Pleadings re: Approach to Pleadings, Pre-Trial, Disparities with Testimony, Unchallenged Statements & Issue Estoppel

Appealed
SC62-24 : DELTA CORPORATION LIMITED vs ZIMBABWE REVENUE AUTHORITY
Ruled By: GWAUNZA DCJ, UCHENA JA and KUDYA JA

This is an appeal against the whole judgment of the High Court (the court a quo) dated 25 October 2023 in which it dismissed the appellant's application for a declaratur.BACKGROUND FACTSThe appellant is a beverage manufacturing company which manufactures, sells, and distributes alcoholic and non-alcoholic beverages of local and international ...

This is an appeal against the whole judgment of the High Court (the court a quo) dated 25 October 2023 in which it dismissed the appellant's application for a declaratur.

BACKGROUND FACTS

The appellant is a beverage manufacturing company which manufactures, sells, and distributes alcoholic and non-alcoholic beverages of local and international brands. The appellant earns its income in both local and foreign currency and incurs expenses in both local and foreign currency.

The respondent is the collector of revenue on behalf of the Government.

The appellant submitted its value added tax (VAT) returns for the period March 2019 to October 2021 as well as Income Tax returns for the years ended 2019 and 2020 and paid all its taxes in full for these years in Zimbabwe dollars (ZWL).

On 17 November 2021, the respondent gave the appellant notice of its intention to carry out a tax review of its tax affairs covering the period 1 January 2019 to 31 October 2021. The respondent raised issues with the appellant on whether its value added tax (VAT) returns for 1 January 2019 to December 2020, and the income tax payments for the period January 2019 to 30 September 2021 were paid in the currency of trade.

In response, the appellant wrote a letter to the respondent, dated 24 November 2021, stating that section 4A of the Finance Act [Chapter 23:04] requiring the payment of taxes in foreign currency, followed the promulgation of section 23 of the Finance Act No.2 of 2019 which made local currency the sole legal tender.

On 11 June 2022, after a tax audit of the appellant's returns, the respondent informed the appellant about discrepancies which were found in its self-assessments.

The respondent found, that, the appellant failed or neglected to pay income tax and value added tax (VAT) in foreign currency from the income which it received or accrued to it in whole or in part in foreign currency.

The respondent further found, that, the appellant had received foreign currency in respect of local sales during the period between April 2019 and March 2021.

After the audits, the respondent issued additional assessments against the appellant.

The respondent re-computed the appellant's tax liability and issued it with amended tax returns which required it to pay its taxes in foreign currency, in accordance with the revenue it received in foreign currency, and to also pay its taxes in local currency proportionate to the revenue it received in local currency.

On 14 June 2022, the appellant responded arguing, that, the Finance Act No.2 of 2019 should prevail over section 4A of the Finance Act as it was enacted before it.

The appellant further contended, that, the turnover apportionment method was inapplicable in relation to value added tax (VAT), and, therefore, payment of taxes in ZWL was legally correct.

On 5 July 2022, the respondent wrote a letter to the appellant notifying it of the adjustments it made to the USD value added tax (VAT) assessments and tax computation schedules for October 2020 to October 2021. On the same day, the respondent served on the appellant an income tax notice of assessment for the tax period January 2021 to December 2021.

Later, on 3 August 2022, the respondent wrote another letter to the appellant addressing issues raised by the appellant on 14 June 2022.

The respondent explained that the law on value added tax (VAT) and Income Tax required that payment of taxes must be made in the currency of trade and that section 4A of the Finance Act was not amended nor repealed.

The respondent further observed, that, the appellant's value added tax (VAT) returns were incomplete for the reason that the section that separates foreign currency input and output tax from local currency input and output tax was not completed.

On the same day, the respondent issued an additional value added tax (VAT) notice of assessment for the tax period covering the period March 2019 to September 2020 requiring that local currency input and output tax be computed and paid separately from the foreign currency input and output tax.

Aggrieved by the respondent's re-assessments, the appellant applied to the court a quo for a declaration of invalidity;

(i) Firstly, in respect of the additional income tax assessments for the tax years ended 2019 and 2020; and

(ii) Secondly, the additional value added tax assessments issued against it by the respondent for the period March 2019 to October 2021.

It submitted, that, the re-assessment was invalid on account of the fact that it referred to the term 'gross tax' which is foreign to all tax statutes and that the amended tax returns did not compute the appellant's taxable income rendering the re-assessment invalid.

The appellant further submitted, that, it was unlawful for the respondent to reject payment in the form of local currency as it was declared the sole legal tender of Zimbabwe. It argued, that, the enactment of section 4A of the Finance Act, which stipulates that the Zimbabwean currency was to be the sole legal tender, must prevail over all older provisions.

The appellant argued, that, section 4A(1)(c) of the Finance Act and section 38(4) of the Value Added Tax Act both referred to section 41 of the Reserve Bank of Zimbabwe (RBZ) Act, and, therefore, the non-obstante provisions ought to be restricted to the old bond notes and should not be extended to the Real Time Gross Settlement dollar (RTGS) currency.

The appellant further submitted, that, section 4A(1)(C) of the Finance Act predated section 44C of the Reserve Bank of Zimbabwe (RBZ) Act which made the RTGS$ the sole legal tender in Zimbabwe.

It also argued, that, when Statutory Instrument 212 of 2019, SI 212 of 2019 was promulgated, it excluded the payment of taxes in foreign currency as an exception to the use of sole legal tender.

The appellant submitted, that, there were no jurisdictional facts present for the respondent to have issued it with the additional notices of assessment.

The appellant further submitted, that, the respondent violated its rights enshrined in section 15(3) of the Value Added Tax Act, by denying the deduction of the input tax paid by it in local currency from the output tax received by it in foreign currency.

On that note, the appellant submitted that the respondent's Public Notice No.26 of 2019, which set out the manner of computation, was unlawful and an attempt to legislate.

The appellant argued, that, the penalty on its foreign currency tax was not recoverable in foreign currency as there was no legal provision to that effect.

Per contra, the respondent opposed the application on the premise that 'gross tax' is an administrative term applied to denote an amount of the taxable income that will still be subject to further deductions before arriving at the net tax amount due to be paid to the respondent.

The respondent further argued, that, the assessment complied with all the requirements prescribed by law.

It further submitted, that, payment of taxes in foreign currency on income received in foreign currency is exempted from being paid using the nation's sole legal tender as provided by section 23 of the Finance Act.

The respondent contended, that, the legal requirements that warranted the re-assessment were that it found taxable income which was not subjected to tax; in determining an alleged loss, there was some income which ought to have been taken into consideration but was not; and, there was credit which was granted that should not have been granted.

The respondent submitted, that, deductions of input taxes from output taxes should be separated according to currencies and that the law prohibits deductions of input taxes from output taxes across currencies.

The respondent further submitted, that, Public Notice No.26 of 2019 was issued for the purpose of administering advice and information to assist taxpayers whose receipts from trade were specifically in both local and foreign currency.

The respondent argued, that, a penalty was a tax, and, as such, any outstanding foreign currency tax is payable in foreign currency and a penalty on any outstanding local currency tax is payable in local currency.

The court a quo determined, that, if the notices of assessment conformed with section 2 as read with section 51(2) of the Income Tax Act [Chapter 23:06] (ITA), and, as long as the value added tax (VAT) evaluation complied with section 31(5) of the Value Added Tax Act, then, the assessments cannot be rendered invalid on the basis of an alien term.

The court a quo held, that, the respondent's argument that the term 'gross tax' was an administrative reference to a provisional figure obtained during the computation process, which would still be subject to further consideration, is acceptable.

The court a quo held, that, the RTGS currency and bond notes and coins are all legal tender for the reason that the Reserve Bank of Zimbabwe (RBZ) Act does not expressly stipulate otherwise.

The court further held, that, Statutory Instrument 142 of 2019, SI142 of 2019, which introduced the sole legal tender concept did not single out the electronic currency.

The court a quo determined, that, there were exemptions to the introduction and use of the sole legal tender, such as the payment of customs duty and the payment of value added tax (VAT) on imports.

The court a quo further held, that, all relevant legislation should be taken into consideration in determining in which currency tax assessment forms should be submitted, and tax be paid.

Therefore, the court a quo determined that the reference to 'any other law' was with respect to section 4A of the Finance Act and section 38(4) and (9) of the Value Added Tax Act.

The court a quo held, that, the jurisdictional facts which triggered the additional assessments were the appellant's computation of all taxes in the local currency when part of its income had been received in foreign currency, and, there were improper deductions to the taxable income.

Regarding value added tax (VAT), the court a quo determined that the respondent had found that the appellant had not submitted the VAT returns in the prescribed form and had completely avoided completing the section dealing with the calculation of VAT in foreign currency.

The court a quo held, that, section 38(9) of the Value Added Tax Act declares that all provisions of the Act shall apply with such changes as may be necessary to the payment of tax in foreign currency in the same way as they apply to the payment of tax in local currency.

The court a quo further held, that, a reading of section 38(4) and (9) of the Value Added Tax Act makes it apparent that the legislature has not sanctioned a cross-currency deduction of input tax from output tax.

The court a quo held, that, a penalty is a tax in accordance with tax legislation, and, therefore, section 4A(7) of the Finance Act applies given that it states, that, all provisions of the Value Added Tax Act shall apply with such changes as may be necessary to the payment of tax in foreign currency in the same way as they apply to the payment of tax in local currency.

In the result, the court a quo held that the submissions made by the appellant lacked merit and proceeded to dismiss the application.

Dissatisfied with the determination of the court a quo, the appellant noted an appeal to this Court on the following grounds of appeal:

“GROUNDS OF APPEAL

1. The court a quo erred at law and misdirected itself by failing to consider and determine material issues raised by the appellant, thus rendering the proceedings grossly irregular. In particular, the court a quo failed to consider and determine the following issues raised by the appellant:

(a) Whether there is a penalty for payment of taxes purportedly due in foreign currency in the local legal tender, and what that penalty is?

(b) Whether the apportionment formulae used by the respondent exists in the taxing Act, and, if so, in which provisions of the taxing Acts?

(c) Whether the formulae used by the respondent, in computing both income tax and value added tax (VAT), was rational and possible to comply with?

(d) Whether there is a constitutional bar to the respondent utilizing section 4(A)(7) of the Finance Act and section 38(9) of the Value Added Tax Act to amend primary legislation?

(e) The implication of the contra-fiscum rule to uncertain tax legislation.

2. The court a quo erred at law and misdirected itself in finding, that, the assessments issued were valid at law when such assessments referred to a line item described as “gross tax” which 'gross tax' is not included in any taxing statute and is not a necessary component in the computation of taxable income.

3. The court a quo erred at law and misdirected itself in finding, that, the jurisdictional facts to issue additional assessments were present permitting the respondent to issue additional assessments on the appellant.

4. The court a quo erred at law and misdirected itself in finding, that, the appellant was not entitled to deduct its input tax on purchases made in foreign currency and in ZWL from its output in foreign currency.

5. The court a quo erred at law in finding that penalties were chargeable in foreign currency; this, despite neither section 4(A) of the Finance Act nor section 38 of the Value Added Tax Act providing for the charging of penalties in foreign currency.

6. The court a quo erred at law and misdirected itself in applying section 4(A)(7) of the Finance Act and section 38(9) of the Value Added Tax Act through the instrument of public notices in such a manner that they permit the amendment of primary legislation by institutions other than Parliament, which is unconstitutional and therefore unlawful.

RELIEF SOUGHT

1. That, the instant appeal succeeds with costs.

2. That, the order of the court a quo, in case number HC5952/22, be and is hereby set aside and substituted with the following:

“It is hereby ordered that:

1. The application be and hereby (sic) succeeds with costs.

2. The additional VAT assessments issued on the applicant for the tax period March 2019 to October 2021 be and are hereby declared invalid.

3. The additional income tax assessment issued on the applicant for the tax year ended 2020 be and is hereby declared invalid.”

SUBMISSIONS BEFORE THIS COURT

At the hearing of the appeal, counsel for the appellant submitted, that, the six issues mentioned in ground of appeal number one were raised by the appellant and addressed by the respondent before the court a quo; yet, the judgment a quo was silent on the issues listed in the appellant's first ground of appeal.

He further submitted, that, the issues were dispositive of the disputes between the parties.

In that regard, counsel submitted that the decision of the court a quo ought to be set aside on account of the fact that a party is entitled to reasons for a court's decision on all issues raised and argued before it.

Counsel further argued, that, the assessment was invalid as it, in its notice of assessment, referred to an amount it referred to as 'gross tax' which term is foreign to tax legislation.

Counsel relied on the case of Nestle v Zimbabwe Revenue Authority SC148-21 to argue, that, an assessment must only contain information provided for in the Income Tax Act for the reason that an assessment is a statutory document.

He further submitted, that, the court a quo disposed of the matter on the premise that the term did not prejudice the appellant, yet, it did, considering that the appellant was unfamiliar with the term.

Counsel also submitted, that, the assessment by the respondent was intended to be an amendment of its self-assessment, therefore, using an alien term baffles the appellant on what exactly was amended.

Counsel submitted, that, since there was no original foreign currency assessment, the respondent lacked the basis on which to issue an additional assessment.

He further submitted, that, the apportionment formula was irrational and inconsistent with the provisions of the Income Tax Act and Value Added Tax Act.

Counsel further stated, that, in accordance with the case of Breastplate Service (Pvt) Ltd v Cambria Africa PLC SC66-20, once a currency is recognized as the sole legal tender, one cannot refuse it.

He argued that the Zimbabwean dollar is the only currency acknowledged in Zimbabwe.

Per contra, counsel for the respondent submitted, that, the actual material issues dispositive of the matter were all addressed in the judgment a quo and that the issues mentioned in the appellants ground of appeal number one are not dispositive of the issues between the parties.

He further argued, that, the case of Inamo Investments (Pvt) Ltd v Zimbabwe Revenue Authority SC96-23 established that even when the local currency is legal tender, revenue earned in foreign currency shall be remitted in foreign currency.

He submitted, that, section 47 of the Income Tax Act and section 31 of the Value Added Tax Act permit the Commissioner of the respondent to make additional assessments.

Counsel submitted, that, the rationale of the court a quo was not on the notion of prejudice but it found, that, in spite of the term 'gross tax' the assessment met all the obligatory requirements to render it valid.

Counsel submitted, that, the term was explained in its heads of argument and before the court a quo.

He further submitted, that, an assessment should consist of the taxable income to which a tax rate is applied, before arriving at a taxable figure.

Counsel submitted that the appellant cannot seek a relief different from that prayed for in its relief sought.

THE ISSUES

The appeal raises the following issues for determination by this Court:

1. Whether or not the court a quo erred in not determining all issues raised by the appellant.

2. Whether or not the use of the phrase “gross tax” in the notice of assessment renders it invalid.

3. Whether or not the court a quo erred at law and misdirected itself in finding that the jurisdictional facts entitling the respondent to issue additional assessments were present.

4. Whether or not the court a quo erred in holding that tax for revenue earned in foreign currency and value added tax (VAT) paid in foreign currency, and additional tax incurred for not paying tax in foreign currency should be paid in foreign currency.

APPLICATION OF THE LAW TO THE FACTS

Whether or not the court a quo erred in not dealing with all the issues raised by the appellant

In the case of Afaras Mtausi Gwaradzimba v C.J. Petron & Company (Pty) Limited 2016 (1) ZLR 28 (S)…, this Court, commenting on the need to give reasons in respect of issues raised and argued before a court, said:

“[21] 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.

[22] 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.

[23] 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 & Others 2008 (1) ZLR 198, 203 (S).

[24] 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 misdirection, one that vitiates the order given at the end of the trial: see Charles Kazingizi v Revesai Dzinoruma HH106-06; Muchapondwa v Madake & Others 2006 (1) ZLR 196D-G, 201A(H); GMB v Muchero 2008 (1) ZLR 216, 221C-D (S).

[25] 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: see S v Makawa & Another 1991 (1) ZLR 142.

[26] 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.”…,.

At the hearing of this appeal, the appellant raised a preliminary point to the effect, that, the court a quo erred by not determining the six issues stated in its first ground of appeal.

Counsel for the appellant submitted, that, these issues were dispositive of the dispute between the parties.

A reading of the court a quo's judgment establishes, that, although the appellant raised several issues, the court severely summarized, truncated and distilled them and made a determination on which of them were relevant and had to be fully ventilated in its judgment.

On p2 para 3 of its judgment, the court a quo clearly stated as follows:

“The matter before the court is largely one of the law, more precisely, the interpretation of the relevant provisions of tax statutes; the facts being largely common cause and useful only as background material.”…,.

On p3 of the same judgment, the court went on to state thus:

“…, the case before the court crystallized into five areas as laid out below. I proceed to deal with each one of them in turn summarizing the arguments for and against and immediately afterwards pronouncing my decision on each.”…,.

On p3 para [7] the court a quo said:

“The applicant objected to the respondent's re-assessments on multiple grounds. The case was argued on several fronts. Severely truncated, the case before the court crystalised into five areas as laid out below. I proceed to deal with each of them in turn, summarising the arguments for and against and immediately afterwards pronouncing my decision on each.”…,.

On p5 para [15] the court a quo said:

“In the main, the applicant's grounds of objection, severely truncated, was that the respondent's refusal to accept the payment of all the applicant's taxes in the local currency is unlawful because the new Zimbabwe currency has, by statute, been made the sole legal tender.”…,.

At para [36] the court a quo said:

“The next objection by the applicant, again much distilled, was that the respondent's insistence that the applicant could not deduct the input tax paid by it in local currency from the output tax received by it in foreign currency in effect violated the applicant's right to deduct input tax from output tax as enshrined in section 15(3) of the VAT Act.”…,.

The court a quo's findings, as quoted above, indicate that it considered all of the appellant's issues and summarized, crystalized, truncated, and distilled them into what was relevant and irrelevant after which it zeroed in on five (5) issues which it decided to fully ventilate.

These issues were, in its view, capable of determining the appellant's rights as regards the payment of taxes in Zimbabwean dollars for taxable income and value added tax (VAT) returns which had been paid to it in foreign currency. It was satisfied that the interpretation of the tax statutes was dispositive of the case before it.

The appellant had approached the court a quo for a declaratory order that it was entitled to pay income tax and value added tax (VAT) in local currency despite it having received the same in foreign currency.

Therefore, the court made a determination which was dispositive of the real issues between the parties.

It cannot be said that the court did not make a determination on the six issues when it clearly considered them and reasoned that they were not relevant in the determination of the real issue before it.

In coming up with the five issues on which it determined the case, the court a quo was aware that the applicant had objected to the respondent's re-assessments on multiple grounds and that the case had been argued on many fronts. It then, through severe summarization, truncating, crystallisation, and distillation decided on what was relevant and irrelevant.

That, in our view, is a consideration and determination of the issues the appellant alleges were not considered and given reasons on.

The adverse determination, on the relevancy of those issues, is a determination.

The explanation that it severely summarised the appellant's grounds of objection and truncated and distilled the submissions made before it on many fronts is a giving of reasons why it settled for the five issues after discarding what it considered were irrelevant issues. In other words, the court found that some of the issues raised by the appellant, which it left out, were irrelevant.

A brief and concise explanation of why a court arrives at a decision is proof of it having considered and determined the issues.

There is therefore, no merit in the preliminary issue raised by the appellant.

Appealed
SC62-24 : DELTA CORPORATION LIMITED vs ZIMBABWE REVENUE AUTHORITY
Ruled By: GWAUNZA DCJ, UCHENA JA and KUDYA JA

This is an appeal against the whole judgment of the High Court (the court a quo) dated 25 October 2023 in which it dismissed the appellant's application for a declaratur.

BACKGROUND FACTS

“GROUNDS OF APPEAL

RELIEF SOUGHT

SUBMISSIONS BEFORE THIS COURT

THE ISSUES

APPLICATION OF THE LAW TO THE FACTS

Whether or not the court a quo erred at law and misdirected itself in finding that the jurisdictional facts entitling the respondent to issue additional assessments were present

In determining this issue, the court a quo held as follows:

“[32] Plainly, and as per the applicant's own explanation, the 'jurisdictional facts' existed before the respondent issued the amended assessments. With regards to income tax, and in terms of section 47 of the Income Tax Act, what triggers the additional assessments is the consideration by the respondent's Commissioner that an amount of taxable income which should have been charged to tax was not charged to tax, or that an amount which should have been taken into account in the determination of an assessed loss was not, or that an amount was incorrectly allowed as a deduction. If the Commissioner comes to such conclusion, the respondent is obliged to adjust the assessment.

[33] The respondent has explained, that, what prompted scrutiny of the applicant's self-assessments, for 2019 and 2020, was the computation of all taxes in the local currency, when, as a matter of fact, part of its income for the tax years in question had been received in foreign currency.

Furthermore, for the year 2020, the applicant had improperly made some deductions to the taxable income. The respondent pointed them out to the applicant. The applicant reacted by correcting its assessments. But these are enough 'jurisdictional facts.'

[34] Regarding VAT, section 31(3) of the VAT Act, in paraphrase, provides, in part, that, where the Commissioner is not satisfied with any return or declaration furnished by a taxpayer, or where he [or she] has reason to believe that any person has become liable for the payment of any amount of tax but has not paid it, the Commissioner may make an assessment of the amount of tax payable by that person who shall have to pay it.

Furthermore, in terms of section 28(1) of the Act, every registered operator is required to submit returns in the prescribed form, reflecting such information as may be required for the purpose of the calculation of tax.

[35] The respondent has explained, that, the applicant did not submit the VAT returns in the prescribed form. The prescribed form has Part I to IV for the calculation of VAT in the local currency, and Part V for the calculation of VAT in foreign currency.

The applicant did not complete Part V.

Thus, the necessary information required for the calculation of VAT in foreign currency was missing.

None of all this has been refuted by the applicant. Yet, these are the relevant 'jurisdictional facts' necessary to trigger the amended assessments by the respondent.

The applicant's objection under this head equally has no merit.”

We agree with the court a quo that jurisdictional facts were present which justified the respondent's issuance of notices of assessments.

As correctly pointed out by the court a quo, the appellant admitted the following jurisdictional facts:

1. That, it received payments in foreign currency hence it is seeking a declaratur that it was, in spite of having been paid in foreign currency, entitled by law to pay income tax and value added tax (VAT) for such payments in local currency.

2. That, it was paid value added taxes by its customers in foreign currency which the law requires it to collect and pay it to the respondent, but, it withheld the foreign currency taxes and sought to substitute them with local currency payments to the respondent.

3. That, it had not completed Part (V) of the VAT tax return which it was legally required to complete.

4. That, it had, by re-submitting corrected self- assessment returns, admitted that it had not correctly completed its self-assessment forms.

The court a quo's findings are correct. The appellant's appeal under this ground has no merit.

View Appeal
HH577-23 : DELTA BEVERAGES (PVT) LTD vs ZIMBABWE REVENUE AUTHORITY
Ruled By: MAFUSIRE J

The applicant seeks a declaration of invalidity in respect of additional income tax assessments for the tax years ended 2019 and 2020. It also seeks another declaration of invalidity of the additional value added tax [VAT] assessments issued against it by the respondent for the period March 2019 to October 2021. It claims costs of suit on an attorney and client scale against the respondent.

The applicant is an integrated manufacturer, seller, and distributor of a wide range of products, including alcoholic and non-alcoholic beverages. It is a registered taxpayer. It earns revenue in both local and foreign currency, principally United States dollars [USD]. Likewise, its expenditure is incurred in both local and foreign currency.

The respondent is a central collector of revenue for Government through the various pieces of the tax legislation, principally the Income Tax Act [Chapter 23:06] and the Value Added Tax Act [Chapter 23:12] (”the VAT Act”).

The system of taxation involves the compilation by the taxpayers of self-assessments of their tax liabilities and the submission of tax returns to the respondent in respect of any year of assessment. The respondent can adjust these assessments for any anomalies it may pick during its own audit processes.

The matter before the court is largely one of law, more precisely, the interpretation of the relevant provisions of the tax statutes, the facts being largely common cause and useful only as background material.

These facts are as follows:

Following a tax audit on the applicant's tax affairs for the period 1 January 2019 to 31 October 2021, the respondent concluded that the applicant had improperly computed its income tax in the sense, that, despite having received foreign currency for some of its sales in the relevant period, it had neglected or omitted to remit its income tax in respect thereon in foreign currency, but had purported to pay it all off in the local currency. The respondent further concluded, that, the applicant had improperly deducted certain expenses from its taxable income.

Perceiving the applicant's conduct to be a violation of the tax statutes, the respondent disallowed the expenses which it considered to have been improperly deducted. Further, it proceeded to re-compute the applicant's tax liability and issued it with amended tax returns, apportioning the tax payable by the applicant in the proportion of the ratio of its turnover in foreign currency to local currency.

In effect, it required the applicant to pay its taxes in foreign currency in respect of the applicant's revenue received in foreign currency, and in local currency in respect of the revenue received in local currency.

The respondent conducted a similar audit and a re-assessment of the applicant's value added tax (VAT) obligation.

It concluded, that, the applicant had paid its foreign currency component of the value added tax (VAT) all in the local currency, contrary to law. Furthermore, the respondent considered, that, the applicant had not properly completed the VAT returns in that it had left out a whole section altogether - this is the section that separates the foreign currency input and output taxes from the local currency input and output taxes.

Generally, and in very simple terms, output tax is the tax charged and received by a registered operator for subsequent transmission to the respondent. Input tax is the tax that the operator pays on imports. Input tax is deducted from the output tax and the balance is what is remitted to the respondent.

In its amended notices of assessment, the respondent required that the foreign currency input and output taxes be separated from the local currency input and output taxes so that there would be no cross-currency deductions. In other words, the respondent required that only foreign currency input tax be deductible from the foreign currency output tax, and, similarly, that, only local currency input tax be deductible from the local currency output tax.

According to it, that is the correct interpretation of the relevant tax provisions.

The applicant objected to the respondent's re-assessments on multiple grounds. The case was argued on several fronts. Severely truncated, the case before the court crystallized into five areas as laid out below. I proceed to deal with each one of them in turn, summarizing the arguments for and against, and, immediately afterwards, pronouncing my decision on each....,.

(iii) No jurisdictional facts present to issue assessments

The next ground of objection by the applicant, again summarized, was that before the respondent issued the assessments in contention, no jurisdictional facts existed for it to do so.

The applicant explains 'jurisdictional facts' as pre-conditions prescribed by law that must be satisfied before the respondent could have taken the administrative steps that it did.

The applicant argues, that, unless there was an amount either of gross income or allowable deductions that ought to have been considered by the applicant in its self-assessments but had not, then, the necessary jurisdictional factors to trigger the action taken by the respondent were absent. As such, such action was invalid and should therefore be set aside.

The respondent's counter argument is that the jurisdictional facts warranting the action that it took were present because, by law, what prompts it to issue an additional tax assessment to a taxpayer are findings by it, during the audit process, that, among other things, some taxable income was not subjected to tax; or that in determining an alleged loss by a taxpayer there was some income which ought to have been taken into account that was not; or a deduction which was made that was not; or that there was credit that was granted but which ought not to have been granted.

It is argued, that, all these factors, and more, were present in the present situation.

Plainly, and as per the applicant's own explanation, the 'jurisdictional facts' existed before the respondent issued the amended assessments.

With regards to income tax, and in terms of section 47 of the Income Tax Act, what triggers the additional assessments is the consideration by the respondent's Commissioner that an amount of taxable income which should have been charged to tax was not charged to tax, or that an amount which should have been taken into account in the determination of an assessed loss was not, or that an amount was incorrectly allowed as a deduction.

If the Commissioner comes to such conclusion, the respondent is obliged to adjust the assessment.

The respondent has explained, that, what prompted scrutiny of the applicant's self-assessments for 2019 and 2020 was the computation of all taxes in the local currency, when, as a matter of fact, part of its income for the tax years in question had been received in foreign currency. Furthermore, for the year 2020, the applicant had improperly made some deductions to the taxable income. The respondent pointed them out to the applicant. The applicant reacted by correcting its assessments.

But, these are enough 'jurisdictional facts'.

Regarding value added tax (VAT), section 31(3) of the Value Added Tax Act, in paraphrase, provides in part, that, where the Commissioner is not satisfied with any return or declaration furnished by a taxpayer, or where he [or she] has reason to believe that any person has become liable for the payment of any amount of tax but has not paid it, the Commissioner may make an assessment of the amount of tax payable by that person who shall have to pay it.

Furthermore, in terms of section 28(1) of the Value Added Tax Act, every registered operator is required to submit returns in the prescribed form, reflecting such information as may be required for the purpose of the calculation of tax.

The respondent has explained, that, the applicant did not submit the value added tax (VAT) returns in the prescribed form.

The prescribed form has Part I to IV for the calculation of value added tax (VAT) in the local currency, and Part V for the calculation of VAT in foreign currency.

The applicant did not complete Part V.

Thus, the necessary information required for the calculation of value added tax (VAT) in foreign currency was missing.

None of all this has been refuted by the applicant.

Yet, these are the relevant 'jurisdictional facts' necessary to trigger the amended assessments by the respondent.

The applicant's objection under this head equally has no merit.

SC05-22 : CUTHBERT DUBE vs PREMIER SERVICE MEDICAL AID SOCIETY and PREMIER SERVICE MEDICAL INVESTMENTS
Ruled By: MAKONI JA, MATHONSI JA and CHITAKUNYE JA

This is an appeal against the whole judgment of the Labour Court (the court a quo) which allowed two appeals filed in that court by the first and second respondents in terms of section 98(10) of the Labour Act [Chapter 28:01].

It set aside the two awards made in favour of the appellant, and, in their place, substituted them with an order dismissing the appellant's claims before the arbitrator.

FACTUAL BACKGROUND

The first respondent is a medical aid society registered in terms of the Medical Services Act [Chapter 15:13]. The second respondent is the investment vehicle of the first respondent. Both respondents are managed by two separate boards of directors.

It is common cause, that, the appellant was the Chief Executive Officer of the first respondent in terms of a contract of employment. He also drew a salary from the second respondent in unclear circumstances.

He attained the retirement age, of 60 years, in December 2013 in terms of the Retirement Policy of the Society 4/2003 of the first respondent.

On 14 March 2013, both boards of directors of the respondents unanimously extended the appellant's tenure of office by a further ten years.

The new contract commenced from 1 January 2014 and would end on 31 December 2024.

At the beginning of 2014, the appellant commenced the extended employment contract. The parties also reached an agreement that the appellant's monthly salary would be US$60,000 per month effective January 2014 along with other benefits. It was later reduced to US$43,000.

Following allegations that the appellant was taking an exorbitant salary of US$92,000 every month, before allowances, without the knowledge of the full Board, other than two of its members, the boards withdrew their earlier decision of extending the appellant's contract of employment.

They relied on the provisions of the Retirement Policy to rescind the extension of the employment contract.

The appellant was thus requested to take a pre-retirement paid leave.

In response, the appellant, through a letter dated 20 February 2014, addressed to the first respondent, claimed that he had a subsisting contract of employment for a period of ten years which commenced on 1 January 2014.

He insisted that the contract had not been terminated in any way, and, consequently, he would abide by it and continue to execute his duties in terms of the same until its expiry.

No such letter was written to the second respondent.

Consequently, a dispute arose between the appellant and the first respondent.

On 17 February 2015, the dispute between the appellant and the first respondent was referred to compulsory arbitration. The terms of reference were as follows:

“(a) To determine whether or not the claimant's (the appellant in this matter) contract of employment was lawfully terminated;

(b) The appropriate remedy.”

On 14 March 2015, a dispute in the matter between the appellant and the second respondent was referred to compulsory arbitration. It is not clear from the record how the dispute had arisen. The terms of reference were as follows:

“(a) Whether or not the appellant's contract of employment was enforceable against the second respondent;

(b) If so, whether or not the claimant's contract of employment was lawfully terminated and the remedy thereof.”

On 14 April 2015, the arbitrator issued awards in respect of both matters.

In the matter between the appellant and the first respondent, the arbitral award was to the effect that the contract of employment between the appellant and the first respondent still subsisted and thus remained in force. He further ordered that the first respondent pay the appellant all salaries and benefits from the date these were last paid at the salary scale of US$92,000 per month.

In the matter between the appellant and the second respondent, the arbitral award was to the effect, that, the appellant's contract of employment was enforceable against the second respondent and that the contract was never terminated thereby rendering the appellant entitled to payment of salaries and benefits as claimed.

Aggrieved, the first and second respondents independently appealed against the two arbitral awards to the Labour Court, under LC/H/348/15 and LC/H/349/15 respectively. The two appeals were consolidated for the sake of convenience.

PROCEEDINGS IN THE COURT A QUO

The first respondent, in its heads of argument before the court a quo, in which it was the first appellant, argued that the arbitrator made a determination that ran foul of the issue presented before him.

It submitted, that, the issue before the arbitrator was whether or not the employment contract between the first respondent and the appellant was lawfully terminated. Thus, it insisted that the arbitrator fell into error when he determined that there was a valid and enforceable contract between the parties whereas it was common cause between the parties that no contract still existed.

The first respondent contended, that, the arbitrator was bound by the terms of reference and had no authority to re-format the issues as presented to him by the parties.

It was also the first respondent's case that no evidence was tendered to justify the amount of US$92,000 per month which was awarded to the appellant by the arbitrator.

The second respondent largely associated itself with the arguments made by the first respondent regarding the arbitrator straying from the terms of reference.

In addition to that, the second respondent submitted that the arbitrator missed the import of the issues referred to him and came to the conclusion that there existed a contract of employment between the appellant and the second respondent.

The second respondent further submitted, that, it was simply the investment vehicle of the first respondent and used to contribute to the appellant's salary at the request or on the instructions of the appellant. Thus, it was the second respondent's submission that these remittances did not make it the appellant's employer.

Per Contra, the appellant submitted that the arbitrator correctly determined the issues before him.

He submitted, that, the issues referred to the arbitrator were whether or not the appellant's contract of employment was lawfully terminated and to determine the appropriate remedy. He further submitted, that, determining whether or not the contract was valid was the first stage of inquiry which would then lead to the conclusion of whether or not the same was lawfully terminated.

Regarding the second respondent, he submitted that the evidence placed before the arbitrator, of termination of the contract in the form of a letter, was not sufficient enough to prove that the same was terminated in terms of the law.

The appellant insisted that a contract of employment could only be terminated by mutual consent, death, dismissal through a formal disciplinary hearing, or resignation.

Thus, he proffered that a valid contract still existed as the second respondent failed to prove termination.

The appellant further submitted, that, the second respondent was his employer, by extension, as management of the same reported directly to him. It followed that his contract of employment with the second respondent was valid and enforceable.

DETERMINATION OF THE COURT A QUO

The court a quo examined the terms of reference as placed before the arbitrator by the parties.

With respect to the first respondent, the court reasoned that it was clear in the parties minds that the contract of employment had been terminated and what required determination was whether or not such termination was lawful.

The court further reasoned, that, the arbitrator fell outside the terms of reference by making a determination that the contract of employment still subsisted and remained in force.

The court relied on the case of C Kambuzuma and Ors v The Athol Evans Hospital Home Complex SC118-04 in its reasoning that the arbitrator ought to have confined himself to the terms of reference and not go further than that.

In addition, the court a quo held that the arbitrator, by making a finding that there was still a valid contract in existence between the parties, effectively made a new employment contract for the parties, contrary to the Supreme Court decision in the matter between Kundai Magodora & Ors v Care International Zimbabwe 2014 (1) ZLR 397.

With respect to the second respondent, the court a quo made a finding, that, as was apparent from the record, the second respondent did not extend the appellants tenure.

It effectively concluded, that, there was nothing to enforce between the appellant and the second respondent as there was never an employment contract between them. Consequently, the court found that there was nothing to terminate and therefore the appellant was not entitled to anything from the second respondent.

In the result, it allowed the appeals and set aside the arbitral awards.

This prompted the appellant to note the present appeal on the following grounds:

GROUNDS OF APPEAL

“1. The court a quo misdirected itself and erred at law in finding that the decision of the arbitrator, that there was still a subsisting contract of employment between the appellant and the first respondent, was outside the arbitrator's terms of reference.

2. The court a quo erred by making a determination that there was no binding contract of employment between the appellant and the second respondent.”

SUBMISSIONS ON APPEAL

In addressing the first ground of appeal, counsel for the appellant made the following submissions:

The issue before the court was a question of interpretation of the terms of reference. The terms of reference were quite straightforward and had inherent in them two questions, namely:

1. Has the contract of employment been terminated?

2. If so, was the termination lawful?

A term of reference, in terms of the Labour Act [Chapter 28:01] (the Act) is statutorily regulated and must be interpreted in terms of the scheme under Part XII of the Labour Act.

What has to be resolved is the dispute that was referred to conciliation.

The court a quo fell into error by treating this as voluntary arbitration, in which the terms of reference were as a result of the meeting of the minds of the parties. To the contrary, this was a compulsory arbitration in terms of the Labour Act where the labour officer formulates the terms of reference after taking into account the nature of the dispute between the parties.

A labour officer referring a dispute to compulsory arbitration cannot create a new dispute for the parties as was held in Tafadzwa Sakarombe & Anor v Montana Carswell Meats SC44-20.

As regards the appellant's second ground of appeal, counsel for the appellant made the following submissions:

A resolution by one party to terminate its contractual obligations cannot bind the innocent party to the contract.

It was a serious misdirection by the court a quo, that, the appellant was bound by the decisions of the respondents in respect of the contract between the parties.

Further, a contract need not be in writing. There is no doubt that an oral contract of employment existed between the appellant and the second respondent.

The court a quo relied on the absence of a written contract to determine that there was no contract between the appellant and the second respondent. From the circumstances, including the payment of salary and the duties of the appellant vis a vis the second respondent, there is no doubt that a contract existed between the parties.

Counsel for the respondents submitted:

In respect of ground one, that, the issue before the arbitrator was to determine whether or not the contract of employment was lawfully terminated. The arbitrator went on to determine that there was a valid contract of employment between the parties, which was not an issue placed before him.

The conduct of the arbitrator was tantamount to making a contract for the parties, which he or any court or tribunal cannot do as a matter of law.

As regards the purported contract of employment between the appellant and the second respondent, that the appellant could not point to a single document that suggested that there was a contract between him and the second respondent.

The only contract produced was the one between the appellant and the first respondent.

The argument by the appellant, that there is an oral contract, is startling. He failed to present evidence before the court a quo, and this court, to prove that there was an oral contract. Thus, there was nothing to enforce between the appellant and the second respondent.

ISSUES FOR DETERMINATION

1. Whether or not the court a quo erred in finding, that, the arbitrator acted outside his terms of reference in concluding that a contract of employment between the appellant and the first respondent still subsisted.

2. Whether or not the court a quo erred in finding, that, the appellant did not have a binding contract with the second respondent.

THE LAW

The matter before this Court pertains to compulsory arbitration which derives from statute. It only arises after the failure of conciliation and the issuing of a Certificate of No Settlement (L MADHUKU, Labour Law in Zimbabwe...,.). This was provided for in terms of section 93(5) of the Labour Act [Chapter 28.01] before the amendment to the section.

The author, L MADHUKU, Labour Law in Zimbabwe…, puts it this way:

“This new scheme focuses on the nature of the dispute in determining whether or not to refer it to compulsory arbitration. Disputes of interest depend on whether or not an essential service is involved;...,. A dispute of interest, outside the essential service, cannot be referred to compulsory arbitration in the absence of agreement by parties.”

Crucial to mention are provisions of section 98 of the Labour Act. The relevant parts read as follows:

“93 Effect of reference to compulsory arbitration under Parts XI and XII

(1) In this section 'reference to compulsory arbitration' in relation to a dispute, means a reference made in terms of paragraph (d) of subsection (1) of section eighty-nine or section ninety-three.

(2) Subject to this section, the Arbitration Act [Chapter 7:15] shall apply to a dispute referred to compulsory arbitration.

(3) Before referring a dispute to compulsory arbitration, the Labour Court or the labour officer, as the case may be, shall afford the parties a reasonable opportunity of making representations on the matter.

(4) In ordering a dispute to be referred to compulsory arbitration, the Labour Court or labour officer, as the case may be, shall determine the arbitrator's terms of reference after consultation with the parties to the dispute.”

In Ballantyne Butchery (Pvt) Ltd t/a Danmeats v Edmore Chisvinga & Ors SC 2015 (1) 335, SC06-15..., this Court held that:

“Where a dispute is referred to compulsory arbitration by a labour officer, section 98(4) of the Labour Act [Chapter 28:01] enjoins the officer to determine the arbitrator's terms of reference, after consultation with the parties to the dispute.”

The same point was made in Metallon Gold Zimbabwe (Pvt) Ltd & Anor v Collen Gura 2015 (1) 509, HH263-16..., where it was held that:

“However, the procedure for submission is that the matter commences with conciliation before a labour officer in terms of section 93 of the Labour Act. When conciliation fails, the labour officer then refers the dispute to compulsory arbitration in terms of section 98. In doing so, the labour officer consults the parties for the arbitrator's terms of reference to be drawn. The arbitrator is confined to the agreed terms of reference during the arbitral process;..., if the arbitrator goes beyond the terms of reference that may be a ground for objection to the registration of the arbitral award.”

It thus follows, that, in settling the terms of reference for compulsory arbitration, the parties have a role to play. They are consulted by the Labour Court or the labour officer, as the case may be.

It is an established principle that an arbitrator is not allowed to venture outside the terms of reference when making a determination.

The law on arbitration, and terms of references, was succinctly captured at pp10 to 11 in the case of Munchville Investments (Pvt) Ltd t/a Bernstein Clothing v Chiedza Mugavha SC62-19 as follows:

“As regards the jurisdiction and powers of arbitral tribunals, it must be emphasised that the arbitration process, generally, is a voluntary and consensual process, both at common law and under the Arbitration Act [Chapter 7:15].

This is made clear by section 4(1) of the Act which stipulates that 'any dispute which the parties have agreed to submit to arbitration may be determined by arbitration'. Moreover, by virtue of section 4(3) of the Act 'the fact that an enactment confers jurisdiction on a court or other tribunal to determine any matter shall not, on that ground alone, be construed as preventing the matter from being determined by arbitration'.

According to BRAND: Labour Dispute Resolution (2nd ed. 2008) at p.163:

'In private arbitration, the arbitration agreement plays a pivotal role. It embodies a description of the dispute to be referred to arbitration, it names the arbitrator, it specifies the terms of reference and arbitrator's powers, it sets out the process before the actual hearing, and, finally, it describes the process to be followed during the hearing.'

In similar vein, as was stated in Total Support Management (Pty) Ltd & Anor v Diversified Health Systems (SA) (Pty) Ltd & Anor 2002 (4) SA 661 (SCA) at 673H-I:

'The hallmark of arbitration is that it is an adjudication, flowing from the consent of the parties to the arbitration agreement, who define the powers of adjudication, and are equally free to modify or withdraw that power at any time by way of further agreement.

It is thus axiomatic that the jurisdiction and powers of an arbitrator are determined by agreement between the disputant parties. The terms of reference define the dispute to be resolved and the manner in which it is to be resolved. The arbitrator's mandate flows from and is limited by the terms of reference.

To put it differently, the arbitrator derives his jurisdiction and powers from the arbitration agreement between the parties.

The position is no different under section 93(1) of the Labour Act.

The jurisdiction and powers of an arbitrator are established and assumed by dint of the agreement of all the parties involved and their voluntary submission to the arbitral process and its jurisdiction. The arbitrator is not endowed with jurisdiction by the labour officer or conciliator. It is the disputant parties themselves who vest the arbitrator with jurisdiction, notwithstanding any preceding or parallel lis or contestatio between them. In other words, it is the voluntary and consensual nature of arbitration that determines the scope of the arbitrator's jurisdiction and powers where any matter is referred to arbitration in terms of section 93(1) of the Labour Act.'”...,.

The above-cited case establishes that the principles applicable to private or voluntary arbitration are the same as those applicable to compulsory arbitration in terms of the Labour Act.

However it must noted, that, there is a slight difference in that in respect of private arbitration there is complete party autonomy with no room for intervention by the arbitrator.

Section 93(2) of the Labour Act, however, gives the Labour Court, or the Labour Officer, the right to intervene and determine the terms of reference - in consultation with the parties.

The arbitrator ought not to mis-characterise the disputes between the parties.

In Alliance Insurance v Imperial Plastics (Pvt) Ltd SC30-17..., the learned MALABA DCJ..., cited with approval the case of Inter Agric (Private) Limited v Mudavanhu & Ors SC09-15 wherein the respondent, alleging unfair dismissal, filed a grievance with a labour officer, and, failing conciliation between the parties, the labour officer referred the matter to compulsory arbitration. MALABA DCJ opined:

“Article 34(2)(a)(iii) of the Arbitration Act states that an arbitral award can be set aside if it contains submissions on matters beyond submissions for arbitration. In Inter-Agric (Pvt) Ltd v Mudavanhu & Ors SC09-15, at p3 of the cyclostyled judgment, GOWORA JA said:

'In addition, at law, the arbitrator was only competent to determine the dispute between such parties as had been referred to him by the labour officer. Thus, he was confined to his terms of reference. He had no mandate beyond that which had been referred to him.'”...,.

See also Augur Investments OU v Fairclot Investments (Private) Limited t/a T & C Construction & Anor SC08-19.

What emerges from the above authorities is that the arbitrator, in determining the dispute referred to him, is confined to the terms of reference settled for him or her by the Labour Court or the labour officer in consultation with the parties.

He is not allowed to stray outside those terms of reference. For emphasis, he has no mandate beyond that which has been referred to him or her.

APPLICATION OF THE LAW TO THE FACTS

In essence, the principal issue to be addressed is whether or not the arbitrator exceeded his terms of reference and thereby arrived at the wrong conclusions. Flowing from this is the correctness or otherwise of the decision of the Labour Court in not upholding the arbitrator's award.

The appellant submits, that, the court a quo took a simplistic and fundamentally wrong approach in interpreting the terms of reference. He avers that it is implicit in the terms of reference that what was before the arbitrator were two issues and these are:

1. Has the contract of employment been terminated?

2. If so, is the termination lawful?

Before considering the attack on the arbitrator, that he misconceived the nature of the inquiry and his duties, or exceeded his jurisdiction by venturing outside the terms of reference, it is necessary to determine the nature of the inquiry which was before him.

As mentioned at the outset, the arbitrator had to determine whether or not the contract between the appellant and the first respondent had been lawfully terminated and the remedy thereof.

In my view, what was implicit in the terms of reference is that:

(a) There had been a contract of employment between the appellant and the first respondent.

(b) That the contract was terminated by the employer; and

(c) That the appellant's issue was whether or not the same was lawfully terminated.

This is what the arbitrator had to relate to.

The court a quo was therefore correct in finding, that, the arbitrator had mis-interpreted the terms of reference.

Indeed, the arbitrator erred given the specific terms of reference in proceeding to make the finding, that:

“1. That, the contract of employment between the respondent and the claimant still subsists and remains in force.”

The court a quo correctly opined, that:

“What seems to be coming out of the arbitral award is that, firstly, the arbitrator was not sure of the position of the respondent's employment status. Secondly, the arbitrator was not sure of the propriety of the respondent's salary apart from commenting that the employee was entitled to continue working while the Board made its deliberations. His position was that the contract was never terminated….,.

When parties presented the above as a term of reference, it was clear on their minds that the respondent's contract of employment with the first appellant had been terminated. What required determination was whether or not such termination was lawful.”

Counsel for the appellant had this to say about the above finding, in para 9 of the appellant's Heads of Argument:

“The above misdirection was the source of the court a quo's error. Parties never presented any terms of reference. This was compulsory arbitration. It was the labour officer who formulated the terms of reference, after taking into account the nature of the dispute between the parties.”

He further contended, that, instead of taking into account the nature of the dispute after conciliation, the court a quo applied the wrong principle, namely, taking into account a non-existent 'intention of the parties'.

The dispute was referred to the labour officer for conciliation as follows:

“(i) Whether or not our client's contract of employment was terminated, and, if so, when?”

He concluded by submitting, that, taking into account the nature of the dispute, the arbitrator was correct to include a determination of whether or not the employment had been terminated.

What counsel for the appellant over-looked is the role of the parties to the dispute, in the settlement of terms of reference to be referred to an arbitrator.

Section 98(4) of the Labour Act makes provision for the labour officer 'to determine the arbitrator's terms of reference after consultation with the parties to the dispute.'

Whilst it is the function of the labour officer to determine the terms of reference, he or she does not do it by himself or herself. He has to do so in consultation with the parties. The parties input in the final product: see Ballantyne Butchery (Pvt) Ltd t/a Danmeats v Edmore Chisvinga & Ors SC 2015 (1) 335, SC06-15.

There is no indication on the record that the appellant objected to the terms of reference as presented to the arbitrator at the beginning of the arbitration process.

The arbitrator, in his award, captures the terms of reference as referred to him by the labour officer. It is during the analysis stage that he changes course and starts to deal with whether the appellant's contract had been terminated.

The arbitrator clearly fell outside the terms of reference, contrary to the settled position of the law which states that arbitrators should confine themselves to the presented terms of reference: see Munchville Investments (Pvt) Ltd t/a Bernstein Clothing v Chiedza Mugavha SC62-19.

He could not go behind what was before him to ascertain what it is that was referred to the labour officer, as was suggested by counsel for the appellant.

The arbitrator was not asked to determine whether or not the contract between the parties still subsisted, but, was required to determine whether or not the contract between the parties was lawfully terminated.

In light of the foregoing, the court a quo's finding cannot be faulted.

The court a quo further found that equally disturbing is that the arbitrator's conduct was tantamount to making a contract for the parties which neither he nor any court or tribunal can do as a matter of law. It remarked as follows:

“Making contracts for parties is not the duty of an adjudicating authority. An adjudicating authority deals with disputes arising from contracts, or, indeed, interprets terms of contract where parties need interpretation of the terms thereof in the context of disputes between them. They do not make contracts for parties. In the Kundai Magodora case (above) at 403C-D the Supreme Court stated as follows:

'In principle, it is not open to courts to rewrite a contract entered into between the parties or to excuse any of them from the consequences of the contract that they have freely and voluntarily accepted even if they are shown to be onerous or oppressive.'

As is appositely cautioned by CHRISTIE: The Law of Contract in South Africa (5ed.) at p366:

'The fundamental rule that the court may not make a contract for the parties is a salutary one, the principle of which has probably never been seriously questioned. It is unthinkable that the courts should not only tell the parties what they ought to have done but then make them do it by enforcing the court's idea of what the contract ought to have been.'”

Indeed, the arbitrator misdirected himself by concluding, that, the contract was never terminated. It was not within his remit to exceed his mandate. The arbitrator misconceived the whole nature of the inquiry or his duty in connection therewith.

Thus, the first ground of appeal has no merit and must fail.

Appealed
SC06-22 : JOEL SILONDA (SUBSTITUTED BY EXECUTOR, VUSUMUZI SILONDA) vs VUSUMUZI NKOMO
Ruled By: GUVAVA JA, UCHENA JA and KUDYA AJA

This is an appeal against part of the judgment of the High Court sitting at Bulawayo, dated 2 May 2019.

The court a quo granted the following order:

1. That, the purported Deed of Sale concluded by the parties on 26 January 2010, in respect of a portion of Umguza 100 Acre Lot 5A be and is hereby confirmed to be null and void for want of compliance with the mandatory provisions of the Regional, Town and Country Planning Act [Chapter 29:12].

2. That, the plaintiff's claim for payment by the defendant of reasonable rentals and holding over damages be and is hereby dismissed with costs.

3. That, the plaintiff be and is hereby ordered to pay to the defendant the sum of $125,000 being compensation for improvements effected by the defendant on the plaintiff's property.

4. That, the prescribed rate of interest be levied on the amount under (3), supra, with effect from 24 June 2015 to the date of full payment.

5. That, the plaintiff pays costs of suit.

The part under appeal relates to paragraphs 3, 4 and 5 of the order. The appellant is also aggrieved by the court a quo's failure to pronounce itself on the claim for eviction in that order.

THE FACTS

The facts that are relevant to this appeal are common cause. The appellant sadly passed away on 24 August 2019, before the appeal was heard. He was, by order of this Court, substituted, on 22 July 2020, by his duly appointed executor dative, who also happens to be his son.

The appellant is the registered title holder of Umguza 100 Acre Lot 5A in the District of Bulawayo measuring 67,2123 hectares held under Deed of Transfer No.74/91 (the immovable property). It is situated in the outskirts of Bulawayo and falls under the administrative jurisdiction of the Umguza Rural District Council.

On 17 August 2000, the appellant sought, but failed, to obtain a sub-division permit for the property into units of less than five (5) hectares. The responsible authority adjudged any plots that were less than five (5) hectares not to be viable for agriculture.

The respondent resided on a fully developed six (6) acre plot in the vicinity of the appellant's immovable property.

On 12 January 2010, in anticipation of an agreement of sale to be consummated with the appellant, the respondent sold his plot for the sum of R225,000.

On 26 January 2010, the parties concluded a written agreement for the sale of 10 acres (4,047ha) of the immovable property (the plot) for the sum of US$20,000.

A deposit of US$10,000 was to be paid before the respondent could take occupation.

The balance was payable at the rate of US$2,000 per month from 1 May 2010.

The other terms and conditions of the agreement were that the respondent would “pay the cost of all transactions connected with the transfer of the property, all charges of capital gains, and draw electric power to the homestead of the seller.”

The respondent duly paid the deposit and took occupation on 1 April 2010.

His building plans were approved by the Umguza Rural District Council on 3 April 2010. He constructed a three bedroom cottage and a four bedroom main house in 2010. In 2011, he installed electricity infrastructure for his two dwellings and the appellant's homestead but only drew electricity to his dwellings. He flushed a borehole previously sunk by the appellant, constructed two (2) septic tanks and two (2) blair toilets. He also put up a perimeter fence around “his” plot.

It was common cause that he expended the total sum of US$34,158=75 and R2,220 on these developments.

The relationship between the appellant and the respondent deteriorated soon after the respondent took occupation of the property.

The appellant refused to accept the instalments tendered by the respondent and demanded that the respondent keep his money while he kept his land.

The respondent tendered the balance of the purchase price, and, when it was rejected, he issued summons for specific performance in HC491/11.

Thereafter, with the help of their legal practitioners, a compromise was reached between the parties but was not honoured.

In the result, the appellant then sued the respondent for the payment of the balance of the purchase price, in the sum of US$10,000, in HC2828/12.

During this tumultuous period, unbeknown to the respondent, the appellant sought to regularize the sale of the plot by applying for a subdivision permit to the department of Physical Planning Offices in Bulawayo on 10 January 2011.

It was only in or about October 2012 that the respondent became aware that the appellant did not have a sub-division permit entitling him to subdivide the immovable property and sell the plot.

On 27 February 2013, acting on the appellant's request, the respondent paid US$550 to the appellant's former legal practitioners for the processing of a belated sub-division permit.

Notwithstanding that the immovable property measured 67,2123ha, a permit for the subdivision of the immovable property into two Stands measuring 4,047 and 37,6961 hectares was duly issued on 29 April 2013.

The permit, however, turned out to be a fake document.

Acting on the erroneous belief that the permit was genuine, on 6 June 2013 and 30 January 2014, the respondent paid US$5,000 and US$4,000, respectively, towards the purchase price.

The respondent, therefore, paid to the appellant a total sum of US$19,000 for the purchase of the plot.

He, in addition, expended US$34,158=75 and R2,220 in the development of the immovable property.

By the time a pre-trial conference was held a quo, both parties had withdrawn their earlier actions against each other.

THE PARTIES RESPECTIVE CLAIMS IN THE COURT A QUO

At the pre-trial conference, the parties agreed, inter alia, that their agreement of sale was invalid and illegal for breaching section 39(1)(i) and section 40 of the Regional, Town and Country Planning Act. This was because it had been concluded without a subdivision permit.

Consequently, the appellant tendered the purchase price of US$19,000 and sought the eviction of the respondent from the plot.

He also claimed an ascertainable amount for unjust enrichment for the period of the respondent's stay to the date of his eviction.

The quantum for the enrichment claim was based on what the appellant perceived to be the reasonable rentals that the respondent would have paid for the occupation of the property.

He, therefore, claimed US$18,000 for the occupation of the plot from March 2010 to April 2015 and “holding over damages at the rate of US$10 per day…, from 1 May 2015 to the date of vacation” and costs on the higher scale.

The respondent contested the action.

He disputed being unjustly enriched and averred, that, he was a bona fide occupier by virtue of the invalid agreement. He also averred, that, in the absence of a lease agreement, the appellant did not have a valid cause of action for the payment of reasonable rentals and holding over damages.

He, in turn, counter claimed for unjust enrichment for the improvements he had made on the immovable property.

He averred that the appellant was enriched at his expense by these improvements.

He further alleged that the appellant was enriched by the payment of US$19,000 towards the purchase price and US$550 for the procurement of the subdivision permit.

The respondent, therefore, sought the repayment of the denominated amounts; a refund of the expenses incurred in erecting the electricity infrastructure; and the depreciated replacement cost (being the current cost of reproduction or replacement of an asset less deductions for physical deterioration, obsolescence and optimization) of the improvements he made on the plot.

He specially entreated the court to award him “such payments as will be sufficient to enable the defendant to purchase a property of comparable value including all the improvements he had effected.”

He also sought interest at the prescribed rate from the date of summons to the date of payment in full and costs on the higher scale.

In his plea to the counter-claim, the appellant, again, tendered the refund of US$19,000.

He disputed to being unjustly enriched by the developments made by the respondent on the immovable property. He averred, that, the respondent had failed to draw electricity to his homestead and had fraudulently facilitated the issuance of the fake permit. He also alleged that the respondent's dwellings were constructed without his authority and that he was therefore a mala fide occupier. Lastly, he stated that these dwellings would not be useful to him.

The two issues referred to trial a quo where whether or not:

1. The appellant was entitled to a reasonable rental arising from the respondent's occupation of the plot; and

2. The defendant has been unjustly impoverished, and plaintiff unjustly enriched, as a result of the alleged developments made by the defendant upon the plot; and, if so, the quantum thereof.

THE FINDINGS OF THE COURT A QUO

The court a quo confirmed the invalidity of the agreement of sale on the ground that it was contrary to the mandatory dictates of sections 39(1)(i) and 40 the Regional, Town and Country Planning Act.

The confirmation was in accordance with established authority emanating from this Court in such cases as X-Trend–A Home (Pvt) Ltd v Hoselaw (Pvt) Ltd 2000 (2) ZLR 348 (S) and City of Gweru v Kombayi 1991 (1) ZLR 333 (S).

It held, on the authority of Magodora & Ors v Care International Zimbabwe 2014 (1) ZLR 397 (S)…, that a lease agreement could not possibly be extrapolated from the invalid agreement of sale; and, resultantly, dismissed the claim for rentals and holding over damages sought by the appellant in the main.

It is clear from a reading of the judgment, that, the court a quo did not relate the request for reasonable rentals and holding over damages to the appellant's own enrichment claim against the respondent.

The appellant pleaded such a cause of action.

He testified during the trial, that, the respondent derived benefit from the farming activities he conducted on the plot. He also asserted that another benefit that accrued to the respondent was in the form of rental savings that he would have been obliged to pay elsewhere but for his stay on the plot.

These assertions were not, and could not, be controverted by the respondent.

However, it appears that counsel for the appellant misconceived the appellant's case and did not pursue the claim to fruition.

The court a quo, on the basis of credibility findings and the probabilities of the case, further found the respondent to have been a bona fide occupier and the appellant a mala fide seller.

Consequently, it relaxed the in pari delicto rule in favour of the respondent.

It, thus, held that the appellant had been unjustly enriched at the expense of the respondent, who was concomitantly impoverished by the transaction.

The court a quo, therefore, upheld the respondent's counter claim.

In computing the measure of the benefit that accrued to the appellant, the court a quo applied the pari delictum rule.

In the exercise of its broad discretion, it relaxed the pari delictum rule in a bid to do justice between the two protagonists.

It had no difficulties in finding the appellant to have been enriched in the sum of US$19,550 constituted by the payments towards the purchase price and the facilitation of the procurement of the sub division permit.

The correctness of this finding is beyond question.

After all, the appellant did not retract his tender of US$19,000, and conceded the payment of US$550 for the stated purpose.

The parties disagreed on whether or not the respondent was entitled to compensation for the improvements that he made on the immovable property.

The appellant submitted a quo that the respondent was not entitled to the value of the improvements:

(i) Firstly, because the respondent had not properly framed them under the enrichment cause of action in his pleadings.

(ii) The second was that the improvements were not, nor would they be, useful to him.

He, in any event, agitated for their urgent removal from his property.

The court a quo held, that, while on the pleadings, the cause of action for the improvements was poorly and inelegantly framed, the respondent had obliquely included them in his enrichment cause.

Further, that the purported defective pleadings had, in any event, been amplified and cured:

(i) Firstly, by the inclusion of the developments in the second issue referred to trial at the pretrial conference; and

(ii) Secondly, by the overwhelming evidence adduced by the respondent at the trial together with the scope and tenor of the questions asked and answers rendered during cross examination.

The court a quo also held, on the authority of Reza v Nyangani 2001 (1) ZLR 202 (S)…, that usefulness was to be measured objectively, and not subjectively, on the basis of added value.

It, therefore, found the improvements to be objectively useful to the appellant. It also found that they could not be removed because they were fixed to the immovable property.

The court a quo estimated the added value of the improvements at $125,000 and not US$132,833=33 claimed by the respondent.

It adopted the lowest depreciated replacement value of $90,000 provided in one of the three valuation reports produced in January 2018. The court a quo then added the depreciated replacement value of the plot, estimated in two of the valuation reports at $35,000, to this figure.

It, therefore, awarded the aggregate amount of $125,000 to the respondent as a fair and equitable amount that adequately represented the enrichment that accrued to the appellant and constituted his concomitant impoverishment.

Lastly, the court a quo declined to immediately evict the respondent from the immovable property on two grounds:

(i) The first was that he had a real improvement lien on the property, dischargeable on full payment of the award.

(ii) The second was that the respondent had invested all the resources he had on the plot.

To evict him from the plot, empty-handed, would not only be intolerable, but, would consign him and his family to the indignity of homelessness and destitution.

I quote below the concluding remarks of the court a quo in this regard. At p15 of its cyclostyled judgment, it stated that:

“This Court firmly believes that this is a proper case to exercise its discretion in the interest of equity and fairness by ordering that the defendant be evicted only upon payment of the full compensation ordered by the court per the defendant's counter-claim. This is mainly because the defendant has a real lien over the portion of the land in issue.”…,.

Notwithstanding the firm belief, the court a quo omitted to make the contemplated order of eviction in the final order that issued.

THE GROUNDS OF APPEAL

The appellant initially raised six grounds of appeal. At the commencement of the appeal hearing, in Bulawayo, counsel for the appellant moved for the deletion of the second ground of appeal and the amendment of the fourth ground.

Counsel for the respondent did not oppose the amendments.

We, accordingly, granted the amendments by consent of the parties.

Resultantly, the following five grounds of appeal remained in contention:

1. The Honourable Court a quo misdirected itself in law in holding, that, despite the respondent's failure to plead unjust enrichment with regards to the improvements upon the property at issue, such failure to specifically plead unjust enrichment was curable by the evidence.

2. The court a quo misdirected itself at law by failing to order either for or against the appellant on a claim of eviction of the respondent from the appellant's land when such a claim was put before the court a quo for determination by that court.

3. The court a quo misdirected itself in its application of the law in awarding what amounts to contractual damages in the relaxation of the in pari delicto principle in that the court a quo relied on valuations provided by the respondent, when, in fact, the court a quo could only have relied on the actual proof of expenditure upon such land having been pleaded and proof provided.

4. The Honourable Court a quo erred in ordering that interest on the judgment debt be paid by the appellant from 24 June 2015, when, in fact, the valuation relied upon for the monetary award in issue was done in 2018.

5. The Honourable Court a quo misdirected itself at law by ordering that the appellant pays the costs, when, in fact, the appellant was partially successful in the court a quo.

The relief sought from these grounds of appeal was:

(i) Firstly, that the appeal succeeds with costs.

(ii) Secondly, that the judgment a quo be altered by setting aside the paragraphs relating to the payment of the sum of $125,000, interest, and costs. These were to be substituted by an award for the payment of the purchase price paid of $19,000 and the actual expenditure proved to have been incurred in the improvements to the immovable property in the sum of $34,158=75 and ZAR2,220. The interest on these sums was to run from the date of the order and each party was to bear his own costs.

The appellant further sought the inclusion of an order of eviction to the substituted order.

THE ISSUES FOR DETERMINATION

The issues that arise from the grounds of appeal are these:

1. Whether or not the court a quo erred in finding that the respondent had proved his case and was therefore entitled to damages for unjust enrichment.

2. Whether or not the court a quo erred in relaxing the pari delicto rule and in awarding the respondent compensation in the nature of contractual damages.

3. The date on which interest should commence to run and the appropriateness of a cost order against the appellant a quo.

THE CONTENTIONS BEFORE US

During counsel for the appellant's oral submissions, it appeared to the court that the parties required an opportunity to attempt settlement of the matter. Counsel for the respondent was amenable to such a course of action.

The parties requested for a period of three (3) weeks to pursue the attempt at settlement.

We accorded them the opportunity to do so. The matter was accordingly postponed for continuation in Harare on 24 August 2020.

The attempt at settlement was, however, not successful.

The appeal proceeded in Harare.

Mr G Ndlovu, substituted Mr Masiye-Moyo as counsel for the appellant at the resumed hearing.

Counsel for the appellant made the following submissions:

That, the court a quo erred in awarding compensation for improvements under the enrichment cause in circumstances where the respondent had not specially pleaded such a cause.

While he conceded that the respondent had, in oral testimony, specifically premised his claim for compensation for the improvements on unjust enrichment, he argued that oral testimony could not, in law, cure such a glaring defect in his pleadings.

We directed counsel for the appellant's attention to the averments, as amended by consent of the parties at the hearing a quo on 16 January 2018, embodied in paragraphs 3, 4 and 5 of the respondent's counterclaim (on p40 of the record of proceedings) and paragraph 4.1 of his replication to the appellant's plea in reconvention (on p48 of the record of proceedings).

Counsel maintained, that, these averments did not specifically plead unjust enrichment in respect of the improvements but only did so in regard to the purchase price and the amount paid to procure the subdivision permit.

Counsel for the appellant further argued, that, as no contractual rights could ever arise or be enforceable from an illegal agreement, it was incompetent:

(i) Firstly, for the respondent to pray for “contractual damages” under an enrichment claim; and

(ii) Secondly, that while the court a quo correctly relaxed the in pari delicto principle in this case, it was also incompetent for it to award such “contractual damages” to the respondent.

The court a quo had done so, the argument went, by awarding compensation which included the amount of money that the respondent would require to purchase a piece of land similar in size to the one he had lost; and, by further awarding an aggregate sum which would enable the respondent to erect structures of an equivalent value to the improvements.

He contended, that, an award of compensation based on improvements was limited to the actual expenses incurred by the respondent.

He also contended, that, it was against public policy, and therefore improper, for any court of law to accord judicial recognition to and approval of an illegal and void agreement. To do so would undermine the tenets of public policy upon which the in pari delicto principle was premised.

Lastly, he conceded that an improvement lien constituted part of our law.

He, however, argued that such a right of retention could not avail any party whose improvements flowed from an illegal agreement.

Concomitantly, the court a quo, therefore, misdirected itself in failing to grant the order of eviction to the appellant.

Counsel for the respondent made contrary submissions:

(i) Firstly, he contended that the respondent had actually pleaded unjust enrichment not just for the actual expenditure he incurred in purchasing the plot, in procuring the permit, and drawing electricity to the appellant's homestead, but, also for the improvements.

(ii) Secondly, that, on the authority of Reza v Nyangani 2001 (1) ZLR 202 (S) and Derby Farms (Pvt) Ltd v Chirunga HH82-07…, once the court relaxed the in pari delicto rule it had the further discretion to do justice between the parties by awarding an equitable amount of the value added by the improvements. In so doing, the court could consider the real and not the nominal value of the improvements.

He argued, that, in Reza v Nyangani 2001 (1) ZLR 202 (S), this Court had ignored the exact expenditure that had been incurred in favour of the depreciated replacement value of the improvements. This was because, by the time the dispute was adjudicated, the actual expenses were too negligible while the depreciated replacement value, which catered for the fall in the value of money, represented the fair and equitable value added to the property by the improvements.

He, therefore, contended, that, the respondent was entitled to the value added to the immovable property by the improvements and not just the actual expenditure he had incurred.

Hence, his submission that the correct value added to the immovable property by the improvements was constituted by the depreciated replacement value of such improvements.

Finally, he submitted that the invocation of the improvement lien was again an exercise of the court's discretion, which the appellant had not, and could not, impugn on any of the irrationality grounds known to our law articulated in the case of Hama v National Railways of Zimbabwe 1996 (1) ZLR 664 (S).

He, however, conceded, in exchanges with the court, that the court a quo failed to capture the conditional eviction of the respondent in the operative part of its order.

He entreated us to exercise the powers conferred on the Supreme Court by section 22(1)(b)(ix) of the Supreme Court Act [Chapter 7:13] to “correct” the order and achieve justice between the parties.

In reply, counsel for the appellant, argued that both this Court and the High Court had adopted the depreciated replacement value in decided cases because of the endemic hyperinflation that characterized the local economy at the time.

He sought to distinguish the two cases cited by counsel for the respondent from the present case on the basis, that, this country did not experience similar inflationary pressures but was stable between 2010, when the actual expenses were incurred, and 2019, when the enrichment order was granted.

Counsel for the appellant, however, conceded that this Court could, in terms of section 22(1)(b)(ix) of the Supreme Court Act, correct the omission to grant the conditional eviction in the operative part of the order of the court a quo rather than remit the case for this to be done.

THE LAW

The requirements for an action of unjust enrichment were set out by ZIYAMBI JA in Gamanje (Pvt) Ltd v City of Bulawayo SC94-04…, in the following terms:

“The requirements for an action for unjust enrichment are:

(i) Firstly, that the defendant has been enriched by the receipt of a benefit;
(ii) Secondly, that he has been so enriched at the expense of the plaintiff;
(iii) Thirdly, that the enrichment is unjustified (in the sense that it would be unjust to allow the defendant to retain the benefit);
(iv) Fourthly, that the enrichment must not come within the scope of one of the classical enrichment actions; and
(v) Fifthly, there must be no positive rule of law which refused an action to the impoverished person.

See Industrial Equity v Walker 1996 (1) ZLR 269 AT P 300; See also Wille's Principles of South African Law, 8th edition, at pp633-5.”

To the same effect is Du PLESSIS in his seminal work The South African Law of Unjustified Enrichment, Juta, 2012…, where he writes that:

“To succeed with a claim based on unjustified enrichment, the plaintiff must meet four general requirements, or, as it is sometimes said, four general elements of enrichment liability have to be present. (i) First, the defendant must be enriched;
(ii) Secondly, the plaintiff must be impoverished;
(iii) Thirdly, the defendant's enrichment must be at the plaintiff's expense; and
(iv) Finally, the defendant's enrichment must be unjustified, which means that it must be without legal ground (sine causa).”

ANALYSIS AND APPLICATION OF THE LAW TO THE FACTS

Whether or not the court a quo erred in finding that the respondent had proven his case and was therefore entitled to damages for unjust enrichment

In the court a quo, and in this Court, the appellant conceded that the respondent had pleaded and proved unjust enrichment in respect of the part payment of the purchase price in the sum of US$19,000.

Counsel for the appellant, however, argued a quo, and in this Court, that, the respondent was not entitled to the measure of enrichment based on the valuations produced a quo:

(i) Firstly, because unjust enrichment was not specifically pleaded and could not, as held by the court a quo, be properly cured by evidence.

(ii) Secondly, because the award granted a quo was for contractual damages and not for unjust enrichment.

The law on what constitutes a cause of action is settled.

A cause of action is simply a factual conspectus, the existence of which entitles one person to obtain from the court a remedy against another person. In other words, it is an entire set of facts upon which the relief sought stands: see Peebles v Dairiboard (Private) Limited 1999 (1) ZLR 41 (H)…, and Abrahamse & Sons v SA Railways and Harbours 1933 CPD 626…,.

To determine whether the respondent raised an enrichment cause on the improvements, regard must be had to his plea to the appellant's declaration in the main matter, and to the subsequent averments he made in his counterclaim.

The facts pleaded by the respondent, upon which his relief rested appear in paragraph 10.2 of his plea and paragraph 3 of the appellant's replication in convention; paragraphs 2, 3, 4 and 5 of his counterclaim, as amended on the first day of trial a quo (16 January 2018). It is also necessary, for completeness, to refer to paragraph 1 of the appellant's plea to the counter-claim and paragraph 1 of the respondent's replication.

I set these below:

“RESPONDENT'S PLEA IN CONVENTION

10.2 The defendant avers that if the contract were to be found to be null and void then he stands to be prejudiced and the plaintiff to be unjustly enriched, because, in pursuit of his obligations in terms of the sale, he had built a house on the land, paid US$19,000 to the plaintiff, commenced to draw electricity to the plaintiff's homestead, and, through his own funds, facilitated the issue of a subdivision.

WHEREFORE, the defendant prays for the dismissal of the plaintiff's claims with costs on the punitive scale.

In the event, however, that the Honourable Court holds that the agreement is null and void, then, the defendant prays that the plaintiff be ordered to compensate the defendant in such sum of money as at the time of judgment would be sufficient for the defendant to acquire a property of comparable value including all improvements effected by the defendant on the land in issue, a refund of the money spent in drawing electricity for the plaintiff's benefit, and money spent in procuring a subdivision permit.

RESPONDENT'S COUNTERCLAIM

1….,.

2. On 26 January 2010, the parties entered into an agreement of sale wherein the plaintiff sold and the defendant purchased an undeveloped piece of land identified in the agreement of sale as 'a portion of land 10 acres in extent being part of Plot 5A 100 Acres Lot, Bulawayo'.

3. In pursuit of his obligation in terms of the agreement of sale, the defendant paid to the plaintiff the total sum of US$19,000, and, inter alia, for the benefit of the plaintiff, commenced drawing electric power to the defendant's homestead and paid for the procurement of a subdivision permit by the plaintiff.

4. The defendant avers, that, the plaintiff has been unjustly enriched at his expense in that the defendant paid to the plaintiff the sum of US$19,000 which the plaintiff accepted, and further commenced to draw electricity for the benefit of the plaintiff, and paid to the plaintiff US$550 to procure or cause the procurement of a sub-division permit at his expense.

5. The defendant, as he is entitled to do, had developed the piece of land and he will be unfairly prejudiced if the improvements were to accrue to the plaintiff without any compensation from him.”

THE APPELLANT'S REPLICATION IN CONVENTION

Ad paragraph 10.2

Plaintiff denies that he stands to be unjustly enriched from the property built by the defendant and avers that:

3.1 Defendant built the property contrary to a warning against such development by the plaintiff.

3.2 Plaintiff has no use for the property so built by the defendant as he already has other plans with regards to the use of the land upon which the defendant built the property.

THE APPELLANT'S PLEA TO THE COUNTERCLAIM

1. There is no cause of action disclosed in the counter-claim.

THE RESPONDENT'S REPLICATION TO THE COUNTERCLAIM

1. Ad para 1

This is disputed. The defendant's cause of action is founded on a claim of unjust enrichment.

Ad para 4

4.1 The defendant will accept payment in the sum of US$19,550 and persist in its claim for damages as contained in the counterclaim.”…,.

The above pleadings clearly show, that, the respondent specifically pleaded to an enrichment claim in respect of improvements in defence to the main action, but, did not specifically carry this through to the counterclaim.

The substance of the enrichment cause is, however, embodied in paragraph 5 of the counterclaim.

The deliberate use of choice words such as 'developed piece of land' 'improvements' 'unfairly prejudiced' 'accrued to plaintiff without compensation' connote a direct benefit to the appellant at the expense of the respondent and clearly encapsulate all the four requirements of an enrichment cause recognised in our law.

I am satisfied that the court a quo's finding, that the respondent did plead unjust enrichment in his counterclaim, is unassailable.

Appealed
SC06-22 : JOEL SILONDA (SUBSTITUTED BY EXECUTOR, VUSUMUZI SILONDA) vs VUSUMUZI NKOMO
Ruled By: GUVAVA JA, UCHENA JA and KUDYA AJA

THE FACTS

THE PARTIES RESPECTIVE CLAIMS IN THE COURT A QUO

THE FINDINGS OF THE COURT A QUO

Notwithstanding the firm belief, the court a quo omitted to make the contemplated order of eviction in the final order that issued.

THE GROUNDS OF APPEAL

THE ISSUES FOR DETERMINATION

THE CONTENTIONS BEFORE US

THE LAW

ANALYSIS AND APPLICATION OF THE LAW TO THE FACTS

Whether or not the court a quo erred in finding that the respondent had proven his case and was therefore entitled to damages for unjust enrichment

Whether or not unjust enrichment exists is a factual finding: see Evans v Rapper SC55-04…,.

In the present matter, the court a quo made the factual finding that the appellant had been enriched at the expense of the respondent and was therefore entitled to recoup the value of the enrichment.

That finding has not, and on the facts, cannot be impeached by the appellant.

The existence of the improvements was not disputed a quo. Nor were the valuation reports, on which they are all itemized, controverted.

Indeed, the appellant accepted, that, the respondent expended US$34,158=87 and R2,220 in making the improvements.

I am satisfied, that, the court a quo correctly found that the respondent had proved his case for unjust enrichment on a balance of probabilities.

It seems to me, therefore, that the first ground of appeal was misconceived and cannot succeeded.

SC09-22 : MOVEMENT FOR DEMOCRATIC CHANGE (TSVANGIRAI) and DOUGLAS MWONZORA and DR THOKOZANI KHUPE vs LILIAN TIMVEOS and THABITHA KHUMALO and OTHERS
Ruled By: GUVAVA JA, MAKONI JA and CHITAKUNYE JA

In Nzara Others v Kashumba Others SC18-18 this Court reiterated the need for a court to adhere to issues placed before it and not to go on a frolic of its own on issues not motivated by the parties. At page 13-14 of the cyclostyled judgment, ...

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

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

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

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

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

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

BACKGROUND FACTS

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

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

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

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

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

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

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

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

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

The loan advanced was repayable to the appellant as follows:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The court a quo, in making its determination, found that the first and third to seventh respondents made claims in reconvention as to the invalidity of the sureties in their names.

However, as submitted by counsel for the appellant, these respondents did not make any claims in reconvention in their pleas. The claim in reconvention which is in the record relates only to the second respondent.

No amendment to the claim in reconvention was made to show that this was to cover all the respondents.

As such, the court a quo was clearly wrong and made a determination on an issue which was not properly placed before it.

Rule 121(1) of the High Court Rules provides that:

“A claim in reconvention shall be so described and shall be bound and filed with the defendant's plea.”

Only the second respondent properly made its claim in reconvention in its plea. The rest of the respondents only filed a notice of application to amend their pleas and claims in reconvention on the 30th of May 2017.

The respondents notice stated, that, at the pretrial conference, the respondents would apply to amend the pleas and make claims in reconvention. The record does not reflect whether or not the application for an amendment was motivated and if it was granted. More specifically, there is no order in the record to show that the amendment was granted at the pre-trial conference. The Pre Trial Conference Minute is also silent on this issue.

It seems to us that the court a quo could not make any finding on claims which were never raised in the papers before it by the respondents.

A court must determine a matter based on the papers and evidence placed before it by the parties. It cannot go on a frolic of its own: see Nzara and Ors v Kashumba N.O. and Ors SC18-18…,.

The court a quo fell into error when it granted claims in reconvention which were not properly pleaded by the respondents....,.

The court a quo also erred in cancelling the surety and mortgage agreement in circumstances where there were no counter-claims filed by the third to seventh respondents seeking such relief.

SC32-22 : CUTHBERT DUBE vs PREMIER MEDICAL INVESTMENTS (PVT) LTD and PREMIER SERVICE MEDICAL AID SOCIETY
Ruled By: MAKONI JA, MATHONSI JA and KUDYA JA

On 7 July 2021, the High Court (“the court a quo”) dismissed an application brought against the respondents by the appellant for want of prosecution with costs. It also ordered the appellant to pay the costs of the application brought by the first and second respondents for the dismissal of ...

THE FACTS

Both respondents are incorporated in terms of the laws of this country and are sister companies. The second respondent is a medical aid society while the first respondent is its investment vehicle.

For quite some time, the appellant was the second respondent's Chief Executive Officer, a position he vacated prior to the commencement of the proceedings forming the basis of this appeal.

On 27 March 2018, the appellant brought a court application in the court a quo for a declaratory order to the effect that he was the holder of ten million shares, representing a 20% shareholding in the first respondent. He also sought a declaration that the conduct of the first and second respondents, of regarding him as not being a shareholder, was unlawful, null and void and of no force or effect. He also sought costs on the scale of legal practitioner and client.

The basis of the application, as stated in the founding affidavit, was that the appellant had purchased the ten million shares of the first respondent on 29 July 2010. He attached a copy of a share certificate issued to him and signed by two directors of the first respondent whose names are not disclosed in the certificate.

While alleging that he paid for the shares, he did not produce proof of such payment.

According to the appellant, what prompted him to make the application for a declaratory order was the first and second respondents refusal to acknowledge him as the holder of the shares in question. This followed a meeting of the second respondent held on 21 May 2015 which resolved not to ratify the award of the 20% shareholding in the first respondent to the appellant.

On 11 April 2018, the respondents filed opposition to the application for the declaratory orders.

The opposing affidavit was deposed to by Jeremiah Bvirindi, the chairman of the Board of Directors of the second respondent, who denied that the appellant was ever a shareholder of the first respondent.

The respondents also took the view that there were disputes of fact and put in issue the circumstances under which the appellant had purported to acquire the shares at a time he was the Chief Executive Officer of the second respondent.

According to the respondents, the appellant obtained the share certificate he relied on “either illegally, fraudulently, or without following due process” as set out in the first respondent's Regulations.

Significantly, the respondents confirmed that the appellant had deposited a cheque of Z$6,585,672,555=75 into the second respondent's bank account.

The respondents view was that a mere deposition of the above amount in the Bank account was improper and motivated by fraudulent intent on the part of the appellant.

In any event, so the respondents argued, while the payment for the 15% shares (not 20%), should have been made on 25 April 2007, it was only made on 19 March 2008 when the amount had been ravaged by inflation rendering it inequitable to the value of the shares.

It was also the respondents case that the purported sale of the 15% shares and a donation of 5% shares to the appellant was done without the authority of the Board and/or the shareholders. The appellant took advantage of his position as the Chief Executive Officer to influence the sale to their prejudice.

It is common cause that the appellant did not act upon the notice of opposition filed by the respondents within the time allowed by the rules of court or at all. This prompted the respondents to file the initial application for dismissal of the application for want of prosecution under case number HC11129/18.

The application was opposed by the appellant and subsequently set down for hearing in March 2019.

Again, it is common cause that on the date of the hearing, following negotiations between the parties, the respondents withdrew the initial application for dismissal for want of prosecution. This was on the understanding that the appellant would purge his default by filing the outstanding pleadings in the main application and prosecute it.

He did not.

PROCEEDINGS IN THE COURT A QUO

When the appellant did not honour his undertaking to prosecute the main matter for about five (5) months, the respondents filed the second application for dismissal for want of prosecution in terms of Rule 236(3)(b) of the High Court Rules 1971 on 2 August 2019.

It is that application which forms the basis of the present appeal.

In the founding affidavit, again deposed to by the chairman of the Board of Directors of the second respondent, on behalf of both of them, the respondents stated, that, following their filing of their opposition on 11 April 2018, the appellant had neither filed an answering affidavit nor set the matter down for hearing.

The respondents chronicled the appellant's tardiness in the handling of his application which saw him failing to file heads of argument even in the initial application for dismissal.

They stated, that, even after being accorded the second chance to redeem himself, the appellant had snubbed the opportunity and done absolutely nothing until a second application for dismissal was lodged.

After stating that they had elected to file the application for dismissal for want of prosecution instead of setting the main matter down for hearing, as they are entitled to do in terms of the Rule, the respondents ended there.

They urged the court to grant the order for dismissal on that basis alone.

In opposing the application, the appellant took issue with the authority of the deponent of the founding affidavit to represent the respondents.

He contended that one person could not lawfully represent two separate artificial persons and that the resolutions relied upon by the respondents were invalid by reason that the signatories names were not declared.

His only explanation for the delay in prosecuting the application was that, to the knowledge of the respondents, he had “not been feeling well for a long time” which affected his ability to give instructions to his legal practitioners to file an answering affidavit.

The appellant insisted, that, he owns 20% shares in the first respondent and should be allowed to pursue his claim, otherwise his property rights would be infringed.

It is also important to note that the appellant made two assertions which have a bearing on the resolution of this appeal:

In paragraph 6 of his opposing affidavit, in response to the accusation that he had not filed an answering affidavit or taken steps to set the matter down, the appellant stated that:

“6. Ad para 8-9

These averments have been overtaken by events. On 19 August 2019, I filed my answering affidavit and heads of argument in HC2821/18. What remains is for the applicants herein, as respondents therein, to file their heads of argument.”

Regarding the question whether the respondents had made a good case for the relief sought, the appellant stated, at paragraph 8:

“8. Ad para 11-14

8.1. I do not accept that the applicants have met (sic) the case for the order they are seeking.

8.2. The founding affidavit does not advance any grounds for the court to exercise its discretion in favour of dismissal instead of determining the main matter on the merits. The applicants just want a dismissal because they are asking for it.”

The court a quo found that it was both convenient and logical for the deponent of the founding affidavit to represent the respondents as he had knowledge of the shareholding structure of the first respondent. In the court a quo's view a company has the liberty to authorize anyone it deems fit and proper to represent it in litigation.

It found that the delay in responding to the pleadings was evidence of the appellant's non-committal to finalize the matter, because, if it had been of importance to him, the appellant would have pursued the matter with diligence.

In the court a quo's view, the unsubstantiated claims of illness by the appellants were not an acceptable reason for the delay.

It granted the application for dismissal for want of prosecution.

PROCEEDINGS BEFORE THIS COURT

The appellant was aggrieved. He launched this appeal on the following grounds:

1. The court a quo misdirected itself and erred in law in not finding, in limine, that the respondents were not properly before it for the reason that the deponent to the respondents founding affidavit had no lawful authority to institute the proceedings on their behalf.

2. In dismissing the appellant's application under HC2821/18 for want of prosecution, the court a quo improperly exercised its discretion in that it only took into account one factor, namely, the reasonableness of the explanation for inaction, instead of also taking into account other mandatory factors such as possible prejudice to the respondents appellant's (sic), prospects of success on the merits, and the balance of convenience.

3. As an alternative to 2, the court a quo improperly exercised its discretion and erred in law in dismissing the appellant's application under HC2821/18 for want of prosecution without an analysis of, and application of its mind to all the mandatory factors to be taken into account before such dismissal.

4. With the court a quo having refused to take into account the established fact that the appellant's application under HC2821/18 had been ready for set down for a considerable period, its decision to dismiss the application for want of prosecution was so unreasonable that no reasonable court, applying its mind to the circumstances of the case, could ever have made such a decision.

5. The court a quo's finding that the appellant's explanation for the delay in prosecuting his application was inexcusable, was so unreasonable that no reasonable court, applying its mind to the circumstances of the case, could ever have made such a decision.

I mention, in passing, that, some of the five (5) grounds of appeal are repetitive and inconcise. They do not meet the threshold set by Rule 44.

As the issue was not raised with the parties at the hearing of the appeal, it shall not be considered in the determination of the appeal.

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

The appellant appealed to this Court on five (5) grounds of appeal most of which attacked the factual findings of the court a quo instead of the law as required by section 92F(1) of the Labour Act [Chapter 28:01].In terms of that section, an appeal lies from any decision of ...

SC39-23 : LINDA KOPECKY and MARK KOPECKY and TSHOLOFELO TRUST and DIANE THORNTON and SLIPPER SHELL INVESTMENTS (PVT) LTD vs CITY OF HARARE and SPIRIT LIFE CHURCH
Ruled By: BHUNU JA, MAKONI JA and MWAYERA JA

This is an appeal against the whole judgment of the Administrative Court handed down by MANDEYA J on 13 May 2022.After hearing submissions from counsel for the parties, the court dismissed the appeal with costs indicating that reasons for the order would be given in due course.These are the reasons.THE ...

This is an appeal against the whole judgment of the Administrative Court handed down by MANDEYA J on 13 May 2022.

After hearing submissions from counsel for the parties, the court dismissed the appeal with costs indicating that reasons for the order would be given in due course.

These are the reasons.

THE FACTS

The second respondent is the owner of a certain property known as No.1 Petersham Road, Malborough, Harare (the “property”). The appellants are residents of the neighbourhood within which the property is located. The first respondent is a Municipality, Local Planning Authority and an administrative body tasked with the mandate of rendering services to the residents of Harare.

The second respondent, on 9 December 2021, made an application to the first respondent for change of use of its property from residential to use as a church.

The application was opposed by the appellants who feared that the use of the property, as a church, would cause noise pollution thereby disturbing the peace and tranquillity of the neighbourhood. They accordingly filed their objections with the first respondent.

After considering the objections from the appellants, the first respondent granted the application subject to certain conditions. These conditions included, inter alia, a prohibition of the use of certain musical instruments in a way that would disturb the peace of other neighbours. The permit stipulated that the second respondent would construct a sound proof auditorium which was to be inspected by the first respondent's Department of Works.

PROCEEDINGS IN THE COURT A QUO

Dissatisfied by the decision of the first respondent, the appellants lodged an appeal in the Administrative Court (“the court a quo”).

They were challenging the decision of the first respondent on the basis, that, the provisions of the Regional Town and Country Planning Act [Chapter 29:12] (“the Act”) were not complied with before the application was granted. They averred, that, the second respondent neglected to provide all the relevant information required in applications of that nature, in particular, they alleged that it neglected to provide information relating to the external area to be covered by the building, the number of floors of the building, the extent and location of parking facilities for motor vehicles.

Furthermore, they queried the citation of the name of the second respondent in the application. They submitted, that, the Regional, Town and Country Planning Act requires that the owner of the property makes the application or it be done with the consent of the owner.

Their argument was that the owner of the property in question is Spirit Life Church International yet the application before the first respondent was launched by Spirit Life Church. It was their case that Spirit Life Church is a non-existent entity.

The appellants further argued, that, all the interested parties were not notified of the application for the change of use of the property. It was their case that the large number of people who would attend church service would result in noise pollution despite the stipulated precaution.

They contended, that, the permit did not make provision for the costs associated with connection of a sewer system for the church. They also argued, that, the application was granted after the time frame within which to consider it had lapsed.

In response to the appeal, the respondents argued, that, due process of the law was followed before the application was granted.

They disputed the allegation that the notice was not given to all the interested parties and that the application was considered out of time.

With regards to the citation of the second respondent, it submitted that the omission of the word 'International' did not render the second respondent non-existent. They argued that there was no confusion as to the identity of the second respondent.

Further, it was argued that the application form contained all the relevant information to enable the first respondent to consider the application.

The court a quo dismissed the appeal.

It found, that, the argument that the application was considered outside the time frame provided for by the law was unmeritorious as the timeframe was extended by a letter written by the second respondent to the first respondent dated 30 November 2021.

It also dismissed the argument that the respondent did not provide all relevant information. The court held that the application form was to be filled to the extent appropriate.

It found that all the interested parties were notified.

The court a quo dismissed the argument that the first respondent would incur additional costs associated with constructing a sewer line for the church on the basis that the appellants had not motivated that argument.

Aggrieved by the decision of the court a quo, the appellants appealed to this Court on the following grounds:

GROUNDS OF APPEAL

1. The court a quo misdirected itself when it determined the matter on the mistaken basis that the party that had applied for the permit had granted an extension of the period during which the first respondent herein was obliged to determine that application.

2. The court a quo erred when it failed to determine that the second respondent's failure to provide the information that was required under sections 10, 11 and 12 of the application form invalidated the application on the basis that it violated the peremptory provisions of section 26(1) of the Regional Town and Country Planning Act.

3. The court a quo erred when it failed to determine that the application for the development permit was invalid for the reason that the purported applicant therein, Spirit Life Church, does not exist.

4. The court a quo erred when it failed to determine that the permit that was purportedly granted to the second respondent was invalid for failing to make a provision for the cost of connecting the proposed development to the sewer line.

5. The court a quo erred when it failed to nullify the permit on the basis that the same had been granted on the basis of falsehoods which were contained in the application.

RELIEF SOUGHT

The appellants pray that the appeal be allowed with costs and the decision of the court a quo be set aside and substituted with a decision setting aside the decision of the first respondent to grant the permit, and, that the first respondent dismisses the application for the permit. They also prayed for costs of suit.

ISSUES FOR DETERMINATION

(1) Whether or not the court a quo erred in failing to find that due process was not followed before the first respondent granted the permit to the second respondent.

(2) Whether or not the incorrect citation of the name of the second respondent, in the application before the first respondent, was fatal.

PROCEEDINGS BEFORE THIS COURT

APPLICATION OF THE LAW TO THE FACTS

(1) Whether or not the court a quo erred in failing to find that due process was not followed before the first respondent granted the permit to the second respondent

In motivating the appeal, counsel for the appellants argued, that, section 26(1) of the Regional, Town and Country Planning Act was not complied with in that the second respondent omitted to fill in Part 2 and 3 of the application form. His argument was that the permit was granted in the absence of all the relevant information required.

He further argued, that, the application was made by a non-existent entity.

His argument was that the Regional Town and Country Planning Act makes it clear that the application ought to be made by the registered owner of the property or with the consent of the owner.

He based his argument on the authority of John v Delta Beverages Ltd SC40-17 wherein it was held, that, the omission of the word “Pvt” was fatal as there was no party called Delta Beverages Ltd.

Further, he submitted that the permit was a nullity as it did not make provision for the costs associated with construction of a sewer system.

In response, counsel for the first respondent argued, that, section 26(1) of the Regional Town and Country Planning Act does not prescribe the information that ought to be contained in the application form. He submitted, that, the form was filled to the satisfaction of the first respondent, hence, the argument that section 26 of the Regional, Town and Country Planning Act was not complied with lacks merit.

It was his argument, that, the application form was complemented by the justification report which contained the full information required, hence, it cannot be said that insufficient information was supplied when the application for the permit was made.

Counsel for the first respondent further argued, that, the decision by the first respondent involves an exercise of discretion. He submitted that this Court should be slow to interfere with an exercise of discretion. His case was that the appellants do not allege that the discretion was exercised injudiciously warranting interference by this Court.

With regards the citation of the second respondent, he argued that the omission of the word 'International' was not fatal. His case was that unlike the omission of the words '(Pvt) Ltd' the omission of the word International does not have legal connotations. He argued that John v Delta Beverages Ltd SC40-17 was distinguishable from this case.

In addition, he submitted that there was already a sewer line in place which the church could connect to....,.

NON EXISTANT PARTY

The court was inclined to agree with the argument advanced by the second respondent. The case relied upon by counsel for the appellants is distinguishable from the present case.

In John v Delta Beverages Ltd SC40-17, the omission of the word “Pvt” was fatal because the word has legal connotations unlike the omission of the word International.

In any event, there is no confusion as to the identity of the second respondent.

The appellants, in their letter of objection, in the appeal before the court a quo, and the present appeal, cites the second respondent as Spirit Life Church without including the word International.

They cannot, therefore, turn around and claim that Spirit Life Church is a non-existent entity.

To add on, the appellants never raised the objection when the matter was still before the first respondent.

At that stage, the second respondent would have been able to amend its documents.

In Marange Resources (Pvt) Ltd v Core Mining & Minerals (Pvt) Ltd & Ors SC37-16…, this Court commented as follows:

“As for the legal consequences of wrong citations; understandably. very few situations of 'wrong defendants/respondents' or 'wrong plaintiffs/applicants' have had to be decided in our jurisdiction, as such errors, I believe, are routinely rectified in consultation between the parties: see also, for comparison, Paterson TJM, Eckard's Principles of Civil Procedure, Juta and Company Ltd, 2005, 5th ed (2012) p184 where it is stated:

'In the event of these pleas (non-joinder and mis-joinder) being successful, the court will order a stay in the proceedings so that the pleadings can be amended so as to bring the proper parties before the court.'”

SC50-22 : LONRHO LOGISTICS (PRIVATE) LIMITED vs RAM PETROLEUM (PRIVATE) LIMITED
Ruled By: UCHENA JA, MATHONSI JA and KUDYA JA

Dismayed by the respondent's outright refusal to deliver to it outstanding fuel in terms of an agreement of sale entered into between the parties, the appellant filed a claim for specific performance in the High Court (“the court a quo”).

The appellant sought judgment compelling the respondent to deliver 120,000 litres of diesel purchased from the respondent.

By judgment delivered on 31 March 2021, the court a quo dismissed the claim and issued the following order:

“Accordingly, I order as follows:

1. The plaintiff's claim is dismissed.

2. The contract entered into between the parties, whereby the plaintiff purchased 150,000 lrs of fuel from the defendant, be and is hereby cancelled.

3. The defendant be and is hereby is (sic) ordered to pay the plaintiff the sum of $159,300 representing the plaintiff's partial performance of the contract.

4. The plaintiff be and is hereby ordered to pay the defendant's costs of suit.”

This is an appeal against that whole judgment of the court a quo.

THE FACTS

The background facts are largely common cause.

The appellant is a transporter of note while the respondent is a fuel monger. They have a long standing business relationship whereby the respondent has been supplying the appellant with bulk fuel over the years.

On 1 November 2018, the parties entered into a sale agreement in terms of which the respondent sold and the appellant purchased 150,000 litres of diesel.

On 2 November 2018, the appellant paid the purchase price of $201,000 in terms of the invoice presented to it by the respondent but did not take delivery of the diesel in question. In fact, it was not until 28 November 2018 that the respondent delivered only 30,000 litres of the diesel on the instructions of the appellant.

This left a balance of 120,000 litres of diesel which is the subject of the present litigation involving the parties.

Problems started in January 2019 when three events occurred in quick succession:

(i) First, the Minister of Finance and Economic Development gazetted the Customs and Excise (Tariff) (Amendment) Notice (No.7, 2019) as S.I. 9 of 2019. The Statutory Instrument came into operation on 13 January 2019. It was enacted to amend Part II of the Second Schedule of the Customs and Excise (Tariff) Notice, 2017 which was published in Statutory Instrument 53 of 2017.

(ii) Second, and subsequently to that, the Petroleum (Petroleum Products Pricing) Regulations S.I.10 of 2019 were gazetted. Section 3 thereof made it clear that they applied to “petroleum products prices in relation to wholesaling and retailing activities.” Section 5 provided the formulas that were to be applied by the Zimbabwe Energy Regulatory Authority (“ZERA”) in calculating the price of any petroleum product.

It is significant to note, that, the amount of duty imposed by S.I 10 of 2019 appears to have been equivalent to the amount fixed by S.I 9 of 2019, which, as I have stated, specifically stated that it came into operation on 13 January 2019 without in any way suggesting that it had retrospective effect.

(iii) Third, and obviously in response to the imperatives of the Statutory Instruments referred to above, the Zimbabwe Energy Regulatory Authority (ZERA) issued a directive requiring all oil companies to declare their fuel stocks as of midnight on 12 January 2019. The directive was contained in a circular dated 17 January 2019 which reads in relevant part:

“RE: DECLARATION OF OIL COMPANY FUEL STOCKS AS OF MIDNIGHT 12TH JANUARY 2019

Pursuant to the meeting held at the Ministry of Finance on the 16th January 2019 between Ministry of Energy and Power Development, Ministry of Finance, Zimbabwe Energy Regulatory Authority and Oil Companies, the authority requires that Oil Companies declare the details of the following:

1.0 Stockholding of diesel, petrol and paraffin held by the Oil Company at depot or at NOIC (old duty paid) as of midnight 12th January 2019 before the new pricing (Statutory Instrument 10 of 2019) came into effect.

2.0 Outstanding coupons (yet to be redeemed) as of midnight 12th January 2019, indicating products, category of customers, volumes and value, as well as special conditions attaching to coupons.

Oil Companies are further advised that they are required to pay the difference in duty between the old duty and new duty to ZIMRA on the stock referred to in 1.0 as the fuel will be sold in terms of S.I 10 of 2019.”…,.

Following these developments the appellant moved quickly.

On 24 January 2019, it demanded the immediate delivery of the balance of 120,000 litres of diesel.

The respondent was unmoved.

Citing an increase in duty, the respondent refused to deliver until the appellant paid additional duty on the outstanding diesel.

By email of 24 January 2019, the respondent tabled three options available to the appellant. The respondent wrote:

“…, we wish to provide you with below three options.

1. Lonrho pay the difference of duty amounting to $1=65.

2. Lonrho can draw down at the current price of fuel to exhaust your prepayment with us.

3. RAM Petroleum can refund Lonrho the total amount prepaid.”

The appellant would have none of it.

Calling the respondent's proposal “nonsense” it emotionally put its case across that the Zimbabwe Energy Regulatory Authority (ZERA) directive did not apply to the diesel that had already been sold.

With the battle lines drawn, the appellant enlisted the services of its legal practitioners whose letter of demand to the respondent yielded nothing.

PROCEEDINGS BEFORE THE COURT A QUO

On 7 February 2019, the appellant sued out a summons against the respondent seeking an order directing the respondent to deliver the outstanding diesel.

The claim was contested by the respondent.

In a long winding plea characterized by a number of alternative averments, the respondent pleaded the existence of a tacit term of the agreement that the appellant should have taken delivery within seventy two hours after effecting payment.

In addition, it asserted that section 230(1) of the Customs and Excise Act [Chapter 23:02] constituted an implied term that it was entitled to recover from the appellant any amount by which duty was increased.

Some of the pleas raised by the respondent related to fictional fulfilment of the contract in the sense that it had tendered delivery of the diesel which the appellant refused.

Also, that by failing to accept delivery, the appellant had repudiated the contract thereby entitling the respondent to cancel it and tender the sum of $159,300 being the difference.

Following a full trial, the court a quo found that the contract became perfecta when the parties agreed on the thing sold (the merx), the price (pretium) and showed they had the requisite animus to contract.

It was the court a quo's finding, that, the contract was perfected when the respondent accepted the payment for the 150,000 litres of diesel.

Regarding transfer of ownership of the diesel, the court a quo remarked:

“It is evident to me that in the present matter, transfer of ownership of the fuel in question happened by way of constitutum possessorium without actual delivery of the thing and by means of a mere change in the parties intention regarding animus domini. The change in animus in this matter repeatedly took place each time the plaintiff paid for the fuel and the defendant accepted payment for the fuel. By that exchange, the plaintiff acquired ownership in the fuel, when looking at the facts in the present matter means that ownership of the 150,000 litres transferred to the plaintiff in early November 2018.”

Notwithstanding those findings, the court a quo went on to find that the burden for paying for the increase in duty passed to the appellant.

Further, it found that by failing to accept delivery, the appellant repudiated the contract of sale.

In disposing of the matter, other than dismissing the appellant's claim, the court a quo also granted positive relief to the respondent, namely, the cancellation of the contract and the return of the purchase price paid by the appellant.

PROCEEDINGS BEFORE THIS COURT

The appellant remained aggrieved. It noted this appeal on the following grounds of appeal:

1. Having come to the conclusion, that, the contract between the parties had become perfecta and ownership passed to the appellant, the court a quo erred in not concluding that provisions of Statutory Instrument 10 of 2019 were, on the circumstances of the matter, not engaged in that:

(a) The duty chargeable under and in terms of that Statutory Instrument was not meant to, and did not, affect transactions that had already been concluded.

(b) Respondent did not place before the court any evidence tending to show that it had been required to and had in fact paid additional duties on fuel already purchased by the appellant.

2. The court a quo erred, at any rate, in concluding that the increase of duty on future sales was a risk which the appellant was required to bear by operation of law.

3. Consequently, the court a quo erred in not finding that the respondent had breached the agreement between the parties by reason of its failure to deliver diesel that had been purchased by the appellant.

4. The court a quo seriously misdirected itself on the facts, such misdirection amounting to an error in law in not finding, at any rate, that there was no agreement between the parties on the delivery timelines and that the respondent had, at all times, been prepared to effect delivery of the fuel to the appellant.

5. The court a quo erred in granting the respondent positive relief on the basis of averments made in its plea.

The over-arching issue commending itself for determination from the foregoing grounds is whether the appellant's consignment of diesel was subject to additional duty under SI10 of 2019. Also, whether there were any timelines for the delivery of the diesel, and whether the court a quo erred by granting relief to the respondent.

Counsel for the appellant submitted that S.I.10 of 2019 was not applicable in the circumstances of this case, it having come into effect on 13 January 2019 and not having retrospective effect.

In counsel's view, and for that reason, the directive to oil companies given by the Zimbabwe Energy Regulatory Authority (ZERA) only applied to fuel that was still to be sold and not the fuel, like the 120,000 litres of diesel, that had already been sold.

The fuel that had already been sold could not be subjected to further taxation and did not carry such risk.

Counsel submitted, that, the respondent had no business subjecting the appellant's fuel to the directive issued by the Zimbabwe Energy Regulatory Authority (ZERA).

Regarding the applicability of section 230(1) of the Customs and Excise Act, counsel for the appellant took the view, that, the section was not engaged. There was no evidence, so it was argued, that the respondent had been requested to, and did pay, any additional duty as envisaged by section 230(1) of the Customs and Excise Act.

On repudiation, counsel for the appellant submitted, that, the court a quo's findings were not supported by any evidence at all. There was nothing in the conduct of the parties suggesting that delivery was to be made within 72 hours. Neither was there evidence of any delivery timelines or any tender of delivery.

Per contra, counsel for the respondent contended, that, the appellant's reference to S.I.10 of 2019 was not only a false premise, it was also irrelevant. This is because the additional duty was imposed by SI9 of 2019.

In counsel's view, it was a fallacy that the directive by the Zimbabwe Energy Regulatory Authority (ZERA) imposed a duty on fuel.

Counsel further contended, that, section 230(1) of the Customs and Excise Act constituted a term imposed by law which transferred liability to pay duty onto the appellant.

Finding it difficult to defend most of the findings made by the court a quo, which appeared contradictory, counsel for the respondent submitted that the court a quo arrived at a correct conclusion on wrong reasons.

Given that a party does not appeal against the reasons for judgment, so it was argued, the respondent could not do anything about the situation....,.

WHETHER THE COURT A QUO ERRED IN GRANTING POSITIVE RELIEF TO THE RESPONDENT ON THE BASIS OF ITS PLEA

It is curious that the court a quo granted an order in favour of the respondent cancelling the sale and directing the respondent to refund the balance of the purchase price.

That relief was granted on the strength of a plea and nothing more. The respondent had not filed a counter-claim.

The point is made in Indium Investments (Pvt) Ltd v Kingshaven (Pvt) Ltd & Anor 2015 (2) ZLR 40 (S)…, that:

“A plea is a defence, and, as such, can be likened to a shield. It is not a weapon or a sword. No relief can attach to a party through a plea.”

Unfortunately, that is precisely what the court a quo granted in this case.

However just the court a quo may have considered the respondent's tender of the sum of $159,300 to be, it was plainly incompetent for it to ratify it through an unsolicited court order.

Doing so was a gross misdirection.

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

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

FACTUAL BACKGROUND

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

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

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

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

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

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

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

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

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

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

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

“INTERIM RELIEF GRANTED

IT IS ORDERED THAT:

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

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

TERMS OF THE FINAL ORDER SOUGHT

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

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

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

PROCEEDINGS IN THE COURT A QUO

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

The appellant also raised a point in limine....,.

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

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

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

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HB60-19 : JOEL SILONDA vs VUSUMUZI NKOMO
Ruled By: BERE J

On 22 April 2015, the plaintiff issued summons out of this court seeking the following order against the defendant:

“(1) An order confirming null and void the purported agreement of sale signed by the plaintiff and defendant on the 12th January 2010 in respect of Umguza 100 Acre Lot 5A for want of a subdivisions permit at the material time, and, in any event, and in the alternative, for defendant's breach of the terms and conditions of the agreement of sale.

(2) An order for the eviction of the defendant and all those claiming rights after him from Umguza 100 Acre Lot 5A currently occupied by the defendant on the basis of a null and void agreement of sale.

(3) Payment of the sum of US$18,000 being reasonable rental and unjust enrichment arising from defendant's occupation of Umguza 100 Acre Lot 5A from March 2010 to April 2015.

(4) An order for holdover damages at the rate of US$10 per day being reasonable rental for the portion of Umguza 100 Acre Lot 5A currently occupied by the defendant calculated from the 1st May 2015 to date of vacation, both days included.

(5) Costs of suit on a higher scale.”

Upon being served with the summons, and after indicating his intention to defend the action, the defendant, in his plea, flatly denied any form of liability and sought the dismissal of the plaintiff's claim with costs at a punitive scale.

In addition, the defendant counter claimed on the basis of unjust enrichment and sought an order against the defendant in the following terms:

“1. Payment in the sum of US$19,000 together with such payment as will be sufficient to enable the defendant to purchase a property of comparable value including all the improvements he had effected.

2. A refund of all the money used by the defendant in drawing electricity to the plaintiff's homestead and applying for a subdivision permit.

3. Interest on all sums at the prescribed rate of 5% per annum with effect from the date of issue of summons to date of payment in full.

4. Costs of suit at an attorney and client's scale.”

THE FACTS OF THE CASE

The following facts are not in dispute in this case:

By a Deed of Sale signed by both parties on 26 January 2010, the plaintiff sold to the defendant 10 acres of land being part of 100 Acre of Lot 5A, Umguza District on certain terms and conditions outlined in the deed.

At the time the parties signed the agreement of sale, there was no subdivision of the land in question as required by section 40 of the Regional, Town and Country Planning Act [Chapter 29:12], thus rendering the agreement null and void from its inception.

As fate would have it, the parties ran into problems with their agreement, with allegations and counter allegations mounted against each other.

Under cases referenced HC491/11 and HC2828/12 both parties initiated civil action against each other over the invalid agreement.

Confusion reigned.

Both parties ended up withdrawing the civil suits against each other leaving the instant case to resolve their differences and provide some direction.

THE EVIDENCE

The evidence in this trial centred on the testimonies of the two protagonists aided by some documentary exhibits to strengthen each other's position. I proceed to deal with that.

THE PLAINTIFF'S EVIDENCE

The plaintiff, who was aged 94 years at the time he gave evidence in court, was in full control of his faculties and did not seem to show any sign of struggling due to his advanced age.

The witness gave a detailed narrative of his relationship with the defendant, whom he regarded as his “child”. He chronicled how he entered into an agreement of sale (exhibit 1 of Annexure 1) on 26 January 2010. The witness told the court, that, pursuant to the signing of the agreement and the payment of the initial US$10,000 (ten thousand) dollars, he allowed the defendant to commence construction on the purchased property.

He said it was part of the agreement that the defendant would pay expenses related to the processing of the subdivision permit.

The witness said he wanted the defendant to pay him $350 per month as rentals for staying and conducting his farming activities at the plot which was the subject of the sale agreement.

He said when they ran into problems with their agreement, owing to the defendant's failure to comply with their agreement, he wanted him to be evicted from the plot and the defendant's response was to report him to the police.

When the witness's attention was drawn to the fact that the defendant was alleging to have made improvements for which he had been enriched and therefore wanted to be compensated, he said that the improvements had not benefited him and that the defendant was free to destroy such improvements.

The witness confirmed the improvements consisted, inter alia, of two dwelling houses, the second one of which the defendant had constructed against his will. The witness further told the court, that, in installing electricity, the defendant had used substandard poles which got rotten, and, he concluded his evidence in chief by suggesting that the defendant had cheated him.

Under cross-examination from the defendant's counsel, the plaintiff confirmed that he and the defendant had signed the sale agreement in 2010 and that as a result of that, the defendant had carried out visible improvements on the purchased property.

The witness also confirmed, that, other than the sale agreement, he had not signed any lease agreement with the defendant.

When questioned about the borehole on the property, the witness was emphatic that it was him who had sunk it and that all the defendant did was merely to have it flushed.

On further cross-examination, the witness could not dispute that the houses built by the defendant had electricity installed by the defendant.

When the valuations of the improvements done by the defendant were brought to his attention, the plaintiff was unable to challenge same. The best the plaintiff could say on the valuations was;

“He did that on his own volition. I did not tell him to make such developments. There is a letter which says there should be no development until the case is over.”

The plaintiff's cross examination was concluded by an admission, that, when he concluded the agreement of sale with the defendant, he was fully aware that he did not have a sub-division permit.

When his attention was drawn to his arbortive attempt to obtain a subdivision permit in 2000, almost 10 year before signing the agreement with the defendant, the plaintiff denied having applied for such permit, and sought to argue that the only permit he had applied for was for the southern side of his plot.

THE DEFENDANT'S EVIDENCE

The defendant commenced his evidence by highlighting the cordial relationship which he had enjoyed with the plaintiff prior to entering into this agreement of sale with him.

He indicated, that, in order to raise the money to buy this particular plot, he had to dispose of his smaller 6 acre piece of land. The defendant told the court, that, after paying the initial agreed sum of US$10,000 (ten thousand United States Dollars), he embarked on the construction of his cottage which was subsequently followed by the main house and electrification of same.

The defendant testified on the difficulties that he had with the plaintiff which were centred on the latter's refusal to receive part of the payment owing to delay.

The defendant, said, owing to the frustrations which he faced as a result of the refusal by the plaintiff to accept payment, he ended up initiating legal proceedings against the plaintiff for breach of contract.

The plaintiff also confirmed the civil suit commenced against him by the defendant and its ultimate withdrawal.

The defendant testified, that, all in all he paid the plaintiff a total of US$19,550 (nineteen thousand five hundred and fifty United Stated Dollars) toward the agreement.

The defendant's further evidence was that he only became aware of the absence of the subdivision permit much later, and when he was well into the agreement, as a result of which he gave the plaintiff US$80 for the facilitation of the permit.

The defendant further stated, that, when he eventually got the subdivision permit, through the plaintiff's legal practitioners, it turned out to be a fake or not authentic document.

He insisted that other than paying for its processing, he had no input into its production and flatly denied ever being involved in the fraudulent acquisition of the sub-division permit.

In his further evidence in chief, he gave a detailed account of the various improvements he made at the “purchased” property and the numerous demands for his eviction made against him by the plaintiff.

The witness said he was prepared to move out of the property as long as he was fully compensated for the improvements made. In his own words, the defendant stated the following as regards his counter claim;

“May the court order that the plaintiff compensates, the reason being that I constructed my house after he had given me permission to do so. I constructed two houses and he was watching me do so. If he says I should vacate the piece of land I will do so by removing what I put there to enable me to construct again at a different place. If he does not end up a destitute or a person of no fixed abode.”

When questioned during his evidence in chief to indicate the improvements he made, the following is what he stated:

“First and foremost, I built a three-bedroomed house (cottage), and, secondly, a three bedroomed main house. I pulled electricity to the house. On that Stand was a dry borehole. I got a company which flushed the borehole. I then bought the pump and the jojo tank which I fixed for the storage of water. That is the water that we are using. The rest of the things have their valuation.”

The witness went further to give the three valuations of the improvements he carried onto the property which he averaged to come up with a figure of US$97,833=33.

The witness emphasized that he had invested all his resources on the property and maintained that if he did not get compensated for such improvements he would end up having no fixed abode.

The defendant was taken through cross examination, part of whose thrust was to challenge him why his (defendant's) lawyer had not suggested to the plaintiff that he was lying, if at all he was misleading the court during his testimony. Part of the exchanges which caught the court's attention and require emphasis went along the following:

“Q: You accept now that this land has always belonged to plaintiff until today?

A: Yes.

Q: You appreciate that the plaintiff's claim is based on you being unjustly enriched and him being unjustly impoverished?

A: I realize he was unjustly enriched. I paid some money towards the property to the plaintiff following our sale agreement.

Q: What do you want from the plaintiff?

A: I want him to reimburse me for the expenses I incurred on that piece of land so that I am able to get another place to stay with my children since he pretended as if he was selling me that piece of land, he knew I would never get any title deed in respect of that land…,.

Q: Your claim is based on unjust enrichment?

A: Yes.

Q: You heard him say he has no use of such improvements?

A: Yes, I heard him say so but he is going to use them. The structures are on his piece of land which he pretended to be selling. There is electricity which he will use. If he did not want the houses, he could not have allowed me to construct them….,.

Q: Your bundle, you have put in several receipts from pages 90-102 to support your expenditure. All these are from September 2010. These were incurred at a time plaintiff told you to stay away from his land and to keep your money?

A: We had entered into an agreement of sale.”

When it was suggested to the witness that he was supposed to be paying rentals to the plaintiff, the defendant denied ever entering into a lease agreement with the plaintiff, but rather a sale agreement.

In conclusion, the defendant said that the valuation reports that he submitted had collectively dealt with the improvements he made and for which he was claiming to be paid.

ASSESSMENT OF EVIDENCE

At a joint pre-trial conference (record pp56-58), held by the parties, the parties narrowed their contentious issues to the following:

(1) Whether or not the plaintiff is entitled to a reasonable rental arising from the defendant's unauthorized/authorized occupation of the property in dispute.

(2) Whether or not the defendant has been unjustly impoverished and the plaintiff unjustly enriched as a result of the alleged developments made by the defendant upon the disputed part of the land, and, if so, the quantum thereof.

It is with these issues in mind that I proceed to consider the evidence tabled in this court.

Is the plaintiff entitled to reasonable rentals

The evidence which is not in dispute is that the defendant took occupation of the property in issue pursuant to a sale agreement, which sale turned out to be null and void or invalid owing to its non-compliance with the mandatory provisions of sections 39(1)(b)(i) and 40 of the Regional, Town and Country Planning Act [Chapter 29:12].

The sale agreement entered into by the parties is self-explanatory and it is too ambitious, if not too generous, to read into the agreement that it could, at any stage, be turned into a lease agreement to provide for a basis for the plaintiff to claim rentals.

It cannot possibly be the correct position, as stated by the plaintiff in his declaration, that:

“In or about March 2010, Defendant forcibly occupied a portion of Umguza 100 Acre Lot 5A….,.”

This averment is clearly not borne out by the overwhelming evidence in this court which speaks to the defendant's occupation as informed by the agreement of sale.

The fact that under case HC2828/12 the plaintiff initiated a civil suit against the defendant to force compliance with the sale agreement cements the existence of the agreement of sale between the parties.

The argument is simply, that, if in 2010, the defendant had forced himself onto the plaintiff's property, there would have been no need for the plaintiff to try and enforce compliance with some agreement in 2012 - two years down the line.

The plaintiff, in his own testimony, confirmed that the defendant only took occupation of the plot pursuant to an agreement.

What cannot be disputed is that subsequent to the defendant's occupation, the agreement ran into challenges. Despite this, these challenges did not in any way change the defendant from being a purchaser to a tenant.

The parties were fully conscious of what they wanted when they entered into this agreement.

It is not for this court to re-write the contract for the parties.

As was observed by the Supreme Court in the case Magodora and Others v Care International Zimbabwe 2014 (1) ZLR 397 (S)…,:

“It is not open to the courts to write a contract entered into between the parties or to excuse any of them from consequences of the contract that they freely and voluntarily accepted, even if they are shown to be onerous or oppressive. This is so a matter of public policy. Nor is it generally permissible to read into the contract some implied or tacit term that is in direct conflict with its express terms.”

For these reasons, the court is not prepared, for whatever reasons, to convert or to read into a simple sale agreement, a lease agreement.

One gets the obvious impression that reference to the defendant's alleged forced occupation of the property was slotted in as a desperate attempt to justify a claim for rentals by the plaintiff.

The averment clearly lacks merit and it is not sustainable.

Has the defendant been unjustly enriched at the expense of the plaintiff

This enquiry is intricably linked to the existence or non-existence of a lease agreement.

I have already made my position clear, that, the plaintiff is not entitled to any rentals flowing from a lease agreement because no such agreement ever existed or can be inferred from the evidence led in this court. If anything, the evidence shows, beyond doubt, that, it is in fact the plaintiff who has been unjustly enriched and the defendant impoverished in the process.

It is not in dispute, that, pursuant to the sale agreement the defendant paid a total of $19,550 towards the fulfillment of that agreement. The $19,000 was for the purchase of the land and $550 was paid towards the facilitation of the subdivision of the sold piece of land when the defendant realized that he had been sold the land in violation of the mandatory provisions of the Regional, Town and Country Planning Act.

The defendant's evidence in support of this payment was not challenged by the plaintiff.

In fact, in his declaration filed in this court on 22 April 2015, the plaintiff made an unsolicited offer to refund the defendant US$19,000 on monthly instalments of US$395.

The defendant's claim is built in his counterclaim filed in this court on 24 June 2015.

In that counter-claim, the defendant states that he made a number of improvements which would prejudice him if they were to accrue to the plaintiff without him being compensated.

In his closing submissions, the plaintiff's counsel criticized the defendant's pleadings and commended as follows:

“Of significance is that in paragraph 5 above defendant did not specifically allege that the alleged improvements have resulted in plaintiff being enriched.”

I accept the position taken by the plaintiff's counsel, that, the defendant's pleadings, especially in the counter claim, were poorly drafted. They lacked elegance. They could have been drafted in a much better way.

However, I do not accept that when the defendant's case is looked at holistically, the alleged defects in the pleadings can be raised to the level of fracturing his case. This is because the defects were cured by the overwhelming evidence in support of the defendant's case.

The defendant's uncontroverted evidence was that pursuant to the agreement of sale (which turned out to be invalid), he had poured substantial resources on the plaintiff's property. In the process, the plaintiff ended up being enriched and the defendant impoverished and that the defendant wanted to be compensated for this.

This was the basis of the defendant's claim, and even the plaintiff's counsel fully understood this as demonstrated by the tone and nature of his cross-examination of the defendant.

It is therefore not sustainable for counsel to argue that the defects in the pleadings must lead to the collapse of the defendant's case.

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HH209-19 : ELLIOT RODGERS vs PUWAYI CHIUTSI and TENDAI MASHAMAHANDA and REGISTRAR OF DEEDS and SHERIFF OF ZIMBABWE and BARIADE INVESTMENTS (PVT) LTD and LAW SOCIETY OF ZIMBABWE
Ruled By: MANZUNZU J

The court cannot grant that which has not been asked for.

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HH606-18 : NMB BANK LIMITED vs FORMSCAFF (PVT) LTD and PENNIWILL (PVT) LTD and RODNEY GALLAGHAN and MILLICENT GALLAGHAN and CHARLES CANNINGS and CLIFFORD JOHNSON and LESLEY BENNET
Ruled By: MUZENDA J

In the matter of Mining Industry Pension Fund v DAB Marketing (Pvt) Ltd SC25-12, MAKARAU JA said that:“The importance of the admission is that it is thus seen as limiting or curtailing the procedures before the court, in that, where it is not withdrawn, it is binding on the court, ...

Appealed
SC95-21 : UPENYU MASHANGWA and BLESSING MASHANGWA vs EMMANUEL MAKANDIWA and RUTH MAKANDIWA and UNITED FAMILY INTERNATIONAL CHURCH
Ruled By: GWAUNZA DCJ, MAKONI JA and BERE JA

This is an appeal against the whole consolidated judgment of the High Court dismissing the appellants application in HC4197/18 and granting the respondents application in HC1774/18.FACTUAL BACKGROUNDThe appellants are husband and wife and were, at one point, members of the United Family International Church (“UFIC”), the third respondent in casu.The ...

This is an appeal against the whole consolidated judgment of the High Court dismissing the appellants application in HC4197/18 and granting the respondents application in HC1774/18.

FACTUAL BACKGROUND

The appellants are husband and wife and were, at one point, members of the United Family International Church (“UFIC”), the third respondent in casu.

The first and second respondents are also husband and wife and are the leaders (prophet and prophetess, respectively) of the United Family International Church (UFIC).

In the court below, the appellants instituted an action against the respondents, under HC7214/18 claiming a total sum of US$6,535,000 to be paid jointly and severally, the one paying the others to be absolved, broken down as follows:

“(a) Damages for US$700,000 being the value of property number 14 Edinburgh, Marlborough, Harare.

(b) A refund of the sum of US$1,698,000 for misrepresentation.

(c) US$37,000 being refund for fees paid to Tichaona Mawere.

(d) An amount of US$1,100,000 being a refund paid to the defendants.

(e) An amount of US$2,000,000 being damages for fraud and misrepresentation.

(f) An amount of US$500,000 being damages for mental anguish.

(g) US$500,000 being damages for defamation of character. (sic)

(h) Payment of interest on the sums in (a) to (g) above at the prescribed rate from the date of demand to the date of full and final payment.

(i) Payment of costs of suit on a legal practitioner and client scale.”

The claims were particularised in the declaration as summarised hereunder:

CLAIM ONE

In 2012, and during church proceedings, the first and second respondents fraudulently misrepresented to the appellants “that anyone with a bank debt or loan was to be cancelled as it was a season of miraculous cancellation of debts.” (sic)

It is alleged, that, this followed after the respondents had been 'privately' informed that the appellants had an existing ZB Bank loan in the sum of US$500,000.

As a result of this misrepresentation, the appellants were induced not to pay back the loan, and, as a consequence, the Bank executed on their immovable property thus causing them to lose a property worth US$700,000.

CLAIM TWO

In the same year, the respondents misrepresented in church, that, one Tichaona Mawere (Mawere) “was a great lawyer and that he would not lose a case” when in fact he was not a registered legal practitioner.

Acting on the misrepresentation, the appellants instructed the said Tichaona Mawere (Mawere) to handle their matter for a claim of US$1,698,000 and expended fees in the sum of US$37,000. Mawere produced fake court orders resulting in them making a loss to the tune of US$1,735,000.

CLAIM THREE

That, in the period ranging from 2014 to 2016, the appellants were called on stage in church. The respondents would announce that the appellants “were a successful example in the Ministry.”

Acting on these “misrepresentations” the appellants made various direct contributions amounting to US$1,100,000 to the respondents. The respondents would represent “that, in so contributing, the plaintiffs (the appellants) would reap what was commensurate with their contributions.”

CLAIM FOUR

The appellants were again paraded in church on stage “as a chosen people by God to have succeeded in business.”

As a result of that further “misrepresentation” the appellants marketed the respondents prophecies for the advancement of the respondents interests and “their prophesies as the success story of the prophesies.” In the process, the appellants were prejudiced to the tune of US$2,000,000.

CLAIM FIVE

Before the amendment, which I shall deal with later, the claim was that “the defendants (the respondents) caused damages through defamation (sic) by publishing false articles against the plaintiffs and their business activities; articles claiming that the plaintiffs perfumes cause cancer.”

CLAIM SIX

The appellant's claimed that “the defendants caused mental anguish to the plaintiffs, emotional embarrassment and torture by exposing the plaintiffs private lives on the defendants Facebook online page 'The Truth About Prophet Makandiwa.'”

It was further averred, that, the information had been given to the respondents “in private” and the statements were meant to destroy their reputation.

Upon being served with the summons, the respondents entered an appearance to defend.

They further addressed a letter to the appellants, in terms of Rule 140 of the High Court Rules 1971 (the Rules), to the effect that the claims in question were vague and embarrassing and that they did not disclose a cause of action.

It was averred that it was not clear whether the appellants were suing in terms of Contract or under the Law of Delict, and, as regards claims five and six, whether the claims were made under defamation or injuria.

The appellants did not respond to this letter.

Consequently, the respondents filed an exception to the appellants summons and declaration.

The exception was dismissed on 12 January 2018 by MANGOTA J who ordered that the appellants amend their declaration in respect of claims five and six, that the respondents file their plea, and that the matter proceeds in terms of the Rules.

As directed, the appellants amended their declaration in respect of claims three, five, and six.

CLAIM THREE

It was amended by the addition of paragraph 20.1.

It was claimed, that, upon being confronted by the appellants, the respondents undertook to repay the appellants all the money they had contributed upon proof of such payment. Despite being furnished with the proof, the respondents have refused or neglected to pay in accordance with their undertaking.

CLAIM FIVE

It was amended by deleting the original claim and substituting it as summarised below:

The appellants were in the business of manufacturing and selling perfumes. On or around 16 August 2016, and after the fallout between the appellants and the respondents, the respondents caused to be published an article in the Herald Newspaper in which they said:

“You just need one person who can move around telling people that your perfumes can cause cancer and the news begins to spread; your company will begin to go down.” (sic)

“The statement was false and the respondents intended to spread a rumour and thereby injure the appellants in their trade. In view of the close relationship between the parties before the fallout, the words of the respondents caused a rumour to spread that the appellants perfumes cause cancer. As a result of the statement, and the subsequent rumours, the public desisted from purchasing appellants perfumes. Consequently, the appellants, through their company, ceased to manufacture the perfumes. The appellants suffered damages due to the respondents wrongful conduct in the sum of USD$500,000.”

CLAIM SIX

The original claim was deleted and substituted with a claim summarized as follows:

On or about 2 February 2017, the respondents caused to be published on their Facebook page titled “The truth about Emmanuel Makandiwa” private and intimate details of the appellants which they had received in confidence. The publication of the details was wrongful and was done with an intention to injure the appellants standing in society, and was done in the wake of the fallout between the parties. Appellants suffered damages, as a result of the unlawful intrusion into their private lives, in the sum of USD$500,000.

Following the dismissal of the exception, and, on 23 February 2018, the respondents filed an application for the dismissal of the appellants claims in toto in terms of Order 11 Rule 75 of the High Court Rules, under HC1774/18.

The respondents, having failed to prosecute their application under HC1774/18 timeously, the appellants filed a chamber application for dismissal of the same for want of prosecution in terms of Rule 236(3)(b) of the High Court Rules, on 8 May 2018, under HC4197/18.

Since both matters were set down for hearing at almost the same time, and, before different judges, a request was made for their consolidation and it was granted.

DETERMINATION BY THE COURT A QUO

The court' s approach was to determine the application in terms of Rule 236(3)(b) of the High Court Rules under HC4197/18 first.

It opined, that, if it granted the relief being sought by the appellants that would be the end of both matters. If it dismissed the application, then, it would proceed to hear the respondents application in terms of Rule 75 of the High Court Rules, under HC1774/18, which it coined the main matter.

Regarding the application for dismissal for want of prosecution, the court found that the reasons proffered for the delay in prosecuting the matter were reasonable. It also stated that it had a discretion to discharge the application or make any other order as it deemed fit in the circumstances.

In the result, the application for dismissal for want of prosecution was dismissed and the court ordered that the main matter be heard on the merits.

Pertaining to the issue of the dismissal of the appellants claims, in terms of Rule 75 of the High Court Rules, the court a quo dealt with each of the appellants claims in turn.

It found, that, the appellants claims were frivolous and vexatious and warranted summary dismissal.

Aggrieved by the decision of the court a quo, the appellants noted an appeal to this Court. This is the appeal that this Court is seized with.

GROUNDS OF APPEAL

“1. The court a quo erred and misdirected itself in that having found that respondents had, by their admission, failed to prosecute their cause within the prescribed period, it ought to have dismissed for want of prosecution; no special circumstances existing to exercise a discretion in their favour.

2. The court a quo grossly erred and misdirected itself in that a prior judgment of the High Court, in HH10-18, having established that a valid and substantiated cause of action based on fraud existed between the parties, it could not render otherwise.

3. A fortiori the court a quo effectively reviewed and contradicted an extant earlier judgment of a judge of parallel jurisdiction on the same cause, between the same parties, contrary to the principles of res judicata and issue estoppel.

4. The court a quo further erred and misdirected itself in finding, contrary to law, that, fraud and fraudulent misrepresentation did not constitute a valid cause of action at law; subsequently, the court a quo erred in failing to find that the question of whether fraud and its constituent elements had been proven was an evidentiary issue reserved for trial.

5. The court further grossly erred and misdirected itself in determining the matter regardless of conflicting material averments which could not be resolved on affidavit a fortiori, it could not find as a matter of fact that the claims by the appellants were frivolous and vexatious, absent evidence and its testing in contested action proceedings....,.

Regarding grounds four and five, the court, at the outset during the hearing, enquired of counsel for the appellants whether these grounds had been abandoned as they had not been motivated in the Heads of Argument.

In response, counsel for the appellants advised, that, none of the grounds were being abandoned.

On being asked to direct the court to where these grounds were motivated, he directed the court to paragraph 15 of the appellants Heads of Argument. This is what paragraph 15 states;

“Even if the court per TAGU J could revisit the question, it still did so wrongly and wrongfully. That there is a valid cause of action is beyond doubt. The law allows refunds and reimbursements for unlawfully paid funds. As a result, there cannot be argument that no cause of action can arise.”

The argument advanced in this paragraph completely misses the respondents position.

It is not that there is no cause of action. It is that the appellants pleaded falsehoods and that they could never succeed at trial on the facts as pleaded. Their action was therefore frivolous and vexatious.

The paragraph also misconstrues the finding of the court a quo.

Nowhere in the judgment a quo is it stated that a misrepresentation did not constitute a valid cause of action.

The court a quo examined each claim separately and gave reasons as to why it found each claim to be frivolous and vexatious. The crisp finding of the court a quo, in respect of each claim, was that on the facts as pleaded by the appellants, no competent cause could be sustained.

By way of illustration, in Claim One, the appellants alleged that the respondents alleged that they stopped paying the loan that they had obtained from ZB Bank on the basis of a prophecy made by the respondents to the effect that it was “a season of miraculous cancellation of debts.”

It could not, on the facts as pleaded by the appellants, be established through a deeds search at the Registrar of Deeds office that the appellants owed ZB Bank Limited USD500,000 and that the property they allegedly lost was bonded in favour of ZB Bank for that amount.

It could not be supported, factually, through a search carried out in the Civil Registry of the High Court that ZB Bank sued the appellants for USD500,000 between 2012 and 2017 as alleged, and that the property in question was attached or sold in execution as alleged or at all at the instance of ZB Bank Limited.

The reality on the ground, which the appellants never controverted, was that the property was at all material times owned by Carmeco Investments (Private) Limited (Carmeco) a separate persona from the appellants in terms of Deed of Transfer No.10763/2002 dated 24 September 2002.

In that regard, the law relating to companies applies with full force and effect.

The appellants cannot claim to have been prejudiced in respect of what they did not own.

In any event, as early as 29 February 2012 Carmeco Investments (Private) Limited had sold the property for USD800,000 to Nemajo Family Trust as represented by Steward Nyamushaya. The purchase price thereof was paid in full through the appellants agents, McDowells International (Private) Limited.

At no time did it appear from the deeds search that Carmeco Investments (Private) Limited, which owned the property, mortgaged number 14 Edinburgh Road, Marlborough to ZB Bank Limited for the sum of USD500,000 during the period 2012 to 2017.

The above illustration clearly demonstrates that the appellants pleaded falsehoods.

In their notice of opposition to the application, the appellants did not controvert these facts.

They contended, that, they did not have to reply to the evidence submitted by the respondents as it was a matter of evidence to be related to at trial.

They overlooked the fact, that, in terms of Rule 75(2) and (3) of the High Court Rules a party making an application in terms of subrule (1) is required to do two things:

(i) Firstly, he or she shall file an affidavit in which he sets out his belief that the action is frivolous and vexatious and the grounds for his belief.

(ii) Secondly, he or she may attach documents which verify his or her belief that the matter is frivolous and vexatious.

Once that information has been placed before the court, it should be incumbent upon the other party to controvert it.

In casu, the appellants did not do so. Rather, they directed their energy to a vitriolic attack on the respondents instead of addressing the requirements of Rule 75 of the High Court Rules.

Having misconstrued the court a quo's finding, grounds of appeal four and five must fail.

View Appeal
HH40-19 : UPENYU MASHANGWA and ANOR HC4197/18 and EMMANUEL MAKANDIWA and OTHERS HC1774/18 vs EMMANUEL MAKANDIWA and RUTH MAKANDIWA and ANOR and UPENYU MASHANGWA and ANOR
Ruled By: TAGU J

The basis of issue estoppel is an admission of facts or a failure to deny the facts alleged in pleadings that deals with facts such as a plea on the merits.

View Appeal
HH40-19 : UPENYU MASHANGWA and ANOR HC4197/18 and EMMANUEL MAKANDIWA and OTHERS HC1774/18 vs EMMANUEL MAKANDIWA and RUTH MAKANDIWA and ANOR and UPENYU MASHANGWA and ANOR
Ruled By: TAGU J

The two matters were consolidated to avoid conflicting judgments as the two matters involving the same parties, and same issues, were ready for arguments at almost the same time before different judges.

At the hearing of the two matters, counsels for the parties did not make oral submissions but agreed that the two matters be decided on the papers filed of record.

The following is the background to the two matters.

Upenyu and Blessing Mashangwa (the Mashangwas) are husband and wife respectively. They are members of the United Family International Church (UFIC).

Emmanuel and Ruth Makandiwa (the Makandiwas) are also husband and wife respectively. The Makandiwas are leaders (prophet and prophetess respectively) of United Family International Church (UFIC).

In case HC7214/18 the Mashangwas filed summons in this Honourable Court containing six claims against the Makandiwas and the United Family International Church for a total sum of US$6,535,000 to be paid jointly and severally, the one paying the other to be absolved.

In their declaration, the Mashangwas claimed that:

(1) In the year 2012, at Harare, and in church, the Makandiwas fraudulently and misrepresented to the Mashangwas that anyone with a bank debt or loan was to be cancelled as it was the season of miraculous cancellation of debts after the Makandiwas were informed, privately, that the Mashangwas had an existing ZB Bank loan to the tune of US$500,000.

As a result of the misrepresentation, the Mashangwas were induced not to pay the ZB Bank loan, and, in the result, the Bank executed on the Mashangwas property being 14 Edinburgh Road, Harare for $500,000 thereby losing their house valued at $700,000.

(2) In the same year, the Makandiwas misrepresented, in church, that one Tichaona Mawere was a great lawyer who would not lose a case, when, in fact, Mr Tichaona Mawere was an unregistered legal practitioner.

Acting on the misrepresentation, the Mashangwas handed over their McDowell file to the said Tichaona Mawere for a claim of US$1,698,000 and expended in fees an amount of US$37,000. Tichaona Mawere then produced fake court orders and the Mashangwas lost a total sum of US$1,735,000.

(3) In the years ranging from 2014 to 2016, the Mashangwas were called on stage, in church, by the Makandiwas and were announced as a successful example in their Ministry (UFIC).

Acting on this misrepresentation, the Mashangwas made various direct contributions to the Makandiwas and the church money amounting to US$1,100,000.

(4) The Mashangwas were also paraded in church, on the stage, by the Makandiwas, as the chosen people by God to have succeeded in business.

As a result of the misrepresentation, the Mashangwas marketed the Makandiwas prophecies to the tune of US$2,000,000.

(5) and (6) In claims (5) and (6), they alleged that the Makandiwas defamed them thereby destroying their reputation and causing monetary loss to the tune of USD500,000.

Having been served with the summons, the Makandiwas entered appearance to defend the claims.

They proceeded to address a letter, in terms of Rule 140 of the High Court Rules 1971, to the Mashangwas pointing out that the claims were vague and embarrassing and that they did not disclose a cause of action, and asked whether they were suing in contract or delict; and, as regards claim (5) and (6) asked whether the claims were in defamation or injuria.

The Mashangwas did not respond to the letter, causing the Makandiwas to file an exception on 30 August 2017 to the Mashangwas pleadings in terms of Order 21 Rule 137(1)(b) in case HC7214/18.

The exception was heard on 6 November 2017 by MANGOTA J in respect of all the six claims but was dismissed on 12 January 2018 and the Mashangwas were ordered to amend their declaration in respect of claims (5) and (6), and, the Makandiwas to plead, and thereafter, the matter was to proceed in terms of the High Court Rules 1971.

However, after the dismissal of their exception, the Makandiwas filed another court application on 23 February 2018 for the dismissal of the Mashangwas claims in terms of Order 11 Rule 75(1) of the High Court Rules 1971 in HC1774/18.

The Mashangwas, having felt that the Makandiwas had neglected or failed to timeously prosecute the court application which they instituted under case HC1774/18, filed a chamber application for dismissal on 8 May 2018 under HC4197/18.

Both applications were ready for hearing at almost the same time, before different judges, hence the consolidation of the two applications.

ISSUES FOR DETERMINATION

This court is therefore being asked to decide two issues simultaneously:

(i) The first issue is whether the Makandiwas application should be dismissed for want of prosecution as prayed for by the Mashangwas in HC4197/18.

In the event of this court granting the relief asked by the Mashangwas, this would be the end of the matters and this court will not deal with the Makandiwas application.

(ii) However, in the event that this court dismisses the Mashangwas application for dismissal, the court will proceed to deal with the second issue pertaining to the Makandiwas application for dismissal of the Mashangwas claims in the main case under HC7214/17....,.

SHOULD MAIN MATTER BE DISMISSED IN TERMS OF ORDER 11 RULE 75(1) OF THE HIGH COURT RULES

After the dismissal of their exception in HC7214/17 the Makandiwas pleaded to the main case and filed this application for summary dismissal of the principal case as being frivolous and vexatious in terms of Order 11 Rule 75(1) of the High Court Rules 1971 (the Rules).

The principal case contained the six claims brought against them by the Mashangwas as outlined above. I shall endeavor to deal with each of the claims where possible.

Suffice to state, at this stage, that Rule 75 of the High Court Rules provides that:

“75 Application for Dismissal of Action

(1) Where a defendant has filed his plea, he may make a court application for the dismissal of the action on the ground that it is frivolous or vexatious.

(2) A court application in terms of subrule (1) shall be supported by affidavit made by the defendant or a person who can swear positively to the facts or averments set out therein, stating that in his belief the action is frivolous or vexatious and setting out the grounds for his belief.

(3) A deponent may attach to his affidavit, filed in terms of subrule (2), documents which verify his belief that the action is frivolous or vexatious.”

In their supporting affidavits, the Makandiwas prayed that the principal case must accordingly be summarily dismissed pursuant to Rule 75(1) of the High Court Rules, and contended, among other things, that the action in the principal case is not only both frivolous and vexatious, but also a self–evident gross and contemptuous abuse of the process of this court on the bases that -

“1. The plaintiffs have deliberately pleaded and founded their purported causes of action on deliberate and easily demonstrable falsehoods;

2. Each of the six (6) claims suffers from predictable failure and so groundless that no reasonable person could ever hope to obtain relief therefrom;

3. The principle case has not been brought with the bona fide intention of obtaining relief;

4. The proceedings have been brought with the sole and mala fide intention of annoying and harassing us. It as such amounts to the unmitigated abuse and contempt of this court and the process thereof; and

5. The principal case is inconsistent with reason and common sense, and, as such, unworthy of serious consideration.”

The respondents (the Mashangwas) opposed the application. They took seven points in limine. The points were:

(1) Matter passed in rem judicatam;

(2) Estopel;

(3) Disputes of fact;

(4) Unlawful reversal of order of proceedings;

(5) Attempt to avoid the consequences of a valid acknowledgement;

(6) Mala fides and abuse of court process; and

(7) Provisions of the Rules not available to applicants.

On the merits, they contended, among other things, that, Mr Makandiwa is a common fraudster, a false prophet who has no relationship with God, is a liar who lied about a lawyer called Tichaona Mawere, and many other ills....,.

AD MERITS

The Makandiwas filed this application in terms of Rule 75(1) of the High Court Rules 1971 for the summary dismissal of frivolous and vexatious action proceedings instituted by the Mashangwas in an action pending before this court under case number HC7214/17.

The respondents made six claims.

Their cause of action in claims 1-4 is said to fall into the delict of fraud. The fifth claim is said to relate to the delict of injurious falsehoods. The sixth claim has been held to fall under the delict of injuria.

A common thread runs through these claims.

They plead that they were members of the third applicant (United Family International Church), a Christian Church founded by the first and second applicants (Emmanuel Makandiwa and Ruth Makandiwa). They further allege that they either received prophesies or representations in church or that certain injurious publications were made of and concerning them or their business. Hence, they claimed various sums all aggregating to a staggering six and a half million United States Dollars.

The applicants pleaded to each of the six claims. They denied the allegations.

Their pleas were filed in contemplation of the present application for dismissal.

The applicants placed before the court a detailed verifying affidavit that traversed and attached incontrovertible evidence which they said exposed the falsity of the facts pleaded by the plaintiffs in their declaration.

The applicants, thereafter, filed the present application for the dismissal of the suit as frivolous and vexatious.

The application is strongly opposed by the respondents.

THE LAW

Rule 75 of the High Court Rules allows a defendant, who has pleaded, to apply for the summary dismissal of the action on the grounds that it is vexatious.

The defendants must, on notice of motion, positively swear to the facts and verify their belief that the action is vexatious and deserving of summary dismissal.

The purpose of this procedure is the same as that of the procedure for summary judgment or provisional sentence.

The court, if satisfied, has the inherent jurisdiction to disallow and dismiss proceedings that are frivolous or vexatious: see Ushewokunze Housing Co-oporative Society Limited v Crest Breeders International (Private) Limited HH529-16; Rogers v Rogers & Another 2008 (1) ZLR 330…,.; and S v Coopers & Others 1977 (3) SA 475…,.

The test to be applied can be explained in no better words than those of MAKARAU JP…, in Stationery Box (Pvt) Ltd v Natcon (Pvt) Ltd & Anor HH64-10 as follows:

“The test to be applied in summary judgment applications is clear and settled. The onus resting on a defendant resisting summary judgment has been described as amongst the lightest that the rules of procedure cast on the litigants. He does not have to prove his defence. He must merely allege facts, which, if he can succeed in establishing them at the trial, would entitle him to succeed in his defence.

The defence so set up must, however, be plausible and bona fide.

Obviously implied in this test, but oft overlooked by legal practitioners, is that the defendant must raise a defence. The facts alleged must lead to and establish a defence that meets the claim squarely. If the facts that he alleges, fascinating as they may be and which he may very well be able to prove at the trial of the matter, do not amount to a defence at law, the defendant would not have discharged the onus on him and summary judgement must be granted.

To defend a claim arising out of a contract of sale, the purchaser must attack either the existence of the agreement itself or the fact that the goods sold were not delivered to him. If other defences are raised, they must be raised explicitly. It is not the function of the court to put words into the defendant's mouth and thereby establish a possible defence on his behalf when the defendant fails to do so in his opposing affidavit.”

In the present case, the respondents ultimately denied any liability to the plaintiffs.

This application, therefore, turns on the law of summary dismissal of cases on the basis that they are frivolous and vexatious.

Order 11 Rule 75(1) of the High Court Rules, which provides for this procedure, states that the defendant may make an application for the summary dismissal of the case, after filing of his plea, on the grounds that it is frivolous and vexatious.

My sole duty is to determine whether or not the claims are frivolous and vexatious....,.

CLAIM THREE

Claim Three is based on the fact, that, from the year 2014 to 2016, the Mashangwas were called on stage, in church, and were announced as a successful example in their Ministry, United Family International Church (UFIC), and, as a result, they made direct contributions to the church amounting to $1,100,000.

The gravamen of this claim is that the respondents lost the sum of USD$1,100,000 as a result of the representation made by the applicants: in short, they are saying if the applicants had not paraded them in church as a successful example in the Ministry they would not have made contributions to the church.

Contributions are generally known as tithes and offerings.

Tithes and offerings are biblical concepts recorded as early as the Book of Genesis. Tithes and offerings are acts of worship that edifies the relationship between the person who gives the offering and God. They are predicated on the believer's faith and are not enforced. They are free will offerings given in all the Christian Churches. Tithes and offerings constitute 10% of the giver or offeror's income, though, in practice, not all believers give the exact 10%. Only in certain churches is the 10% enforced by forcing the followers to declare their incomes from which the 10% is calculated.

If the respondents allegation is true, which may be so given that they are business people, then, their income during the period in question exceeded USD$11,000,000, and, if they believed the representation made by the applicants, that they are a successful example in the Ministry, they willingly parted with an amount of USD1,100,000.

However, what makes the claim frivolous and vexatious, in my view, is the fact that if ever the respondents parted with such kind of money inside the third applicant, United Family International Church (UFIC), those were free will offerings not recoverable from anyone - unless the respondents wish to try the impossible and get that from God, the receiver of the offerings.

How they hope to get a court to interpret scripture and say one reading is preferable to another in the Holy Bible remains a mystery.

In casu, the respondents admitted, in their pleadings, that the tithes they gave cannot be returned.

Having made that admission in pleadings, the admission thereof had fatal consequences to their case. The admissions are conclusive proof of the admitted fact and the respondents are, at law, precluded from controverting it.

This is our law.

See DD Transport (Pvt) Ltd v Abbort 1988 (2) ZLR 92 (SC); Moresby–White v Moresby White 1972 (3) SA 222 (RA).

This claim..., is frivolous and vexatious and is summarily dismissed....,.

CLAIM SIX AS AMENDED

Lastly, the crux of this claim is an allegation by the respondents to the effect that the applicants violated their privacy when they published information communicated to them in private on their Facebook page “The Truth About Makandiwa.”

The respondents claim a staggering USD500,000.

What has not been controverted by the respondents is the fact, that, the Facebook page in question does not belong to the applicants nor does it represent the applicants views.

In fact, the Facebook page contains some information that denigrates the first applicant (Emmanuel Makandiwa).

This fact, from the papers, is deemed admitted by the respondents: see Rule 104 of the High Court Rules 1971.

Further, the date, nature, and extent of the material given to the first applicant in private and confidence has not been pleaded but is said to be certain information of a private nature, which the respondents said they would say at the trial, rendered such pleadings defective, and, under any circumstances did not find any cause of action.

This is in variance with the law as stated in the case of International Tobacco Co. of SA Ltd v Wollheim 1953 (2) SA 603 (A)…, where the court said:

“It appears to be clear that the plaintiff, in his declaration, must set out the words alleged to have been used and may not content himself with giving their effect. It is for the court to decide what their effect is.”

The sixth claim is, on the pleadings, so patently groundless that the respondents cannot ever hope to succeed in obtaining relief on hence should be summarily dismissed as being frivolous and vexatious.

SC85-22 : BERNARD MUTANGA vs TSITSI MUTANGA
Ruled By: MAVANGIRA JA, UCHENA JA and MUSAKWA JA

A court is enjoined to determine all issues placed before it unless the issue that it determines to the exclusion of other issues is dispositive of the dispute before it: see the case of Longman Zimbabwe (Pvt) Ltd v Midzi and Others 2008 (1) ZLR 198 (S).According to the decision ...

SC88-22 : LOT SYATIMBULA vs CITY OF VICTORIA FALLS (FORMERLY VICTORIA FALLS MUNICIPALITY)
Ruled By: GWAUNZA DCJ, MATHONSI JA and CHIWESHE JA

Following a successful appeal to this Court against a judgment of the High Court ordering the eviction of the appellant from House Number 484 Jakaranda Drive, Victoria Falls (the house) when it had not heard the merits of the dispute, but only points in limine, this Court handed down judgment which reads in part as follows:

“1….,.

2. The appeal succeeds with each party bearing its own costs.

3. The judgment of the court a quo on the merits is set aside.

4. The matter be and is hereby remitted to the court a quo for determination of the merits before a different judge.”…,.

After hearing the application in terms of the judgment of this Court, the High Court (the court a quo) handed down judgment on 17 March 2022 directing the eviction of the appellant and all those claiming occupation through him from the house. The appellant was also ordered to pay the costs of suit.

This appeal is against that judgment.

THE FACTS

The respondent, a local authority established in terms of the Urban Councils Act [Chapter 24:03], is the owner of the house which it holds in terms of a Deed of Grant. It employed the appellant as its Director of Housing and Community Services and allocated the house to him as an employment benefit.

The appellant's employment was terminated on 31 March 2017 following disciplinary proceedings instituted against him for misconduct.

When called upon to vacate the house, as a consequence of his loss of employment, the appellant resisted.

The respondent then brought an application for a rei vindicatio seeking the appellant's eviction from the house together with all those claiming occupation through him.

The appellant opposed the application raising certain points in limine, namely, that the Town Clerk, who had deposed to the founding affidavit, had no authority to do so.

In addition, the appellant took the point that the matter was lis pendens given that the respondent had also instituted eviction proceedings in the Magistrates Court. The latter proceedings were withdrawn.

After dismissing these points in limine the court a quo proceeded, without hearing submissions on the merits, to determine the merits.

As already stated, on appeal, this court upheld the appeal, set aside the court a quo's judgment and remitted the matter to it for a determination of the merits by a different judge.

Therefore, when the court a quo re-engaged the matter, its mandate was to determine the merits.

The issue before it was whether the appellant was entitled to remain in occupation of the house by dint of some enforceable right he had against the respondent.

PROCEEDINGS BEFORE THE COURT A QUO

Before the court a quo, counsel for the appellant sought to introduce a further point in limine based on the citation of the respondent in the proceedings. It was submitted, that, there was a mis-citation of the respondent as Victoria Falls Municipality which was a non-existent entity. It should have been cited, so it was argued, as Municipality of Victoria Falls.

As a corollary to that, it was submitted, on behalf of the appellant, that, the respondent had failed to prove one of the requirements of a rei vindicatio, namely, ownership of the house. This stemmed from the fact that the Deed of Grant recorded the owner of the house as Municipality of Victoria Falls and not City of Victoria Falls.

Per contra, counsel for the respondent submitted that the judgment of this court was clear that the court a quo was required to engage the matter on the merits and not on preliminary points as urged of it by the appellant. In that regard, so it was argued, the appellant was out of order in raising fresh preliminary points.

The court a quo found, that, the matter had been remitted to it for a specific purpose, namely, a determination of the merits and nothing else. It refused to be drawn to the point in limine as it fell outside the purview of the directions issued by this court.

On the merits, counsel for the respondent submitted that the requirements for the grant of a rei vindicatio, that is, the respondent being the owner of the house which the appellant was occupying without its consent, had been satisfied.

In resisting the application, the appellant submitted that he had a right of retention of the house emanating from the fact that he was appealing the decision to dismiss him from employment and that there existed a compromise arrangement between the parties in terms of which the respondent agreed to let him remain in occupation until he was paid certain sums of money owed to him.

On that aspect, the court a quo found that the fact that the appellant was appealing against the decision to dismiss him did not accord him a right to hold on to the respondent's house.

Regarding the alleged compromise, the court a quo found that no compromise agreement existed between the parties. It took the view that the letter of 19 April 2018, relied upon by the appellant, did not come anywhere near proving the existence of a compromise.

In the court a quo's view, the letter in question only recorded the appellant's own position in the dispute, that he would only vacate the premises upon being paid US$10,000. The letter was not responded to, and, as such, could not tie down the respondent to something it did not agree to.

PROCEEDINGS BEFORE THIS COURT

The appellant was aggrieved by that outcome. He noted an appeal to this court on four grounds, the essence of which is to impugn the court a quo's finding that the requirement of the actio rei vindicatio had been satisfied.

In addition, the appellant also challenged the court a quo's refusal to engage the point in limine he sought to motivate.

Only two issues commend themselves for determination in this appeal. These are:

1. Whether the court a quo erred in refusing to deal with the point in limine relating to the citation of a non-existent entity.

2. Whether the court a quo erred in granting the remedy of an actio rei vindicatio.

At the hearing of the appeal, counsel for the respondent, initially raised two preliminary points which, in his view, were dispositive of the appeal:

(i) The first related to the part of the Notice of Appeal wherein the appellant stated, that, he was appealing against “part of the judgment” of the court a quo. In his view, this rendered the appeal fatally defective in that the appeal was effectively against the whole judgment of the court a quo.

(ii) Secondly, counsel for the respondent sought to impugn the appellant's grounds of appeal numbers 1 and 3 which he said do not meet the requirements of Rule 37(1) of this Court's Rules because they are not clear and concise.

After exchanges with the court, counsel for the respondent abandoned both preliminary points.

For his part, counsel for the appellant also quickly abandoned his reliance on the challenge of the respondent's ownership of the house because it is common cause that the respondent is the owner of the house in question.

Counsel for the appellant motivated the appeal solely on the basis that there exists a compromise agreement in terms of which the appellant has a right of retention until such time that he is paid certain sums of money he believes he is entitled to.

On that aspect, the court a quo reasoned as follows at page 6 of its judgment:

“Was there a compromise wherein the applicant receded from its position in seeking to get its property back from the respondent?

The respondent filed a letter written to the appellant by his legal practitioners in which there was mention of payment of US$10,000 for leave claims and that respondent would move out upon payment of this amount. In the same letter, the respondent acknowledged a claim the applicant had for water, electricity, and rentals and said that such amounts would be deducted from the US$10,000 as well as the tax deductible component from ZIMRA. That letter also referred to a vehicle the respondent said he was of the view he was entitled to.

There was no response from the applicant.

If there was, such was not attached to the respondent's opposition. The letter itself is what the respondent was stating as his position but with no acknowledgment from the applicant. How can it be said the parties agreed and therefore reached a compromise?”…,.

It is this Court's view, that, these were factual findings made by the court a quo.

The position is settled in this jurisdiction that an Appeal Court will not lightly interfere with the findings of the lower court. The Appeal Court will only interfere where it is shown that such finding is irrational.

In other words, this court will interfere where “the finding complained of is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question could have arrived at such conclusion.”

See Hama v National Railways of Zimbabwe 1996 (1) ZLR 664 (S)…,.

The appellant has not shown that the court a quo's findings, on the letter relied upon as pointing to the existence of a compromise, was irrational.

Quite to the contrary, the court a quo's reasoning is very sound.

Counsel for the appellant also sought to argue, that, a compromise was proved by virtue of the fact, that, after pleading its existence in the founding affidavit and attaching the letter referred to above, the respondent did not deny the compromise.

In his view, what is not denied is taken as admitted.

There is no doubt that this argument is flawed.

In fact, counsel for the respondent drew the court's attention to paragraph 6 of the respondent's answering affidavit where the respondent contested the claim of a compromise. The deponent made it clear, that, the appellant was free to litigate on these claims if he was of the view that the claims were meritable.

That cannot be said to be an admission.

DISPOSITION

The respondent is the owner of the house which the appellant occupies without its consent, he having lost his employment. The respondent is entitled to vindicate against the appellant. The appellant has not shown a right of retention.

The appeal is without merit. It ought to be dismissed.

Regarding the issue of costs, it is the view of this court that a good case has been made for the costs to be awarded on the adverse scale.

The appellant has been persistent in his resistance and has unreasonably held onto the respondent's property without any justification whatsoever. In doing so, he has put the respondent unnecessarily out of pocket.

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

The appeal is dismissed with costs on a legal practitioner and client scale.

SC101-22 : MASTER OF HIGH COURT N.O. and RUGARE MANDIMA N.O. and HOUSE OF SARI PL vs DAVID TAKAENDESA and OTHERS and HOUSE OF SARI and RUGARE MANDIMA and REGISTRAR OF DEEDS and MASTER OF HIGH COURT
Ruled By: GUVAVA JA, KUDYA JA and MWAYERA JA

INTRODUCTIONAt the hearing, the appeals were consolidated with the consent of the parties, and heard in the following manner:The appellant in SC109/21 (Master of the High Court of Zimbabwe) made submissions as the first appellant, the appellant in SC15/21 (Rugare Mandima) as the second appellant, and the appellant in SC17/21 ...

INTRODUCTION

At the hearing, the appeals were consolidated with the consent of the parties, and heard in the following manner:

The appellant in SC109/21 (Master of the High Court of Zimbabwe) made submissions as the first appellant, the appellant in SC15/21 (Rugare Mandima) as the second appellant, and the appellant in SC17/21 (House of Sari (Pvt) Ltd) as the third appellant.

The first to third respondents (David Takaendesa, Macdonald Takaendesa and Den Takaendesa) in all the appeals remained as previously cited, with the Registrar of Deeds being the fourth respondent, though there was no appearance on his behalf.

Although there were three different appeals attacking the same judgment, I intend to address all the appeals in one composite judgment as the issues raised are similar.

In this judgment, I will also refer to the first appellant as 'the Master' the second appellant as 'the executor' the third appellant as 'the purchaser' and the first to third respondents as 'the beneficiaries'.

The three appeals herein are against judgment no. HH806-20 of the High Court ('court a quo') dated 16 December 2020, which granted an application to set aside “two consents of sale” issued by the Master of the High Court, agreements of sale signed between the executor and the purchaser, and finally set aside the transfer of title made in favour of the purchaser.

BACKGROUND FACTS

The first to third respondents (David Takaendesa, Macdonald Takaendesa and Den Takaendesa) are beneficiaries of the estate of the late Kudzai Takaendesa (the deceased), who died on 15 July 2015.

The second appellant (Rugare Mandima) was appointed as the executor of the estate in terms of a Will in which the deceased directed that the senior partner of Danziger and Partners be appointed as such upon her passing.

The estate comprised three farms being; certain piece of land situated in the District of Gatooma called Koppies measuring 1,358,0053 hectares; certain piece of land situated in the District of Hartley called Lorraine of Richmond measuring 595,5918 hectares; and certain piece of land situated in the District of Hartley called Remainder of Richmond measuring 679,7636 hectares ('the farms') and a butchery in Kwekwe situated at Stand 2040 Amaveni Township, Kwekwe.

The estate had liabilities amounting to USD$16,287=13 arising from administrative costs inclusive of the Master of the High Court's fees, Value Added Tax, advertising, valuation charges, and a provision for duty.

The executor, in the execution of his duties, requested the beneficiaries to settle the estate liabilities.

The beneficiaries only managed to pay USD$2,625 leaving a balance of USD$14,047 as at 10 January 2018.

Following the beneficiaries failure to settle the full amount, the executor wrote to the Master of the High Court, on 10 January 2018, seeking authority to sell the three farms by private treaty in order to liquidate the estate liability.

The Master of the High Court issued a consent to the sale in terms of section 120 of the Administration of Estates Act [Chapter 6:01] (the Administration of Estates Act) on 25 January 2018 in respect of two farms known as Koppies measuring 1358,0053 hectares and Lorraine Richmond measuring 595,5918 hectares, and, on the 17 October 2019 in respect of the farm known as remainder of Richmond measuring 679,7636 hectares.

The consents were granted on condition that the executor would first communicate the decision to dispose the farms to the beneficiaries.

As a result of the “consents to sell” all three farms were sold to the purchaser represented by one Mr. Arafas Mtausi Gwaradzimba, who owns a neighbouring farm, for a total amount of USD$700,000.

On 12 March 2018, the beneficiaries wrote an email to the executor with an instruction that he should not sell the farms but that he should rather sell the butchery in Kwekwe to recover the estate liabilities.

On 20 July 2018, legal practitioners representing all the beneficiaries wrote to the executor objecting to the proposed sale of the farms on the basis that:

(i) Firstly, they did not consent to the sale of the farms; and

(ii) Secondly, that the proceeds from the sale of the Kwekwe butchery would be sufficient to settle the estate's liabilities.

This letter was copied to the Master of the High Court.

It was further alleged, that, the executor was advancing his own personal interest in insisting on the sale of the farms rather than the interests of the beneficiaries.

By letter dated 6 of August 2018, the Master of the High Court informed the beneficiaries that their objections had been noted, but, however, the consent to sale could not be revoked as the decision had already been made.

Dissatisfied by the Master of the High Court's decision to grant the executor's request for “consent to sell” the three farms, the beneficiaries made an application before the court a quo, in terms of section 4 of the Administrative Justice Act [Chapter 10:28] ('the Administrative Justice Act'), seeking the setting aside of the decision of the Master of the High Court on the basis that he acted unlawfully, unreasonably, and in an unfair manner in granting the consent.

DECISION OF THE COURT A QUO

The court a quo, in dealing with the application, held that the Master of the High Court failed to conduct a 'due inquiry' in accordance with section 120 of the Administration of Estates Act.

The court a quo further held, that, the decision to issue the “consent to sell” the three farms, without holding an inquiry in terms of section 120 of the Administration of Estates Act, was illogical and grossly unreasonable.

The court a quo reasoned, that, the Master ought to have enquired into the propriety or otherwise of the sale of the three farms in light of other possible assets that could have been sold, and whether or not it was in the best interest of the beneficiaries to sell the farms.

The court found that the Master of the High Court ought to have granted the beneficiaries an opportunity to be heard before making his decision.

The court a quo accordingly found, that, as section 120 of the Administration of Estates Act had not been complied with, the decision by the Master of the High Court, authorising the executor to sell the three farms, was unlawful, unreasonable, and unfair.

It also found that the sales of the farms were a nullity and ordered that they be set aside.

The court consequently vacated the agreements of sale entered into between the executor and the purchaser.

It set aside the consents to the sales of the farms issued by the Master of the High Court, cancelled the transfers of the farms, and ordered the resuscitation of the Estate Deed of Transfer Number 6708/2019 back into the deceased's estate.

With regards to costs, the court ordered that the Master of the High Court and the purchaser pay the beneficiaries costs on a party and party scale with the executor being ordered to pay costs de bonis propriis on the basis that there was collusion between him and the purchaser.

Aggrieved by the decision of the court a quo, the three appellants each noted separate appeals attacking the judgment, essentially on the basis that it erred in failing to find that the Master of the High Court's decision was properly made after due compliance with the Administration of Estates Act.

ISSUES FOR DETERMINATION

An examination of the grounds of appeal shows, that, the single thread that runs through the three appeals is the question of whether or not the Master of the High Court complied with the provisions of section 120 of the Administration of Estates Act before issuing the “consent to sell” the three farms.

SUBMISSIONS BEFORE THIS COURT

Counsel for the first appellant argued, that, the Master of the High Court had no real interest in this case and was essentially a passenger in the litigation. This was, so the argument went, because once he had made a decision in respect of the sale of the three farms, he became functus officio.

He contended, that, the Master of the High Court reached the decision to “consent to the sales” after due consideration of the facts of the case as placed before him by the executor.

It was his submission, that, section 120 of the Administration of Estates Act does not place an obligation on the Master of the High Court to carry out a judicial investigation before issuing a “consent to sell”. He asserted that the inquiry which must be conducted by the Master merely related to whether or not there are any restrictions to sell that may be contained in the Will of the deceased. He thus submitted that it was a very limited inquiry.

Counsel for the first appellant further asserted, that, there was nothing unlawful about issuing a consent with a condition that the executor must inform beneficiaries about the sale.

He, however, conceded that the absence of consent to sale at the time when the agreement of sale was executed in respect of the third farm meant that the agreement was void as there was no condition in the agreement stating that the agreement would only become perfecta once the consent from the Master of the High Court on the third farm had been obtained.

In the final analysis, he submitted that the decision by the Master was not unreasonable or unfair in the circumstances because the finalisation of the estate had been outstanding for a long time.

Further, that the order of costs made against the Master of the High Court was unwarranted and ought to be set aside as the decision was made in the course of his administrative functions.

He prayed for the appeal to be allowed with costs.

Counsel for the executor argued, that, the Master of the High Court correctly exercised his discretion in granting the “consent to the sale” based on the documentation placed before him.

He asserted that there was nothing unreasonable or unfair about the Master of the High Court's decision to “consent to the sale” of the three farms as he acted in accordance with the law.

Counsel also submitted, that, the phrase 'due inquiry' under section 120 of the Administration of Estates Act is limited only to the question of the mode of disposal of the property and not to any other issue.

He argued, that, the order of costs de bonis propriis made against the executor was improper because the order was not sought by the applicants a quo but was imposed by the court, without inquiry, as required by law.

He therefore prayed for the appeal to succeed.

Counsel for the purchaser submitted, that, the beneficiaries could not challenge the sale of the farms without surrendering the proceeds of sale that had been transferred into their accounts.

He argued, that, the due inquiry in terms of section 120 of the Administration of Estates Act is restricted only to the question of whether to sell by private treaty or public auction.

He asserted, that, the Master of the High Court's decision was lawful. He thus prayed for the appeal to be allowed.

Per contra, counsel for the beneficiaries submitted, that, the Master of the High Court's decision violated section 68 of the Constitution of Zimbabwe Amendment (No.20) Act 2013 (hereinafter referred to as 'the Constitution') and section 3 of the Administrative Justice Act.

She contended, that, the Master of the High Court's decision, to sell three farms for USD$700,000 to settle estate liabilities totalling USD$14,047 when other properties of less value could have been sold, was grossly unreasonable and unfair.

Counsel submitted that due inquiry, as interpreted in past decisions of the courts, is not a superficial inquiry but meant an informed, independent inquiry that involves considering the submissions of beneficiaries of the estate.

She asserted, that, in this case, no due inquiry was done and thus both the Master of the High Court and the executor did not ultimately act in the best interests of the beneficiaries of the estate as mandated by the law.

She further argued, that, the order of costs made against the Master of the High Court and the executor were justified because both acted unlawfully, unreasonably, and unfairly.

In the result, she prayed for the appeal to be dismissed.

ANALYSIS

With regards to costs a quo..., I take the further view, that, it is trite that a court may not make an award of costs de bonis propriis unless they have been sought and the person affected has been given an opportunity to be heard.

The executor was not heard on this point a quo.

This award cannot be upheld and warrants interference by this Court.

SC102-22 : SAMANTHA NHENDE vs ANDREW ZIGORA and REGISTRAR OF DEEDS N.O.
Ruled By: BHUNU JA, MATHONSI JA and CHATUKUTA JA

I must reiterate what this Court stated in Nzara Ors v Kashumba N.O. Ors 2018 (1) ZLR 194 (S)…, that, the court cannot grant an order that has not been sought by a party.

SC103-22 : BENSON MAKACHI and MR. MUGAVA and SIMON NOTA and SILAS GWESHE and GIBSON MUTSAKA and EVERSON BREAKFAST and DAVISON CHIVESO and FREDSON GAMA vs EVANGELICAL CHURCH OF ZIMBABWE
Ruled By: UCHENA JA, CHITAKUNYE JA and CHATUKUTA JA

This is an appeal against the whole judgment of the High Court, sitting at Harare, handed down on 29 July 2020 as judgment number HH495-20, wherein the court a quo granted a declaratory order to the effect, that, the appellants were no longer members of the respondent and were thus ...

FACTUAL BACKGROUND

The appellants are former members of the respondent. Most of them held different leadership positions within its ranks.

The respondent is a common law universitas with various ecclesiastical branches nationwide. It is a voluntary association of a religious character whose business and conduct are governed by its Constitution.

The genesis of the dispute between the parties followed the expiration of the first appellant's five-year term as Bishop, on 31 August 2014. The first appellant had been appointed Bishop in 2009, irregularly, as he did not possess the educational qualification prescribed by the respondent's Constitution.

He was nevertheless allowed to complete his term.

It is common cause, that, towards the end of the first appellant's term as Bishop, a nomination process was initiated to shortlist candidates for the vacant office in terms of the respondent's Constitution.

Five nominees declined to participate in the election process.

The first appellant, along with another nominee, were then removed from the shortlist as they did not possess the requisite educational qualification of a theological degree, or its equivalent, approved by the Annual General Conference (AGC) as the Supreme Board. Another hurdle in the first appellant's way was that he was also ineligible as he was past the retirement age of 65 years.

The first appellant was aggrieved by this decision.

He disputed his disqualification and refused to be removed from the list of nominees.

The respondent's Church Council (Council) resolved to hold an Annual General Conference (AGC) for the purpose, inter alia, of electing a Bishop.

The Annual General Conference (AGC) was initially set for November 2014, and, when there was no quorum of paid up members, the conference was aborted. The conference was eventually set for 20-21 March 2015.

The first appellant, as the outgoing Bishop and chairperson of the Council, duly convened the Annual General Conference (AGC) for 20–21 March 2015.

However, the first to eighth appellants (Benson Makachi, Mr. Mugava, Simon Nota, Silas Gweshe, Gibson Mutsaka, Everson Breakfast, Davison Chiveso and Fredson Gama), with the exception of the fifth appellant (Gibson Mutsaka), boycotted the Annual General Conference (AGC).

In the result, the congregants who attended the aforementioned conference did not form a quorum in terms of the respondent's Constitution. The attendees resolved to continue with the Annual General Conference (AGC) and invoked Article IIIC(ii) of their Constitution, which states that:

“The AGC shall be vested with powers to deal with and dispose of any matters which may arise and for which no provisions exist.”

It was at this Annual General Conference (AGC) that a new Bishop, Isaac Soda, was elected.

The appellants then clandestinely organised an alternate conference, on 28 March 2015, which they termed the 'Emergency Extra-Ordinary General Conference'.

The outcome of that conference was the renunciation of Isaac Soda's election as the Bishop, the excommunication of various members of the Council who had proceeded with the Annual General Conference (AGC) on 20-21 March 2015, and the declaration of the first appellant as the substantive Bishop of the respondent till the election of a new Bishop.

The appellants established their own structures, replacing the excommunicated leaders. The ex-communicated members were notified of their expulsion from the church.

Thereafter, the two sides became embroiled in a dispute to identify the bona fide representatives of the church.

The acting Bishop, Reverend Amos Mateva, then convened an Extraordinary General Conference on 10 September 2016 to hold regularised elections. Isaac Soda won the majority vote and was elected Bishop.

However, his victory was disputed by the appellants who argued that it was unconstitutional and they continued to champion the first appellant as the legitimate leader of the church.

In effect, there now existed two parallel structures utilising the name of the respondent.

This resulted in the respondent issuing summons in the court a quo for a declaratory order, under HC10163/15, to confirm the secession of the appellants.

BEFORE THE COURT A QUO

In the court a quo, besides seeking a declarator, the respondent also sought an order interdicting the appellants from using its name, uniforms, and various church buildings, and an order evicting them from its aforesaid buildings.

The appellants, on their part, contested the relief sought contending that they were still members of the respondent.

It is, however, apposite to note that before the court a quo, and as confirmed by a joint pre-trial conference (PTC) minute dated 16 March 2018, the parties agreed that they were now two separate entities.

They also agreed, that, the first appellant's term of office as Bishop, expired and he had not been re-elected; that the qualifications for a Bishop are as set out in the Constitution; and that all other ancillary matters between them would be resolved by a determination of the legitimate faction between the two.

The joint joint pretrial conference minute, of March 2018, inexplicably identifies the sole issue referred to trial as whether or not Bishop Isaac Soda was the legitimate leader of the original church - which issue is not supported by the pleadings.

At the trial, it was argued that the election of Bishop Soda, on 10 September 2016, was invalid as the church's Constitution did not provide for a re-run.

The first appellant begrudgingly admitted that he was over the constitutional retirement age of 65 years.

He also alleged that he boycotted the Annual General Conference (AGC) held on 20–21 March 2015 due to threats on his person - despite being the convenor of that conference.

He also conceded, that, the clandestine meeting held on 28 March 2015 was irregular.

It was also common cause, that, the appellants had formed parallel structures from the respondent which included opening separate bank accounts and leadership posts.

After hearing evidence from the parties, the court a quo ruled in favour of the respondent.

It found that the appellants had created a schism in that in their opposition to the election of Isaac Soda, and insistence on the validity of the first appellant's candidacy, they had proceeded to allocate themselves positions in the church and purportedly dismissed members of the Church Council. They, in effect, proceeded to create their own structure contrary to the dictates of the Constitution, and defied attempts to be disciplined by the respondent.

The court held, that, as the appellants had abandoned the canons of the church and its Constitution, they were no longer members of the respondent.

The appellants were interdicted from using the respondent's name and regalia. They were also barred from using the respondent's properties previously in their possession and ordered to vacate its premises.

Aggrieved by the court a quo's decision, the appellants noted this appeal on the following grounds of appeal:

GROUNDS OF APPEAL

1. Having correctly found that Isaac Soda had not been properly elected as the Bishop of the respondent, the court a quo erred in holding that the appellants, by opposing Isaac Soda's supposed leadership, had seceded from the respondent.

2. The court a quo erred in holding, that, the faction of the respondent led by Isaac Soda was the correct church for purposes of the dispute that was before it.

3. The court a quo further fell into error at law in holding that the appellants were no longer members of the respondent, when, in terms of the respondent's Constitution, only local congregations and not natural persons are capable of acquiring and/or relinquishing membership in the respondent.

4. The court a quo erred in granting eviction of the appellants at the instance of a faction of the respondent, which faction had no properly elected leadership.

5. The court a quo fell into error in holding that the assets of local churches belonged to the respondent when the listed assets belonged to individual autonomous local churches, and, some instances, to individuals.

6. The court a quo erred in granting an interdict against the appellants restraining them from calling themselves the Evangelical Church of Zimbabwe and using the respondent's uniforms when such issue was never referred to it for determination.

SUBMISSIONS BEFORE THIS COURT

Counsel for the respondent raised a preliminary point, that, the appeal had been deemed abandoned as the appellants heads of argument did not address the grounds of appeal.

Per contra, counsel for the appellants submitted that they had motivated each ground of appeal.

He submitted that the issue is really one of style rather than failure to motivate the grounds of appeal.

Resultantly, counsel for the respondent abandoned the preliminary point.

It is, however, this court's view that whilst legal practitioners have different styles of presenting their heads of argument, whatever style adopted must surely be clear and consistent with the grounds of appeal.

In casu, the heads of argument were convoluted and not easy to relate to particular grounds of appeal. The appellants heads of argument could have been drafted in a better way. We nevertheless opted to painstakingly peruse the convoluted heads of argument as, in our view, the real issues were clear from the record of proceedings.

On the merits, counsel for the appellants submitted that the faction led by Isaac Soda is the one which seceded from the church. This was because Isaac Soda had not been properly elected as the Bishop and his re-election itself was a nullity.

Counsel for the appellants submitted, that, the first appellant remained the Bishop until an election was held in accordance with the Constitution of the church.

As to the appointment of people to the Council under the faction led by the first appellant, counsel for the appellants submitted, that, they were rightfully appointed in accordance with the position that the first appellant was the legitimate Bishop until a valid election was held.

Counsel for the appellants also submitted, that, once the court found that Isaac Soda had not been rightfully elected, the members who were not in support of his election could not be said to have seceded.

Counsel further submitted, that, the finding by the court a quo that the appellants were no longer members of the church was against the church's Constitution which provides that affiliate branches of the church are the ones considered as members of the church and not natural persons such as the appellants.

In motivating the fourth ground of appeal, counsel submitted that as Isaac Soda was found not to be duly elected as Bishop, he could not seek the eviction of other members of the church.

On the fifth ground of appeal, counsel submitted that the court a quo's order that the appellants surrender properties to the respondent violated the church's Constitution.

In summation, counsel submitted that once a finding had been made, that Bishop Isaac Soda had not been duly elected, it followed that the appellants could not be said to have broken away from the church despite the accepted position that they had created a parallel structure and allocated themselves leadership positions in that structure.

He maintained that there was therefore no basis for the grant of the interdict against the appellants by the court a quo.

On the contrary, counsel for the respondent submitted that the appeal was devoid of merit as the appellants case was grounded on the mistaken fact that Isaac Soda was not the duly elected Bishop of the church.

He added, that, the real issue for determination by the court a quo was which of the two factions was the legitimate Evangelical Church of Zimbabwe.

He submitted that the court a quo's finding, that the appellants had seceded from the church, resolved the dispute between the parties.

In addition, counsel reiterated that the issue of Isaac Soda's occupation of the office of the Bishop was not the main issue for determination but was merely one of the side issues to be resolved by the court.

He added, that, as the first appellant's term in office had expired, all those in support of him had seceded from the church by forming their own parallel structure.

This Court finds that only one issue commends itself for determination in this matter: it is whether the court a quo erred by finding that the appellants were no longer members of the respondent and were thus not entitled to the properties owned by the respondent.

APPLICATION OF THE LAW TO THE FACTS

It is common cause that in preparation for a pre-trial conference, the parties held a meeting on 24 November 2017. In that meeting, the parties agreed that the issue for referral to trial was “whether or not the plaintiff (sic) is the legitimate leadership of the Evangelical Church of Zimbabwe.”

It was their view, that, a resolution of this issue would resolve the rest of the issues they deemed ancillary.

At that meeting, the respondent, being the church, was represented by Rev Dewah.

Thus, the determination of the legitimate faction was to resolve the dispute.

At the pre-trial conference held on 16 March 2018, both sides acknowledged that the Council had split into two factions. This acknowledgment was made subsequent to the agreement made on 24 November 2017 referred to above.

Despite the identification of the issue as one of legitimacy of the factions, in the joint pretrial conference minute, the parties inexplicably recast the issue to be whether or not Bishop Isaac Soda is the legitimate leader of the original church.

The court a quo aptly observed, that, the respondent had not pleaded for an order declaring Isaac Soda to be the duly elected Bishop.

The court a quo further found that there was no legitimate Bishop for the respondent, as, on 13 June 2016, in case number HH359-16, MANGOTA J had found that the election of Isaac Soda on 21 March 2015 was afflicted with irregularities and so declined to declare him the duly elected Bishop.

Equally, the court a quo held that the election of 28 March 2015, wherein the first appellant was re-elected Bishop suffered the same fate as it was afflicted with fatal irregularities which the appellants conceded.

The court a quo further held, that, the re-election of Isaac Soda, done on 10 September 2016, was afflicted with some irregularities.

The court noted that the Constitution did not provide for a re-run of an election yet this is what the respondent had purported to do without following the laid down procedures.

In noting the above, the court a quo was alive to the fact that the respondent had not specifically pleaded for a declaration of Isaac Soda as a duly elected Bishop hence it did not make such a declaration.

A perusal of the respondent's declaration before the court a quo clearly shows that the respondent did not plead for a declaration of Isaac Soda as the legitimate Bishop of the Evangelical Church of Zimbabwe.

The respondent ought to have amended its declaration so as to include the issue of the legitimacy of Isaac Soda as Bishop.

As the respondent did not do so, the court a quo cannot be faulted for not making a declaration on whether or not Isaac Soda is the legitimate Bishop of the respondent.

In Mashonaland Tobacco Company (Private) Ltd v Mahem Farms (Pvt) Ltd & Another SC152-20..., this Court summed up the general principle regarding the necessity of pleading a cause of action in these words:

“As a general rule, judgment cannot be granted on a cause of action that is not pleaded. The pleadings must clearly set out the precise parameters of the issues contested between the parties. Thus, in the Namibian case of Courtney-Clarke v Bassingthwaighte 1991 (1) SA 684 (Nm), at 698, it was explained that:

'…, there is no precedent or principle allowing a court to give judgment in favour of a party on a cause of action never pleaded, alternatively, there is no authority for ignoring the pleadings…, and giving judgment in favour of a plaintiff on a cause of action never pleaded. In such a case, the least a party can do if he requires a substitution of or amendment of his cause of action, is to apply for an amendment.'

In Medlog Zimbabwe (Pvt) Ltd v Cost Benefit Holding (Pvt) Ltd 2018 (1) ZLR 449 (S) at 455G, this Court aptly stated the position as follows:

'In general, the purpose of pleadings is to clarify the issues between the parties that require determination by a court of law.'

And, at page 456E-G that:

'25.6 In Jowell v Bramwell-Jones & Ors 1998 (1) SA 836 (W) at 898, the court cited with approval the following remarks by Jacob and Goldrein, Pleadings: Principles and Practice at pp 8-9:

'As the parties are adversaries, it is left to each of them to formulate his case in his own way, subject to the basic rules of pleadings…,. For the sake of certainty and finality, each party is bound by his own pleading and cannot be allowed to raise a different or fresh case without due amendment properly made.

Each party thus knows the case he has to meet and cannot be taken by surprise at the trial.

The court itself is as much bound by the pleadings of the parties as they are themselves. It is not part of the function of the court to enter upon any inquiry into the case before it other than to adjudicate upon the specific matters in dispute which the parties themselves have raised by their pleadings.

Indeed, the court would be acting contrary to its own character and nature if it were to pronounce upon any claim or defence not made by the parties.

To do so would be to enter the realm of speculation….,.

The court does not provide its own terms of reference or conduct its own inquiry into the merits of the case, but accepts and acts upon the terms of reference which the parties have chosen and specified in their pleadings.

In the adversary system of litigation, therefore, it is the parties themselves who set the agenda for the trial by their pleadings and neither party can complain if the agenda is strictly adhered to.'”…,.

See also DD Transport (Pvt) Ltd v Abbot 1988 (2) ZLR 92 (S)...,.; City of Harare v Everisto Mungate SC86-22.

In casu, the respondent's pleadings were for a declaration that the appellants had seceded and attendant ancillary relief. The appellants contention, in their pleadings, was that they had not seceded.

The pleadings clearly related to the issue of the legitimacy of the two factions and the attendant consequences.

The issue of Isaac Soda's election was unfortunately let in at the pre-trial conference - even though it did not arise from the pleadings.

This was clearly improper.

The court a quo did not err or misdirect itself when it noted, that, despite the parties agreement on the issue as being on the election of Isaac Soda, the respondent had not pleaded the election of Isaac Soda on 10 September 2016 and so it could not determine an issue not pleaded by the parties.

There was nothing in the pleadings to bring in the issue of Isaac Soda's election.

SC106-22 : ROLEN TRADING (PRIVATE) LIMITED vs PARKSIDE HOLDINGS (PRIVATE) LIMITED
Ruled By: MAKARAU JA, GOWORA JA and BERE JA

COSTSIn clause 19.2 the agreement provides that “all legal costs and expenses, including any VAT on services, collection commission, disbursements, and legal practitioner/client charges which the landlord may reasonably incur in consequence of any default by the tenant in the due payment of rent for the premises or of any ...

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HBHB160-21 : BLANKET MINE (1983) (PVT) LTD vs FISANI MOYO and VALENTINE MINE (Represented by THOMSON MOYO) and ZIMBABWE REPUBLIC POLICE, GWANDA and PROVINCIAL MINING DIRECTOR N.O.
Ruled By: KABASA J

As for the interdict which the applicant alludes to in its draft order, such was not ventilated, and I therefore will not grant an order that speaks to issues not properly articulated in the applicant's papers.

Appealed
SC78-23 : SAVIOUR KASUKUWERE vs LOVEDALE MANGWANA and ZIMBABWE ELECTORAL COMMISSION and MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS
Ruled By: GUVAVA JA, BHUNU JA and CHATUKUTA JA

It is trite that what is admitted need not be proved.

SC110-22 : CONSTRUCTION RESOURCES AFRICA (PVT) LTD vs CENTRAL AFRICAN BUILDING AND CONSTRUCTION COMPANY (PVT) LTD t/a CENTRAL AFRICAN BUILDING
Ruled By: BHUNU JA, MATHONSI JA and KUDYA AJA

CONSTRUCTIONThe appellant appeals against the whole judgment of the High Court dated 14 March 2012, wherein the court a quo granted an order for the eviction of the appellant.The appellant was evicted from the respondent's three immovable properties situated in Harare.The eviction awarded punitive costs as against the appellant and ...

CONSTRUCTION

The appellant appeals against the whole judgment of the High Court dated 14 March 2012, wherein the court a quo granted an order for the eviction of the appellant.

The appellant was evicted from the respondent's three immovable properties situated in Harare.

The eviction awarded punitive costs as against the appellant and its legal practitioner, Mr D. Chinawa.

THE FACTS

The appellant and the respondent are both companies that are duly incorporated in Zimbabwe. The two companies signed two separate and distinct but inter-related agreements of sale on 29 November 2004, wherein the respondent was the seller while the appellant was the purchaser.

The respondent was represented by Jose Eduardo Vieira, who, together with his father (Luis Vieira), were its sole shareholders and directors.

The appellant was represented by Danny Musukuma, who, together with his brother, Lincewesi Musukuma, were also its sole shareholders and directors.

The parties denoted the first agreement as “the Agreement of Sale” and the second “the Deed of Sale” which terms I hereinafter adopt in this judgment.

The Agreement of Sale encompassed the sale of specified movable assets for the sum of US$219,000 payable on the date of signature, in Zimbabwean dollars, at the auction rate prevailing on 26 November 2004 (the effective date).

In terms of clause 5, interest would accrue from the due date of payment at the rate of 7 and a half per centum per annum calculated on a daily basis.

The assets comprised office furniture and fittings, motor vehicles, radios, water pumps, generators, and “workshop assets”.

It was, however, common cause that the appellant did not pay the purchase price for the movables on the date of signature but had managed to do so in the local currency equivalent as at the date of summons.

The Deed of Sale, whose effective date was 29 November 2004, comprised the sale of three immovable properties for the total sum of US$481,000.

These are identified in clause 1 of the agreement as:

“(a) Certain piece of land situated in the District of Salisbury, Stand 272, measuring 3,145 square metres (8 Whites Way, Msasa, Harare) and held under Deed of Transfer No.6884/92 together with the permanent improvements situate thereon valued at US$296,000 (two hundred and ninety-six thousand United States Dollars).

(b) Certain piece of land situated in the District of Salisbury, Stand No.195, measuring 4,794 square metres (8 Lorely Close, Msasa, Harare) and held under Deed of Transfer No.05691/94 valued at US$97,000 (ninety-seven thousand United States Dollars).

(c) Certain piece of land situated in the District of Salisbury, Stand No.8 measuring 8,790 square metres (8 Comet Close, Mount Pleasant, Harare) held under Deed of Transfer No.3404/78 valued at US$88,000 (eighty-eight thousand United States Dollars), together with all permanent improvements thereto (hereinafter referred to jointly as 'the Property')”.

The purchase price of US$481,000 was payable in instalments on the dates and in the amounts specified in the attachment to the Deed of Sale, Annexure A.

The amounts payable were apportioned between the United States dollar and Zimbabwe dollar.

Default interest accrued at the rate of seven (7) and a half per cent per annum from the date of default to the date of payment.

By letter dated 30 November 2004, the respondent undertook “upon settlement of the full purchase price for the Deed of Sale and Agreement of Sale” to deliver to the appellant “all share certificates of shares of the Company” and duly signed and stamped share transfer forms, the Certificate of Incorporation, Memorandum and Articles of Association, the share register, the minute book and other company documents, hold the requisite meetings of directors and shareholders to transfer the company to the appellant and thereby procure the resignation of the directors, secretary, public officer and other officers of the company.

In the same letter, the respondent further promised to procure the transfer of the company's post office box and all telephone and mobile communication lines to the appellant “upon signature” of the Agreement of Sale.

It was common cause that the letter did not alter, amend, or supplant the terms stipulated in the agreements.

It, however, appears to have clarified that the respondent was not sold as a going concern.

In December 2004, the appellant commenced the utilization of the movable assets, and, by 25 January 2005, the respondent had effected the undertakings premised upon the signature of the Agreement of Sale.

On an undisclosed date, Luis Vieira, as the Chairman of the respondent's Board of Directors, purportedly “read, approved, and signed 'Minutes of Meeting of Members of the Company held at Harare on 3 January 2005.'”

The minutes recorded that the Chairman, Managing Director, Jose Vieira, Danny Musukuma, and Mrs F Maio attended the meeting.

The only business dispatched at that meeting was the appointment of Danny Musukuma “as a new director of the company with immediate effect.”

On 20 September 2005, Luis Viera also signed a CR14 form which showed, that, on 3 January 2005, he and Jose Vieira resigned their directorships and were replaced by Danny and Lincewesi Musukuma while LAWAI resigned as Secretaries and were replaced by Samerstone Services.

The CR14 was, however, lodged with the Registrar of Companies, by Samerstone Services, on 14 September 2006.

Between 11 March 2005 and 27 October 2006, the parties exchanged correspondence in which the respondent demanded payment of and the appellant invariably undertook to pay the outstanding purchase price.

On 1 August 2006, the Zimbabwe dollar was revalued by the removal of three (3) zeroes under the Presidential Powers (Temporary Measures) (Currency Revaluation) Regulations, 2006 SI 199/2006.

As at 4 January 2006, the appellant had paid ZW$2,530,000,000, which, as my computation will show later on in this judgment, was equivalent to US$242,624=25 and purportedly owed ZW$1,480,578,188. These amounts were exclusive of interest.

A further payment of ZW$500,000 (revalued) was rejected and returned to the appellant on 2 August 2006.

The purported sum of ZW$1,480,578,188 was still owing on 25 October 2006.

By letter dated 7 November 2006, the respondent accorded the appellant 30 days notice within which to rectify the breach failing which the agreement would be deemed cancelled.

On 6 December 2006, the appellant tendered a cheque payment of ZW$2.5m “in full and final settlement.”

The cheque was rejected and returned to the appellant.

On 12 December 2006, the respondent duly cancelled the Deed of Sale.

The cancellation was premised on the appellant's failure to pay the United States dollar denominated portion of the purchase price, either in hard currency or in local currency at the agreed rate of conversion.

On 9 January 2007, at the instance of Jose Eduardo Vieira, the respondent issued summons for the vindication of the immovable properties and concomitant eviction of the appellant therefrom.

In its amended plea of 17 May 2007, the appellant conceded that the three immovable properties were owned by the respondent, but, denied being in occupation thereof.

The matter failed to commence on the initial trial date on 12 July 2007 but eventually did so on 14 June 2010.

However, between 28 May 2008 and 9 March 2009, notwithstanding that the properties were res litigiosa and pleadings had been closed in the matter, the immovable properties were purportedly sold and transferred by the appellant, at the instance of the Danny Musukuma board, to some third parties.

These third parties did not join and were not joined to the vindicatory proceedings.

THE CONTENTIONS A QUO

The proceedings in the court a quo, and in this Court, primarily revolved upon the Deed of Sale. Specious references were made to the Agreement of Sale in a bid to establish whether or not the appellant purchased the respondent “as a going concern” and whether or not it paid the aggregate purchase price for the immovable properties.

The respondent submitted, that, as it was the common cause owner of the immovable properties at the time of litis contestatio (the close of pleadings) by the appellant's rejoinder of 7 June 2007, and, as it had established that the property was possessed by the appellant or its privies against its will, it was entitled to recover possession from whomsoever was in possession.

Per contra, the appellant contended, that, its sole shareholders and directors became the sole shareholders and directors of the respondent on 3 January 2005, and, thereafter, ran the respondent's affairs.

It relied on the purported minutes of even date and the CR14 signed by Luis Vieira on 20 September 2005 and lodged by the appellant's secretaries (Samerstone Services) with the Registrar of Companies on 24 January 2006.

It further contended, that, the common cause fact that the immovable properties were either occupied by the respondent's “current directors” or had been sold by the respondent at the instance of the new directors, negated the vindicatory action instituted at the instance of the former directors, long after they had vacated office.

It also took the alternative contention, that, in the absence of a resolution by the Vieiras, as directors of the respondent, the institution of the proceedings was unauthorized, and, therefore, an irredeemable nullity.

The appellant, additionally, contended that the 30 days notice was defective in that it did not state “the exact sum due and owing” as envisaged by section 8(1) and (2) of the Contractual Penalties Act [Chapter 8:04].

In reply, the respondent contended that the purported minutes were forged, the signature of Luis Viera on the CR14 was procured by Danny Musukuma by deceit and its lodgment with the Registrar of Companies a nullity.

Its contention was premised on the appellant's failure to fulfill the conditions precedent necessary for the transfer of its equity and directorship embodied in the Deed of Sale and amplified in the letter of 30 November 2004.

It also argued, that, the appellant's failure to establish the validity of the CR14 further proved that the Vieiras never lost their directorship and shareholding to the Musukuma brothers. Consequently, the acts undertaken at the instance of the Vieiras were valid while those that were instigated by the Musukumas were null and void and of no force or effect.

In respect of the alternative contention, the respondent argued, on the authority of Smith v Kwanonqubela Town Council 1999 (4) SA 947…, and Uitenhage Municipality v Uys 1974 (3) SA 800 (E)…, that, the defect had been cured by, and at, its Extraordinary General Meeting held on 17 February 2009.

The respondent further disputed the construction rendered by the appellant to section 8(1) of the Contractual Penalties Act.

THE FINDINGS OF THE COURT A QUO

At the close of the respondent's case, in a separate judgment handed down on 2 May 2011, the court a quo dismissed the application to absolve the appellant from the instance.

In the appealed judgment, the court a quo held that the appellant had paid the Zimbabwe dollar component under the first agreement in full.

Regarding the Deed of Sale, it adjudged the sole witness called by the appellant, Danny Musukuma, to be an un-impressive and evasive witness, and generally accepted the evidence of the respondent's sole witness, Jose Vieira.

It further held, that, the appellant had not paid the full purchase price in the currency apportionments and manner specified in Annexure A.

It, consequently, found that the Vieiras could not have relinquished either their directorships or shareholding to the appellant's sole directors and shareholders.

This finding was buttressed by the concession elicited from Danny Musukuma, in cross examination, that the purported minutes of 3 January 2005, which he produced in evidence, were fake.

It was common ground, that;

(i) Firstly, no such meeting was ever convened;

(ii) Secondly, Danny Musukuma never attended the said meeting; and

(iii) Lastly, Jose Vieira did not, and could not have been in attendance as his passport showed that he was not in Zimbabwe between 1 December 2004 and 1 November 2009.

The court a quo further held, that, the transfer taken at the instance of the Musukuma brothers constituted a fraudulent act, which could not bar the appellant from recovering its property from whosoever was in possession thereof.

This was because the Musukumas knew that the appellant had not discharged the contingent obligation upon it to pay the full purchase price, which would have triggered the transfer of the equity of and power to run the respondent to them.

They also knew that they were alienating res litigiosa properties.

On the authority of Chatrooghoon v Desai & Ors 1951 (4) SA 122 (N)…, and Rautenbach v Venner 1928 T.P.D. 26, it upheld the respondent's contention, that, section 8(2) of the Contractual Penalties Act [Chapter 8:04] did not require a plaintiff to state “the exact sum due and owing by the defendant” in the notice of cancellation.

It reasoned, that, the exact amount of the local currency payable could only be known on the date the appellant elected to make payment.

It upheld the cancellation of the Deed of Sale on two grounds:

(i) The first was that the notice was in compliance with the provisions of section 8(1) of the Contractual Penalties Act.

(ii) The second was that the appellant had demonstrably failed to prove that the amount tendered on 6 December 2006 would have adequately discharged the outstanding debt.

The court a quo also upheld the respondent's contention, that, Annexure A required the appellant to pay the United States dollar denominated purchase price in the specified ratio of 45 per cent hard currency to 55 per cent local currency.

It found that while the United States dollar monthly component was static, the local currency component, being dependent on the prevailing auction rate on the date of payment, could not, and was not intended by the parties to be constant.

The likelihood of the fluctuation of the local currency component of the purchase price over the payment period, in its view, militated against a constant instalment figure.

Consequently, the constant local currency figures embodied in Annexure A were only given as an example of what the appellant would pay if the future auction rates remained static.

The court a quo, therefore, found that the appellant had not paid the hard currency component of the purchase price, either in that currency or in the equivalent local currency amount.

The court a quo found the requirements for actio rei vindicatio, which are set out in Chetty v Naidoo 1974 (3) SA 13 (A)…, were met.

It further found, that, the appellant had failed to establish its right to retain possession of the properties which had passed to it on 29 November 2004.

It, accordingly, granted the vindicatory relief and ordered the eviction of the appellant and its privies from the three immovable properties in question.

GROUNDS OF APPEAL

On 28 March 2012, the appellant filed 18 grounds of appeal. On 20 October 2014, it gave notice of its intention to substitute them with 6 grounds.

At the commencement of the appeal hearing, the Court, by consent of the parties, duly substituted the former grounds of appeal with the following:

“1. The court a quo erred in law in relating to a matter which had not been properly authorized and under circumstances in which those who could properly authorize it had not brought the proceedings.

2. The court a quo a fortiori erred in concluding that the plaintiff (respondent) was properly before it, particularly given that those who litigated under its name had executed an extant public document in which they surrendered their interests in respondent.

3. The court a quo further erred in effectively invalidating the respondent's CR14 at no one's motion and instance.

4. The court a quo erred in coming to the conclusion that the agreement between the parties had been properly cancelled under circumstances where no valid notice of cancellation had been given and there had been no jural act of cancellation exercised ex nunc.

5. The court a quo further erred and misdirected itself in coming to the conclusion that cause existed for the termination of the agreement between the parties (on the false prompting of Mr. Vieira) and in then making an order which was not sensitive to the equities of the matter.

6. The court a quo erred in coming to the conclusion that “respondent” had met the requirements for an actio rei vindicatio and in even taking the view that respondent could sue for the vindication of immovables, the subject matter of the litigation.

PRAYER

The appellant prays for the setting aside of the order of the court a quo and the substitution therein with an order that the claim for eviction, as per the summons, be and is hereby dismissed with costs.”

THE ISSUES

The six grounds of appeal raise the following issues:

1. Whether the respondent was properly before the court a quo.

2. Whether:

(i) The notice to cancel was precise;

(ii) The Deed of Sale was cancelled.

3. Whether the requirements of the actio rei vindicatio were established.

THE ARGUMENTS BEFORE THIS COURT

THE APPELLANT'S CONTENTIONS

Counsel for the appellant submitted, that, in the absence of a resolution issued prior to the institution of action, on 9 January 2007, the respondent could not properly litigate a quo.

He anchored his submission on the CR14, the public document wherein the Musukumas, and not the Vieiras, were depicted as the only subsisting directors of the appellant.

He argued, that, in the absence of a resolution by the subsisting directors to institute the vindicatory action, the proceedings under appeal were improperly taken by the former directors.

He also took the alternative point, that, even if the Vieiras were the subsisting directors of the respondent, the proceedings would have been afflicted by the absence of a resolution authorizing the institution of the proceedings.

He further contended, that, the improperly instituted proceedings could not be cured by the purported ratification done at the instance of the Vieiras on 17 February 2009.

He took the further alternative point, that, even if the appointment of the Musukumas was found to be defective, the acts undertaken by them, as directors, were not only deemed to be valid by the provisions of sections 12 and 13 of the Companies Act [Chapter 24:03] but were also saved by the provisions of section 170 of the Companies Act.

Counsel for the appellant also relied on the “immediate delivery” of the movables and goodwill on 30 November 2009 and subsequent delivery of the motor vehicles on 14 December 2004 and the telephones and postal box on 25 January 2005 to argue that the respondent had been disposed of as “a going concern” a term he interchangeably substituted with the disposal of the Vieiras shareholding in the respondent.

He argued, that, on the authority of CHRISTIE's Business Law in Zimbabwe (Juta 1985…,.) and Laing v South African Milling Co. Ltd 1921 AD 387…, the delivery of the movables transformed the Agreement of Sale into a credit sale, the effect of which was twofold:

(i) Firstly, ownership of the movables passed to the appellant on the date of delivery and not on the envisaged date of full payment.

(ii) Secondly, such a credit sale evinced a clear intention to not only dispose of movable assets and immovable properties separately, but of the respondent itself as a going concern.

He sought to buttress his contention by reference to the immediate delivery of occupation of the immovable properties on the date of signature, the passing of profit in both agreements, and the purported appointment of Danny Musukuma as the principal officer of the respondent.

Counsel for the appellant further contended, that, the purported cancellation of the Deed of Sale was a nullity.

He argued, firstly, that the phrase “of the breach concerned” in section 8(2)(b) and (c) of the Contractual Penalties Act denoted the specification of the exact amount owing and not the mere generalization of the breach.

Secondly, that the payment tendered, on 6 December 2006, which was rejected and returned on 12 December 2006, adequately remedied the purported breach.

That, in any event, the court a quo overlooked the important fact that payment of the purchase price in foreign currency, without the requisite exchange control authority, was, at the time, illegal, hence the discharge of the payment obligation in local currency.

He therefore submitted, that, the respondent erroneously cancelled the Deed of Sale while the court a quo also erroneously confirmed the cancellation.

Finally, counsel for the appellant submitted, that, the respondent having failed to meet the requirements for vindicatory relief, the court a quo erred in ordering the eviction of the appellant.

He therefore prayed for the success of the appeal, vacation of the order, and its substitution by a dismissal order.

THE RESPONDENT'S CONTENTIONS

Per contra, counsel for the respondent made the following contentions:

The action instituted by the respondent, at the instance of the Vieiras, on 9 January 2007, without the requisite resolution of the Vieiras as the lawfully appointed directors of the respondent, was ratified by them on 17 February 2009.

In terms of the pronouncement articulated by NICHOLAS AJA in Moosa & Cassim NNO v Community Development Board 1990 (3) SA 175 (A)…, such ratification validated the proceedings, retrospectively, to 9 January 2007.

The appellant failed to discharge the onus on it to show that it had paid the full purchase price in the manner and method stipulated in Annexure A.

The respondent had shown, by credible and uncontroverted evidence, that, the CR14 lodged with the Registrar of Companies, on 24 January 2006, was a fake document that was predicated on false minutes of a non-existing meeting.

The averments in Luis Vieira's affidavit of 6 August 2009, that Danny Musukuma had taken advantage of his advanced age (85years old) and lack of fluency in the English language and company procedures, and tricked him into appending his signature on the fake minutes and fake CR14 were not controverted by Danny Musukuma in his oral testimony a quo.

The CR14, upon which the appellant nailed its defence, was a proven nullity, which could not confer any rights of directorship on the Musukuma brothers.

Clause 12 of the Agreement of Sale, and the letter of 30 November 2004, precluded the appellant's appointees from exercising the rights of shareholders and directors prior to the full payment of the purchase price in respect of the two agreements.

He also argued, that, the two agreements did not transform the sale of the movable assets and immovable properties into the sale of the respondent as a going concern.

A sale of assets, which precludes the passing of ownership and transfer of equity in the seller prior to the payment of the purchase price in full and the assumption of the seller's debts and human resources, could not be regarded as the sale of a going concern.

He also argued, on the authority of Macape (Pty) Ltd v Executrix Est Forrester 1991 (1) ZLR 315 (S)…, that, the prescribed payments in foreign currency for the immovable properties did not contravene the provisions of the Exchange Control Regulations 1996.

That, the specific text of clause 4 of the Deed of Sale denominating a portion of the purchase price in foreign currency rendered the agreement valid.

On the construction of section 8(2) of the Contractual Penalties Act, he maintained that the notice, as worded, was in full compliance with the phrase “the breach concerned.” The respondent was not required to quantify the breach.

The appellant's conduct and response, of 6 December 2006, exhibited an appreciation of the ascertainable nature of the debt.

The appellant breached the Deed of Sale by failing to pay the instalments delineated in both currencies and the concomitant municipal and utility bills in both alternative currencies, and failed to remedy the breach in the 30 days prescribed in clause 13 of the agreement and section 8 of the Contractual Penalties Act.

Regarding the granting of the actio rei vindicatio, he submitted that the order could not be defeated by the disposal of the property after litis contestatio, as, at that stage, the property would have become res litigiosa.

He strongly argued for the dismissal of the appeal with costs on the higher scale.

RESOLUTION OF THE ISSUES

I proceed to resolve the issues seriatim.

WHETHER THE RESPONDENT WAS PROPERLY BEFORE THE COURT A QUO

In our law, it is trite that an artificial person, and especially a registered company, is a legal person distinct from its members, which can only litigate through an authorized natural person.

The authority of such a person is generally conferred by a properly promulgated resolution issued by the artificial entity in accordance with its constitutive instruments comprising Articles of Association, a Charter or Constitution or even a legislative enactment.

Where the institution of the proceedings is impugned, sufficient evidence must be availed, which satisfies the court that the litigation in the name of the artificial entity is being brought by an authorized natural person at its behest: see Mall (Cape) (Pty) Ltd v Merino Ko-Operasie BPK 1957 (2) SA 347 (C)….,.; Cuthbert Elkana Dube v PSMAS SC73-19…,.; Cape Pacific Ltd v Lubner Controlling Investments (Pty) Ltd and Ors 1995 (4) SA 790…,.; Madzivire & Ors v Zvariwadzwa & Ors 2005 (2) ZLR 148; and TFS Management Co. (Pvt) Ltd v Graspeak Investments (Pvt) Ltd & Ors 2005 (1) ZLR 333…,.

In terms of Article 13(f) of the respondent's Articles of Association, a minimum quorate of two (2) directors is empowered to institute proceedings in its name.

It is axiomatic that a company, such as the respondent, acts through its directors.

It must therefore follow, that, the answer to the first issue must perforce depend, in part, on who, between the Vieiras and the Musukumas, were the true directors of the respondent.

Counsel for the appellant impugned the finding made a quo in favour of the Vieiras.

He argued, that, the finding was contrary to the CR14, a public document lodged with the Registrar of Companies, which showed that the Vieiras resigned their directorships and were simultaneously replaced by the Musukumas on 3 January 2005. He therefore contended, that, the Vieiras could not direct the respondent to institute proceedings, some two (2) years after the termination of their tenure as directors.

It was, however, common cause that the CR14 in question was based on nothing.

It was derived from the purported minutes of 3 January 2005. The minutes were a record of a meeting purportedly held on that date. The minutes were produced by the appellant's sole witness, Danny Musukuma, and signed at his instance, by Luis Vieira.

At the time, Luis Vieira was aged 85. He was proficient in Portuguese but not in English. He claimed that he was deceived into signing the purported minutes and the CR14 by Danny Musukuma.

His claims were not disputed by Danny Musukuma.

View Appeal
HH703-21 : PROFESSOR CHARLES NHERERA vs JAYESH SHAH
Ruled By: MATHONSI J

The law relating to admissions must be taken as settled in this jurisdiction.A party to civil proceedings may not, without the leave of the court, withdraw an admission made, nor may it lead evidence to contradict any admission the party has made. By the same token, a party cannot be ...

View Appeal
CC03-23 : LIVISON CHIKUTU and PHENEAS CHITSANGE and ALBERT DHUMELA vs MINISTER OF LANDS, AGRICULTURE, CLIMATE AND RURAL SETTLEMENT and OTHERS
Ruled By: MALABA CJ, GWAUNZA DCJ, GARWE JCC, MAKARAU JCC, GOWORA JCC, HLATSHWAYO JCC and PATEL JCC

This is an appeal against the entire judgment of the High Court, sitting at Harare, in which it dismissed a constitutional application placed before it.The appellants approached the court a quo seeking an order that section 4 and section 6(1)(b) of the Communal Land Act [Chapter 20:04] (hereinafter the “Communal ...

This is an appeal against the entire judgment of the High Court, sitting at Harare, in which it dismissed a constitutional application placed before it.

The appellants approached the court a quo seeking an order that section 4 and section 6(1)(b) of the Communal Land Act [Chapter 20:04] (hereinafter the “Communal Land Act”) be declared ultra vires the Constitution of Zimbabwe 2013 (“the Constitution”)....,.

The case for the appellants is that section 4 of the Communal Land Act is a colonial construct that reinforces the notion that people of African descent, or indigenous people, cannot own land in their own right. As such, the provision has no room in post-independent Zimbabwe because white people can own land, while Africans are denied this right through the impugned provision. Thus, it offends the dignity of the people and their humanity.

Furthermore, the appellants allege that the provision confirms the stereotype that Africans are a lower form of human being than other races.

In addition, it is suggested that section 4 of the Communal Land Act offends against section 71 of the Constitution.

It is contended that the provision denies the appellants their right to own property. By the same token, it offends against their dignity as a people. Without their land, they lose their essence as a people. It also militates against their right to culture under section 63 of the Constitution. The intended reservation of part of their land may result in their displacement to various parts of the country. They will, as a result, be unable to exercise their cultural beliefs as the Hlengwe-Shangaan people.

As regards section 6 of the Communal Land Act, the contention is that its net effect is to expropriate communal land from its owners without compensation.

Both statutory provisions are said to infringe the rights to life, dignity, equal protection of and benefit of the law, the right to property, the right to culture and language, and the right to be heard. Cumulatively, the provisions are said to be in breach of sections 48, 51, 56(1), 63, 71, and 68 of the Constitution of Zimbabwe.

However, the appellants only motivate the violation of four fundamental rights: sections 71 on property rights, section 51 on the right to human dignity, section 48 on the right to life, and 56 on equality and non-discrimination, despite the citation of those they have not addressed in detail, the other alleged infringements.

As a consequence, the Court will only consider the matter relative to the arguments presented before it.

CC04-23 : EDWIN MUSHORIWA and FIRINNE TRUST OPERATING AS VERITAS and BRIAN CROZIER and VALERIE INGRAM-THORPE vs PARLIAMENT OF ZIMBABWE and PRESIDENT OF THE REPUBLIC OF ZIMBABWE
Ruled By: GWAUNZA DCJ, GARWE JCC, MAKARAU JCC, GOWORA JCC, HLATSHWAYO JCC, PATEL JCC and UCHENA AJCC

The applicants abandoned the point taken in their opposing papers, that, the Attorney-General could not properly swear to an affidavit on behalf of the President.Having so abandoned that point, counsel for the applicants, nevertheless, urged this court to express, in obiter, its views on the propriety of the Attorney General ...

CC05-15 : TOUR OPERATORS BUSINESS ASSOCIATION OF ZIMBABWE vs MOTOR INSURANCE POOL and ZIMBABWE REVENUE AUTHORITY and INSURANCE AND PENSIONS COMMISSION and ATTORNEY-GENERAL OF ZIMBABWE
Ruled By: CHIDYAUSIKU CJ, MALABA DCJ, ZIYAMBI JCC, GWAUNZA JCC, GARWE JCC, GOWORA JCC, HLATSHWAYO JCC, PATEL JCC and GUVAVA JCC

As for costs, I am inclined to the view, that, this application was manifestly ill-conceived, almost on the verge of amounting to an abuse of court process.Nevertheless, as none of the respondents have prayed for costs on the punitive scale, the order for costs will simply follow the cause on ...

Appealed
CC05-24 : PENELOPE DOUGLAS STONE and RICHARD BEATTIE t/a Stone/Beattie Studio Partnership vs CENTRAL AFRICA BUILDING SOCIETY and RESERVE BANK OF ZIMBABWE and MINISTER OF FINANCE
Ruled By: MALABA CJ, GWAUNZA DCJ, GARWE JCC, MAKARAU JCC, GOWORA JCC, HLATSHWAYO JCC and PATEL JCC

This matter was placed before the full bench of this Court for confirmation of an order of constitutional invalidity pursuant to Rule 31 of the Constitutional Court Rules 2016 (hereinafter “the Rules”) as read with section 175(1) of the Constitution, against the judgment of the High Court (hereinafter “court a quo”) in the case of Penelope Douglas Stone & Anor v Central Africa Building Society & Ors HC4243/21.

At the end of the proceedings, the Court made an order, the operative part of which read as follows:

“1. The confirmation of the order of the court a quo is declined.

2. The order of the court a quo is set aside in its entirety.

3. There shall be no order as to costs.

4. Reasons for the decision are to follow in due course.”

What follows are the reasons for that order.

FACTUAL BACKGROUND

The applicants before this Court are partners in an architectural enterprise. The first respondent is Central African Building Society (CABS). The second respondent is the Reserve Bank of Zimbabwe (RBZ), with the third respondent being the Minister of Finance and Economic Development.

The applicants applied to the court a quo, purportedly in terms of section 85(1) of the Constitution. They sought a declarator to the effect, that, Exchange Control Directive No. RT120/2018, issued by the second respondent, was unconstitutional due to an alleged violation of the right to property enshrined under section 71 of the Constitution.

In addition, the applicants sought a declaration to the effect, that, the same directive was grossly unreasonable and ultra vires section 35(1) of the Exchange Control Regulations, SI109 of 1996, and was accordingly invalid.

The constitutionality of sections 44B(3)-(4) and 44C of the Reserve Bank Act [Chapter 22:15] was also impugned on the premise that the provisions in question violated section 71 of the Constitution.

A similar declaration was sought with respect to sections 21(1)(b), 22(2), 22(4)(a) and 23(1)-(3) of the Finance (No.2) Act of 2019 for allegedly violating the aforementioned section 71 of the Constitution.

Consequent to the above, the applicants sought a further declaration that the conversion of their USD142,000 to RTGS142,000 was unconstitutional and violated section 71 of the Constitution. They therefore sought an order compelling the first respondent to reimburse them the sum of USD142,000.

The genesis of the dispute stemmed from the applicants inability to access funds in USD from an account maintained by them with the first respondent.

The applicants are architects and are partners in an architectural firm. The firm operates bank accounts with the first respondent. On 17 October 2018, they demanded the release to themselves of the sum of USD142,000 from one of their accounts.

By letter dated 4 October 2018, the first respondent responded to the demand and indicated that it was unable to pay them that amount as the account was now denominated in the RTGS currency following a directive from the second respondent, the Reserve Bank of Zimbabwe (RBZ).

The first respondent advised them that the requested sum could not be paid out in United States Dollars on the basis of the Exchange Control Directive RT 120/2018, which essentially converted the pre-existing sum to RTGS denomination.

This was confirmed in correspondence between the parties on 24 October 2018.

The applicants do not accept that the conversion of that account was lawful, and, as a consequence, contend that a constitutional issue arose from the fiction of equating the United States Dollar with the local RTGS by the authorities.

It was submitted on their behalf, that, the Government itself had recognised the superficiality of the parity argument between the United States Dollar with the local RTGS currency. Contrary to its stated position, on the argument of parity between the USD and the local currency, Government had insisted on payment of certain obligations be made exclusively in United States Dollars. To cement their argument, the applicants made reference to the exclusive levy of fuel prices in United States Dollars.

It was contended, that, the first respondent would be unjustly enriched at their expense due to this legal fiction of parity.

They submitted before the court a quo, that, the impugned legislation served to deprive them of their rights under section 71 of the Constitution and could not be justified under the limitation clause in section 86 of the Constitution.

The applicants argued, that, section 71(3) of the Constitution sets out the standards for the compulsory acquisition of property, which requirements were not satisfied by the impugned legislation.

It was further submitted, that, the law of general application which authorizes compulsory deprivation must also entitle claimants to apply for compensation, which was not satisfied by the impugned law.

Further to this, the applicants contended, that, their application was properly before the court, regard being had to the judgment by the Supreme Court involving the same parties.

They contended, that, the remarks in the judgment had given them the conviction that they could succeed in suing the respondents once they had impugned the parent statute that had given birth to the Exchange Control Directive in question.

For these reasons, they contended that Exchange Control Directive No. R120/2018, sections 44B(3)-(4) and 44C of the Reserve Bank Act and sections 21, 22 and 23 of the Finance (No.2) Act of 2019 violated section 71 of the Constitution, and, that, as a consequence, the first respondent was obliged to reimburse them the sum of USD142,000.

The application was opposed by all the respondents in the court a quo.

The first respondent raised the preliminary issue that the relief sought was defective. It argued that a declaration of constitutional invalidity could not give rise to any automatic positive rights on behalf of the applicants, and further, that, it could not be compelled to effect payment in a constitutional matter until such proceedings were confirmed by the Constitutional Court.

On the merits, it maintained that its actions in the matter were guided by validly promulgated laws.

The first respondent contended, that, the impugned directive only mandated the deposit of foreign currency from offshore sources into Nostro accounts. However, the funds in the account maintained by the applicants had emanated from local deposits and were therefore excluded from this category.

The first respondent further submitted, that, there could not be a claim for unjust enrichment against it because, as a Building Society, its funds were deposited with the second respondent, the Reserve Bank of Zimbabwe.

It noted that the second and third respondents had the requisite legal authority to regulate monetary and fiscal matters in terms of the Reserve Bank Act.

The first respondent also submitted, that, the plea of res judicata was applicable in casu as the matter had been argued to finality in the Supreme Court.

In turn, the second respondent also submitted that the matter was res judicata as the Supreme Court had dealt with the same matter on appeal from the court a quo.

On the merits, it submitted that the impugned legislation did not violate section 71 of the Constitution.

The third respondent also associated itself with the arguments by the first and second respondents, and, further submitted that the impugned legislation did not take away any of the applicants rights.

Counsel for the third respondent suggested that the applicants ought to have joined Parliament to the proceedings as they had sought to impugn acts done in terms of a valid statute.

In response, the applicants submitted, that, after the operationalisation of the Directive, the funds in their account with the first respondent, when converted at the official exchange rate, amounted to a mere US$1,604=52 which they suggested constituted a violation of section 71 of the Constitution.

They sought to counter the allegation that the issue had not been properly taken, regard being had to the doctrine of res judicata, on the basis that there had been no determination on the constitutionality of the exchange control directive by either the High Court or the Supreme Court.

Although the court a quo agreed that the subject matter in the dispute before it was the same as that previously litigated upon, it concluded that the matter was not res judicata because the question regarding the constitutionality of the impugned legislation remained in issue. As a consequence, it dismissed the preliminary point.

It also disregarded the preliminary point raised on the principle of subsidiarity, terming the point in limine “pedantic and a miscarriage of justice.”

On the merits, the court a quo held that it would determine the constitutionality of the Exchange Control Directive separately from the issue that it was ultra vires section 35(1) of the Exchange Control Regulations, 1996.

Although its constitutional validity was not an issue for determination before it, the court a quo found that section 35(1) of the Exchange Control Regulations 1996 was not ultra vires section 71 of the Constitution.

Thereafter, the court a quo concluded that paragraphs 2.5 and 2.6 of the Exchange Control Directive RT120/2018 were ultra vires section 35(1) of Exchange Control Regulations 1996. It further determined, that, Exchange Control Directive RT 120/2018 was impeachable along with the other impugned legislative provisions in the sense that they interfered with the contractual rights of the parties, and, in turn, breached section 71 of the Constitution. The provisions were held to invade property rights protected under section 71(2) of the Constitution.

Consequent thereto, it issued an order which is now subject to confirmation by this Court. The order reads as follows:

“(i) Paras 2.5 and 2.6 of the Exchange Control Directive RT 120/2018, dated 4 October 2018, are ultra vires section 35(1) of the Exchange Control Regulations 1996, SI 109 of 1996, and are hereby set aside.

(ii) Subject to section 175(1) of the Constitution of Zimbabwe -

1. The conversion of the amount of USD142,000 standing to the credit of the applicants savings account No.1005428905 with the first respondent, as at 28 November 2016, violated section 71 of the Constitution.

2. Paras 2.5 and 2.6 of the Exchange Control Directive RT120/2018 aforesaid violate section 71 of the Constitution.

3. Section 22(1)(b) and (d) and section 22(4)(a) of the Finance Act (No.2) Act No.7 of 2019 violate section 71 of the Constitution and are hereby set aside.

4. The first respondent shall pay the applicants the sum of USD142,000 together with interest thereon at the rate of 5% per annum from 28 November 2016 to the date of payment.

5. The respondents shall pay the costs of suit jointly and severally, the one paying the others to be absolved.”

SUBMISSIONS ON BEHALF OF THE APPLICANTS

At the onset of proceedings, the parties were directed to address the Court on whether the matter was properly before the court a quo.

Counsel for the applicants submitted, that, the matter was properly before the court a quo.

He argued that the applicants rights, under section 71 of the Constitution, had been violated by the impugned laws. He suggested that the co-joining before the court a quo of constitutional and non–constitutional issues was not improper.

To that end, he made reference to several authorities that he contended provided exceptions to the principle of constitutional avoidance, and, in this particular respect, submitted that the conflation of issues was held to be non-fatal in the seminal case of Mudzuru & Anor v Minister of Justice, Legal & Parliamentary Affairs NO & Ors CC12-15, now reported as M & Anor v Minister of Justice, Legal & Parliamentary Affairs N.O. & Ors 2016 (2) ZLR 45 (CC).

Counsel for the applicants submitted, that, the principle of res judicata was inapplicable in casu because the aforementioned constitutional issues were not determined in previous litigation.

Therefore, his view was that the matter was properly before the court a quo.

SUBMISSIONS ON BEHALF OF THE FIRST RESPONDENT

Per contra, counsel for the first respondent submitted, that, the matter was not properly before the court a quo.

Counsel contended that the matter, as pleaded by the applicants, went beyond the confines of an application within the contemplation of section 85(1) of the Constitution.

In addition, it was contended on behalf of the first respondent, that, the applicants pleadings lacked the specificity required by the Rules and that the court a quo, mero motu, had identified paragraphs 2.5 and 2.6 of Exchange Control Directive RT128/2018 as being impeachable, and, therefore, unconstitutional.

Counsel for the first respondent further argued, that, the court a quo over-reached its jurisdictional ambit by determining a constitutional issue once it had dealt with a non–constitutional issue.

In addition, it was his contention that the principle of res judicata was applicable in casu since there was previous litigation concerning the same subject matter between the same parties, and, critically, premised on the same cause of action.

He further submitted, that, the court a quo fell into error when it invalidated section 22 of the Finance Act [Chapter 23:04] because that piece of legislation sought to be impugned had only come into effect after the applicants cause of action had allegedly arisen.

SUBMISSIONS ON BEHALF OF THE SECOND RESPONDENT

In turn, counsel for the second respondent associated himself with and concurred with submissions made on behalf of the first respondent, that, the constitutional jurisdiction of the court a quo was not properly invoked.

He made specific reference to Rule 107 of the High Court Rules 2021 as indicative of the appropriate procedure to be followed in constitutional matters before the High Court.

Counsel for the second respondent submitted, that, the applicants reliance on section 85(1) of the Constitution placed an obligation on the applicants to establish the violation of a fundamental right. He pointed to the applicants reliance on exceptions to the general rule of constitutional avoidance as an admission that the matter was principally non–constitutional in nature.

Consequently, counsel for the second respondent submitted, that, the judgment of the court a quo ought to be set aside in its entirety.

SUBMISSIONS ON BEHALF OF THE THIRD RESPONDENT

Counsel for the third respondent also buttressed the point, that, the matter was improperly before the court a quo.

He submitted that the constitutional relief sought before the court a quo was merely tangential to the motive of the applicants, which was the recovery of USD142,000.

He submitted that there must be specificity in the pleadings when declarations of constitutional invalidity are sought in order to preserve the principle of the separation of powers.

It was his submission that the relief sought should not be granted.

THE LAW

Section 175(1) of the Constitution provides, that, where a court makes an order concerning the constitutional invalidity of any law or the conduct of the President or Parliament, the order has no force or effect unless it is confirmed by this Court. Thus, the order of constitutional invalidity by a subordinate court does not bind the Constitutional Court.

It must itself conduct an examination into the constitutionality of the impugned conduct or statute as it is the sole court with the jurisdiction, under the Constitution, to declare such conduct or statute as being unconstitutional or invalid.

As a consequence, the law requires that the Constitutional Court must itself be satisfied as to the invalidity of the law or conduct being impugned.

It is trite that under section 175(1) of the Constitution any declaration is subject to the over-arching jurisdiction and supervisory role of the Constitutional Court.

In this enquiry, it must first decide whether the challenge to the constitutional validity of the law or impugned conduct was properly before the court a quo.

By operation of law, the confirmation proceedings before this Court are, in essence, a process of review of the proceedings before the court a quo.

The principles which are applicable in confirmation proceedings are settled:

(i) Firstly, given the limited jurisdiction of the Constitutional Court as a special court, it has to be determined whether there was a constitutional matter before the subordinate court.

(ii) Secondly, the constitutional matter which would have arisen in the subordinate court must have been properly before that court, and that court must have had the competence to deal with the matter.

The power of this court, in confirmation proceedings, takes the form of a review of the constitutional matter to satisfy itself that the order of constitutional invalidity was correctly made: see S v C (A Juvenile) (Justice for Children's Trust and Zimbabwe Lawyers for Human Rights Intervening as Amici Curiae) 2019 (2) ZLR 12 (CC) and Mupungu v Minister of Justice Legal & Parliamentary Affairs CC07-21.

In Makamure v Minister of Public Service, Labour and Social Welfare and Anor CC01-20 MALABA CJ pertinently posited the following:

“The Court is also not bound by the order of constitutional invalidity made by the court a quo. In S v Chokuramba CC10-19, the Court held at p6 of the cyclostyled judgment as follows:

'The Court is empowered to confirm an order of constitutional invalidity only if it is satisfied that the impugned law or conduct of the President or Parliament is inconsistent with the Constitution. It must conduct a thorough investigation of the constitutional status of the law or conduct of the President or Parliament which is the subject-matter of the order of constitutional invalidity. The Court must do so irrespective of the finding of constitutional invalidity by the lower court and the attitude of the parties.'”

The Court therein noted, that, the invalidity of the law or conduct was a legal consequence of a finding of inconsistency between the law and conduct which the Court might not necessarily be in agreement with.

Thus, the Constitutional Court is empowered to confirm an order of constitutional invalidity only if it is satisfied that the impugned law or conduct of the President or Parliament is indeed inconsistent with the Constitution.

See also Phillips and Anor v Director of Public Prosecutions and Ors 2003 (3) SA 345 (CC)…,.

Given the foregoing, it seems to me that three issues arise for determination:

(i) The first is whether the court should have found that the matter was res judicata, and, as a consequence, declined exercising its jurisdiction in determining the application.

(ii) The second, but quite fundamental issue, is whether a proper constitutionally based cause of action was placed before the court a quo justifying its assumption of jurisdiction and the order that it made.

The respondents contend, that, the lack of specificity in pleading the cause of action should have non-suited the applicants before the court a quo.

(iii) The third is whether the court a quo should have declined to consider the alleged unconstitutionality of the Directive based on the doctrine of subsidiarity, as argued by the respondents.

WHETHER THE CAUSE OF ACTION WAS PROPERLY PLEADED

The applicants a quo approached the court in terms of section 85(1)(a) of the Constitution.

The procedure in section 85(1)(a) of the Constitution is a direct enforcement procedure for the enforcement of fundamental rights and liberties. It is meant to secure constitutional remedies.

It cannot be invoked in respect of non-constitutional remedies.

The applicants founded their locus standi to institute legal proceedings in terms of section 85(1)(a) of the Constitution on the premise of an allegation of the violation of the right to property as enshrined under section 71 of the Constitution.

What the applicants filed in the High Court can best be described as a hybrid application.

They claimed locus standi to approach the court for a declaration of invalidity on an alleged violation of a right and in that respect invoked section 85(1) of the Constitution.

A court that is approached in terms of section 85(1)(a) of the Constitution cannot exercise its jurisdiction on any other matter besides matters that seek redress for direct and actual infringements or likely infringements of fundamental rights and freedoms set out in the Bill of Rights.

Thus, where the court is approached in terms of section 85(1)(a) of the Constitution, it must not involve itself in the determination of non-constitutional issues.

It is evident that the proceedings a quo went beyond the enforcement of fundamental rights and freedoms contained in Chapter 4 of the Constitution.

It is common cause that the application for constitutional relief was conjoined with a cause of action based on non-constitutional relief.

It is also not in dispute that the applicants sought the declaration of invalidity of the Exchange Control Directive on the basis that it violated the right to property as enshrined in section 71(2) of the Constitution.

Further to this, a declarator was prayed for to the effect, that, the conversion of USD142,000 to RTGS142,000 was unconstitutional and invalid as it violated section 71(2) of the Constitution.

The order sought further included a declarator to the effect, that, the Directive was grossly unreasonable and ultra vires section 35(1) of the Exchange Control Regulations, Statutory Instrument 109 of 1996. This relief is not available under section 85(1) of the Constitution upon which they sought to establish locus standi for approaching the court a quo.

The order was not concerned with a violation of a constitutional right.

It has been emphasised in a plethora of judgments of this Court, that, once a litigant pleads their locus standi under the ambit of section 85 of the Constitution, the application must meet certain requirements.

The specificity in pleading locus standi is of prime consideration.

In Zimbabwe Human Rights Association v Parliament of Zimbabwe and Ors CC06-22, PATEL JCC advanced the following:

“In essence, what the applicant has purported to do is to proceed under two mutually exclusive provisions of the Constitution, viz. section 85(1) and section 167(2)(d). This course of action was pointedly frowned upon in Central African Building Society v Stone & Ors SC15-21, at p.17, para. 38, where GWAUNZA DCJ observes that:

'..., an application under section 85 of the Constitution should not be raised as an alternative cause of action...,. Section 85(1) is a fundamental provision of the Constitution and an application under it, being sui generis, should ideally be made specifically and separately as such.'”...,.

See also Law Society of Zimbabwe v Parliament of Zimbabwe & Ors CC10-23.

In casu, it is evident that the applicants conflated the constitutional application under section 85 of the Constitution with a non-constitutional cause of action.

The link between the two is impermissible, in that, in conjunction with a declaration of invalidity, they sought a declaration that Exchange Control Directive No. R120/2018 be declared grossly unreasonable and ultra vires its enabling provision, section 35(1) of the Exchange Control Regulations 1996.

The latter did not envisage the enforcement of a fundamental right under section 85(1) of the Constitution as pleaded in the founding affidavit establishing locus standi.

I have no hesitation in stating, that, not only is this impermissible but the procedure adopted was grossly irregular.

Further to the above, the applicants application, purportedly made in terms of section 85(1)(a) of the Constitution, did not specifically plead an infringement of any of their fundamental rights and freedoms.

The law is settled, that, in constitutional litigation, the constitutional issue to be decided by the court must be specifically pleaded. The requirement of specificity in constitutional litigation cannot be overlooked.

The procedural requirement for specificity in pleading requires that the challenged legislation and the grounds of such challenge be properly raised in pleadings.

There is need for accuracy in pleading in constitutional litigation and the required accuracy in pleading cannot be overlooked. It is critical in the determination of the issues to be decided by the court: see Philips & Ors v National Director of Public Prosecutions 2006 (1) SA 505 (CC)…, and Shaik v Minister of Justice & Constitutional Development 2004 (3) SA 599.

The failure to plead a cause of action with the required accuracy and specificity in the matter a quo was fatal.

Despite the irregularity and the inherent conflict, the court a quo found that the Directive was not grossly unreasonable but still granted an order declaring it ultra vires the Exchange Control Regulations.

It also found, that, the Reserve Bank was empowered to issue Directives under the Regulations.

By eschewing fundamental constitutional principles, the court a quo determined an application that was improperly placed before it.

It must be reiterated that issues regarding the cause of action are rooted in law and not abstract personal convictions.

Thus, the court a quo, by failing to recognise the sui generis nature of an application whose genesis emanates from section 85 of the Constitution grossly misdirected itself by assuming jurisdiction over two conflicting causes of action, the determination of which was reposed under different species of the law.

On this score alone, the order granted by the court a quo cannot be confirmed by this Court as the conflated application was not properly before it.

As regards the Directive, the court a quo considered both issues, the constitutional and the non-constitutional.

First, it declared paragraph 2.5 and paragraph 2.6 of the Directive as being ultra vires section 35(1) of the Exchange Control Regulations S.I.109/1996. It then proceeded to set the provisions aside.

Effectively, therefore, the paragraphs in question were no longer of any force or effect.

Unlike a declaration of constitutional invalidity, a declaration that a provision is ultra vires its parent statutory provision does not require confirmation by this Court.

It stands to reason, therefore, that, once the court a quo made this declaration, the paragraphs were no longer law. They ceased to exist.

Notwithstanding the declaration of invalidity, and the consequential setting aside of the paragraphs in question, the court a quo then proceeded to declare that the same paragraphs violated section 71 of the Constitution.

The court could not logically declare invalid a provision that it had already set aside....,.

The applicants approached the court in terms of section 85(1)(a) of the Constitution. The procedure contemplated in section 85 of the Constitution is a direct enforcement procedure for the enforcement of fundamental rights and freedoms.

The provision cannot be invoked in respect of non-constitutional remedies.

The cause of action seeking the invalidation of the Exchange Control Directive R120/2018 on the basis that it is ultra vires section 35(1) of the Exchange Control Regulations 1996 had no relationship with the protection and enforcement of fundamental rights and freedoms contained in the Declaration of Rights.

The same applies to the cause of action seeking the payment of USD142,000.

To the extent that the application comprised two composite causes of action, on the one hand, constitutional and the other non-constitutional, it was therefore improperly before the court a quo.

By a combination of imprecise pleading and improper conflation of constitutional and non-constitutional issues in one application, there was no valid constitutional application before the court a quo.

The fact that it was contended by the applicants that the Exchange Control Directive R120/2018 is ultra vires section 35(1) of the Exchange Control Regulations 1996 is evidence that there was no ripe constitutional question.

CC06-23 : COSSAM CHIANGWA vs APOSTOLIC FAITH MISSION IN ZIMBABWE
Ruled By: MAKARAU JCC, GOWORA JCC and PATEL JCC

On 25 January 2022, the applicant filed an application seeking direct access to this Court in terms of section 167(5)(a) of the Constitution of Zimbabwe 2013 (“the Constitution”) as read with Rule 21(2) of the Constitutional Court Rules 2016 (“the Rules).If leave is granted, it is his intention to file ...

View Appeal
HH118-23 : PENELOPE STONE and RICHARD BEATTIE t/a Stone/Beattie Studio Partnership vs CENTRAL AFRICA BUILDING SOCIETY and RESERVE BANK OF ZIMBABWE and MINISTER OF FINANCE & ECONOMIC DEVELOPMENT
Ruled By: MAFUSIRE J

Issue estoppel is a species of res judicata: Munemo v Muswera 1987 (1) ZLR 20 (SC)…,.They are almost analogous concepts: Galante v Galante (1) 2002 (1) ZLR 144 (H)…,.Issue estoppel has been described in Mills v Cooper [1967] 2 ER 100, per LORD DIPLOCK, as follows…,.:“A party to civil proceedings ...

View Appeal
HH118-23 : PENELOPE STONE and RICHARD BEATTIE t/a Stone/Beattie Studio Partnership vs CENTRAL AFRICA BUILDING SOCIETY and RESERVE BANK OF ZIMBABWE and MINISTER OF FINANCE & ECONOMIC DEVELOPMENT
Ruled By: MAFUSIRE J

There remains the aspect of the Exchange Control Directive RT120/2018 allegedly being ultra vires the enabling legislation, namely, section 35(1) of the Exchange Control Regulations.Unhappily, counsel have not exhaustively and systematically synthesised this particular point, either in their heads of argument or in oral submissions....,.In the present proceedings, it is ...

CC08-23 : QEDISANI MACHINE vs SHERIFF OF ZIMBABWE and ZB BANK LIMITED and REGISTRAR OF DEEDS and PAPERHOLE INVESTMENTS (PVT) LTD
Ruled By: GARWE JCC, MAKARAU JCC and HLATSHWAYO JCC

This is an application for direct access to this Court.If the application is granted, it is the applicant's intention to approach this Court in terms of section 85(1)(a) of the Constitution of Zimbabwe, alleging and arguing that a judgment of the Supreme Court, handed down on 31 December 2020, infringed ...

This is an application for direct access to this Court.

If the application is granted, it is the applicant's intention to approach this Court in terms of section 85(1)(a) of the Constitution of Zimbabwe, alleging and arguing that a judgment of the Supreme Court, handed down on 31 December 2020, infringed his dual rights to equal protection and benefit of the law and to a fair hearing before an independent and impartial court....,.

I start with the allegation that the failure by the court a quo to determine the issues that were before it infringed the applicant's right to equal protection and benefit of the law as guaranteed by section 56(1) of the Constitution of Zimbabwe.

After hearing the parties at the first hearing, this Court directed the parties to make further submissions on the content of the fundamental right that is guaranteed under section 56(1) of the Constitution.

This was so because, whilst in his papers filed of record the applicant had alleged that his rights as protected by this section had been violated, in oral argument, he appeared to be relying entirely on the right to due process as guaranteed by section 18(1) of the repealed Constitution.

We are indebted to counsel for the additional submissions and oral arguments....,.

Section 18 of the repealed Constitution provided that:

“18 Provisions to secure protection of law

(1) Subject to the provisions of this Constitution, every person is entitled to the protection of the law.”

The content of the right, as provided for by the section, was interpreted to be nothing more than the right to demand and be protected by the due process of the law. It thus protected every person against arbitrary decisions that do not follow the laid down precepts of the law - be they substantive or adjectival: see Martin v Attorney-General 1993 (1) ZLR 153 (SC); Mawarire v RG Mugabe and Others CC01-13 and Matiashe v Mahwe N.O. and Another CC12-14.

With the adoption of the Constitution, the right to the protection of the law was re-enacted and provided for in section 56.

It is common cause that section 56(1) is differently worded from section 18 of the repealed Constitution....,.

Section 56(1) of the Constitution provides 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.”

The right to the protection and benefit of the law, as guaranteed by section 56(1), has been construed narrowly: see Nkomo v Minister of Local Government, Rural and Urban Development and Others 2016 (1) ZRL 113 (SC) and Marx Mupungu v Minister of Justice, Legal & Parliamentary Affairs and Others CC07-21.

Thus, instead of the right to the protection and benefit of the law being a right to due process simpliciter, the right guaranteed by section 56(1) of the Constitution has been modified or discoloured, as it were, by the insertion of the word “equal” in the provision immediately preceding the right.

An applicant seeking to rely on the right must not only allege and prove non-observance of due process but now bears the additional onus of alleging and ultimately showing that other persons similarly positioned are afforded the protection and benefit of the law that he or she craves.

In Nkomo v Minister of Local Government, Rural and Urban Development and Others 2016 (1) ZRL 113 (SC), it was held that section 56(1) of the Constitution provides equality to all persons before the law and the right to receive the same protection and benefit afforded by the law to “persons in a similar position.”…,.

Similarly, in Marx Mupungu v Minister of Justice, Legal & Parliamentary Affairs and Others CC07-21 it was observed, in part, that:

“…,. What this provision means is that all persons in a similar position must be afforded equality before the law and the same protection and benefit of the law.”…,.

I do not read the above cases as having changed the core content of the right to the protection of the law as upheld by this Court prior to 2013.

I read the above cases as qualifying that right, or, as PATEL JCC put it in Marx Mupungu v Minister of Justice, Legal & Parliamentary Affairs and Others CC07-21 as simply “narrowing” the scope of the enjoyment of the right.

Put differently, I do not read the judgments of this Court as requiring more than a specific averment and a demonstration by the facts alleged in the founding papers, that, similarly placed litigants were afforded the right that the applicant wishes to assert.

Viewed in this sense, the averment will, in the converse, mean that denying the applicant the right in such circumstances will amount to denying him or her equal treatment before the law. This will obviously constitute a violation of the right embodied in the section.

I am fortified in making this finding from the words of ZIYAMBI JCC in Nkomo v Minister of Local Government, Rural and Urban Development and Others 2016 (1) ZLR 113 (SC)…, where her Ladyship cites with approval the dicta in Van der Walt v Metcash Trading Ltd 2002 (4) SA 317 (CC) to the effect, that, the South African equivalent of our section 56(1) of the Constitution means that all persons in a similar position must be afforded the same right to access the courts and to the same fair and just procedures with regards to such access.

In finding against the applicant in that matter, her Ladyship continued:

“Clearly, the guarantee provided by section 56(1) is that of equality under the law. The Applicant has made no allegation of unequal treatment or differentiation. He has not shown that he was denied protection of the law while others in his position have been afforded such protection. He has presented the Court with no evidence that he has been denied equal protection and benefit of the law….,. In short, the applicant has come nowhere near establishing that his right enshrined in section 56(1) of the Constitution has been infringed. He is therefore not entitled to a remedy.”...,.

I am aware that the requirement to specifically plead and ultimately prove that other persons similarly placed were protected by and benefited from the law might appear superfluous and pedantic...,.

However, the position of the law is that it is necessary that in all instances where the right is invoked, the equality before the law and the equal treatment under the law that the section envisages is specifically pleaded and ultimately proved, even if, in some instances, the proof thereof will be common cause or easy to furnish....,.

The applicant maintained that the position of this Court, holding that pleading unequal treatment or differentiation whenever this right is invoked is a requirement, was erroneous and ought to be set aside by a full Bench of the Court.

Put differently, he submitted that this Court ought to reverse itself.

In pressing his argument in this regard, the applicant made no attempt to distinguish the facts of this matter from the cases cited above that give a narrow interpretation of the right guaranteed by section 56(1) of the Constitution.

He did not seek to side-step the ratio decidendi of those cases but simply attacked such as being erroneous.

He thus did not lay any possible basis upon which this Court can contemplate revisiting the position that it has taken in interpreting the provisions of section 56(1) of the Constitution.

He cannot be helped.

It is common cause that the applicant did not plead his case with the requisite particularity that would have brought him within the ambit of the alleged breach of the fundamental right protected under section 56(1) of the Constitution.

CC12-23 : DIVINE HOVE vs PARLIAMENT OF ZIMBABWE
Ruled By: GWAUNZA DCJ, GARWE JCC, MAKARAU JCC, GOWORA JCC, HLATSHWAYO JCC, PATEL JCC and GUVAVA AJCC

At the end of proceedings in this matter, by unanimous decision, the Court issued an order as follows:

“1. It is declared that in respect of S.I.144 of 2022, which was published in the Gazette dated 19 August 2022, the respondent failed to fulfil its constitutional obligation under section 152 of the Constitution.

2. The respondent is ordered to comply with its constitutional obligation under section 152 of the Constitution by not later than close of business on the 16th of June 2023.

3. There shall be no order as to costs.

4. Reasons for this order are to follow in due course.”

The following are the reasons for the order handed down by the full bench of this Court.

The Background

The applicant is the President of a political party known as the Nationalists Alliance Party and is a member of the Political Actors Dialogue (“the POLAD”). He stood for election to the office of President during the 2018 harmonised elections.

The respondent is the Parliament of Zimbabwe, the constitutional organ reposed with primary law-making authority in Zimbabwe.

The petition before this Court is centred around the allegation, that, the respondent failed to fulfil its purported constitutional obligation of examining every statutory instrument published in the Gazette and considering whether any provision of the statutory instrument contravened any provision of the Constitution.

More specifically, this contention relates to the Electoral (Nomination of Candidates) (Amendment) Regulations 2022 (No.1), Statutory Instrument 144 of 2022 (S.I.144/22), which was published in the Gazette dated 19 August 2022.

The impugned statutory instrument was published by the Zimbabwe Electoral Commission (hereinafter “ZEC”) on the aforesaid date.

It increased the nomination fee for aspiring presidential candidates in the imminent 2023 general elections and beyond, from US$1,000 to US$20,000. Similarly, the nomination fee for aspiring candidates for National Assembly and Senate elections was increased from US$50 to US$1,000.

It is these hefty and apparently prohibitive hikes, and, in particular, the perceived procedural irregularities that followed the promulgation of the Electoral (Nomination of Candidates) (Amendment) Regulations 2022 (No.1), SI144 of 2022 that drew the ire of the applicant.

In his founding papers before this Court, the applicant averred, that, as an ordinary citizen with aspirations to run for election as President, he would not be able to afford the US$20,000 nomination fee. He added that none of the members of his political party would be able to afford US$1,000 to run for public office as Members of Parliament.

Against this background, the applicant sought an order declaring that Parliament failed to fulfil its constitutional obligation in terms of section 152(3)(c) of the Constitution.

It was contended, that, the respondent had an immutable obligation to examine every statutory instrument published in the Gazette and consider whether any provision of the statutory instrument contravened any provision of the Constitution.

The applicant alleged, that, the respondent had failed to discharge this obligation in respect of the Electoral (Nomination of Candidates) (Amendment) Regulations 2022 (No.1), S.I. 144 of 2022.

He based his standing on the belief that every citizen of Zimbabwe has automatic standing to challenge any failure by an institution of the State to fulfil a constitutional obligation.

It was the applicant's view, that, the use of the words 'examine' and 'consider' in the cited constitutional provision required the respondent to take a serious view of the imperative to protect the supreme law of the land.

In this regard, it was contended that the respondent failed to fulfil its obligation in that it did not treat the Electoral (Nomination of Candidates) (Amendment) Regulations 2022 (No.1), S.I. 144/22 in accordance with the provisions of section 152(3)(c) of the Constitution, following which it should have produced a report on the constitutionality of the statutory instrument.

Alternatively, it was argued that the fact that the respondent did not find that the statutory instrument infringed the rights of citizens provided for and protected by section 67 of the Constitution was evidence of a failure to “examine” or “consider” the impugned Regulations within the contemplation of section 152(3) of the Constitution.

The appellant took aim at the respondent's perceived “lackadaisical” approach to the Electoral (Nomination of Candidates) (Amendment) Regulations 2022 (No.1), SI 144/22, which conduct was alleged to have failed to meet the requirement to 'examine' and “consider” within the meaning of section 152(3)(c) of the Constitution.

The applicant averred, that, no reasonable Parliament acting in compliance with the mandatory obligation under section 152(3)(c) of the Constitution would have failed to consider that the Regulations in the Electoral (Nomination of Candidates) (Amendment) Regulations 2022 (No.1),Statutory Instrument 144/22 were patently unconstitutional for infringing the electoral and civil rights of citizens under section 67 of the Constitution.

From the applicant's perspective, had the respondent performed its constitutional obligation, the Regulations ought to have been repealed or referred to this Court pursuant to paragraph 9 of the Fifth Schedule to the Constitution.

The requirement to pay the nomination fee, expressly in United States Dollars, was also stated to be an infringement of the rights contained in section 67 of the Constitution.

On the foregoing basis, the applicant sought the following order:

“1. That, it be and is hereby declared that in respect of Statutory Instrument 144 of 2022 which was published in the Gazette dated 19th August 2022, the Respondent (Parliament of Zimbabwe) failed to fulfil its constitutional obligation under section 152(3)(c) of the Constitution of examining every statutory instrument published in the Gazette and considering whether any provision of the statutory instrument contravenes any provision of the Constitution.

2. As a consequence arising from paragraph 1 of this order, that it be and is hereby declared that the Electoral (Nomination of Candidates) (Amendment) Regulations, 2022 (No.1): Statutory Instrument 144 of 2022 are null and void and of no force or effect.

3. There shall be no order as to costs.”

The respondent duly opposed the application.

Its opposing affidavit was deposed to by Jacob Mudenda, the Speaker of the National Assembly.

He refuted the allegation, that, the respondent had failed to fulfil a constitutional obligation. According to the respondent, the provisions of section 152(3)(c) of the Constitution were unambiguous — the obligation to examine every statutory instrument which had been published in the Gazette lay squarely on the Parliamentary Legal Committee (hereinafter “the PLC”).

Accordingly, the said provisions did not impose a constitutional obligation on Parliament itself, as was alleged by the applicant.

Contrary to the applicant's averments, the respondent submitted that the Parliamentary Legal Committee (PLC) did consider the Regulations on 26 September 2022, and, thereafter, resolved “not to issue a non-adverse certificate until they have had a meeting with the Zimbabwe Electoral Commission concerning the fees in Statutory Instrument 144 of 2022.”

Consequently, the Clerk of Parliament wrote a letter, on the same day, to the Zimbabwe Electoral Commission (ZEC) inviting it to appear before the Parliamentary Legal Committee (PLC).

By letter dated 28 September 2022, the Chief Elections Officer of the Zimbabwe Electoral Commission (ZEC) advised the Clerk of Parliament that ZEC was constrained in discussing the matter as it was sub judice. According to the respondent, this was the sole reason that the Parliamentary Legal Committee (PLC) had postponed its consideration of the Regulations until the High Court had passed its determination on their legality.

All in all, the respondent denied that the Parliamentary Legal Committee (PLC) had breached the Constitution in any way.

In any event, the respondent assiduously sought to distance itself from assuming responsibility for the Parliamentary Legal Committee's conduct. The respondent maintained, that, an alleged omission or breach by the PLC did not amount to failure by Parliament itself to fulfil a constitutional obligation.

Submissions by Counsel

Counsel for the applicant submitted, that, the applicant's locus standi was founded on section 2 of the Constitution.

It was described as the supremacy clause which provided a basis for the applicant to vindicate the supremacy of the Constitution as a citizen. He submitted, that, the obligation in terms of section 152(3)(c) of the Constitution was imposed on Parliament by virtue of being specifically imposed on the Parliamentary Legal Committee (PLC).

He referred to decisions of this Court from which it could be inferred that the actions of the Parliamentary Legal Committee (PLC) were attributable to the respondent itself.

He added that the Parliamentary Legal Committee (PLC), being a component of Parliament, was a functionary of the respondent and thus the cited obligation fell squarely upon the latter.

It was also contended, that, there were concessions on record by the respondent to the effect that it had not complied with its constitutional obligation.

Counsel for the applicant insisted that the said obligation could not be delayed by pending litigation on the same issue in the High Court.

This was so despite the import of Standing Order 98(1)(e) of the National Assembly Standing Orders (Public Business) Ninth Edition 2020.

The Standing Order provides that “no member shall, while speaking to a question –
(e)…, refer to any matter on which a judicial decision is pending.”

He submitted that the Standing Order applied only in respect of non–constitutional issues.

Counsel for the applicant also argued, that, the applicant was entitled to rely on the competence of the first respondent to carry out its constitutional obligations and that any perceived failure to pursue an Administrative Law action ought not to non–suit him before this Court.

Per contra, counsel for the respondent submitted, that, the respondent had clearly fulfilled the constitutional obligation in question, contrary to the applicant's position.

He referred to minutes of the Parliamentary Legal Committee (PLC) on record as evidence that the respondent had considered the constitutionality of the impugned statutory instrument. He argued that the process thereafter was only stalled by the Zimbabwe Electoral Commission's refusal to engage the PLC due to the pendency of litigation in the High Court.

He further reasoned, that, there was no timeline for submitting the report from the Parliamentary Legal Committee (PLC) to Parliament and that any order to that effect would be an undue intrusion into its domain.

In response, counsel for the applicant maintained, that, the Parliamentary Legal Committee (PLC) had a duty to examine and report on the constitutionality of the impugned statutory instrument. The two were deemed to be concurrent obligations that could not be separated as was argued on behalf of the respondent.

In this respect, he referred to Standing Order 36(6)(d) which specifically stipulates a twenty-six day period for the Parliamentary Legal Committee (PLC) to submit its report to Parliament.

After some initial reservation, counsel for the applicant accepted, that, a mandamus by the Court would be a competent remedy, consistent with the Court's authority under section 167(2)(d) of the Constitution to interfere with the respondent's processes....,.

Compliance with the Requirements of Rule 27

Rule 27 of the Constitutional Court Rules 2016 (the Rules) sets out what must be pleaded in an application under section 167(2)(d) of the Constitution.

The founding affidavit must explicate two elements:

(i) The constitutional obligation in question that is imposed on Parliament or the President; and
(ii) That which Parliament or the President has failed to do in respect of the constitutional obligation.

This Court has also prescribed, that, these two aspects must be set out with reasonable precision.

The litigant must plead his or her case with sufficient clarity so that both the Court and the other parties know what is being alleged: see Mliswa v Parliament of the Republic of Zimbabwe CC02-21; Mushoriwa & Ors v Parliament of Zimbabwe CC04-23.

In the instant case, the applicant has identified the constitutional obligation that has not been fulfilled in fairly clear terms. This is the obligation imposed upon the Parliamentary Legal Committee (PLC), in terms of section 152(3)(c) of the Constitution, to examine every statutory instrument published in the Gazette.

The applicant has also identified Parliament, through the Parliamentary Legal Committee (PLC), as the functionary that has failed to fulfil this obligation.

Lastly, this failure on the part of Parliament has been elaborated with sufficient precision and clarity.

Primarily, it is alleged that there is no report by the Parliamentary Legal Committee (PLC) demonstrating that the Electoral (Nomination of Candidates) (Amendment) Regulations 2022 (No.1), S.I.144/22 went through the procedure prescribed by section 152(3)(c) of the Constitution.

Alternatively, it is alleged, that, even if that procedure had in fact been complied with, the failure by Parliament to find that the Electoral (Nomination of Candidates) (Amendment) Regulations 2022 (No.1), SI 144/22 infringed the rights protected by section 67 of the Constitution evidenced a failure to “examine” and “consider” it within the contemplation of section 152(3)(c) of the Constitution.

Having regard to the foregoing, it is reasonably clear that the applicant has identified an alleged breach of a constitutional obligation that is averred to have been specifically imposed upon Parliament, through the Parliamentary Legal Committee (PLC).

I am accordingly satisfied, that, the applicant has properly pleaded a justiciable causa for the hearing and determination of this matter under section 167(2)(d) of the Constitution.

Once it is established that an applicant has properly pleaded his or her case in accordance with the requirements of Rule 27 of the Constitutional Court Rules, this Court is at large to exercise its relatively broad jurisdiction under section 167(2)(d) of the Constitution.

For present purposes, what is to be considered is the procedural adequacy of the impugned law or conduct rather than the substantive validity of that law or conduct.

Thus, the question to be adjudicated and determined in casu is whether or not Parliament has followed and complied with due process in the performance of the specific obligation imposed by section 152(3)(c) of the Constitution.

CC13-23 : PATRICIA DENGEZI vs MUNYARADZI NYAMURURU and XOLISAN MOYO and CHAMPIONS INSURANCE COMPANY LTD and COMMISSIONER GENERAL OF POLICE and MINISTER OF HOME AFFAIRS
Ruled By: MALABA CJ, GWAUNZA DCJ, GARWE JCC, MAKARAU JCC, GOWORA JCC, HLATSHWAYO JCC and PATEL JCC

This is a referral from the High Court (“the court a quo”) of a constitutional matter in terms of section 175(4) of the Constitution of Zimbabwe 2013 (“the Constitution”).

The question referred to this Court for determination is:

“Whether or not section 70 of the Police Act, which sets the prescription period of eight (8) months for any person to institute civil proceedings against the Police, is ultra vires section 56(1) and 69(3) of the Constitution and therefore unconstitutional.”

It seems to me that the matter ought to be struck off the roll for two reasons:

(i) The first is that the referral was improperly made. I say this because, the issue of prescription not having arisen in proceedings before the court a quo, that court could not have properly referred the matter to this Court for determination in terms of section 175(4) of the Constitution.

(ii) The second, though ancillary reason, is that the matter set down before the court a quo, at the commencement of which this referral was made, was rendered abortive following the death of the presiding Judge.

The referral of the matter to this Court suffers from these deficiencies and must, as a consequence, be struck off the roll.

The reasons for the foregoing now follow.

FACTUAL BACKGROUND

The applicant is Patricia Dengezi who operates as an informal trader. The first and second respondents are, respectively, Munyaradzi Nyamururu and Xolisan Moyo. The first respondent was employed by the second respondent as a driver of a commuter minibus owned by the second respondent. The third respondent is Champions Insurance Company (Private) Limited, the third-party insurer of the commuter minibus owned by the second respondent. The fourth and fifth respondents, respectively, are the Commissioner General of Police and the Minister of Home Affairs.

The facts of this matter are largely common cause.

The applicant was in the informal business of vending. On 17 April 2017, while selling her wares from a pavement on Chinhoyi Street, close to Robert Mugabe Avenue in Harare, she was involved in a tragic accident. In her company was her son who was aged one year and two months.

In her declaration, she stated that on that fateful day, three officers of the Zimbabwe Republic Police who were carrying out their duties along Robert Mugabe Street threatened to arrest and intimidated certain commuter minibus drivers who were driving their vehicles in the area. Consequently, the commuter minibuses haphazardly sped off, in the process, driving against oncoming traffic moving along Chinhoyi Street, which is a one-way street.

The applicant alleges, that, as a result of the unlawful actions of the Zimbabwe Republic Police, the commuter minibus that was being driven by the first respondent, though travelling in the proper vehicular direction, veered off the road, hit the applicant and “smashed” her son who was killed immediately.

On 9 April 2018, almost a year later, the applicant sued out a summons commencing action out of the High Court at Harare claiming damages arising out of the said road traffic accident.

In her declaration, she made several claims for damages against the respondents.

The applicant's case before the court a quo was that, although the accident was caused by the first respondent, it was members of the Zimbabwe Republic Police who instigated the melee that resulted in the fatal incident. She alleges that the details from the Zimbabwe Republic Police were reckless and negligent and that they ought to have realized that their unlawful actions and intimidatory behaviour would “unleash [a] foreseeable chain of events including the loss of life.”

The third (Champions Insurance Company Limited), as well as the fourth and fifth respondents (Commissioner General of Police and Minister of Home Affairs), entered appearance to defend, and, in their pleas, denied liability.

The third defendant essentially pleaded that it has no knowledge of the facts forming the applicant's cause of action. On their part, the fourth and fifth respondents have pleaded that the actions of the officers of the Zimbabwe Republic Police were not unlawful and that they were not responsible for the death of the applicant's minor child.

That was the essence of their plea.

They said nothing about prescription and whether the claim should be dismissed on that basis. In their separate pleas, they simply prayed that the claim be dismissed with costs.

The applicant replicated to the pleas.

Following that replication, a pre-trial conference was convened before a Judge of the court a quo. For the purpose of that pretrial conference, the fourth and fifth respondents proposed three issues for determination in their pre-trial minute filed a quo. The proposed issues for determination were stated to be:

“1. Whether or not the plaintiff's claim has prescribed in terms of section 70 of the Police Act [Chapter 11;10].

2. Whether or not the police officers negligently caused the accident in question.

3. Whether or not the plaintiff is entitled to damages which are claimed.”

The record of the proceedings of the court a quo reveals that on 16 May 2019, following a pre-trial conference, three issues were referred for trial. These were:

(i) Whether the police officers controlling the traffic along Robert Mugabe Avenue were negligent;
(ii) If so, the quantum of damages payable by the State; and, lastly
(iii) The extent of damages recoverable from the insurance company.

It bears mention at this stage, that, the parties did not regard as an issue for determination the question whether or not the applicant's claim had prescribed in terms of section 70 of the Police Act [Chapter 11:10] (“the Police Act”).

Just before the trial commenced in the court a quo, on 14 February 2022, following what appear to have been informal discussions with the fourth and fifth respondents counsel, the applicant filed an affidavit in support of a request to refer a matter to this Court in terms of section 175(4) of the Constitution.

Therein, the applicant alleged that two issues had arisen, namely:

(i) The constitutionality of section 23(3)(b) and (c) of the Road Traffic Act [Chapter 13:01] (“the Road Traffic Act”); and of
(ii) Section 70 of the Police Act.

The applicant pertinently averred that:

“24. During the course of proceedings today, despite the fact that the Commissioner General and the Minister of Home Affairs had not insisted on prescription, today, they insisted that my matter was prescribed.

25. I could not bring legal proceedings within six months as I was ill, and, in any event, mourning the loss of my child.

26. I however contend, that, section 70 of the Police Act is clearly unconstitutional.

27. Why, for instance, should the police have protection when every other defendant, including the President or large corporations like Delta or Econet, do not have the same six months protection.

28. Clearly, section 70 is unconstitutional and I make reference to the judgment of Justice Tsanga in another related matter.”

Two days later, on 16 February 2022, the parties then filed what they termed a Statement of Agreed Facts “for reference to the Constitutional Court in terms of Rule 108(4) of the High Court Rules, SI 202/2021.”

Therein, the parties outlined the facts that they considered to be “common cause”.

However, contrary to the fourth and fifth respondents plea, to which reference has already been made, the parties purported to agree that “the fourth defendant, [the] Commissioner General of Police, had pleaded prescription based on the fact that the summons was issued way after the 8 months provided for by section 70 of the Police Act.”

The request for the referral of the questions relating to the constitutionality of section 23(3)(b) and (c) of the Road Traffic Act and section 70 of the Police Act was heard by the court a quo, per MAKOMO J, on 14 May 2022, on the basis of the applicant's affidavit filed in support of the said request and the Statement of Agreed Facts.

The reasons for the court a quo's determination on the request were delivered on 10 October 2022.

The court a quo concluded, that, the request to refer the question relating to the constitutionality of section 70 of the Police Act was not frivolous and vexatious and accordingly granted the request. However, the request relating to the question of the constitutionality of section 23(3)(b) and (c) of the Road Traffic Act was found to be frivolous and vexatious and was therefore refused.

Consequently, the court a quo only referred the question relating to the constitutionality of section 70 of the Police Act to this Court for determination and stayed the proceedings before it pending the determination of the question referred to this Court.

Sadly, on 25 December 2022, before this matter could be heard and finalised by this Court, Mr Justice MAKOMO, the presiding Judge a quo, passed on.

APPLICANT'S SUBMISSIONS BEFORE THIS COURT

At the commencement of the hearing, the Court directed the parties to advance submissions on the question whether or not the referral was properly made.

Counsel for the applicant submitted, that, the matter was properly referred to this Court.

This, so he submitted, was because, if a constitutional matter arises in non-constitutional proceedings before a lower court, the lower court has no jurisdiction to itself determine the constitutional matter but must refer the matter to this Court.

In counsel for the applicant's view, the fact that the defence of prescription had not been pleaded by the respondents, as defendants, was not a bar to the raising of a constitutional matter.

Further asked during oral submissions whether the death of the presiding judge a quo had any effect on the validity of the referral, counsel for the applicant contended, that, the Judge a quo had become functus officio on the referral and that his judgment referring the constitutional question to this Court remained extant.

As such, the referral can properly be determined by this Court, and, thereafter, the matter can proceed before another judge of the High Court for a final determination of all the issues raised in the pleadings before the court.

FOURTH AND FIFTH RESPONDENTS SUBMISSIONS BEFORE THIS COURT

Counsel for the fourth and fifth respondents submitted, that, although no evidence had been led before the late Mr Justice MAKOMO, the proceedings had indeed commenced before him. She stated that the “special plea” on prescription was raised in the fifth respondent's pre-trial conference minute but conceded that it was not identified as an issue requiring determination at the trial.

On whether the question relating to the constitutionality of section 70 of the Police Act had arisen before the court a quo, it was her submission, that, the issue indeed arose before MAKOMO J.

ISSUES ARISING FOR DETERMINATION

The main issue that arises before this Court is whether the court a quo properly referred the matter to this Court. Put otherwise, this Court essentially has to determine whether or not section 175(4) of the Constitution, regulating the referral of constitutional matters to this Court, was complied with.

A further but incidental issue that arises from the facts of this case is whether the passing on of MAKOMO J had any effect on the referral. Put another way, the question is whether the referral, in any event, became a nullity following his demise.

This Court, in various decided cases, has stressed, that, in respect of matters referred in terms of section 175(4) of the Constitution, it is always obliged to determine whether a referral was properly made.

If a referral is not properly before the Court, it will be disposed of, without further ado, on that ground alone: see S v Nyathi CC16–19…,.; Muhala & Others v Mukokera 2019 (1) ZLR 294 (CC); Nyagura v Ncube & Others 2019 (1) ZLR 521 (CC)…,.; and S v Mwonzora & Others CC09–15…,.

WHETHER OR NOT THE REFERRAL OF THE CONSTITUTIONAL MATTER WAS PROPERLY MADE

The resolution of the question whether the instant referral was properly made requires this Court to examine whether there was a valid plea of prescription before the court a quo, taken on the basis of the prescriptive period set out in section 70 of the Police Act.

There would have been a need for the court a quo to have decided whether the validity of section 70 of the Police Act had been engaged by the facts that were before it the moment a request to refer a constitutional matter to this Court was made.

If the constitutionality of section 70 of the Police Act had not arisen before the court a quo, there would have been no basis to refer a constitutional matter to this Court.

In considering whether there was a valid plea raising the constitutionality of section 70 of the Police Act before the court a quo, there is need for this Court to examine the law governing the raising of special pleas.

Such an examination does not directly involve the interpretation, protection, or enforcement of the Constitution but is a matter connected with a decision on a constitutional matter.

I digress momentarily to discuss what constitutes an issue connected with a decision on a constitutional matter.

Section 167(1)(b) of the Constitution provides that:

“(1) The Constitutional Court —

(a)…,.

(b) Decides only constitutional matters and issues connected with decisions on constitutional matters, in particular, references and applications under section 131(8)(b) and paragraph 9(2) of the Fifth Schedule;”

We have not, as a jurisdiction, had occasion to clearly define what constitutes “issues connected with decisions on constitutional matters” as provided in section 167(1)(b) of the Constitution.

In this regard, it may be necessary to have regard to a number of decisions by the South African Constitutional Court.

Given that this Court only decides constitutional matters, an issue connected with a decision on a constitutional matter must be preceded by a constitutional matter and the determination of the issue must essentially be inseparable from the decision on the constitutional matter.

In Rushesha & Others v Dera & Others CC24–17…, this court expressed the view that the word “connected” in section 167(1)(b) of the Constitution means that the issue must bear a relationship to the decision on a constitutional matter.

In the leading South African case of Alexkor Ltd and Another v Ritchersveld Community and Another 2004 (5) SA 460 (CC)…, the Constitutional Court remarked that “when any factum probandum of a disputed issue is a constitutional matter, then, any factum probans bearing logically on the existence or otherwise of such factum probandum, is itself an issue 'connected with [a] decision on [a] constitutional matter.'”

In S v Basson 2005 (1) SA 171 (CC)…, the court further remarked that “legal and factual matters that need to be decided in order to determine a constitutional matter are issues connected with a decision on a constitutional matter.”

The enquiry that this Court sets out to make, of whether or not section 70 of the Police Act had been engaged and pleaded a quo so as to give rise to a constitutional matter, is clearly an issue connected with a decision on a constitutional matter.

The issue is connected with the decision that this Court is required to make on the constitutional question as to whether or not the present referral is valid.

Any question as to whether or not a referral was made in accordance with the provisions of the Constitution and is valid is no doubt an important question that this court must determine.

In the past, this Court has held that it has no discretion to condone a departure from the Constitutional provisions regulating the referral of constitutional matters: see Mukoko v Commissioner General of Police & Others 2009 (1) ZLR 21 (S)…,. and S v Kisimusi & Others CC01–14…,.

Bearing the above in mind, I now turn to consider whether the provisions of section 70 of the Police Act had been properly engaged in the proceedings before the court a quo so as to give rise to a constitutional matter.

Put another way, the issue that now arises is whether the validity of the prescriptive period in section 70 of the Police Act had been specially pleaded and therefore arose in proceedings before the court a quo.

It is only if the validity of section 70 of the Police Act properly arose in the proceedings that the question of its constitutionality could have arisen.

It is a settled position in our adjectival law, that, the appropriate procedure available in a situation where a party intends to plead the defence of prescription is through a special plea.

In Brooker v Mudhanda & Anor: Peace Mudhanda & Anor 2018 (1) ZLR 33, 38F-G, a decision of the Supreme Court of Zimbabwe, the court remarked as follows at p38F-G:

“The defence of prescription should not be raised by way of exception but must be specifically pleaded. The plea must set out sufficient facts to show on what the defence is based. However, due to its nature, the plea of prescription is a special plea. Such a plea is provided for in the High Court Rules 1971. Order 21 Rule 137 specifies the manner in which a party wishing to rely on a special plea may raise such.”

Similarly, in Tendayi v Twenty Third Century Systems (Pvt) Ltd SC135–20…, the Supreme Court reiterated the position, that, the defence of prescription must be raised as a special plea. In no uncertain terms, the Court stated that:

“It is settled, that, the defence of prescription must be raised as a special plea for the reason, that, a plaintiff confronted with a claim of prescription may wish to replicate to the objection. This is particularly pertinent where a defendant pleads that a claim has prescribed with a plaintiff replicating that prescription has been interrupted.”

Section 70 of the Police Act and Part IV of the Prescription Act [Chapter 08:11] (“the Prescription Act”) are in pari materia. The provisions of the two statutes, considered together, accentuate the need to raise a plea of prescription by way of special plea.

In this regard, I first cite section 70 of the Police Act which states as follows:

“Any civil proceedings instituted against the State or member in respect of anything done or omitted to be done under this Act shall be commenced within eight months after the cause of action has arisen, and notice in writing of any such civil proceedings and the grounds thereof shall be given in terms of the State Liabilities Act [Chapter 8:15].”

In turn, section 13 of the Prescription Act provides that:

“13 Debts to which Part IV applies

(1) This Part shall, save in so far as it is inconsistent with any enactment which —

(a) Provides for a specified period within which —

(i) A claim is to be made; or

(ii) An action is to be instituted in respect of debt; or

(b) Imposes conditions on the institution of an action for the recovery of a debt;
apply to any debt arising on or after the 1st January 1976.”…,.

It is clear, from the foregoing, that, section 13 of the Prescription Act applies to any claim to be made or action to be instituted in respect of a debt except to the extent different provision is made in another statute.

Given that the Police Act provides for a specific prescriptive period for actions against the State, section 13(1) of the Prescription Act must be interpreted to mean that the Prescription Act applies to and regulates the defence of prescription to the extent that its provisions would not be inconsistent with the Police Act, and, in particular, the prescriptive period delineated in section 70 of that Act.

There are provisions of the Prescription Act that have direct application in proceedings in which a special plea has been raised on the basis of section 70 of the Police Act.

The first is section 2 of the Prescription Act which defines the term “debt” to mean, without limiting the meaning of the term, anything which may be sued for or claimed by reason of an obligation arising from statute, contract, delict or otherwise.

The second significant provision of the Prescription Act is section 16, which states thus:

“16 When prescription begins to run

(1) Subject to subsections (2) and (3), prescription shall commence to run as soon as a debt is due.

(2) If a debtor wilfully prevents his creditor from becoming aware of the existence of a debt, prescription shall not commence to run until the creditor becomes aware of the existence of the debt.

(3) A debt shall not be deemed to be due until the creditor becomes aware of the identity of the debtor and of the facts from which the debt arises:
Provided that a creditor shall be deemed to have become aware of such identity and of such facts if he could have acquired knowledge thereof by exercising reasonable care.”…,.

Section 17 then provides, that, if a creditor is prevented by superior force from interrupting the running of prescription in terms section 19(2), and the period of prescription would, but for the subsection, be completed before or on or within one year after the date on which the relevant impediment has ceased to exist, the period of prescription shall not be completed before the expiration of a period of one year which follows that date.

Section 18, in turn, provides for the interruption of prescription by an acknowledgement of liability whilst section 19 itemises instances of judicial interruption of prescription.

Several decisions of the courts in this jurisdiction have passed upon the necessity of determining when prescription began to run in any action in which the defence of prescription is raised and whether or not it was interrupted.

It is trite, that, as a general proposition, prescription generally begins to run from the date when the event giving rise to the claim occurs. However, the date on which a debt becomes due may be different. Prescription may also be delayed or interrupted.

For this reason, in the majority of matters coming before the courts, there is usually need for evidence to be led to establish when it started to run. The other party may also wish to lead evidence to show that the running of prescription was delayed or interrupted.

Thus, in Brooker v Mudhanda & Anor: Peace Mudhanda & Anor 2018 (1) ZLR at 39F, the Court pertinently remarked that:

“In a plea of prescription, the onus is on the defendant to show that the claim is prescribed, but if, in reply to the plea, the plaintiff alleges that prescription was interrupted or waived, the onus would be on the plaintiff to show that it was so interrupted or waived.”

And further, at 41A–B, the Court added:

“…, a special plea enables a litigant to obtain prompt resolution of a dispute because it either delays the proceedings or quashes them. Because of its ability to extinguish a claim, there is need for a judge faced with such a plea to hear evidence from the parties.”…,.

In light of the above, the defence of prescription has to be specifically pleaded and properly established by evidence.

Indeed, the Prescription Act itself provides, in section 20, that the defence of prescription must be specifically pleaded.

In casu, it is evident that the defence of prescription was not specifically pleaded.

A reading of the record of proceedings shows, that, although the issue first arose only in the fourth and fifth respondents draft pre-trial conference minute, it was never persisted with. Nor was any attempt made by the respondents, as fourth and fifth defendants, to amend their plea in order to introduce such a defence.

Before us, counsel for the fourth and fifth respondents accepted this to be the correct position.

The pleadings did not reflect that prescription was an issue. As a defence, it was not even mentioned during the pretrial conference that took place before a judge or in the conference minute prepared shortly thereafter. When the parties appeared before the court a quo on the first day of trial, it was not one of the issues requiring determination by the court.

In its judgment on the request to refer a constitutional matter to this Court, the court a quo, clearly misled by the Statement of Agreed Facts, incorrectly stated that “on filing her summons for damages and other claims, the applicant was met with a plea of prescription” by the fourth and fifth respondents in terms of section 70 of the Police Act.

That could not have been the case given that no such plea of prescription was ever made.

I conclude, therefore, that, the defence of prescription was never properly raised.

It is apparent, that, counsel for both the applicant and the fourth and fifth respondents had informal discussions just before the commencement of the trial. It was during these discussions that it appears the respondents indicated they were of the view that the claim had prescribed.

In the circumstances of this case, one can safely assume that the issue arose in vacuo.

The court a quo could not purport to refer a constitutional matter to this Court in respect of an issue that was not procedurally before it. Accordingly, the referral to this Court was not proper as the issue referred to this Court was not necessary for the court a quo to dispose of any of the issues arising in the matter before it.

In addition, without the benefit of a replication from the applicant on the claim of prescription informally raised by the fourth and fifth respondents, the court could not have assumed that prescription had run its course. The procedure for a referral made it incumbent for the court a quo to verify, in light of the pleadings filed in the matter before it, the accuracy of the Statement of Agreed Facts.

In accordance with the procedure set out in several judgments of this Court, there was a need for the court a quo to determine when the debt became due.

A reading of section 70 of the Police Act reveals, that, the court a quo had to make a specific finding that eight months had elapsed after the applicant obtained knowledge that her cause of action against the fourth and fifth respondents had arisen. The court should also have determined when the debt became due and whether the fact of the applicant's stay in hospital, captured in the parties Statement of Agreed Facts, would have, pursuant to section 17(1) of the Act, had any effect on such prescription.

In the absence of these factual findings, the referral was fatally defective.

In light of the foregoing, the undoubted corollary must be, that, the referral was improper and the matter should be disposed of on this basis.

CC13-23 : PATRICIA DENGEZI vs MUNYARADZI NYAMURURU and XOLISAN MOYO and CHAMPIONS INSURANCE COMPANY LTD and COMMISSIONER GENERAL OF POLICE and MINISTER OF HOME AFFAIRS
Ruled By: MALABA CJ, GWAUNZA DCJ, GARWE JCC, MAKARAU JCC, GOWORA JCC, HLATSHWAYO JCC and PATEL JCC

On the question of costs, none of the parties to this matter have sought costs.

HH304-13 : CHIDO MATEWA vs ZIMBABWE ELECTRICITY TRANSMISSION AND DISTRIBUTION COMPANY (ZETDC)
Ruled By: MATHONSI J

The defendant, who is the excipient in this matter, is an incorporation charged with the transmission and distribution of electricity in this country it being a subsidiary of ZESA Holdings Limited.

The plaintiff is a commercial farmer performing her trade at subdivision 1 of Dagbreek Farm in Nyazura, where she is engaged in the growing of tobacco and sugar beans.

The plaintiff sued out a summons out of this court against the defendant for payment of US$500,000 for loss of 30 hectares of tobacco crop and 20 hectares of sugar beans crop as well as US$200,000 being damages for consequential loss together with interest thereon and costs of suit.

In her declaration, the plaintiff averred that about October 2009 the defendant wrongfully and unlawfully confiscated electrical equipment at her farm in the form of meter boxes, cables, MCBs and other electrical gadgets. She averred further, that, in January 2010, and following an investigation into the circumstances of the removal of the electrical equipment, the defendant undertook to reinstate electricity at the plaintiff's farm upon a realisation that the plaintiff required it to irrigate her 30 hectares of tobacco and 20 hectares of sugar beans.

The plaintiff averred, that, the defendant advised her to continue with her activities as an instant installation of power was being undertaken.

However, the defendant disregarded its obligation to install electricity, which was wrongful, as a result of which her tobacco and sugar beans crops wilted due to moisture stress resulting in loss.

In paragraph 9 of the declaration, the plaintiff specifically averred that:

“9. Defendant's conduct was wrongful and unlawful and resulted in serious loss to the plaintiff.”

She therefore craved for compensation aforesaid.

The defendant excepted to the plaintiff's summons a follows:

“The defendant enters an exception to the plaintiff's summons based on the following grounds:

1. The summons and declaration served on it does (sic) not state a true and concise statement of the nature, extent, and grounds of the cause of action; more specifically, in that it omits an essential element of the cause of action. The summons does not specify whether the claim arises from a contractual obligation or delictual or any other basis on the part of (the) defendant.

2. (The) defendant therefore prays for a dismissal of the plaintiff's claim on the basis that the summons does not disclose a cause of action.”

Counsel for the defendant submitted, that, the plaintiff's summons does not disclose a cause of action as it does not specify whether the claim arises from a contractual obligation or a delictual one. The averment that the defendant's actions were wrongful and unlawful was not enough to found a cause of action.

In her view, in order to succeed in a suit for patrimonial loss under the acquilian action “the party must plead and prove” that the defendant committed a wrongful act which resulted in actual loss.

Therein lies the defendant's problem.

The determination of whether a claim is excipiable or not cannot be permissed on proof of an averment. Proof relates to evidence, which is the province of trial and not an exception.

The essence of any claim is located in the pleadings, whose function is to inform the parties of the points of issue between them to enable them to know, in advance, what case they have to meet, to assist the court define the limits of the action, and to place the issues on record; See BECK's Theory and Principles of Civil Actions, 5th ed…,.

To that extent, pleadings are required to be drawn in summary form, must be brief and concise, and must state only relevant facts and not evidence.

The seminal judgement of DAVIS J in Kahn v Stuart 1942 CPD 386…, sets out clearly how the court should approach the pleadings;

“…, the court should not look at a pleading with a magnifying glass of too high power. If it does so, it (is) almost bound to find flaws in most pleadings….,. It is so easy, especially for busy counsel, to make mistakes here or there, to say too much or too little, or to express something imperfectly.

In my view, it is the duty of the court, when an exception is taken to a pleading, first, to see if there is a point of law to be decided which will dispose of the case in the whole or in part. If there is not, then, it must see if there is any embarrassment, which is real and such as cannot be met by the asking of particulars…,. And, unless the excepient can satisfy the court that there is such point of law or such real embarrassment, then, the exception should be dismissed.”

It is crucial to note, that, a pleading is excipiable on the ground that it does not disclose a cause of action if no possible evidence led on the pleading can disclose such cause of action.

As stated by BEADLE AJ…, in McKelvey v Cowan N.O. 1980 (4) SA 525 (Z):

“It is a first principle in dealing with matters of exception, that, if evidence can be led which can disclose a cause of action alleged in the pleading, that particular pleading is only excipiable on the basis that no possible evidence led on the pleading can disclose a cause of action. That is the manner in which I approach this case.”

The plaintiff makes the statement in her declaration, that, the defendant removed electrical equipment from her farm wrongfully and unlawfully. She also states, that, at some stage, after some engagement, the defendant undertook to restore electrical power on realizing that she needed it for cropping purposes. It further advised her to continue with her farming activities on the promise that electricity would be restored without delay.

Notwithstanding all this, the defendant wrongfully failed to provide power resulting in loss of crops.

There is no doubt that the plaintiff's averments contain a lot of prolixity, are lengthy, tedious, and, the pleading is unnecessarily wordy. Indeed, the declaration could have been couched in more elegant terms than it is.

That, however, does not detract from the fact that the pleading bellies all the necessary averments.

If evidence can be led to prove the wrongfulness and unlawfulness of the defendants conduct, and to prove the existence of an undertaking made by the defendant to restore electricity at the plaintiff's farm, and the attendant knowledge that such was needed for irrigating crops, then, a cause of action would be established.

For that reason, the pleading cannot be said to be excipiable: see McKelvey v Cowan N.O. 1980 (4) SA 525 (Z).

I am not persuaded, that, the exception taken by the defendant has the object of settling the case, or part of it, in a cheap and easy manner, or that it has the object of protecting the defendant against an embarrassment so serious as to merit the costs of an exception: see Keeley v Heller 1903 TS 101.

If anything, the exception appears designed to confound the plaintiff. It is without merit.

HH329-13 : RICHARD JAMBO vs CHURCH OF THE PROVINCE OF CENTRAL AFRICA and ANGLICAN DIOCESE OF MASVINGO and DEPUTY SHERIFF CHIVHU N.O.
Ruled By: GUVAVA J

This matter was placed before me, on a certificate of urgency, in terms of Rule 242 of the High Court Rules as amended. I dismissed the application with costs because of the preliminary issues raised.

The applicant has requested written reasons for my decision. These are they.

The applicant filed an urgent application for stay of execution. The interim relief is in the following terms:

“(a) The 1st, 2nd, and 3rd respondents be and are hereby ordered to stay eviction and removal of the applicant from No.2 Daramombe High School.

(b) The 1st and 2nd respondents shall bear the costs of this application on a legal practitioner client scale.”

The facts of the matter, as set out in the applicant's founding affidavit, may be summarized as follows:

The applicant is employed as a boarding master at Daramombe High School. The first respondent is the Church of the Province of Central Africa, a registered religious organization. The second respondent is the Anglican Dioceses of Masvingo, a division of the first respondent.

The third respondent is the Deputy Sheriff, cited in his official capacity.

On 26 April 2000, the applicant was appointed as the boarding master of Daramombe High School. He was furnished with a house, being House No.2 Daramombe Mission. On or around 4 May 2000 to February 2009 the applicant was demoted to the post of caretaker and transferred to St Michaels Secondary School near Dorowa Mine in Buhera.

The applicant challenged his demotion and an arbitral award was made in his favour on 9 July 2009 and he was reinstated back to the post of boarding master at Daramombe High School.

On 12 December 2012, he was served with an order for his eviction from House Number 2 Daramombe Mission and to hand over all the Mission property in his possession to the first respondent.

The warrant of ejectment which was attached to his Notice of Ejectment does not cite the applicant as a party to the proceedings.

The applicant claims that there is no basis to evict him as there is no order against him.

He also states, that, the Supreme Court judgment SC48-12 does not cite him as a party and he does not claim occupation of the property through the Diocesan Trustees for the Diocese of Harare.

The application was opposed by the first and second respondents.

Counsel for the first and second respondents raised four points in limine:

(i) He argued, firstly, that, the application was not filed in accordance with Rule 241 of the High Court Rules. He submitted, that, on that basis alone, the application should be dismissed as there is no application for condonation for the failure to comply with the Rules;

(ii) Secondly, he submitted that the matter was not urgent as contemplated by the rules of the court;

(iii) Thirdly, he submitted that the applicant had not disclosed material facts to the court with regards to his case; and, finally

(iv) That, the second respondent should not have been cited as a party as it is not a persona but a geographical area.

I will deal with each of the points which were raised in limine....,.

2. Application is not Urgent/ Material Non-Disclosure of Facts

The applicant submitted, that, he acted timeously as he approached the court as soon as he was served with the Notice of Eviction.

It was submitted by counsel for the applicant, that, as the applicant was not cited as a respondent in the case of The Church of the Province of Central Africa v The Diocesan Trustees For The Diocese of Harare SC48-12 (the Supreme Court Judgment) it should not apply to him.

I was, however, not persuaded by the stance adopted by the applicant.

The background to the Supreme Court Judgment, The Church of the Province of Central Africa v The Diocesan Trustees For The Diocese of Harare SC48-12, was that in 2007 a dispute arose between the respondents and the Diocesan Trustees of the Dioceses of Harare. The issue was whether the people who had been members of the Board of Trustees for the Dioceses of Harare withdrew their membership from the first respondent and thereby lost their right to control property such as church buildings, houses, schools, motor vehicles, and funds in the bank.

The Supreme Court, in its judgment, ordered that the Diocesan Trustees for the Dioceses of Harare should deliver all the properties to the first respondent.

Prior to this judgment, the Trustees of the Dioceses of Harare had taken control of all the properties and appointed its own employees after evicting the first respondent's employees.

The Trustees for the Dioceses of Harare also re-appointed some employees who were already in the employ of the first respondent. The applicant appears to have fallen in this category of persons as he had been previously employed by the first respondent.

It was apparent to me, that, the issue of urgency should be dealt with together with the issue of the failure to disclose material facts to the court as it seemed to me the points were interlinked.

It was submitted by the respondent's counsel, that, the applicant deliberately failed to disclose to the court that he had been appointed to the post of boarding master through Bishop Kunonga and the Anglican Church of the Province of Zimbabwe.

In order to confirm this assertion, the first respondent attached to its opposing papers a copy of a letter from the Anglican Diocese of Harare, dated 23 April 2012, appointing the applicant to the post of Boarding Master with effect from 1 October 2011. The applicant accepted the appointment by the Anglican Church of the Province of Zimbabwe.

The applicant did not disclose these facts to the court in his founding affidavit.

It was quite apparent from the papers filed, that, the applicant was re-appointed by the Anglican Church of the Province of Zimbabwe.

The first respondent, following the Supreme Court judgment, issued out writs of execution to recover all the immovable properties - including the property occupied by the applicant.

The applicant should have been aware that his occupation of the property would be affected by the Supreme Court judgment as his appointment was as a result of the Anglican Church of the Province of Zimbabwe as he was no longer in the employee of the first respondent.

The eviction was ordered as far back as October 2012 - after the Supreme Court judgment.

There is no explanation in the certificate of urgency why the applicant did nothing from that date until he received the Notice of Eviction.

In the case of Kuvarega v The Registrar General & Anor 1998 (1) ZLR 188 CHATIKOBO J…, stated that urgency does not arise on the day of reckoning but arises when the need to act arises.

The applicant was aware of the need to act as far back as October 2012 but did nothing. He then sought to hide his failure to act by not disclosing facts which were material to this case.

This point was highlighted in the case of Leader Trade Zimbabwe v Smith HH131-03 where the court held, that, where an applicant gives false evidence, then, the application should be dismissed.

In my view, therefore, the application may be dismissed on this basis of these two points.

SC24-18 : MEDLOG ZIMBABWE (PVT) LTD vs COST BENEFIT HOLDINGS (PVT) LTD
Ruled By: GARWE JA, GOWORA JA and GUVAVA JA

The respondent issued summons out of the High Court seeking an order for the release of its plastic bags which were being retained by the appellant, payment of the sum of US$157,350=05 representing the business it lost as a result of such retention, and costs of suit on the scale of legal practitioner and client.

The respondent also sought payment of interest from the date of issue of summons to the date of payment in full.

After hearing evidence and submissions from the parties, the court a quo ordered the appellant to pay the sum of $157,350=05 to the respondent being damages for loss of business, interest on that sum at the prescribed rate, and costs of suit on the ordinary scale.

The present appeal is against that order.

FACTUAL BACKGROUND

The appellant is a company registered in accordance with the laws of Zimbabwe and carries on business from premises in Avondale, Harare. It is an agent of the Mediterranean Shipping Company (“Mediterranean Shipping”) a company that operates worldwide with its core business being the carriage of containers.

As agent, appellant's responsibility is to fulfil the obligations of Mediterranean Shipping by facilitating delivery of containerised cargo to the clients of Mediterranean Shipping in Zimbabwe.

In this particular instance, at the behest of Mediterranean Shipping, the appellant supervised the movement, by road, of the plastic bags, which were in a container, from the Port of Beira to Mutare Dry Port.

In Mutare, the appellant instructed the employees of the Port not to release the goods until certain monies were paid by the respondent.

It is common cause, that, initially, the appellant refused to release the container until a sum of money owed by the wife of one of the directors of the respondent had been paid. Upon realizing that the debt had nothing to do with the respondent, the appellant then demanded payment of the sum of $80=50 in respect of handling charges.

The respondent, believing the bags had been unlawfully retained by the appellant, instituted proceedings in October 2012 for the release of the bags, damages for loss of business, and interest thereon at the prescribed rate.

The sum of $80=50 was only paid in August 2013 after which the plastic bags were then retrieved.

PROCEEDINGS A QUO

In its declaration, the respondent alleged that it had imported a container of plastic bags from Hong Kong and that it had engaged the appellant as its agent to facilitate the importation and clearing of the goods with the Zimbabwe Revenue Authority(“ZIMRA”).

It alleged, that, notwithstanding the fact that it had paid the import duty and the appellant's clearing fees, the appellant had refused to release the container on the basis that it was owed money from a previous transaction by the wife of one of the respondent's directors.

It alleged, that, consequent upon the refusal by the appellant to release the container, a client who had placed an order with it for plastic bags had cancelled the order as a result of which the respondent had suffered damages in the amount claimed.

In its plea, the appellant, as defendant, denied that it had entered into a contract of agency with the respondent.

It alleged, that, it had been contracted by the shipper (a term used in the freight business to denote the person who prepares the necessary documentation for the carriage of goods), Hong Kong Richer Int'l Group Limited (”Richer International”) to transport the cartons of plastic bags cif Mutare. It alleged, that, it duly discharged its obligations to deliver the container to Mutare Dry Port after which the respondent became liable to pay its administration fee relating to the Bill of Lading and the container in the sum of $80=50.

The appellant accepted that it refused to release the container before payment of the administration fee in the sum of $80=50 had been made.

At a pre-trial conference before a judge in chambers, the parties agreed the issues to be determined at the trial.

The issues included, inter alia, whether a contract existed between the parties, and, if so, the terms thereof. Further, whether the appellant was entitled to refuse to release the container until payment of the handling fee of $80=50 had been made, and, if not, whether the respondent had suffered damages in the amount claimed in the summons.

During viva voce evidence, the respondent, represented by its managing director, Albert Kuwaza, stated as follows:

His company ordered the plastic bags from China, and, through the supplier, engaged the appellant at its offices in China to transport the merchandise from China to Mutare, Zimbabwe. Once the goods were in Mutare, the appellant then demanded payment of the sum of $1,750 which it alleged was owed by a Mrs Kuwaza, wife of one of the respondent's directors, in respect of a previous transaction.

The issue of the handling fee of $80=50 was raised by the appellant for the first time in October 2012, way after a client who had placed an order for the bags had cancelled the purchase.

Under cross-examination, he conceded, that, in fact, the company with which he contracted in China was Hong Kong Richer Int'l Group Limited (Richer International) and that Richer International, in turn, contracted with Mediterranean Shipping to transport the goods to Mutare. He further conceded, that, the clearing fees were paid directly to Green Motor Services, the company that was operating Mutare Dry Port and not to the appellant. He told the court, further, that, as far as he was concerned, the appellant, Mediterranean Shipping, and Green Motor Services were part of the same company.

Following the dismissal of an application for absolution at the close of the plaintiff's case, the appellant's managing director, Dr Giorgio Spambinato, gave evidence before the court a quo. His evidence was as follows:

The appellant, which operates from offices situate at 27 Natal Road, Belgravia, Harare is an agent of Mediterranean Shipping. It has no offices outside Zimbabwe. The appellant's role was to assist Mediterranean Shipping to execute its contractual obligation of moving cargo into and out of Zimbabwe. In this case, the appellant only supervised the movement, by road, of the container from the Port of Beira to Mutare. It was not involved in the clearance of the goods with the Zimbabwe Revenue Authority (ZIMRA).

He confirmed that, initially, the appellant had insisted on payment of the sum of $1,750 owed by a Mrs Kuwaza in respect of a previous transaction, but, on realizing the error, had personally instructed that the container be released on payment of the sum of $80=50.

That sum represented the handling fee for facilitating the necessary documentation and supervising the speedy execution of delivery by sub-contractors and service providers.

He explained, that, in Zimbabwe, it is customary for the agent handling the cargo on behalf of Mediterranean Shipping to recover the costs directly from the recipients of the cargo. In other countries, the handling fee is paid by Mediterranean Shipping.

Whatever role the appellant played in this case was in fulfilment of its agency agreement with Mediterranean Shipping.

In its closing address a quo, the respondent submitted, that, the question whether there was a contract was “of no real consequence” and that “there needn't have been a contract between them because the scenario can be resolved by the principles of depositum…,.” Further, that, as depositary, the appellant had an obligation to return the goods to the respondent upon demand.

The respondent further submitted, that, it was clear from the summons and declaration that the claim “was vindicatory in nature, not contractual.”

Accordingly, the respondent prayed for its claim for damages and interest thereon to be granted on the basis of depositum.

In its address a quo, the appellant submitted, that, on the evidence led before the court, no contract had been proven. The person with whom the respondent had communicated in China was not the appellant but an employee of Mediterranean Shipping. More critically, the terms of the alleged contract between the respondent and the appellant had not been established. Moreover, at no stage had the respondent deposited the goods with the appellant.

In its judgment, the court a quo found, that, Mr Kuwaza, the managing director of the respondent had been unclear as to the nature of the relationship between the appellant, Mediterranean Shipping, Hong Kong Richer Int'l Group Limited (Richer International) and the respondent.

The court remarked as follows at page 10 of its judgment:

“What is apparent from Mr Kuwaza's evidence is that he did not produce any documents to show the existence of a contract between the plaintiff and the defendant. From the evidence that is before me, it is clear that the plaintiff entered into a shipping agreement with Mediterranean Shipping Company in Hong Kong, China in April 2012 for the shipment of its plastic container from China to Zimbabwe. That contract did not involve the defendant.”

However, at pages 10-11 of the cyclostyled judgment, the court a quo stated:

“I am of the considered view, that, the circumstances of this case show, that, there was a contract between the plaintiff and the defendant. Although the defendant said that it was acting as an agent of Mediterranean Shipping Company, its conduct towards the plaintiff shows that it also contracted with the plaintiff separately. It is not disputed that the defendant facilitated the importation of the plaintiff's cargo from the Port of Beira to Mutare.

Thereafter, it demanded payment from the plaintiff for the service that it had rendered.

The parties did not enter into this contract verbally or in writing, but, they did so by their conduct.

By demanding payment from the plaintiff for the costs it incurred in facilitating the importation of the plaintiff's cargo, the defendant created a contract between itself and the plaintiff. It made it a condition of the contract, that, if the administration fee was not paid, the plaintiff's cargo was not going to be released.

If there was no contract between the plaintiff and the defendant, the defendant should have simply demanded payment of its fees from Mediterranean Shipping Company which it alleges to be its principal.

At law, an agent's duty is to perform his mandate on behalf of his principal and he accounts to his principal. The agent's remuneration is paid by the principal and not by a third party.

I therefore take it, that, the moment an agent starts demanding payment from the third party and not from his principal, then, it means that he is no longer acting in terms of the contract between himself and his principal, but he would have created his own contract with the third party.

That contract he would have created with the third party is separate from his contract with his principal.

In casu, this is what the defendant did. It created its own contract with the plaintiff, which contract was separate from the one it had with Mediterranean Shipping Company.”

At page 12 of its judgment, the court, without commenting on the submission by the respondent, that, it now relied on a contract of depositum, concluded by stating:

“If there was no contract between the 2 companies, then, the defendant should and would have demanded its fee from Mediterranean Shipping Company which is its principal. If there was on (sic) contract, the defendant had no business demanding that money from the plaintiff. It also had no business withholding or refusing to release the plaintiff's container on the basis that the handling fee had not been paid. All the defendant's payments would have been due from Mediterranean Shipping Company. The plaintiff managed to prove that there was contract between itself and the defendant.”

Based on the above findings, the court concluded, that, the appellant had wrongfully refused to release the container and that the respondent had proved its contractual damages. It consequently made the order which is the subject of this appeal.

GROUNDS OF APPEAL

In its notice of appeal, the appellant raised five grounds. These are:

(i) The court a quo erred in finding, that, there was a contract between the appellant and the respondent when the latter was unable to identify the nature of the contract it relied upon and its terms – i.e. whether the contract was one of carriage, depositum, or agency.

(ii) The court a quo erred in finding, that, there was a contract between the appellant and the respondent despite a contrary indication in the Bill of Lading and the respondent's lack of knowledge of the terms of the contract it alleged.

(iii) The court a quo erred in placing the onus of proving the terms of the contractual relationship between the appellant and the respondent on the former, albeit obliquely.

(iv) The court a quo erred in finding that -

(1) The contract for the sale of the plastic bags between the respondent and Nedol Investments (Private) Limited was not a sham; and

(2) The loss suffered by the respondent, if any, was reasonably foreseen by the appellant at the time of the conclusion of the alleged contract, and, despite the fact that the reasonable foreseeability was not specifically pleaded and proved.

(v) The court a quo erred in finding that the respondent had mitigated its loss.

APPELLANT'S SUBMISSIONS BEFORE THIS COURT

In its submissions before this Court, the appellant has argued, that, the respondent did not sufficiently identify the nature of the contract between the parties, in particular, whether it was one of agency or depositum. The terms of the agreement, be it agency or depositum, remained unknown.

It further submitted, that, the case for the respondent was muddled and that the judgment of the court a quo was equally confusing and confused. Lastly, it submitted that whilst the facts show some relationship between the parties, the respondent had not proved the nature of the relationship that existed between them.

RESPONDENT'S SUBMISSIONS BEFORE THIS COURT

In its heads of argument, the respondent has submitted as follows:

Its declaration in the court a quo made it clear, that, what it sought was the release of its goods arising from their unlawful detention. Further, that, even if there was no contract of agency between the parties, the respondent “was not without a remedy” and that there was a tacit contract of depositum between the parties.

In paragraph 3 of its heads of argument, it has further stated:

“The respondent had contended that the claim was of a vindicatory nature and that any contract between the parties was one of depositum…,. As the appellant states, the court did not deal with these issues. It is here noted, that, by the time the matter came before the court, the goods had been released, and, if the claim had originally been vindicatory in nature, it no longer was, which was probably the reason why the court a quo allowed itself to be misled by the appellant to believe that the claim fell to be decided in contract.”…,.

At paragraph 10 of its heads of argument, the respondent has also stated:

“The absence of a contract, however, would not have left the respondent without a remedy because he would have a claim in delict for any loss incurred as a result of the unlawful possession of his property…,.”

Finally, at paragraphs 13 and 14 of its heads, the respondent has further argued:

“13. Thus, as the respondent's counsel contended at p239, the issue whether there was a contract between the parties was really of no consequence and the appeal cannot succeed on the basis that no such contract was brought into being.

The court a quo found, in effect, that, there was a tacit contract between the parties based on the fact, that, the appellant raised charges mentioned above against the respondent.”

RESPONDENT'S SHIFTING CAUSE OF ACTION

It is clear from the foregoing that the respondent, as plaintiff, changed its cause of action as the trial progressed.

In the declaration, the claim clearly arises from a contract of agency. When the respondent realised that the evidence did not establish such agency…, it then claimed, without amending its pleadings, relief on the basis of the rei vindicatio and a contract of depositum.

In its submissions before this Court, the respondent says, whatever the correct position might be on whether or not it had a contract with the appellant, it cannot be without a remedy.

The suggestion was made that it even had a claim arising out of delict.

I am inclined to agree with learned counsel for the appellant, that, the cause of action a quo was most confusing.

The cause of action based on a contract of agency was abandoned in favour of the rei vindicatio and depositum, which had not been pleaded. No evidence was led on the terms of such contract.

To add to the confusion, before this Court, the possibility of the claim arising out of delict has also been thrown in.

The manner in which the respondent handled its cause of action in the court a quo, and before this Court, is most unsatisfactory and not permissible. Implicit in the submissions by the respondent, in support of the judgment of the court a quo, is that pleadings serve no purpose.

THE IMPORTANT PURPOSE OF PLEADINGS

The manner in which the respondent has handled its case, both a quo, and in this Court, brings to the fore the question as to what the purpose of pleadings is.

In general, the purpose of pleadings is to clarify the issues between the parties that require determination by a court of law. Various decisions of the courts in this country, and elsewhere, have stressed this important principle.

In Durbach v Fairway Hotel Ltd 1949 (3) SA 1081 (SR) the court remarked:

“The whole purpose of pleadings is to bring clearly to the notice of the court, and the parties to an action, the issues upon which reliance is to be placed.”

HARWOOD BA in his text Odgers Principles of Pleading & Practice in Civil Actions in the High Court of Justice (16th edn, Stevens & Sons Ltd, London, 1957) states…,:

“The function of pleadings, then, is to ascertain with precision the matters on which the parties differ and the points on which they agree; and thus arrive at certain clear issues on which both parties desire a judicial decision.”

In Kali v Incorporated General Insurance Ltd 1976 (2) SA 179 (D)…, the court remarked:

“The purpose of pleading is to clarify the issues between the parties, and, a pleader cannot be allowed to direct the attention of the other party to one issue, and then, at the trial, attempt to canvass another.”

In Courtney–Clarke v Bassingthwaighte 1991 (1) SA 684 (Nm), the court remarked…,:

“In any case, there is no precedent or principle allowing a court to give judgment in favour of a party on a cause of action never pleaded; alternatively, there is no authority for ignoring the pleadings…, and giving judgment in favour of a plaintiff on a cause of action never pleaded. In such a case, the least a party can do, if he requires a substitution of or amendment of his cause of action, is to apply for an amendment.”

In Imprefed (Pty) Ltd v National Transport Commission 1993 (3) SA 94 (A) 108, the court cited with approval the case of Robinson v Randfontein Estates GM Co. Ltd 1925 AD 173 where…, it was stated as follows:

“The object of pleading is to define the issues; and parties will be kept strictly to their pleas where any departure would cause prejudice or would prevent full enquiry. But, within those limits, the court has a wide discretion. For pleadings are made for the court, not the court for pleadings. And, where a party has had every facility to place all the facts before the trial court and the investigation into all the circumstances has been as thorough and as patient as in this instance, there is no justification for interference by an appellate tribunal, merely because the pleading of the opponent has not been as explicit as it might have been.”

In Jowell v Bramwell-Jones 1998 (1) SA 836…, the court cited with approval the following remarks by the authors JACOB and GOLDREIN in their text Pleadings: Principles and Practice…,.:

“As the parties are adversaries, it is left to each of them to formulate his case in his own way, subject to the basic rules of pleadings….,. For the sake of certainty and finality, each party is bound by his own pleading and cannot be allowed to raise a different or fresh case without due amendment properly made.

Each party thus knows the case he has to meet and cannot be taken by surprise at the trial. The court itself is as much bound by the pleadings of the parties as they are themselves. It is not part of the duty or function of the court to enter upon any enquiry into the case before it other than to adjudicate upon the specific matters in dispute which the parties themselves have raised by their pleadings.

Indeed, the court would be acting contrary to its own character and nature if it were to pronounce upon any claim or defence not made by the parties. To do so would be to enter the realm of speculation….,.

Moreover, in such event, the parties themselves, or, at any rate, one of them, might well feel aggrieved; for a decision given on a claim or defence not made, or raised by or against a party, is equivalent to not hearing him at all and may thus be a denial of justice.

The court does not provide its own terms of reference or conduct its own inquiry into the merits of the case, but, accepts and acts upon the terms of reference which the parties have chosen and specified in their pleadings. In the adversary system of litigation, therefore, it is the parties themselves who set the agenda for the trial by their pleadings and neither party can complain if the agenda is strictly adhered to.”…,.

The authors, CILLIERS AC, LOOTS C and NEL HC in their text, Herbstein and Van Winsen, The Civil Practice of the High Courts of South Africa (5th edn, Juta and Co. Ltd, Cape Town 2009) quote the following passage from Halsbury's Laws of England, 4th edn (Reissue), Vol 36 para 1 in which the function of pleadings is said to be:

“…, to give a fair notice of the case which has to be met, and to define the issues on which the court will have to adjudicate in order to determine the matters in dispute between the parties. It follows, that, the pleadings enable the parties to decide, in advance of the trial, what evidence will be needed. From the pleadings, the appropriate method of trial can be determined. They also form a record which will be available if issues are sought to be litigated again. The matters in issue are determined by the state of pleadings at the close, if they are not subsequently amended.” (at page 558)

In Farrell v Secretary of State for Defence (1980) 1 All ER 166…, Lord Edmund-Davies stated as follows:

“It has become fashionable these days to attach decreasing importance to pleadings, and, it is beyond doubt that there have been times when an insistence on complete compliance with their technicalities put justice at risk, and, indeed, may, on occasion, have led to its being defeated.

But, pleadings continue to play an essential part in civil actions, and, although there has been…, a wide power to permit amendments, circumstances may arise when the grant of permission would work injustice or, at least, necessitate an adjournment which may prove particularly unfortunate in trial with a jury. To shrug off criticism as 'a mere pleading point' is therefore bad law and bad practice. For the primary purpose of pleadings remains, and it can still prove of vital importance. That purpose is to define the issues and thereby to inform the parties, in advance, of the case they have to meet and so enable them to take steps to deal with it.”

In a paper: A Judge's View Point, the Role of Pleadings presented by Justices Rares of the Federal Court of Australia and Richard White of the Supreme Court of New South Wales, at a judge's symposium, the learned judges remarked:

“Precise formulation of the applicant's rights in the initiating document is of central importance. This is because the pleading is the source from which many other consequences flow in the life of the litigation, from filing at first instance through to final resolution in the High Court. The pleading will be used as the reference point for the seeking of particulars, the administering of interrogatories (which is virtually extinct), the obtaining of an order for discovery if the court is satisfied this is required, the issue of subpoenas, the calling of evidence, the relevance and admissibility of evidence, the closing arguments, the reasons for judgments, and the availability of arguments on appeal.

At all of these points, the following questions arise: “Was this issue pleaded?” and “How was this issue pleaded?”

The question is not the loose one, whether the argument could possibly be raised on the evidence at the conclusion of a hearing, but, whether the issue has been pleaded….,.”

I associate myself entirely with the above remarks made by eminent jurists both in this jurisdiction and internationally.

The position is therefore settled, that, pleadings serve the important purpose of clarifying or isolating the triable issues that separate the two litigants. It is on those issues that a defendant prepares for trial and that a court is called upon to make a determination.

Therefore, a party who pays little regard to its pleadings may well find itself in the difficult position of not being able to prove its stated cause of action against an opponent....,.

Earlier in this judgment, I cited several decided cases in support of the proposition that pleadings serve the important purpose of identifying the issues that require determination by a court, and also enabling a defendant to know the case he has to meet before the court.

To this principle, however, there is a qualification.

In a limited sense, a court can adjudicate on issues not raised on the pleadings even when no amendment has been applied for.

In Collen v Rietfontein Engineering Works 1948 (1) SA 413 (A) 433, CENTLIVRES JA, referring to an issue not raised on the pleadings, but fully canvassed at the trial, said:

“This court, therefore, has before it all the materials on which it is able to form an opinion, and this being the position, it would be idle for it not to determine the real issue which emerged during the course of the trial.”

Further, in Middleton v Carr 1949 (2) SA 374 (A)…, SCHREINER JA, in similar vein, stated:

“Where there has been full investigations of a matter, that is, where there is no reasonable ground for thinking that further examination of the facts might lead to a different conclusion, the court is entitled to, and generally should, treat the issue as if it had been expressly and timeously raised.”

In Sager's Motors (Pvt) Ltd v Patel 1968 (2) RLR 267 (A), LEWIS AJA accepted that the above remarks correctly reflected the position in this country. At page 274A–B he stated:

“The ratio decidendi of the cases…, referred to above is that where there has been a full and thorough investigation into all the circumstances of the case, and a party has had every facility to place all the facts before the trial court, the court will not decline to adjudicate on an issue thus fully canvassed simply because the pleadings have not explicitly covered it.”

The above remarks were cited with approval by this Court in Guardian Security Services (Pvt) Ltd v ZBC 2002 (1) ZLR (S)…,.

That a court can determine an issue that is fully canvassed, but not pleaded, is therefore now settled in this jurisdiction.

View Appeal
SC50-12 : CABAT TRADE AND FINANCE vs MOVEMENT OF DEMOCRATIC CHANGE
Ruled By: MALABA DCJ, GOWORA JA and OMERJEE AJA

This is an appeal against the judgment of the High Court dated 5 January 2012 by which a claim by the appellant against the respondent for payment of money for goods delivered as per contract was dismissed following the upholding of a special plea in abatement.

The grounds of appeal allege a misdirection on the part of the court a quo in accepting the allegations placed before it as a special plea.

The brief background to the dispute is that the appellants issued summons against the respondent in the High Court on 14 July 2009 claiming payment of a sum of ZAR4,627,863=93 for goods manufactured and delivered at the respondent's specific instance and request in March 2008.

The appellants alleged, that, the respondent authorized one Eddie Cross and Simon Spooner to enter into an oral agreement with them, in terms of which the order for the manufacture of the goods was placed.

They alleged, that, in performance of the contract, the goods, comprising of T-shirts, wraps, and headscarves, which the respondent wanted to use for its election campaign in the June 2008 presidential election campaign were manufactured and delivered.

In the main plea, the respondent denied any knowledge of the alleged contract with the appellant. It denied entering into or authorising anyone to enter into the alleged contract with the appellant. It denied purchasing or receiving any of the goods.

Therefore, the matter went to trial, but, before trial commenced, the respondent filed a special plea in bar on 30 November 2009. The contents of the plea were as follows:

“The Defendant pleads in bar of the Plaintiff's claims as amended as follows:

1. The Defendant denies that it is obligated to the plaintiffs either in contract or in delict.

2. The defendant is a political association with its headquarters in Zimbabwe, accordingly, it is a Zimbabwean based association.

3. The contract alleged by plaintiffs would have been tainted with illegality for want of compliance with the Exchange Control Act [Cap. 22:05] as read with the Exchange Control Regulations, 1996 contained in Statutory Instrument 109 of 1996.

4. The alleged contract would have required payment to be made by Defendant to first plaintiff outside Zimbabwe.

5. The Defendant does not have any free funds nor did it then hold any money in a foreign currency account.

6. Accordingly, the alleged contract is void for illegality and the plaintiff's claims ex contractu should be dismissed.”

At the hearing of the special plea, the appellants argued, that, the allegations made did not meet the requirements of a special plea.

The learned judge, however, took the view of the respondent's legal practitioners and held that the requirements of a special plea had been met. In upholding the special plea, the learned judge said that:

“The issue that the defendant raised in this matter is that of illegality: in that the plaintiffs were attempting to enforce a contract tainted with illegality for want of compliance in the Exchange Control Act [Cap. 22:05] as read with the Exchange Control Regulations 1996 contained in Statutory Instrument 109 of 1996 as the contract would have required payment to be made by defendant to first plaintiff outside Zimbabwe.

Ideally, a plea of illegality should be raised before the trial and not in limine as stated in Abreu v Campos 1975 (1) RLR 198 at page 204H-205A.

In Adler v Elliot 1988 (2) ZLR 283 (S) illegality was raised as an exception as it appeared on the papers.

Illegality was also raised as an exception that the summons disclosed no cause of action in the case of York Estate Ltd v Wareham 1950 (1) 3A 125 (SR) where the summons had set out the factual basis that was then used to argue the point of illegality.

In Barker v African Homesteads Touring and Safaris (Pvt) Ltd and Anor 2003 (2) ZLR 6 (S) illegality for contravening section 8 (now section 11) of the Exchange Control Regulations raised in limine was upheld both by the High Court and an appeal in the Supreme Court resulting in the plaintiffs claim being dismissed.

Consequently, the submission by the plaintiffs, that illegality should not have been raised as a special plea and can only be raised on the merits is clearly untenable.”

The unanimous view of the court is that the court a quo misdirected itself by upholding the special plea on the allegations that were placed before it.

The allegations reflected a material dispute of facts arising from the defendant's plea.

As a result, the court a quo was required to resolve the dispute by the hearing of evidence on whether or not the denial by the respondent of having entered into a contract with the appellants was true.

If the denial was found to be substantiated, that would have terminated the action proceedings. There would be no question of illegality of the contract. The special plea would not have arisen in the circumstances.

A special plea is a plea in trial susceptible of a replication and must be heard separately on the adduction of evidence: see Doelcam v Pitchanik and Ors 1999 1 ZLR 390 (H)…,.

In this case, the court a quo did not resolve the dispute of fact on which the special plea was founded. It determined the issue of illegality of a contract which one of the parties was denying having entered into.

The special plea was based on speculation of fact of a contract which the respondent denied entering into.

Counsel for the respondent conceded, that, the court misdirected itself in considering the issue of illegality of the contract, which, on the plea, did not concern the respondent, without first determining whether or not, as a matter of fact, a contractual relationship existed between the parties.

It was in light of the clear misdirection by the court a quo, that, it was not found necessary of to hear counsel for the appellant. As a result, it is ordered as follows:

1. The appeal succeeds with costs.

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

'The special plea is dismissed with costs.'

3. The matter is remitted back to the court a quo for continuation of trial.

SC58-15 : ERICKSON MVUDUDU vs AGRICULTURAL AND RURAL DEVELOPMENT AUTHORITY
Ruled By: MALABA DCJ, GWAUNZA JA and PATEL JA

This is an appeal against a judgment of the Labour Court dismissing an appeal against an award rendered by an arbitrator. That arbitral award quantified the damages payable to the appellant pursuant to an earlier award ordering his reinstatement into the service of the respondent.BackgroundThe respondent is a statutory body ...

Background

The respondent is a statutory body established under the Agricultural and Rural Development Authority Act [Chapter 18:01].

The appellant was employed by the respondent in January 2008 as its Chief Executive Officer cum General Manager.

On 26 February 2009 he was sent on special leave, and, on 19 May 2009 he was notified by the respondent of its decision to terminate his employment.

The matter was then referred to an arbitrator.

On 26 January 2010, the arbitrator found that the appellant had been unlawfully dismissed and ordered his reinstatement with effect from the date of his purported dismissal. Thereafter, negotiations for reinstatement having failed, the matter was again referred to the arbitrator.

On 27 October 2010, the arbitrator quantified his award for damages in lieu of reinstatement. He based his award on a monthly salary of US$1,009 in accordance with documentary evidence furnished by the respondent. He then ordered the respondent to pay the following amounts:

$19,384 as back-pay and benefits from the date of dismissal to the date of his first award;
Cash in lieu of leave;
$60,540 being sixty months salary as damages for loss of employment;
A further $60,540 being sixty months salary as punitive damages for failure to reinstate; and
Interest at the prescribed rate on all of these amounts.

The appellant, being dissatisfied with the arbitrator's award, appealed to the Labour Court on several grounds pertaining to the question of his reinstatement, the date of termination of his employment, his correct monthly salary, and his entitlement to contractual benefits.

The respondent, in turn, cross-appealed, defending the propriety of its decision not to reinstate the appellant, and challenged the arbitrator's award of punitive damages and his failure to deduct certain amounts allegedly owed by the appellant to the respondent.

Decision Appealed

The court a quo dismissed the appeal and partially allowed the cross-appeal for the following reasons:

It found, having regard to the relevant correspondence, that, the possibility of reinstatement was not part of the arbitrator's mandate. The effective date of termination of employment was 4 February 2010, when the respondent opted to pay damages, and not when the Labour Court ruled against the appellant's reinstatement. The court also found that the arbitrator's reliance on a monthly salary of $1,009 was based on irrefutable evidence and more in accordance with reason, as compared with the figure of $5,000 claimed by the appellant.

As regards the appellant's claim for contractual benefits, no documentary or other evidence was placed before the arbitrator to substantiate that claim.

Again, his claim for punitive damages was neither placed before the arbitrator nor substantiated by any supporting evidence.

Similarly, the respondent's claim to deduct certain amounts owed by the appellant was not raised before the arbitrator.

In the event, the court a quo dismissed the appeal and allowed the cross-appeal to the extent of setting aside the arbitrator's award of punitive damages.

The issues raised in the notice of appeal herein are largely identical to those before the Labour Court and may be summarised as follows:

(i) Whether the question of reinstatement was an issue before the arbitrator, in addition to the quantification of damages in lieu thereof.

(ii) What was the effective date of termination of employment? (This issue was not pursued by counsel for the appellant and appears to have been abandoned).

(iii) What was the correct amount of the appellant's monthly salary?

(iv) Was the appellant entitled to his claim for contractual benefits?

(v) Whether the claim for punitive damages was properly before the arbitrator and correctly awarded by him.

Reinstatement and Quantification of Damages

At the hearing of this matter, counsel for the appellant largely focused his argument on the question of reinstatement.

He submits, that, damages are only payable if reinstatement is not tenable. This is not a matter for the employer's election, but, as envisaged in sections 89(2)(c) and 97(2) of the Labour Act [Chapter 28:01], a matter of fact to be alleged and proved by the employer.

There must first be an inquiry as to whether reinstatement is no longer tenable, and, the employee remains employed until that inquiry is finalised.

Despite the appellant's submissions on this point, the arbitrator proceeded on the basis that he was only dealing with quantification.

Similarly, although this was raised before the court a quo, it misdirected itself in not upholding this ground of appeal.

The matter should therefore be remitted to that court to determine this question.

SC86-22 : CITY OF HARARE vs EVARISTO MUNGATE
Ruled By: GOWORA JA, MAKONI JA and BERE JA

After hearing counsel, in the matter, we dismissed the appeal with costs and indicated that reasons would follow in due course. Below are the reasons for judgment.This is an appeal against the whole judgment of the High Court upholding the respondent's claim for damages arising from the appellant's negligence.THE BACKGROUND ...

After hearing counsel, in the matter, we dismissed the appeal with costs and indicated that reasons would follow in due course. Below are the reasons for judgment.

This is an appeal against the whole judgment of the High Court upholding the respondent's claim for damages arising from the appellant's negligence.

THE BACKGROUND FACTS

On 28 March 2014, at around 19:00 hours, near Lyon's Maid offices, along Simon Mazorodze Road, the respondent fell into the appellant's uncovered drainage tunnel commonly referred to as a “catch pit.” He was rushing to board a commuter omnibus which he had waved down. He broke his leg, sustaining a permanent limp. The catch pit is situated on a traffic island which is between Simon Mazorodze Road and a pedestrian or foot path.

Subsequently, on 23 September 2014, the respondent issued summons against the appellant claiming damages amounting to US$305,796; interest thereon, and costs of suit.

The breakdown of the damages claimed by the respondent was as follows:

(a) Shock, pain, and suffering US$50,000;
(b) Loss of amenities of life US$100,000;
(c) Disability US$100,000;
(d) Medical expenses US$5,796;
(e) Contumelia US$50,000;

The respondent averred, that, the appellant was liable for the injuries he suffered and ensuing damages as it had failed to either cover or put up any cautionary signs to warn pedestrians of the existence of the uncovered catch pit.

In its plea, the appellant denied liability in toto stating that it was not negligent in any way, nor was it liable for the respondent's injury, loss incurred, and damages claimed. It put the respondent to the strict proof thereof.

It further averred, that, the misfortune that befell the respondent was a result of the respondent's negligence since he failed to keep a proper lookout and acted without due care and attention.

The appellant prayed for the dismissal of the respondent's claim.

PROCEEDINGS IN THE COURT A QUO

The following issues were referred to trial:

“(i) Whether or not the defendant(s) are liable for injuries allegedly suffered by the plaintiff.

(ii) Whether the plaintiff's injuries were not a result of Plaintiff's own negligence and failure to keep a proper outlook.

(iii) Whether or not the defendant(s) are liable to pay any damages whatsoever.

(iv) If the defendant(s) are liable, what is the quantum thereof.”

The respondent was the sole witness in his case.

He testified that he fell into a pit whilst running to catch a lift that he had waved down. He stated that several factors contributed to his fall:

(i) Firstly, the area was unlit because of the absence of street lights.

(ii) Secondly, the area surrounding the pit was covered with tall grass which obscured the pit.

(iii) Thirdly, there was no cover over the catch pit.

(iv) Fourthly, there was no warning sign to caution him of the existence of the pit.

The respondent stated, that, under such circumstances, it was difficult for him to see the catch pit.

He also stated, that, the appellant was liable since council's employees had admitted the pit had been constructed and was under the maintenance of the appellant.

The respondent also produced photographs showing the surrounding area and the pit which he had fallen into, the evidence of the medical expenses which he incurred as a result of the injuries sustained and a report by a medical doctor stating that he suffered a 15 percent permanent disability.

The respondent substantiated his claim for damages stating, that, further to the injuries he sustained from the fall, he had been subjected to embarrassment, had suffered, and continued to suffer pain and shock, had lost amenities of life in that he could not earn extra income as he used to, or attend festivals, run, jog or dance.

In its defence, the appellant led evidence through one George Munyonga, who is a Deputy Chief Engineer employed by the appellant, responsible for maintaining road infrastructure.

He conceded that the catch pit belonged to the appellant and that from the evidence presented before the court, the catch pit was not covered by a steel grating.

However, he took issue with the alleged severity of the respondent's injuries and argued that the injuries sustained by the respondent were not consistent with a fall into a catch pit.

He also testified, that, even if it was established that the respondent had fallen into the appellant's pit and sustained injuries as claimed, these were as a result of the respondent's own negligence.

He stated, that, the respondent had been negligent in crossing the road as he did since he was familiar with the road and would have known of the existence of the various catch pits along the road. He further stated, that, he must have known that there was a possibility of an accident. Further to that, the respondent ran across a traffic island instead of using the pedestrian path. He also sought to board a vehicle at an undesignated bus stop and he ought to have taken more care as the area was unlit.

Issue was also raised in relation to the fact, that, there was a three months delay between the occurrence of the accident and the time the respondent notified the appellant of the accident.

Mr Munyonga conceded that a catch pit without a cover poses a hazard to humans and that it is the appellant's duty to carry out regular maintenance by carrying out inspections and repairs to catch pits every three months. He also conceded that if it was dark, the respondent could not have seen the catch pit, even with a proper lookout. He also affirmed, that, it was impossible for one to board transport from the pedestrian path without crossing over the island where the catch pit was located. He also stated that along the road in question several theft cases of stolen steel gratings covering the pits had been reported.

He however stated, that, the process of replacing the steel covers required funding and since the appellant was going through a cash crunch, there were delays in procuring the necessary infrastructure.

DETERMINATION OF THE COURT A QUO

After considering the parties arguments and evidence placed before it, the court a quo found in favour of the respondent.

It concluded, that, the respondent broke his leg as a result of falling into the appellant's catch pit. The court further held, that, the appellant was liable for the respondent's injuries and that the requirements of the standard test for negligence, as enunciated in Kruger v Coetzee 1966 (2) SA 428…, had been met. The harm was reasonably foreseeable; a diligens pater familias would have taken reasonable steps to guard against such occurrence and no such steps were taken.

The court a quo further held, that, uncovered catch pits posed a deadly hazard to the public and the appellant had a legal duty to ensure that they were regularly inspected and properly covered. It was reasonably foreseeable that an uncovered catch pit could pose danger to the public. Further to this, the appellant was aware of such cases, as several cases of such a nature had been reported to the appellant before. The appellant should have carried out regular inspections of the catch pits; replacing the missing lids; mowing the grass around the catch pits to ensure visibility; maintaining adequate street lighting to ensure visibility at night; erecting danger warning signs to warn members of the pubic of the existence of open catch pits; and erecting barriers to block public access to the catch pits.

The appellant had failed to take these steps and thus failed to do its duty and could not be absolved from liability. It further held, that, the respondent's explanation for the delay was plausible considering the severity of the injuries he sustained.

The court a quo further found, that, the respondent may have been negligent by running in the dark when he could not properly see where he was stepping, as he was obscured by tall grass. The risk of tripping and falling, even in the absence of a catch pit, could not be ruled out.

The court, however, concluded that the respondent's negligence was not the proximate cause of the fall.

The proximate cause of the fall was the absence of the catch pit cover. The court stated that if the catch pit had been covered, even if the plaintiff had walked on the island where he was not supposed to, or if he had run in the dark when he could not properly see, he would not have fallen into the catch pit.

Accordingly, the court upheld the respondent's claim and awarded damages amounting to US$9,769. The computation was as follows:

1. US$796 being damages for medical expenses.
2. US$2,000 being damages for shock, pain and suffering.
3. US$1,000 being damages for loss of amenities of life.
4. US$1,000 being damages for disability.

The court, however, dismissed the respondent's claim for damages for contumelia on the basis that he had failed to prove intention, on the part of the appellant, to humiliate him or cause embarrassment to him.

Regarding costs, the court awarded the respondent costs of suit since he had succeeded in his claim.

However, it expressed displeasure at the respondent's ridiculously high and unrealistic claims for damages which, in its view, would have hindered chances of the matter being settled at pre-trial conference stage. It stated that damages are meant to compensate the injured party and not to punish the wrongdoer, and, further, that damages should reflect the state of economic development and the current economic conditions of the country.

Aggrieved by this outcome, the appellant noted this present appeal based on the following grounds:

GROUNDS OF APPEAL

“(i) The court a quo erred in coming to the conclusion, that, there was no contributory negligence by the respondent. It also erred in that it misapplied the 'proximate cause' principle leading to the incorrect conclusion, that, despite being negligent, plaintiff did not contribute to the accident.

(ii) Furthermore, the court erred in its apportionment of damages as a consequence of its failure to apportion blame. It so erred in that an appropriate apportionment of blame would have reduced the amount of damages payable by the appellant at least by half.

(iii) In any event, the decision of the court a quo, as it relates to the issue of contributory negligence, is so outrageous in its defiance of logic that no reasonable person applying his mind to the question to be decided would have arrived at such a conclusion.

(iv) At any rate, the court erred by ordering appellant to pay costs having found that the respondent was equally to blame for the litigation which could have been avoided.”

SUBMISSIONS IN THIS COURT

The appellant's major contention was that some measure of liability must be attributed to the respondent as this was a classical case where the doctrine of contributory negligence was applicable.

Counsel for the appellant submitted, that, the court a quo misapplied the 'proximate cause' principle in the sense that there was more than one proximate cause of the accident. He argued that there were multiple acts of negligence by both the appellant and the respondent which contributed to the accident.

Accordingly, damages should be apportioned in terms of section 4 of the Damages (Apportionment and Assessment) Act [Chapter 8:06], reducing the damages payable by the appellant in half.

Pertaining to the issue of costs, counsel for the appellant argued, that, each party ought to bear its own costs since the respondent was equally to blame for the accident and the litigation because of the unrealistic claims he made which militated against a possible settlement.

Counsel for the respondent, on the other hand, contended that the appellant should have specifically pleaded the defence of contributory negligence and the appropriate relief for apportionment of damages.

It ought to have, at least, set out detailed grounds showing the respondent's negligence and how he contributed to the occurrence of the accident. The issue was not covered in the pleadings, as such, the court a quo could not have canvassed the issue in its judgment in the circumstances.

Counsel for the respondent further stated, that, the court a quo was correct in finding that whatever negligence attributable to the respondent, such negligence was not the cause of the loss. He averred that whatever negligence attributable to the respondent was “negligence in the air” as the respondent would not have been injured but for the existence of the uncovered catch-pit.

The respondent also argued, that, the determinant factor before damages could be apportioned is that the respondent's negligence must have caused the loss. However, the court a quo found, as a fact, that the appellant was the actual cause of the harm suffered by the respondent.

Regarding costs, counsel for the respondent submitted, that, in the absence of a demonstration that the court a quo grossly erred in its exercise of discretion, there would be no basis for interfering with the court a quo's order of costs.

As for the damages, the respondent also argued, that, the appellant had not established a substantial variation or striking disparity between the trial court's award and what the Appellate Court would have awarded, neither had it been proved that the court a quo did not have a sound basis for awarding damages at that scale.

ISSUES FOR DETERMINATION

The appeal raises the following issues for determination by this Court:

(i) Whether or not the court a quo fell into error when it found that the respondent was negligent and then failing to find that there was contributory negligence thereby misapplying the proximate cause principle?

(ii) Whether the court a quo erred in ordering the appellant to pay the costs of suit?

THE LAW

Fault

The case of Kruger v Coetzee 1966 (2) SA 428 …, lays down the standard test for negligence, which is:

(i) Whether the harm was reasonably foreseeable;

(ii) Whether the diligens pater familias would have taken reasonable steps to guard against such occurrence; and

(iii) Whether the defendant failed to take those steps.

In United Bottlers (Private) Limited v Shambawamedza 2002 (1) ZLR 341 (S)…, this Court stated:

“It has been said that negligence is a question of fact, and the onus of proving it is on the party alleging it. A person is negligent if he did not act as a reasonable man would have acted in the particular circumstances. He will be held liable for the actual consequences of his negligence which are reasonably foreseeable.”

In Cape Town Municipality v Paine 1923 AD 207…, INNES CJ said:

“It has repeatedly been laid down in this Court that accountability for unintentional injury depends upon culpa - the failure to observe that degree of care which a reasonable man would have observed. I use the term reasonable man to denote the diligens paterfamilias of Roman Law - the average prudent person.

Every man has a right not to be injured in his person or property by the negligence of another, and that involves a duty on each to exercise due and reasonable care.

The question whether, in any given situation a reasonable man would have foreseen the likelihood of harm, and governed his conduct accordingly, is one to be decided in each case upon a consideration of all the circumstances. Once it is clear that the danger would have been foreseen and guarded against by the diligens paterfamilias, the duty to take care is established, and it only remains to ascertain whether it has been discharged.”

See also: Lomagundi Sheetmetal & Engineering (Private) Limited v Basson 1973 (1) RLR 356 (A)…,.; (4) SA (RAD) 523…,.

CONTRIBUTORY NEGLIGENCE

The defence of contributory negligence is provided for in section 4 of the Damages (Apportionment and Assessment) Act [Chapter 8:06] (“The Act”). It provides:

“(1) Where any person suffers damage which was caused partly by his own fault and partly by the fault of any other person, a claim in respect of that damage shall not be defeated by reason of the fault of the claimant, but, the damages awarded in respect thereof shall be reduced by the court to such extent as the court may deem just and equitable having regard to the respective degrees of fault of the claimant and of such other person in so far as the fault of either of them contributed to the damage.”

The defence must be pleaded and the appropriate relief of an apportionment of damages must be claimed in the plea in the alternative.

In Lewis v Mushangi & Anor HB41-99; 1999 (1) ZLR 506 (H) the court stated that:

“The general rule is that the alternative defence of contributory negligence must be pleaded and the appropriate relief of an apportionment of damages must be claimed in the plea.”

In Mugari v Machiri SC164-87; 1987 (1) ZLR 164 (SC)…, this Court stated that:

“It may not be fatal to fail to allege apportionment (see Cooper and Bamford South African Motor Law at pages 287-8) but it is certainly highly desirable that a defendant should, in the alternative, set out the grounds on which he alleges that the plaintiff was negligent and thereby contributed to the occurrence of the accident.”

It is for the defendant to prove that the plaintiff was negligent and that his negligence was causally connected to the damages suffered by the plaintiff.

APPLICATION OF THE LAW TO THE FACTS

It is the appellant's contention, that, the court a quo fell into error when it failed to make an order that damages be apportioned between the parties considering that the respondent had contributed to the damages he suffered.

On the contrary, the respondent contends, that, he was not negligent at all and that the appellant did not put in issue the contributory negligence of the respondent in its plea and therefore it should not have been canvassed in the judgement of the court a quo.

The starting point is to determine whether the respondent was negligent, and, if so, whether his negligence was causally linked to the damages he suffered.

It is common cause, that, the appellant, in its plea in the court a quo, disputed the respondent's claim in its totality and prayed that the respondent's claim be dismissed with costs.

It did not, in the alternative, specifically plead contributory negligence and pray for an appropriate relief of apportionment of damages.

Nor did it set out, in meaningful detail, the respects in which it was alleged that the plaintiff had been negligent.

In its plea, after denying all averments by the respondent, it stated the following:

“In any event, plaintiff's misfortune, if any, was a failure to keep a proper look out and acting without due care and attention.”

The issue of the alleged respondent's contributory negligence then, somehow, came out, for the first time, in the joint Pre–Trial Conference Minute. It was settled as one of the issues for trial.

The case of Mashonaland Tobacco Company (Private) Limited v Mahem Farms (Private) Limited and Anor SC152-20…, aptly sums the general principle regarding the necessity of pleading a cause of action:

“As a general rule, judgment cannot be granted on a cause of action that is not pleaded. The pleadings must clearly set out the precise parameters of the issues contested between the parties. Thus, in the Namibian case of Courtney-Clarke v Bassingthwaighte 1991 (1) SA 684 (Nm) at 698, it was explained that:

'…, there is no precedent or principle allowing a court to give judgment in favour of a party on a cause of action never pleaded, alternatively, there is no authority for ignoring the pleadings…, and giving judgment in favour of a plaintiff on a cause of action never pleaded. In such a case, the least a party can do if he requires a substitution of or amendment of his cause of action, is to apply for an amendment.'”

During cross examination of the plaintiff, by the appellant's counsel, various particulars of negligence were put to the respondent. These include that he waved down a commuter omnibus where there was no designated bus stop; he ran in the dark and could not see where he was stepping on; he could see that the grass was unkempt and long but still proceeded.

The learned author ISAACS in Beck's Theory and Principles of Pleading in Civil Actions, 5th ed…, makes some very pertinent observations regarding general rules as to pleading:

“It is the duty of defendant to set out his plea in such a manner as to enable the plaintiff to know the nature of the defence. If the defendant admits facts in the declaration, it is not necessary for the plaintiff to prove these facts, and thus those facts are not in issue in the trial. The plaintiff is entitled to know the limits of the defence in clear and concise manner.”

See also Medlog Zimbabwe (Private) Limited v Cost Benefit Holdings (Pvt) Ltd SC24-18; 2018 (1) ZLR 449 (S)…,.

In casu, the appellant, as the defendant in the court a quo, did not, in my view, set out its plea in such a manner as to enable the respondent to fully appreciate the nature of its defence.

In Keavney & Anor v Msabaeka Bus Services (Pvt) Ltd 1996 (1) ZLR 605 (S)…, the following point was made:

“A pleader cannot be allowed to direct the attention of the other party to one issue, and then, at the trial, attempt to canvass another; as MILNE J (as he then was) put it in Kali v Incorporated General Insurance Ltd 1976 (2) SA 179 (D) at 182A.

'The purpose of pleadings is to define the issues and to enable the other party to know what case he has to meet' per MULLINS J in Niewoudt v Joubert 1988 (3) SA 844 (C). See also DD Transport (Pvt) Ltd v Abbot 1988 (2) ZLR 92 (S) at 101F-G.”

Further down on the same page, at D-E, the following findings were made:

“The failure, in this case, to plead the real defence, suggests one or other of three possible explanations:

1. Sheer idleness and incompetence on the part of the pleader.

2. A deliberate and unconscionable attempt to avoid attracting an onus or 'burden of adducing evidence'.

3. That the defence was an afterthought on the part of the defendant.

4. The learned judge who heard the matter made no comment on all this.”

To compound matters, the judge seized with the Pre-Trial Conference let in an issue which did not arise from the pleadings.

The court a quo made the following findings on the issue of the plaintiff's negligence:

“It is not in dispute that when the plaintiff fell into the catch pit, he was rushing to board a commuter omnibus which he had waved (sic) down at a place which is not a bus stop. Bus stops have been put in place by Council to stop members of the public from boarding transport at places which pose danger to them and to prevent commuters from having to run after vehicles as the plaintiff did on the fateful day.

As correctly submitted by the defendant, Council put in place bus stops to minimize road accidents.

From the pictures which were produced by the plaintiff, it is clear that there is no bus stop near the catch pit he fell into. He had therefore stopped the commuter omnibus at an undesignated pick up point. This prompted him to run across the island where the catch pit was instead of walking along the pedestrian path provided after the island. The catch pit is strategically positioned on the side of the road to drain storm water.

George Munyonga explained, that, as a safeguard measure, catch pits are deliberately located on the island because people are not supposed to walk on the island but on the pedestrian path. He said that the island is not a walk way or run way.

It is admitted, that, if the plaintiff had not walked on the island in the dark he would not have fallen into the catch pit. Pedestrians do not walk or board transport wherever they deem. Vehicles also do not stop to pick up passengers wherever they feel like. They should do so at designated pick up points. The plaintiff was running in the dark when he could not properly see where he was stepping. He could also see that the grass was unkempt and it was long. The motor vehicle had stopped for him. So, there was no need for him to run, especially considering that he could not see properly. The risk of tripping and falling, even in the absence of a catch pit, could not be ruled out in such circumstances.”

In making the above findings, the court a quo relied on what was put to the respondent during cross examination - which issues did not arise from the pleadings.

The judge a quo concluded, that, the respondent was negligent by not waiting for transport at designated bus stops.

This was never the appellant's defence, and, the court fell into error in making that finding in the absence of evidence that there are designated stops along that road.

The claim for apportionment seems to emanate from that conclusion.

SC165-21 : SHARADKUMAH PATEL and MEADOWS (PVT) LTD vs THE COSMO TRUST and OTHERS
Ruled By: GARWE JA, GUVAVA JA and MATHONSI JA

This is an appeal against a decision of the Administrative Court of Zimbabwe handed down on 8 March 2019 upholding two consolidated appeals by the first to the fourth respondents (The Cosmo Trust, Babra Vitoria, Margaret Soper and Linda Bromley) challenging the issuance of an environmental impact assessment certificate by the sixth respondent (Environmental Management Agency) and a development permit issued consequent thereto by the City of Harare.

The City of Harare, the fifth respondent herein, has also filed a cross-appeal against the same judgment of the Administrative Court.

The gravamen of the grievance before the court a quo was that the issuance of the environmental impact assessment certificate and development permit violated various procedural requisites as well as Environmental Law.

After due consideration of all the papers filed of record, and submissions made by counsel on behalf of the parties, I am not persuaded that, save for the decision of the court a quo to relate to the merits of the dispute inter se, the court a quo was wrong in upholding the appeal.

In the circumstances, subject to that rider, both appeals stand to be dismissed with costs.

FACTUAL BACKGROUND

The first appellant, Sharadkumar Patel, is a director of Meadows (Pvt) Ltd, a company incorporated in accordance with the laws of this country.

It was to him that the development permit for the Meadows of Monavale was granted.

The company, Meadows (Pvt) Ltd, owns a piece of property called The Meadows of Monavale Extension of Mabelreign. It was in respect of that piece of land that the development permit was granted by the City of Harare.

The first respondent, The Cosmo Trust, is a duly registered trust whose powers and objectives include the protection of the environment and natural resources of Monavale in the general interest of its residents.

The second to the fourth respondents occupy separate pieces of land along Fennela Drive that are contiguous to the Meadows of Monavale.

The fifth respondent, the City of Harare, is a local authority which issued the development permit for the construction of residential units on the Meadows of Monavale.

The sixth respondent, the Environmental Management Agency, is a statutory body established in terms of the Environmental Management Act [Chapter 20:27].

The seventh respondent is the Minister of Environment, Tourism and Hospitality Industry (“the Minister”), under whose aegis the sixth respondent falls.

It was also the Minister who dismissed the first to the fourth respondents appeal against the issuance of an environmental impact assessment certificate issued by the sixth respondent, which decision is partly the subject of the present appeal.

The piece of land that lies at the centre of the dispute between the parties, namely, the Meadows of Monavale Extension of Mabelreign, was transferred into the second appellant's name (Meadows (Pvt) Ltd) in June 1987.

It is 16,2885 hectares in extent and borders Fennella Drive and Monavale Road in Monavale.

The property has remained largely undeveloped over the years, although the record shows that the first appellant has a residence on a portion of that property. It is part of a much bigger piece of land known as the Meadows of Monavale which is five hundred and seven (507) hectares in extent and is a wetland known as the Monavale Wetland.

That wetland forms the headwaters of the Marimba River and its tributary, the Avondale stream, and is part of a network of wetlands within the City of Harare, providing a wide diversity of beneficial ecosystems to the city. It is an important component of Harare's water system, through water accumulation from direct rainfall, runoff and groundwater influx; flood flow attenuation, and slow release of water to base flow in streams; groundwater recharge; protection against flooding and the impact of storms; trapping excess sediment from runoff, reducing siltation of dams; and improvement of water quality for household supply through filtration.

Following a proposal by the first respondent and an organisation called Birdlife Zimbabwe, surveys were carried out resulting in the appellants obtaining authority, from the Surveyor-General, for the Meadows of Monavale Extension of Mabelreign to be subdivided into two plots; the first being a 9,35 hectare plot on the northern side of the property which was to be known as Stand 201 and which was to be sold to Birdlife Zimbabwe and the remainder, a six hectare plot, to be retained by the appellants. The subdivision permit subsequently lapsed and the sub-division was never effectuated.

Zimbabwe acceded to the Convention on Wetlands of International Importance Especially as Waterfowl Habitat known as the Ramsar Convention on 3 January 2013.

Upon accession, the country nominated seven sites, including Monavale Wetland, to be included in country's Ramsar list of Wetlands of International Importance. The other sites were Cleveland Dam, Chinhoyi Caves, Driefontein Grasslands, Victoria Falls National Park, Mana Pools and Lake Chivero.

In 2014, the appellants submitted an application for an environmental impact assessment certificate for a housing development on the land.

On 9 July 2014, the Director-General of the Environmental Management Agency dismissed the application on the basis that the land was not suitable for such a development as it was situated in an ecologically sensitive area and ecosystem in need of protection under the Ramsar Convention. The appellants were advised to adopt an alternative land use that would ensure that the area was maintained and protected.

That decision was not thereafter challenged.

In 2015, the appellants submitted an application for a development permit with the City of Harare (“The City Council”). Despite objections, a development permit was issued. The first respondent lodged an appeal against the development permit in the Administrative Court. The permit was set aside, in November 2016, on the basis that the appellants had not, before applying for the permit, secured an environmental impact assessment certificate.

That judgment remains extant although there was an attempt to appeal against it, which was abandoned.

Pursuant to the decision of the Administrative Court, the appellants submitted another application for an environmental impact assessment certificate to the Environmental Management Agency.

The application was made in respect of Stand 201, Monavale.

No stakeholder consultation was conducted with interested parties, notwithstanding the peremptory provisions of section 136 of the Environmental Management Act [Chapter 20:27] (“the EMA”).

An environmental impact assessment certificate was then issued by the agency on 10 November 2017.

The certificate stated, that, it had been granted in respect of a housing development on Stand 201 Monavale (6804), subject to eight conditions highlighted in an annexure to that certificate.

Armed with the environment impact assessment certificate, the appellants wrote to the City Council requesting the Council to re-issue the development permit previously granted in November 2015. The request was treated, by Council, as a new application for a development permit.

The first respondent then appealed to the Minister against the decision by the agency to issue the certificate.

In the appeal, the first respondent raised a number of complaints; that there was no Stand known as 201 Monavale and that interested persons had not been given the opportunity to make representations in the matter; that the developer had failed to carry out wide consultations with stakeholders before approaching the agency; that, notwithstanding its clear interest in the matter, it had not been notified of the issuance of the certificate; that the decision to grant the certificate violated its environmental rights and those of its members; and that the decision breached the country's international obligations under the Ramsar Convention. Further, that the certificate had not been issued by the agency's Director-General.

In a response penned by the Ministry's Permanent Secretary, the appeal was dismissed on various bases.

That, whilst the agency was not in a position to confirm whether or not Stand 201 existed, the Director General of the Environmental Management Agency could properly delegate the authority to issue the certificate to a junior; that, the documents submitted reflected that there had been public consultation on the part of the developer and that reservations had been taken into account.

Whilst accepting that the agency may have erred in failing to notify interested persons of the issuance of the certificate, he stated that no injustice had been occasioned by such failure; that, whilst the objectors had rights, the appellants also had rights to their property, subject only to the need for any development on the property to take into account the need for the wise use of the land.

Unhappy with that decision, the first respondent noted an appeal to the Administrative Court in June 2018.

In the meantime, the appellants had submitted an application for a development permit with the City Council in May 2018.

On receipt of notification of the application, the first to fourth respondents, individually and separately, filed letters of objection. The Council's Director of Works then advised the appellants of these objections. The appellants responded to those objections and attached supporting documentation, including an environmental impact assessment report prepared at their instance in respect of Stand 201.

The Director of Works did not cause the response to be forwarded to the respondents.

Instead, he compiled a report recommending that the City Council's Environmental Management Committee, a sub-committee of Council, issue a development permit as requested.

The land on which the one hundred and twenty one cluster houses were to be developed was reflected as “Meadows of Monavale Township.”

The Director also suggested a number of conditions, including, ironically, the need to obtain an environmental impact assessment certificate - which had already been issued by the sixth respondent (the Environmental Management Agency).

On 23 July 2018, the City Council's Environmental Management Committee held a meeting to consider a total of fourteen matters, including the building permit application submitted by the appellants. The meeting commenced at 2:10pm and ended at 2:50pm. It recommended the granting of a development permit authorising the appellants to erect one hundred and twenty one cluster houses, subject to the conditions stipulated in the report compiled by the Director of Works.

In September 2018, the first to fourth respondents then filed an appeal with the Administrative Court against the issuance of the development permit.

By agreement between the parties, the two appeals were consolidated for purposes of the filing of the heads of argument and hearing.

PROCEEDINGS BEFORE THE ADMINISTRATIVE COURT

In their grounds of appeal and submissions in respect of the development permit issued by the City Council, the first to fourth respondents attacked the decision to issue the permit on a number of bases:

(i) First, that the Environmental Management Committee of the Council is not a local planning authority, and, consequently, had no power to issue a development permit.

(ii) Second, that no proper application for a development permit had been filed with the Council.

(iii) Third, that the permit had been issued in the absence of a valid environmental impact assessment certificate, since the permit imposed, as one of the conditions for the grant of the permit, the need to secure an environmental impact assessment certificate.

(iv) Fourth, that the proceedings of the committee were tantamount to a kangaroo court as the committee had not adverted to the merits of the matter, and, in particular, the fact that this was a protected wetland, before resolving to grant the permit.

(v) Fifth, that the committee had resolved to grant the permit without affording the respondents the right to be heard. They submitted, that, the development permit had been improperly issued and that it should, as a consequence, be set aside.

In respect of the environmental impact assessment certificate, the respondents submitted as follows:

1. First, that there had been no public participation and the audi alteram partem rule had not been observed.

2. Second, that the certificate was void for vagueness as it did not identify the project, contrary to section 100(5) of the Environmental Management Act.

3. Third, that the certificate had been issued in respect of Stand 201, which did not exist, rendering the certificate void for vagueness; and

4. Fourth, that there had been a failure, on the part of the Minister and the Environmental Management Agency, to appreciate that environmental rights take precedence over private rights to land.

In its heads of argument filed in the Administrative Court, the City Council submitted as follows:

(i) First, that the mere failure to comply with one or other administrative provision does not necessarily result in a nullity. It depends on whether the statute envisages that the failure should result in a nullity. It also depends on its materiality.

(ii) Second, that a proper application for a development permit had been filed.

(iii) Third, the first to fourth respondents objections had been considered in the Director of Works report, and, therefore, the audi alteram partem principle had not been violated.

(iv) Fourth, that the Ramsar Convention had neither been approved by Parliament nor had it been incorporated into domestic legislation. Therefore, it was not binding on Zimbabwe.

(v) Fifth, that the social rights claimed by the respondents had to be reviewed against the appellants competing right to develop a property that belonged to them.

(vi) Sixth, that the environmental management committee exercised a power vested in it by Council itself.

In their heads of argument, dealing with both appeals, the appellants in this matter submitted as follows:

(a) The decision made by the environmental management committee of the City Council was a decision of the Council itself, as a local town planning authority.

(b) Second, that there was a proper application before the Council which cannot be impugned on the basis, that, having been made by a committee of Council, it had not been made by Council itself.

(c) Third, that the committee was not bound to formally hear the first to the fourth respondents as it was sufficient for written objections to be considered.

(d) Fourth, that the decision of the Administrative Court, holding that the environmental impact assessment certificate had to precede the issuance of a development permit, was wrong.

(e) Fifth, that the Ramsar Convention itself does not prohibit development on a wetland, but, instead, encourages the wise-use of such land.

THE DETERMINATION OF THE ADMINISTRATIVE COURT

In its determination, the court a quo found as common cause, that, the property belonging to the appellants is part of a wetland and that the piece of land on which the appellants intended to erect one hundred and twenty-one cluster homes was virgin and undeveloped. It found that the development was intended to take place on the unregistered Stand 201 measuring 9.35 hectares which the appellants had unsuccessfully attempted to shear off from the main Meadows of Monavale Extension.

It found, further, that, the omission to particularise that portion of the land on which the development was to take place was a serious error which should not have been condoned by Council.

The court further found, that, the failure to attach the signed consent of NMB Bank, which had a mortgage bond registered over the property, was a fatal irregularity.

In doing so, the court took into account the provisions of section 26 of the Regional, Town and Country Planning Act [Chapter 29:12] (“the RTCP Act”) which provides, that, an application for a permit shall be accompanied by the consent, in writing, of the holder of any real right registered over the property.

The appellants, not having justified why the application had not been accompanied by the consent in writing of NMB Bank, the court found that the defect rendered the application invalid.

Further, the court found that the development permit related to the larger undivided piece of land owned by the appellants. The environmental impact assessment certificate, to the contrary, related to the unregistered Stand 201 measuring 9.35 hectares.

It therefore found, that, the development permit, which related to the entire 16,2885 hectares, could not be predicated on an environmental impact assessment certificate issued in respect of 9.35 hectares of land. Moreover, the development permit made it clear that it had been issued to enable the erection of one hundred and twenty-one cluster houses.

The environmental impact assessment certificate, on the other hand, stated that it had been granted to the appellants to enable a housing development to take place on Stand 201 Monavale. The court found, that, it was impossible to ascertain the nature of the developments proposed by those two sets of documents.

As regards the application for a development permit filed by the appellants on 15 May 2018, the court a quo found that it relied on documentation annexed to an earlier application submitted in 2015.

It concluded, that, since an application that is not determined within three months is deemed to have been refused in terms of section 26(7) of the Regional, Town Country Planning Act, those documents could not have been relied upon in the application submitted on 15 May 2018.

The court accordingly found, that, the application for the development permit was defective in that respect and that it should not have been processed by the City Council. By necessary implication, it further found that the development permit issued pursuant to that application was also a nullity.

On the objections filed by the first to fourth respondents, the court noted, that, although four letters of objection had been forwarded to the City Council, the Director of Works had referred to only two objections in his write-up to Council. He did not indicate which two of the objections had been considered.

The court also found, that, the City Council had unlawfully shifted the onus of proof to the first to fourth respondents when it determined that their objections were not supported by evidence.

As regards the contention that Council had failed to properly address the implications of granting a development permit on an internationally-protected wetland, the court determined, that, whilst the appellants have the right to deal with the property in a manner they may choose, that right was attenuated by section 86 of the Constitution 2013, which provides that the enjoyment of rights and freedoms must be exercised reasonably and with due regard to the rights and freedoms of others.

It found, that, there was good reason for the view, that, the core of the wetland be left wild, untouched, and suitable for the diverse range of migrant birds, including some that are endangered species that come all the way from countries as far afield as Cameroon, Congo, and Kenya.

The court found, that, the construction of cluster houses would involve digging up foundations, clearing land, and erection of houses.

In these circumstances, so the court concluded, there was need to rely on the precautionary principle which is applicable where, due to unavailable scientific knowledge, there is uncertainty as to the future impact of the proposed development.

On the environmental impact assessment certificate, the court reiterated its earlier finding, that, this had been issued in respect of Stand 201, which does not exist. The certificate was issued in respect of the whole property measuring 16,2338 hectares. The first to fourth respondents had not been consulted during the preparation of the report which preceded the issuance of the certificate.

Consequently, the court also upheld the appeal against the grant of the certificate.

In the result, having upheld both appeals, the court ordered that the appellants, the City Council, and the Minister pay the costs of suit on the ordinary scale.

It is against that order that the two appeals were noted to this Court by the appellants and the City Council.

GROUNDS OF APPEAL BEFORE THIS COURT

In their notice of appeal, the appellants relied on a number of grounds. I reproduce these hereunder:

“1. The Administrative Court fundamentally erred in failing to find that the first respondent, being a Trust, did not have legal capacity to have mounted the appeals that it mounted in the Administrative Court.

2. The Administrative Court further grossly erred in interfering with the discretion of the 5th respondent in condoning the reference to an undivided portion of the Meadows of Monavale, known as Stand 201 of Monavale, when such condonation had been done in the exercise of the administrative discretion by the 5th respondent.

3. The Administrative Court further erred in finding, that, the application for a development permit submitted to the 5th respondent was defective in that it had been accompanied by documents from a previous application when such attachments did not have the effect of invalidating the application.

4. The Administrative Court grossly erred in finding, that, the appellants failure to attach to their application for a development permit, submitted to the 5th respondent, the consent of NMB Bank was fatal to such application when there was no evidence that the said Bank had an interest in the land and was not argued by the parties.

5. The Administrative Court further erred in finding, that, the 5th respondent had violated the audi alteram partem rule and had therefore not properly considered the objectives of the 1st up to 4th respondents objectives to the development permit.

6. The Administrative Court further erred in its application of the concept of restrictive measures in section 86(2)(f) of the Constitution of Zimbabwe and finding, therefore, that the appellants could not carry out the development on the property in issue as part of the exercise of the right of ownership enshrined in section 71(2) of the Constitution of Zimbabwe.

7. The Administrative Court further erred in relying upon the precautionary principle in prohibiting the development proposed on the piece of land in issue by the appellants.

8. The Administrative Court grossly erred in finding, that, the environmental impact assessment certificate issued by the 6th respondent was void for vagueness when it related to an identifiable property and the correction of the certificate had been placed before the Court.”

The City of Harare, as appellant, also attacked the determination of the court a quo on a number of grounds which I quote verbatim hereunder:

“1. The court a quo erred in finding that the application for a development permit was defective in that it was accompanied by documents from a previous application when such deficiency, if any, did not have the effect of invalidating the permit.

2. The court a quo erred in finding that appellant had violated the audi alteram partem rule by failing to properly consider the objectives when there was clear evidence throughout the record of a consideration of the objections.

3. The court a quo erred in stopping a development on the bases of unproven likelihood of harm to the environment.

4. The Administrative Court erred by failing to arrive at the conclusion, that, the permitted development was consistent with the 'wise use' concept contained in the provisions of the Constitution, the Environmental Management Act, and the Ramsar Convention on the protection of the environment.

5. The court a quo erred in allowing immaterial and irrelevant objections to the permit and the Environmental Impact Assessment Certificate to guide it. It so erred to appreciate that this was a town planning matter and one to be dealt with in the wide sense.

6. At any rate, the court a quo erred in failing to consider that any deviation from the provision of the Regional, Town and Country Planning Act and the Environmental Management Act was not material enough to warrant nullification of the permit. It so erred in that it failed to consider the materiality principle.”

APPELLANTS SUBMISSIONS BEFORE THIS COURT

In their submissions, the appellants submitted as follows:

The first respondent, being a Trust, cannot sue or be sued in its name, but, rather, in the name of the trustees.

The appeal instituted by the Trust against the grant of the Environmental Impact Assessment Certificate was therefore invalid.

Although the High Court Rules 1971 define association to include a Trust, and further allow any such association the locus standi to sue or be sued in its own name, the Rules do not apply to the Administrative Court.

The Administrative Court (Miscellaneous Appeals) Rules 1980 SI 122/1980, do not have a provision similar to the High Court Rules. The first respondent (the Trust) should not, therefore, have been a party to the proceedings before the court a quo.

Further, the appellants submitted that the City Council, being a town planning authority, could quite competently delegate its functions to a committee of Council in terms of section 12(3) of the Regional, Town and Country Planning Act.

They also submitted, that, the Environmental Management Committee of the City Council was entitled to condone mis-references in the papers that were placed before it.

The complaint by the first to fourth respondents, on the incorrect description of the property, was therefore not a fundamental defect that warranted interference by the court a quo, especially because the court had accepted that the development was to take place on the appellants property measuring 16,2885 hectares.

There was no requirement that the appellants identify the specific portion of that land where the development was to take place, particularly in view of the fact that the subdivision previously applied for had lapsed.

The error was not serious and the objectors had been able to lodge their objections.

As regards the finding by the court a quo, that the application was invalid on account of the fact that documents from a previous application (that had lapsed) had been attached, the appellants submitted that these were supporting documents and constituted “such information as may be prescribed” as provided for in the Regional, Town, Country Planning Act. The fact that an application is deemed dismissed, in terms of section 26(7) of that Act does not mean documents from that application cannot be attached or used in a subsequent application.

On the finding by the court a quo, that, the failure to attach the consent of the NMB Bank was fatal, the appellants submitted that the issue had only been very vaguely referred to and that it had been assumed that it had been abandoned.

The parties had not addressed the court on this issue.

Moreover, being a question of fact, the four respondents had not shown whether the bonds in issue were still current.

It was therefore an irregularity for the court to make a finding on an issue of fact not traversed by the parties and which was not founded in the pleadings by the parties....,.

In his oral address, counsel made the following further submissions:...,.

As regards the issue of consent by NMB Bank, he submitted that the issue was neither raised nor argued before the court a quo....,.

In their heads of arguments, the first to the fourth respondents have submitted, that, as regards the need to attach the written consent of NMB Bank, they submitted that the issue had been fully ventilated in their statement of appeal before the court a quo as well as their heads of argument.

Moreover, evidence had been placed before the court to confirm that there were current bonds registered over the property....,.

The fifth respondent's submissions mirrored its previous submissions before the court a quo. In addition, it also submitted, that, the issue of consent of the Bank had not been raised in the court a quo....,.

Section 26 of the Regional, Town and Country Planning Act provides that an application for a permit shall be made to a local planning authority and shall be accompanied by the consent in writing of:

(a) The owner of the land; and

(b) Where the application relates to development which involves an alteration —

(i) In the character of the use of any land or building; or

(ii) In the conditions of title to the property;
the holder of any real right registered over the property concerned:

Provided that the local planning authority may dispense with any consent required in terms of this subsection if it is satisfied that —

(a) The applicant has made all reasonable attempts to ascertain the address of the person whose consent is required and has been unable to do so; or

(b) The person whose consent is required has unreasonably failed or refused to give his consent and that the permit, if granted, would not prejudice the rights of such person.”

That the appellant did not attach the consent of NMB Bank, the mortgage holder, is common cause.

It is also common cause, that, the City Council was not requested, at any stage, to dispense with the consent required in terms of paragraph (b) to the proviso. Nor did the appellants themselves attempt to show that they had made reasonable attempts to ascertain the address of NMB or that NMB had unreasonably failed to give its consent and that it would not be prejudiced by the grant of the permit.

Instead, the appellants and the City Council's argument before this Court is that the issue was not raised or argued before the court a quo, and that, in any event, the failure to comply with section 26 of the Regional, Town and Country Planning Act is not fatal to the application.

Although the record before this Court does not contain the verbatim record of the proceedings on the day of the hearing, the record shows that the issue of the consent of NMB Bank was a live issue before the court.

A Deeds Office search form, which forms part of the record, shows that, as at 16 January 2018 i.e. about four months before the appellants submitted their application for a development permit, three mortgage bonds had been registered against the Meadows of Monavale Extension of Mabelreign measuring 16,2885 hectares by NMB Bank Ltd. The mortgage bonds had been registered against the property in March and September 2013 to secure a total amount of almost US$246,000.

The failure by the appellants to comply with section 26 of the Regional, Town and Country Planning Act was raised on at least two occasions before the court a quo.

One of the grounds of appeal to the Administrative Court, against the grant of the development permit by the first to fourth respondents, was that the City Council had failed to find that the application was defective for failure to comply with section 26(1)(b) of the Regional, Town and Country Planning Act in that it omitted to include, inter alia “the person holding mortgage bonds over the property.”

The same complaint was made in the respondents heads of argument that “the application does not include the signed consent of NMB Bank whom, according to a search at the Deeds Office, filed in the appellants bundle as Item 39, are persons holding mortgage bonds over the property, contrary to section 26(1)(b) of the Regional, Town and Country Planning Act.”

Contrary to submissions by counsel for the appellants and the City Council, it is clear, therefore, that the issue was very much a live one and was an issue that the court was under obligation to determine.

Its determination was that the failure to comply with section 26(1)(b) of the Regional, Town and Country Planning Act was fatal, rendering the application defective.

SC04-13 : ALTEM ENTERPRISES (PVT) LTD T/A RUWA FURNISHERS vs JOHN SISK & SON (PVT) LTD
Ruled By: ZIYAMBI JA, GARWE JA and MAKARAU JA

The respondent also filed a cross appeal, not against the final order made, but against the findings by the court a quo that the other breaches of the lease agreement had not been proved and that the respondent had not shown it genuinely required the premises for its own use.At ...

At the hearing of the matter before this Court, counsel for the respondent conceded that since the cross appeal was not directed at the substantive order, the cross-appeal was not properly before the court and should be struck off.

This concession was made in the light of the decision of this Court in Chidyausiku v Nyakabambo 1987 (2) ZLR 119 (S). Although the cross appeal is no longer the subject of this appeal, it has, in my view, raised a fundamental question on whether the decision in Chidyausiku v Nyakabambo 1987 (2) ZLR 119 (S) is entirely correct….,.

I feel obliged, as already indicated, to express my personal view on the correctness or otherwise of the decision of this Court in Chidyausiku v Nyakabambo 1987 (2) ZLR 119 (S). I confess that I do so without the benefit of argument from both counsel.

Chidyausiku v Nyakabambo 1987 (2) ZLR 119 (S) is authority for the proposition that in order to be valid, a notice of appeal must be directed to the whole or part of the order made by the court a quo and not to its reasons for making the order in question. GUBBAY JA…, remarked…, -

“…, what this Court is being asked to do is not to reverse the order of the learned judge but to cure the procedural defects by either considering the merits of the application itself or remitting the matter for the learned judge to do so. Once that is done, the appellant will be content whatever the outcome should happen to be. That this is the approach is evident from the wording of the so-called prayer to the notice of appeal, which omits to seek an order that the application brought in terms of Rule 18 be dismissed.”

I am prepared to accept that, as a general rule, the above remarks correctly reflect the law of this country. To the extent, however, that the judgment suggests that this is a hard and fast rule I am inclined to differ. There may well be cases, such as the present, where the slavish adherence to the above principle would not only cause prejudice but would result in a certain degree of absurdity. I revert to the facts of this case to justify why I am of this opinion.

In the court a quo, the respondent approached the court seeking the eviction of the appellant as well as holding over damages. It had several causes of action. The main was that it required the premises for its own use. In the alternative, it alleged several breaches of the lease agreement. These were that the appellant had, without authority, sublet a portion of the leased premises; that the appellant had constructed a permanent structure without authority; that the appellant had failed to maintain the premises in a state of repair; and, lastly, that the appellant had failed to pay the rental due. It will be apparent from the above that each breach alleged by the respondent constituted a separate cause of action which, if proved, would have justified either singly or cumulatively, the eviction sought in the prayer.

The court a quo rejected the respondent's claim that it required the premises for its own use. It also rejected all but one of the respondent's claims that the appellant had breached the agreement. Having accepted that the appellant had failed to pay the rent due the court then ordered the eviction of the appellant as well as holding over damages. However, the appellant appealed to this Court against that order. It was at this stage that the respondent had to make a difficult decision.

If the appeal filed by the respondent were to succeed, then the order of eviction and holding over damages would fall away. Since the issue before the Supreme Court would be only whether the court a quo was correct in holding that the appellant had failed to pay the rent due, there would be no basis for the respondent to attack the other findings by the court a quo, which findings could also justify the order of eviction and payment of holding over of damages, unless the respondent also cross appealed against those findings.

This is what the respondent…, did.

However, faced with the decision of this Court in Chidyausiku v Nyakabambo 1987 (2) ZLR 119 (S), the respondent was forced to concede that the cross-appeal did not comply with the law as it did not seek any relief on the substantive order made. My understanding of the respondent's position was that in the event the main appeal succeeded, this Court should revisit the finding made by the court a quo in dismissing the other causes of action and in the event that any one of them succeeded then the eviction and holding over damages would stand.

Speaking for myself, I find nothing wrong with such an approach, and, indeed, it seems to me that in a case such as this one there is no other alternative.

Hopefully this issue will come up for consideration by a full court so that the principle can be revisited in order to ascertain whether it still makes good law.

Appealed
SC70-18 : YUNUS AHMED vs DOCKING STATION SAFARIS (PRIVATE) LIMITED t/a CC SALES
Ruled By: BHUNU JA

After reading papers filed of record and hearing counsel in this matter, I dismissed the application that was before me with costs, and indicated that the reasons for judgment would be available in due course.These are they.The facts of this case can be summarised as follows:The applicant, Yunus Ahmed, was ...

These are they.

The facts of this case can be summarised as follows:

The applicant, Yunus Ahmed, was the Director of a company known as Foldaway Investments (Private) Limited. The respondent, Docking Station Safaris (Private) Limited t/a CC Sales is a company duly registered in accordance with the laws of Zimbabwe.

The respondent and Foldaway Investments used to conduct business together, and, during the course of doing business, Foldaway Investments fell into debt with the respondent.

This caused the respondent to institute legal proceedings against it for the recovery of the debt.

The respondent was successful against Foldaway Investments and it obtained an order for the recovery of the debt.

The respondent then instituted proceedings against the applicant, imploring the court a quo to make an order declaring that the applicant be jointly and severally liable with Foldaway Investments for all the debts of Foldaway Investments to the respondent.

The dispute went for trial, and, the court a quo held that the applicant should rightly be found jointly liable with Foldaway Investments for all the debts it owed the respondent.

On 19 July 2017, the applicant noted an appeal against the judgement of the court a quo. The applicant, however, did not serve the notice of appeal on the Registrar of the High Court as stipulated by Rule 29(2) of the Supreme Court Rules 1964 thereby necessitating the present application.

Before I delve into the merits of this application, I find it pertinent to highlight the irregularities that accompany this application.

On the face of the application, it is indicated that the application is for condonation and extension of time in terms of Rule 31 of the Rules of the Supreme Court 1964.

The contents of the founding affidavit tell a different story.

The application is said to be an application for condonation and reinstatement of appeal arising from the fact that the applicant did not serve the Notice of Appeal on the Registrar of the High Court.

The applicant seems to be confused as to the nature of the application that he is supposed to bring before this Court.

It is trite, that, an application stands or falls on its founding affidavit: see Fuyana v Moyo SC54-06; Muchini v Adams & Ors SC47-13; and Austerlands (Pvt) Ltd v Trade and Investment Bank Ltd & Ors SC80-06.

In cases where the headings on the cover of an application tell one thing, and the contents of the founding affidavits tell another, the nature of the application that is before the court is determined by the contents of the founding affidavit and not the headings on the cover of the application.

This was aptly captured by GOWORA JA in Zimbabwe Posts (Pvt) Ltd v Communication & Allied Services Union SC20-16 as followings:

“The issue that begs an answer is how the court a quo should have dealt with the matter given the apparent confusion that had been created by the appellant in settling its papers. An application must be disposed of on the basis of the founding affidavit….,.”…,.

In casu, it is averred, twice, in the applicant's founding affidavit, that, the application is for condonation for non-compliance with the rules and reinstatement of appeal.

The contents of the founding affidavit thus take precedence over what is written on the headings of the application.

It is however expected, generally, that, the headings of an application should marry with the contents of the founding affidavit.

This application is thus one for condonation and reinstatement of appeal as averred in the founding affidavit....,.

The applicant`s draft order is in shambles. It reads as follows:

“WHEREUPON, after perusing documents filed of record;

IT IS ORDERED AS FOLLOWS:

1. The Application for condonation for non-compliance with the rules of the Supreme Court and is hereby granted. (sic)

2. The application for extension of time with which (sic) to file and serve a notice of appeal in terms of the rules and is hereby granted.

3. The Applicant be and is hereby ordered to serve the Registrar of the Labour Court (sic) the notice of appeal within 7 days of this order.

4. No order as to costs.”…,.

This draft order is incompetent in various ways.

Apart from the several typographical errors, paragraph 1 does not state the Rule that the applicant failed to comply with, which the court should condone. Secondly, having established that this is an application for condonation and reinstatement of an appeal, paragraph 2 does not pray for the reinstatement of an appeal. Lastly, the applicant, in paragraph 3, prays that the notice of appeal be served on the Registrar of the Labour Court when it is common cause that he seeks to appeal against a decision of the High Court.

The sum effect of these errors render the draft order meaningless and inevitably fatally defective.

Such tardiness is least expected in court process that is drafted by a legal practitioner. Legal practitioners must be meticulous in drafting pleadings and process. Shoddily drawn process confuse the court and the other party.

The need to be meticulous is most important when drafting the relief sought. If the relief sought is imprecise and defective, the court cannot grant it.

HH11-13 : FLORENCE SIGUDU vs MINISTER OF LANDS AND RURAL RESETTLEMENT N.O. and PHINEAS CHIHOTA
Ruled By: PATEL J

The applicant in this matter seeks an order declaring the legality of her occupation of a piece of farmland in Seke District and the nullification of the consolidation of that land with an adjoining farm.

She also seeks the eviction of the second respondent and an order for costs against him.

The first respondent (the Minister) resists the application on the ground, that, the applicant's right to occupy the land was withdrawn.

The second respondent has not filed any notice of opposition and is accordingly in default.

The first respondent was required to file his heads of argument in March 2012, and, having failed to do so, was automatically barred.

However, there being no objection from the applicant, the bar imposed upon the first respondent was uplifted by consent, and his failure to file heads timeously was also condoned.

Any costs incurred by reason of his late filing of heads of argument are to be borne by the first respondent.

Background

In 2002, the Minister allocated Subdivision 2 of Denby Farm to the applicant through an offer letter dated 2 June 2002.

Thereafter, the applicant took occupation, prepared the land, moulded bricks for farm buildings, and purchased equipment in anticipation of commencing farming activities.

In 2005, the Provincial Lands Committee held a meeting chaired by the second respondent. The meeting took a decision to consolidate the applicant's farm (Subdivision 2) with the farm allocated to the second respondent (Subdivision 9) and further resolved that the applicant should vacate her farm.

The Minister's position is that the consolidation in dispute was procedurally effected and that the applicant's offer letter was automatically withdrawn because she had failed to comply with the conditions attaching to the offer of land.

It is common cause that there was no formal communication of the withdrawal to the applicant - even after a written request by her lawyers.

The applicant asserts, that, her right to occupy the farm has not lapsed or been legally terminated and therefore still subsists.

She also challenges the legality of the consolidation process as being tainted by bias and corruption, having been influenced by the second respondent for his own benefit.

Additionally, she contends that any offer letter or lease issued to the second respondent is not superior to her offer letter and cannot override her right to occupy the farm.

Issues for Determination

At the hearing of this matter, the applicant's counsel did not persist with his point in limine contesting the authority of the deponent to the opposing affidavit. Consequently, the following issues emerged for determination:

(a) Whether the applicant had duly complied with the conditions attaching to her offer letter.

(b) The legality of the process consolidating Subdivisions 2 and 9 of Denby Farm.

(c) Whether the first respondent was entitled, or empowered, to withdraw the offer letter.

(d) Whether the applicant's offer letter was duly withdrawn or cancelled.

(e) Whether the applicant's right to occupy still subsists and whether it is accordingly recognisable and enforceable....,.

Legality of Consolidation

According to the applicant's counsel, which position was not questioned by counsel for the first respondent, every Provincial Lands Committee is ordinarily chaired by the appropriate Provincial Governor.

The applicant's unchallenged evidence is that the relevant 2005 meeting of the Committee in casu was chaired by the second respondent, who, at that time, was a Deputy Minister.

That meeting decided to consolidate the applicant's farm with the farm allocated to the second respondent, and, further, resolved that the applicant should vacate her farm.

The applicant contends, that, the second respondent abused his influence in the Committee to push for the consolidation of the two farms.

The only response by the Minister's deponent is that “the second respondent is best placed to answer these averments.”

The second respondent himself has failed to oppose this application and has simply not bothered to deal with the serious allegations against him.

On the undisputed facts before me, the only inference that can reasonably be drawn is that the second respondent did use his position to influence the consolidation process and the consequent allocation of the consolidated land to himself.

There is no explanation as to why he chaired the meeting in question. Even if such explanation were to be availed, there is no doubt whatsoever that he simply should not have chaired that particular meeting of the Committee.

The basic tenet of our common law is that nemo debet esse judex in propria sua causa – no one should be an arbiter in his own cause.

This time-honoured precept is codified in section 27(1)(b) of the High Court Act [Chapter 7:06] and in section 3(1)(a) as read with section 5 of the Administrative Justice Act [Chapter 10:28].

This is so for the obvious reason, that, the proceedings of a public body or committee should be free from the possibility of bias and the attendant risk of its incumbents serving their own personal interests.

It follows, that, the decision of the Provincial Lands Committee, in 2005, to consolidate the applicant's farm with the second respondent's farm was vitiated by a fundamental irregularity. It was tainted ab initio and must therefore be declared a nullity.

See McFoy v United Africa Co. Ltd [1961] 3 All ER 1169 (PC)…,.; Muchakata v Netherburn Mine 1996 (1) ZLR 153 (S)…,.

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Pleadings re: Approach to Pleadings, Pre-Trial, Disparities with Testimony, Unchallenged Statements & Issue Estoppel

Appealed SC62-24 : DELTA CORPORATION LIMITED vs ZIMBABWE REVENUE AUTHORITY Ruled By: GWAUNZA DCJ, UCHENA JA and KUDYA JA

Appealed SC62-24 : DELTA CORPORATION LIMITED vs ZIMBABWE REVENUE AUTHORITY Ruled By: GWAUNZA DCJ, UCHENA JA and KUDYA JA

View Appeal HH577-23 : DELTA BEVERAGES (PVT) LTD vs ZIMBABWE REVENUE AUTHORITY Ruled By: MAFUSIRE J

SC05-22 : CUTHBERT DUBE vs PREMIER SERVICE MEDICAL AID SOCIETY and PREMIER SERVICE MEDICAL INVESTMENTS Ruled By: MAKONI JA, MATHONSI JA and CHITAKUNYE JA

Appealed SC06-22 : JOEL SILONDA (SUBSTITUTED BY EXECUTOR, VUSUMUZI SILONDA) vs VUSUMUZI NKOMO Ruled By: GUVAVA JA, UCHENA JA and KUDYA AJA

Appealed SC06-22 : JOEL SILONDA (SUBSTITUTED BY EXECUTOR, VUSUMUZI SILONDA) vs VUSUMUZI NKOMO Ruled By: GUVAVA JA, UCHENA JA and KUDYA AJA

SC09-22 : MOVEMENT FOR DEMOCRATIC CHANGE (TSVANGIRAI) and DOUGLAS MWONZORA and DR THOKOZANI KHUPE vs LILIAN TIMVEOS and THABITHA KHUMALO and OTHERS Ruled By: GUVAVA JA, MAKONI JA and CHITAKUNYE JA

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

SC32-22 : CUTHBERT DUBE vs PREMIER MEDICAL INVESTMENTS (PVT) LTD and PREMIER SERVICE MEDICAL AID SOCIETY Ruled By: MAKONI JA, MATHONSI JA and KUDYA JA

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

SC39-23 : LINDA KOPECKY and MARK KOPECKY and TSHOLOFELO TRUST and DIANE THORNTON and SLIPPER SHELL INVESTMENTS (PVT) LTD vs CITY OF HARARE and SPIRIT LIFE CHURCH Ruled By: BHUNU JA, MAKONI JA and MWAYERA JA

SC50-22 : LONRHO LOGISTICS (PRIVATE) LIMITED vs RAM PETROLEUM (PRIVATE) LIMITED Ruled By: UCHENA JA, MATHONSI JA and KUDYA JA

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

View Appeal HB60-19 : JOEL SILONDA vs VUSUMUZI NKOMO Ruled By: BERE J

View Appeal HH209-19 : ELLIOT RODGERS vs PUWAYI CHIUTSI and TENDAI MASHAMAHANDA and REGISTRAR OF DEEDS and SHERIFF OF ZIMBABWE and BARIADE INVESTMENTS (PVT) LTD and LAW SOCIETY OF ZIMBABWE Ruled By: MANZUNZU J

View Appeal HH606-18 : NMB BANK LIMITED vs FORMSCAFF (PVT) LTD and PENNIWILL (PVT) LTD and RODNEY GALLAGHAN and MILLICENT GALLAGHAN and CHARLES CANNINGS and CLIFFORD JOHNSON and LESLEY BENNET Ruled By: MUZENDA J

Appealed SC95-21 : UPENYU MASHANGWA and BLESSING MASHANGWA vs EMMANUEL MAKANDIWA and RUTH MAKANDIWA and UNITED FAMILY INTERNATIONAL CHURCH Ruled By: GWAUNZA DCJ, MAKONI JA and BERE JA

View Appeal HH40-19 : UPENYU MASHANGWA and ANOR HC4197/18 and EMMANUEL MAKANDIWA and OTHERS HC1774/18 vs EMMANUEL MAKANDIWA and RUTH MAKANDIWA and ANOR and UPENYU MASHANGWA and ANOR Ruled By: TAGU J

View Appeal HH40-19 : UPENYU MASHANGWA and ANOR HC4197/18 and EMMANUEL MAKANDIWA and OTHERS HC1774/18 vs EMMANUEL MAKANDIWA and RUTH MAKANDIWA and ANOR and UPENYU MASHANGWA and ANOR Ruled By: TAGU J

SC85-22 : BERNARD MUTANGA vs TSITSI MUTANGA Ruled By: MAVANGIRA JA, UCHENA JA and MUSAKWA JA

SC88-22 : LOT SYATIMBULA vs CITY OF VICTORIA FALLS (FORMERLY VICTORIA FALLS MUNICIPALITY) Ruled By: GWAUNZA DCJ, MATHONSI JA and CHIWESHE JA

SC101-22 : MASTER OF HIGH COURT N.O. and RUGARE MANDIMA N.O. and HOUSE OF SARI PL vs DAVID TAKAENDESA and OTHERS and HOUSE OF SARI and RUGARE MANDIMA and REGISTRAR OF DEEDS and MASTER OF HIGH COURT Ruled By: GUVAVA JA, KUDYA JA and MWAYERA JA

SC102-22 : SAMANTHA NHENDE vs ANDREW ZIGORA and REGISTRAR OF DEEDS N.O. Ruled By: BHUNU JA, MATHONSI JA and CHATUKUTA JA

SC103-22 : BENSON MAKACHI and MR. MUGAVA and SIMON NOTA and SILAS GWESHE and GIBSON MUTSAKA and EVERSON BREAKFAST and DAVISON CHIVESO and FREDSON GAMA vs EVANGELICAL CHURCH OF ZIMBABWE Ruled By: UCHENA JA, CHITAKUNYE JA and CHATUKUTA JA

SC106-22 : ROLEN TRADING (PRIVATE) LIMITED vs PARKSIDE HOLDINGS (PRIVATE) LIMITED Ruled By: MAKARAU JA, GOWORA JA and BERE JA

View Appeal HBHB160-21 : BLANKET MINE (1983) (PVT) LTD vs FISANI MOYO and VALENTINE MINE (Represented by THOMSON MOYO) and ZIMBABWE REPUBLIC POLICE, GWANDA and PROVINCIAL MINING DIRECTOR N.O. Ruled By: KABASA J

Appealed SC78-23 : SAVIOUR KASUKUWERE vs LOVEDALE MANGWANA and ZIMBABWE ELECTORAL COMMISSION and MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS Ruled By: GUVAVA JA, BHUNU JA and CHATUKUTA JA

SC110-22 : CONSTRUCTION RESOURCES AFRICA (PVT) LTD vs CENTRAL AFRICAN BUILDING AND CONSTRUCTION COMPANY (PVT) LTD t/a CENTRAL AFRICAN BUILDING Ruled By: BHUNU JA, MATHONSI JA and KUDYA AJA

View Appeal HH703-21 : PROFESSOR CHARLES NHERERA vs JAYESH SHAH Ruled By: MATHONSI J

View Appeal CC03-23 : LIVISON CHIKUTU and PHENEAS CHITSANGE and ALBERT DHUMELA vs MINISTER OF LANDS, AGRICULTURE, CLIMATE AND RURAL SETTLEMENT and OTHERS Ruled By: MALABA CJ, GWAUNZA DCJ, GARWE JCC, MAKARAU JCC, GOWORA JCC, HLATSHWAYO JCC and PATEL JCC

CC04-23 : EDWIN MUSHORIWA and FIRINNE TRUST OPERATING AS VERITAS and BRIAN CROZIER and VALERIE INGRAM-THORPE vs PARLIAMENT OF ZIMBABWE and PRESIDENT OF THE REPUBLIC OF ZIMBABWE Ruled By: GWAUNZA DCJ, GARWE JCC, MAKARAU JCC, GOWORA JCC, HLATSHWAYO JCC, PATEL JCC and UCHENA AJCC

Appealed CC05-24 : PENELOPE DOUGLAS STONE and RICHARD BEATTIE t/a Stone/Beattie Studio Partnership vs CENTRAL AFRICA BUILDING SOCIETY and RESERVE BANK OF ZIMBABWE and MINISTER OF FINANCE Ruled By: MALABA CJ, GWAUNZA DCJ, GARWE JCC, MAKARAU JCC, GOWORA JCC, HLATSHWAYO JCC and PATEL JCC

CC06-23 : COSSAM CHIANGWA vs APOSTOLIC FAITH MISSION IN ZIMBABWE Ruled By: MAKARAU JCC, GOWORA JCC and PATEL JCC

View Appeal HH118-23 : PENELOPE STONE and RICHARD BEATTIE t/a Stone/Beattie Studio Partnership vs CENTRAL AFRICA BUILDING SOCIETY and RESERVE BANK OF ZIMBABWE and MINISTER OF FINANCE & ECONOMIC DEVELOPMENT Ruled By: MAFUSIRE J

View Appeal HH118-23 : PENELOPE STONE and RICHARD BEATTIE t/a Stone/Beattie Studio Partnership vs CENTRAL AFRICA BUILDING SOCIETY and RESERVE BANK OF ZIMBABWE and MINISTER OF FINANCE & ECONOMIC DEVELOPMENT Ruled By: MAFUSIRE J

CC08-23 : QEDISANI MACHINE vs SHERIFF OF ZIMBABWE and ZB BANK LIMITED and REGISTRAR OF DEEDS and PAPERHOLE INVESTMENTS (PVT) LTD Ruled By: GARWE JCC, MAKARAU JCC and HLATSHWAYO JCC

CC12-23 : DIVINE HOVE vs PARLIAMENT OF ZIMBABWE Ruled By: GWAUNZA DCJ, GARWE JCC, MAKARAU JCC, GOWORA JCC, HLATSHWAYO JCC, PATEL JCC and GUVAVA AJCC

CC13-23 : PATRICIA DENGEZI vs MUNYARADZI NYAMURURU and XOLISAN MOYO and CHAMPIONS INSURANCE COMPANY LTD and COMMISSIONER GENERAL OF POLICE and MINISTER OF HOME AFFAIRS Ruled By: MALABA CJ, GWAUNZA DCJ, GARWE JCC, MAKARAU JCC, GOWORA JCC, HLATSHWAYO JCC and PATEL JCC

CC13-23 : PATRICIA DENGEZI vs MUNYARADZI NYAMURURU and XOLISAN MOYO and CHAMPIONS INSURANCE COMPANY LTD and COMMISSIONER GENERAL OF POLICE and MINISTER OF HOME AFFAIRS Ruled By: MALABA CJ, GWAUNZA DCJ, GARWE JCC, MAKARAU JCC, GOWORA JCC, HLATSHWAYO JCC and PATEL JCC

HH304-13 : CHIDO MATEWA vs ZIMBABWE ELECTRICITY TRANSMISSION AND DISTRIBUTION COMPANY (ZETDC) Ruled By: MATHONSI J

HH329-13 : RICHARD JAMBO vs CHURCH OF THE PROVINCE OF CENTRAL AFRICA and ANGLICAN DIOCESE OF MASVINGO and DEPUTY SHERIFF CHIVHU N.O. Ruled By: GUVAVA J

SC24-18 : MEDLOG ZIMBABWE (PVT) LTD vs COST BENEFIT HOLDINGS (PVT) LTD Ruled By: GARWE JA, GOWORA JA and GUVAVA JA

View Appeal SC50-12 : CABAT TRADE AND FINANCE vs MOVEMENT OF DEMOCRATIC CHANGE Ruled By: MALABA DCJ, GOWORA JA and OMERJEE AJA

SC58-15 : ERICKSON MVUDUDU vs AGRICULTURAL AND RURAL DEVELOPMENT AUTHORITY Ruled By: MALABA DCJ, GWAUNZA JA and PATEL JA

SC86-22 : CITY OF HARARE vs EVARISTO MUNGATE Ruled By: GOWORA JA, MAKONI JA and BERE JA

SC165-21 : SHARADKUMAH PATEL and MEADOWS (PVT) LTD vs THE COSMO TRUST and OTHERS Ruled By: GARWE JA, GUVAVA JA and MATHONSI JA

SC04-13 : ALTEM ENTERPRISES (PVT) LTD T/A RUWA FURNISHERS vs JOHN SISK & SON (PVT) LTD Ruled By: ZIYAMBI JA, GARWE JA and MAKARAU JA

Appealed SC70-18 : YUNUS AHMED vs DOCKING STATION SAFARIS (PRIVATE) LIMITED t/a CC SALES Ruled By: BHUNU JA

HH11-13 : FLORENCE SIGUDU vs MINISTER OF LANDS AND RURAL RESETTLEMENT N.O. and PHINEAS CHIHOTA Ruled By: PATEL J

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Zimbabwe

Appealed
SC62-24 : DELTA CORPORATION LIMITED vs ZIMBABWE REVENUE AUTHORITY
Ruled By: GWAUNZA DCJ, UCHENA JA and KUDYA JA

Appealed
SC62-24 : DELTA CORPORATION LIMITED vs ZIMBABWE REVENUE AUTHORITY
Ruled By: GWAUNZA DCJ, UCHENA JA and KUDYA JA

View Appeal
HH577-23 : DELTA BEVERAGES (PVT) LTD vs ZIMBABWE REVENUE AUTHORITY
Ruled By: MAFUSIRE J

SC05-22 : CUTHBERT DUBE vs PREMIER SERVICE MEDICAL AID SOCIETY and PREMIER SERVICE MEDICAL INVESTMENTS
Ruled By: MAKONI JA, MATHONSI JA and CHITAKUNYE JA

Appealed
SC06-22 : JOEL SILONDA (SUBSTITUTED BY EXECUTOR, VUSUMUZI SILONDA) vs VUSUMUZI NKOMO
Ruled By: GUVAVA JA, UCHENA JA and KUDYA AJA

Appealed
SC06-22 : JOEL SILONDA (SUBSTITUTED BY EXECUTOR, VUSUMUZI SILONDA) vs VUSUMUZI NKOMO
Ruled By: GUVAVA JA, UCHENA JA and KUDYA AJA

SC09-22 : MOVEMENT FOR DEMOCRATIC CHANGE (TSVANGIRAI) and DOUGLAS MWONZORA and DR THOKOZANI KHUPE vs LILIAN TIMVEOS and THABITHA KHUMALO and OTHERS
Ruled By: GUVAVA JA, MAKONI JA and CHITAKUNYE JA

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

SC32-22 : CUTHBERT DUBE vs PREMIER MEDICAL INVESTMENTS (PVT) LTD and PREMIER SERVICE MEDICAL AID SOCIETY
Ruled By: MAKONI JA, MATHONSI JA and KUDYA JA

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

SC39-23 : LINDA KOPECKY and MARK KOPECKY and TSHOLOFELO TRUST and DIANE THORNTON and SLIPPER SHELL INVESTMENTS (PVT) LTD vs CITY OF HARARE and SPIRIT LIFE CHURCH
Ruled By: BHUNU JA, MAKONI JA and MWAYERA JA

SC50-22 : LONRHO LOGISTICS (PRIVATE) LIMITED vs RAM PETROLEUM (PRIVATE) LIMITED
Ruled By: UCHENA JA, MATHONSI JA and KUDYA JA

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

View Appeal
HB60-19 : JOEL SILONDA vs VUSUMUZI NKOMO
Ruled By: BERE J

View Appeal
HH209-19 : ELLIOT RODGERS vs PUWAYI CHIUTSI and TENDAI MASHAMAHANDA and REGISTRAR OF DEEDS and SHERIFF OF ZIMBABWE and BARIADE INVESTMENTS (PVT) LTD and LAW SOCIETY OF ZIMBABWE
Ruled By: MANZUNZU J

View Appeal
HH606-18 : NMB BANK LIMITED vs FORMSCAFF (PVT) LTD and PENNIWILL (PVT) LTD and RODNEY GALLAGHAN and MILLICENT GALLAGHAN and CHARLES CANNINGS and CLIFFORD JOHNSON and LESLEY BENNET
Ruled By: MUZENDA J

Appealed
SC95-21 : UPENYU MASHANGWA and BLESSING MASHANGWA vs EMMANUEL MAKANDIWA and RUTH MAKANDIWA and UNITED FAMILY INTERNATIONAL CHURCH
Ruled By: GWAUNZA DCJ, MAKONI JA and BERE JA

View Appeal
HH40-19 : UPENYU MASHANGWA and ANOR HC4197/18 and EMMANUEL MAKANDIWA and OTHERS HC1774/18 vs EMMANUEL MAKANDIWA and RUTH MAKANDIWA and ANOR and UPENYU MASHANGWA and ANOR
Ruled By: TAGU J

View Appeal
HH40-19 : UPENYU MASHANGWA and ANOR HC4197/18 and EMMANUEL MAKANDIWA and OTHERS HC1774/18 vs EMMANUEL MAKANDIWA and RUTH MAKANDIWA and ANOR and UPENYU MASHANGWA and ANOR
Ruled By: TAGU J

SC85-22 : BERNARD MUTANGA vs TSITSI MUTANGA
Ruled By: MAVANGIRA JA, UCHENA JA and MUSAKWA JA

SC88-22 : LOT SYATIMBULA vs CITY OF VICTORIA FALLS (FORMERLY VICTORIA FALLS MUNICIPALITY)
Ruled By: GWAUNZA DCJ, MATHONSI JA and CHIWESHE JA

SC101-22 : MASTER OF HIGH COURT N.O. and RUGARE MANDIMA N.O. and HOUSE OF SARI PL vs DAVID TAKAENDESA and OTHERS and HOUSE OF SARI and RUGARE MANDIMA and REGISTRAR OF DEEDS and MASTER OF HIGH COURT
Ruled By: GUVAVA JA, KUDYA JA and MWAYERA JA

SC102-22 : SAMANTHA NHENDE vs ANDREW ZIGORA and REGISTRAR OF DEEDS N.O.
Ruled By: BHUNU JA, MATHONSI JA and CHATUKUTA JA

SC103-22 : BENSON MAKACHI and MR. MUGAVA and SIMON NOTA and SILAS GWESHE and GIBSON MUTSAKA and EVERSON BREAKFAST and DAVISON CHIVESO and FREDSON GAMA vs EVANGELICAL CHURCH OF ZIMBABWE
Ruled By: UCHENA JA, CHITAKUNYE JA and CHATUKUTA JA

SC106-22 : ROLEN TRADING (PRIVATE) LIMITED vs PARKSIDE HOLDINGS (PRIVATE) LIMITED
Ruled By: MAKARAU JA, GOWORA JA and BERE JA

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HBHB160-21 : BLANKET MINE (1983) (PVT) LTD vs FISANI MOYO and VALENTINE MINE (Represented by THOMSON MOYO) and ZIMBABWE REPUBLIC POLICE, GWANDA and PROVINCIAL MINING DIRECTOR N.O.
Ruled By: KABASA J

Appealed
SC78-23 : SAVIOUR KASUKUWERE vs LOVEDALE MANGWANA and ZIMBABWE ELECTORAL COMMISSION and MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS
Ruled By: GUVAVA JA, BHUNU JA and CHATUKUTA JA

SC110-22 : CONSTRUCTION RESOURCES AFRICA (PVT) LTD vs CENTRAL AFRICAN BUILDING AND CONSTRUCTION COMPANY (PVT) LTD t/a CENTRAL AFRICAN BUILDING
Ruled By: BHUNU JA, MATHONSI JA and KUDYA AJA

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HH703-21 : PROFESSOR CHARLES NHERERA vs JAYESH SHAH
Ruled By: MATHONSI J

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CC03-23 : LIVISON CHIKUTU and PHENEAS CHITSANGE and ALBERT DHUMELA vs MINISTER OF LANDS, AGRICULTURE, CLIMATE AND RURAL SETTLEMENT and OTHERS
Ruled By: MALABA CJ, GWAUNZA DCJ, GARWE JCC, MAKARAU JCC, GOWORA JCC, HLATSHWAYO JCC and PATEL JCC

CC04-23 : EDWIN MUSHORIWA and FIRINNE TRUST OPERATING AS VERITAS and BRIAN CROZIER and VALERIE INGRAM-THORPE vs PARLIAMENT OF ZIMBABWE and PRESIDENT OF THE REPUBLIC OF ZIMBABWE
Ruled By: GWAUNZA DCJ, GARWE JCC, MAKARAU JCC, GOWORA JCC, HLATSHWAYO JCC, PATEL JCC and UCHENA AJCC

Appealed
CC05-24 : PENELOPE DOUGLAS STONE and RICHARD BEATTIE t/a Stone/Beattie Studio Partnership vs CENTRAL AFRICA BUILDING SOCIETY and RESERVE BANK OF ZIMBABWE and MINISTER OF FINANCE
Ruled By: MALABA CJ, GWAUNZA DCJ, GARWE JCC, MAKARAU JCC, GOWORA JCC, HLATSHWAYO JCC and PATEL JCC

CC06-23 : COSSAM CHIANGWA vs APOSTOLIC FAITH MISSION IN ZIMBABWE
Ruled By: MAKARAU JCC, GOWORA JCC and PATEL JCC

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HH118-23 : PENELOPE STONE and RICHARD BEATTIE t/a Stone/Beattie Studio Partnership vs CENTRAL AFRICA BUILDING SOCIETY and RESERVE BANK OF ZIMBABWE and MINISTER OF FINANCE & ECONOMIC DEVELOPMENT
Ruled By: MAFUSIRE J

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HH118-23 : PENELOPE STONE and RICHARD BEATTIE t/a Stone/Beattie Studio Partnership vs CENTRAL AFRICA BUILDING SOCIETY and RESERVE BANK OF ZIMBABWE and MINISTER OF FINANCE & ECONOMIC DEVELOPMENT
Ruled By: MAFUSIRE J

CC08-23 : QEDISANI MACHINE vs SHERIFF OF ZIMBABWE and ZB BANK LIMITED and REGISTRAR OF DEEDS and PAPERHOLE INVESTMENTS (PVT) LTD
Ruled By: GARWE JCC, MAKARAU JCC and HLATSHWAYO JCC

CC12-23 : DIVINE HOVE vs PARLIAMENT OF ZIMBABWE
Ruled By: GWAUNZA DCJ, GARWE JCC, MAKARAU JCC, GOWORA JCC, HLATSHWAYO JCC, PATEL JCC and GUVAVA AJCC

CC13-23 : PATRICIA DENGEZI vs MUNYARADZI NYAMURURU and XOLISAN MOYO and CHAMPIONS INSURANCE COMPANY LTD and COMMISSIONER GENERAL OF POLICE and MINISTER OF HOME AFFAIRS
Ruled By: MALABA CJ, GWAUNZA DCJ, GARWE JCC, MAKARAU JCC, GOWORA JCC, HLATSHWAYO JCC and PATEL JCC

CC13-23 : PATRICIA DENGEZI vs MUNYARADZI NYAMURURU and XOLISAN MOYO and CHAMPIONS INSURANCE COMPANY LTD and COMMISSIONER GENERAL OF POLICE and MINISTER OF HOME AFFAIRS
Ruled By: MALABA CJ, GWAUNZA DCJ, GARWE JCC, MAKARAU JCC, GOWORA JCC, HLATSHWAYO JCC and PATEL JCC

HH304-13 : CHIDO MATEWA vs ZIMBABWE ELECTRICITY TRANSMISSION AND DISTRIBUTION COMPANY (ZETDC)
Ruled By: MATHONSI J

HH329-13 : RICHARD JAMBO vs CHURCH OF THE PROVINCE OF CENTRAL AFRICA and ANGLICAN DIOCESE OF MASVINGO and DEPUTY SHERIFF CHIVHU N.O.
Ruled By: GUVAVA J

SC24-18 : MEDLOG ZIMBABWE (PVT) LTD vs COST BENEFIT HOLDINGS (PVT) LTD
Ruled By: GARWE JA, GOWORA JA and GUVAVA JA

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SC50-12 : CABAT TRADE AND FINANCE vs MOVEMENT OF DEMOCRATIC CHANGE
Ruled By: MALABA DCJ, GOWORA JA and OMERJEE AJA

SC58-15 : ERICKSON MVUDUDU vs AGRICULTURAL AND RURAL DEVELOPMENT AUTHORITY
Ruled By: MALABA DCJ, GWAUNZA JA and PATEL JA

SC86-22 : CITY OF HARARE vs EVARISTO MUNGATE
Ruled By: GOWORA JA, MAKONI JA and BERE JA

SC165-21 : SHARADKUMAH PATEL and MEADOWS (PVT) LTD vs THE COSMO TRUST and OTHERS
Ruled By: GARWE JA, GUVAVA JA and MATHONSI JA

SC04-13 : ALTEM ENTERPRISES (PVT) LTD T/A RUWA FURNISHERS vs JOHN SISK & SON (PVT) LTD
Ruled By: ZIYAMBI JA, GARWE JA and MAKARAU JA

Appealed
SC70-18 : YUNUS AHMED vs DOCKING STATION SAFARIS (PRIVATE) LIMITED t/a CC SALES
Ruled By: BHUNU JA

HH11-13 : FLORENCE SIGUDU vs MINISTER OF LANDS AND RURAL RESETTLEMENT N.O. and PHINEAS CHIHOTA
Ruled By: PATEL J