Final Orders re: Approach iro Handing Down of Judgment ito Implied Determination and the Severability of Judgments

Appealed
SC119-21 : MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS and OTHERS vs CONCILIA CHINANZVAVANA and THE NATIONAL PEACE AND RECONCILIATION COMMISSION
Ruled By: GWAUNZA DCJ, GUVAVA JA and BHUNU JA

This is an appeal against the entire judgment of the High Court sitting at Masvingo dated 13 March 2019. In this case, the court a quo granted a declaratory order sought by the first respondent in the following terms:

“The National Peace and Reconciliation Commission that is established in terms of section 251 of the Constitution shall have a tenure of life of ten (10) years deemed to have commenced on the 5th of January 2018 with the gazetting as law of the National Peace and Reconciliation Act [Chapter 10:32].”

Aggrieved by the order, the appellants (Minister of Justice, Legal and Parliamentary Affairs, President of the Republic of Zimbabwe, Vice President of the Republic of Zimbabwe and the Attorney General of Zimbabwe) have appealed to this court for relief.

BACKGROUND FACTS

The first respondent filed an application for a declaratory order on the 8th of October 2018, before the court a quo, in terms of section 85(1)(a) of the Constitution of Zimbabwe, 2013. The first respondent grounded her application on an alleged violation of section 56(1) of the Constitution of Zimbabwe 2013. She alleged that her fundamental right to equal protection of the law had been violated by the conduct of the appellants who had failed to enact the National Peace and Reconciliation Act (NPRC Act) in time and thus curtailed the life of the Commission by five years.

As a result of the alleged breach, she sought an order, that, it be declared that the second respondent's life tenure of ten years be deemed to have commenced from the 5th of January 2018 when the National Peace and Reconciliation Act (NPRC Act) was promulgated into law.

In the application, the first respondent's founding affidavit was divided into three parts:

(i) The first part related to the history and formation of the second respondent. The first respondent averred that the Constitution of Zimbabwe Amendment (No.20) Act 2013 ('the Constitution') introduced a number of key and revolutionary changes, chief amongst them being the creation of several Commissions. It was the first respondent's argument, that, the second respondent was one of the Commissions that was created. It was to operate for not more than ten years and had the mandate, in the main, of investigating human rights violations that were alleged to have occurred in 2008 in Zimbabwe.

The first respondent further averred, that, the Government of Zimbabwe had unilaterally amended section 251 of the Constitution by failing to ensure that the second respondent was established as soon as possible after the coming into operation of the Constitution thereby resulting in the Commission only being established after the National Peace and Reconciliation Act (NPRC Act) was enacted into law on the 5th of January 2018.

This was five (5) years after the coming into operation of the Constitution.

It was the first respondent's contention, that, this resulted in the second respondent having an existence of only five (5) years, that is, to August 2023. It was also the first respondent's averment that the failure by the Government of Zimbabwe to ensure that the effective date of the establishment of the second respondent, immediately after the coming into effect of the Constitution, amounted to a breach of her fundamental right to equal protection of the law as enshrined in the Constitution under section 56.

(ii) The second part of the founding affidavit dealt with the issue of whether or not the first respondent had locus standi to make the application and the legal basis upon which the application was before the court a quo.

The first respondent averred, that, she was a national executive member of the Movement for Democratic Change (MDC) Alliance for Mashonaland West. She further averred that she was making the application in terms of section 85(1)(a) of the Constitution, acting in her own interest, to ensure peace and reconciliation in Zimbabwe. She further alleged, that, her rights, in terms of section 56(1) of the Constitution, had been violated. She thus alleged that she had the requisite interest in the matter to bring the application in terms of section 85(1)(a) of the Constitution.

(iii) The last part of the founding affidavit dealt with an alleged ordeal that the first respondent and her family suffered in the hands of State security agents. She alleged that after the 2008 harmonized election, violence erupted in Zimbabwe and left many (including the first respondent and her family) displaced or dead. As a result of this violence, the first respondent and her husband allegedly fled from their home in Mashonaland West to Harare and stayed at Harvest House and at other MDC Alliance activists homes. The first respondent further alleged, that, she and her husband and other MDC activists were taken to Braeside Police Station and were detained for fifty-five (55) days. It was in the hands of the said police officers that the first respondent, her husband, and other activists were subjected to torture and abuse.

The first respondent further alleged, that, they were subsequently taken to Ahmed House where they were charged with terrorism, sabotage, and insurgence. The first respondent, and others, were taken to Harare Magistrates Court where they were remanded in custody. It was also alleged that the first respondent, her husband, and other activists were released after one Jestina Mukoko successfully filed an application to the Constitutional Court and the Court ordered that they be released as their original arrest was unlawful.

It was on this basis that the first respondent sought a declaratory order that the second respondent has life tenure with effect from 5 January 2018 to 5 January 2028 so that it could look into the alleged atrocities alleged in the founding affidavit.

Initially, the appellants had only opposed the application based on a preliminary objection to the application without addressing the merits of the matter. The objection was to the effect that the declaratory order sought by the first respondent was incompetent at law as she sought to amend the Constitution through a court order.

The court a quo however directed the appellants to file an opposing affidavit on the merits.

In opposing the application, the appellants denied the averments made by the first respondent in her founding affidavit with regards to the establishment of the second respondent. Further, it was denied that the appellants amended section 251 of the Constitution as the second respondent was established and was in existence from the effective date when the Constitution was promulgated notwithstanding the absence of the National Peace and Reconciliation Act (NPRC Act).

In dealing with the application, the court a quo dismissed the appellants preliminary objection.

On the merits, the court invoked various techniques of statutory interpretation and found, that, an interpretation of section 251(1) of the Constitution showed that reference to ten (10) years was in relation to the life of the second respondent after the effective date and not the period within which it had to be established. With that, the court held that the second respondent ought to have been established immediately after, or as soon as practicable, after the effective date.

As a result of this interpretation, the court found that the first respondent was entitled to the declaratory order sought and granted the order that I have already set out above.

SUBMISSIONS BEFORE THIS COURT

Counsel for the appellants motivated the appeal, in the main, on the basis, that, the court a quo erred in granting the declaratory order as it had the effect of amending section 251(1) of the Constitution.

Before the first respondent replied to the submissions by counsel for the appellants, the Court directed counsel for the first respondent to address it on two issues that were not apparent from the judgment made by the court a quo:

(i) The first issue related to the manner in which the first respondent's right to equal protection of the law was violated.

(ii) Secondly, whether the court a quo made a determination, that such right was indeed violated or was in danger of being violated.

Counsel for the first respondent submitted, that, the first respondent made the application in terms of section 85(1)(a) of the Constitution on the basis that her fundamental right, in terms of section 56(1), had been violated. He further submitted, that, in making the application, the first respondent's right also emanated from section 324 of the Constitution, and, as such, the right had to be protected in terms of section 56(1).

He however conceded, that, the court a quo did not make a finding that the fundamental right had been violated.

He submitted that since the court had granted the declaratur sought, it could be assumed that the court had found that the first respondent's rights had been or were likely to be violated.

It was also his submission, that, once the court found that the appellant had acted unlawfully, then, it was incumbent upon the court to grant the declaratur as the court could not ignore a Constitutional invalidity in terms of section 324 of the Constitution.

Counsel for the first respondent further argued, that, the argument by the appellants, that the second respondent came into effect after the promulgation of the Constitution in 2013 was devoid of merit as such argument meant that the life period of the National Peace and Reconciliation Commission was curtailed by five (5) years.

ANALYSIS

It appears to me from the submissions made, that, the determination of a single issue will potentially have the effect of resolving the matter.

The issue for determination by this Court is whether or not the court a quo erred in granting the declaratory order sought by the first respondent without first finding whether or not the first respondent's rights, in terms of section 56(1) of the Constitution, had been violated.

It is quite apparent from the founding affidavit by the first respondent that she approached the court in terms of section 85(1) of the Constitution seeking a declaratory order on the basis that her constitutional right enshrined in section 56(1) had been violated.

At paragraph 26 of the founding affidavit, the applicant stated thus:

“I therefore contend that my Constitutional right to equal protection of the law, as protected by section 56(1) of the Constitution, has been breached by appellant's actions in failing to ensure that the Commission was in existence and would operate effectively for the ten (10) years envisaged in section 251 of the Constitution.”

At paragraph 78, the applicant again reiterates that she is bringing the application in terms of section 85(1)(a) of the Constitution on the basis that her rights under section 56(1) of the Constitution have been violated.

It is therefore necessary, at the outset, to establish whether or not the applicant approached the court correctly in terms of section 85(1)(a) and thereafter assess whether or not the court found that her rights had been violated.

Section 85(1) of the Constitution provides:

“Any of the following persons, namely:

(a) Any person acting in their own interests;

(b)…,.

(c)…,.

(d)…,.

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

A proper interpretation of the above provision is that once a person approaches a court, on the basis of section 85(1)(a) of the Constitution, the court must make a determination on the following issues:

(i) That the person approaching the court has an interest in the matter; and

(ii) That the person is alleging that a fundamental right in Chapter 4 has been, is being, or is likely to be violated in respect to her.

See Meda v Sibanda & Anor 2016 (2) ZLR 232 (CC)…,.

A reading of the judgment of the court a quo shows that the court did not make a determination on the above issues.

The court a quo clearly did not consider that the case before it was a section 85(1) application which required that the first respondent satisfies the court that she was properly before it and that she had the requisite interest.

This point was emphasized in Loveness Mudzuru & Anor v Minister of Justice, Legal & Parliamentary Affairs N.O. & 2 Ors CC12-15 where MALABA DCJ…, stated…, that:

“The person claiming the right to approach the court must show, on the facts, that he or she seeks to vindicate his or her own interest adversely affected by an infringement of a fundamental right or freedom. The infringement must be in relation to himself or herself as the victim or there must be harm or injury to his or her own interests arising directly from the infringement of a fundamental right or freedom of another person.”

On the basis of the above, I find, with respect, that the court a quo grossly misdirected itself in failing to consider the cause of action of the case that was before it.

The full judgment of the court a quo makes no reference at all to the basis upon which the application was made. There is no reference to the application being a section 85(1) application.

Instead, the court a quo launched into the rules of statutory interpretation without applying its mind to the case before it or making any specific finding of whether or not the applicant before it had the requisite interest to launch the application.

It is of importance to note, that, in her founding affidavit, the first respondent averred that her legal interest in bringing the application was founded on the basis of a violation of a fundamental right under section 56(1) of the Constitution.

It is trite that the interest that an applicant must allege in section 85 of the Constitution is a legal interest in the matter not just that of a busy body who wants to poke their nose into any matter that does not concern them.

I note, in passing, that, the court made no finding whether or not the first respondent was properly before it.

Turning to the crux of the matter before me: it is my view, that, the matter turns on a determination of whether or not the court made a finding that the first respondent's rights under section 56(1) had been violated.

It is trite, that, where a litigant approaches the court under section 85(1) of the Constitution, alleging that her rights have been violated, it is incumbent upon the court to make a determination on this point. In other words, a section 85(1) application requires the applicant to allege and prove an infringement of his or her fundamental right.

The making of such a determination is what triggers the remedy that the court will eventually make in order to grant relief to the applicant. In other words, a declaratory order made in terms of section 85(1) of the Constitution cannot be made in the air. It must be based upon a finding that the applicant's rights had been or were likely to be breached.

Section 56 of the Constitution, upon which the first respondent founded her claim, reads as follows:

“56 Equality and non-discrimination

(1) All persons are equal before the law and have the right to equal protection and benefit of the law.

(2) Women and men have the right to equal treatment, including the right to equal opportunities in political, economic, cultural, and social spheres.

(3) Every person has the right not to be treated in an unfairly discriminatory manner on such grounds as their nationality, race, colour, tribe, place of birth, ethnic or social origin, language, class, religious belief, political affiliation, opinion, custom, culture, sex, gender, marital status, age, pregnancy, disability or economic or social status, or whether they were born in or out of wedlock.

(4) A person is treated in a discriminatory manner for the purpose of subsection (3) if -

(a) They are subjected, directly or indirectly, to a condition, restriction, or disability to which other people are not subjected; or

(b) Other people are accorded, directly or indirectly, a privilege or advantage which they are not accorded.

(5) Discrimination, on any of the grounds listed in subsection (3), is unfair, unless, it is established that the discrimination is fair, reasonable, and justifiable in a democratic society based on openness, justice, human dignity, equality, and freedom.

(6) The State must take reasonable legislative and other measures to promote the achievement of equality and to protect or advance people or classes of people who have been disadvantaged by unfair discrimination; and —

(a) Such measures must be taken to redress circumstances of genuine need;

(b) No such measure is to be regarded as unfair for the purposes of subsection (3).”

Section 56 of the Constitution is a non-discriminatory provision. It guarantees equality before the law. In other words, for a person to prove a violation under this provision, he or she must not only prove unequal or different treatment but also that others in a similar position were afforded such protection.

In the case of Samuel Sipepa Moyo v Minister of Local Government, Rural & Urban Development & 2 Ors CC06-16, the court had reason to interpret the meaning and application of this provision. At p8 of the judgment, the court stated:

“In order to found his reliance on this provision, the applicant must show, that, by virtue of the application of a law, he has been the recipient of unequal treatment or protection; that is to say, that, certain persons have been afforded some protection or benefit by a law, which protection or benefit he has not been afforded; or that persons in the same or similar position as himself have been treated in a manner different from the treatment meted out to him and that he is entitled to the same or equal treatment as those persons.”

Applying the above to the facts of this case, I take the view, that, it was incumbent upon the first respondent to satisfy the court a quo that her rights had been or were in danger of being violated and that others in a similar position had been treated differently. The court a quo was thus obliged to interrogate the evidence presented a quo and make a specific finding that her rights, as enshrined in section 56(1), had been or were in danger of being violated.

It was only after making such a finding, that the court could make the order sought by the applicant before it on the basis that it was granting relief in terms of section 85 of the Constitution.

Firstly, the first respondent, in her founding affidavit, did not aver that she had suffered from unequal treatment or differentiation. She did not allege that she was denied protection whilst others in a similar position as her had been afforded such protection.

Secondly, a reading of the judgment of the court a quo indicates, that, no finding of this important consideration was made.

This point was conceded by counsel for the first respondent.

Indeed, he would have been hard pressed to argue otherwise as, nowhere in the judgment, does the court refer either to section 85(1) or to section 56(1) of the Constitution upon which the application is founded. A finding on this point would have opened the door for the relief sought by the first respondent.

The court a quo thus erred and misdirected itself in this respect.

I was not persuaded by the argument by counsel for the first respondent that the court should find, that, in granting the declaratur it must have found that that there was a violation of section 56(1) of the Constitution as otherwise it would not have granted the relief sought.

However, it is my view that the matter cannot be resolved in this way.

A reading of the judgment shows that the Court was clearly not concerned with this issue. Its only concern was interpreting section 251 of the Constitution.

It was also not apparent what law was applied to make the declaratory order. A declaratory order is generally made in terms of section 14 of the High Court Act [Chapter 7:06].

The court a quo did not interrogate the requirements for the grant of a declaratory order in this case.

Whatever the basis of the relief granted, it remained embedded in the mind of the court and was not reduced to writing.

HH497-17 : RICHARD MATTHEWS vs CASTER INTERNATIONAL (PVT) LTD
Ruled By: CHATUKUTA J

The applicant is an ex-employee of the respondent.A dispute between the applicant and the respondent was referred for arbitration. On 28 June 2012, Justice Smith issued an arbitral award in favour of the applicant. The award set the amounts due to the applicant as salary for August 2007 and severance ...

HH626-15 : TIAN ZE TOBACCO COMPANY (PRIVATE) LIMITED vs VUSUMUZI MUNTUYEDWA
Ruled By: MATHONSI J

This is an application for the registration of an arbitral award issued by J Mambara, an arbitrator, on 21 October 2014, in terms of which the respondent was directed to pay the applicant a sum of $43,800=26 plus interest at the rate of 5 per cent per annum from 30 September 2012 and costs of suit on a legal practitioner and client scale.

The arbitration was conducted in terms of an arbitration clause in the agreement of the parties.

The amount in question is the purchase price of farming inputs sold and delivered to the respondent, a farmer.

The reasons for opposing the application, as appears from the opposing affidavit of the respondent, are tenuous to say the least.

They are, that, the deponent of the founding affidavit, Loveness Ngwaga, despite stating in the affidavit that she is authorised to depose to the affidavit as the applicant's Legal Officer, does not have such authority because she has not attached a company resolution to that effect.

While admitting that he owes the applicant the money, the respondent asserts that the “award is unregisterable for want of proper identity” in that the arbitration was done in terms of the Arbitration Act [Chapter 7:15], but, the arbitrator went on to issue a certificate in terms of section 98(13) of the Labour Act [Chapter 28:01].

For those two reasons, the respondent urged of me the dismissal of the application with costs....,.

The second line of opposition relates to the unfortunate, and patently erroneous certificate issued by the arbitrator, clearly outside the arbitration process, in terms of section 98(13) of the Labour Act [Chapter 28:01].

Mr Mambara must be so used to arbitrating labour disputes that he quickly generates that certificate like an automaton, a machine without feeling. There was no need for him to issue a certificate in the first place because the arbitration was not in terms of the Labour Act but in terms of the Arbitration Act.

The question, however, is whether the unsolicited certificate which the applicant unwittingly attached to the application, nullified the award.

Of course the respondent gladly latched onto it; it having been Christmas come early for a litigant which had no other defence to the application.

I think not.

The certificate was as unnecessary in the scheme of things as it was a nullity. It cannot even rub off its null effect onto an arbitral award properly issued, as suggested by counsel for the respondent.

In terms of Article 36 of the Model Law, contained in the Arbitration Act [Chapter 7:15], the recognition or enforcement of an arbitral award may only be refused at the request of the party against whom it is invoked if that party can show proof that:

1. A party to an arbitral award was under some incapacity or the agreement was invalid under the law to which the parties subjected it to, or under the law of the country.

2. The party was not given proper notice of the appointment of an arbitrator or the proceedings or was otherwise unable to present his case.

3. The award deals with a dispute not contemplated or not falling within the terms of reference to arbitration.

4. The composition of the arbitral tribunal was not in accordance with the agreement or the law of the country.

5. The award has not yet become binding on the parties or has been set aside or suspended by a court of law.

6. The court finds, that, the subject matter of the dispute is not capable of settlement by arbitration under Zimbabwean law or recognition or enforcement will be contrary to the public policy of Zimbabwe.

See Tapera and Others v Fieldspark Investments (Pvt) Ltd HH102-13; Zesa v Maposa 1999 (2) ZLR 455 (S)…,.; Delta Operations v Origen Corp (Pvt) Ltd 2007 (2) ZLR 81 (S)…,.

The respondent has not set out any of the above grounds for refusal to recognise or enforce an arbitral award.

It would be stretching logic to elasticity limit to hold, that, the inclusion of an invalid and extremely unnecessary certificate, purportedly issued in terms of an irrelevant statute, amounts to saying that the award itself deals with a dispute not contemplated or not falling within the terms of reference of the arbitration as the respondent would want to insinuate.

That certificate remained outside the award and exceedingly useless.

HH707-15 : RICHARD MATTHEWS vs CRASTER INTERNATIONAL (PRIVATE) LIMITED
Ruled By: MAFUSIRE J

This was an application for the registration of an arbitral award. It was opposed.

Before the arbitrator, the within named applicant was the Claimant. The respondent herein was also the respondent therein.

The applicant was a former employee of the respondent.

The arbitration happened after the cessation of the employer-employee relationship. That cessation had been mutually and amicably agreed upon. Both parties were also agreed, in principle, that, the applicant was due a terminal package. However, they were not agreed as to the nature and quantum of that package.

It was for the determination of the appropriate terminal package that the matter was referred to arbitration.

The arbitrator was a retired judge of this court, Justice Smith. The operative part of his award read as follows:

“My award, therefore, is that the Respondent pays the Claimant -

(a) USD7,000 being his salary for August 2007;

(b) USD42,000 as a severance package;

(c) Cash-in-lieu of the leave he had acquired and not taken as at 4 September 2009 in line with the Respondent's leave policies.”

I have highlighted paragraph (c) of the award because argument for and against registration was partly centred on it.

The proceedings before me commenced by way of a chamber application. The heading to the application was:

“CHAMBER APPLICATION FOR REGISTRATION OF AN ARBITRAL AWARD IN TERMS OF SECTION 98(14) OF THE LABOUR ACT”

The highlighted portion was another source of argument.

The applicant vehemently sought to disown the reference to section 98(14) of the Labour Act, saying it was a mistake. He said his application had been made in terms of Article 35 of the Arbitration Act [Chapter 7:15], and not in terms of the Labour Act [Chapter 28:01].

On the other hand, the respondent sought to firmly bind the applicant to the letter of his heading.

It shall soon become apparent why the parties took such positions.

The opposition to the application was based on four grounds:

(i) The first was that paragraph (c) of the arbitral award did not sound in money. As such, it was unregistrable.

For support, the respondent cited the cases of Mandiringa & Ors v National Social Security & Ors 2005 (2) ZLR 329 (H) and Herbert Sauramba & Ors v Mitchells Bakery Mutare HH134-10.

(ii) The second ground of opposition was that the award had made no provision for Pay As You Earn tax (“PAYE”) in terms of the Income Tax Act [Chapter 23:06]. As such, the award was incomplete and therefore not registrable. Otherwise, to register it in that form, the court would be countenancing an illegality.

(iii) The third ground of opposition was that the applicant had failed to attach to his application for registration, a duly authenticated original of the arbitral award or a duly certified copy thereof. As such, he had breached the peremptory provisions of the Arbitration Act.

(iv) The fourth and last ground of opposition was that the respondent had earlier on obtained an arbitral award of its own against the applicant for an amount far in excess of what the applicant had been awarded in the arbitral award that he was seeking to register. As such, the principle of set-off had to be applied in order to do justice between man and man.

Otherwise, it would be inequitable that the applicant, who was owed much less by the respondent, should seek to recover from the respondent, which was owed much more by the applicant, when the two arbitral awards in question were intrinsically linked to each other, more particularly in that they had arisen out of the same set of facts and from the same relationship....,.

(b) Arbitral award not sounding in money

As I understand them, the ratio decidendi of Mandiringa & Ors v National Social Security & Ors 2005 (2) ZLR 329 (H) and Herbert Sauramba & Ors v Mitchells Bakery Mutare HH134-10 was that the purpose of registering an arbitral award, in terms of section 98(14) of the Labour Act, is so that it can be enforced; that, as such, for one to sue out a writ of execution to enforce an arbitral award, it must necessarily sound in money, and that an award that does not specify the sum due is incomplete and incapable of registration as an order of this court.

In my view, section 98(14) of the Labour Act and Article 35 of the Arbitration Act are in pari materia.

On the face of it, both provisions facilitate the registration of arbitral awards with the conventional courts for the purpose of enforcement.

In section 98(14) of the Labour Act, any party to whom an arbitral award relates may submit for registration to either the court of the magistrate, or the High Court, the copy of the arbitral award given to him in terms of sub-section (13).

The choice of court depends on the quantum of the award. Any award in excess of the monetary jurisdictional limit of the Magistrate's Court is to be submitted to this court.

In Article 35 of the Arbitration Act, an arbitral award, irrespective of the country in which it was made, is binding upon its registration with this court.

That the purpose for registering an arbitral award, in terms of section 98(14) of the Labour Act, is for enforcement is made clear by the next sub-section, namely, subsection (15).

It says, that, where an arbitral award has been registered, it shall have the effect “…, for purposes of enforcement…,” of a civil judgment of the appropriate court.

Similarly, with Article 35 of the Arbitration Act, that the purpose for registration is enforcement is self-evident from both the intrinsic provisions of the Article itself as well as the heading to it.

Sub-article 35(1) of the Arbitration Act says that the arbitral award, upon application to the High Court “…, shall be enforced…,” subject to the other provisions.

Sub-article 35(2) of the Arbitration Act also provides that the party applying for the “…, enforcement…,” of the award has to submit the original or certified copy.

The heading of the Article as a whole is “Recognition and enforcement.”

In casu, the applicant sought to wriggle out of the provisions of section 98(14) of the Labour Act, evidently to escape the conclusion in Mandiringa & Ors v National Social Security & Ors 2005 (2) ZLR 329 (H) and Herbert Sauramba & Ors v Mitchells Bakery Mutare HH134-10.

In my view, for the respondent to have insisted on binding the applicant to section 98(14) of the Labour Act, just because the heading to his application said so, was to insist on form prevailing over substance.

It was common cause, that, the reference of the dispute to arbitration had not been made in terms of the Labour Act. The arbitrator had not been appointed in terms of the Labour Act. The reference to arbitration, and the appointment of the arbitrator, had both been made in terms of the Arbitration Act.

For the above reason, I accept the applicant's submission that the applicant's reference to section 98(14) of the Labour Act in the heading to his founding papers was a mistake.

Furthermore, other than that the mistake may have deprived the respondent, on the face of it, the immediate opportunity to automatically rely on the case authorities aforesaid, and, other than that the mistake may have inconvenienced both the respondent and the court, I find no other discernible prejudice caused to the respondent.

Therefore, the applicant's mistake, in referring to section 98(14) of the Labour Act in its heading to its application, is excused.

The application to amend the heading by deleting the reference to section 98(14) of the Labour Act is hereby granted.

However, excusing the applicant for the mistake aforesaid does not altogether determine the point in issue.

If section 98(14) of the Labour Act and Article 35 of the Arbitration Act are in pari materia, as I believe they are, then, in my view, a legal finding on the one should be relevant to the other.

I find myself in agreement, with all due respect, with the views of MAKARAU J…, in Mandiringa & Ors v National Social Security & Ors 2005 (2) ZLR 329 (H) and CHIWESHE JP in Herbert Sauramba & Ors v Mitchells Bakery Mutare HH134-10.

In casu, paragraph (c) of the arbitral award was undoubtedly incomplete.

If an award is one that must sound in money and it is not, then, in my view, it is incapable of registration. It is incomplete.

In this case, if the parties went for arbitration to determine the nature and quantum of the terminal package due to the applicant, then, it is rather surprising that they came out of that arbitration with only two-thirds of the award having been quantified.

An order that an employer must pay his ex-employee cash-in-lieu of the leave due to him, and not taken for the period in question, is not complete.

Counsel for the applicant argued that it was complete because the leave days and their sum total were both capable of easy ascertainment.

But, that kind of approach is precisely what was rejected in the cases referred to above.

In particular, in Mandiringa & Ors v National Social Security & Ors 2005 (2) ZLR 329 (H), MAKARAU J said…,.:

“The awards did not compute the loss that each employer had to make good even if he chose to reinstate the respective applicant. It is conceded that while such computations are relatively easy by comparing what a similarly placed employee received in emoluments over the same period, the issue remains, that, the quantum thereof is not part of the award made and was not determined as part of the arbitration proceedings in the presence of both parties. It was not agreed upon in any one of the matters.”…,.

I agree with the learned judge's approach.

In casu, paragraph (c) of the arbitral award did not specify the period the leave was due to the applicant. It did not specify the number of those leave days. Naturally, it did not specify the quantum. It did not state what the respondent's leave policies were.

Before me, none of the parties said they were agreed on any of these items. Thus, the field for potential disagreement on them in the future was vast.

Counsel for the applicant argued, that, this did not render the award incapable of registration.

He conceded, that, it was not possible to sue out a writ of execution to enforce that part of the award if it remained in that form. However, he argued that the parties could always go back to the arbitrator for clarification if a dispute subsequently arose.

But, that precisely is the problem. The award was simply incomplete.

Counsel for the applicant's approach would entail the registration application being made and being heard twice. In my view, there was no conceivable basis for overburdening this court like that. The applicant simply had to submit for registration an award that was complete.

Therefore, I hold that paragraph (c) of the arbitral award by Retired Justice Smith, on 28 June 2012, was incapable of registration as an order of this court because it was incomplete, more particularly, in that it did not sound in money.

However, holding that paragraph (c) of the award by the arbitrator was incapable of registration as an order of this court begs the further question, namely, whether it could be split or severed so that paragraphs (a) and (b) could be registered and (c) rejected.

This point did not squarely arise, either at the hearing or in the papers.

The nearest reference to it was in the respondent's heads of argument. After arguing that no remedy may be fashioned outside the provisions of the Arbitration Act and that neither can be availed by the court, paragraph 2.3 of the respondent's heads of argument went on to declare, that, the request to register paragraph (c) of the award had to be refused.

The submission seems to imply severability of the award.

In context, the respondent was objecting to the registration of the arbitral award as a whole, and not just paragraph (c) thereof.

However, with regards to paragraphs (a) and (b), the objection was that no PAYE tax had been provided for.

Thus, the argument that the award did not sound in money was peculiar to paragraph (c) only.

So, the argument did not address the question of severability.

Article 36 of the Arbitration Act provides the grounds upon which the recognition or enforcement of arbitral awards may be refused by this court.

One of them, in sub-article (1)(a)(iii), is that if the award deals with a dispute not contemplated by, or not falling within the terms of the submission to arbitration, or if the award contains decisions on matters beyond the scope of the submission to arbitration, then, recognition or enforcement may be refused.

It is the proviso to sub-paragraph (iii) of paragraph (a) of sub-article (1) of Article 36 of the Arbitration Act that permits the severability of an award. It says:

“[P]rovided that, if the decisions on matters submitted to arbitration can be separated from those not so submitted, that part of the award which contains decisions on matters submitted to arbitration may be recognized and enforced….,.”

In Confederation of Zimbabwe Industries v Mbatha HH125-15, MATHONSI J said that the Article allows the severance of an offending part of the award where appropriate.

However, other than Article 36(1)(a)(iii) aforesaid (and Article 34(2)(a)(iii), which says the same thing on the same subject matter, but in the context of an application to set aside an arbitral award) I have found no other provision dealing with the severability of an arbitral award for the purpose of registration with this court.

The situation dealt with by Article 36 (and Article 34) of the Arbitration Act, and the judgment in Confederation of Zimbabwe Industries v Mbatha HH125-15 is different from the one in the present matter.

In the present matter, the award by Retired Justice Smith did not deal with a dispute not contemplated by, or falling within the terms of the submission to arbitration. It did not contain decisions on matters beyond the scope of the submission to arbitration. It was simply incomplete in part.

So, did this render the whole award incapable of registration?

The question is not a moot point.

The award sought to be registered was not made by this court. It was made in another forum. The governing legislation does not provide for divisibility of awards made elsewhere when they are submitted for registration with this court.

If only paragraphs (a) and (b) of the award are registered they become an order of this court. But, to split the award in that manner would amount to transforming the arbitral award of the arbitrator.

I do not think the court can do that.

In my view, it does not matter that each of the paragraphs in the award seems to be stand-alone orders that deal with different heads of emoluments due to the applicant, and thus seem complete by themselves. But, if only paragraphs (a) and (b) are registered at this stage, then, the applicant may have to come back again sometime for the registration of paragraph (c), if he eventually gets it quantified. This then goes back to the point about the registration application having to be determined by this court piece meal. It serves to emphasize the incompleteness of the award.

The applicant brought this application prematurely.

The respondent argued, that, having seen that paragraph (c) of the award did not specify the amount, the applicant should have proceeded in terms of Article 33 of the Arbitration Act. This Article provides for the correction and interpretation of an award within thirty days of the receipt of the award, or within a longer period as may be agreed upon by the parties.

In paragraph (a) of sub-article (1), a party may, on notice to the other, request the arbitrator to, inter alia “…, give an interpretation of a specific point or part of the award.”

If the arbitrator considers the request to be justified, it shall make the correction or give the interpretation, within thirty days of the receipt of the request.

It was not explained why the applicant did not avail himself of this provision.

Now, with the view that I have taken in respect of the respondent's objection No.1, it is no longer necessary to deal with the rest of the other objections, namely, whether or not the award should have specified the amount of PAYE tax payable and whether or not set-off should apply.

DISPOSITION

In this matter, paragraph (c) of the arbitral award by Retired Justice Smith, dated 28 June 2012, relating to the payment of cash-in-lieu of leave, is not capable of registration as an order of this court as it is incomplete, more particularly, in that it does not sound in money, the amount due not having been specified.

Not being an order of this court, and there being no provision in law for the severability or separation of this type of award so as to register it in part, for the purpose of enforcement, the arbitral award, as a whole, is therefore not capable of registration.

In the circumstances, the application is dismissed with costs.

HH125-15 : CONFEDERATION OF ZIMBABWE INDUSTRIES vs RITA MBATHA
Ruled By: MATHONSI J

In terms of Article 34(2)(a)(ii) of the Uncitral Model Law:“An arbitral award may be set aside by the High Court only if the party making the application furnishes proof that the award deals with a dispute not contemplated by or not falling within the terms of the submission to arbitration, ...

HH134-10 : HERBERT SAURAMBA and 113 OTHERS vs MITCHELLS BAKERY MUTARE
Ruled By: CHIWESHE JP

In this matter, the applicants, all employees of the respondent company, had a grievance concerning non-payment of wages. The parties went for arbitration, and, an award was made in favour of the applicants on 14 November 2010.The applicants now seek to register the award with this court. The arbitral award ...

In this matter, the applicants, all employees of the respondent company, had a grievance concerning non-payment of wages. The parties went for arbitration, and, an award was made in favour of the applicants on 14 November 2010.

The applicants now seek to register the award with this court. The arbitral award reads as follows:

“6. Award

Wherefore, after hearing this case, I make the following order.

1. That, the employer had partially fulfilled what was arrived, and agreed, at the conciliation stage at the Ministry of Labour, which culminated in a certificate of settlement.

2. That, respondent pays all outstanding salaries by end of February 2010; in the event that respondent fails to pay by that date, that it pays with interest at the prevailing bank rates.

3. That, both parties share the cost of this arbitration.”

This application is made in terms of section 98(14) of the Labour Act [Chapter 28:01] which provides as follows:

“Any party to whom an arbitral award relates may submit for registration the copy of it furnished to him in terms of subsection (13) to the court of any magistrate which would have had jurisdiction to make an order corresponding to the award had the matter been determined by it, or, if the arbitral award exceeds the jurisdiction of any magistrates court, the High Court.”

I am inclined to decline the application for the reason, that, the award sought to be registered does not sound in money.

I am referred to the judgment of my learned sister MAKARAU JP…, in Thandiwe Mandiringa v National Social Security Authority and five other similar applications dealt with together for purposes of convenience: HH98-05.

I am in entire agreement with the reasoning in that judgment.

As correctly observed in that judgment, the purpose of registering arbitral awards is to enable the applicant to execute upon the awards by the issue of writs out of the Magistrate Court or the High Court.

In terms of Rules 322 and 323 of the High Court Rules 1971, a writ may be issued in execution of a judgment in terms of which an order in respect of the payment of money, the delivery up of goods or premises, or for ejectment.

It follows, that, any order or judgment falling outside the above categories cannot be executed upon by the issuance of a writ.

It has been argued, that, the award under present consideration is that kind of award, which, although not sounding in money itself, by its terms and wording gives rise to a formula by which its monetary value can be calculated. Indeed, the applicants have calculated what is due to them in terms of their contracts of employment.

However, that calculation was not part of the award itself.

The resultant figure has been computed by one party to the dispute and has not been subjected to the determination of an impartial arbitrator, nor has it been shown to have been agreed to by the respondents. The figure, to all intents and purposes, remains a mere claim until such time as it has been adjudicated upon and made part of the arbitral award.

For these reasons, the application is dismissed with costs.

View Appeal
SC12-16 : AFARAS GWARADZIMBA vs C. J. PETRON & COMPANY (PROPRIETARY) LIMITED
Ruled By: ZIYAMBI JA, GARWE JA and HLATSHWAYO JA

In a judgment handed down on 16 April 2014, the High Court made an order setting aside the decision of the appellant refusing the request made by the respondent for leave to institute civil proceedings against SMM Holdings (Pvt) Ltd.The court further granted leave to the respondent to institute the ...

In a judgment handed down on 16 April 2014, the High Court made an order setting aside the decision of the appellant refusing the request made by the respondent for leave to institute civil proceedings against SMM Holdings (Pvt) Ltd.

The court further granted leave to the respondent to institute the proceedings and ordered the appellant to pay the costs of the application.

This appeal is against that judgment.

FACTUAL BACKGROUND

SMM Holdings (Pvt) Ltd (“SMM”) is a company under a reconstruction order issued by the Minister of Justice, Legal & Parliamentary Affairs in terms of the Reconstruction of State–Indebted Insolvent Companies Act [Chapter 24:27] (“the Reconstruction Act”). The appellant was appointed administrator of SMM in September 2004. Upon such appointment, the appellant was conferred, by law, with the power, inter alia, to raise money, in order to turn around the fortunes of the company.

In 2008 and 2009, the appellant sought loans, on behalf of SMM Holdings (Pvt) Ltd (SMM), in order to purchase spares and other consumables from various South African suppliers. The spares and consumables were meant to capacitate Shabani Mine so that its mining operations could continue. As at 31 December 2010, the total amount outstanding on the two loans was US$3,635,158=31 which amount the appellant acknowledged was due and owing.

Efforts by the respondent to recover the debt were in vain.

Accordingly, in June 2012, the respondent made a written request to the appellant to grant it leave to institute proceedings against SMM Holdings (Pvt) Ltd (SMM) in terms of section 6 of the Reconstruction of State Indebted Insolvent Companies Act [Chapter 24:27] (the Reconstruction Act).

On 28 August 2012, the appellant, through his legal practitioners, declined to give such leave.

Consequently, the respondent filed a court application, in November 2012, seeking an order setting aside the decision of the appellant refusing it leave to institute civil proceedings, and for the court itself to grant such leave.

PROCEEDINGS IN THE HIGH COURT

The application before the High Court was made in terms of section 4 of the Administrative Justice Act [Chapter 10:28].

The basis of the application was that the decision of the appellant, refusing leave to institute proceedings, was contrary to the intention of the legislature, grossly unreasonable, made in bad faith, and constituted an abuse of authority; that, it was an unlawful deprivation of the right of the respondent to obtain judgment in a court of competent jurisdiction; that, it was not a fair decision, regard being had to the fact that the debt in question was incurred during the administration period; that, there was no rational basis for the decision, and, lastly, that the appellant had failed to comply with his duty and obligations as an administrative authority as provided for in section 3 of the Administrative Justice Act.

In his opposing papers, the appellant justified the refusal of the grant of leave on the basis, that, there was need, in the short term period, to preserve the assets of the company pending its full recapitalisation and subsequent re-opening of operations. He further averred, that, were the respondent to obtain judgment against SMM Holdings (Pvt) Ltd (SMM), and, thereafter, proceed to execute on that judgment, SMM would, in the result, have to be liquidated, thus negating the whole purpose of reconstruction.

In heads of argument filed by both parties, various issues were identified as requiring determination.

The appellant, inter alia, submitted that the application filed by the respondent was a review application. He further submitted, that, on the papers, the application did not comply with the requirements for review. Indeed, the presiding judge, in his judgment, accepted that the issue that fell for determination, amongst others, was whether the application was properly before the court.

Notwithstanding the fact that the propriety of the application had been put in issue, the court a quo, in its judgment, did not deal with the submission, but, took the view that the substantive issue falling for determination was the extent to which the respondent could exercise the discretion bestowed on him.

The court reached the conclusion, that, the decision to refuse leave was wrong, unfair, and in breach of section 3 of the Administrative Justice Act.

The court consequently set aside the decision.

The court considered it unnecessary to decide whether or not the decision refusing leave was grossly unreasonable “in the Wednesbury sense”. The court was also of the view, that, this was a proper case for it to grant the leave which the appellant had refused. Consequently, the court granted such leave in paragraph [2] of the operative part of its judgment.

APPELLANT'S SUBMISSIONS ON APPEAL

In submissions before this Court, the appellant has argued, that, the court a quo erred in failing to determine the question whether the application filed by the respondent was properly before it, and, in particular, whether the application complied with the requirements of Order 33 of the Rules of the High Court.

He further submitted, that, the fact that the court a quo proceeded to deal with the merits of the application suggests a tacit acceptance by the court that the matter was properly before it.

The absence of reasons for such tacit acceptance, and the failure by the court to expressly deal with the issue, constitute a serious misdirection.

He has further submitted, that, on the authority of Minister of Local Government, Rural and Urban Development & Anor v Silas Machetu & 3 Ors SC34-12, there is little doubt this was an application for review. The present application, having been filed some three months after the making of the decision, was therefore not properly before the court.

The appellant also submitted, that, the refusal to grant leave was not unreasonable, unfair, or wrong.

Lastly, he submitted, that, in terms of the Administrative Justice Act, it is not permissible for the court itself to substitute its own decision in place of that of the administrator.

RESPONDENT'S SUBMISSIONS ON APPEAL

In submissions before us, the respondent has argued, that, the Administrative Justice Act, in effect, created a new jurisdiction not only in respect of the obligations of an administrative authority, but, also, in respect of the manner in which challenges to such administrative authority could be made.

In the absence of a provision in the Administrative Justice Act requiring applicants to comply with Order 33 of the High Court Rules, no obligation arises to comply with the various provisions under Order 33. To the contrary, it is the provisions of Order 32, and, in particular, Rule 226 of the High Court Rules 1971, which are applicable.

Consequently, in the absence of any period stipulated by the Minister in terms of section 10(2)(b) of the Administrative Justice Act, no time limits apply to applications in terms of section 4 of the Administrative Justice Act.

On the question whether the court a quo failed to resolve the issue raised by the appellant, namely, that the proceedings, being of the nature of a review, were subject to the provisions of Order 33 of the High Court Rules, the respondent has submitted, that, it is quite permissible for a court not to deal with each and every submission raised by the parties and instead confine itself only to those issues which are critical to its decision.

The respondent has further submitted, that, the central issue that fell for determination before the court a quo was whether the appellant, as an administrative authority, acted lawfully, reasonably, and in a fair manner in declining to give the necessary leave for the institution of proceedings against SMM Holdings (Pvt) Ltd (SMM). On the facts, it is quite clear that the decision of the appellant was irrational and unreasonable.

The respondent has further argued, that, section 6(b) of the Reconstruction of State-Indebted Insolvent Companies Act [Chapter 24:27] (the Reconstruction Act) is not valid in terms of the current Constitution, regard being had to the provisions of section 69 of the Constitution, which provide for the right of access to the court for the resolution of any dispute.

Lastly, the respondent has submitted, that, section 4 of the Reconstruction of State Indebted Insolvent Companies Act [Chapter 24:27 (the Reconstruction Act) cannot be interpreted as preventing the High Court, in an appropriate case, from substituting its own decision for that of the administrative authority.

ISSUES FOR DETERMINATION BEFORE THIS COURT

A number of issues arise from the heads of argument and oral submissions made by counsel. However, it is essential to deal, first, with the submission whether the court a quo erred in not dealing with the preliminary point taken by the appellant in the Court a quo, that, the application before it, having been one of review, was not properly before it.

That this submission was made by the appellant in argument before the court a quo is not in dispute.

Indeed, in its judgment, the court a quo confirms that the appellant had argued that “the application failed to satisfy the requirements for review.”

Although it was alive to the fact, that, the appellant had raised this preliminary point, the court a quo said nothing further on the matter, and, instead, concluded that “aside from the constitutional point…, the substantive issue before [the court] was the extent to which the respondent could exercise the discretion bestowed on him by section 6(b) of the Reconstruction Act.”

I am inclined to agree with the respondent, that, in proceeding to determine the substantive issue that fell for determination before it, the court must have tacitly accepted that the application was property before it. Had the court concluded otherwise, it would not have proceeded to deal with the merits of the application.

In general, I agree with the respondent's submission, that, in a case where a number of issues are raised, it is not always incumbent upon the court to deal with each and every issue raised in argument by the parties. It is also correct, that, a court may well take the view, that, in view of its finding on a particular issue, it may not be necessary to deal with the remaining issues raised.

However, this is subject to the rider that the issue that is determined in these circumstances must be one capable of finally disposing of the matter.

In the present case, the substantive issue that was determined by the court a quo did not dispose of the matter. The question still remained whether the application was, in the first instance, properly before the court.

This was not an issue that the court a quo could ignore or wish away. The court was obliged to consider it and decide whether the matter was properly before it.

It was, in short, improper for the court to proceed to determine the substantive factual and legal issues without first determining the propriety or otherwise of the application itself.

If the court, as it appears to have done, tacitly accepted that the matter was properly before it, then, reasons for such tacit acceptance should have been given.

The position is well settled, that, a court must not make a determination on only one of the issues raised by the parties and say nothing about other equally important issues raised “unless the issue so determined can put the whole matter to rest:” see Longman Zimbabwe (Pvt) Limited v Midzi & Ors 2008 (1) ZLR 198, 203D (S).

The position is also settled, that, where there is a dispute on some question of law or fact, there must be a judicial decision or determination on the issue in dispute. Indeed, the failure to resolve the dispute or give reasons for a determination is a misdirecton, one that vitiates the order given at the end of the trial: see Charles Kazingizi v Revesai Dzinoruma HH106-06; Muchapondwa v Madake & Ors 2006 (1) ZLR 196D-G, 201A (H); GMB v Muchero 2008 (1) ZLR 216, 221C-D (S).

Although it is apparent in this case, that, the judge in the court a quo may have considered the question whether the matter was properly before him when he considered the merits, a large portion of those considerations remained stored in his mind instead of being committed to paper.

In the circumstances, this amounts to an omission to consider and give reasons, which is a gross irregularity: S v Makawa & Anor 1991 (1) ZLR 142.

Consequently, the failure by the court a quo to specifically determine the question whether or not the application was properly before it, its tacit acceptance that this was the position, and the consequent failure on its part to give reasons why it had proceeded to deal with the substantive issues in the light of the preliminary point taken, vitiated the proceedings.

In the light of the above conclusion, it becomes unnecessary to deal with the rest of the issues raised by the parties to this appeal.

DISPOSITION

In the circumstances, it seems to me that the most appropriate course would be for this matter to be remitted to the court a quo for a determination whether, in the first instance, the application was properly before it, and, if so, whether the decision of the appellant denying leave is, on the facts and the law, sustainable.

In the result, this court makes the following order:

1. The appeal is allowed, with the costs of the appeal being in the cause with those in Case No. HC13496/12.

2. The judgment of the court a quo is set aside.

3. The matter is remitted to the court a quo for a determination of the preliminary point taken by the appellant, and, thereafter, if need be, the substantive issues raised by the parties.

SC67-23 : HWANGE COLLIERY COMPANY LIMITED and DALE SIBANDA N.O. vs PALEHOUSE INVESTMENTS (PRIVATE) LIMITED
Ruled By: MAVANGIRA JA, BHUNU JA and CHIWESHE JA

This is an appeal against the whole judgment of the High Court (the court a quo) sitting at Harare, dated 1 March 2022, setting aside the second appellant's decision to deny the respondent leave to sue the first appellant and granting the respondent leave, in terms of section 6(b) of the Reconstruction of State Indebted Insolvent Companies Act [Chapter 24:27] (the Act), to institute proceedings against the first appellant for damages for breach of contract.

Aggrieved by the decision of the court a quo, the appellants have noted the present appeal for relief.

THE PARTIES

The first appellant is a company under administration pursuant to the provisions of the Reconstruction of State-Indebted Insolvent Companies Act. The second appellant is the administrator to the first appellant.

In terms of the State Indebted Insolvent Companies Act, a company under reconstruction, such as the appellant, cannot be sued without leave granted by its administrator.

The third respondent is a company duly registered in terms of the laws of Zimbabwe.

FACTUAL BACKGROUND

On 17 August 2017, the first appellant and the respondent entered into an agreement in terms of which the respondent was to hire out to the first appellant certain equipment for use at its mining operations. It was a term of the agreement, that, the first appellant would pay the respondent the sum of US$220,000 as mobilisation and demobilisation fees for the equipment. It was a further term of the agreement, that, in the event of termination by either party, fourteen (14) days written notice shall be given to the defaulting party, calling upon it to remedy its breach within those fourteen (14) days failing which the agreement would be cancelled by the aggrieved party.

On 31 January 2018, the first appellant addressed to the respondent a letter headed “Notice to terminate - equipment hire agreement” wherein it notified the respondent, that, it intended to terminate the agreement with effect from 15 February 2018. The first appellant alleged, that, the respondent had breached the agreement in a material way in that “since their commissioning to date, none of the hired excavators has been able to achieve the agreed monthly production target and none has been able to achieve 85% availability.”

The respondent's view was that the first appellant's letter of termination did not comply with the provisions of the termination clause of the agreement. It therefore considered such termination to be unlawful.

The respondent contended, that, as a result, it suffered damages in the sum of US$4,000,000 representing the full contract price it would have realized had the contract run its full course.

It also contended, that, the first appellant owed it the sum of US$220,000 being the mobilisation fees.

By the time of this fall out, the first appellant had been placed under reconstruction in terms of the State Indebted Insolvent Companies Act and the second appellant was appointed as its administrator.

The respondent wrote to the second appellant seeking leave to sue the first appellant.

Leave to sue was denied for the reason, inter alia, that, the respondent's case had no merit and that, instead, it was the first appellant who should be suing the respondent whom it had overpaid.

Aggrieved by the stance taken by the second appellant, to deny it leave to sue the first appellant, the respondent approached the court a quo seeking review of the second appellant's decision. It listed grounds for review as follows:

“(a) Gross unreasonableness of the decision arrived at.

(b) Unfair withholding of leave to sue.

(c) Bias or interest in the cause.”

After a full hearing, the court a quo granted the application for review and issued the following order:

“1. The second respondent's decision of 29 March 2021, denying the applicant leave to sue the first respondent be and is hereby set aside.

2. The applicant is granted leave, in terms of section 6(b) of the Reconstruction of State Indebted Insolvent Companies Act [Chapter 24:27], to institute proceedings against the first respondent for damages for breach of contract and unpaid mobilisation costs.

3. Each party shall bear its own costs.”

It is that order that is the subject of this appeal.

GROUNDS OF APPEAL

The grounds of appeal are as follows:

“1. The court a quo erred in granting the respondent 'leave to sue' when such relief cannot be granted by a court acting in accordance with section 4 of the Administrative Justice Act [Chapter 10:28].

2. Furthermore, the court a quo misdirected itself setting aside second appellant's administrative decision in circumstances where the said court makes no finding of illegality, gross impropriety, manifest irrationality, arbitrariness, or a failure by the administrative authority to apply his mind to the facts of the matter.

3. The court a quo also erred in enquiring into the merit of the disputation inter parties instead of evaluating whether, in the circumstances, the respondent was entitled to negation of the moratorium enjoyable by the first appellant under section 6(b) of the Reconstruction of State Indebted Insolvent Companies Act [Chapter 24:27].

4. Concomitant to the aforementioned ground, the court a quo further erred in granting the respondent unconditional leave to institute proceedings against the first appellant in circumstances where the putative claim was not cognizable at law.”

RELIEF SOUGHT

The appellants seek the following relief:

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

2. That, the order of the court a quo be set aside and substituted with the following:

(i) The application is dismissed.

(ii) The applicant shall pay the respondent's costs.”

THE ISSUES

The grounds of appeal raise the following issues:

1. Whether or not it was competent for the court a quo to grant leave to sue acting in accordance with section 4 of the Administrative Justice Act [Chapter 10:28] (AJA).

2. Whether or not the court a quo erred in setting aside the second appellant's decision in the absence of a finding of illegality, gross impropriety, irrationality, arbitrariness, or a failure by the administrator to apply his mind to the facts of the matter.

3. Whether or not the court a quo erred in enquiring into the merits of the matter instead of determining whether, in the circumstances, it was proper to protect the first appellant against the suit as provided for by the Reconstruction of State Indebted Insolvent Companies Act.

4. Whether or not the putative claim was recognized at law.

ANALYSIS

The appellants submit, that, the court a quo should not have set aside the second appellant's decision in the absence of a finding of illegality, gross impropriety, irrationality, arbitrariness, or failure by the administrative authority to apply his mind to the facts of the matter.

It is further submitted, that, the court a quo erred in enquiring into the merit of the matter instead of determining whether, in the circumstances, it was proper to protect the first appellant against the suit as provided for by the Reconstruction of State Indebted Insolvent Companies Act.

In deciding to decline leave to sue, the second appellant considered that there was no merit in the respondent's intended suit.

He held, for instance, that, the respondent had, on the whole, been overpaid in respect of the mobilisation fees and advance payments. However, the second appellant did not, through evidence, demonstrate the alleged over payments and the extent of such over-payment. Any overpayment should surely have been proved by reliance on proof of payment - such as receipts.

Further, as correctly observed by the court a quo, the second respondent failed to apply his mind to the question whether the agreement had been properly terminated.

In terms of the agreement, a party seeking to terminate the same must give fourteen (14) days notice to the defaulting party, calling upon it to remedy the alleged breach. In the event that the defaulting party fails to remedy the breach within the notice period, and only then, is the aggrieved party entitled to terminate the agreement.

In casu, the first appellant addressed a letter of notice to terminate. The same letter also served as the actual letter of termination. As observed by the court a quo:

“The termination of the agreement could only have been done pursuant to a notice to remedy the alleged breaches. I do not believe that the intention of the parties was that the same notification letter served as the termination letter. The court's view is that the two processes cannot be combined.”

The court a quo also noted, that, attached to the second appellant's report was an internal report highlighting the defects found on the respondent's equipment. There was no indication whether that report had been shared with the respondent, and, if so, what the respondent's comments thereon were.

In other words, there was no evidence that the respondent had been heard on that point, contrary to the “audi alteram partem” rule.

The inconsistencies in the second appellant's reasons for declining the respondent's request for leave to sue the first appellant are glaring. The court a quo correctly noted these inconsistencies and granted the respondent's application for review.

The court a quo did not make the traditional finding of illegality, gross impropriety, irrationality, arbitrariness, or failure on the part of the second appellant to apply his mind to the facts before him.

That, on its own, does not constitute a misdirection, given the circumstances of this case.

The court a quo was of the view, that, the application for leave to sue had not been properly dealt with. It gave reasons for that view based on the papers before it. It described the second appellant's decision as being “contradictory” and “inconsistent” with the facts before it. It observed, that, certain evidence had not been shared with the respondent, who could not have been heard on that point. It also found, that, some critical positions had been taken in the absence of supporting evidence.

In short, the court a quo found that the second appellant acted irrationally and failed to apply his mind to the facts before it.

The second appellant, by not hearing the respondent on aspects of the evidence placed before him by the first appellant, breached a fundamental rule of natural justice, the need to hear both parties to the dispute before a decision is taken.

The decision of the court a quo cannot be impugned. On the whole, the second appellant's decision was grossly irrational....,.

Although the court a quo does not formally make a finding as to illegality, gross impropriety, irrationality, or arbitrariness, the record shows that the decision was replete with the same. The fact, that, the court a quo found the decision riddled with inconsistencies and contradictions suffices in the circumstances of this case.

Further, the court a quo found that the second appellant had not complied with the rules of natural justice - a clear ground of review.

SC69-23 : ZESA HOLDINGS (PRIVATE) LIMITED vs CLOVEGATE ELEVATOR COMPANY (PRIVATE) LIMITED and JUSTICE L.G. SMITH N.O.
Ruled By: MATHONSI JA, KUDYA JA and MWAYERA JA

The appellant appeals against the whole judgment of the High Court (the court a quo) dated 17 November 2021. The court a quo found, that, the arbitral award by the second respondent (the arbitrator), dated 2 December 2020, was not in conflict with the public policy of Zimbabwe.

On 2 December 2020, the arbitrator held, that, he had the jurisdiction to determine the quantification of damages in lieu of his earlier arbitral award against the appellant for specific performance that had been registered by the High Court on 10 June 2020.

Consequent upon assuming jurisdiction, the arbitrator further directed the appellant to file further affidavits and submissions in response to the respondent's replication on the quantification of damages.

THE BACKGROUND

The salient facts relevant to the dispute between the parties are as follows:

The parties concluded a contract on 30 September 2013. The first respondent undertook to supply, fix, and maintain four (4) elevators by 14 August 2015, at the appellant's Electricity Centre in Harare. It only managed to supply and fix a single elevator by the due date. The appellant, consequently cancelled the contract on 25 October 2015 and re-tendered the outstanding works a year later.

Irked by the cancellation, the first respondent referred the dispute to arbitration in terms of clause 10 of the contract.

The clause mandated the parties to refer to arbitration any disputes arising from or in connection with the contract. The provisions of the Arbitration Act [Chapter 7:15] would apply. The arbitrator, whose decision would be final, would be appointed by the Commercial Arbitration Centre in Harare at the request of the aggrieved party.

The arbitrator was appointed in terms of clause 10.

On 25 July 2017, the arbitrator issued an award in which he found the cancellation to be unlawful, reversed it, and reinstated the contract. Even though the first respondent had, in the alternative to specific performance, claimed for damages, the arbitrator did not relate to the alternative claim. Firstly, because the first respondent did not motivate the alternative claim. Secondly, because specific performance could be performed.

Dissatisfied, the appellant sought the setting aside of the award by the High Court. The first respondent also applied to the same court for the registration of the award. The two applications were consolidated.

On 10 June 2020, the High Court dismissed the appellant's application and granted the first respondent's application.

When the first respondent sought compliance from the appellant, it was advised, by letter dated 20 June 2020, that, the outstanding works had been completed by a third party. Thereafter, the parties failed to agree on the extent of the appellant's liability and the consequential damages for breaching the award for specific performance.

The failure to agree prompted the first respondent to file an application to the arbitrator entitled:

“Application for Quantification of Registered Arbitral Award” on 31 July 2020.

It sought the payment of contractual damages and damages for loss of the maintenance business in the aggregate sum of US$1,910,318=12, arbitration fees, and legal costs on the higher scale.

The appellant opposed the application.

It raised four preliminary points relating to jurisdiction, functus officio, finality in litigation, and incompetence of the relief sought.

After hearing argument on these points, the arbitrator issued a written award on 2 December 2020. He dismissed all the preliminary points and directed the appellant to make a rejoinder to the replication within a prescribed period, failing which he would proceed to determine the application on the merits.

The appellant was aggrieved by the award and direction.

On 17 March 2021, the appellant applied to the court a quo for the setting aside of the interim award on the sole ground, that, it was contrary to the public policy of Zimbabwe. It premised its application on Article 34(1)(b)(ii) of the Model Law to the Arbitration Act.

During the pendency of the hearing a quo, the appellant also sought and obtained, in a separate urgent chamber application, an interim interdict against the continuation of the quantification pending the determination of its application for the vacation of the interim award.

The interim interdict prompted the arbitrator, on 20 April 2021, to file a quo a “Withdrawal of Award” which he copied to the two protagonists.

It was common cause between them that, the tenor of the document strongly suggested that it related to the registered arbitral award for specific performance. In the document, the arbitrator pertinently remarked that:

“It is the responsibility of the arbitrator to make an award that can be implemented. Accordingly, I have made an interim award, that, the second respondent could make a claim for damages. A final award will be made when the applicant responds to the request I made. Accordingly, I withdraw the arbitral award that I handed down.”

THE CONTENTIONS IN THE COURT A QUO

The appellant argued, that, as the arbitral award on specific performance was final and definitive, the arbitrator, having exhausted his jurisdiction, became functus officio.

It contended, that, the admission recorded in the interim award, by the arbitrator, that he had re-opened what the appellant termed a “completed process” further confirmed that the arbitrator had fully and finally exercised his jurisdiction over the earlier arbitral award.

It further argued, that, the application for quantification of damages constituted an amendment or correction of the earlier arbitral award, which could only have been invoked within the period prescribed in Article 33 of the Model Law.

The appellant also argued it was improper for the arbitrator to direct it to file a rejoinder refuting the evidence on quantum that was belatedly attached to the first respondent's replication.

The first respondent made the contrary submissions, that, the interim award was an interim procedural order that was incapable of impeachment before the conclusion of the quantification proceedings.

It contended, that, such an award was not dispositive of the quantification proceedings and could not, therefore, be set aside under the provisions of Article 34(1)(b)(ii) of the Model Law.

It further argued, that, the arbitrator had the jurisdiction to entertain and complete the quantification process under clause 10 of the arbitral agreement.

The first respondent also contended, that, the failure to claim, and prove, an alternative in damages during the earlier arbitral proceedings constituted an error of law which would not make it contrary to public policy.

It also contended, that, quantification was an independent process that did not fall within the ambit of an amendment or correction envisaged by Article 33 of the Model Law. This was, so the argument went, because damages could be awarded in tandem with an order for specific performance, but could, in terms of Mandiringa & Ors v NSSA 2005 (2) ZLR 239 (S), be quantified subsequent to the order for specific performance.

It also contended, that, the appellant could not be permitted to benefit from its perverse conduct of deliberately subverting the specific performance award by turning it into a brutum fulmen.

The first respondent strongly argued, that, the revival of jurisdiction by the arbitrator was the only avenue by which an injustice occasioned by the appellant could be effectively corrected.

It also contended, that, the interests of justice pertaining to the expeditious and inexpensive resolution of the quantification dispute could best be served by an arbitrator who was familiar with the dispute.

Regarding the direction, the first respondent contended that it was not in conflict with the public policy of Zimbabwe as it affirmed the appellant's fundamental right to be heard, in compliance with the rules of natural justice.

THE FINDINGS OF THE COURT A QUO

The court a quo basically made three findings:

(i) The first was that clause 10.1 of the arbitration agreement conferred jurisdiction on the arbitrator to complete the specific performance award by quantifying it. It however regarded quantification proceedings to be “another arbitration” incurred by the appellant's failure to comply with the first arbitral award.

(ii) The second was that the arbitrator's finding, that he had jurisdiction and was therefore not functus officio to determine the quantification application, was an interim award with final effect on the question of jurisdiction, which could be and was properly challenged under Article 34(2)(b)(ii) of the Model Law.

(iii) The third was that the direction constituted a mere procedural order that was interlocutory in nature and not be dispositive of the quantification dispute, and which did not constitute either an interim or a final order. It could not thus be impeached under Article 34 of the Model Law.

The court a quo, therefore, held that the requisite public policy threshold for impugning the interim award, which has been pronounced in a plethora of cases by our superior courts, had not been breached. It accordingly dismissed the appellant's application and discharged the provisional order.

THE GROUNDS OF APPEAL

The appellant was aggrieved by these findings. It appealed to this Court on the following grounds:

1. The court a quo erred at law in dismissing the application for setting aside the arbitral award on the basis that it was not contrary to public policy.

2. The court a quo erred in finding, that, the appellant had failed to satisfy the requirements for setting aside an arbitral award on the basis of public policy.

3. The court a quo erred at law in not finding, that, the second respondent had no jurisdiction to hear the matter and that he was functus officio.

4. The court a quo erred at law in finding that the withdrawal of the arbitral award by the second respondent was of no consequence.

5. The court a quo erred at law in failing to find, that, the arbitral award by the second respondent had the effect of re-opening the hearing.

6. The court a quo erred in law in splitting the arbitral award into two, and, erroneously finding, that, as an interim award, it is susceptible to challenge at this stage, but, on the other hand, it is a procedural award and not susceptible to challenge; when, in actual fact, it was dealing with one arbitral award issued on 2 December 2020.

7. The court a quo erred at law in discharging the provisional order and not finding that public policy had been affronted to the appellant's prejudice.

The relief sought is:

“1. The appeal succeeds with costs.

2. The judgment a quo is set aside, and, in its place, substituted with the following:

“(a) The arbitral award issued by the second respondent on the 2nd of December 2020, in the arbitration proceedings between the applicant and the first respondent, be and is hereby set aside as being against public policy.

(b) The arbitral proceedings before the 2nd respondent, between the applicant and 1st respondent, be and is (sic) hereby set aside.

(c) The 1st respondent pays costs of this application on a legal practitioner and client scale.”

THE ISSUES

The first five (5) grounds of appeal speak to one issue: it is whether the court a quo was correct in holding that the reopening, by the arbitrator, of completed arbitral proceedings, was not contrary to the public policy of Zimbabwe.

The second issue raised by the sixth ground of appeal is whether the court a quo was correct in splitting the interim award into, firstly, an interim award on jurisdiction that could properly be challenged, and, secondly, an interlocutory procedural direction that was not open to challenge before the completion of the impugned arbitral proceedings.

The third and last issue, emanating from the seventh ground of appeal, is whether the court a quo ought to have confirmed rather than discharged the provisional order.

THE CONTENTIONS BEFORE THIS COURT

Counsel for the appellant submitted, that, the impugned interim award was contrary to public policy.

He contended, that, the repeated assertions in the interim award by the arbitrator that he was “re-opening” his earlier award confirmed that he had revived his jurisdiction. He argued, that, having issued a final and definitive award on specific performance, which had been registered for enforcement by the High Court, the arbitrator became functus officio as he had completed his mandate. In the circumstances, he could not re-open the completed proceedings and revive the jurisdiction that the parties had previously conferred on him. He therefore contended, that, the twin principles of functus officio and finality to litigation militated against the resumption of his earlier jurisdiction, which, by operation of law, had been exhausted.

He strongly argued, that, the resumption of jurisdiction in these circumstances was repugnant to the public policy of Zimbabwe.

He also submitted, that, it was erroneous for the court a quo to split the unitary interim award into two. He, however, failed to demonstrate how the split affronted the public policy of Zimbabwe.

While he conceded that clause 10 of the contract allowed the first respondent to commence fresh arbitral proceedings premised on the unenforceable arbitral order for specific performance, he was adamant that it could not seek the revival of the arbitrator's exhausted jurisdiction.

He further argued, that, the arbitrator could not also mero motu revive the jurisdiction he had fully exercised.

He also contended, that, while the withdrawal of the completed specific performance award was a nullity, it constituted a belated realization, by the arbitrator, that, he could not revive jurisdiction in completed proceedings.

He finally submitted, that, the court a quo ought to have confirmed and not discharged the provisional order.

He moved for the success of the appeal with costs on the ordinary scale.

Per contra, counsel for the first respondent submitted that the interim award was not in conflict with the public policy of Zimbabwe.

He contended, that, as the arbitral award for specific performance was derailed by the wrongful conduct of the appellant, the arbitrator's jurisdiction to further determine the quantification of the first respondent's damages, arising from such conduct, was not only extant but was automatically re-activated by such conduct.

He further contended, that, the continuing power of the arbitrator in these circumstances was also prescribed by section 24(1) and (2) of the Interpretation Act [Chapter 1:01], as applied in Zesa v Utah SC32-18 and Mhlanga v Mtenengari & Anor 1992 (2) ZLR 431 (S) and obliquely recognized by this Court in OK Zimbabwe Ltd v ArdMbare Properties (Pvt) Ltd SC55-17.

He also argued, that, the above cited case authorities held that an arbitrator who determined a previous matter between the same parties ought to decide any other aspects of the same matter that may arise in future.

He vehemently disputed that the quantification matter constituted an amendment or correction of the award for specific performance.

He, therefore, maintained that the arbitrator was not functus officio and that his jurisdiction had not been exhausted. He moved for the dismissal of the appeal with costs on the higher scale.

ANALYSIS

The law on the setting aside of arbitral awards is settled in this jurisdiction. An arbitral award, whether interim or final, may be set aside if it is contrary to the public policy of Zimbabwe: see Wallen Holdings (Pvt) Ltd v Lloyd & Anor 1996 (2) ZLR 383 (H)…, where CHINHEGO J correctly stated that:

“A party is, in a proper case, entitled to bring to this court an application in which an arbitrator's interim award is challenged, and, the court has the jurisdiction to entertain and determine the application.

An interim award is final and binding in respect of those matters referred to the arbitrator and which are agreed shall be the subject of such an award (see Butler & Finsen [Arbitration in South Africa: Law and Practice] op cit p262). This position may however be altered by the parties if they agree that neither of them may institute review proceedings before the arbitration proceedings were completed.”…,.

The passage in BUTLER & FINSEN [Arbitration in South Africa: Law and Practice], that CHINHENGO J relied upon, states that:

“The award must be final; in the sense, that, it must deal with all the matters submitted to the arbitrator and leave no matter unsettled. It must therefore be complete. There is a partial exception in the case of an interim award. While an interim award does not deal with all the matters referred to the arbitrator, it must deal with all the matters which the parties have agreed shall be the subject of the interim award, and is final and binding in respect of those matters.”..,.

The above view accords with that of REDFERN and BUTLER in The Law and Practice of International Commercial Arbitration, 2nd ed…, that:

“In a sense, all awards may be said to be 'final' in that (subject to the possibility of challenge in the courts) they dispose of one or more of the issues in dispute between the parties. For instance, an interim (or preliminary) award by an arbitral tribunal in an arbitration under the UNCITRAL Rules, to the effect that it does have jurisdiction to determine the dispute before it, is a final decision on the issue of jurisdiction, subject to any appeal to the competent court.”

The concept of public policy, in this regard, is restrictively construed in order to uphold the sanctity of contracts of the parties and bring a dispute to finality in an inexpensive and expeditious manner.

In Zimbabwe Electricity Supply Authority v Maposa 1999 (2) 452 (S)…, GUBBAY CJ said:

“An arbitral award will not be contrary to public policy merely because the reasoning or conclusions of the arbitrator are wrong in fact or in law. In such a situation, the court would not be justified in setting the award aside. Under Article 34 or 36, the court does not exercise an appeal power and either uphold or set aside or decline to recognise and enforce an award by having regard to what it considers should have been the correct decision….,. Where, however, the reasoning or conclusion in an award goes beyond mere faultiness or correctness, and constitutes a palpable inequity that is so far reaching and outrageous in its defiance of logic or acceptable moral standards that a sensible and fair minded person would consider that the conception of justice in Zimbabwe would be intolerably hurt by the award, then, it would be contrary to public policy to uphold it. The same applies where the arbitrator has not applied his mind to the question or has totally misunderstood the issue, and the resultant injustice reaches the point mentioned above.”

The import of the above remarks was clarified by MALABA DCJ…, in Alliance Insurance v Imperial Plastics (Pvt) Ltd & Anor SC30-17…, thus:

“The question that should be in the mind of a Judge who is faced with this ground for setting aside an arbitral award is that, in light of all the submissions and evidence adduced before the arbitrator, is it fathomable that he would have come up with such a conclusion? If the answer is in the affirmative, there is no basis upon which to set aside the award. The appellant's submissions should be considered in the light of these remarks.”

In OK Zimbabwe Ltd v ArdMbare Properties (Pvt) Ltd SC55-17…, PATEL JA…, further explained the meaning in Zimbabwe Electricity Supply Authority v Maposa 1999 (2) 452 (S) in the following way:

“The reviewing court does not exercise an appeal power by having regard to what it considers should have been the correct decision. It will only intervene to set aside an award on the ground of public policy where the reasoning or conclusion in the award…, constitutes a palpable inequity, gross irrationality, moral turpitude, or resultant grave injustice, either in the procedure adopted by the arbitrator, or in his substantive findings on the merits of the matter, so as to warrant the setting aside of the impugned award. In the absence of any perverse conduct or outlandish aberration on the part of the arbitrator, or in the affirmation of his award by the High Court, the appellant is not entitled to the relief that it craves.”

See also Ropa v Rosemart Investments (Pvt) Ltd & Anor 2006 (2) ZLR 283 (S)…,.; Delta Operations (Pvt) Ltd v Origen Corporation (Pvt) Ltd 2007 (2) ZLR 81 (S)…,.; and Peruke Investments (Pvt) Ltd v Willoughby's Investments (Pvt) Ltd & Anor 2015 (1) ZLR 491 (S).

The real question for determination in this appeal is whether the arbitrator's reasoning or conclusion on jurisdiction goes beyond mere faultiness or incorrectness and constitutes a palpable inequity that is so far reaching and outrageous in defiance of logic or accepted moral standards that a sensible and fair-minded person would consider that the conception of justice in Zimbabwe would be intolerably hurt by the impugned interim award.

In our law, jurisdiction denotes the power or competence of a court to hear and determine an issue brought before it. HERBSTEIN and Van WINSEN: The Civil Practice of the High Courts of South Africa, 5th ed…, opine that:

“A court of law will not entertain legal proceedings unless it is satisfied, that, it is competent (in other words, has jurisdiction) to do so, that the proceedings have been instituted in the proper form, and that they are being conducted in the proper manner.”

While it is settled, that, an arbitral tribunal is not a court of law, the above principle applies with equal force to it.

An arbitrator cannot act without jurisdiction. If he does so, the arbitral proceedings that ensue will be a nullity.

The exercise of jurisdiction, where none exists, would intolerably and mortally hurt the very concept of justice in Zimbabwe and thus be contrary to the public policy of Zimbabwe.

Similarly, the revival or resumption of jurisdiction on a finalized matter in which the judicial officer or arbitrator has fully and finally exhausted his jurisdiction would injure the public policy concept of finality to litigation: see Stambolie v Commissioner of Police 1989 (3) ZLR 287 (S)…,.; Bheka v Disability Benefits Board 1994 (1) ZLR 353 (S)…,; and Ndebele v Ncube 1992 (1) ZLR 288 (S)…,. In the latter case this Court held that:

“It is the policy of the law, that, there should be finality in litigation.”

To similar effect is HERBSTEIN and Van WINSEN: The Civil Practice of the High Courts of South Africa, 5th ed …,.:

“The general principle, now well established in our law, is that once a court has duly pronounced a final judgment or order, it has itself no authority to correct, alter, or supplement it. The reason is that the court thereupon becomes functus officio: its jurisdiction in the case having been fully and finally exercised, its authority over the subject matter ceases. The other equally important consideration is the public interest in bringing litigation to finality. The parties must be assured, that, once an order of court has been made, it is final and they can arrange their affairs in accordance with that order.”

The importance for an arbitrator to act with jurisdiction is indeed underscored by the nature and scope of Articles 16 and 17 of the Model Law, which, inter alia, imbue an arbitral tribunal with the power to dispose of the question of whether or not it has jurisdiction, as a preliminary point, before considering the merits of the arbitration.

An arbitrator is, consequently, permitted to make an interim award on the question of jurisdiction, which, in any event, constitutes a final and definitive award.

The functus officio concept is an aspect of jurisdiction.

It is a concept which expresses the termination of the jurisdiction of any person or body charged with the duty and responsibility of exercising a statutory or common law power or authority.

The jurisdiction conferred on an arbitrator by the parties, in their arbitration agreement, terminates when the arbitrator has completed his or her mandate. The academic writers posit, that, such termination takes place after the happening of either of the following events:

(i) The first is at the stage when the arbitrator publishes his award to the parties.

(ii) The second is when he or she corrects any errors in computation, syntax, or errors of a similar nature or makes an additional award in the manner and within the timeframe envisaged in Article 33 of the Model Law.

(iii) The third concerns a determination subsequent to a remittal by a superior court of competent jurisdiction under Article 34(4) of the Model Law.

In Arbitration in South Africa: Law and Practice: BUTLER & FINSEN (Juta 1993), at p103, the learned authors underscore the point, that, the completion of the mandate terminates the jurisdiction of an arbitrator. The learned authors write that:

“An arbitrator derives his powers from his acceptance of a reference from the parties to an arbitration agreement. He thereby undertakes to hear their dispute and to make an award. When he has completely discharged his duty to them and made an award which is complete in all respects and disposes of all the matters in dispute, his powers automatically desert him and he is said to be functus officio. This termination of his powers is so complete, that, if he finds he has made a mistake in his award, he has no power to correct it. Voet 4.8.23 and Table Bay Harbour Board v Metropolitan and Suburban Railway Company (1892) 9 SC 437 at 438.”

They further observe, at p295, that:

“The effect of setting aside of the award is that everything that has happened since the arbitrator entered into the reference is nullified. His jurisdiction ceased on the publication of his award and is not revived by its setting aside. But, the arbitration agreement itself is not affected and its provisions remain binding on the parties, unless, by mutual agreement or by order of court, it is terminated or set aside. The dispute must, on the application of either party, be submitted to a new arbitration tribunal constituted in the manner directed by the court. But, where the pleadings and discovery for the first arbitration have not been tainted by the circumstances that led to the setting aside of the award, the parties could agree, or in the absence of agreement, the new arbitrator could direct that the pleadings should be re-used in the new reference and that discovery need not be repeated.”

The revival of jurisdiction in casu is almost analogous to that of the arbitrator in Re: Stringer and Riley Bros [1901] 1 QB 105 who omitted to deal with certain issues and delivered an award on others. He was, thereafter, alerted of his error and proceeded to mero motu vacate the award before issuing a fresh one. The court therein held, that, having made the first award, he became functus officio and his second award was invalid. The court, however, acted in terms of section 30 of the English Arbitration Act 42 of 1965 to set aside the second award and remit the matter to him to consider the omitted issues.

In Russell on Arbitration, 20th ed (1982), WALTON & VICTORIA observe that:

“The arbitrator is not functus officio until he has made an award. Until then, either party can make any application to him, and the arbitrator, still having jurisdiction, must deal with such application. Though the case has been formally closed, it is in the discretion of the arbitrator whether he will re-open it and receive further evidence.”

To the same effect is JACOBS, The Law of Arbitration in South Africa, Juta, 1977…,.:

“Once an award has been made, the arbitrator is functus officio. However, prior to making an award, the arbitrator has the power to entertain an application for leave to re-open and receive further evidence. It is submitted, that, the same principles that would apply to a reopening before judgment in a court of law are applicable to an arbitration.”

In The Law of Arbitration South African and International Arbitration, Juta, 2009…, RAMSDEN cautions that:

“An award requires finality to be achieved. A situation where the arbitrator's award directs that further works are to be executed under the supervision of a third party, cannot constitute an award in the sense required. It is not final in any sense of the word. The arbitrator's status is one of functus officio (has discharged his office) after his delivery of the award, yet, the determination of the issues is not complete.”

Lastly, REDFERN and HUNTER in The Law and Practice of International Commercial Arbitration, 2nd ed.., confirm the above position in the following manner:

“However, the term 'final award' is customarily reserved for an award which completes the mission of the arbitral tribunal. Subject to certain exceptions, the issue of a final award renders the arbitrators functus officio. They cease to have any further jurisdiction over the dispute; and the special relationship that exists between the arbitral tribunal and the parties, during the currency of the arbitration, ceases.”

In our law, Article 32(1) and (3) of the Model Law clearly state that “the arbitral proceedings are terminated by the final award” and “the mandate of the arbitral tribunal terminates with the termination of the arbitral proceedings, subject to the provisions of Articles 33 and 34(4).”

Article 33 prescribes the arbitral tribunal's power to correct its award mero motu, or on request, on 30 days notice or any agreed period of extension after the delivery or publication of the award, but, within the prescribed period of 60 days or any extended period set by such a tribunal…,.

Article 34(4) vests in the High Court the power to stay an application for the vacation of an arbitral award at the request of a party to the arbitration for a specified time determined by the High Court “to give the arbitral tribunal an opportunity to resume the arbitral proceedings or take such other action as in the tribunal's opinion will eliminate the grounds for setting aside.”

In casu, the factors envisaged by Articles 33 and 34(4) of the Model Law are absent.

The arbitrator granted a final award for specific performance on 25 July 2017. The appellant sought the vacation of that award, while the respondent, conversely, prayed for its registration.

In a consolidated judgment, dated 10 June 2020, the High Court dismissed the application by the appellant and registered that arbitral award.

The attempted appeal by the appellant against that order was not pursued; hence, the registered arbitral order constituted the final award granted by the arbitrator.

The academic writers, such as WALTON & VICTORIA, Russell on Arbitration, 20th ed (1982), at p311 of their above cited work, rely on the old English case of Simmons v Swaine (1809) 1 Taunt 549 to posit, correctly in our view, that:

“An award in the alternative may be sufficiently certain and final. If an award directs one of two things to be done, and one of them is uncertain or impossible, the award is nevertheless sufficiently certain and final if the second alternative is certain and possible; and it will be incumbent on the party to perform the second alternative.”

On the same page, the learned authors make the further point that:

“An arbitrator cannot, in his award, reserve either to himself or delegate to another, the power of performing in future any act of a judicial nature respecting the submitted matters. His duty is to make a final and complete determination respecting them by his award, and it is in breach of that duty to leave anything to be determined hereafter.”

An exception to this rule is enunciated in Cogstad v Newsum [1921] AC 528 where it was held, that, an arbitrator is permitted to make an interim award on liability leaving the reference of the question of quantum open to him - if the parties fail to agree thereon.

This is what happened in OK Zimbabwe Ltd v ArdMbare Properties (Pvt) Ltd SC55-17, with the exception that, the parties vested the arbitrator, after determining the question of liability, with the power to determine quantum if the parties subsequently failed to agree on the measure thereof.

Again, in Mathews v Craster International (Pvt) Ltd HH497-17…, per CHATUKUTA J…, and Muchenje & Ors v Stuttaffords Removals (Pvt) Ltd HH374-13…, per TSANGA J, the High Court held that quantification was not the same as an amendment or a correction. The High Court further upheld the quantification subsequent to an earlier award on the discernible ratio, that, the earlier award was merely a partial award which the same arbitrator could re-open.

In the present matter, the arbitrator reasoned that he was not functus officio because:

“The award I made cannot be effected, and, therefore, the award has to be amended in order to enable the claimant to quantify the damages it has sustained. Because the award cannot be complied with, it must be amended. I have to deal with that issue, so, I am not functus officio. No one else can make the award effective.”…,.

The considerations that are spelt out in OK Zimbabwe Ltd v ArdMbare Properties (Pvt) Ltd SC55-17 and Cogstad v Newsum [1921] AC 528, contrary to counsel for the first respondent's submissions, do not apply to the award of 25 July 2017 for two reasons:

(i) Firstly, while the respondent sought specific performance of the contract from the appellant and the alternative relief of damages, the arbitrator only granted the main relief sought.

It was competent of him to do so.

According to VISSER et al in Gibson's South African Mercantile and Company Law, 8th ed (Juta)…, it would have been competent, however, for the arbitrator to award both the main relief of specific performance together with the alternative relief of damages. The learned authors state that:

“A party to a contract, who is in breach, may be compelled to perform the obligation in the manner required by the terms of the contract. The necessary court order may be enforced by contempt of court proceedings if specific performance has been decreed absolutely. But, very often, the court orders specific performance with an alternative in damages - if this relief is claimed. (The magistrates court has no jurisdiction to order specific performance unless it is coupled with an alternative order for damages, except in respect of the rendering of an account or the delivery of property (s46 of the Magistrates Courts Act 32 of 1944)).”

Secondly, the specific performance award was neither an interim award nor a partial award. It was a final one.

It is common cause, notwithstanding the prevarication of the first respondent on the point, that, the present award, on jurisdiction, was an interim award.

The issue of jurisdiction cannot be revisited by the same arbitrator when he eventually determines the merits of the substantive issue of damages.

The interim award was therefore properly challenged a quo.

The most important legal consequence of a valid award that is underscored by BUTLER & FINSEN, Arbitration in South Africa: Law and Practice (Juta 1993)…, was approved by this Court in Ropa v Rosemart Investments (Pvt) Ltd & Anor 2006 (2) ZLR 283 (S). The learned authors state that:

“The most important legal consequence of a valid final award is that it brings the dispute between the parties to an irrevocable end: the arbitrator's decision is final and there is no appeal to the courts. For better or worse, the parties must live with the award, unless, their arbitration agreement provides for a right of appeal to another arbitral tribunal. The issues determined by the arbitrator become res judicata and neither party may reopen those issues in a fresh arbitration or court action. The effect of a valid award by an arbitrator will usually be to create new rights and obligations between the parties and it will dissolve existing rights, or bring an end to a dispute as to whether certain rights existed or not.”

It seems to us, that, the arbitral award on specific performance, granted on 25 July 2017, was a final award. It brought the arbitrator's jurisdiction to an end.

However, it created new rights and obligations between the parties under which the first respondent could invoke the arbitration clause in the contract between the parties: see The Cold Chain (Pvt) Ltd t/a Sea Harvest v Makoni CC08-17…,.

The respondent could not, without the appellant's consent, properly seek to revive the arbitrator's jurisdiction nor could the arbitrator revive his own jurisdiction, which had been exhausted at the time the arbitrator published the award for specific performance.

The provisions of section 24(1) and (2) of the Interpretation Act, which vests a person or authority with the continuing power, jurisdiction, right or duty to exercise such power, jurisdiction, right or duty from time to time, as the occasion requires, applies during the pendency of such a person or authority's mandate.

It does not apply to a person or authority who is functus officio.

In the circumstances, the first five grounds of appeal are meritorious and ought to succeed. The arbitrator did not have jurisdiction to re-open the case. He could only do so either with the appellant's consent, or after the first respondent had invoked the arbitral process prescribed in clause 10 of the contract between the parties.

The exercise of jurisdiction by the arbitrator, in the circumstances of this case, was therefore contrary to the public policy of Zimbabwe.

The contrary finding by the court a quo was incorrect. We, accordingly, agree with counsel for the appellant's submissions, that, it should be set aside.

In view of this finding, it is not necessary to relate to the second issue raised in the sixth ground of appeal.

Regarding the third issue, which relates to the seventh ground of appeal, the determination of the application for vacating the interim order, whether in favour of the appellant or against it would result in the discharge of the provisional order.

This is because the fate of the interim award could only be determined under Article 34(4) the Model Law and not under the common law.

The interim interdict, having served its purpose, cannot, at the behest of the court a quo nor in the substitutionary order of this court, be confirmed. It falls to be discharged. The court a quo therefore correctly discharged the provisional order in question.

COSTS

In view of the conduct of the appellant, which necessitated the erroneous re-opening of the earlier arbitral award, it is appropriate that each party bears its own costs.

DISPOSITION

The arbitrator could not revive his jurisdiction nor amend his earlier order, as he purported to do, as he had fully and finally exhausted his jurisdiction. He could only do so with the appellant's consent, which, as is apparent from the proceedings, was never given.

The arbitrator should have upheld the appellant's preliminary point on jurisdiction. The court a quo, in turn, should have found the finding of the arbitrator to have been in breach of the public policy of Zimbabwe.

In the circumstances, the following order will ensue:

1. The appeal succeeds in part.

2. Para (i) of the order of the court a quo is set aside and substituted with the following:

“(i) The application in HC722/21 be and is hereby granted.”

3. Each party shall bear its own costs.

SC81-23 : DISCENT BAJILA and FRANK MHLANGA and ADELAIDE MHLANGA and SANPOULOS MAPLANKA and OTHERS vs TATENDA MADZIRASHE and RAMSON CHINGWARA and LINDA MPOFU and OTHERS
Ruled By: UCHENA JA, CHITAKUNYE JA and MWAYERA JA

The four appeals are against parts of the High Court's Judgment HB157-23 (“the court a quo”) which was handed down on 27 July 2023.

The appeals are against the decision of the court a quo setting aside the thirteenth respondent's decision to accept the appellants nomination papers as candidates for the impending harmonised general elections.

The four appeals SCB59/23, SCB60/23, SCB61/23 and SCB62/23 were consolidated and heard by this Court on 2 August 2023.

On 3 August 2023, we issued the following order:

1. The appeals be and are hereby allowed with costs.

2. The judgment of the court a quo be and is hereby set aside and substituted as follows:

'The applications be and are hereby dismissed with costs.'

3. The reasons for the court's decision will follow in due course.”

We undertook to furnish reasons for our disposition. These are they.

FACTUAL BACKGROUND

On 21 June 2023, the fourteenth respondent constituted a Nomination Court to receive submissions for the nominations of candidates for the election of constituency members to the National Assembly for the Bulawayo Metropolitan Province. This was in accordance with Proclamation 4 of 2023, gazetted under S.I. 85 of 2023 by the President.

The determinant facts of this appeal emanate from the events that transpired on 21 June 2023 at the Nomination Court.

The appellants appeared before the Nomination Court for their nominations as candidates for elections scheduled for 23 August 2023. The nomination officer accepted their nominations and registered them as candidates.

The respondents, except for the thirteenth to fifteenth respondents, applied to the court a quo for the setting aside of the appellants (respondents a quo) nominations. They alleged, that, their nomination papers were in disarray. They further alleged that when the appellants lodged their papers, before 4pm, they were advised to correct them. The respondents further alleged, that, the appellants thereafter filed their corrected papers out of time, after 4pm, in violation of the Electoral Act [Chapter 2:13] (“the Act”). They further alleged that, by 4pm, the appellants were outside the courtroom frantically trying to rectify their nomination papers. They further asserted, that, such nominations were null and void.

In response, some of the appellants asserted that their papers were in order and that they lodged them with the nomination officer who accepted them before 4pm. The other appellants stated, that, their papers had errors which were pointed out by the Nomination Court and were corrected and filed with the nomination officer before 4pm. Some of the appellants maintained, that, they were in court with their corrected papers which were accepted before 4pm.

In his opposing affidavit, the 13th respondent, Innocent Ncube, in his official capacity as the Provincial Elections Officer, and, for and on behalf of the Zimbabwe Electoral Commission (“ZEC”) and the Chairperson of ZEC, indicated that the nomination papers were procedurally and timeously lodged between 10am and 4pm. He also pointed out that the designated courtroom could only accommodate 12 to 15 people at any time. During the proceedings, at 3:55pm, he announced that all prospective candidates who were queuing outside because of his administrative decision (to allow 12 to 15 people at any time) should hand over their nomination papers to the police officer as the court was due to close at 4pm. The police officer collected all the nomination papers and handed them over to the thirteenth respondent before 4pm. Thereafter, the nomination officer would call in those whose papers he would be processing.

In respect of the form, Annexure “B” relied upon by the applicants a quo, he pointed out that it was a register in which the secretary captured the times when the nomination forms were inputted into the Zimbabwe Electoral Commission's (ZEC) records. In other words, he stated that the form was for the purpose of data capture into ZEC's system and not a record reflective of the time when the nomination papers were lodged with the nomination officer.

On the basis of the above facts, the court a quo found for the applicants a quo (now respondents). It held that the appellants nominations had been lodged after the stipulated cut-off time of 4pm. It, therefore, declared the nominations of the appellants as null and void.

PROCEEDINGS BEFORE THE COURT A QUO

The parties made submissions on both the preliminary points and the merits before the court a quo, after which the court a quo rendered a composite judgment for all the applications, which had been consolidated by consent.

Counsel for the thirteenth, fourteenth, and fifteenth respondents raised a preliminary point, that, the court a quo had no jurisdiction. He submitted that all the applications ought to have been filed in the Electoral Court.

Counsel for the first to the sixth appellants associated himself with the submissions made by counsel for the thirteenth, fourteenth, and fifteenth respondents on jurisdiction.

He further submitted, that, there was no application before the court because the first to twelfth respondents had irregularly truncated the dies induciae. Counsel also argued that the respondents had no locus standi and that the applications were based on hearsay evidence. He submitted that the first to twelfth respondents had not attended the Nomination Court but sought to rely on social media reports and a document, Annexure “B” which was differently interpreted by the Electoral Commission.

He also argued in limine, that, there were material disputes of fact that could not be resolved on paper.

He further submitted, that, there was a material non-joinder of Citizens Coalition for Change party (CCC) which had sponsored some of the appellants. In support of this assertion, he contended that the party would be prejudiced in obtaining proportional representation seats.

Finally, on preliminary points, counsel submitted that the applications were an abuse of the court process.

Counsel for the seventh to twelfth appellants in SCB59/23 associated himself with the preliminary points raised by counsel for the thirteenth, fourteenth, and fifteenth respondents and counsel for the first to the sixth appellants. He emphasised that the applications were based on hearsay evidence and that only the Electoral Court had exclusive jurisdiction to hear the applications.

Counsel for the first to fourth appellants in SCB61/23 associated himself with submissions made by counsel who addressed the court before him.

Counsel for the appellants in SCB60/23 also associated himself with submissions that had been made by counsel before him.

Per contra, counsel for the first to twelfth respondents opposed all the preliminary points raised, characterising them as meritless.

He relied on the case of Kambarami v 1893 Mthwakazi Restoration Movement Trust and Others SC66-21 for the proposition, that, the court had jurisdiction. Regarding the validity of the applications, he submitted that the parties had attended a case management meeting and agreed on truncating the dies induciae.

On locus standi, he submitted that the respondents had a legitimate interest in the nomination proceedings because they had a direct and substantial interest in the outcome of the process. In relation to the applications being based on hearsay evidence, he contended, that, the respondents relied on public information and that there was Annexure “B” which supported their position. He further submitted that there were no material disputes of fact. A robust approach would resolve the matter.

Counsel for the first to twelfth respondents further submitted, that, the applications a quo were not an abuse of the court process given the substantial interests which the respondents had in the nomination of candidates for the constituencies where they were registered voters.

Finally, in relation to the non-joinder of Citizens Coalition for Change party (CCC) he argued that the party had no direct and substantial interest in the acceptance of the nomination papers.

The court a quo deferred the determination of the preliminary points to the end of the hearing and sought to be addressed on the merits.

Counsel for the first to twelfth respondents submitted, in support of the applications, that, the nominations ought to be nullified since they were accepted after 4pm in defiance of section 46 of the Electoral Act [Chapter 2:13]. He further submitted that the nomination officer unlawfully opened the court to specifically allow the affected candidates to present their papers out of time. He argued that the police officer who collected the papers was not a nomination officer. Annexure “B” confirmed that the nomination papers were filed out of time.

Counsel for the thirteenth to fifteenth respondents submitted that Annexure “B” was not a document reflective of the times when the nomination papers were lodged with the nominations officer. Further, he submitted, that, the nomination papers were submitted and received before the cut-off time of 4pm on the day in question. He emphasised that the officers of the Zimbabwe Electoral Commission (ZEC) who placed evidence before the court, through their supporting affidavits, spelt out that no nomination papers were submitted after 4pm. Finally, he submitted that there was no breach of section 46 of the Electoral Act.

Counsel for the first to the sixth appellants in SCB59/23 submitted, that, the respondents were relying on hearsay evidence that the social media was awash with; information that the appellants nomination papers were in disarray and filed out of time. He pointed out that the appellants filed their papers in compliance with section 46 of the Electoral Act before 1600 hours. Further, in opposing the allegations, he relied on the Zimbabwe Electoral Commission (ZEC) and the nomination officer's evidence that Annexure “B” was not a document indicative of the lodgement of nomination papers, but, that the time reflected on it related to the time of data capture.

Counsel for the seventh to twelfth appellants in SCB59/23 was also critical of Annexure “B” and he agreed with submissions by counsel for the first to the sixth appellants in SCB59/23 on it. He submitted that the respondents were relying on hearsay evidence and that they failed to discharge the onus and to prove the factual basis of their allegations. Their evidence was speculative as they relied on social media assertions.

Counsel for the appellants in SCB60/23 associated himself with submissions made by counsel who addressed the court before him. He emphasised, that, his clients submitted their nomination papers on time. He further added that the collection of nomination papers by the police officer, at the instruction of the nomination officer, did not amount to contravening section 46 of the Electoral Act.

Counsel for the first to fourth appellants in SCB61/23 associated themselves with counsel for the other appellants submissions.

DETERMINATION OF THE COURT A QUO

The court a quo gave a composite judgment. It dismissed all the preliminary points and made a finding that Annexure “B” was a document prepared by a Zimbabwe Electoral Commission (ZEC) official and that it spoke for itself, that, the nomination papers were submitted after 4pm. It found that the submission of papers from the appellants, through the police officer, was unlawful. It thus declared the nominations as null and void and issued the following order:

“IT IS DECLARED THAT:

1. That, the decision of the 1st Respondent, sitting as a nomination court at Bulawayo on 21 and/or 22 June 2023 to accept the following Respondents nomination papers and candidature in the elections scheduled to be conducted on 23 August 2023 was in contravention of section 46(7) & (8) of the Electoral Act [Chapter 2:13].

2. That, the decision of the 1st Respondent, sitting as a Nomination Court at Bulawayo on 21 and/or 22 June 2023, to accept the following Respondents nomination papers and candidature in the elections scheduled to be conducted on 23 August 2023 is declared null and void and is hereby set aside.

ACCORDINGLY, IT IS ORDERED THAT:

3. 1st Respondent is prohibited from including the names of the following Respondents in the preparation of ballot papers to be used in the general elections scheduled to be conducted on 23 August 2023.

4. Respondents shall jointly and severally pay the costs of suit.

OBERT MANDUNA; ERECK GONO; DOUGLAS NCUBE; GIFT SIZIVA; SANPOULUS MAPLANKA; PRINCE DUBE; NQOBIZITHA NDLOVU; DESMOND MAKAZA; BAJILA COLLINS DESCENT; SICHELESILE MAHLANGU; DESIRE MOYO; ALELAIDE MHLANGA; NOMPILO BHEBHE; SURRENDER KAPOIKILU; RAPHAEL PASHOR SIBANDA; NTANDOYENKOSI MINENHLE GUMEDE; FRANK MHLANGA.

5. The application against Zvikwete Innocent Mbano be and is hereby dismissed with costs.

6. The application against ADMORE GOMBA, NIGEL NDLOVU, SONENI MOYO, DINGILIZWE TSHUMA, STRIKE MKANDLA & ALBERT MHLANGA be and is hereby withdrawn.”...,.

SUBMISSIONS BEFORE THIS COURT

(a) Preliminary Issues

Counsel for the first to the twelfth respondents raised three preliminary issues.

The first point related to the status of the fifth appellant in SCB59/23 (Jane Nicola Watson). He noted, that, the order of the court a quo did not list her as one of the respondents, which omission was accepted by the fifth appellant.

Counsel accordingly sought an order deeming the judgment of the court a quo as being applicable to the fifth appellant as such a course would prevent the appeal by the fifth appellant from being struck off the roll....,.

Per contra, counsel for the first to sixth appellants opposed the procedure suggested in respect of the omission of the name of the fifth appellant in the court a quo's judgment. He argued that it was incompetent.

After an argument by both counsels, it was resolved that the issue will be determined by the court in terms of section 22(1)(b)(ix) of the Supreme Court Act [Chapter 7:13]....,.

Considering this court's decision, the exclusion of the fifth appellant's name in the court a quo's order need not be determined.

SSC89-23 : FUNNY MACHIPISA vs NGONI NDUNA N.O. and THE NATIONAL PROSECUTING AUTHORITY
Ruled By: UCHENA JA, MATHONSI JA and CHATUKUTA JA

This is an appeal against the whole judgment of the High Court Harare, dated 6 July 2022, dismissing the appellant's application for the review of the first respondent's refusal to find the appellant not guilty in spite of his having upheld the appellant's exception, taken together with the plea, in ...

BACKGROUND FACTS

The facts giving rise to this appeal are as follows:

The appellant is employed by the City of Harare (“the City Council”) as Deputy Director of Housing and Community Services, and was, at the time of the alleged commission of the offence, the Acting Director of Housing and Community Services when the incumbent was attending a week-long workshop in Kadoma.

In June 2021, he was arraigned before the first respondent, facing a charge of “criminal abuse of duty as a public officer, in contravention of section 174 of the Criminal Law (Codification and Reform) Act [Chapter 9:23]” (the Criminal Law Code).

The allegations levelled against him are that he irregularly and fraudulently allocated non-existent Stands to various persons who had applied for Stands to the City Council but were not yet due for allocation of Stands and some who were not on the City Council's waiting list.

The first objection, taken by way of exception, was taken with the consent of the parties in terms of section 170(2) of the Criminal Procedure and Evidence Act. At that stage, the appellant only objected and did not plead to the charge.

It enabled the first respondent to order the second respondent to amend the charge in terms of section 170(3) of the Criminal Procedure and Evidence Act to which it added an alternative charge of fraud.

The amended charges were read to the appellant, who pleaded and excepted to them, in terms of section 180(4) of the Criminal Procedure and Evidence Act.

In his exception, the appellant pointed out certain irregularities in the amended charges, such as, the failure to specify how he showed favour to the persons he allocated the non-existent Stands to.

The first respondent upheld the exception.

It ordered, that, the trial should proceed on the basis of the charge he ordered the prosecution to amend and prefer against the appellant in terms of section 170(3) of the Criminal Procedure and Evidence Act.

The appellant demanded a verdict of not guilty and an acquittal.

His counsel contended, that, after his exception was upheld, he was entitled to a verdict of not guilty and an acquittal as his plea remained hanging in the air pending the charge the first respondent had ordered the second respondent to amend.

In his submissions on the appellant's demand to be found not guilty and acquitted, the State's counsel conceded, that, the appellant was indeed entitled to a verdict of not guilty.

In his ruling, the first respondent refused to return a verdict of not guilty, as demanded by the appellant, notwithstanding the concession made by the prosecution. He, ruled that:

“Section 170(3) of the Code provides what happens where an exception has been made it (sic) is stated that:

'(3) Any court before which any objection is taken in terms of subsection (1) or (2) may, if it is thought necessary and the accused is not prejudiced as to his defence, cause the indictment, summons or charge to be forthwith amended in the requisite particular by some officer of the court or other person, and thereupon the trial shall proceed as if no such defect had appeared.'

In the event of an exception being upheld, the indictment shall be amended and the trial shall proceed as if no such defect had appeared.”…,.

Aggrieved by the first respondent's refusal to return a verdict of not guilty, the appellant filed an application for review in the court a quo.

The basis of his application is stated in his notice of application, which partly reads as follows:

“Illegality: The decision by the first respondent [in State v Funny Machipisa ACC158/20] not to return a verdict of 'Not Guilty' after upholding the applicant's exception, which exception had been taken in terms of section 180(4) of the Criminal Procedure and Evidence Act [Chapter: 9:07], is illegal as a contravention of section 180(6) of the Criminal Procedure and Evidence Act [Chapter 9:07]. The applicant was entitled, as of right, to a 'Not Guilty' verdict once an exception which he had taken after pleading 'Not Guilty' had been upheld.”

SUBMISSIONS MADE IN THE COURT A QUO

Submissions made by the appellant

In moving for a not-guilty verdict..., counsel for the applicant argued that the first respondent's decision was tainted by either 'gross irregularity' or by being 'clearly wrong.' He contended, that, the not-guilty plea which he tendered inevitably ought to have been followed by a not-guilty verdict. It could not “hang in the air waiting for an amended charge.”

He submitted, that, section 180(6) of the Criminal Procedure and Evidence Act provides that any person who has pleaded is entitled to a verdict. He therefore submitted, that, the first respondent's decision violated that provision and, as such, constituted a gross irregularity.

The applicant's counsel further contended, that, section 180(6) of the Criminal Procedure and Evidence Act should be read together with section 8(b) of the Criminal Procedure and Evidence Act, which makes an acquittal mandatory whenever charges are withdrawn after a plea.

The second respondent's submissions

In countering the appellant's averments, counsel for the second respondent contended, that, there was no irregularity in the first respondent's decision. He submitted, that, the first respondent acted in accordance with the law. He further submitted, that, the first respondent has the discretion to direct the prosecution to amend the charge, among other options.

Counsel for the second respondent further contended, that, an order to amend a charge is an interlocutory ruling.

It is a ruling made in the course of ongoing, uncompleted proceedings, which superior courts do not interfere with except in exceptional circumstances where it would have been established that the lower court committed a gross irregularity or was clearly wrong. He further argued, that, no gross irregularity had been proven in respect of the manner in which the trial court conducted the proceedings, warranting interference by the court a quo.

In spite of his earlier resistance to the application for review, counsel for the second respondent subsequently changed course and conceded, that, the first respondent erred and his decision should be set aside on review.

DETERMINATION OF THE COURT A QUO

After hearing counsel, the court a quo held that it could not interfere with un-terminated proceedings, as there was no justification for such intervention. It did not agree with the submissions of the applicant's and second respondent's counsel, that, the first respondent erred in refusing to find the appellant not guilty.

In arriving at its decision, that the trial court had correctly applied the law, the court a quo said:

“In casu, the pertinent question is, does the first respondent's decision fall into the exceptional category reflecting gross irregularity?

We think not.

An examination of the first respondent's ruling shows, that, he took guidance from the applicable law. To begin with, he exercised the discretion provided for in section 171 of the Criminal Procedure and Evidence Act, where an accused person decides to both plead and except to the charge. Section 171 reads:

'(1) When the accused excepts only and does not plead any plea, the court shall proceed to hear and determine the matter forthwith, and, if the exception is over-ruled, he shall be called upon to plead to the indictment, summons or charge.

(2) When the accused pleads and excepts, together, it shall be in the discretion of the court whether the plea or exception shall be first disposed of.'

…,.

The first respondent exercised his discretion in terms of subsection (2) and dealt with the exception first.

What was he then going to do with the plea of not guilty, which had been tendered together with the exception?

The first respondent was guided by section 170(3), which allows amendment of the indictment summons or charge provided such amendment does not prejudice the accused in his defence.

This section provides as follows:

'(3) Any court before which any objection is taken in terms of subsection (1) or (2) may, if it is thought necessary, and the accused is not prejudiced as to his defence, cause the indictment, summons or charge to be forthwith amended in the requisite particular by some officer of the court or other person, and, thereupon, the trial shall proceed as if no such defect had appeared.'

A significant aspect of the first respondent's ruling is the distinction he draws between the upholding of an exception and the quashing of the charge. These are different courses of action provided for in section 170(1). The accused either excepts to the charge, or…,.”

It further dealt with situations where a superior court can interfere with unterminated proceedings. It stated, that, the test for intervening in un-terminated proceedings is high, as repeatedly emphasized by case law. It found no gross irregularity in the first respondent's ruling, and dismissed the application before it.

Aggrieved, the appellant noted the present appeal on the following grounds:

GROUNDS OF APPEAL

The appellant's grounds of appeal read as follows:

“1. The court a quo improperly exercised its discretion and misdirected itself in finding, that, there was no gross irregularity in the first respondent's refusal to return a verdict of 'Not Guilty' after upholding the appellant's exception to the charge, which exception had been taken in terms of section 180(4) of the Criminal Procedure and Evidence Act [Chapter 9:07].

2. The court a quo erred in law and misdirected itself in not finding, that, the first respondent's refusal to return a verdict of 'Not Guilty' after upholding the appellant's exception to the charge, which exception had been taken in terms of section 180(4) of the Criminal Procedure and Evidence Act [Chapter 9:07], was so clearly wrong as to warrant its review before the termination of proceedings.”

SUBMISSIONS MADE BEFORE THIS COURT

Appellant's submissions

Counsel for the appellant submitted, that, both parties agreed, before the trial court, that, the appellant was entitled to a verdict of not guilty after the exception was upheld. It was further submitted that the first respondent refused to return a verdict of not guilty, notwithstanding the concession made by the second respondent, resulting in the appellant's application for review before the court a quo.

He submitted, that, in terms of section 180(6) of the Criminal Procedure and Evidence Act, any person who has pleaded to a charge is entitled to a verdict, and that, after upholding the exception, the trial court ought to have returned a verdict of 'Not Guilty' as had been pleaded.

He further submitted, that, the court a quo was not clear in its approach to reviewing un-terminated proceedings in that it should have first asked itself whether the appellant established the grounds of review.

He also argued, that, if review grounds exist, it ought to have questioned the degree to which the grounds of review had been established. He submitted that the court a quo did not render a decision on this issue.

He further submitted, that, if one pleads 'Not Guilty' and the charge is thrown out, one remains not guilty and proceedings should come to an end at that stage.

He argued, that, the trial court had no authority to amend the charge, in view of the fact, that, the exception was taken, together with the plea, in terms of section 180(4) of the Criminal Procedure and Evidence Act.

Counsel for the appellant also contended, that, section 171(2) of the Criminal Procedure and Evidence Act gives the court discretion on what it can dispose of first when an accused person pleads and excepts at the same time.

He submitted that the court a quo has jurisdiction to review unterminated proceedings, and the court ought to take a two-staged approach in such circumstances, which are:

1. It must ask itself, has the appellant established the grounds of review?

2. If the grounds for review exist, it should ask itself a second question, have the grounds been established to the required degree?

In respect of the above questions, counsel for the appellant argued, that, the court a quo erred when it held that there was no irregularity in the proceedings before the first respondent.

He further emphasised, that, if one pleads not guilty and the charge is thrown out, one remains not guilty at that stage. He argued that proceedings should come to an end at that stage and that the State should start a fresh action.

He argued, that, the first respondent had no authority to order an amendment after the exception had been taken together with the plea. He argued that a plea of 'Not Guilty' cannot hang in the air.

He contended that the discretion must be exercised in a way that disposes of the matter.

Submissions by the second respondent

Conversely, counsel for the second respondent submitted, that, there was no gross misdirection as the court a quo exercised its discretion judiciously.

She submitted, that, since the appellant pleaded and excepted to the charges at the same time, section 171(2) of the Criminal Procedure and Evidence Act allows the court discretion on which to dispose of first, between the plea and the exception.

She further submitted, that, the discretion was properly exercised in moving for an amendment of the charge in terms of section 170(3) of the Criminal Procedure and Evidence Act - after upholding the exception.

STAY OF PROCEEDINGS IN THE TRIAL COURT

At the end of their submissions, the parties applied for the stay of proceedings in the Magistrates Court until judgment in this case is handed down.

We agreed with the parties and ordered that the proceedings before the trial court be stayed pending the determination of this appeal.

SUPPLEMENTARY HEADS

During the preparation of this judgment, it became apparent to the court that there was need to give the parties an opportunity to make submissions on the interpretation of section 170(2) and (3) of the Criminal Procedure and Evidence Act, on the issue of whether or not it was competent for the first respondent to order the amendment of the charge when the appellant had pleaded and excepted in terms of section 180(4) of the Criminal Procedure and Evidence Act.

The need arose as this Court has to determine whether or not the first respondent could lawfully invoke the provisions of section 170(3) of the Criminal Procedure and Evidence Act, after upholding the appellant's exception, taken together with the plea of 'Not Guilty' in terms of section 180(4) of the Criminal Procedure and Evidence Act.

That issue had not been adequately covered by the parties at the hearing of the appeal.

Appellant's Supplementary Heads

In his supplementary heads, counsel for the appellant submitted, that, section 170(2) of the Criminal Procedure and Evidence Act does not arise because it only deals with objections and not exceptions. He further submitted, that, the appellant pleaded and excepted in terms of section 180(4) of the Criminal Procedure and Evidence Act. He submitted that section 170 of the Criminal Procedure and Evidence Act has a very restricted scope as it only applies to objections that attack “formal defects apparent on the face of the charge.”

He submitted, that, what the appellant raised were not formal defects apparent on the face of the charge, but were objections which went to the root of the charge.

He stressed, that, the exception the appellant raised, in terms of section 180(1) of the Criminal Procedure and Evidence Act, was an attack on the ground that the charge did not disclose the offence in question.

Second Respondent's Supplementary Heads

In her supplementary heads, counsel for the second respondent confirmed that the appellant pleaded and excepted in terms of section 180(4) of the Criminal Procedure and Evidence Act.

Contrary to her earlier concession, in paragraphs 7 and 9 of her supplementary heads, the second respondent's counsel argued that the appellant wrongfully pleaded and excepted to the charge in terms of section 170(2) of the Criminal Procedure and Evidence Act.

She, on that basis, prayed for the dismissal of the appellant's appeal.

ISSUES FOR DETERMINATION

The issues which fall for determination are:

1. Whether or not, in view of the provisions of section 170(3) of the Criminal Procedure and Evidence Act, it is competent for a Magistrate, after taking a plea and an exception at the same time, other than in terms of section 170(2) of the Criminal Procedure and Evidence Act, and upholding the exception, to thereafter order the prosecution to amend the charge in terms of section 170(3) of the Criminal Procedure and Evidence Act.

2. Whether, in view of the provisions of section 180(1) of the Criminal Procedure and Evidence Act, the appellant could competently except and plead in terms of section 180(4) of the Criminal Procedure and Evidence Act.

3. Whether or not the court a quo erred in finding, that, there was no gross irregularity or illegality in the first respondent's upholding of the appellant's exception and plea together, and ordering the second respondent to amend the charge in terms of section 170(3) of the Criminal Procedure and Evidence Act.

THE LAW

The first and second issues which arise for determination in this case call for the interpretation of the legal framework governing objections and exceptions taken to charges by accused persons in terms of section 170(2) and (3), 171(1) and (2) and section 180(1) and (4) of the Criminal Procedure and Evidence Act.

Objections and exceptions are provided for by section 170(1) to (3), section 171(1) and (2), and section 180(1) and (4) of the Criminal Procedure and Evidence Act.

Section 170(1) to (3) of the Criminal Procedure and Evidence Act provides for objections by way of exceptions as follows:

“(1) Any objection to an indictment for any formal defect apparent on the face thereof shall be taken by exception or by application to quash such indictment before the accused has pleaded, but not afterwards.

(2) Any objection to a summons or charge for any formal defect apparent on the face thereof which is to be tried by a magistrates court shall be taken by exception before the accused has pleaded, but not afterwards.

(3) Any court before which any objection is taken in terms of subsection (1) or (2) may, if it is thought necessary and the accused is not prejudiced as to his defence, cause the indictment, summons or charge to be forthwith amended in the requisite particular by some officer of the court or other person, and thereupon the trial shall proceed as if no such defect had appeared.”...,.

Section 170(1) of the Criminal Procedure and Evidence Act applies to objections in the High Court. It does not apply to the Magistrate's Court. The Magistrates Court is excluded by the use of the word “indictment” which only applies to the High Court.

Section 136 of the Criminal Procedure and Evidence Act confines an indictment to the High Court as follows:

“(1) When a person charged with an offence has been committed for trial or sentence, and it is intended to prosecute him before the High Court, the charge shall be in writing in a document called an indictment.”…,.

Section 170(2) of the Criminal Procedure and Evidence Act, which applies to objections in the Magistrates Court, does not allow an accused person to plead and except at the same time. It only allows the accused to except to the charge before he pleads to it.

It is therefore incompetent for an accused to plead and except to a charge in terms of section 170(2) of the Criminal Procedure and Evidence Act.

Section 170(3) of the Criminal Procedure and Evidence Act can only be invoked when an objection has been taken in terms of section 170(1) or (2) of the Criminal Procedure and Evidence Act. When no objection has been taken in terms of section 170(1) or (2), a court cannot invoke the provisions of section 170(3) of the Criminal Procedure and Evidence Act.

The use of the words “any court before which any objection is taken in terms of subsection (1) or (2) may” limits the court's authority to order an amendment of a charge or indictment to situations where an objection, in terms of an exception, would have been made in terms of section 170(1) or (2). That authority cannot be exercised without it first having been triggered by the provisions of section 170(1) or (2) of the Criminal Procedure and Evidence Act.

Section 171 of the Criminal Procedure and Evidence Act reads:

“(1) When the accused excepts only and does not plead any plea, the court shall proceed to hear and determine the matter forthwith, and, if the exception is overruled, he shall be called upon to plead to the indictment, summons or charge.

(2) When the accused pleads and excepts, together, it shall be in the discretion of the court whether the plea or exception shall be first disposed of.”

In terms of section 171(2) of the Criminal Procedure and Evidence Act, a court can exercise its discretion on which to dispose of first, the exception or the plea.

After determining the exception first, and upholding it, a court cannot exercise its discretion in terms of section 170(3) of the Criminal Procedure and Evidence Act, because, section 170(3) can only be resorted to after determining an objection in terms of either section 170(1) or (2) of the Criminal Procedure and Evidence Act.

Section 180(1), (4) and (6) of the Criminal Procedure and Evidence Act provides as follows:

“(1) If the accused does not object that he has not been duly served with a copy of the indictment, summons, or charge or apply to have it quashed under section one hundred and seventy-eight, he shall either plead to it or except to it on the ground that it does not disclose any offence cognizable by the court.

(2)…,.

(3)…,.

(4) The accused may plead and except together.

(5)…,.

(6) Any person who has been called upon to plead to any indictment, summons or charge shall, except as is otherwise provided in this Act or in any other enactment, be entitled to demand that he be either acquitted or found guilty by the judge or magistrate before whom he pleaded:”...,.

Section 180(1) of the Criminal Procedure and Evidence Act provides, that, an accused shall either plead to or except to a charge on the ground that it does not disclose any offence cognisable by the court. This means, an accused who has been served with a copy of the indictment, summons or charge, shall either plead or except the charge on the ground that it does not disclose any offence cognisable by the court.

The use of the word “shall” and as emphasized by the use of the word “either” in the same sentence means an accused who excepts because the charge is not cognisable by the court can only except. He cannot except and plead at the same time.

He can only take one of the two options provided by section 180(1) of the Criminal Procedure and Evidence Act.

Section 180(4) of the Criminal Procedure and Evidence Act allows an accused to plead and except together. It however does so permissively by using the word “may” as opposed to the mandatory provisions of section 180(1) which provides that an accused shall either plead or except to the charge.

It must also be stated, that, the use of the word “may” in section 180(4) of the Criminal Procedure and Evidence Act cannot be read to give a right contrary to the mandatory provisions of section 180(1).

A plea of not guilty or guilty, in terms of section 180(2) of the Criminal Procedure and Evidence Act, can only be entered by an accused who accepts, that, the charge discloses an offence cognisable by the court.

If the accused believes that the charge is not cognisable by the court, he does not plead to it. He should except to it.

Section 180(6) of the Criminal Procedure and Evidence Act entitles an accused who has pleaded, except as is otherwise provided in this Act or in any other enactment, to demand that he be either acquitted or be found guilty by the judge or magistrate before whom he pleaded.

The use of the words “except as is otherwise provided in this Act or in any other enactment be entitled” means an accused can only demand and be granted a verdict if there is no other provision in this Act, or any other enactment, on which the trial can proceed bearing in mind the circumstances of each case.

The prosecution can, in response, agree or disagree with the accused's demand.

If it disagrees, it must point out the law which provides for the procedure in terms of this Act or any other enactment in terms of which the court must act in determining whether or not to grant the accused's demand for a verdict. In the absence of such procedure which applies in the circumstances of an accused, in terms of this Act or any other enactment, the accused will be entitled to a verdict.

It must be stressed, that, if there is no justification for granting a verdict, the court should order that the trial must proceed.

The third issue depends on the correct application of the law on when superior courts can review and interfere with un-terminated proceedings.

It is now trite, that, superior courts will not lightly interfere with unterminated proceedings brought on review before them. They can only do so in exceptional circumstances where the trial court's proceedings will have been affected by gross irregularities which irredeemably vitiates the proceedings. Un-terminated proceedings can also be reviewed and set aside if the interlocutory order of the trial court is clearly wrong.

In the case of Attorney General v Makamba 2005 (2) ZLR 54 (S)..., MALABA JA..., said:

“The general rule is that a superior court should intervene in uncompleted proceedings in the lower courts only in exceptional circumstances of proven gross irregularity vitiating the proceedings and giving rise to a miscarriage of justice which cannot be redressed by any other means or where the interlocutory decision is clearly wrong as to seriously prejudice the rights of the litigant.”

In the case of Prosecutor General of Zimbabwe v Intratek Zimbabwe (Pvt) Ltd, Wicknell Munodaani Chivayo and L. Ncube SC67-20 MAKARAU JA..., dealing with the same issue..., said:

“Thus, put conversely, the general rule is that superior courts must wait for the completion of the proceedings in the lower court before interfering with any interlocutory decision made during the proceedings. The exception to the rule is that only in rare or exceptional circumstances, where the gross irregularity complained of goes to the root of the proceedings, vitiating the proceedings irreparably, may superior courts interfere with on-going proceedings.”

It must be stressed, that, if there is a gross irregularity, it must be one which goes to the root of the proceedings and has the effect of vitiating the proceedings irreparably. This means, the proceedings cannot be procedurally continued with/without the intervention of the superior court because the irregularity will have irreparably vitiated them.

There may, however, be situations where only part of the proceedings will have been irredeemably vitiated by irregularities and another part, for an example, the earlier proceedings, remains untainted by the irregularities.

In such circumstances a superior court can set aside the later part which will have been irredeemably vitiated by irregularities and order the trial to proceed from the untainted part.

APPLICATION OF THE LAW TO THE FACTS

1. Whether or not, in view of the provisions of section 170(3) of the Criminal Procedure and Evidence Act, it is competent for a Magistrate, after taking a plea and an exception at the same time, other than in terms of section 170(2,) and upholding the exception, to thereafter order the prosecution to amend the charge in terms of section 170(3) of the Criminal Procedure and Evidence Act

The first objection/exception, on the basis of which the original charge was amended, was with the consent of the parties. The charge was correctly amended because the parties had consented to an objection being taken before plea, in terms of section 170(2) of the Criminal Procedure and Evidence Act.

It entitled the first respondent to lawfully order the amendment of the charge in terms of section 170(3) of the Criminal Procedure and Evidence Act.

After the charge had been amended, the appellant pleaded 'Not Guilty' and excepted to it. The exception and plea were allegedly taken in terms of section 180(4) of the Criminal Procedure and Evidence Act.

As already explained under the analysis of the law, section 170(3) of the Criminal Procedure and Evidence Act does not apply to circumstances other than when an objection will have been taken before the court in terms of section 170(1) and (2) of the Criminal Procedure and Evidence Act.

This issue is answered by the law.

The court a quo therefore erred when it held, that, the first respondent correctly ordered the prosecution to amend the charge in terms of section 170(3) of the Criminal Procedure and Evidence Act.

2. Whether, in view of the provisions of section 180(1) of the Criminal Procedure and Evidence Act, the appellant could competently except and plead in terms of section 180(4)

The appellant allegedly excepted and pleaded in terms of section 180(4) of the Criminal Procedure and Evidence Act.

I say allegedly because the appellant took the exception and plea on the basis, that, the charge did not disclose an offence cognizable by the court. That places the appellant's exception under the provisions of section 180(1) of the Criminal Procedure and Evidence Act.

In paragraph 6 of his supplementary heads, counsel for the appellant said:

“In this case, it was an exception, as the attack was on the ground that the charge did not disclose the offence in question. This sort of exception is permitted by section 180(1) of the Criminal Procedure and Evidence Act [Chapter 9:07].”

Once it is established, that, such an exception falls under section 180(1) of the Criminal Procedure and Evidence Act it cannot be taken together with the plea.

The appellant's exception and plea, together, in circumstances where the exception should have been taken in terms of section 180(1) of the Criminal Procedure and Evidence Act is incompetent because they were made contrary to the provisions of the law.

3. Whether or not the court a quo erred in finding that there was no gross irregularity or illegality in the first respondent's upholding of the appellant's exception and plea, together, and ordering the second respondent to amend the charge in terms of section 170(3) of the Criminal Procedure and Evidence Act

It has already been established, that, the decision of the trial court, in refusing to find the appellant 'Not Guilty' was based on its reliance on the mistaken belief that section 170(3) of the Criminal Procedure and Evidence Act authorised it to order the prosecution to amend the charge and proceed with the trial on the charge which was still to be amended, even though the appellant had allegedly pleaded and excepted in terms of section 180(4) of the Criminal Procedure and Evidence Act.

As has already been established, the first respondent erroneously upheld the appellant's exception and plea. He should, in view of the provisions of section 180(1) of the Criminal Procedure and Evidence Act, not have allowed the appellant to plead and except at the same time.

It also erroneously ordered the second respondent to amend the charge in terms of section 170(3) of the Criminal Procedure and Evidence Act.

In its judgment, the court a quo relied on section 170(3) of the Criminal Procedure and Evidence Act in finding that the first respondent had authority to order the second respondent to amend the charge and that the trial was to proceed on the charge which was still to be amended.

It is clear that both the trial court and the court a quo did not realize, that, section 170(3) could not be invoked, as the appellant had not pleaded and excepted in terms of section 170(1) or (2)) of the Criminal Procedure and Evidence Act.

As explained under the analysis of the law, section 170(3) does not authorize the court to order an amendment of the charge in cases other than those in which an objection, by way of an exception, would have been upheld in terms of subsections (1) or (2) of section 170 of the Criminal Procedure and Evidence Act.

It is therefore clear, that, the first respondent's interlocutory orders, upholding the exception which had been made together with the plea, contrary to the provisions of section 180(1) of the Criminal Procedure and Evidence Act, and ordering the amendment of the charge, are wrong and should not have been upheld by the court a quo.

This Court must determine whether or not the irregularities which occurred in the proceedings before the first respondent irredeemably vitiated the whole proceedings.

We are satisfied, that, they have that effect on the proceedings from the appellant's exception and plea onwards. We are also satisfied, that, the interlocutory decisions of the court a quo, after the appellant's exception and plea, are clearly wrong. We however are cognisant of the fact, that, the errors were induced by the appellant's incompetent excepting and pleading together, contrary to the provisions of section 180(1) of the Criminal Procedure and Evidence Act.

Whatever is done contrary to the provisions of the law is a nullity.

There is, therefore, need to set aside parts of the proceedings which are a nullity, and order the trial to continue in respect of the valid parts of the proceedings.

Proceedings and decisions of a court of law are validated by their being conducted or made in terms of the law. Proceedings and decisions made contrary to the provisions of the law are clearly wrong and are a nullity which must be set aside on review or appeal.

DISPOSITION

The proceedings before the first respondent, from the taking of the exception and plea together, are irredeemably irregular and the court a quo's decisions, after that stage of the proceedings, are clearly wrong and must be set aside because they are contrary to the provisions of the law.

This is however a case which warrants ordering the trial court, and the parties, back to the stage they were at before the incompetent exception and pleading were taken together, and the erroneous orders which followed thereafter.

The appellant's exception and plea must be set aside to enable the appellant to correctly plead or except. The erroneous orders of the first respondent must also be set aside.

In view of the fact that this appeal arises from proceedings of a criminal trial, each party shall bear its own costs.

It is therefore ordered as follows:

1. The appeal partially succeeds with each party bearing its own costs.

2. The judgment of the court a quo be and is hereby set aside and is substituted as follows:

“2.1. The proceedings in the court a quo, from the accused's exception and plea, and the trial court's upholding of the exception and order that the prosecution amend the charge in terms of section 170(3) of the Criminal Procedure and Evidence Act, be and are hereby set aside.

2.2.1 The case is remitted to the trial court for the trial to continue from the stage when the accused was invited to plead to the charge in terms of the law.

SC29-22 : TECHNOIMPEX JSC vs RAJENDRAKUMAR JOG and TECHNOIMPEX JC (PVT) LTD and SARAH HWINGWIRI and REGISTRAR OF DEEDS and SHERIFF OF THE HIGH COURT OF ZIMBABWE
Ruled By: GUVAVA JA, UCHENA JA and KUDYA AJA

This is an appeal against the whole judgment of the High Court dated 13 August 2020, striking off the roll the appellant's application for rescission in HC6771/19 of a default judgment granted in favour of the respondents in HC12074/16 and granting a consent order which dismissed an interdict granted against the respondents in HC6784/19.

At the hearing of the appeal, counsel for the first respondent (Rajendrakumar Jog) and counsel for the second and third respondents (Technoimpex JC (Pvt) Ltd and Sarah Hwingwiri) raised points in limine on the validity of the appellant's Notice of Appeal.

They submitted, that, there is no valid appeal before the court because the appeal was noted without leave of the court against an interlocutory order and was also noted against a consent order.

This judgment is restricted to the determination of these preliminary points.

FACTUAL BACKGROUND

The facts of the case can be summarised as follows:

The appellant (Technoimpex JSC) is a company duly incorporated in terms of the laws of Bulgaria. It is the registered owner of an immovable property in Harare, Zimbabwe known as Lot 12 of Lot 15 Block C of Avondale, commonly referred to as Bath Mansions Flats at number 32 Bath Road, Avondale, Harare held under Deed of Transfer number 1657/89.

In case number HC6784/19 it applied for an interdict against the first to the third respondents (Rajendrakumar Jog, Technoimpex JC (Pvt) Ltd and Sarah Hwingwiri) who it alleged wanted to steal its property.

The High Court granted the application. In arriving at the decision to grant the provisional order, it said:

“From the history of the matter that I outlined above, the applicant has always been the lawful owner of Bath Mansions Flats. The judgment I referred to (sic) showed he was successful in warding off the efforts of the first and second respondents to steal the property. For that reason, the applicant has a real right in the property. Once the property has been transferred to a third party, the applicant is likely to suffer irreparable harm. In this case, the second respondent has applied for a rates clearance certificate to enable her to transfer title of the property to third respondent. Such harm is apprehended. In my view, the balance of convenience favours the granting of the relief sought until a lasting solution to the saga is found. There is therefore no other effective alternative remedy other than granting the relief sought. The application will succeed and I grant the following order.

IT IS ORDERED THAT:

TERMS OF FINAL ORDER SOUGHT

INTERIM RELIEF:

“1. The 1st Respondent be and is hereby interdicted from transferring Lot 12 of Lot 15 Block C of Avondale commonly known as Bath Mansions Flats, 32 Bath Road Avondale, Harare previously held in favour of Technoimpex JSC under Deed of Transfer No.1657/89 and currently held in favour of 1st Respondent under Deed of Transfer No.1080/2019 and certificate of registered title no.1081/2019 to 3rd Respondent or any other persons.

2. 1st, 3rd, 4th, and 5th Respondents be and are hereby interdicted from transacting on and/or facilitating any process for the transfer of Lot 12 of Lot 15 Block C of Avondale commonly known as Bath Mansions Flats, 32 Bath Road, Avondale, Harare previously held in favour of Technoimpex JSC under Deed of Transfer no. 1657/89 and currently held held in favour of 1st Respondent under Deed of Transfer no. 1080/2019 and certificate of registered title no. 1081/2019 unless with specific leave of the court hearing this matter.

3….,.

4. The Registrar of Deeds and all the Respondents cited herein be and are hereby interdicted from facilitating or passing further transfer of Lot 12 of Lot 15 Block C of Avondale, Harare previously held under Deed of Transfer Number 1657/89 and currently held in favour of 1st Respondent under Deed of Transfer no. 1080/2019 and certificate of registered title no. 1081/2019, commonly known as Bath Mansions Flats, 32 Bath Road, Avondale, Harare.

5. The 1st, 2nd, and 3rd Respondents be and are hereby interdicted from advertising, selling, pledging, ceding, mortgaging, donating or in any way encumbering or alienating Lot 12 of Lot 15 Block C Avondale, Harare.

6. Pending the determination of this matter and High Court Case no. 2012/2018, whichever is the later, the Sheriff of the High Court be and is hereby directed to serve notices, court process, pleadings, orders issued by any person or litigant (sic) be served on Applicant's legal practitioners mentioned in para 3 above.

7. Pending the determination in High Court Case no. HC12074/16 or the application for rescission of default judgment granted in High Court matters HC2972/17 and HC11246/17 whichever will be the later, the Sheriff of Zimbabwe be and is hereby ordered not to carry out any eviction at 32 Bath Road Avondale, Harare in terms of any litigation commenced after 13 September 2016 by any person without the leave of the Court hearing the present matter.”

It is apparent from the provisional order that it had various interdicts protecting the appellant from possible harmful conduct by the first, second, and third respondents.

In subsequent proceedings before MUSITHU J for the confirmation of the provisional order in HC6784/19, the parties agreed that the provisional order's fate shall depend on the court's decision on the merits in the application for rescission in HC6771/2019. The court a quo commented on that agreement as follows:

“Mr Magwaliba advised that case Number HC6784/19 was set down before Musithu J for the confirmation or discharge of the Provisional Order and that the parties agreed that the Provisional Order be extended until a determination is made in this matter. In the event that this Court finds for the applicant, the parties agreed that the Provisional Order be confirmed, and that if the court finds against the applicant, the Provisional Order will be discharged.

Ms Sanhanga, for the first respondent, and Mr Uriri, for the second and third respondents, confirmed the above terms of the agreement. I have had sight of the order issued by Musithu J in HC6784/19. It indeed extends the Provisional Order in HC6784/19 until the determination of the present matter.”

In HC6771/19 the court a quo, in determining the application before it, said:

“I have reached the conclusion, that, the applicant has not shown the deponent's authority by furnishing a resolution. The effect of this is that there is no founding affidavit before the court. A court application must be supported by a founding affidavit. Without a founding affidavit there is no application.

All things being equal, that finding is such that I did not have to dispose of the question of locus standi which I determined only because its factual basis was related to the question of lack of authority. The primary basis of my judgment is that the application is not authorised. It is thus a nullity. There is therefore, nothing before me to dismiss. The only appropriate order is an order striking the matter off the roll.”…,.

It, in the result, ordered as follows:

“1. That, the application is struck off the roll with costs.

2. The Provisional Order granted in case number HC6784/19, on 9 October 2019, is, by consent of the parties, discharged with costs.”

Aggrieved by this decision, the appellant noted the present appeal.

Before the appeal could be heard on the merits, counsels for the respondents raised preliminary issues on the validity of the appellant's Notice of Appeal. They submitted, that, the notice of appeal is invalid because it appeals against a consent order and an interlocutory order.

SUBMISSIONS MADE BY THE PARTIES ON THE PRELIMINARY ISSUES

Counsel for the first respondent argued, firstly, that the notice of appeal was defective as the appellant sought to appeal against an order made by consent in HC6874/19.

Secondly, she submitted that the appeal was also defective in that it related to an interlocutory order of which leave to appeal was neither granted nor sought.

Lastly, she submitted that the matter should be struck off the roll as there is no valid appeal before the court.

Counsel for the second and third respondents agreed with the first respondent's counsel.

He submitted, that, the appellant's representative's reliance on a power of attorney instead of a resolution by the Board of the appellant's Directors rendered the appellant's application in HC6711/19 fatally defective.

He submitted that the court a quo therefore correctly struck the application off the roll.

He further argued, with reference to the discharge of the provisional order as a result of the striking off the roll of HC6771/19, that, a decision is not only a decision on the merits but can also be a decision on the basis of technical objections.

Counsel for the second and third respondents submitted, that, the court a quo made a determination on fatal procedural defects, which is a decision of the court against the appellant, which triggered the coming into operation of the parties agreement by consent before MUSITHU J.

Counsel for the second and third respondents also agreed with the first respondent's counsel, that, there was a consent order which could not be appealed against, and, once that is accepted, the notice of appeal becomes invalid.

He therefore submitted that his clients are entitled to costs as they have been forced to defend themselves against an invalid appeal.

In response, counsel for the appellant argued, that, the order of the court a quo was not by consent as the appellant agreed to a course of action and not to the result of the court a quo.

He also submitted, that, consent to a course of action does not amount to a concession to the correctness of the judgment.

He thus submitted, that, since the judgment of the court a quo was not a consent order, it could be appealed against.

In respect of the interlocutory order, he argued that it had a final effect and could thus be appealed against without leave of the court.

THE ISSUES

Two issues arise for the determination of the preliminary points raised. The issues for determination are:

1. Whether or not the appellant consented to the order granted in paragraph 2 of the court a quo's order and could therefore not appeal against it.

2. Whether or not the appellant can appeal against the order issued in HC6771/19 without the leave of court.

THE LAW

The law applicable to the facts of this case is as follows:

It is an established principle of the law that a litigant cannot appeal against an order by consent.

The notice of appeal would be fatally defective for lack of compliance with section 43(1) as read with section 43(2)(c)(i) of the High Court Act [Chapter 7:06].

Section 43(2)(i) of the High Court Act provides as follows:

“43 Right of appeal from High Court in civil cases

(1)…,.

(2)(c) No appeal shall lie from -

(i) An order of the High Court or any judge thereof made with the consent of the parties; or…,.”

Section 43(2)(c)(i) of the High Court Act clearly establishes, that, when a party consents to the granting of an order by a court or a judge, he or she cannot appeal against the consent order.

In the case of Thambi v Stalka NO & Anor 1946 TPD 297, ROPER J reasoned that there could be no appeal against a judgment by consent given under the South African Magistrates Court Act 32 of 1944. He, at p300, said:

“It is impossible to imagine any circumstances in which a party could appeal against a judgment by consent; he might have good grounds for setting aside or varying such a judgment, but, he would not and could not appeal against it.”

Consent to a court order by the parties, leading to the granting of a consent order is a decision consciously made by the parties fully appreciating the facts and the law applicable to the dispute between them. The consent cannot be based on facts which were not in the contemplation of the parties.

It is an order granted by the court at the instance of the parties.

It is also trite, that, a party to proceedings in which the court grants an interlocutory order cannot appeal against such an order without the leave of the court.

Section 43(1) of the High Court Act provides as follows:

“43 Right of appeal from High Court in civil cases

(1) Subject to this section, an appeal in any civil case shall lie to the Supreme Court from any judgment of the High Court, whether in the exercise of its original or its appellate jurisdiction.

(2) No appeal shall lie -

(d) From an interlocutory order or interlocutory judgment made or given by a judge of the High Court, without the leave of that judge, or, if that has been refused, without the leave of a judge of the Supreme Court, except in the following cases -

(i) Where the liberty of the subject or the custody of minors is concerned;

(ii) Where an interdict is granted or refused;

(iii) In the case of an order on a special case stated under any law relating to arbitration.”…,.

There are exceptions to the requirement for leave to appeal against an interlocutory order. The three exceptions are:

(i) Where the liberty of the subject or the custody of minors is concerned;

(ii) Where an interdict is granted or refused;

(iii) In the case of an order on a special case stated under any law relating to arbitration.

A party can therefore only appeal against an interlocutory order, without leave of the court, if the decision appealed against falls under one of the three exceptions.

1. WHETHER OR NOT THE APPELLANT CONSENTED TO THE ORDER GRANTED IN PARAGRAPH 2 OF THE COURT A QUO'S ORDER AND COULD THEREFORE NOT APPEAL AGAINST IT

The appellant's counsel submitted, that, the appellant did not consent to the order granted by TAGU J dismissing the interdict he had previously granted as a provisional order. On the other hand, counsels for the first respondent and the second and third respondents submitted, that, the order was granted with the consent of all parties.

The facts of this case establish, that, the order was preceded by the parties appearing before MUSITHU J before whom the confirmation or discharge of the provisional order granted by TAGU J in HC6784/19 had been set down.

The parties discussed the way forward, which was presented to MUSITHU J by Advocate Magwaliba, who was representing the applicant who is now the appellant.

At p483 of the record Mr Magwaliba made the following submissions to MUSITHU J:

“My lord, my learned friend approached me and suggested that the order granted by his lordship, the Honourable Tagu J, being a provisional order which granted interim relief protecting the applicant, remains in force and protects the applicant in the interim in respect of the property mentioned therein. And then the substantive issues will be resolved within the context of the application for rescission of judgment in HC6771/19. It occurs to me, my lord, that, once the judgment in issue which gave rise to this transfer is set aside, as we expect in HC6771/19, or is not set aside, as my learned friends for the respondent expect, the question of the confirmation of Justice Tagu's order becomes resolved.”

Pages 484 to 485 of the record of appeal establish, that, while the parties were still presenting their agreed positions to MUSITHU J, the following exchange took place between MUSITHU J and Advocate Magwaliba, for the appellant, who was then the applicant:

“MUSITHU J: So essentially, if I understand your earlier submission, Advocate Magwaliba, I am confirming the interim relief by TAGU J. As of 9 October 2019?

“Adv Magwaliba: No, no my lord. The confirmation of that order will entail granting final relief which is not what the parties have agreed. The parties have agreed to extend the provisional order. So, the provisional order remains, parties will then direct argument in relation to HC6771/19 which has the effect of resolving the final relief sought before Justice Tagu.”…,.

When the parties appeared before TAGU J, Advocate Magwaliba, who was representing the applicant, who is now the appellant, introduced the parties agreement to the judge, on p489, as follows:

“The position which pertains therefore, my lord, is that by resolving HC6771/19 necessarily the provisional order will either be discharged if rescission is not granted, confirmed if rescission is granted. That is the basis upon which I referred that matter to the court. But, there will be no argument in relation to HC6784/19 because that argument will be encapsulated in HC6771/19…,.”…,.

The submissions by Advocate Magwaliba before MUSITHU J and TAGU J are clear.

The parties wanted the provisional order to be extended so that its fate would be tied to that of the court a quo's decision on the merits in HC6771/19.

There is nothing in his submissions before the two judges, and his exchange with MUSITHU J, which suggests that any other decision in HC6771/19 should result in the discharge or confirmation of the provisional order.

There is, however, need to establish whether or not the parties consented to the order granted by the court a quo in paragraph 2 of its order.

A consent to a court order is a decision consciously made by a party fully appreciating the facts and the law applicable to the dispute between the parties. Consent to a court order cannot be based on facts which were not in the contemplation of the parties.

In this case, the parties clearly agreed that the confirmation or discharge of the preliminary order issued by TAGU J would be dependant on whether or not the application for rescission in HC6771/19 was granted or dismissed on the merits.

In making his presentantion before MUSITHU J, Mr Magwaliba said:

“And then the substantive issues will be resolved within the context of the application for rescission of judgment in HC6771/19. It occurs to me, my lord, that, once the judgment in issue which gave rise to this transfer is set aside, as we expect in HC6771/19, or is not set aside, as my learned friend for the respondent expects, the question of the confirmation of Justice Tagu's order becomes resolved.”…,.

I am satisfied that the parties did not agree that the fate of the provisional order granted by TAGU J in HC6784/19 be determined by the striking off the roll of the application in HC6771/19. The parties agreement was that the fate of the provisional order was to depend on whether or not the application for rescission in HC6771/19 was to be granted or dismissed.

In clarifying what the parties had agreed on, to MUSITHU J, Mr Magwaliba said:

“The parties have agreed to extend the provisional order. So, the provisional order remains, parties will then direct argument in relation to HC6771/19 which has the effect of resolving the final relief sought before Justice Tagu.”…,.

The parties agreed that they had to make submissions which would enable the court a quo to make a decision on the merits which would resolve the issue of whether or not the provisional order could be confirmed or set aside.

This did not happen, as the application for rescission was struck off the roll - an event which was not in the contemplation of the parties.

In Georgias & Anor v Standard Chartered Finance Zimbabwe Ltd 1998 (2) ZLR 488 (S)…, this Court stated, that, an order by consent “extinguishes any cause of action that existed.”

In this case, the striking off the roll of the application did not exstinguish the cause of action between the parties. It merely delayed its determination as the striking of the matter off the roll does not prevent the appellant from filing another application on the same cause of action.

Therefore, the fact that the order granted by TAGU J, striking the application in HC6771/19 off the roll, was not consented to by the parties, means the appellant's appeal against paragraph 2 of the court a quo's order is properly before this Court.

The respondents preliminary issue on this point should be dismissed.

2. WHETHER OR NOT THE APPELLANT CAN APPEAL AGAINST AN INTERLOCUTORY ORDER ISSUED IN HC6771/19 WITHOUT THE LEAVE OF COURT

In arriving at the decision to strike the matter off the roll, the court a quo said:

“I have reached the conclusion that the applicant has not shown the deponent's authority by furnishing a resolution. The effect of this is that there is no founding affidavit before the court. A court application must be supported by a founding affidavit. Without a founding affidavit there is no application.

All things being equal, that finding is such that I did not have to dispose of the question of locus standi which I determined only because its factual basis was related to the question of lack of authority. The primary basis of my judgment is that the application is not authorised. It is thus a nullity. There is therefore nothing before me to dismiss. The only appropriate order is an order striking the matter off the roll.”…,.

The application before the court a quo was a nullity because the deponent to the founding affidavit had no authority to represent the company.

The appellant's failure, to present before the court a quo a resolution by the appellant's Board of Directors, authorising him to represent the appellant, was fatal to the application.

There was nothing before the court a quo to dismiss, and, the only appropriate order was to strike the matter off the roll.

In the light of the above considerations, and the law as provided by section 43(2)(d) of the High Court Act, I am of the view that the appellant had no right to appeal against the court a quo's interlocutory order without the leave of the court.

Section 43(2)(d) of the High Court Act provides as follows:

“(2) No appeal shall lie -

(i) Where the liberty of the subject or the custody of minors is concerned;

(ii) Where an interdict is granted or refused;

(iii) In the case of an order on a special case stated under any law relating to arbitration.”…,.

The exceptions under (i) to (iii) do not apply to the striking off of the application in HC6771/19 from the roll.

The appeal against paragraph 1 of the court a quo's order is therefore a nullity.

If there was no matter before the court a quo, there is therefore also nothing before this Court.

In Jensen v Acavalos 1993 (1) ZLR 216 (S), KORSAH JA…, said that the reason why a fatally defective notice of appeal could not be amended was that:

“…, it is not only bad, but incurably bad.”

In casu, there was no proper resolution, thus, there was no proper application for rescission before the court a quo.

The appeal before us, in respect of the interlocutory order, is fatally defective and cannot even be amended.

In ZOU v Ndekwere SC52-19…, GARWE JA…, commenting on defective processes said:

“Once the court had determined that all the grounds of appeal before it were attacking factual findings and not issues of law, it should have found that there was, therefore, no proper appeal before it.

And, if there was no proper appeal before it, there was, in fact, nothing before it. And, if there was nothing before the court, there was therefore nothing to dismiss. The only appropriate course of action, in these circumstances, would have been to strike the matter off the roll.”…,.

It is clear, that, the notice of appeal against the striking of the application in HC6771/19 off the roll, in this case, does not comply with section 43(1) and (2)(c)(i) of the High Court Act. It is fatally defective.

The matter must therefore be struck off the roll.

DISPOSITION

In the result, the preliminary objection, in respect of paragraph 1 of the court a quo's order, has merit and for that reason there is no valid appeal against paragraph 1 of the court a quo's order before this Court.

In respect of paragraph 2 of the court a quo's order, I have found that there was no agreement between the parties that if the application in HC6771/19 was struck off the roll, then, the provisional order granted in HC6784/19 would be discharged.

Both parties have succeeded on one of the issues. Therefore, each party should bear its own costs.

It is therefore ordered that:

1. The notice of appeal against paragraph 1 of the court a quo's order is a nullity.

2. The matter is hereby struck off the roll.

3. The notice of appeal against paragraph 2 of the court a quo's order is valid.

4. The appeal against paragraph 2 of the court a quo's order should proceed to a hearing on the merits.

5. The Registrar is instructed to set it down before the same Bench for hearing at the earliest convenient date.

6. Each party shall bear its own costs.

SC123-23 : ARISTON MANAGEMENT SERVICES vs ECONET WIRELESS ZIMBABWE LIMITED
Ruled By: GUVAVA JA, MAKONI JA and MATHONSI JA

This is the unanimous judgment of this Court.

This is an appeal against the judgement of the High Court handed down on 20 July 2023 dismissing the appellant's application to set aside an arbitral award and registering that award.

On 2 October 2023, the respondent filed a notice of objection in terms of Rule 51 of the Supreme Court Rules 2018, that, the appellant's founding affidavit filed in support of the application seeking to set aside the arbitral award in the court a quo was defective in that it was undated. The respondent submitted, that, for that reason, there was no valid application before the court a quo.

The respondent urged the court to dismiss the appeal with costs on that basis.

At the commencement of the hearing, counsel for the respondent, relying on the authority of Mandishaya v Sithole HH798-15, which is a judgment of two Judges of the High Court, submitted that the founding affidavit of the appellant, in the court a quo, was invalid as it was un-dated.

Per contra, counsel for the appellant submitted that the Mandishaya v Sithole HH798-15 judgment is wrong. He argued, that, section 8 of the Justices of the Peace and Commissioners of Oath Act [Chapter 7:09], which governs the administering of an oath, does not require the insertion of a date on an affidavit. Counsel further referred to section 2 of SI 183/98, which prohibits a Commissioner of Oaths from administering an oath in a matter in which he or she has an interest.

Counsel for the appellant also referred to the case of Firstel Cellular (Pvt) Ltd v Net One Cellular (Pvt) Ltd 2015 (1) ZLR 94 (S) which dealt with a matter where a wrong stamp had been appended by the Commissioner of Oaths.

In our view, that case is not useful for present purposes.

In Mandishaya v Sithole HH798-15, the court remarked that the deponent of an affidavit must take the oath in the presence of the Commissioner. Equally, the Commissioner must append his or her signature on the statement in the presence of the deponent. The court went on to say, that, the Commissioner must also endorse the date on which the oath was administered and that those acts must occur contemporaneously.

The reason behind that requirement is for the court to be satisfied, that, the oath was administered at a given date, in the presence of both the deponent and the Commissioner. Without the date, the court may never be able to ascertain if the oath was properly administered in accordance with the law.

The court a quo was bound by the Mandishaya v Sithole HH798-15 judgment, being a judgement of the two Judges.

Even though the issue was not argued a quo, it could be raised for the first time on appeal as it is a point of law.

We do not agree with counsel for the appellant, with his argument that the judgment was wrongly decided.

There is merit in the preliminary objection. It ought to be upheld. It renders the application for setting aside the award a nullity.

In view of the fact, that, the court a quo rendered a composite judgment in respect of the two applications, the invalid application and its outcome are capable of severance.

The application for registration, being a separate application, is not affected.

It follows that, absent a valid application a quo, there can be no valid appeal before this Court.

We therefore propose to proceed in terms of section 25 of the Supreme Court Act [Chapter 7:09], which allows this Court to review and set aside irregular proceedings.

Regarding costs, our view is that each party should bear its own costs because the respondent ought to have raised this defect to the application earlier.

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

1. The matter be and is hereby struck off the roll with no order as to costs.

2. In terms of section 25(2) of the Supreme Court Act [Chapter 7:13], the proceedings in the application to set aside the arbitral award are hereby set aside.

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Law Portal
Zimbabwe

Final Orders re: Approach iro Handing Down of Judgment ito Implied Determination and the Severability of Judgments

Appealed
SC119-21 : MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS and OTHERS vs CONCILIA CHINANZVAVANA and THE NATIONAL PEACE AND RECONCILIATION COMMISSION
Ruled By: GWAUNZA DCJ, GUVAVA JA and BHUNU JA

HH497-17 : RICHARD MATTHEWS vs CASTER INTERNATIONAL (PVT) LTD
Ruled By: CHATUKUTA J

HH626-15 : TIAN ZE TOBACCO COMPANY (PRIVATE) LIMITED vs VUSUMUZI MUNTUYEDWA
Ruled By: MATHONSI J

HH707-15 : RICHARD MATTHEWS vs CRASTER INTERNATIONAL (PRIVATE) LIMITED
Ruled By: MAFUSIRE J

HH125-15 : CONFEDERATION OF ZIMBABWE INDUSTRIES vs RITA MBATHA
Ruled By: MATHONSI J

HH134-10 : HERBERT SAURAMBA and 113 OTHERS vs MITCHELLS BAKERY MUTARE
Ruled By: CHIWESHE JP

View Appeal
SC12-16 : AFARAS GWARADZIMBA vs C. J. PETRON & COMPANY (PROPRIETARY) LIMITED
Ruled By: ZIYAMBI JA, GARWE JA and HLATSHWAYO JA

SC67-23 : HWANGE COLLIERY COMPANY LIMITED and DALE SIBANDA N.O. vs PALEHOUSE INVESTMENTS (PRIVATE) LIMITED
Ruled By: MAVANGIRA JA, BHUNU JA and CHIWESHE JA

SC69-23 : ZESA HOLDINGS (PRIVATE) LIMITED vs CLOVEGATE ELEVATOR COMPANY (PRIVATE) LIMITED and JUSTICE L.G. SMITH N.O.
Ruled By: MATHONSI JA, KUDYA JA and MWAYERA JA

SC81-23 : DISCENT BAJILA and FRANK MHLANGA and ADELAIDE MHLANGA and SANPOULOS MAPLANKA and OTHERS vs TATENDA MADZIRASHE and RAMSON CHINGWARA and LINDA MPOFU and OTHERS
Ruled By: UCHENA JA, CHITAKUNYE JA and MWAYERA JA

SSC89-23 : FUNNY MACHIPISA vs NGONI NDUNA N.O. and THE NATIONAL PROSECUTING AUTHORITY
Ruled By: UCHENA JA, MATHONSI JA and CHATUKUTA JA

SC29-22 : TECHNOIMPEX JSC vs RAJENDRAKUMAR JOG and TECHNOIMPEX JC (PVT) LTD and SARAH HWINGWIRI and REGISTRAR OF DEEDS and SHERIFF OF THE HIGH COURT OF ZIMBABWE
Ruled By: GUVAVA JA, UCHENA JA and KUDYA AJA

SC123-23 : ARISTON MANAGEMENT SERVICES vs ECONET WIRELESS ZIMBABWE LIMITED
Ruled By: GUVAVA JA, MAKONI JA and MATHONSI JA

Categories

Law Portal Zimbabwe

Final Orders re: Approach iro Handing Down of Judgment ito Implied Determination and the Severability of Judgments

Appealed SC119-21 : MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS and OTHERS vs CONCILIA CHINANZVAVANA and THE NATIONAL PEACE AND RECONCILIATION COMMISSION Ruled By: GWAUNZA DCJ, GUVAVA JA and BHUNU JA

HH497-17 : RICHARD MATTHEWS vs CASTER INTERNATIONAL (PVT) LTD Ruled By: CHATUKUTA J

HH626-15 : TIAN ZE TOBACCO COMPANY (PRIVATE) LIMITED vs VUSUMUZI MUNTUYEDWA Ruled By: MATHONSI J

HH707-15 : RICHARD MATTHEWS vs CRASTER INTERNATIONAL (PRIVATE) LIMITED Ruled By: MAFUSIRE J

HH125-15 : CONFEDERATION OF ZIMBABWE INDUSTRIES vs RITA MBATHA Ruled By: MATHONSI J

HH134-10 : HERBERT SAURAMBA and 113 OTHERS vs MITCHELLS BAKERY MUTARE Ruled By: CHIWESHE JP

View Appeal SC12-16 : AFARAS GWARADZIMBA vs C. J. PETRON & COMPANY (PROPRIETARY) LIMITED Ruled By: ZIYAMBI JA, GARWE JA and HLATSHWAYO JA

SC67-23 : HWANGE COLLIERY COMPANY LIMITED and DALE SIBANDA N.O. vs PALEHOUSE INVESTMENTS (PRIVATE) LIMITED Ruled By: MAVANGIRA JA, BHUNU JA and CHIWESHE JA

SC69-23 : ZESA HOLDINGS (PRIVATE) LIMITED vs CLOVEGATE ELEVATOR COMPANY (PRIVATE) LIMITED and JUSTICE L.G. SMITH N.O. Ruled By: MATHONSI JA, KUDYA JA and MWAYERA JA

SC81-23 : DISCENT BAJILA and FRANK MHLANGA and ADELAIDE MHLANGA and SANPOULOS MAPLANKA and OTHERS vs TATENDA MADZIRASHE and RAMSON CHINGWARA and LINDA MPOFU and OTHERS Ruled By: UCHENA JA, CHITAKUNYE JA and MWAYERA JA

SSC89-23 : FUNNY MACHIPISA vs NGONI NDUNA N.O. and THE NATIONAL PROSECUTING AUTHORITY Ruled By: UCHENA JA, MATHONSI JA and CHATUKUTA JA

SC29-22 : TECHNOIMPEX JSC vs RAJENDRAKUMAR JOG and TECHNOIMPEX JC (PVT) LTD and SARAH HWINGWIRI and REGISTRAR OF DEEDS and SHERIFF OF THE HIGH COURT OF ZIMBABWE Ruled By: GUVAVA JA, UCHENA JA and KUDYA AJA

SC123-23 : ARISTON MANAGEMENT SERVICES vs ECONET WIRELESS ZIMBABWE LIMITED Ruled By: GUVAVA JA, MAKONI JA and MATHONSI JA

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Law Portal
Zimbabwe

Appealed
SC119-21 : MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS and OTHERS vs CONCILIA CHINANZVAVANA and THE NATIONAL PEACE AND RECONCILIATION COMMISSION
Ruled By: GWAUNZA DCJ, GUVAVA JA and BHUNU JA

HH497-17 : RICHARD MATTHEWS vs CASTER INTERNATIONAL (PVT) LTD
Ruled By: CHATUKUTA J

HH626-15 : TIAN ZE TOBACCO COMPANY (PRIVATE) LIMITED vs VUSUMUZI MUNTUYEDWA
Ruled By: MATHONSI J

HH707-15 : RICHARD MATTHEWS vs CRASTER INTERNATIONAL (PRIVATE) LIMITED
Ruled By: MAFUSIRE J

HH125-15 : CONFEDERATION OF ZIMBABWE INDUSTRIES vs RITA MBATHA
Ruled By: MATHONSI J

HH134-10 : HERBERT SAURAMBA and 113 OTHERS vs MITCHELLS BAKERY MUTARE
Ruled By: CHIWESHE JP

View Appeal
SC12-16 : AFARAS GWARADZIMBA vs C. J. PETRON & COMPANY (PROPRIETARY) LIMITED
Ruled By: ZIYAMBI JA, GARWE JA and HLATSHWAYO JA

SC67-23 : HWANGE COLLIERY COMPANY LIMITED and DALE SIBANDA N.O. vs PALEHOUSE INVESTMENTS (PRIVATE) LIMITED
Ruled By: MAVANGIRA JA, BHUNU JA and CHIWESHE JA

SC69-23 : ZESA HOLDINGS (PRIVATE) LIMITED vs CLOVEGATE ELEVATOR COMPANY (PRIVATE) LIMITED and JUSTICE L.G. SMITH N.O.
Ruled By: MATHONSI JA, KUDYA JA and MWAYERA JA

SC81-23 : DISCENT BAJILA and FRANK MHLANGA and ADELAIDE MHLANGA and SANPOULOS MAPLANKA and OTHERS vs TATENDA MADZIRASHE and RAMSON CHINGWARA and LINDA MPOFU and OTHERS
Ruled By: UCHENA JA, CHITAKUNYE JA and MWAYERA JA

SSC89-23 : FUNNY MACHIPISA vs NGONI NDUNA N.O. and THE NATIONAL PROSECUTING AUTHORITY
Ruled By: UCHENA JA, MATHONSI JA and CHATUKUTA JA

SC29-22 : TECHNOIMPEX JSC vs RAJENDRAKUMAR JOG and TECHNOIMPEX JC (PVT) LTD and SARAH HWINGWIRI and REGISTRAR OF DEEDS and SHERIFF OF THE HIGH COURT OF ZIMBABWE
Ruled By: GUVAVA JA, UCHENA JA and KUDYA AJA

SC123-23 : ARISTON MANAGEMENT SERVICES vs ECONET WIRELESS ZIMBABWE LIMITED
Ruled By: GUVAVA JA, MAKONI JA and MATHONSI JA