers was unconstitutional.

In paragraph 108 of his written heads, counsel submitted that “if the tax amnesty is to be treated as being constitutional, and the concession is repeated that it is within the terms of the Constitution permissible to grant such an amnesty, it must apply to the appellant, who therefore cannot be obliged to pay penalties and interest on any unpaid taxes raised in an amended assessment as in the present case.”

In the alternative, he urged this Court to exercise its sentencing discretion in favour of the appellant by extending the benefits embodied in the tax amnesty legislation to the appellant.

The submission is obviously raising the constitutionality of the tax amnesty.

As I understand it, the submission is really, that, the tax amnesty is unconstitutional to the extent that it fails to cover all taxpayers. Looked at from another angle, the submission is that any law that does not treat all people equally does not provide them equal benefit to the law and is therefore unconstitutional.

The fallacy of the submission becomes self-evident when viewed in this wider context.

It is simply, that, all laws that do not treat all citizens equally are unconstitutional.

But, that is not what the Constitution contemplates or even says. I think it has always been recognised that no Constitution in the world is able to provide absolute equality to all its citizens.

The test of constitutionality of an enactment is not measured against absolute rights.

I intimated in CRS (Pvt) Ltd v Zimbabwe Revenue Authority HH728-17…, that, in our law, the test of constitutionality of an enactment is measured against the provisions of section 86(2) of our Constitution.

That provision allows the enactment of laws, such as the tax amnesty or any laws which restrict such a fundamental right as section 56(1), as long as it is a law of general application which is fair, reasonable, necessary and justifiable in a democratic society based on openness, justice, human dignity, equality, and freedom.

These constitutional imperatives are, in turn, measured against all relevant factors, including the six that are enumerated in section 86(2)(a) to (f) of the Constitution.

The submission made, as to the possible infraction of section 56(1) of the Constitution, fails to address these factors.

Counsel for the appellant did not attempt to address these factors in his application for leave to introduce and rely on this ground.

He failed to show good cause for its introduction into argument.

He has failed to demonstrate the existence of a possible breach of the right to equality and equal protection and benefit of the law against the appellant and those taxpayers who have been excluded in the tax amnesty.

It seems to me, that, since the Constitution itself allows for the enactment of the tax amnesty legislation, it cannot be unconstitutional for that enactment to treat taxpayers differently.

Accordingly, I decline..., to allow the introduction of the tax amnesty argument.

CC10-22 : FRANCIS BERE vs JUDICIAL SERVICE COMMISSION and SIMBI MUBAKO and REKAYI MAPOSA and TAKAWIRA NZOMBE and VIRGINIA MABHIZA and PRESIDENT OF ZIMBABWE and MINISTER OF JUSTICE LEGAL & PARLIAMENTARY AFFAIRS
Ruled By: GARWE JCC, HLATSHWAYO JCC and PATEL JCC

This is an application lodged in terms of Rule 32 of the Constitutional Court Rules 2016, for leave to appeal against the whole judgment of the Supreme Court (the court a quo) handed down on 14 January 2022 as Judgment SC01-22.The decision of the court a quo had dismissed the ...

This is an application lodged in terms of Rule 32 of the Constitutional Court Rules 2016, for leave to appeal against the whole judgment of the Supreme Court (the court a quo) handed down on 14 January 2022 as Judgment SC01-22.

The decision of the court a quo had dismissed the applicant's appeal against the judgment of the High Court in Case No. HC2302/20.

The Background

The applicant is a former judge of the Supreme Court. He has cited seven respondents in all. The first respondent is the Judicial Service Commission. The second, third, and fourth respondents (Simbi Veke Mubako, Rekayi Maposa and Takawira Nzombe) were the members of a Tribunal that was established to inquire into the question of the applicant's removal from judicial office. The fifth respondent (Virginia Mabhiza) was the Secretary of that Tribunal. The sixth respondent is the President of Zimbabwe, while the seventh respondent is the Minister of Justice, Legal and Parliamentary Affairs.

Both the sixth and seventh respondents are cited in their official capacities.

On 3 March 2020, the applicant was suspended from judicial office following the appointment of the aforementioned Tribunal by the sixth respondent (hereinafter “the President”). The Tribunal was established to consider the applicant's suitability to hold the office of a judge. The suspension was pursuant to a resolution by the first respondent (hereinafter “the JSC”) made on 13 December 2019 to refer the question of his removal from office to the President.

The applicant was dissatisfied with the manner in which his case had been referred to the President.

Consequently, on 13 May 2020, he filed an application in terms of section 4 of the Administrative Justice Act [Chapter 10:28] alleging, that, the Judicial Service Commission (JSC) had failed to comply with section 3(1)(a) of the Administrative Justice Act by failing to act lawfully, reasonably, and in a fair manner when it gave advice to the President, in terms of section 187(3) of the Constitution.

The High Court dismissed the application before it with costs in favour of the Judicial Service Commission (JSC). The court found that the question of the applicant's alleged gross misconduct was a matter for the Tribunal to determine.

On appeal to the Supreme Court, the applicant raised five grounds of appeal, which are largely replicated in the intended grounds of appeal to this Court in the event that the instant application for leave to appeal is granted.

The Supreme Court upheld the finding of the High Court, that, the deponent to the Judicial Service Commission's opposing affidavit was lawfully authorised to do so. The court a quo also upheld the finding of the High Court, that, the applicant had failed to prove that the JSC was inquorate and functus officio at its meeting held on 13 December 2019. Lastly, the court held, that, the applicant's right to be heard had not been violated.

In the event, the court dismissed the applicant's appeal with no order as to costs.

The intended appeal before this Court is predicated on the assertion, that, the court a quo erred by avoiding an in-depth determination of various constitutional issues before it, despite having been alive to those issues.

The applicant accordingly asserts, that, the question of whether or not there was a constitutional matter before the court a quo must be answered in the affirmative. He further avers that the intended appeal to this Court does enjoy prospects of success.

The intended grounds of appeal

As paraphrased, the intended five grounds of appeal asseverate that the court a quo erred and thereby misdirected itself in the following respects:

(i) In determining that the appeal was moot when the challenge to the referral by the Judicial Service Commission (JSC), under section 187(3) of the Constitution, was that it was unconstitutional.

(ii) In not finding, that, any person who was not a member of the Judicial Service Commission (JSC) was prohibited from representing it in any application pursuant to section 187(3), and, consequently, in not finding that the JSC was not properly before the High Court.

(iii) In not finding that section 344 of the Constitution places the onus to prove that it had a quorum on the Judicial Service Commission (JSC) and not on the appellant.

(iv) In not finding that section 187(3) of the Constitution requires the Judicial Service Commission (JSC) to grant a judge the full scope of the audi alteram partem rule before sending its advice to the President.

(v) In not finding that the Judicial Service Commission (JSC) is required to determine the existence or otherwise of the jurisdictional facts under section 187(3) before sending its advice to the President.

The applicant avers that the foregoing grounds of appeal enjoy prospects of success for a number of reasons:

(i) As regards the first ground, he contends, that, mootness does not arise when a thing is void for being unconstitutional.

(ii) On the second ground, he states, that, the Constitution does not permit the Judicial Service Commission (JSC) to delegate to its Secretary the critically important duty of defending in court its advice to the President under section 187(3) of the Constitution.

(iii) With respect to the third ground, he argues, that, section 344 of the Constitution would be undermined if a constitutional body is not obliged to prove that it had a quorum and that the independence of the judiciary would be threatened by the possibility of an inquorate Judicial Service Commission (JSC) proceeding in terms of section 187(3) of the Constitution.

In relation to the fourth and fifth grounds, he avers, that, a rigorous process preceding the tendering of advice in terms of section 187(3) of the Constitution requires the full scope of the audi alteram partem rule and a finding by the Judicial Service Commission (JSC) on the existence of the jurisdictional facts contemplated in section 187(1) of the Constitution.

(iv) Lastly, the applicant asserts, that, the intended appeal is of public importance because it is central to the independence of the judiciary. He contends, that, the position of this Court on the issues raised will clarify the law and protect the Constitution.

In the premises, he prays for an order for leave to appeal to be granted.

The Judicial Service Commission (JSC), through an affidavit deposed to by its Secretary, firmly opposes the instant application.

It denies that there are any constitutional issues or matters to be decided as contemplated by Rule 32(2) of the Rules. It also asserts, that, the issues that were before the court a quo were resolved on non-constitutional bases. It further disputes the argument, that, it is in the public interest to grant leave to appeal. It is contended that the application does not satisfy the requirements for leave to appeal under Rule 32 of the Constitutional Court Rules.

The sixth and seventh respondents (President of Zimbabwe and the Minister of Justice, Legal and Parliamentary Affairs) also oppose the application through an affidavit deposed to by the seventh respondent.

In essence, it is averred, that, the court a quo did not decide any constitutional matter. Consequently, it is argued that the applicant has failed to show that his application has any prospects of success.

Both respondents pray that the application be dismissed with costs.

Applications for Leave to Appeal

Applications for leave to appeal to this Court are governed by Rule 32 of the Constitutional Court Rules. The requirements to be satisfied by an applicant seeking leave to appeal are now firmly established in the jurisprudence of the Court. They are as follows:

(i) The constitutional matter raised in the decision to be appealed against, and any other connected issues, must be clearly and concisely set out.

(ii) The applicant must intend to apply for leave to appeal against the decision of the subordinate court on a constitutional matter.

(iii) The applicant must demonstrate prospects of success on appeal.

(iv) The intended appeal must be in the interests of justice which are a paramount consideration.

See Cold Chain (Pvt) Ltd t/a Sea Harvest v Makoni 2017 (1) ZLR 14 (CC)…,.; Muza M v Saruchera N.O. & Ors CC05-19; Bonnyview Estate (Pvt) Ltd v Zimbabwe Platinum Mine (Pvt) Ltd & Anor CC06-19; Ismail v St. Johns College & Ors CC19-19; TBIC Investments (Pvt) Ltd v Mangenje & Ors CC15-20; Rita Mbatha v National Foods CC06-21; Gift Konjana v Dexter Nduna CC09-21.

I shall address each of the above requirements ad seriatim in their application to the facts and circumstances of the present matter.

Clear and concise exposition of constitutional matter

The application in casu, at its outset, relates to the requirements of Rule 32(3)(c) of the Constitutional Court Rules and proceeds to set out “the constitutional matters raised in the decision sought to be appealed against.”

These matters tally with the five grounds of appeal delineated in the draft notice of appeal. They are further elaborated in the applicant's founding affidavit.

There can be no doubt, and this appears to be common cause, that the applicant has satisfied and complied with the requirements of Rule 32(3)(c) of the Constitutional Court Rules.

Decision appealed against on constitutional matter

The more difficult question that arises herein is whether or not the decisions of the High Court and the Supreme Court, being the decisions impugned in casu, bear upon any constitutional issue or matter.

Counsel for the applicant answers that question in the affirmative.

He submits, that, the relevant constitutional matters were raised, both in the High Court and before the Supreme Court. In support of his position, he refers to several passages in the applicant's founding affidavit before the High Court and in his heads of argument before both of the subordinate courts.

Counsel for the applicant further submits, that, the fact that the Supreme Court wrote its judgment without reference to these points is irrelevant.

He nevertheless accepts, that, the mere reference to a constitutional point, whether in the pleadings or in the judgment to be appealed against, is not sufficient to satisfy the requisite test.

He is absolutely correct in that respect: see Moyo v Sgt. Chacha & Ors CC19-17; Chani v Mwayera J & Ors CC02-20.

He also contends, much less persuasively so in my view, that a constitutional matter does not cease to be so simply because there is no reference to the Constitution itself.

It is necessary to pinpoint the relevant references adverted to by counsel.

In the founding affidavit in Case No. HC2302-20 at paragraph 12, the applicant avers, that, the President can only act under section 187(3) of the Constitution, if the advice given to him is lawful in compliance with section 3(1)(a) of the Administrative Justice Act. At paragraphs 55 and 56, the applicant asserts that no jurisdictional circumstances exist that would have entitled the Judicial Service Commission (JSC) to refer the matter to the President.

In particular, he avers that the JSC does not appear to have addressed its mind at all to the grounds for removal from judicial office prescribed by section 187(1) of the Constitution. He then argues, that, if the decision to refer the matter to the President was premised on facts incapable of sustaining any of the three grounds for the removal of a judge “such a decision was grossly unreasonable and irrational.”

At paragraph 57, the applicant attacks the decision of the Judicial Service Commission (JSC) to revisit his case on the basis of new allegations without having been availed an opportunity to consider and respond to those allegations. This was in violation of the audi alteram partem rule and “the dictates of natural justice.”

At paragraphs 63, 65 and 66, the applicant avers that the JSC was both inquorate and improperly constituted when it took the decision to refer his matter to the President and the subsequent decision to suspend him.

These decisions were made outside its constitutive instruments, in particular section 189 of the Constitution, and, therefore “liable to be set aside as being unlawful and grossly irregular.”

At paragraph 68, the applicant assails the failure of the Judicial Service Commission (JSC) to place before the High Court a record of its minutes and deliberations, in keeping with its mandate under section 191 of the Constitution to conduct its business in “a just, fair, and transparent manner.”

At paragraph 70, the applicant observes that the office of a judge is sacrosanct; and, at paragraph 77, he affirms the need for the JSC to protect its judges from unmeritorious attacks on their dignity and standing.

He then concludes that the JSC's advice to the President “was contrary to section 3(1)(a) of [the Administrative Justice Act] and thus null and void”. Accordingly “the subsequent acts of [the President are a nullity and must be set aside.”

Turning to the applicant's heads of argument in the High Court, paragraphs 2 to 4 address the point, that, the Judicial Service Commission (JSC) cannot delegate its constitutional duties, in particular, the defence of its conduct under section 187(3) of the Constitution, to its Secretary or Acting Secretary. The same point is addressed at paragraphs 2 to 7 of the applicant's heads of argument before the Supreme Court.

The applicant reiterates the argument that the JSC was not properly before the High Court, as the deponent to its opposing affidavit was prohibited by the Constitution from representing it in an application brought by a judge pursuant to section 187(3) of the Constitution.

At paragraphs 11 to 17, the applicant sets out his attack on the quorum of the Judicial Service Commission (JSC) at the meeting whereat it decided to refer his matter to the President under section 187(3) of the Constitution. Reliance is placed upon section 341(1) and (2) of the Constitution pertaining to the quorum of any constitutional body.

It is argued, that, the decision of the JSC “was unconstitutional, unlawful and null and void” and that, consequently, the onus to prove that it was quorate at the meeting in question shifted to and lay upon the JSC rather than the applicant.

At paragraphs 36 to 43, the applicant canvasses the alleged failure of the High Court to determine the existence or otherwise of the jurisdictional facts under section 187(1) of the Constitution warranting the referral of the applicant's case to the President in terms of section 187(3). It is argued, that, the actions of the JSC, under section 187(3) of the Constitution, are “clearly subject to review” and that “what was before the court a quo was a challenge to the prior administrative action of advising [the President] under section 187(3) of the Constitution.”

It is further argued that the failure of the Judicial Service Commission (JSC) to “indicate the ground under section 187(1) that is being “relied on” rendered “the action under section 187(3) unconstitutional, unlawful and null and void.”

Lastly, it is submitted that “section 187(1) requires [the JSC] to first reach the conclusion that there is a prima facie case…, before acting under section 187(3)” and that “to reach the prima facie verdict, [the JSC] must carry out an adjudicative process and set out reasons for its conclusions…, before invoking section 187(3).”

Counsel for the first respondent submits, that, the application before the High Court was clearly premised on the provisions of the Administrative Justice Act. The court was not seized with any specific constitutional challenge. In essence, so it is argued, the applicant did not file any constitutional matter before the High Court or the Supreme Court.

Consequently, the doctrines of subsidiarity and avoidance come into play. Additionally, leave to appeal is a very limited right, and, in the present case, there is no basis for appealing to this Court.

Counsel for the sixth and seventh respondents adopts the same stance.

He submits, that, the applicant did not directly impugn the conduct of the Judicial Service Commission (JSC) on any constitutional ground. He filed what was essentially an Administrative Law matter and he cannot deviate from that position. Furthermore, the applicant attacks the Supreme Court for not making various findings. This shows that there was no proper basis for that court to adjudge any constitutional matter.

It is further argued, that, references to the Constitution before the High Court and the Supreme Court were purely incidental and not directly relied upon. Such references were only ancillary and in support of section 3 of the Administrative Justice Act. Accordingly, both subordinate courts were correct in not dealing with the case as involving any constitutional matter.

In reply, counsel for the applicant argues, that, where a constitutional issue arises in any litigation, the court may deal with it, and, if it does address that issue, then a constitutional appeal must lie against its decision.

Moreover, a point raising a constitutional issue may be taken at any time....,.

In section 332 of the Constitution, a constitutional matter is defined as “a matter in which there is an issue involving the interpretation, protection, or enforcement of the Constitution.”

Accordingly, a constitutional matter arises where there is an issue in dispute raising questions of law, the resolution of which requires the interpretation, protection, or enforcement of the Constitution.

In South Africa, it is settled law that a constitutional matter cannot arise for the first time on appeal when it was not available or in existence in the subordinate court. This rule was stated as follows in Prince v President, Cape Law Society & Ors 2001 (2) SA 388 (CC)…,:

“Parties who challenge the constitutionality of a provision in a statute must raise the constitutionality of the provisions sought to be challenged at the time they institute proceedings. In addition, a party must place before the court information relevant to the determination of the constitutionality of the impugned provisions….,.

I would emphasise that all this information must be placed before the court of first instance….,.

It is not sufficient for a party to raise the constitutionality of a statute only in the heads of argument, without laying a proper foundation for such challenge in the papers or in the pleadings.

The other party must be left in no doubt as to the nature of the case it has to meet and the relief that is sought. Nor can parties hope to supplement and make their case on appeal.”…,.

Similarly, the established practice of this Court is that in order to determine whether or not there was a constitutional matter before the court a quo, the dispute must be traced back to the court of origin - in this case, the High Court: see Ismail v St. Johns College & Ors CC19-19…,.

CC07-15 : DANIS KONSON vs THE STATE
Ruled By: CHIDYAUSIKU CJ, MALABA DCJ, GWAUNZA JCC, GARWE JCC, GOWORA JCC, HLATSHWAYO JCC, PATEL JCC, GUVAVA JCC and MAVANGIRA AJCC

On 3 February 2014, under Case No HB158/13, the High Court, sitting at Bulawayo, convicted the applicant of murder with actual intent to kill. After finding that there were no extenuating circumstances surrounding the commission of the offence, the court passed a sentence of death.

The background facts surrounding the applicant's conviction and sentence were the following:

The deceased and the applicant had a love relationship which had, at the time of the deceased's demise, lasted a number of years. As a measure of his love, the applicant set the deceased up in business, in the form of a shop in the rural area in which the deceased resided. The deceased was allegedly not happy with the treatment that the applicant was subjecting her to and terminated their relationship. She subsequently entered into a new relationship with another man.

The applicant was not happy with this development.

After unsuccessful attempts to resuscitate the relationship, he proceeded to her residence, accompanied by a friend and a police detail. Thereafter, the parties proceeded to the business premises where the applicant shot the deceased and the policeman after conducting enquiries on the status of the business venture. The deceased died at the scene leading to the arrest of the applicant, and, thereafter, his conviction.

An automatic appeal followed against the conviction and sentence by operation of law.

On 17 November 2014, in his appeal before the Supreme Court, the applicant alleged that the High Court had violated his right to a fair trial and applied that the matter be referred to this Court in terms of section 175(4) of the Constitution of Zimbabwe (“the Constitution”). The relevant subsection reads:

“(4) Powers of courts in constitutional matters

If a constitutional matter arises in any proceedings before a court, the person presiding over that court may, and, if so requested by any party to the proceedings, must refer the matter to the Constitutional Court unless he or she considers the request as merely frivolous or vexatious.”

The Supreme Court agreed that the request was neither frivolous nor vexatious and consequently made the following order:

“IT IS ORDERED THAT:

Two constitutional issues have arisen:

1. The appellant alleges that his right to a fair hearing, guaranteed by section 69(1) of the Constitution of Zimbabwe, was violated by the presiding Judge who descended into the arena.

2. The appellant was given a sentence which was not competent in terms of the law. In particular, he was sentenced at a time where Parliament had not enacted a law providing the circumstances in which a death sentence may be imposed in terms of section 48(2) of the Constitution of Zimbabwe.”

Before us, counsel for the applicant and the respondent are agreed, that, the application is properly before this Court.

I proceed now to consider each of the issues referred to this court for determination.

Whether the applicant's right to a fair hearing was violated

The object of a criminal trial is for the truth surrounding the commission of the offence to be established. The role of the judge is therefore an onerous one as his task is to see that justice is not only done, but that it is seen to be done.

In this exercise, he should conduct himself in such a manner that he is not viewed or perceived to have aligned himself with either the prosecution or the defence. He is not precluded from questioning the witnesses or the accused person, but, such questioning must not be framed in such a manner as to convey an impression that he is conducting a case on behalf of one of the parties. The judge must avoid questions that are clearly biased and show a pre-disposition on the part of the judge. The judge should neither lead nor cross-examine a witness.

The complaint by the applicant is that the trial court descended into the arena of conflict between himself and the State thereby violating his right to a fair trial as guaranteed by section 69(1) of the Constitution. The applicant further contends, that, the record of proceedings shows that the court was not impartial. It is argued further, that, the questioning of the applicant by the trial judge was such that, because of its frequency; length; timing; form; tone; content, it was apparent that the trial judge was hostile to the applicant.

The limits to which a judicial officer may question a witness or an accused person in a criminal trial were aptly set out by TROLLIP AJA in S v Rall 1982 (1) SA 828…, in the following terms:

“While it is difficult and undesirable to attempt to define precisely the limits within which such judicial questioning should be confined, it is possible, I think, to indicate some broad, well-known limitations, relevant here, that should generally be observed: see eg. S v Sigwala 1967 (4) SA 566 (A) at 568F-H.

1. According to the above quoted dictum of CURLEWIS JA, the judge must ensure that 'justice is done'. It is equally important, I think, that he should ensure that justice is seen to be done. After all, that is a fundamental principle of our law and public policy.

He should therefore so conduct the trial that his open-mindedness, his impartiality, and his fairness are manifest to all those who are concerned in the trial and its outcome, especially the accused: see, for example, S v Wood 1964 (3) SA 103 (O) at 105G; Rondalia Versekeringskorporasie Van SA Bpk v Lira 1971 (2) SA 586 (A) at 589G; Solomon and Anor NNO v De Waal 1972 (1) SA 575 (A) at 580H.

The judge should consequently refrain from questioning any witness or the accused in such a way, that, because of its frequency, length, timing, form, tone, contents or otherwise conveys or is likely to convey the opposite impression: cf Greenfield Manufacturers (Temba) (Pty) Ltd v Royton Electrical Engineering (Pty) Ltd 1976 (2) SA 565 (A) at 570E-F; Jones v National Coal Board (1957) 2 All ER 155 (CA) at 159F.

2. A judge should also refrain from indulging in questioning witnesses or the accused in such a way or to such an extent that it may preclude him from detachedly or objectively appreciating and adjudicating upon the issues being fought out before him by the litigants. As LORD GREENE MR observed in Yull v Yull (1945) 1 All ER 183 (CA) at 189B, if he does indulge in such questioning -

'He, so to speak, descends into the arena and is liable to have his vision clouded by the dust of the conflict. Unconsciously, he deprives himself of the advantage of calm and dispassionate observation.'

See, too, the Jones case (supra) at 159C-E: or, as expressed by WESSELS JA in Hamman v Moolman 1968 (4) SA 340 (A) at 344E, the Judge may thereby deny himself -

'The full advantage usually enjoyed by the trial judge, who, as the person holding the scale between the contending parties, is able to determine objectively and dispassionately, from his position of relative detachment, the way the balance tilts.'

The quality of his views on the issues in the case, including those relating to the demeanour or credibility of the witnesses or the accused or the relative probabilities, may, in consequence, be seriously impaired: see eg R v Roopsingh 1956 (4) SA 509 (A) at 514-5: and, if he is sitting with Assessors, that may well adversely influence their deliberations and opinions on those issues.

3. A judge should also refrain from questioning a witness or the accused in such a way that may intimidate or disconcert him or unduly influence the quality or nature of his replies and thus affect his demeanour or impair his credibility. As LORD GREENE MR further observed in Yull's case supra at 189B-C:

'It is further to be remarked, as everyone who has had experience of these matters knows, that the demeanour of a witness is apt to be very different when he is being questioned by the judge to what it is when he is being questioned by counsel, particularly when the judge's examination is, as it was in the present case, prolonged and covers practically the whole of the crucial matters which are in issue.'”

In this case, it was contended, on behalf of the applicant, that, the manner in which the learned judge in the trial conducted himself revealed hostility to the applicant.

In S v Mangezi (1) ZLR 272 (S), DUMBUTSHENA CJ commented as follows:

“It is not only when a judicial officer shows his bias that his leading or cross-examination of a witness may be condemned, it is also the fact of taking over the examination of the prosecution or defence witness that is not permissible.”

Further to the above, the applicant has contended that the intensity of questioning by the judge, whilst he was under cross-examination, was more extensive than that of the prosecutor. Whilst the prosecutor put a total of 144 questions to the applicant during his cross-examination, the questions from the judge, during the same cross examination, was a record 122. When the applicant's counsel sought to re-examine the applicant, the learned trial judge put to the applicant an additional 24 questions bringing the total number to 146.

However, it is not just the number of questions or their longevity that the applicant contests, it is also the content of the questions and the form that they took that is being complained of. Counsel for the applicant drew the attention of the court to the impugned exchanges between the court and the applicant. To illustrate the gravity of the complaint, I set out a few examples of the same.

The learned judge, after an answer to a question by the applicant, was heard to interject:

“No, no, no…, this does not make sense. What was happening to the money, you were making profits and that is why you were running the business, so what was happening to the money?”

Further on in the record, the learned judge, during the cross-examination of the applicant, also commented to an answer by the applicant in the following terms:

“And when she tells you that she was married and you did not believe her and you go there to find out if she is married, and you find the deceased coming out of the husband's house you say that is provocation? You wanted to go and find out whether she was married and you found out she was married and you still say it was provocation?”

As submitted by counsel for the applicant, the inescapable conclusion that emerges from the record is that the judge descended into the arena, and, as a consequence, he deprived himself of the detached impartiality required of a judicial officer. The fairness of the trial was clearly undermined. He had pre-judged the issues of the trial that was before him.

The remarks of HOLMES JA in S v Sigwala 1976 (4) SA 566 (AD) are apposite. At p568F-H, the learned jurist stated:

“The principle is clear. A judicial officer should ever bear in mind that he is holding a balance between the parties, and that fairness to both sides should be his guiding star, and that his impartiality must be seen to exist. There are occasions, particularly where a party is unrepresented, when the judicial officer will properly take some part in the examination of witnesses, but, in the main, and as far as is reasonably possible, he will usually tend to leave the dispute to the contestants, interrupting only when it is necessary to clarify some point in the interests of justice. Thereby, he is better able to form objective appraisals of the witnesses who appear before him, and he also avoids creating wrong impression in the minds of those present.”

Section 69(1) of the Constitution reads:

“Right to a Fair Hearing

(1) Every person accused of an offence has the right to a fair and public trial within a reasonable time before an independent and impartial court.”

One of the fundamental principles of criminal law is that a person charged with a criminal offence is presumed to be innocent until the prosecution proves that he committed the offence with which he is charged. Thus, the State has an onus to establish every element of the offence.

The rules of natural justice require that whoever takes a decision should be impartial, having no personal interest in the outcome of the case and that a decision should not be taken until the person affected by it has had an opportunity to state his case.

A judicial officer has an obligation to ensure that a trial is conducted in a manner that is fair to all parties before him. To that end, the judicial officer is required to leave the dispute to the parties before him as far as is reasonably possible, and should interrupt only when it is necessary to clarify some point in the interests of justice.

In view of the stance assumed by the learned trial judge, the defence proffered on behalf of the applicant was not properly evaluated thus further undermining the trial.

His right to a fair hearing, as guaranteed under section 69(1) of the Constitution, was clearly violated.

In my view, the finding that the trial was not fair determines the application, and it becomes unnecessary to resolve the question relating to the constitutional validity of the sentence of death imposed upon the applicant.

One of the two issues referred to this court by the Supreme Court has been decided in favour of the applicant.

Both counsel are agreed, that, it would be in the interests of justice if the proceedings in the High Court were to be set aside as being inconsistent with section 69(1) the Constitution. Under such circumstances no benefit would ensue from a determination on the question of the constitutional validity of the sentence when the trial proceedings have been set aside.

It is further agreed between counsel that it would be in the interests of justice if the matter were to be remitted for trial de novo before a different judge.

Accordingly, it is declared that:

The applicant's right to a fair hearing, in accordance with section 69(1) of the Constitution, has been violated by the proceedings in Case No. HCB158/13.

Accordingly, the following order will issue:

IT IS ORDERED THAT:

1. The proceedings conducted under Case No. HCB158/13 be and are hereby set aside.

2. The matter be and is hereby remitted to the High Court in Bulawayo for trial de novo before a different judicial officer.

Appealed
SC75-17 : EDWARD MADYAVANHU vs REGGIE SARUCHERA and GRANT THORNTON CAMELSA CHARTERED ACCOUNTANTS (ZIMBABWE) and CAIRNS FOODS LTD
Ruled By: GWAUNZA JA, GUVAVA JA and ZIYAMBI AJA

On 21 July 2016, the High Court dismissed the appellant's chamber application for the reinstatement of his claim on the third respondent's creditors list. Aggrieved, the appellant filed this appeal, which we dismissed with costs on 6 July 2017.

The appellant wrote to the Registrar requesting the reasons for the order. These are they.

The facts of this case are as follows:

The appellant was formerly employed by the third respondent. Sometime in 2004, he obtained judgment in the Labour Court awarding him damages for unlawful termination of employment. The quantum of damages that he was granted came to ZW$26,076,252= after quantification by the Labour Court.

However, before the third respondent could make any payment, it was placed under judicial management.

The first respondent, who works for the second respondent, was appointed the Judicial Manager. The appellant then filed, with the Master of the High Court, a claim for his debt to be placed on the list of the third respondent's other creditors.

The claim was provisionally accepted but later revoked at the instance of the first respondent.

This was because, while the appellant's debt was denominated in Zimbabwean dollars, he had lodged his claim in United States dollars amounting to USD3,057,199= without an order of court converting his Zimbabwean dollar claim to United States dollars.

He had, it seemed, done the conversion of the amount himself.

The appellant then approached the court a quo seeking to be reinstated on the list of creditors. The specific order that he sought read as follows:

It is ordered that:

“1. Applicant's claim be and is hereby reinstated to the creditors of third respondent.

2. Within 48 hours of the issuance of this order, fourth respondent avails to applicant the payment schedule for third respondent's judicial management creditors.

3. On a jointly and severally basis (sic) and within 21 days of the issuance of this order, first, second, and third respondents pay applicant:

(a) The full amount of his claim in accordance with the schedule of payment of creditors of the same class.

(b) Interest at the prescribed rate on all overdue payments.

(c) First, second, and third respondent pay costs of suit.”

A point in limine was raised by the first respondent, on behalf of the second respondent, to the effect, that, there was no legal basis for the appellant to sue the latter as this was done solely for the reason that the first respondent worked for the second respondent.

The court a quo upheld the point in limine and also dismissed the whole application on the merits for the following reasons;

(a) At the time the appellant filed the application before the court a quo, the third respondent was no longer under judicial management, therefore, the relief he sought could no longer bind the first respondent because he ceased to be the third respondent's judicial manager the moment it was removed under judicial management; and

(b) The claim lodged by the appellant, before the Master of the High Court, was an amount which had not been properly converted at law, therefore, the court could not direct the Master to reinstate the claim.

Aggrieved by the court a quo's decision, the appellant approached this Court, on appeal, seeking the following relief;

“It is prayed that;

1. The High Court judgment be set aside.

2. Leave be granted for registration with the High Court in Harare, for purposes of enforcement, my claim of USD3,057,199 against third respondent which was proved and admitted in the creditors meeting held on 13 February 2013 pursuant to the company's judicial management and has never been set aside or varied.

3. Interest at the prescribed rate be paid on the claim amount from 3 November 2015, the day following the date of cancellation of the final judicial management order, to the date of final settlement.

4. The respondents pay the whole litigation cost for this matter.”

In their heads of argument, the respondents raised three points in limine with regards to the relief sought:

(i)...,.

(ii) Secondly, they argued that the relief which the appellant was seeking on appeal, before this Court, was different from that which he sought in the court a quo....,.

With regards to the allegation that he now seeks what he did not seek in the court a quo, the appellant's position was that only the method of enforcement had changed but he still sought the same relief....,.

The Court found there was merit in the respondents points in limine...,.

The second point in limine raised by the respondents, concerning new relief being sought on appeal by the appellant, also has merit.

As correctly observed, the appellant approached the court a quo seeking to reinstate his claim on the third respondent's list of creditors in the office of the Master of the High Court.

The application a quo having failed, the appellant, on appeal, now sought an order granting him leave to register his claim for payment of USD3,057,199= by the third respondent, for purposes of enforcement.

This request pre-supposes, quite erroneously, that the High Court made an order reinstating his claim on the creditors list. This not having happened, the relief now sought is not one that is open to this Court to grant.

An Appeal Court, by nature, is one that considers and assesses the correctness or otherwise of the decision of a lower court on any particular issue. Where no such issue is considered by an inferior court, it follows, generally, that, there is nothing for the Appeal Court to determine.

It is in the appellant's interest to fully appreciate this point, which was aptly captured in Dynamos Football Club (Pvt) Ltd & Anor v ZIFA & Ors 2006 (1) ZLR 346 (S) 355.

MALABA JA…, in that case, held, that, generally a party cannot seek, on appeal, relief that they did not seek in the lower court: see also Goto v Goto 2001 (2) ZLR 519 (S) where the court held that it was not open to the appellant in that case, in the absence of an amendment to her declaration, to claim on appeal something which she did not claim in the court a quo.

The exception to this rule was outlined in Dynamos Football Club (Pvt) Ltd & Anor v ZIFA & Ors 2006 (1) ZLR 346 (S) 355 where it was held as follows;

“There are, however, other decisions to the effect, that, the Appellate Court has a discretion, in appropriate cases, to grant relief claimed for the first time on appeal if it is satisfied that all the facts on which the court of first instance would have decided the matter had it been raised with it were available for its consideration and such facts as are essential to the decision are common cause or well-nigh incontrovertible: see Workmen's Compensation Commissioner v Crawford and Anor 1987 (1) SA 290 at 307G; Donelly v Barclays National Bank Ltd 1990 (1) SA 375 at 380I-381A.”

When this is applied to the facts of this matter, it is evident that the requirements listed, which would have entitled the appellant to seek the relief in question for the first time on appeal, have not been met.

Related to this issue, this Court finds, as did the court a quo, that, the amount claimed by the appellant was not converted into US dollars by a court of competent jurisdiction.

It was not enough for the appellant to attempt a conversion on his own, using a rate that was not known and coming up with a figure which no court had endorsed. Consequently, the appellant (a quo) failed to establish a proper basis for the inclusion of the US dollar amount that he sought, on the third respondent's list of creditors.

The judgment of the court a quo cannot, in this respect, be faulted.

Appealed
SC179-20 : MFUNDO MLILO vs THE PRESIDENT OF THE REPUBLIC OF ZIMBABWE
Ruled By: GARWE JA, MAKARAU JA and MAKONI JA

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.

BACKGROUND FACTS

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.

THE APPELLANT'S CASE A QUO

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.

THE RESPONDENT'S CASE A QUO

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.

DETERMINATION OF THE COURT A QUO

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”.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.

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.

PROCEEDINGS BEFORE THIS COURT

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.

APPELLANT'S SUBMISSIONS BEFORE THIS COURT

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.

RESPONDENT'S SUBMISSIONS BEFORE THIS COURT

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.

HH411-15 : TENDAI MASAMBA vs ZIMBABWE ELECTRICITY TRANSMISSION AND DISTRIBUTION COMPANY (PVT) LTD
Ruled By: CHIWESHE JP and CHITAKUNYE J

On 26 March 2015, we dismissed the appellant's appeal with costs on the attorney-client scale. We indicated that full reasons will follow. These are the reasons for the dismissal.

The appellant owns an immovable property, namely, Flat No.4 Resdale, 56 Selous Avenue, Harare. The appellant is resident in New Zealand and she was represented in these proceedings by her brother, Ignatius Masamba, by virtue of a General Power of Attorney she granted to him in the year 2011.

In 2011, the appellant, through Ignatius Masamba, sued the defendant for the sum of $1,960 broken down as follows:

“Their statements are a Nuisance $150;
Professional negligence $1,500;
Mental distress/physical inconvenience/time $300;
Transport/stationery/photocopying $10.”

The summons commencing action was not clear on the cause of action or the legal basis for the various claims.

The particulars of claim are, to say the least, confusing and incoherent. The particulars of claim do not disclose the legal basis for the claims.

It is trite, that, particulars of claim must clearly disclose the cause of action being relied upon.

If it is based on contract, the nature and extent of the contractual obligations and their breach must be clear. If it is a suit for damages, the summons and particulars of claim must clearly spell out whether such damages are being claimed in contract or under an Aquilian action.

In casu, the summons and particulars of claim did not disclose whether the damages being claimed were for breach of contract or for a delict.

If the damages are in delict, the summons did not properly establish the cause of action. No wrongful or unlawful conduct on the part of the respondent is alleged, let alone established from the summons and particulars of claim: see Nyaguse v Skinners Autobody Specialists & Another 2007 (1) ZLR 296 (H) and Border Timbers Limited v ZIMRA 2009 (1) ZLR 131 (H).

Based on the above, there was virtually no case to try.

A trial was, nevertheless, held after which the trial magistrate, after considering each of the claims, dismissed the appellant's claim with each party to pay their own costs.

The appellant, being dissatisfied with the magistrate's decision, appealed to this court.

The respondent opposed the appeal and raised points in limine on points of law.

Though some of the points of law may not have been clearly raised in the court below, we were of the view, that, the points pertain to issues that are clear from the pleadings. The consideration of the points will not cause any unfairness as clearly part of the aspects were raised and the appellant was aware of them: see Ngani v Mbanje & Another; Mbanje & Another v Ngani 1987 (2) ZLR 111 (SC).

SC74-22 : NEW LIFE COVENANT CHURCH vs TRUSTEES OF THE HARARE WETLANDS TRUST and DIRECTOR OF WORKS, CITY OF HARARE and CITY OF HARARE
Ruled By: MAVANGIRA JA, CHATUKUTA JA and MWAYERA JA

This was an appeal against the whole of the judgment of the Administrative Court of Zimbabwe handed down on 7 September 2020 as case number ACC87/19, judgment number AC09-20.The appeal was heard on 20 October 2021.The court proceeded to give an ex tempore judgment. It dismissed the appeal with costs ...

This was an appeal against the whole of the judgment of the Administrative Court of Zimbabwe handed down on 7 September 2020 as case number ACC87/19, judgment number AC09-20.

The appeal was heard on 20 October 2021.

The court proceeded to give an ex tempore judgment. It dismissed the appeal with costs on a legal practitioner and client scale.

Written reasons have been requested by the appellant. These are they.

BACKGROUND FACTS

The facts of the matter are common cause. The appellant owns a piece of land known as Stand Number 18692 Boundary Road, Harare Township in the District of Harare, which lies within the second respondent's area of jurisdiction.

The first respondent is a Trust that advocates for the protection and preservation of wetlands for sustainable water provisioning within Harare.

The second respondent is the official of the third respondent which is the local planning authority for Harare.

The appellant intended to develop the site to build a church, a school, and a conference centre. It relied on a development permit issued by the third respondent.

The first respondent was opposed to the developments, hence, it noted an appeal in the court a quo.

SUBMISSIONS MADE IN THE COURT A QUO

The first respondent submitted in the court a quo, that, the development permit was unprocedurally issued in violation of its justice rights. It argued that the development permit was unlawful for the following reasons:

(i) That, the second respondent was a local authority and had no power to issue the permit in terms of the tenets of the Regional, Town and Country Planning Act [Chapter 29:12].

(ii) That, the request for the permit was not made in accordance with the application procedure prescribed by the same Act.

(iii) That, the application for the same had expired after three months and could not be relied upon for the current permit.

(iv) That, there was no public notice of the development permit application and consultation of the relevant stakeholders.

(v) That, the permit was vague because it did not clarify the description of the development making it impossible to ascertain the nature of the development proposed.

(vi) That, the development violated the beneficiaries Constitutionally protected environmental rights; and

(vii) That, it violated the Environmental Impact Assessment Certificate issued by the Environmental Management Agency which restricted the development to 0.8169 hectares of the wetland area.

In opposition of the appeal, the appellant argued, that, all the requisite consultations and processes for obtaining the development permit were complied with. It contended, that, the development permit was therefore procured in terms of the law.

It further argued, that, the site for the intended construction is not ecologically sensitive and is therefore suitable for construction.

DETERMINATION BY THE COURT A QUO

The court a quo made the following findings:

The conditions spelt out in the development permit had nothing to do with the location of the proposed conference centre and they lacked specificity and precision. The appellant did not submit an application for a development permit as prescribed by the Regional, Town and Country Planning Act. The appellant, instead, applied for permission to change the use of Stand 18692.

The appellant did not give public notice of the application for a development permit or serve any such notice on every owner of the property adjacent to Stand 18692 as is required in the Regional, Town and Country Planning Act.

The development permit issued to the appellant contradicted the environmental impact assessment certificate which preceded and authorised the issuance of the purported development permit.

The development permit authorised erection of the buildings on 4.633 hectares whereas the environmental impact assessment certificate permitted development on only 0.8169 hectares of the property.

The court a quo consequently upheld the first respondent's appeal.

Aggrieved by that decision, the appellant noted the present appeal on the following grounds:

“GROUNDS OF APPEAL

1. The learned judge in the court a quo erred in finding that there was no application for a development permit.

2. The learned judge in the court a quo erred in not taking into account, that, the development permit would necessarily have to be read with the plans and drawings and would be subject to conditions imposed for the purposes of development.

3. The learned judge in the court a quo erred in law in finding, that, section 26(3) of the Regional, Town and Country Planning Act [Chapter 29:12] was applicable and erred in finding that it was a requirement to give public notice of an application for a development permit.

4. The learned judge in the court a quo erred in finding, that, the development permit contradicted the environmental impact assessment certificate and failed to place any emphasis or sufficient emphasis on the fact that the plans and drawings had been submitted.

5. The learned judge in the court a quo erred in finding, that, the fact that there was no acknowledgement of the application was fatal to the grant of the permit.”

PROCEEDINGS BEFORE THIS COURT

Grounds 1, 2, 3 and 5 raised by the appellant challenge the court a quo's finding that there was no application for a development permit.

Ground 4 challenges the court a quo's finding, that, the development permit contradicted the environmental assessment certificate.

Ground 6 raises the issue of the first respondent's locus standi to participate in the matter before the court a quo, and, by extension, in this appeal.

SUBMISSIONS BY COUNSEL FOR THE APPELLANT

Counsel for the appellant submitted, that, an application was made to the third respondent in compliance with section 26 of the Regional, Town and Country Planning Act. He further submitted, that, in the event that the court finds that section 26 of the Regional, Town and Country Planning Act was not strictly complied with there was substantial compliance, and, section 5 of the Interpretation Act [Chapter 1:01] would save the application.

Regarding the alleged contradiction between the environmental impact assessment certificate and the development permit, counsel submitted, that, the conditions specified in the certificate were, by implication, incorporated in the development permit.

The appellant's submissions on ground number 6 were that the first respondent, not having participated in the antecedent proceedings, had no locus standi to appeal against the grant of the permit.

Furthermore, that the first respondent's Deed of Trust does not empower it to act on behalf of the persons that it sought to represent.

SUBMISSIONS MADE BY COUNSEL FOR THE FIRST RESPONDENT

Per contra, counsel for the first respondent submitted as follows:

The issue of the locus standi of the first respondent was not raised in the court a quo by the appellant. The court a quo, therefore, cannot be faulted for not determining an issue that was not before it.

Furthermore, the High Court. per CHINAMORA J, in Harare Wetland Trust & Anor v New Life Covenant Church & Others HH819-19 determined, that, the first respondent had locus standi to challenge the developments that the appellant was undertaking without a development permit.

The application relied on by the appellant did not comply with the peremptory requirements of the Regional, Town and Country Planning Development Regulations RGN 927/1976 as regards giving the public notice of the development and serving such notice on the property owners adjacent to the site.

Furthermore, and, in any event, the application, not having been determined within the stipulated three (3) months period, had been deemed refused by operation of law in terms of section 26(7) of the Regional, Town and Country Planning Act.

There were contradictions between the Environmental Impact Assessment Certificate (the EIAC) and the development permit as to the area of the property on which construction would be undertaken. Further, the conditions set out in the Environmental Impact Assessment Certificate (EIAC) were not included in the development permit, thereby creating the impression that there were no such restrictions imposed....,.

The sixth ground of appeal related to the question of the first respondent's locus standi.

The court a quo did not make any pronouncement on the question. The point is not properly before this Court.

This is so because, firstly, the matter was not raised a quo despite the first respondent's contention that it had been raised.

The issue which counsel for the appellant alluded to as having been raised by the appellant in the court a quo relates to the jurisdiction of the second and third respondents and not to the first respondent's locus standi.

The appellant's contention, on the first respondent's locus standi, therefore, seeks to make this Court a second court of first instance. This court cannot do so as it is an Appellate Court: see Lungu & Others v RBZ SC26-21.

The circumstances of this case do not warrant such a course of action.

Appealed
SC31-22 : NMB BANK LIMITED vs FORMSCAFF (PVT) LTD and PENNIWILL (PVT) LTD and RODNEY CALLAGHAN and MILLICENT CALLAGHAN and CHARLES CANNINGS and CLIFFORD JOHNSON and LESLEY BENNET
Ruled By: GARWE JA, PATEL JA and GUVAVA JA

This is an appeal against the whole judgment of the High Court (court a quo) dated 18 October 2018. The court a quo granted an application for absolution from the instance made jointly by the respondents, granted claims in reconvention, and ordered the appellant to pay costs of the counterclaims on a legal practitioner and client scale.

The court a quo erred in this regard and the appellant was correctly aggrieved by the judgment of the court a quo.

There is no evidence in the record that the first, third, fourth, fifth, sixth, and seventh respondents (Formscaff (Pvt) Ltd, Rodney Callaghan, Millicent Callaghan, Charles Cannings, Clifford Johnson and Lesley Bennet) had filed counterclaims and the court a quo erred in granting counter claims that were not before the court.

Although the second respondent was properly before the court a quo, the requirements for the grant of absolution from the instance were not met.

Accordingly, the judgment must be vacated. I set out hereunder the reasons for this finding.

BACKGROUND FACTS

The appellant is a registered commercial bank operating in Zimbabwe. The first respondent is a private company registered in accordance with the laws of Zimbabwe. The third to seventh respondents (Rodney Callaghan, Millicent Callaghan, Charles Cannings, Clifford Johnson and Lesley Bennet) are private individuals who bound themselves as sureties and co-principal debtors in respect of a loan granted to the first respondent. The second respondent is a private limited company duly incorporated in Zimbabwe.

The appellant issued summons against the respondents on 13 March 2017 for the payment of US$368,706=62 being capital and US$20,654=10 being interest on the sum of US$368,706=62 at the rate of 18% per annum, which rate was subject to change from time to time, with effect from 26 November 2016 to date of payment in full and costs of suit on a legal practitioner and client scale.

At the commencement of trial, by consent of the parties, the claim was amended to read as follows:

“(i) By deletion of the capital amount of US$368,706=62 and the substitution thereof with the amount of US$361,034=23.

(ii) By deletion of the interest amount of US$20,654=10 and the substitution thereof with the amount US$28,246=49.”

The total amount claimed by the appellant amounted to US$389,362=72.

In its particulars of claim, the appellant averred that in or around November 2015, the appellant and the first respondent entered into an agreement in terms of which the appellant extended to the first respondent a loan for the sum of US$373,000.

The loan was accessed through the first respondent's operating account and was for the purpose of assisting the first respondent in financing its working capital requirements.

Interest was to accrue on the facility at the rate of 12% per annum subject to change from time to time and 18% per annum in the event of default by the first respondent in making due and punctual payment of any instalment.

The loan advanced was repayable to the appellant as follows:

“(a) US$2,000 on the 30th November 2015;

(b) US$1,500 on the 30th December 2015;

(c) US$2,000 on the 30th January 2016; and thereafter

US$15,200 per month with effect from the 28th of February 2016 until full payment.”

It was a term of the agreement, that, in the event of the first respondent defaulting in making due and punctual payment of any instalment, the total outstanding amount would immediately become due and payable.

The second, third, fourth, fifth, sixth and seventh respondents (Penniwill (Pvt) Ltd, Rodney Callaghan, Millicent Callaghan, Charles Cannings, Clifford Johnson and Lesley Bennet) bound themselves jointly and severally as sureties and co-principal debtors with the first respondent for payment of any and all monies due to the appellant.

The respondents defaulted in making due payment of the loan under the agreement giving rise to the total outstanding amount claimed by the appellant of US$389,362=72.

All the respondents jointly entered an appearance to defend, and, in their plea, denied that the amount claimed by the appellant arose from the agreement dated 2 November 2015.

The first respondent denied owing the appellant any money as it argued that the loan advanced through the loan agreement was repaid in full on the 30th of December 2015. The first respondent further denied owing the appellant any interest under the loan facility and maintained that the appellant actually recovered more interest from it than was lawfully due.

The second to the seventh respondents (Penniwill (Pvt) Ltd, Rodney Callaghan, Millicent Callaghan, Charles Cannings, Clifford Johnson and Lesley Bennet) averred that all the suretyship deeds held by the appellant were void for vagueness as they covered an unlimited liability. They contended, that, a suretyship deed must contain a limit in monetary terms so as to be valid.

The second respondent (Penniwill (Pvt) Ltd) averred that the deed of suretyship between it and the appellant was void as it was not authorised by its Board of Directors.

The first respondent (Formscaff (Pvt) Ltd) further stated, that, the acknowledgment of debt executed by it in favour of the appellant was unenforceable as it was not signed by its representatives.

The second respondent (Penniwill (Pvt) Ltd) also averred, that, it never authorised the registration of a mortgage bond in favour of the appellant over its property known as Subdivision A of Subdivision H of N'Thaba of Glen Lorne situate in the District of Salisbury held under Deed of Transfer number 1998/95 ('the property').

Together with its plea, the second respondent (Penniwill (Pvt) Ltd) filed a claim in reconvention against the appellant and averred, that, the appellant fraudulently procured a suretyship and mortgage bond in its favour over the second respondent's property. The second respondent prayed that the suretyship deed and mortgage bond be cancelled.

The appellant entered a plea against the claim in reconvention and denied all the averments made by the respondents.

On 30 May 2017, the third to seventh respondents (Rodney Callaghan, Millicent Callaghan, Charles Cannings, Clifford Johnson and Lesley Bennet) indicated their intention to apply to amend their pleas and file a claim in reconvention at the pre-trial conference.

The amendments sought alleged that all the respondents purported suretyships had expired by effluxion of time, having been signed more than three years before the loan was granted. It was also averred, that, the suretyships were in contravention of section 12 of the Moneylending and Rates of Interest Act [Chapter 14:14] ('the Moneylending Act') and, as such, were invalid and unenforceable.

In the proposed claim in reconvention, the third to seventh respondents sought an order that their respective suretyships be declared null and void.

The second, third and fourth respondents (Penniwill (Pvt) Ltd, Rodney Callaghan and Millicent Callaghan) prayed that the mortgage bonds in their names be cancelled.

There is, however, no evidence in the record that the amendment was ever granted at the pre-trial conference or at the trial.

On 27 July 2017, the parties signed a Joint Pre-Trial Conference Minute and the issues for determination by the court a quo were stated as follows:

“1. Whether 2nd, 3rd, 4th, 5th, 6th, and 7th Defendants Deeds of Suretyship are valid and enforceable.

2. Whether 2nd Defendant's 1st and 2nd Mortgage Bonds (numbers 1557/13 and 1656/13) in favour of Plaintiff are valid and enforceable or whether they should be cancelled.

3.Whether 1st Defendant is indebted to Plaintiff under the Loan Agreement dated 2 November 2015 in the sums of US$368,706=62 as capital and US$20,654=10 as interest, and, was there novation or termination of the loan agreement.

4. Whether 1st, 2nd, 3rd, 4th, 5th, 6th and 7th Defendants, jointly and severally, one paying the others to be absolved, are indebted to Plaintiff as alleged or at all.”

At the trial, the appellant led evidence through two witnesses, namely, Mr. C. Gunundu (Gunundu) the appellant's Account Relationship Manager and Mr. V.S. Nyangulu (Nyangulu) a registered legal practitioner and conveyancer.

Mr. C. Gunundu testified, that, the appellant and the first respondent had a long business history spanning many years. They agreed that the Bank would advance a loan to the first respondent which loan would, in turn, re-finance the existing loan already held by the first respondent.

He further testified, that, the first respondent and its sureties had failed on numerous occasions to fulfil the loan obligations which it owed to the appellant. The new arrangement was meant to assist the respondents.

Gunundu maintained, that, the surety deeds and mortgage bonds made by the second to seventh respondents (Penniwill (Pvt) Ltd, Rodney Callaghan, Millicent Callaghan, Charles Cannings, Clifford Johnson and Lesley Bennet) in the appellant's favour were all valid and properly constituted. He further maintained, that, the sureties were open and unlimited, and, as such, covered all the money obtained through loans by the first respondent from the appellant.

The second witness, Mr. V.S. Nyangulu, testified that the mortgage bonds he registered on behalf of the second respondent (Penniwill (Pvt) Ltd) in favour of the appellant were valid and were registered after due process and Board resolutions had been passed.

At the close of the appellant's case, the first to seventh respondents (Formscaff (Pvt) Ltd, Penniwill (Pvt) Ltd, Rodney Callaghan, Millicent Callaghan, Charles Cannings, Clifford Johnson and Lesley Bennet) made an application for absolution from the instance.

In making the application, the first and third to seventh respondents (Formscaff (Pvt) Ltd, Rodney Callaghan, Millicent Callaghan, Charles Cannings, Clifford Johnson and Lesley Bennet) averred that the appellant sued the respondents on a cause of action which had already been discharged on 31 December 2015.

They also alleged that their sureties were not valid.

In making its application, the second respondent (Penniwill (Pvt) Ltd) averred that the appellant failed to prove a valid cause of action that the mortgage bonds against its property, registered in favour of the appellant, were valid.

In response to the applications for absolution from the instance, the appellant argued that the applications were frivolous.

It vehemently denied receiving any payment from the first respondent in repayment of the loan. It also maintained that all the documents in respect of the security for the loan were valid and that the obligation of the sureties had not been extinguished by prescription or on any other basis.

The court a quo, in dealing with the matter, found that the appellant's first witness Mr. C. Gunundu (Gunundu) was not a credible witness and that he contradicted himself on material issues.

The court further found, that, the appellant failed to prove a prima facie case against the respondents.

The court went on to find, that, the first respondent repaid the loan of US$350,000 on 31 December 2015 as evidenced by the appellant's own books of account and statements.

The court a quo also found, that, the suretyships made in favour of the appellant by the second to seventh respondents were invalid and unenforceable as they were not in compliance with section 12 of the Moneylending and Rates of Interest Act. Further, that, the sureties did not relate to the 2 November 2015 loan facility, and, as such, could not be relied upon by the appellant in making a cause of action for the repayment of a loan under that facility.

The court a quo further held, that, the mortgage bonds executed in the second respondent's name were invalid as they were not made in compliance with the law and that the sureties and mortgage bonds could not be held to have an unlimited clause to their operation as such a clause was contrary to public policy.

The court concluded, that, as the appellant had failed to prove a prima facie case against the respondents, the respondents claims in reconvention had merit and that there was no need to put the respondents to their defence.

In the result, the court made the following order:

“1. The application for absolution from the instance, made by the defendants, succeeds with costs.

2. The surety ships (sic) in favour of the plaintiff entered into by 2nd, 3rd, 4th, 5th, 6th and 7th defendant and plaintiff be and are hereby cancelled.

3. The mortgage bonds passed by 2nd, 3rd and 4th defendants in favour of plaintiff, namely, Numbers 2416/2011, 4889/2011, 1557/2013 and 1656/2013 be and are hereby cancelled.

4. The plaintiff to pay costs of counterclaim to the defendants on attorney-client scale.”

Dissatisfied with the decision of the court a quo, the appellant noted the present appeal on the following grounds of appeal:

“1. The court a quo erred in holding that any amounts which were due to Appellant under the agreement dated 2 November 2015 were repaid in full and that Plaintiff sued on a cause of action that was discharged in full on the 30th of December 2015, in so doing, the court a quo failed to appreciate that the agreement (dated 2 November 2015) was entered into to enable the 1st respondent to settle previously existing debts.

1.1 The court a quo erred in strictly evaluating and rejecting the appellant's evidence and effectively demanding of it more than a prima facie (sic) as if it had (sic) evidence from defendants.

1.2 The court a quo erred in granting respondents 1, 3 to 7 counter-claims which were not before it.

1.3 The court a quo erred in granting the counterclaims by respondents 1, 3 to 7 when those respondents had not moved it to grant same as at that stage.

1.4 The court a quo erred in itself cancelling the parties agreements when it was not a party thereto and in violation of the sanctity thereof.

2. The court a quo erred in holding that:

(a) The Suretyship agreements executed by 2nd, 3rd, 4th, 5th, 6th and 7th Respondents did not relate to the agreement dated 2 November 2015, and that neither did they cover any amounts due thereunder.

(b) The Suretyship agreements had prescribed. In so holding, the court a quo grossly failed to appreciate that, at law, a Surety's obligations only arise upon demand.

(c) The 2nd, 3rd, 4th, 5th, 6th and 7th Respondents were released from their Suretyship due to material variation of the principal obligation, when this was not pleaded and no evidence proving actual prejudice was placed.

(d) That 2nd, 3rd, 4th, 5th, 6th and 7th Respondents suretyship agreements were void for being contrary to public policy.

3. In agreeing with 2nd, 3rd, 4th, 5th, 6th and 7th Respondents entire submissions on the application for absolution from the instance, the court a quo grossly erred in holding 2nd to 7th Respondents averment that the suretyship agreements are invalid for violation of Section 12 of the Money Lending (sic) and Rates of Interest Act [Chapter 14:14].

4. The court a quo erred in holding that the Mortgage Bond passed by 2nd Respondent, and 3rd and 4th Respondents are invalid and grossly failed to appreciate, that, at law, the Mortgage Bonds are valid as an instrument of both debt and hypothecation.

5. Consequent to the gross misdirection referred to in Paragraph 1, 2, 3 and 4 above, the court a quo erred in granting 1st to 7th Respondents application for absolution from the instance and entering Judgment in favour of Respondents as per their claim in reconvention for cancellation of the suretyship agreements and Mortgage Bonds.

6. The court a quo erred in awarding costs against Appellant in respect of the Respondents claim in reconvention on a higher scale, when there was no legal basis for so doing.”

PROCEEDINGS BEFORE THIS COURT

Counsel for the second respondent (Penniwill (Pvt) Ltd) raised a preliminary point to the effect, that, the Notice of Appeal was fatally defective and incapable of amendment.

On the other hand, counsel for the appellant made an application to amend the appellant's grounds of appeal and relief sought. In making the application, counsel argued that he was raising legal issues which would not prejudice the respondents.

Counsel for the first, third to seventh respondents (Formscaff (Pvt) Ltd, Rodney Callaghan, Millicent Callaghan, Charles Cannings, Clifford Johnson and Lesley Bennet) agreed with counsel for the second respondent (Penniwill (Pvt) Ltd) who opposed the application for the amendment and argued that the notice of appeal was not in compliance with Rule 37(1)(d) as read with Rule 44 of the Supreme Court Rules 2018 ('the Supreme Court Rules') in that the grounds of appeal were not clear and concise.

Counsel argued, that, the second ground of appeal was invalid as it was vague.

He also submitted that the grounds of appeal attacked all the findings of the court a quo which rendered the notice of appeal fatally defective.

As indicated above, counsel for the second respondent raised a preliminary point to the effect, that, the appellant's grounds of appeal were not clear and concise and sought a striking off of the appeal.

He further submitted, that, the relief sought by the appellant was defective as it did not pray for a remittal of the matter for continuation of the trial on the merits of the matter in the event that the appeal succeeds.

Counsel submitted that this rendered the appeal fatally defective.

The amendment sought by the appellant was made by way of notice and in terms of the Rule 41 of the Supreme Court Rules. Rule 41 provides as follows:

“Power to allow amendment

41. The court may, upon application by notice, or upon oral application by counsel during the course of any hearing, allow, upon such terms as it may think fit to impose amendment of the grounds of appeal or of any pleadings or other document and may similarly permit a party to appear or be represented notwithstanding any declaration in terms of Rule 50 to the effect that the party does not intend to appear or be represented.”

With regard to the issue of whether or not the appellant's grounds of appeal were fatally defective on the basis that they were not clear and concise as required by the rules of this Court, we found that the grounds of appeal could have been more elegantly crafted, however, they were not fatally defective.

This Court has pronounced itself on the test to be applied in determining whether or not grounds of appeal are valid.

In Zvokusekwa v Bikita Rural District Council SC44-15 the Court noted that:

“One must, I think, be guided by the substance of the grounds of appeal and not the form. Legal practitioners often exhibit different styles in formulating such grounds. What is important, at the end of the day, is that the grounds must disclose the basis upon which the decision of the lower court is impugned in a clear and concise manner.”

Also, in Dr Kunonga v Church of the Province of Central Africa SC25-17…, the Court stated that:

“…, where the court is faced by some of the grounds of appeal that are not clear and concise and by others that are, the courts should proceed to determine the appeal on the basis of the valid grounds.”

The Court must be guided by the substance and not the form of the grounds of appeal. At the end of the day the determining factors of whether or not grounds of appeal are valid and compliant with the rules of the court can be set out as follows:

(a) The grounds of appeal must relate to the judgment appealed against;

(b) Must clearly and concisely show how the decision of the court a quo is erroneous; and

(c) Must show the basis upon which the decision should be vacated.

In this regard, a proper reading of the appellant's grounds of appeal clearly reveal the basis upon which the judgment of the court a quo is being challenged.

The only ground of appeal which is unclear and meaningless and cannot be allowed to stand is ground 1.4.

Indeed, it was accepted that the grounds could have been crafted in a more elegant manner. However, at the end of the day, it was our view that they met the threshold as set out in the rules and in the case authorities, except for ground 1.4 which we struck out.

The additional grounds of appeal in the notice of amendment were predicated on the same facts which were before the court a quo.

The appellant, in its heads of arguments, had already made submissions on the basis of the amended grounds. The respondents had responded to the heads of argument.

In the circumstances of this case, however, it did not appear that the respondent would suffer any prejudice if the application was granted.

As the amendment was not prejudicial to the respondents, and, any prejudice could adequately be compensated with an appropriate order of costs, we saw no reason to refuse the application.

On the basis of the above reasons, we accordingly made the following order:

“The preliminary point raised by counsel for the respondents is dismissed. The application to amend the grounds of appeal and prayer is granted, save for ground 1.4 in the notice of amendment. The appellant is ordered to pay the respondents wasted costs.”

SC34-22 : NICHOLAS MUKARATI vs PIONEER COACHES (PRIVATE) LIMITED
Ruled By: GWAUNZA DCJ, MATHONSI JA and CHITAKUNYE JA

This is an appeal against the judgment of the Labour Court (the court a quo) handed down on 21 October 2016 which allowed an appeal by the respondent against an arbitral award issued by an arbitrator on 13 October 2015.

The court a quo set aside the arbitral award and remitted the matter to an arbitrator of the parties choice, or one selected by the Registrar, for a hearing to determine the appropriate penalty to be imposed on the appellant.

FACTUAL BACKGROUND

The case itself has a chequered history, being a labour dispute that has gone backwards and forwards as the parties bickered over either the procedure adopted or the choice of arbiter.

The appellant was employed by the respondent as its Managing Director. He was suspended from employment in April 2010 on allegations of gross incompetence and gross inefficiency under section 4(f) and (h) of the National Employment Code of Conduct, S.I.15 of 2006 (the National Code of Conduct).

Five counts of misconduct were preferred against the appellant:

(i) Firstly, it was alleged that he had submitted a report to the Board of Directors of a net loss of US$56,930 for the year ending on 31 December 2009 when the real net loss, as uncovered by external auditors, was US$657,365.

(ii) Secondly, it was alleged that the appellant failed to fully account for R700,000 which had been transferred from Mavambo Coaches.

(iii) Thirdly, it was alleged that the appellant paid himself a US$2,000 long service award in January 2010 without Management and Board approval.

(iv) Fourthly, he was accused of authorising staff loans amounting to US$23,549 in December 2009 and January 2010, when the company was in financial dire straits.

(v) Fifthly, the appellant was accused of paying management incentives amounting to US$21,800 in December 2009, against a loss which militated against payment of incentives.

An internal disciplinary hearing was conducted which found the appellant guilty and recommended his dismissal from employment.

The appellant challenged the propriety of those proceedings through a review application brought before the court a quo.

That contested review application yielded a consent order granted by the court a quo on 28 October 2010 in the following terms:

“IT IS HEREBY ORDERED THAT:

1. The disciplinary hearing held against the applicant be and is hereby set aside to allow a de novo hearing and the suspension letter dated 13 April 2010 remains in force.

2. The arbitration proceedings before Arbitrator M. Dangwa be and is (sic) hereby withdrawn.

3. A fresh disciplinary hearing shall be held before Mr J. T. Mawire as the hearing officer and the parties shall share the costs of the hearing officer equally.

4. The issue of whether the applicant should be paid between the period of April to October 2010 is reserved for ruling by the court after receiving submissions from the parties legal practitioners before close of business on 29 October 2010.”

I note in passing that J. T. Mawire was appointed as a “hearing officer” by consent of the parties.

The earlier disciplinary proceedings were abandoned in favour of a hearing de novo before a different hearing officer, J. T. Mawire, who was appointed “to hear and determine the matter in terms of the Code.”

Indeed, hearing officer Mawire heard the matter, took evidence from both parties, and received written closing submissions.

In his determination dated 22 February 2012, Mawire found the appellant not guilty of misconduct. He ordered that he be reinstated without loss of salary and benefits from the date of suspension.

The respondent was aggrieved.

Initially, it made frantic efforts to appeal internally against the determination by the hearing officer. Again, the parties bickered for some time on the choice of an Appeals Authority.

Problems started when, at the instance of the appellant as claimant “an independent arbitrator” Munyaradzi Dangarembizi issued an arbitral award on 13 November 2012 to wit:

“AWARD

Wherefore, after carefully analysing the facts and the law, I make the following award -

That the claimant's prayer is upheld and I hereby order that the merits of the matter be conciliated upon by the Labour Officer.”

Following that award, it is common cause that a Labour Officer unsuccessfully held conciliation proceedings as a result of which the matter was referred to compulsory arbitration before an arbitrator.

When the respondent took its grievance to the arbitrator it stated categorically, at paragraph 2.8 of the Claimant's statement of claim and submissions:

“2.8. Hence, the matter in casu is an appeal by the employer, the claimant herein against the determination of Mr Mawire, the Disciplinary Authority dated 22nd February 2012.”

It is also beyond disputation that the arbitrator also dealt with the matter as an appeal.

He said so at paragraph 5 of the arbitral award dated 8 October 2015, to wit:

“Therefore, the instant matter is an appeal by the claimant against the determination of Mr Mawire, the disciplinary authority, dated 22 February 2012.”

The arbitrator upheld the determination of the hearing officer.

He ordered the reinstatement of the appellant to his position with no loss of salary and benefits from the date of dismissal. In the event that reinstatement was no longer possible, the appellant was to be paid damages in lieu of reinstatement.

PROCEEDINGS BEFORE THE COURT A QUO

The respondent was again unhappy with the arbitral award. It lodged an appeal to the court a quo on three grounds:

(i) The first was that the arbitrator grossly erred and misdirected himself on a point of law by failing to make a finding that the employee was grossly incompetent.

(ii) The second was that the arbitrator erred and misdirected himself at law by relying on an affidavit without according the respondent the opportunity to cross examine its deponent and to adduce oral evidence.

(iii) The third ground was that the arbitrator grossly erred and misdirected himself at law by handing down a grossly irrational and unreasonable award.

The court a quo found that the appellant had a responsibility to account to the Board on the operations of the business. He could not simply rely on his subordinates regarding the financial figures of the company as the buck stopped with him because he was the Managing Director.

The court a quo found, that, before presenting the financial figures to the Board, it was incumbent upon the appellant to verify the correctness of the figures. In its view, this was a case of res ipsa loquitar wherein the failure of the appellant to verify the figures was proof of incompetence.

The court a quo further found, that, the arbitrator's finding that the appellant was not responsible for the presentation of the faulty accounts to the Board flew in the face of available evidence. It was a gross misdirection entitling the court to interfere and set aside the award.

It set aside the award and remitted the matter for the assessment of an appropriate penalty.

PROCEEDINGS BEFORE THIS COURT

It became the appellant's turn to be aggrieved.

He appealed to this Court on five (5) grounds of appeal most of which attacked the factual findings of the court a quo instead of the law as required by section 92F(1) of the Labour Act [Chapter 28:01].

In terms of that section, an appeal lies from any decision of the Labour Court to this Court on a question of law only.

As that issue was not canvassed with the parties at the hearing of the appeal, it shall not be used as a basis for resolution of the appeal.

At the commencement of the hearing, counsel for the appellant took a point of law that the entire proceedings before the Labour Officer who conciliated the matter, the arbitrator who heard what was in fact an appeal from a decision of the hearing officer, and the subsequent appeal before the court a quo were a nullity.

Counsel for the appellant entreated this Court to strike off the appeal from the roll and to invoke its power, in terms of section 25 of the Supreme Court Act [Chapter 7:13], to set aside those proceedings.

In advancing that argument, on nullity of the proceedings, counsel for the appellant relied on the authority of two judgments of this Court in Mabeza v Sandvick Mining (2) Construction (Pvt) Ltd & Anor SC91-19 and Living Waters Theological Seminary v Rev Chikwanha SC59-21.

In those cases, this Court pronounced that proceedings referred to the court a quo, having been adjudicated upon by a Labour Officer without authority to do so, were a nullity.

In response, counsel for the respondent took a different view, namely, that, the authorities in question were distinguishable from the present case.

In his view, those authorities applied to situations where an employer would have made a determination in terms of a Code of Conduct thereby ousting the jurisdiction of the Labour Officer.

Counsel for the respondent submitted further, that, in the present case, the employer did not decide the matter at all.

According to counsel, what was placed before the Labour Officer was not an appeal but a referral to the Labour Officer in terms of section 93 of the Labour Act.

He submitted that section 93 of the Labour Act conferred what he called “a special jurisdiction” to the Labour Officer.

Counsel for the respondent submitted, that, the law which was applicable at the time the dispute arose made it legally competent for disputes to be referred to Labour Officers as happened in this case.

I must mention, that, after hearing submissions from counsel on that preliminary point, this Court directed the parties to file written submissions on the point of law.

The appellant was directed to do so by 24 January 2022 while the respondent was directed to file a response by 27 January 2022.

The parties managed to file their submissions timeously which is commendable indeed.

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

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

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

The application was filed on 6 October 2021.

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

BACKGROUND FACTS

The following facts are largely common cause.

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

He failed to pay the debt.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

ISSUE FOR DETERMINATION

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

SUBMISSIONS BY THE PARTIES

Applicant's Submissions

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

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

She conceded that the applicant's conduct was indefensible.

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

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

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

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

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

Respondent's Submissions

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

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

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

THE LAW

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

1. The extent of the delay;

2. The reasonableness of the explanation for the delay;

3. The prospects of success on appeal;

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

5. Convenience of the court; and

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

APPLICATION OF THE LAW

Extent of the delay

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

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

This application was filed 21 months out of time.

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

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

The inordinate delay has been properly conceded by the applicant.

REASONABLENESS OF THE EXPLANATION FOR THE DELAY

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Leave to execute had in fact been granted unopposed.

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

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

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

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

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

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

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

The final relief sought was therefore not competent.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

INTEREST OF THE RESPONDENT IN THE FINALITY TO LITIGATION

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

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

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

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

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

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

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

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

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

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

PROSPECTS OF SUCCESS

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

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

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

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

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

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

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

COSTS

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

DISPOSITION

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

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

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

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

FACTUAL BACKGROUND

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

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

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

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

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

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

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

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

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

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

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

“INTERIM RELIEF GRANTED

IT IS ORDERED THAT:

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

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

TERMS OF THE FINAL ORDER SOUGHT

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

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

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

PROCEEDINGS IN THE COURT A QUO

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

The appellant also raised a point in limine.

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

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

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

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

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

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

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

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

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

DETERMINATION BY THE COURT A QUO

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

She sought the following relief;

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

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

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

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

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

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

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

SUBMISSIONS ON APPEAL

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

DETERMINATION OF THE QUESTION OF MOOTNESS

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

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

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

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

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

THE LAW ON MOOTNESS

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Furthermore, a case is moot:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(c) The importance of the issue;

(d) The complexity of the issue;

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

(f) Resolving the disputes between different courts.”

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

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

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

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

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

Additionally, the fact that the appellant belatedly sought to amend the relief sought confirms that the matter is indeed moot and the relief sought no more than a brutum fulmen.

It must have been clear to her that it would not be competent for this Court to grant the relief she sought in her Notice of Appeal as conceded in the last paragraph of her Heads of Argument. The tangible and concrete dispute between the parties had disappeared by the time the appeal was heard rendering the issues academic.

This leads to the next stage of enquiry as highlighted in ZIMSEC v Mukomeka and Anor SC10-20 to the effect, that, where a matter is found to be moot, the overriding consideration is whether or not it is in the interests of justice to hear a moot case.

WHETHER OR NOT IT IS IN THE INTEREST OF JUSTICE TO DETERMINE THE INSTANT APPEAL THAT IS MOOT

As alluded to above, the appellant, at the eleventh hour, applied to amend the relief sought in her prayer amidst queries raised by this Court as to whether it was competent for the court to grant the relief sought by the appellant in her Notice of Appeal.

The Court enjoined the appellant to file supplementary heads in motivating why the application should be granted. The court also enjoined the respondents to file supplementary heads of argument in respect of the application to amend the prayer by the appellant.

It is to be commended that the supplementary heads of argument were promptly filed.

It is the appellant's submission, that, in terms of section 22(1)(a) of the Supreme Court Act, this Court is empowered to grant an amended relief sought provided that the relief sought is underpinned by the case made by the appellant. Further, she submitted that this Court enjoys wide powers which include granting a declaratory order.

She prayed that the appeal succeeds in terms of the amended draft order motivated during arguments which read as follows:

“The appellant prays that this Honourable Court declares that her referral to the President in terms of section 187(3) of the Constitution, without first subjecting her to the provisions of the SI107 of 2012, was unlawful hence null and void.”…,.

Counsel for the second, third, and fourth respondents submitted that the declaratur which the appellant seeks is not clear as it is couched inelegantly and offends the mandatory provisions of the Rules that require proper drafting of pleadings.

He further submitted, that, the appellant is trying to surreptitiously seek a declaratory order whereas in the court a quo she sought an interdict. He submitted that the court a quo did not deal with the question of a declaratur, and, in the circumstances it cannot be the subject matter of the instant appeal.

In that regard, he prayed that the application to amend be dismissed with costs.

I have deliberately underlined the word “declares” in the amendment sought. This is so for the following reasons:

(i) Firstly, the appellant is raising an issue that was not before the court a quo. The proceedings a quo related to an application for an interdict preventing the President from appointing a Tribunal and an order staying the work of such a Tribunal if it had already been appointed.

It is settled that this Court is not a court of first instance especially in matters relating to granting a declaratur.

In Guwa & Anor v Willoughbys Investments (Pvt) Ltd 2009 (1) ZLR 368 (S)…, this Court held that:

“It is clear from these provisions that the Supreme Court is a creature of Statute and that it derives its jurisdiction specifically from the Supreme Court Act and other legislative provisions. In other words, although it is the highest court in the land, its powers are regulated strictly by Statute. It is not a Court of first instance. It has no original jurisdiction but only appellate, since it was created by statute purely as a Court of Appeal.

Nowhere in the Supreme Court Act, nor in the Rules of the Court, is the Supreme Court given jurisdiction to entertain, in the first instance, an application for a declaratur. Whilst in terms of section 25 of the Supreme Court Act every Judge of the Supreme Court shall have the same review power and authority as are vested in the High Court to review proceedings, no person has the right to institute any review in the first instance before the Supreme Court.”

Similarly, in Mutasa & Anor v The Registrar of the Supreme Court & Ors 2018 (1) ZLR 461 (S) it was held that…,:

“Clearly, the Supreme Court cannot grant a declaratur in the first instance, even where the parties may be in agreement and approach the court by consent seeking an order beyond the court's jurisdiction, such consent does not and cannot compel a judge to issue an order beyond his or her jurisdictional authority.”

Counsel for the appellant's argument, that the appellant sought a declaratur in the final relief and therefore the issue was ventilated before the court a quo, is untenable.

The judgment of the court a quo is clear that it did not relate to the requirements of a declaratur but to those of an interim interdict.

It is thus my view, that, the appellant seeks to make this Court a second court of first instance.

The case before the court a quo was one for an interim interdict, it examined the requirements of such interdict. It did not deal with the question of a declaratur at all, and, in the circumstances, it cannot be the subject matter of this appeal.

I agree with counsel for the second, third, and fourth respondents, that, in making the application to amend the relief sought, the appellant is trying to surreptitiously seek a declaratory order from this Court.

The above authorities are categoric that this Court cannot grant a declaratur in the first instance.

In my view, what the appellant seeks cannot be termed an amendment, but, rather, an abandonment of the original relief and the replacement or substitution with a totally different and new relief.

The application to amend the relief sought cannot therefore succeed.

Counsel for the appellant referred the court to Francis Bere v Judicial Service Commission & Ors SC01-22 as authority for the proposition that the fact that a matter is moot is no bar for the court to hear the matter.

Francis Bere v Judicial Service Commission & Ors SC01-22 is clearly distinguishable from the case in casu.

In Francis Bere v Judicial Service Commission & Ors SC01-22, Bere approached the High Court in terms of section 4 of the Administrative Justice Act [Chapter 10:28] on the basis that the respondents had failed to comply with the provisions of section 3(1)(a) of the Administrative Justice Act. He raised five grounds in support of his contention.

This is what the High Court was seized with. It dismissed the application.

Disgruntled by the decision he appealed to this Court.

This Court, having found that the matter was moot decided that the matter was sufficiently important to warrant a departure from the general rule and it exercised its discretion to hear the merits of the matter.

In dealing with the appeal, the court related to the points in limine and the grounds for review raised and ventilated before the court a quo. It examined the correctness or otherwise of the decision of the court a quo on the issues ventilated before it. It concluded that the appeal had no merit and dismissed it.

In casu, the appellant is asking this Court to examine the correctness of the decision of the court a quo in relation to an issue that was not ventilated before it.

This, the court cannot do.

It is for the above reasons that this Court declines to exercise its discretion to hear the appeal which is now moot.

DISPOSITION

In Thokozani Khupe & Anor v Parliament of Zimbabwe & Ors CC20-19 the court found that the case did not fall into the category of cases where the court may exercise its discretion to hear a moot case in order to settle an important legal question. It therefore proceeded to dismiss the application.

This Court, in MDC & Ors v Mashavira & Ors SC56-20 and ZIMSEC v Mukomeka and Anor SC10-20 associated itself with the above stated position, that, a court may decline to exercise its jurisdiction over a matter that is moot.

In South Africa, the Supreme Court is guided by section 16(2)(a)(i) of the South African Supreme Court Act….,.

The same position prevails in the United States of America.

In the case of Mills v Green 159 US 651 (1895)…, the Federal Supreme Court held as follows:

“It necessarily follows, that, when pending an appeal from the judgment of a lower court, and without any fault of the defendant, an event occurs which renders it impossible for this Court, if it should decide the case in favour of the plaintiff, to grant him any effectual relief whatever, the court will not proceed to a formal judgment, but will dismiss the appeal.”

From the above authorities, it is settled that where the court makes a finding that an appeal is moot and declines to exercise its discretion to hear the appeal in the interests of justice, the court declines jurisdiction and dismisses the matter.

That is the fate that befalls the present appeal.

Everything considered, the appeal is clearly moot. The relief that the appellant seeks has been overtaken by events. There is no longer any live dispute between the parties for the court to resolve. Furthermore, the case does not fall into the category of cases where the court can exercise its discretion to hear a moot matter in the interests of justice.

On the issue of costs, there is no reason to depart from the general principle that costs follow the cause.

In the result, it is accordingly ordered as follows:

The appeal be and is hereby dismissed with costs.

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Appeal, Leave to Appeal, Leave to Execute Pending Appeal re: Grounds of Appeal iro Belated Pleadings ito Approach

View Appeal
SC59-16 : ZIMRE PROPERTY INVESTMENTS LIMITED vs SAINTCOR (PVT) LTD t/a V. TRACK and JOHN SHUMBA
Ruled By: ZIYAMBI JA, GARWE JA and GOWORA JA

HH99-18 : C F (PVT) LTD vs ZIMBABWE REVENUE AUTHORITY
Ruled By: KUDYA J

CC10-22 : FRANCIS BERE vs JUDICIAL SERVICE COMMISSION and SIMBI MUBAKO and REKAYI MAPOSA and TAKAWIRA NZOMBE and VIRGINIA MABHIZA and PRESIDENT OF ZIMBABWE and MINISTER OF JUSTICE LEGAL & PARLIAMENTARY AFFAIRS
Ruled By: GARWE JCC, HLATSHWAYO JCC and PATEL JCC

CC07-15 : DANIS KONSON vs THE STATE
Ruled By: CHIDYAUSIKU CJ, MALABA DCJ, GWAUNZA JCC, GARWE JCC, GOWORA JCC, HLATSHWAYO JCC, PATEL JCC, GUVAVA JCC and MAVANGIRA AJCC

Appealed
SC75-17 : EDWARD MADYAVANHU vs REGGIE SARUCHERA and GRANT THORNTON CAMELSA CHARTERED ACCOUNTANTS (ZIMBABWE) and CAIRNS FOODS LTD
Ruled By: GWAUNZA JA, GUVAVA JA and ZIYAMBI AJA

Appealed
SC179-20 : MFUNDO MLILO vs THE PRESIDENT OF THE REPUBLIC OF ZIMBABWE
Ruled By: GARWE JA, MAKARAU JA and MAKONI JA

HH411-15 : TENDAI MASAMBA vs ZIMBABWE ELECTRICITY TRANSMISSION AND DISTRIBUTION COMPANY (PVT) LTD
Ruled By: CHIWESHE JP and CHITAKUNYE J

SC74-22 : NEW LIFE COVENANT CHURCH vs TRUSTEES OF THE HARARE WETLANDS TRUST and DIRECTOR OF WORKS, CITY OF HARARE and CITY OF HARARE
Ruled By: MAVANGIRA JA, CHATUKUTA JA and MWAYERA JA

Appealed
SC31-22 : NMB BANK LIMITED vs FORMSCAFF (PVT) LTD and PENNIWILL (PVT) LTD and RODNEY CALLAGHAN and MILLICENT CALLAGHAN and CHARLES CANNINGS and CLIFFORD JOHNSON and LESLEY BENNET
Ruled By: GARWE JA, PATEL JA and GUVAVA JA

SC34-22 : NICHOLAS MUKARATI vs PIONEER COACHES (PRIVATE) LIMITED
Ruled By: GWAUNZA DCJ, MATHONSI JA and CHITAKUNYE JA

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

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

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Law Portal Zimbabwe

Appeal, Leave to Appeal, Leave to Execute Pending Appeal re: Grounds of Appeal iro Belated Pleadings ito Approach

View Appeal SC59-16 : ZIMRE PROPERTY INVESTMENTS LIMITED vs SAINTCOR (PVT) LTD t/a V. TRACK and JOHN SHUMBA Ruled By: ZIYAMBI JA, GARWE JA and GOWORA JA

HH99-18 : C F (PVT) LTD vs ZIMBABWE REVENUE AUTHORITY Ruled By: KUDYA J

CC10-22 : FRANCIS BERE vs JUDICIAL SERVICE COMMISSION and SIMBI MUBAKO and REKAYI MAPOSA and TAKAWIRA NZOMBE and VIRGINIA MABHIZA and PRESIDENT OF ZIMBABWE and MINISTER OF JUSTICE LEGAL & PARLIAMENTARY AFFAIRS Ruled By: GARWE JCC, HLATSHWAYO JCC and PATEL JCC

CC07-15 : DANIS KONSON vs THE STATE Ruled By: CHIDYAUSIKU CJ, MALABA DCJ, GWAUNZA JCC, GARWE JCC, GOWORA JCC, HLATSHWAYO JCC, PATEL JCC, GUVAVA JCC and MAVANGIRA AJCC

Appealed SC75-17 : EDWARD MADYAVANHU vs REGGIE SARUCHERA and GRANT THORNTON CAMELSA CHARTERED ACCOUNTANTS (ZIMBABWE) and CAIRNS FOODS LTD Ruled By: GWAUNZA JA, GUVAVA JA and ZIYAMBI AJA

Appealed SC179-20 : MFUNDO MLILO vs THE PRESIDENT OF THE REPUBLIC OF ZIMBABWE Ruled By: GARWE JA, MAKARAU JA and MAKONI JA

HH411-15 : TENDAI MASAMBA vs ZIMBABWE ELECTRICITY TRANSMISSION AND DISTRIBUTION COMPANY (PVT) LTD Ruled By: CHIWESHE JP and CHITAKUNYE J

SC74-22 : NEW LIFE COVENANT CHURCH vs TRUSTEES OF THE HARARE WETLANDS TRUST and DIRECTOR OF WORKS, CITY OF HARARE and CITY OF HARARE Ruled By: MAVANGIRA JA, CHATUKUTA JA and MWAYERA JA

Appealed SC31-22 : NMB BANK LIMITED vs FORMSCAFF (PVT) LTD and PENNIWILL (PVT) LTD and RODNEY CALLAGHAN and MILLICENT CALLAGHAN and CHARLES CANNINGS and CLIFFORD JOHNSON and LESLEY BENNET Ruled By: GARWE JA, PATEL JA and GUVAVA JA

SC34-22 : NICHOLAS MUKARATI vs PIONEER COACHES (PRIVATE) LIMITED Ruled By: GWAUNZA DCJ, MATHONSI JA and CHITAKUNYE JA

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

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

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View Appeal
SC59-16 : ZIMRE PROPERTY INVESTMENTS LIMITED vs SAINTCOR (PVT) LTD t/a V. TRACK and JOHN SHUMBA
Ruled By: ZIYAMBI JA, GARWE JA and GOWORA JA

HH99-18 : C F (PVT) LTD vs ZIMBABWE REVENUE AUTHORITY
Ruled By: KUDYA J

CC10-22 : FRANCIS BERE vs JUDICIAL SERVICE COMMISSION and SIMBI MUBAKO and REKAYI MAPOSA and TAKAWIRA NZOMBE and VIRGINIA MABHIZA and PRESIDENT OF ZIMBABWE and MINISTER OF JUSTICE LEGAL & PARLIAMENTARY AFFAIRS
Ruled By: GARWE JCC, HLATSHWAYO JCC and PATEL JCC

CC07-15 : DANIS KONSON vs THE STATE
Ruled By: CHIDYAUSIKU CJ, MALABA DCJ, GWAUNZA JCC, GARWE JCC, GOWORA JCC, HLATSHWAYO JCC, PATEL JCC, GUVAVA JCC and MAVANGIRA AJCC

Appealed
SC75-17 : EDWARD MADYAVANHU vs REGGIE SARUCHERA and GRANT THORNTON CAMELSA CHARTERED ACCOUNTANTS (ZIMBABWE) and CAIRNS FOODS LTD
Ruled By: GWAUNZA JA, GUVAVA JA and ZIYAMBI AJA

Appealed
SC179-20 : MFUNDO MLILO vs THE PRESIDENT OF THE REPUBLIC OF ZIMBABWE
Ruled By: GARWE JA, MAKARAU JA and MAKONI JA

HH411-15 : TENDAI MASAMBA vs ZIMBABWE ELECTRICITY TRANSMISSION AND DISTRIBUTION COMPANY (PVT) LTD
Ruled By: CHIWESHE JP and CHITAKUNYE J

SC74-22 : NEW LIFE COVENANT CHURCH vs TRUSTEES OF THE HARARE WETLANDS TRUST and DIRECTOR OF WORKS, CITY OF HARARE and CITY OF HARARE
Ruled By: MAVANGIRA JA, CHATUKUTA JA and MWAYERA JA

Appealed
SC31-22 : NMB BANK LIMITED vs FORMSCAFF (PVT) LTD and PENNIWILL (PVT) LTD and RODNEY CALLAGHAN and MILLICENT CALLAGHAN and CHARLES CANNINGS and CLIFFORD JOHNSON and LESLEY BENNET
Ruled By: GARWE JA, PATEL JA and GUVAVA JA

SC34-22 : NICHOLAS MUKARATI vs PIONEER COACHES (PRIVATE) LIMITED
Ruled By: GWAUNZA DCJ, MATHONSI JA and CHITAKUNYE JA

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

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