Pleadings re: Approach to Pleadings, Pre-Trial Proceedings, Disparities with Oral Evidence and Unchallenged Statements

HH05-03 : U-FREIGHT EUROMAR (PRIVATE) LIMITED vs EMMANUEL MUTEBUKA
Ruled By: MAKARAU J

I believe the year 1989 is a good starting point for the story of one John Chidyiwa, the Managing Director of the plaintiff, and the defendant. Then, the two knew each other as work-mates in the Department of Customs and Excise (as it was then known). In or about 1993, the two became quite close friends. ...

In or about 1993, the two became quite close friends. The friendship grew so close that members of John Chidyiwa's family knew members of the defendant's family and vice versa. The defendant could visit John Chidyiwa's home in Chivhu in the absence of John Chidyiwa and the reverse would also happen. As of May 1997, the friendship between them could be described as excellent. They then went into business together.

In or about May 1997, two Italian nationals approached John Chidyiwa (alone or in the company of the defendant), and encouraged him to start a freighting company. Urgent Services (Private) Limited came into existence. The directors of this company were one Marinella Cernuschi (one of the Italians), John Chidyiwa, and the defendant.

A dispute arose between the parties as to when and how the defendant became a director of Urgent Services (Private) Limited. For the purposes of determining the real dispute between the parties, it is not important that I make a finding in respect of this dispute. In my view, it is sufficient to note that as of May 1997, when Urgent Services (Private) Limited submitted its register of directors and secretaries to the Registrar of Companies, the defendant was listed as a director of the company.

In due course, Urgent Services (Private) Limited became the plaintiff through a change of name in accordance with the provisions of the Companies Act [Chapter 24.03]. John Chidyiwa assumed the position of Managing Director of the company while the defendant became the Operations Manager.

In or about September 1998, six haulage trucks and six trailers were purchased. Three of each were registered in the name of John Chidyiwa with the remainder registered in the name of the defendant. A few days after each registration, the registration of some of the trucks and trailers were amended to add, at the end of each name, the words “trading as U-Freight”.

The circumstances of the purchase and registration of these trucks and trailers form the centrepiece of the legal dispute before me…,.

In or about April 2001, the defendant and the plaintiff parted company. The defendant tendered a letter of resignation, and, upon leaving the plaintiff, indicated, by word and by deed, that he regarded three of the trucks and three of the trailers as his personal property. As a result of this indication by the defendant, few skirmishes occurred on the highways during which trucks were “hi- jacked” by one party from the other, resulting in a number of applications in this and the Magistrates Court, culminating in this action.

The plaintiff has, throughout these applications, maintained that the entire fleet of six trucks and six trailers are its sole and absolute property.

Before I proceed to deal with the matter on its merits, let me get out of the way one procedural issue. This relates to whether or not there is a counterclaim by the defendant in the matter before me.

Counsel for the plaintiff made much about the absence of a counter-claim in the action between the parties under case no HC4250/01. This he raised not necessary as a procedural issue, but as tending to prove that the defendant has never asserted any legal right to the three trucks and trailers registered in his name and some of which are in the possession of the plaintiff.

In my view, the absence of a counter-claim in this matter is an academic issue.

Firstly, the plaintiff is praying for an order declaring it to be the legal owner of the six trailers and the six trucks. A declarator, by its nature, is binding on both parties to the litigation as it merely defines the legal position within which the parties exercise their rights. A finding that the trucks and trailers are the properties of the plaintiff necessarily means that the defendant has no right to them. The reverse also holds true.

Secondly, and more importantly in my view, this matter was referred to trial after the parties attended before a judge in chambers at a pre-trial conference. The issue of the incomplete nature of the proceedings was not raised at the pre-trial conference stage.

Issues for trial were framed using the affidavits filed by the defendant as an outline of his defence. In my view, this is the appropriate stage at which the incomplete nature of the pleadings should have been raised and rectified. To settle the pleadings between the parties is one of the main functions of a judge at a pre-trial conference.

In an effort not to delay justice between the parties, and with the consent of the plaintiff, I condoned the departure from the rules by the defendant. His opposing affidavits are to be regarded as his plea.

HH174-16 : BASIL MAKURURU vs DERICK VORI
Ruled By: MWAYERA J

The defendant did not defend the claim for adultery damages. The inference is that adultery was committed occasioning contumelia, that is, injury, hurt insult, and indignity. Further, the adultery caused loss of the spouse's consortium that is loss of comfort and society.

HH222-15 : ELIOT ROGERS vs PUWAYI CHIUTSI
Ruled By: MAFUSIRE J

But for the letter from the Registrar of this court asking for the reasons for my “judgment” because an appeal had been noted, I did not intend to write any judgment in this matter.

I find it quite strange that an appeal has in fact been noted.

I was the presiding judge over the pre-trial conference that stretched over five sittings. The parties, with me as umpire, finally reached agreement on the substantive issues, save that of costs. The last sitting was on 4 November 2014. On that day, I issued the following order:

1. Judgment in the sum of US$70,000 (seventy thousand dollars) plus interest at the legal rate from the 10th of September 2013, be and is hereby granted in favour of the plaintiff.

2. By consent of the parties, the Judge dealing with the defendant's application for review against the decision of the Taxing Master of the 12th September 2014 shall:-

(a) If, upon the upholding of the Taxing Master's decision, grant judgment in favour of the plaintiff which judgment shall take into account legitimate disbursements made by the defendant that include payment of capital gains tax and payment for the rates clearance certificate.

(b) If, upon setting aside the Taxing Master's ruling, the matter shall be referred to the Taxing Master for taxation of the defendant's bill of costs. Pursuant to taxation, the plaintiff shall make a chamber application for judgment in terms of Rule 55 of the High Court Rules in respect of any amount still due to him, if any.

3. The defendant shall pay costs of suit calculated on a scale as between attorney and client.

The background to that order or directive is a sad commentary on the legal profession. It is this;

At all relevant times, the defendant was a registered and practising legal practitioner, and, therefore, an officer of the court. The plaintiff was his client.

On 23 April 2014, the plaintiff issued out a summons against the defendant claiming a capital amount in the sum of US$116,000. The money was the balance of the proceeds of the sale of a property the transfer of which had been handled by the defendant. The plaintiff alleged that the defendant had converted the money to his own use. In the alternative, the plaintiff claimed a capital amount of US$70,000 and prayed for an order that the defendant's bill of costs, which purported to account for the balance of the sale proceeds, be referred for taxation.

The details of the plaintiff's claim were quite straightforward. Much of the facts seemed common cause.

Through an estate agent, the plaintiff had sold an immovable property. It had been part of the estate of his deceased parents. The total sale proceeds had amounted to US$266,000. The defendant had been instructed to attend to the transfer. The purchase price had been transferred to his trust account. Inexplicably, the transfer had taken a year to be registered. Afterwards, the defendant had only remitted US$150,000. The sum of $116,000 had remained outstanding.

The plaintiff pressed for it.

In late September 2013 or early October 2013 the defendant rendered three bills of costs. The first, dated 19 March 2013, was in the sum for $25,179=25. The second, dated 27 September 2013, was for $10,847=38. The last, with no discernible date on it, but with an amount of $47,028=83 was said to be the summary of all the legal work done by the defendant and to comprise the total amount due by the plaintiff.

The plaintiff maintained that the defendant had repeatedly acknowledged owing him the sum of $70,000 which he claimed he had invested in an interest-bearing account with a Bank but was now being evasive about remitting it. So, the plaintiff's position was that the full amount due by the defendant was $116,000 but that if the defendant thought that he was entitled to a fee of +$47,000 odd, then he had to tax his bills. However, the plaintiff insisted on immediate payment of the $70,000 over which there was no contest.

In his plea, the defendant denied being indebted to the plaintiff in the sum of $116,000. He claimed that $47,000=83 was due to him by way of fees for professional services rendered. On the sum of $70,000 the defendant stated that on the plaintiff's authority, he had invested the amount. The investor had undertaken to settle the money upon the sale of his diamonds through the Minerals Marketing Authority of Zimbabwe. However, the sales had been stalled owing to the depressed world diamond market.

In his replication, the plaintiff denied that he had given the defendant any instructions other than simply to attend to the transfer of the property. He challenged the defendant's attorney-client bills which he said were only submitted belatedly as he pressed for his money. He also maintained that the defendant could not saddle him with conveyancing costs when they would have been paid by the purchaser. He argued that even if the plaintiff was due an attorney and client fee, the amount that he had claimed and withheld was grossly excessive and completely unreasonable.

On the amount of $70,000, the plaintiff denied that he had instructed the defendant to invest it in the manner alleged, or at all, and that even if he would have given such instructions it would have been on the basis that the investment would be restricted to normal banking channels - not in diamond deals.

The plaintiff filed a detailed Summary of Evidence.

He disclosed the protracted efforts he had made to recover his money. One significant aspect was that at one stage, the defendant implied that he had invested the $70,000 with a certain commercial bank. However, subsequent correspondence revealed that he had handed over the money to some diamond dealer. The correspondence also revealed how the parties' relationship had soured badly and had subsequently degenerated into crude threats. The plaintiff had reported the defendant to the Law Society of Zimbabwe. The defendant had, on several occasions, threatened the plaintiff with legal action. One of the several letters by the defendant, which the plaintiff quoted, read like this:

“I have taken action against you. Your rights are not more important than mine; your money is not more important than my name which you are dragging through the mud as you please. You have been abusing me continuously circulating false and defamatory statements that I have acted unprofessionally to various persons without restraint, and, despite numerous warnings. If you do not withdraw these malicious and reckless statements I am suing you and we will see who will be embarrassed in the end. I will sue you to your last penny. Withdraw your reckless statements now. I will not be intimidated by your threats of action against me.”

In his own Summary of Evidence, the defendant said he would testify that when he had received the purchase price from the estate agent he had released a significant portion of it to the plaintiff without the consent of the purchaser who he said had insisted that the funds be released only upon the registration of transfer.

I found this rather disturbing. Legal practitioners should not behave like that.

The defendant also said, in his Summary, that the plaintiff had given him authority to invest the funds for best return as he himself would deem necessary; that when the transfer had been completed the investor still had diamonds to sell; that the diamonds had initially been sold in Harare, but that, because of poor prices, had later been sold in Dubai, and that all the relevant documentation had been provided to the plaintiff's legal practitioners.

The first of the pre-trial conference sittings was on 1 September 2014. The defendant represented himself. At my specific enquiry, the defendant maintained that the plaintiff had signed an Investment Agreement with him. Of course, the plaintiff disputed that. Although he had filed his draft issues and synopsis of evidence, the defendant had not yet discovered. So the document appeared nowhere amongst his papers. Needless to say it was not on the plaintiff's discovery affidavit.

There was no dispute on the question of the defendant's liability on the sum of $70,000. All that he had pleaded for was time to pay. He said the diamonds had since been sold. The disbursement of the funds was imminent.

The plaintiff expressed extreme bitterness over the defendant's conduct. Among other things, there had been numerous but broken promises to remit this particular amount. In the end, and following the defendant's undertaking, I issued the following directive by consent:

1. That the defendant undertakes to pay the plaintiff, immediately, US$70,000 together with interest thereon at the prescribed rate from 10 September 2013 to the date of payment.

2. That the defendant shall submit for taxation, immediately, his bills of costs copies of which are attached to the plaintiff's summons.

3. That the parties may file a Deed of Settlement to deal with both the main and ancillary issues, including the issue of costs of suit and the scale thereof.

4. That in the event that any issue remains outstanding the P.T.C. would resume on 18 September 2014 at 9:30am.

There were several off-the-cuff exchanges over a number of issues. One such was my advice to the defendant to seek legal representation.

The second sitting of the pre-trial conference was on 18 September 2014. The defendant was now represented by Mr Uriri.

Counsel for the plaintiff informed the hearing that the defendant had defaulted on the payment of the sum of $70,000. He advised that the parties had attended the taxation of the defendant's bills of costs on 12 September 2014. The Taxing Officer had ruled that the attendances reflected on those bills were classically conveyancing attendances that were regulated by statute. As such, the Taxing Officer had declined to tax them and had ruled that the defendant could recover his fees in terms of the relevant statute. In light of that, counsel for the plaintiff pressed for judgment to be entered for the plaintiff in the full amount of the summons.

In response, counsel for the defendant said that he had been unaware that the Taxing Officer had already issued his ruling since he had been advised that such ruling had been reserved. Consequently, he had no instructions on that point.

On the sum of $70,000, the defendant offered a payment plan. He would pay $30,000 on or before 30 September 2014 and the balance of $40,000 on or before 31 October 2014. Given that the disbursement of the proceeds of the sale of the diamonds was imminent the payment plan was just something out of caution.

Very reluctantly, the plaintiff accepted it.

The matter was stood down to the afternoon at 16:00 hours to enable the parties to prepare a Deed of Settlement.

At 16:00 hours, the parties came back. There was no Deed of Settlement yet. But an arrangement had been reached between the parties through their counsel.

However, counsel for the defendant advised that the defendant was contesting the decision of the Taxing Officer as he felt that the attendances on his bills had nothing to do with conveyancing. The pre-trial conference was adjourned to 25 September 2014.

On 25 September 2014, the parties still had no Deed of Settlement. Counsel for the defendant advised that the Deed would now be on the sum of $70,000 only. In five days' time the defendant would be filing an application for the review of the Taxing Officers' decision.

It was finally agreed, before me, that the Deed of Settlement would be filed by not later than close of business on 3 November 2014, failing which the pre-trial conference would be reconvened for the conclusion of the matter.

The fifth and last sitting of the pre trial conference was on 4 November 2014. There had been very little progress. No Deed of Settlement had been signed. Of the $70,000, the defendant had received only $10,000. Counsel for the defendant advised that the time frames could not be met.

The defendant himself advised that the payment that he had promised had depended on him getting the diamond proceeds. They had not been disbursed yet. He had now issued a writ against the diamond dealer. He had also made interim measures to meet his commitments to the plaintiff. Counsel for the defendant said if he failed to pay by 30 November 2014 the defendant would be prepared to consent to judgment in terms of Order 8 of the Rules of this Court.

On the bills of costs, counsel for the defendant advised that the application for review had since been filed but that the plaintiff was opposing it. The parties were now waiting for the determination of that application.

Perhaps not unexpectedly, the plaintiff's attitude had stiffened.

Counsel for the plaintiff recalled the defendant's previous string of broken promises, some of them in front of me. He said there was no need to subject the plaintiff to any further pain. He pointed out that I had issued several directives, all of them on the basis of the defendant's own promises.

He submitted that it was a proper matter for me to enter judgment in terms of Order 26 Rule 182(11) for the full amount of $116,000 as claimed by the plaintiff in the summons. Counsel for the plaintiff's argument was that the application for review did not suspend the order of the Taxing Officer.

Therefore, apart from the $70,000 over which there was no contest, I could also enter judgment for the rest of the claim because the defendant's bills had been dishonoured by the Taxing Officer.

He then asked for costs on the attorney and client scale.

After several exchanges, the parties resolved that they would await the determination of the review application in respect of the defendant's bills. They also undertook to agree that the judge who would deal with the application for review could straightaway enter judgment in favour of the plaintiff in the sum of $48,000, less any legitimate disbursements, in the event that he or she upheld the decision of the Taxing Officer. In the event that the judge set aside the decision of the Taxing Officer, then the defendant's bills would go back for taxation. The plaintiff would then apply, through the Chamber Book, for judgment on any amount due to him, if any.

In the end, I considered that there was nothing for me to refer to trial. The plaintiff was merely playing for more time. It was completely unacceptable that he wished to continue that play before me. I had previously issued several directives at his instance. He had failed to comply.

Rule 182(11) reads:

“(11) A judge may dismiss a party's claim or strike out his defence or make an order as may be appropriate if -

(a) The party fails to comply with directions given by a judge in terms of subrule (4), (6), (8) or (10) or with a notice given in terms of subrule (4); and

(b) Any other party applies orally for such an order at the pre-trial conference or makes a chamber application for such an order.”

Thus, a judge conducting a pre-trial conference in terms of Order 26 has powers, inter alia, to strike out a party's defence. There are three pre-conditions:

(a) The first is that the judge must have given directions in terms of any of the four preceding subrules specified.

(b) The second pre-condition is that a party must have failed to comply with any of those directions.

(c) Pre-condition three is that the other party has to make an application for the striking out of the defence, either orally at the pre-trial conference or through the Chamber Book.

I was satisfied that all the three pre-conditions had been met.

In the end, I entered judgment for the plaintiff in the amount of $70,000 which was never in dispute right from the onset.

As to costs, even if I were to disregard the plaintiff's conduct as depicted by the pleadings, including the synopses of evidence, what he exhibited in front of me was practically the same thing that the plaintiff had complained about in those pleadings. The defendant was just stringing everyone along. He seemed completely oblivious of his position as a legal practitioner and an officer of the court. Therefore, I saw no reason why the plaintiff had to remain out of pocket as far as costs were concerned.

That is how the order of 4 November 2014 came about.

HH227-15 : ZIMBABWE TOBACCO GROWING COMPANY (PVT) LTD t/a NORTHERN TOBACCO vs GEORGE MANIWA
Ruled By: CHITAKUNYE J

On 4 February 2011, the plaintiff sued the defendant for the payment of a sum of $41,466=59 being a sum owing by the defendant to the plaintiff in terms of a written acknowledgment of debt dated 26 June 2010.The defendant, in his plea, admitted the main claim and raised a ...

HH227-15 : ZIMBABWE TOBACCO GROWING COMPANY (PVT) LTD t/a NORTHERN TOBACCO vs GEORGE MANIWA
Ruled By: CHITAKUNYE J

In Cargill Zimbabwe v Culvenham Trading (Pvt) Ltd 2006 (1) ZLR 381 (H)…, MAKARAU J…, had this to say….,;“…,. In my view, a dispute between the parties can only arise ex facie the pleadings filed with the court. It cannot be assumed or presumed from the mere fact of the ...

SC85-14 : REMO INVESTMENT BROKERS (PRIVATE) LIMITED and MAHOMED IQBAL MAHMED and REZANA EBRAHIM and JOHN MOTSI vs SECURITIES COMMISSION OF ZIMBABWE
Ruled By: GARWE JA, GOWORA JA and PATEL JA

On 20 May 2011, the Securities Commission requested all securities dealing firms to declare such loans as they might have obtained and a list of any clients' shares that might have been pledged as security for any loan.

Remo Investment Brokers rendered a nil return, which, as matters turned out, was false.

The appellants admitted that the return was false but gave the alleged absence of Mahomed Iqbal Mahmed from the country as an excuse. The appellants could not explain why the record was not corrected subsequent to his return.

Section 65 of the Securities Exchange Act [Chapter 24:25] reads in relevant part:

“(1) The rules of a registered securities exchange shall make adequate provision for such of the following matters as are appropriate to its functions -

(a) n/a

(b) In regard to membership of the exchange -

(i)…,.

(ii) Ensuring that -

(c) Members are of good character and integrity, or, in the case of members that are corporate bodies, that they are managed and controlled by persons who are of good character and integrity.”

The court a quo concluded that by making a false declaration as aforesaid, the first and second appellants demonstrated the absence of professionalism and integrity in their business dealings.

The Securities Commission, as the regulator under the Securities Exchange Act, is obliged to ensure that high standards are maintained by securities dealers. It did not place either the first or second appellants in good stead to claim that the return was done during the absence of Mahomed Iqbal Mahmed from the country.

As members of a registered securities exchange are required and meant to be of good character and integrity, it was the finding by the Securities Commission, which finding the court a quo confirmed, that Mahomed Iqbal Mahmed was not a fit and proper person to hold a licence as provided for in section 41(1)(c) of the Securities Exchange Act. Mahomed Iqbal Mahmed was the principal dealer in Remo Investment Brokers. The Securities Exchange Act requires that a person in that position should have the attributes of good character, honesty, and integrity in order to ensure efficiency, honesty, fair practice and fair competition in relation to dealings with other exchanges.

It was pointed out by counsel for the respondent that the appellants admitted guilt in respect of the failure to disclose the financial transactions as well as the false declaration. Having pleaded guilty to the charges before the Securities Commission, the attempt to run away from those admissions, on appeal, cannot be regarded in a serious light.

In DD Transport (Pvt) Ltd v Abbot 1988 (2) ZLR 92 (S) GUBBAY JA…, when discussing formal admissions, stated:

“But, this admission in the plea is of the greatest importance, for it is what Wigmore (paras 2588-2590) calls a 'judicial admission' (of the confession judicialis of Voet (42.2.6)) which is conclusive, rendering it unnecessary for the other party to adduce evidence to prove the admitted fact, and incompetent for the party making it to adduce evidence to contradict it.

See also Phipson 7ed p18).

Wigmore loc cit, speaking of judicial admissions in general, refers to the Court's discretion to relieve a party from the consequences of an admission made in error. It does not seem to me that such a discretion could be exercised, in a case where the admission has been made in a pleading, in any other way than by granting an amendment of that pleading.

These dicta were approved by MACDONALD ACJ (as he then was) in Moresby-White v Moresby-White 1972 (1) RLR 199 (AD) at 203E-H; 1972 (3) SA 222 (RAD) at 224.”

View Appeal
HB16-14 : CASPER TSVANGIRAI vs ZIMASCO (PVT) LTD and BAOBAB REAL ESTATE and THE REGISTRAR OF DEEDS, BULAWAYO
Ruled By: MUTEMA J

The genesis of the dispute between the parties resides in an Agreement of Sale entered into in respect of Stand 1004 Redcliff Township owned by the plaintiff which the first defendant purchased on 10 June 2008 via the facilitation of the second defendant.

Both the first and second defendants aver that the purchase price, which was paid in full on 11 June 2008, was Z$720 trillion. The plaintiff, however, avers that the price was set at the local currency equivalent of US$180,000 based on the prevailing informal market rate obtaining on the date of payment.

He further avers that he signed his portion of the Agreement of Sale first while the first defendant was to sign later.

On the same date, he signed a power of attorney to make transfer by the second defendant on the understanding that transfer would only pass upon receipt of the full purchase price.

It, however, so happened that the first defendant and the second defendant, or one or other of them, removed some pages from the written Agreement of Sale and altered, inter alia, the purchase price and inserted the plaintiff's initials without his knowledge or consent and attached the forged pages to the last page the plaintiff had signed.

Thereafter, the first defendant paid Z$720,000 (revalued) on 13 June 2008 which amount was at variance with the agreed calculation formula.

This amount, according to the plaintiff, was an equivalent of only US$96,000, leaving a balance of US$84,000.

In the event, the plaintiff prays for nullification of the purported sale agreement, cancellation of the Deed of Transfer No.1906/08 in favour of the first defendant in respect of the property and reversal of ownership into the plaintiff's name; that he refunds the Z$720,000 (revalued) to the first defendant with interest plus costs of suit on a punitive scale.

Alternatively, the plaintiff prays for payment of the outstanding balance of US$84,000 with interest and costs on a punitive scale by both the first and second defendants jointly and severally, the one paying absolving the other.

Both the first and second defendants deny the alleged malfeasance and aver that the agreement is as per exhibit 2 with the purchase price being Z$720 trillion with no US dollar component.

The first defendant counter-claimed for the plaintiff's eviction from the house, arrear rentals, and holding over damages from plaintiff at US$400 per month, plus interest and costs on attorney and client scale.

The plaintiff led evidence from only himself which was to the following effect:

Sometime in 2008, Albert Tsikira of the second defendant phoned him asking whether his house was still on sale. He confirmed it still was. Albert Tsikira then went and viewed the house with the first defendant's representatives. He communicated that his asking price was US$220,000. The price was negotiated down to US$180,000. He told Albert Tsikira that the purchase price was US$180,000 payable in local currency at open market rates.

Albert Tsikira captured that in the Agreement of Sale that he brought to him.

He told Albert Tsikira that the exchange rate was changing daily due to hyper-inflation; that he be consulted when payment was being made so that they agree on the rate.

He signed the last page of the Agreement of Sale and initialled all other pages. Albert Tsikira then left with the agreement documents and the next time he heard from him was on 15 June 2008 when he received payment in his account.

He told Albert Tsikira that the rate had since changed and the amount paid was equivalent to only US$96,000. Exhibit 1 is the letter he wrote.

He explained that when he signed the sale agreement he had also signed a power of attorney and given the title deeds of the property because Albert Tsikira had said the first defendant required those before it could sign the agreement.

When Albert Tsikira gave him exhibit 2, he discovered that the purchase price of US$180,000 had been substituted with Z$720 trillion and the pages preceding the last had been initialled differently on his behalf.

Albert Tsikira told him that he had effected the alterations to the agreement because the first defendant would not accept an agreement denominated in US dollars.

He then wrote exhibit 3 pointing out that the document he was given was not the one he had signed. He did not think that the first and second defendants would go ahead with transfer of the property until he received exhibit 4 – a letter from Wilmot and Bennett legal practitioners demanding vacant possession of the house.

He then instructed his current legal practitioners who wrote to Mrs Matshiya of Wilmot and Bennett who responded via exhibit 5 admitting that US$180,000 was the agreed purchase price.

He produced exhibit 6 – Deed of Transfer of the property from him to the first defendant which he said was fraudulently done.

He said the amount of US$96,000 was arrived at using a rate he was given by Trust Bank.

He concluded by saying that the first defendant's counter-claim has no leg to stand on on account of the fact that the house still belongs to him.

He then closed his case whereupon the first and second defendants applied for absolution from the instance.

The basis upon which the application was made is three-pronged, viz:

1. The date of payment of the purchase price and its effect.

It was argued that no reasonable man might find for the plaintiff because the legal position is that if payment is made by cheque or bank transfer, the date of payment when the instrument is subsequently honoured is the date when the application for transfer is made and not when the funds are credited.

The plaintiff conceded that on 11 and 12 June 2008 he did not know what the informal market exchange rate was and he produced no evidence as to what it was.

Without knowing the exchange rate, no reasonable man might find that the amount he was paid was less by an equivalent of US$84,000 as he claims.

I find that the issue regarding the Zimbabwe dollar equivalent needs the first defendant's answer in view of Mrs Matshiya's letter to the plaintiff's legal practitioner dated 17 December 2008 (exhibit 5) wherein she conceded that the Zimbabwe dollar purchase price was equivalent to US$180,000. There is need for the first defendant to also explain what the obtaining exchange rate was on 10 and 11 June 2008.

It is pertinent to note here that Mrs Matshiya is the first defendant's instructing legal practitioner.

Also, the mode of payment employed by the first defendant was not in sync with the relevant clause in the Agreement of Sale.

2. The caveat subscriptor maxim regarding the signed blank power of attorney does not require comment in extenso at this juncture save to state that fraud is being alleged.

3. re: the first defendant's counter-claim.

It is settled law that an order of absolution from the instance does not attract a subsequent plea of res judicata.

In the application, Mr Mpofu, while praying for absolution regarding the plaintiff's claim, also prayed that the first defendant's counterclaim the for plaintiff's eviction, arrear rentals, hold over damages, etc be granted.

He submitted that such a novel claim is competent in terms of Rule 185 and S W M Electrical P/L v Electrical Pulley Component Suppliers P/L 1996 (1) ZLR 696 (S).

The case was thrown in to buttress the plaintiff's seeming concession that reasonable rentals for the house in question are US$250 per month. The first defendant then indicated its willingness to abandon the counter-claimed US$400 per month, settling for the US$250 per month.

While it is difficult to say with any degree of certainty that what the plaintiff said amounts to a confession of indebtedness, no authority falling on all fours with what Mr Mpofu's application seeks particularly regarding the counter-claim has been cited.

It would be a novel precedent if the court were to grant the application in its current form.

Granting it would effectively put the entire dispute to rest, with the plaintiff losing his right to re-institute the suit in the future.

On the totality of the foregoing, the application for absolution from the instance at the close of the plaintiff's case and for the first defendant's counter-claim to be granted be and is hereby dismissed with costs.

Appealed
SC16-20 : INFRASTRUCTURE DEVELOPMENT BANK OF ZIMBABWE vs ENGEN PETROLEUM ZIMBABWE (RIVATE) LIMITED
Ruled By: GUVAVA JA, MAVANGIRA JA and ZIYAMBI AJA

It is trite that a court ought to be guided and to determine issues which are raised by the parties in the pleadings.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. ...

SC48-09 : HALWICK INVESTMENTS t/a WHELSON TRANSPORT vs GARAI NYAMWANZA
Ruled By: SANDURA JA, ZIYAMBI JA and GARWE JA

This is an appeal against the decision of the Labour Court setting aside the proceedings of a disciplinary committee constituted by the appellant and remitting the matter for a re-hearing before a different panel.

The background leading to the institution of disciplinary proceedings against the respondent is common cause.

The respondent was employed by the appellant as a driver. At the time the incident giving rise to the disciplinary proceedings took place, he was driving a truck belonging to the appellant carrying fertilizer destined for Zambia. There were also a number of other trucks belonging to the appellant carrying fertilizer to Zambia. At Chirundu Border post there was a delay in clearing the truck as one bill of entry was missing. The respondent then telephoned a Chief Superintendent Mandipaka of the Zimbabwe Republic Police and made a report to the effect that the appellant's clearing agents were smuggling fertilizer out of Zimbabwe. As a result of that report some sixteen trucks, some belonging to the appellant, were delayed at the border post whilst the police investigated the report made by the respondent.

Upon full investigation, however, the missing bill of entry was found and it was established that there was no intention on the part of the appellant, or its agent, to smuggle the fertilizer out of the country.

The appellant's clearing agent, thereafter, wrote a letter of protest to the appellant highlighting the inconvenience caused by the report and the expenses which the company had been forced to incur to have the matter resolved.

Against that background, the appellant instituted disciplinary proceedings against the respondent on a number of allegations of misconduct.

The disciplinary committee found the respondent guilty of misconduct and determined that his employment be terminated with effect from 14 December 2005. The respondent appealed to the appellant's Managing Director, who, by letter dated 23 December 2005, upheld the decision of the disciplinary committee. On 30 December 2005, the respondent filed a notice of appeal with the Labour Court, Harare, seeking a review of the proceedings. On 3 January 2006, however, the respondent and the appellant executed a document that read as follows:

“I, NYAMWANZA GS, in my capacity as Driver being duly authorized hereto, hereby confirm that I have, on this 03/01/06 day of Jan 2006, accepted from WHELSON TRANSPORT the sum of $15,168,014,179 in full and final settlement of my/our claim/entitlement arising out of Terminal Benefits and I confirm that my/our acceptance of the aforesaid amount determines finally my/our claim and that I/we have no future/retrospective claims against WHELSON TRANSPORT of any nature whatsoever, including interest costs, collection commission arising out of the subject matter aforesaid, or otherwise.

I therefore do hereby sign as acknowledgement and in agreement with the above without alterations or cancellations.”

The document was signed by the respondent.

Notwithstanding the above document, the respondent proceeded with his appeal before the Labour Court. He sought a review of the proceedings before the disciplinary committee on three grounds. These were;

(i) Firstly, that his senior, a Mr Ndoro, played the dual role of chairperson of the disciplinary committee and witness during the disciplinary hearing;

(ii) Secondly, that no hearing actually took place; and

(iii) Thirdly, that he was not given the opportunity to be heard.

In its submission before the Labour Court, the appellant raised two issues. These were;

(i) Firstly, that having executed the document dated 3 January 2006, the respondent waived any rights he may have had to challenge the decision to dismiss him whether by way of appeal or review.

(ii) Secondly, that the respondent had not established good legal ground for setting aside the dismissal.

The court a quo did not consider the issue of waiver raised. It only dealt with the question of procedural irregularity.

In determining that there had been a procedural irregularity and that the matter be remitted for a hearing, the Labour Court remarked:

“In this case, there was a serious procedural irregularity in that the Chairman of the Committee was the witness. He led evidence from the bench. Obviously, there was a real risk of bias in the findings by the Committee. However, from the facts of the matter which are follows:

Appellant was employed as a driver with the respondent. On the day in question, appellant was driving one of the respondent's trucks ferrying fertilizers to Zambia. When the appellant got to Chirundu Border Post and had found that one bill of entry form was missing he phoned the police and advised that respondent was smuggling fertilizers outside the country. As a result of the report 16 trucks belonging to respondent were delayed at the border whilst the police were carrying on investigations.

Respondent lost time and money. The investigations revealed the report was false.

The appellant was charged and dismissed from employment. Since the facts are common cause, to some extent, I will not order reinstatement of the appellant as he clearly has a case to answer.”

The appellant attacks the decision of the Labour Court on four grounds. These are:-

1. That the Labour Court misdirected itself by not dealing with the defence of waiver raised by the appellant....,.

I proceed to deal with the issue of waiver which is the first ground of appeal raised by the appellant.

Reference has already been made to the document signed by the respondent in which he accepted payment of a sum of money in full and final settlement of all his claims and in which he confirmed that his acceptance of the money finally determined any claim he may have had of any nature whatsoever.

In its heads of argument before the court a quo, the appellant specifically raised the issue of waiver.

It was the appellant's contention that by entering into the above agreement the respondent had waived his right to appeal or to take on review the termination of his employment. The appellant had further contended that the ordinary grammatical meaning of the agreement was that the respondent had made an undertaking that the execution of the agreement determined finally any claims of any nature whatsoever.

Despite the fact that the issue had been raised, the court a quo did not consider it at all and made no reference to the submission in its judgment.

This, in my view, was a misdirection.

I would agree with the appellant that the failure to deal with a defence raised by one of the parties amounts to a failure to hear and determine the matter according to law....,.

There was a failure by the court a quo to determine an issue that had been properly raised by the appellant.

The Court completely ignored the issue of waiver raised and proceeded to determine the matter on the basis of procedural impropriety.

Appealed
SC50-20 : ALASTAIR SMITH vs ABIGAIL SMITH
Ruled By: GARWE JA, BHUNU JA and MAKONI JA

This is an appeal against part of the judgment of the High Court. The appellant specifically appeals against paragraphs 2 and 3 of the operative part of the judgment which awarded the respondent maintenance at the rate of US$3,000 per month until she dies, remarries, or cohabits with another man ...

BACKGROUND FACTS

The appellant sued his wife, the respondent, seeking a decree of divorce and other ancillary relief. The respondent did not contest the appellant's claim for a decree of divorce. She however sought the distribution of the assets of the spouses and post-divorce maintenance.

The parties found each other regarding the distribution of their assets including the matrimonial home. They agreed to sell the matrimonial home and most of the proceeds were used to purchase an immovable property which was registered in the name of the respondent and the major, and only son, of the marriage. The appellant received the remainder of the proceeds.

PROCEEDINGS IN THE COURT A QUO

The court a quo captured the only outstanding issue before it as whether or not the defendant is entitled to post divorce maintenance and the quantum of such maintenance….,.

At the end of the trial, the court a quo found that the appellant was currently maintaining the respondent in the sum of US$3,000 per month and that from his income he could continue to maintain the respondent in that amount. It then concluded that, on the basis of the proven facts, the appellant was well able to maintain the respondent in the sum of US$3,000 per month. It also found that the defendant's health condition entitled her to maintenance until she dies, remarries, or cohabits with another man.

The appellant, aggrieved by the decision, filed the present appeal on the following grounds.

GROUNDS OF APPEAL

“1. The court a quo erred in awarding respondent post-divorce maintenance in the sum of USD3,000 per month on the basis that appellant had in the past afforded it and so erred in making that award against the background of appellant's dwindling income and increase in his financial obligation.

2. The court a quo misdirected itself in failing to take into account the fact that respondent had taken all the proceeds from the sale of the sole immovable property of the parties and that she has effectively been paid a lump sum payment by the appellant.

3. The court a quo misdirected itself in finding, without credible evidence, that respondent suffers from a medical condition rendering her permanently incapable of engaging in any income generating project.

4. The court a quo erred in failing to take into account the rental income derived by respondent from her Zvishavane properties and misdirected itself in putting any premium on the fact that respondent's late father's estate had not been wound up.

5. The court a quo erred in failing to grant an award which releases appellant from the control and influence of respondent and so erred in failing to take into account the fact that he is entitled to move on with his life.”

APPELLANT'S SUBMISSIONS BEFORE THIS COURT

Counsel for the appellant made the following submissions;

(a) The court a quo's findings were contrary to the evidence adduced and principles of law applicable in such matters.

(b) The exercise of the discretion by the court a quo was therefore improper and must therefore be vitiated.

(c) Contrary to evidence presented before it, the court a quo imposed an obligation upon the appellant to work for the respondent for life.

(d) The respondent has some free income in the sum of US$3,800 whilst the appellant's free income is under US$1,000.

(e) It is settled law that marriage is not a bread ticket for life.

(f) The court a quo further made a finding that the respondent was entitled to US$3,000 per month when no evidence had been placed before it showing the respondent's expenses to be in that amount. The court had no basis to come to the conclusion that her expenses were US$3,000 per month. The award did not take into account that she was earning $3,800 from her father's deceased estate through the properties she was leasing out in Zvishavane.

(g) The court further fell into error in finding that the respondent was unable to work, based on a report produced by a Dr Gunning. The appellant complained that he paid for the production of the report and yet it was only produced after he had testified and during the respondent's case. The finding that she cannot work does not mean she cannot generate income. She could employ people to do the running around for her.

(h) The respondent got a lump sum in sum of US$200,000 from the proceeds of the sale of the parties' matrimonial home which enabled her to buy another property. The appellant had to obtain a mortgage bond to acquire his own property. The US$200,000 should have set up the respondent and she should have used it in a profitable endeavour.

(i) The question of the respondent's adultery should have been taken into account in coming up with the quantum.

(j) Counsel for the appellant further submitted that the court a quo had erred in not considering the income due to the respondent from the Zvishavane properties on the basis that the estate has not been wound up. If ever it changes then she would approach the court for variation. Instead, the court turned principles of law on the head by asking the appellant to approach the court for variation if the respondent is awarded the properties.

(k) He prayed that the court interferes with the quantum and the period.

RESPONDENT'S SUBMISSIONS BEFORE THIS COURT

Per contra, counsel for the respondent made the following submissions;

(a) The court a quo did not act in a vacuum but in terms of facts it found to have been proven. He referred to the judgement where the court a quo deals with the facts that the court found to have been proven.

(b) The appellant, in his pleadings, did not put in issue the fact of entitlement to maintenance and the period. He offered to pay maintenance until such time as the respondent remarried or cohabited with another man. In the Notice of Appeal, he now prays that he pays the defendant the sum of US$1,500 per month for a period of five years reckoned from the date of this order until the respondent either remarries or commences to cohabit with another man. He now seeks to re-argue his case on appeal.

(c) The finding that the respondent had many ailments was based, inter alia, on the appellant's own admission. These are findings of fact. When the report by Dr Gunning was introduced there was no objection from the appellant. There was no insistence that Dr Gunning be called to testify. It would therefore be unfair to attack the court's reliance on the report.

(d) The issue of adultery was never raised as an issue to be considered regarding the respondent's entitlement to maintenance and the quantum.

(e) Again, the issue of the lump sum, realised from the disposal of the matrimonial home, was never raised as a factor in determining the amount of maintenance to be awarded to the respondent. The appellant should have given the respondent due notice that the lump sum would be taken into account in considering the issue of maintenance.

ISSUES

From the above submissions, and the pleadings by the parties, the issue for determination is the quantum of post divorce maintenance and the period.

In my view, this should have been the sole issue before the court a quo. It however proceeded to consider the question of entitlement to such maintenance. This was improper as the appellant, in paragraph 9 of his declaration, pleaded as follows:

“9 It is just and equitable that plaintiff (appellant) pay maintenance to defendant in the sum of US$750 per month for a period of one year commencing with effect from December 2009 or until such time as the defendant should remarry or live with another man as man and wife whichever should occur first.”…,.

Clearly, the appellant did not take issue with the respondent's entitlement to post divorce maintenance at that stage, and throughout the trial, but, rather, put in issue the quantum and the period....,.

The law is clear that parties are bound by their pleadings and they are not allowed to depart from them without leave.

The remarks by the authors JACOB and GOLDREIN in Pleadings: Principles and Practice (Sweet & Maxwell London, 1990)…, which are cited with approval in the judgment in Jowel v Bramwell-Jones & Ors 1998 (1) SA 836,898 are apposite and to the following effect:

“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 no part of the duty or function of the court to enter upon an 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…,.

In the adversary system of litigation, therefore, it is the parties themselves who set the agenda of the trial by their pleadings and neither party can complain if the agenda is strictly adhered to…,.”

See also Dube v Bushman Safaris & Another HB112–13; Matambanadzo Bus Service (Pvt) Ltd v Magner 1971 (1) RLR 543…,.

View Appeal
HH540-16 : ALASTAIR SMITH vs ABIGAIL SMITH
Ruled By: UCHENA J

The plaintiff sued his wife, the defendant, seeking a decree of divorce and other ancillary orders.

The parties were married on 5 October 1991 in Bulawayo. Their marriage was blessed with a son who has since attained the age of majority and obtained his first degree. He is staying with the defendant.

The defendant did not oppose the plaintiff's claim for a decree of divorce.

She, however, sought the distribution of assets, including their matrimonial home, and maintenance.

The parties found each other on the distribution of the movables and the matrimonial home. They sold the matrimonial home and used most of the proceeds to purchase a house which was registered in the name of the defendant and their son.

The only outstanding issue is whether or not the defendant is entitled to post divorce maintenance and the quantum of such maintenance.

She initially wanted to be paid maintenance in the sum of US$8,000 per month. After their settlement on the issue of the matrimonial home she reduced her claim to US$3,000 per month till she dies, remarries, or cohabits with another man.

The plaintiff is not willing to pay her maintenance for life. He offered to pay maintenance in the sum of US$1,000 per month for a year after the granting of a decree of divorce.

The plaintiff is a medical doctor. His income, between January and December 2015, gave him an average income of US$12,913=81 per month. His recent income, between January 2016 and March 2016, averaged US$10,868 per month. He is currently maintaining the defendant in the sum of US$3,000 per month and has previously maintained her at higher amounts as he would give her money whenever she made demands.

It is common cause that US$3,000 per month is a reasonable expenditure for both the plaintiff and the defendant. The plaintiff initially gave the impression that he lives inexpensively, but, when details of his expenditure where sought he said he lives on US$3,000 per month over and above his mortgage bond repayments of US$2,111 per month.

He admitted that US$3,000 per month is a reasonable monthly expense.

View Appeal
HMT55-19 : CAMBRIA AFRICA PLC vs BREASTPLATE SERVICES (PRIVATE) LIMITED T/A NEMCHEM INTERNATIONAL
Ruled By: MUZENDA J

On 24 December 2018 the plaintiff issued summons against the defendant claiming the following:

1. Payment of US$31,400.

2. Interest thereon at the prescribed rate of interest per annum from 19 January 2018 to the date of payment in full and final settlement.

3. Interest at the prescribed rate from 1 March 2016 to 18 January 2018 on the sum of US$40,000.

4. Costs of suit on attorney-client scale.

From the plaintiff's declaration, on or about 25 February 2016, at Harare, the parties entered into an agreement in terms of which the plaintiff sold to the defendant its entire issued share capital of an entity known as Milchem Zambia Limited for US$46,347 which amount was payable to the plaintiff on or before 31 March 2016. The defendant paid US$6,347 on an unspecified date and a further US$8,600 on 19 January 2018 leaving a balance of US$31,400 which amount the defendant rejects or refuses to pay.

The defendant, on the other hand, admits the contents of the 2016 sale agreement but goes on to add that a new agreement was later concluded, more particularly, in that it paid both amounts of $6,347 and $8,600, but, on 2 September 2017, the defendant was using Leopard Rock Hotel for an amount of $23,285=48 being claimed under Case No. HC5580/17. Incidentally, the plaintiff owners or directors or shareholders had interests in Leopard Rock Hotel, the $23,285=48 that was owed to the defendant by Leopard Rock Hotel as US$16,000 for the purpose of off-setting and settling. Hence, the balance outstanding would be US$24,000. After the payment of $8,600, the defendant contends that the balance outstanding, as at 19 January 2018, was $15,400 not $31,400 as pleaded by the plaintiff.

After payment of the $8 600, a misunderstanding pertaining to interest arose as well as the 10% discount which the defendant thought applied to the $40,000 agreed as owing on 2 September 2017. The plaintiff argued that the discount applied to the time prior to 2 September 2017 when the debt was about $45,000 that was owed originally and was dependent on immediate payment which was not affected. The defendant tendered to refund the amount paid to it by Leopard Rock Hotel so as to revert to the 2 September 2017 agreement.

The defendant refutes being in breach of the 2016 sale agreement.

On 22 March 2019, the plaintiff filed its replication where it disputed any novation to the original sale agreement. It insisted that the balance, being the capital on the summons denominated in US dollars, should be paid by the defendant. There was never a set-off agreed by the parties relating to the Leopard Rock Hotel debt. In fact, the defendant was fully paid by Leopard Rock Hotel and accepted payment, and, lastly, it rejects the tendered amount for not being made in accordance with any agreement.

At the joint pre-trial conference held on 13 and 29 May 2019 the following issues were spelt out for trial:

(a) Whether or not the defendant is liable to pay to the plaintiff the sum of $31,400 and interest?

(b) Whether or not the defendant is liable to pay interest on the sum of $40,000 from 1 March 2016 to 18 January 2019?

(c) Whether or not the defendant is liable for the payment of costs at attorney-client scale?

(d) Whether or not there is a new contract between the parties supplanting the terms and conditions of the contract signed on 25 February 2016?

On 15 July 2019, the date of trial, the parties filed a Statement of Agreed Facts to the following effect:

1. The plaintiff is a foreign company registered in terms of the British Laws with a registered office in Zimbabwe and the defendant is a company registered in Zimbabwe.

2. On 25 February 2016, the plaintiff sold to the defendant the entire of its issued shares in Milchem Zambia with effective date of sale being 1 September 2015.

3. The purchase price was US$46,347 (forty six thousand three hundred and forty seven United States dollars); the term sheet agreement is already filed of record as part of the plaintiff's bundle of documents.

4. The defendant initially paid an amount of US$6,347 leaving a balance of US$40,000 of which US$8,600 was paid in cash to the plaintiff at Harare on 19 January 2018 leaving the balance of US$31,400 which is the subject of this claim.

5. The defendant admits the amount of US$31,400 has not been paid to the plaintiff but argues that the amount is now payable in RTGS dollars and not in US dollars as denominated in the term sheet agreement.

HHH517-20 : INTRATREK ZIMBABWE PL and WICKNELL CHIVHAYO and STANLEY KAZHANJE vs PROSECUTOR GENERAL OF ZIMBABWE and P MATURURE N.O.
Ruled By: CHIKOWERO J and KWENDA J

I will refer to the parties as Intratrek, Chivhayo, Kazhanje, the PG, and the court a quo respectively. Where it is convenient to do so I will refer to the first three (3) parties as the applicants and the last two as the respondents or first and second respondent as may be appropriate.

Chivhayo is the Managing Director of Intratrek Zimbabwe (Pvt) Ltd. The latter is a company incorporated in terms of the laws of Zimbabwe. Kazhanje was, at the material time, the Board Chairman of the Zimbabwe Power Company (ZPC).

On 18 June 2019 they appeared before the court a quo at Harare Magistrates Court, sitting as an Anti-Corruption Court.

The applicants were facing a charge of bribery as defined in section 170(1)(b) of the Criminal Law (Codification and Reform) Act [Chapter 9:23].

In respect of Intratrek and Chivhayo, it was alleged that on 21 January 2016, at CBZ Bank, Kwame Nkrumah Branch, Harare the trio or one of them unlawfully gave or agreed to give or offered an agent, namely, Kazhanje then a director and Board Chairman of the Zimbabwe Power Company (Pvt) Ltd, a gift or consideration as an inducement or reward for doing or omitting to do or having done or omitted to do any act in relation to his principal's affairs or business or for showing or not showing or having shown or not shown any favour or disfavour to Intratrek and Chivhayo in relation to Kazhanje's principal's affairs or business.

In short, the charge was that Intratrek and/or Chivhayo bribed Kazhanje by transferring to him US$10,000 as an inducement or reward for facilitating or influencing the Zimbabwe Power Company (Pvt) Ltd (ZPC) Board of Directors to make decisions favourable to Chivhayo and Intratrek in relation to the contract for the Gwanda Solar Project.

As for Kazhanje, he was charged for being the receiver of the bribe.

The State Outline then set out how the offence was alleged to have been committed.

On 28 May 2019, the first and second applicants had filed a request for further particulars to the charge and the State Outline. On 11 July 2019 the Prosecutor General's representative filed a response thereto.

Section 177 of the Criminal Procedure and Evidence Act [Chapter 9:07] (the CPE Act) provides that the court may order delivery of particulars to any matter alleged in a charge, summons, or indictment. It does not provide for delivery of particulars to any matter set out in the State Outline.

That is the first problem, in my view, with the request for further particulars. It is unlike in civil procedure where a request for further particulars covers both the summons and declaration/particulars of claim.

In that request, the applicants attached various annexures and sought admissions from the first respondent relative thereto. The admissions were made. In some cases, the first respondent indicated that what was sought was evidence and inferences which it would ask the court a quo to make from the evidence.

A total of twenty-eight annexures were attached to the request for further particulars. Admissions were sought touching on the identity of those documents and their place in the matter. The annexures comprised, among others, letters, contracts, and judgments of this court one of which has been overturned on appeal and the other whose appeal is pending in the Supreme Court.

Dissatisfied with what it perceived to be a reluctance to comply with some of the particulars requested, the applicants made an oral application, before the court a quo, for an order to compel delivery of those particulars.

The third applicant associated himself with both the request and the application.

The application was opposed, and dismissed. The court a quo found that what was requested was in fact evidence and therefore improper.

Next, the applicants excepted to the charge.

The submissions were these;

The third applicant argued that the defect was that the charge did not specify whether the US$10,000 was an inducement or a reward. Further, all three applicants argued that the charge, as amplified by the further particulars, did not disclose an offence.

The exceptions were based on section 170(2) and 180(1) of the Criminal Procedure and Evidence Act [Chapter 9:07] respectively.

The court a quo dismissed the exceptions. It found no formal defect in the charge. It must have found, indeed it found, that the charge disclosed the offence of bribery. The reason is this. It found that what was requested constituted evidence. The charge, as it stood, disclosed the offence of bribery vis a vis the applicants.

The applicants are before us in an application to review the court a quo's decision.

The two grounds of review read as follows:

“1. The decision complained of is a grossly unreasonable abdication of judicial power in that the second respondent did not apply his mind to the substantive and procedural issues before him.

2. The decision complained of is patently contrary to law and determined the exception before the second respondent on an improper basis and is such that no reasonable judicial officer who had applied his mind to the facts would have reached the same decision.”

The first respondent opposed the application.

The parties filed heads of argument.

The first and second applicants made these submissions before us;

The second respondent's decision, dismissing the exception, was grossly unreasonable. The “common cause facts” show that there was no bribery. For example, it was admitted, by the first respondent, in replying to the further particulars, that the tender for the Gwanda Solar Project was awarded to Intratrek through Chivhayo by the State Procurement Board and not the Zimbabwe Power Company (Pvt) Ltd (ZPC) Board which Kazhanje chaired. The ZPC Board's mandate was to implement the contract. There was therefore no basis for the first respondent to lead other evidence at the trial speaking to bribery of third applicant because it had admitted that it was the State Procurement Board (SPB) which awarded to the applicant the tender for the Gwanda Solar Project. The offence of bribery was therefore not disclosed.

Counsel for the third applicant referred us to the South African Supreme Court of Appeal decision in Telematrix (Pty) Ltd t/a Matrix Vehicle Tracking and Advertising Standards Authority SA 459/04 where that court held it proper to have regard to documentary evidence attached to pleadings in determining an exception.

My view is our law is different.

Evidence is inadmissible in determining an exception. Evidence is adduced at trial.

Counsel for the first and second applicants argument, on common cause facts showing that the offence of bribery was not disclosed, finds no favour with me.

We rejected this argument in Mupfumira and Another v Mutevedzi and Another HH200-20.

Firstly, there are no facts to talk about at this stage. There is nothing from the applicants in the nature of facts. They have not pleaded to the charge, tendered a Defence Outline, nor has any evidence been led which would found the basis for common cause facts, if any. All there is, at this stage, are the charge and the State's allegations as set out in its Outline.

What happened a quo, in my view, is that the applicants sought to truncate the trial by resorting to a procedure foreign to our law. Under the guise of seeking particulars to the allegations in the charge they expanded the request to cover allegations set out in the State Outline. They went further to seek admissions disguised as further particulars. The State seemed not to have initially noticed, a quo, that the applicants had sought to jump the gun. Admission of facts is a procedure available at the trial, post plea, and tendering of a Defence Outline, before the State has opened its case.

The multitude of questions contained in what was called a request for further particulars, the annexures thereto and the answers solicited were correctly disregarded by the court a quo in determining the exception. The time will come when evidence will be led, with exhibits, if any, produced in accordance with the rules of evidence.

I also take the view that the charge does not become defective by dint of characterizing the US$10,000 as either an inducement or a reward. These are alternatives speaking to the same charge of bribery.

Looked at from another perspective, counsel for the applicants, while purporting to be seeking further particulars, were actually cross examining the Prosecutor General's (PG) representative. The latter was responding, again through what was called a reply to the further particulars.

There is no law in our jurisdiction sanctioning the PG's representative to be subjected to cross-examination either pre-trial or at the trial itself, either through papers filed of record or orally.

The net effect of what was done was to delay the trial.

The court a quo dismissed the exception because it was based on what was effectively evidence improperly put before it as well as evidence sought to be prematurely placed before it. We see no merit in the application for review. We are remitting the matter to the court a quo for trial.

From the record of proceedings put before us, the applicants first appeared before that court around 18 July 2019. It appears the matter was then ready for trial. What this means is that the applicants have managed to delay the commencement of the trial by a period of one year.

Counsel for the third applicant asked us to consider a court record which was not before the court a quo. The argument birthed by that record was also not placed before that court.

We were told that the third applicant has since been convicted of contravening section 173 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] (the Code) viz corruptly concealing from a principal a personal interest in a transaction. The facts and evidence were said to be the same as in the bribery charge. He submitted that there was therefore an improper splitting of charges as well as a basis for arguing that the third applicant was previously convicted of an offence arising from the same set of facts and evidence.

Section 180 of the Criminal Procedure and Evidence Act [Chapter 9:07] lists nine (9) pleas that can be pleaded to a charge. The usual ones are guilty or not guilty. But, section 180(2)(c) provides that a person can plead that he or she has already been convicted of the offence with which he is charged.

It is not necessary that I discuss whether that plea is available to the third applicant. What is important is that section 186 of the Criminal Procedure and Evidence Act provides that issues raised by a plea (except that of guilty or a plea to the jurisdiction of the court) shall be tried. The third applicant should therefore plead to the charge. The matter should be tried.

Further, whether there was a splitting of charges placing the third applicant in danger of a duplication of convictions on the same evidence is an issue which we cannot consider at this stage.

If he is convicted his remedy may be to raise that as one of his grounds of appeal.

Counsel for the third applicant referred us to a number of South African and Zimbabwean cases on this point. They include Zachariah v The State, Criminal Appeal number APP 331/01.

The application for review, in the circumstances, has no merit.

The present is not one of those rare cases where grave injustice might otherwise result or justice might not, by other means, be attained if we do not interfere in the un-terminated proceedings in the court a quo; see Prosecutor General of Zimbabwe v Intratrek Zimbabwe (Pvt) Ltd and 2 Ors SC59-19; Dombodzvuku and Anor v Sithole N.O. and Anor 2004 (2) ZLR 242 (H).

In the result, it is ordered that:

1. The application for review be and is dismissed.

2. The matter is remitted to the court a quo for the applicants to plead to the charge with the matter proceeding to trial.

HH604-18 : PUWAYI CHIUTSI and ELLIOT RODGERS vs SHERIFF OF HIGH COURT and ELLIOT RODGERS and REGISTRAR OF DEEDS and BARIADIE INVESTMENTS PL and MC DUFF MADEGA N.O. and PUWAYI CHIUTSI
Ruled By: MATHONSI J

Litigants should not oppose applications as a matter of routine - even when they have nothing to say.

SC86-20 : CONSTANTINE CHIWENGA vs MARRY MUBAIWA
Ruled By: GWAUNZA DCJ, GARWE JA and BHUNU JA

This is an appeal against the whole judgment of the High Court handed down on 24 January 2020. The appeal seeks to impugn the court a quo's order awarding custody of the parties' three minor children to the respondent upon the separation of the parties.

The appellant also challenges the jurisdiction of the court a quo, and the urgency and validity of the interdict granted against him in respect of the parties' disputed properties.

Although the parties were also quarrelling about the respondent's right to access the matrimonial home, that dispute has since been resolved by the court a quo in the appellant's favour. That issue consequently falls away.

The respondent has, in turn, abandoned her claim that the appellant be barred from being heard until he has purged his dirty hands. That issue has also fallen away for the reason that it has been abandoned by the respondent.

CHOICE OF LAW

Although the parties were married under Customary Law, they have both elected to have their matrimonial rights and obligations regulated and determined in terms of General Law; section 3(b) of the Customary Law and Local Courts Act [Chapter 7: 05].

It is convenient that their dispute be regulated and determined in terms of General Law because of their sophisticated way of life and ownership of immovable private property.

As the concept of private ownership of immovable property is unknown at Customary Law, it is virtually impossible to determine rights and obligations pertaining to privately owned immovable property in terms of any law other than General Law. Thus, the appropriate applicable law in this case is the General Law. See Mandava v Chasekwa 2008 (1) ZLR 300…,.

BRIEF SUMMARY OF THE CASE

The appellant is the Vice President of Zimbabwe whereas the respondent is his estranged wife. The two were married under an unregistered customary law marriage also known as a customary law union. The marriage was blessed with three minor children. The eldest, Tendai Dominique Chiwenga, is aged 9 years whilst Christian Tawanazororo Chiwenga is 8 years, and Michael Alexander Tadisiswa Chiwenga is 6 years old respectively.

During happier times, the parties resided at their matrimonial home situate at Number 614 Nick Price Drive, Borrowdale Brooke, Harare together with their three minor children. During the subsistence of the marriage, the parties acquired both movable and immovable property either jointly or in their personal capacities. The acquired property includes the matrimonial home, a fleet of cars, immovable business premises known as Orchid Gardens, along the Domboshava Road, personal effects, and other paraphernalia.

It however so happened that the marriage later fell on turbulent times resulting in the appellant initiating divorce procedures under customary law. In those proceedings he alleged that he had given her a divorce token known as 'gupuro'.

In her papers before this Court, and in paragraph 8.1 of her heads of argument, the respondent continues to hold herself out as the appellant's wife. The divorce issue therefore appears not to have been resolved.

The appellant has nevertheless now issued summons against her in the court a quo under case number HC9837/19 claiming custody of the three minor children in terms of section 4 of the Guardianship of Minors Act [Chapter 5:08] and division of the matrimonial property acquired during the subsistence of the marriage.

The current proceedings and the parties' relationship are severely strained, acrimonious, and discordant. This is mainly because of the respondent's arrest on multiple charges of attempted murder of the appellant, fraud, money laundering, and contravention of the Exchange Control Regulations.

Upon her arrest, the respondent was detained in custody for a period spanning three (3) weeks, from 14 December 2019 to 6 January 2020. She went to prison without making proper provision for the custody of their three minor children, possession, and administration of her personal property and effects.

At the time of her arrest and detention, the appellant had voluntarily moved out of the matrimonial home. He avers that he returned to the matrimonial home to fill in the void occasioned by the respondent's arrest and detention in custody. In the absence of the respondent, he then assumed de facto custody of their three minor children and possession of their matrimonial property including the fleet of cars, Orchid Gardens, personal effects, and other paraphernalia.

His conduct in this respect was perfectly lawful and undisputed at the material time.

On 6 January 2020, the court a quo granted the respondent bail and ordered her to reside at the matrimonial home at her specific instance and request. Upon her release from prison, on bail, she returned to the matrimonial home to assume residence as ordered by the court a quo. State security guards stationed at the home denied her access to the matrimonial home.

The same scenario played out when she sought access to Orchid Gardens which was also guarded by State security guards. They also denied her access to the premises.

She further alleges that she claimed custody of her three minor children without success, a fact denied by the appellant.

THE RESPONDENT'S CLAIM A QUO

Under the circumstances, the respondent submits that she had no option but to approach the appropriate court, on an urgent basis, for relief. To that end, she lodged an urgent application in the court a quo for a 'provisional spoliation order' directing the appellant to grant her the following interim relief on a prima facie basis pending the return date for a final order:

1. Access to the matrimonial home.

2. Access to and use of her personal motor vehicles.

3. Access to her clothing, personal goods and effects.

4. Return of her safes containing her personal property.

5. An order directing the appellant to return the three (3) minor children of the marriage to the respondent.

6. An order compelling the appellant to return to the respondent all furniture, goods and effects removed from the business premises at Orchid Gardens.

7. An order denying the appellant access to the court until he has purged his dirty hands.

8. An order directing the Sheriff, with the assistance of the police, to execute the court a quo's order forthwith.

In the final order, the respondent sought the following relief:

9. That the appellant be interdicted and restrained from interfering with the respondent's use and enjoyment of the matrimonial home and her business premises at Orchid Gardens pending the conclusion of the matrimonial proceedings under case number HC9837/19.

10. That the appellant be restrained from removing the three (3) minor children of the marriage from the applicant's custody.

11. That the appellant be ordered to pay costs at the punitive scale as between legal practitioner and client scale.

Though the terms of the provisional and final orders sought are somewhat worded differently, the import and effect of the two orders are materially the same. This is because they both seek to wrestle custody of the three minor children and possession of the disputed property from the appellant and confer them on the respondent.

Basically, the respondent's complaint was that the appellant had abused his office as Vice President of Zimbabwe using soldiers to despoil her of access to the matrimonial home, her children, and property.

THE APPELLANT'S DEFENCE A QUO

The appellant objected to the respondent's claim that the matter was urgent.

He further questioned the assumption of jurisdiction by the court a quo as usurping the function of the Children's Court which is specifically conferred with the jurisdiction in terms of section 5 of the Guardianship of Minors Act [Chapter 5:08] to determine the question of custody of minor children when spouses begin to live apart.

He vehemently denied abusing his office as alleged or at all. He denied that the respondent had custody of the minor children and possession of the disputed property when he assumed de facto custody of the children and possession of the disputed property while she was in prison.

The appellant denied having given the guards at the matrimonial home, and Orchid Gardens, any orders to deny the respondent access to the premises.

His submission, to the effect that he had no control over the guards, was not rebutted.

Placing reliance on the South African case of Fraser v Children's Court, Pretoria North 1997 (2) SA 261, the appellant argued that it was wrong to discriminate against fathers in matters pertaining to the custody of their minor children.

It was his further submission that throughout the whole episode, he acted lawfully as a diligent pater familias. At paragraph 3(c) of his opposing affidavit, in the court a quo, the appellant makes the valid point that, as a responsible parent, he was obliged and duty bound to move into his home and take care of his minor children and family property when the respondent was detained in prison. He averred, further, that, as the father of the children, he was best suited to have their custody because the respondent was a drug addict and a psychiatric patient.

THE COURT A QUO'S FINDINGS AND DETERMINATION

On the basis of the above summation of evidence and arguments, the court a quo found that:

(a) The matter was urgent mainly because of the welfare of the minor children. It also found that the matter was urgent because the respondent was arbitrarily evicted from the matrimonial home without a court order. It also found that spoliation matters are, by nature, urgent; and

(b) Notwithstanding that the respondent was in prison, she was unlawfully despoiled of the custody of her children and property.

The court a quo proceeded to make the following final order despite the fact that the respondent had asked for a provisional order on a prima facie basis:

“1. The respondent (Constantino) is hereby ordered to restore custody of the minor children, namely, Tendai Dominique Chiwenga (born 4 November 2011), Christian Tawanazororo Chiwenga (born 5 November 2012), and Michael Alexander Tadisiswa Chiwenga (born 13 February 2014) to the custody of the applicant (Marry) within 24 hours of this order.

2. The respondent (Constantino) is hereby interdicted and restrained from interfering with applicant's (Marry) access to, use and enjoyment of the property known as 614 Nick Price Drive, Borrowdale, Harare.

3. The respondent (Constantino) is hereby interdicted and restrained from interfering with applicant's (Marry) access to, use and enjoyment of the property known as Orchid Gardens, Domboshawa, Harare.

4. The respondent (Constantino) is hereby interdicted and restrained from interfering with applicant's (Marry) access to, use and enjoyment of the motor vehicles, namely, Toyota Lexus, Mercedes Benz S400, Mercedes Benz E350 (Black).

5. Respondent (Constantino) is interdicted and restrained from interfering with applicant's (Marry) access and/or possession of her clothing.

6. The respondent (Constantino) is ordered to pay applicant's (Marry) costs of suit.”

GROUNDS OF APPEAL AND ISSUES FOR DETERMINATION

Aggrieved by the above order, the appellant appealed to this Court on ten (10) grounds of appeal which in fact raise only three issues for determination by this Court on appeal. It is cumbersome to regurgitate all the ten (10) grounds of appeal. It is however convenient to dwell on the three issues raised by the grounds of appeal. These are;

1. Whether the court a quo correctly determined that the matter was urgent.

2. Whether or not it was competent for the court a quo to grant a final interdict when the respondent had asked for a 'provisional' spoliation order.

3. Whether the court a quo had jurisdiction to determine the question of custody of the three (3) minor children in light of the provisions of section 5 of the Guardianship of Minors Act [Chapter 5:08]....,.

CUSTODY OF THE THREE MINOR CHILDREN

The respondent's claim was for a 'provisional' spoliation order for the repossession of custody of her three (3) minor children and property allegedly forcibly and unlawfully taken away from her by the appellant against her will....,.

The court notes, in passing, that the application makes no distinction between the recovery of custody of the minor children and repossession of property. It treats children as if they were pieces of property that can be the subject of a spoliation order....,.

One difficulty with the respondent's claim for custody under spoliation, misguided though it was, is that in this Court she recanted and retracted her earlier accusation that the appellant had unlawfully abducted the three minor children from her. By the same token she withdrew her allegation that the appellant had approached the court with dirty hands.

These concessions mean that the appellant did not unlawfully dispossess the respondent of the custody of the three minor children.

The retraction just referred to is consistent with the appellant's defence that he did not unlawfully dispossess the respondent of the custody of the children. The concessions therefore absolve the appellant of any wrongdoing regarding the manner in which he assumed custody of the minor children and disputed property.

The allegation that the appellant abused his position as Vice President is therefore misplaced and without foundation.

The requirements for a valid spoliation claim are well known as spelt out in Botha and Another v Barret 1996 (2) ZLR 77 (S)…, where the learned Chief Justice GUBBAY had occasion to remark that:

“It is clear law that in order to obtain a spoliation order, two allegations must be made and proved. These are:

(a) That the appellant was in peaceful and undisturbed possession of the property; and

(b) That respondent deprived him of the possession forcibly or wrongfully against his consent.”

The respondent's claim under spoliation falters at the very first test in that the remedy seeks to protect possession of property in the main and not human beings.

Secondly, unlawful dispossession being a necessary ingredient of the delictual claim of spoliation, the admitted absence of wrongful dispossession left the respondent with no leg to stand on.

HH928-15 : ABC BANK LIMITED vs MACKIE DIAMONDS BVA and THE DEPUTY SHERIFF HARARE, N.O.
Ruled By: HUNGWE J

The applicant seeks interim relief, through the Chamber Book, couched in the following terms:“TERMS OF FINAL ORDER1. The execution of the taxed costs allowed in Case No. HC953/15 by the Taxing Officer, Mr R Matangaidze, be and is hereby ordered to be stayed pending the determination of Application for Review ...

The applicant seeks interim relief, through the Chamber Book, couched in the following terms:

“TERMS OF FINAL ORDER

1. The execution of the taxed costs allowed in Case No. HC953/15 by the Taxing Officer, Mr R Matangaidze, be and is hereby ordered to be stayed pending the determination of Application for Review of the Taxing Officer's decision filed under Case No. HC953/15.

1. The execution of the taxed costs allowed in Case No. HC953/15 by the Taxing Officer, Mr R Matangaidze, be and is hereby ordered to be stayed pending the determination of Application for Review of the Taxing Officer's decision filed under Case No. HC953/15.

2. Costs of suit shall be costs in the cause in the Application for Review of the Taxing Officer's decision under Case No. HC10209/15.

INTERIM RELIEF GRANTED

Pending the application for Review of Taxing Master's decision, under case number HC953/15, the first and second respondents be and are hereby ordered to stay execution and attachment of applicant's movable property to satisfy the amount of taxed costs in Case Number HC953/15.”

The parties were involved in a long running dispute in which the applicant appears to have earned the wrath of the courts and slapped with an adverse order for costs on the turn. The first respondent alleges that the applicant unreasonably refused to make payments of certain funds held by it as a banker. The courts into which the suit spilled found that the resistance to the claim was unreasonably offered, resulting in several orders for costs against the applicant.

The first respondent alleges that the applicant has, to date, not paid any amount in terms of the various orders for those costs.

In this application, the parties appeared before the Taxing Officer of this court on 23 October 2015 at the behest of the first respondent. Before the Taxing Officer, the applicant raised several objections, chief of which related to item 48 on the bill. That item related to disbursement for fees paid to Advocate De Bloc, the first respondent's lawyer in Belgium. Despite these objections, the Taxing Officer allowed that item. In the end, the Taxing Officer allowed costs on a party and party scale in the sum of US$439,546=70 to the first respondent.

At the taxation, the applicant indicated to the first respondent that it intended to take the Taxing Officer's decision on review. On its part, the first respondent proceeded to instruct the second respondent to place under attachment the movable property on the applicant's premises on 23 October 2015.

The applicant filed an application for review of the Taxing Officer's decision under case number HC10209/15 citing various irregularities, especially the allowance of Advocate De Bloc's fees.

In order to prevent immediate execution of the writ, obtained by the first respondent, the applicant filed the present application under a certificate of urgency to stay the execution of the writ pending the determination of the application for review.

On 24 October 2015 I issued an order staying execution pending the determination of the present chamber application.

The first respondent took two points in limine;

(i) The first point taken by the first respondent is that the application is deficient for lack of compliance with Rule 241(1) of the Rules of this court which governs chamber applications in that there is no Form 29 as required. As such there is no urgent application before the court.

(ii) The second point in limine taken by the first respondent is that the applicant has approached this court with dirty hands as it has not paid any of the three or so bills of costs awarded against it.

Counsel for the applicant argued that the first respondent raises these points in limine in order to deflect the court from dealing with the merits of the matter. He submitted that the issue before the court was whether the item 48 in the bill of costs ought to have been allowed. He further submitted that the applicant enjoyed bright prospects in the proposed review application for the Taxing Officer's decision allowing that item.

In any event, the first respondent did not raise these points in limine in the opposing affidavit. In his submission, points in limine should not impede proceedings unnecessarily.

Whilst it is correct that the form used by the applicant does not strictly comply with Rule 241(1), I am of the view that the respondents have not shown that they have suffered some prejudice which could not be cured by an appropriate order for costs in opposing the application.

In taking this view, I am cognisant of the fact that the courts do not take lightly failure to comply with its Rules. In this regard, I associate myself with the views expressed by Honourable MAFUSIRE J in Ordar Housing Development Consortium v Sensene & Ors HH709-15.

As for the dirty hands doctrine, the first respondent argued that this court ought to refuse the grant of the relief sought as, for its part, the applicant has not paid any of the bills of costs awarded against it.

As I understand it, the dirty hands doctrine is an equitable defence that allows the defendant to defeat the plaintiff's claim against it. It is a defence that bars relief to a party who has engaged in inequitable behaviour such as fraud, deceit, unconscionability or bad faith related to the subject matter of that party's claim.

The nature of the conduct constituting lack of probity, or bad faith, in the present matter is that the applicant has ignored paying that part of the bill of costs which is undisputed nor has it made tender of the same in these proceedings. The first respondent claims that there are other bills of costs which the applicant has not paid up besides the one subject of the present application.

Clearly, it sounds unconscionable for this court to grant relief which, in effect, serves to deprive a successful party of its dues in favour of a party which has persistently and stubbornly refused to accede to the other party's just claim. However, the onus lay on the first respondent to show that indeed, there were such instances of bad faith in respect of the subject matter of the present claim which were grave or sufficient enough for this court to frown upon by declining relief to the applicant.

I am unable to say that the first respondent has discharged that onus. Had it done so, notwithstanding the countervailing constitutional right to access to the courts urged by counsel for the applicant, I would have been prepared to uphold this point. In the absence of sufficient proof of such behaviour, I am reluctant to refuse giving consideration to the merits of the application thereby excluding the applicant from this court.

I venture to suggest that for the future, such averments ought to be part of the opposing affidavit so as to allow the applicant, against who the allegations are made, a right of reply.

Once a prima facie proof of such behaviour is placed before the court, in my view, on that principle, the court may fairly exclude relief to the applicant.

In conclusion, I must add that the courts are reluctant to exclude parties from seeking legal recourse on the basis that they have not complied with certain of its orders lest in the process more fundamental rights may be infringed.

It was for those reasons that I decided to proceed to hear the matter on the merits notwithstanding the points in limine raised on the first respondent's behalf.

In its founding affidavit, the applicant avers that it will suffer irreparable harm if the present application is not granted. As such, the applicant says that the matter must be heard ahead of others on the roll.

The applicant also believes that it has high prospects of success in the review application in light of the “clear gross irregularities rampant in the whole proceeding before the Taxing Officer.” The presence of these high prospects of success, the applicant argued, result in it enjoying a prima facie right. Since it is the applicant who will suffer irreparable harm, it says that the balance of convenience favour the granting of the relief it seeks. On the other hand, the applicant says the first respondent will not be prejudiced were the relief to be granted....,.

The applicant claims that its movable assets, which have been attached, if removed and sold in execution, would bring its banking business to its knees....,.

The first respondent filed papers in opposition to the application on the merits too. In the opposing papers, the first respondent did not raise any issue regarding the question of urgency.

HH928-15 : ABC BANK LIMITED vs MACKIE DIAMONDS BVA and THE DEPUTY SHERIFF HARARE, N.O.
Ruled By: HUNGWE J

The applicant is a commercial bank. It would have been aware that its attitude, in mounting meritless opposition to the respondent's claim, might lead to certain liabilities, and, consequently, make appropriate provision for such.

HH495-16 : TETRAD HOLDINGS LTD vs MASTER OF THE HIGH COURT, HARARE and THE FORMER PROVISIONAL JUDICIAL MANAGER OF TETRAD INVESTMENTS BANK LTD – W. MILITALA and DEPOSIT PROTECTION CORPORATION
Ruled By: MANGOTA J

The applicant's ground for review which hinged on S.I.107 of 2011 was, in the court's view, just raised for the sake of it.The applicant, who was ably legally represented, should have known that the instrument was not for, and does not apply to, judicial managers. It applied to legal practitioners ...

HH116-12 : EDGAR MAFEMERA vs ZAC CHIDAVAENZI AND THE MINISTER OF HOME AFFAIRS N.O
Ruled By: BERE J

In casu, by absenting themselves from court on the day of the hearing, the defendants must have fully realized the futility of the nature of their defence to the plaintiff's clear case.

HB100-18 : ERASMUS DUBE vs ZIMBABWE ELECTRICITY TRANSMISSION DISTRIBUTION COMPANY
Ruled By: MAKONESE J

Where a defect or dangerous condition in the conductor or any appliance of a power company, causing injury to a person or persons, negligence does not per se give rise to liability as against the power company. Liability on the part of the power company turns on whether it knew, or by the exercise of reasonable diligence, should have known of the defect in time to have avoided injury.

The standard test for determining negligence in regard to liability for delictual damages is whether a diligent paterfamilias in the position of the defendant would have foreseen the reasonable possibility of his conduct injuring another person or property and causing the patrimonial loss. Negligence arises where the reasonable person would have taken reasonable test to guard against the occurrence of injury but fails to take such steps to prevent harm from occurring.

On the night of the 13th December 2015 there was a heavy storm in the Hozheri village of Gweru. During the overnight storm, a bolt of lightning struck a wooden electricity pole carrying three electricity conductors, destroying the insulator pin and insulation porcelain on the cross-arm, causing one of the three conductors to dislodge from its position on the cross-arm, leaving it hanging two metres above the ground.

The following morning, there was a slight drizzle, the plaintiff, who was 19 years old at the time, was herding cattle. He was wearing a raincoat. The plaintiff came into contact with a 100 volt electric conductor thereby “precipitating a short-circuit fault to earth” and was electrocuted. He suffered extensive burns as the electric current surged through his body, discharging into the ground. The plaintiff was taken to Mpilo Central Hospital in Bulawayo where he was hospitalized for three months. His left hand was amputated.

The plaintiff issued summons against the defendant, a power distribution company, claiming damages for the injuries sustained as a result of the electrocution. The amount claimed is broken down as follows:

(a) $60,000 for pain and suffering.

(b) $160,000 for permanent disfigurement and loss of amenities.

(c) $30,000 for future medical expenses.

This third claim was however abandoned before the commencement of the trial.

The plaintiff based his claim on three particulars of negligence, as set out in paragraph 5 of his declaration, namely, that:

(a) Defendant failed to take reasonable steps to fix a fault which had occurred knowing fully the danger associated with such fault, in that the live low lying cable was low-lying for over a month before the electrocution.

(b) Defendant failed to take reasonable measures to disconnect electricity transmission after the fault had occurred so that the low lying cable would not carry electric current which ended up injuring the plaintiff.

(c) Defendant failed to take the necessary action in time and only took action after the plaintiff was injured, such delay was the cause of the plaintiff's injuries.

The defendant entered appearance to defend the plaintiff's claims, and, in its plea, denied liability for the injuries suffered by the plaintiff as a result of the electrocution. The defendant averred that the electrocution was solely caused by the plaintiff who deliberately handled the live electricity conductor which was hanging two metres above the ground, a distance about the plaintiff's height. The defendant further averred that the cause of the conductor hanging two metres above the ground was a natural event, a lightning bolt, for which defendant was not responsible.

The issues for trial were set out in a joint pre-trial memorandum and agreed as follows:-

1. Whether or not the plaintiff was injured due to the negligence or wrongfulness on the part of the defendant.

2. Whether or not the plaintiff is entitled to the damages claimed against the defendant. If so, whether the plaintiff is entitled to the quantum claimed in the declaration or any lessor amount.

3. Whether or not there was contributory negligence on the part of the plaintiff, and, if so, the effect on the quantum of damages, if any.

Plaintiff's case

The plaintiff testified that, on the 14th of December 2015, while he was herding cattle in the Hozheri Village, the raincoat he was wearing got into contact with a live conductor that was lying about 50cm from the ground resulting in a bolt of fire. When the plaintiff saw the fire he was startled and panicked resulting in him getting into contact with the live electric conductor. The plaintiff was electrocuted and became unconscious, and, when he woke up, he was in a hospital bed at Mpilo Central Hospital.

The plaintiff stated that there was no way he could have avoided getting into contact with the conductor since everything happened quickly and in a flash.

The plaintiff sustained burns on his back, on the right leg, and on the head, and behind the right ear. The plaintiff's left hand was amputated and he spent three months in hospital receiving treatment.

In his evidence, the plaintiff contended that the injuries arose as a result of the defendant's negligence in that it failed to take reasonable measures to fix an electrical fault which had occurred in its distribution system, knowing fully well the dangers associated with such a fault. The plaintiff contended that the defendant, as the sole distributor of electricity in the national grid, it should have exercised a high degree of maintenance and care of its assets.

The plaintiff stated that he was claiming the sum of US$60,000 for pain and suffering because he endured a lot of pain when his hand was being amputated and also for the wounds on his back, leg, head and right ear. The plaintiff stated that he suffered a great deal of pain as the electric current surged through his body. The plaintiff further claimed the sum of $160,000 for permanent disfigurement because the electrocution changed his whole life. He stated that his ambition was to become a soldier or policeman but his dream was shuttered by the injuries he sustained. The plaintiff indicated that he was now limited in the things he could do as a result of the amputation of his left hand. The plaintiff claimed a further sum of US$30,000 in respect of future medical expenses. The plaintiff did indicate the burn wounds he sustained to the court, and the court observed that indeed his left arm had been amputated from shoulder level.

It is noted that the plaintiff, in giving oral evidence in court, never adverted to or substantiated the particulars of negligence alleged against the defendant as pleaded in paragraph 5 of his declaration. No explanation was proffered for the departure from the pleaded particulars of negligence.

Under cross-examination by defendant's counsel, the plaintiff alleged two particulars of negligence which were never pleaded, namely:-

(1) Defendant was required to clear the grass and trees on the way – leave along the electricity line where plaintiff was electrocuted.

(2) Defendant was supposed to note that there was a low-lying cable on its electricity network and fix the hazard that had been created....,.

The plaintiff in this matter did not adhere to the pleaded cause of action and departed from his declaration in material respects. No explanation was given why the oral evidence given under oath was substantially different to the cause of the electrocution stated in the declaration.

The plaintiff failed to discharge the onus on him to prove his pleaded cause of action.

The purpose of pleadings is to set out the basis of the claim. The particulars of negligence, as pleaded in the declaration, were responded to by the defendant in his plea. The issues for trial were set out on the basis of the pleaded cause of action. The matter then proceeded to trial.

A party who makes a claim based on a particular cause of action may not abandon the pleaded cause of action during the course of the trial without seeking, and being granted, a formal amendment.

SC73-17 : TENDAYI TAMANIKWA and FRANK TINARWO vs ZIMBABWE MANPOWER DEVELOPMENT FUND and EMMERSON PAMIRE
Ruled By: GWAUNZA JA, BHUNU JA and UCHENA JA

This is an appeal coupled with a cross-appeal against the judgment of the Labour Court.

Both appellants, in the main appeal, and the respondent in the cross appeal, Emmerson Pamire, were employed by the respondent. Following leakages of confidential information at the work place, the respondent ordered them to sign declaration of secrecy forms. They wilfully disobeyed that order and were suspended from employment pending disciplinary action.

As managerial employees, the first and second appellants had been issued with motor vehicles by their employer. Upon suspension, they were ordered to return the motor vehicles. They both wilfully refused to return the motor vehicles as ordered by the employer.

All the three (3) employees were eventually charged with wilful disobedience to lawful orders before the Disciplinary Authority. They were all found guilty as charged and dismissed from employment on 28 November 2013.

Disgruntled by their dismissal from employment, they approached the Labour Officer, who, in turn, referred the dispute for arbitration in terms of section 93 of the Labour Act [Chapter 28:01].

The terms of reference before the arbitrator, branded, “CLAIMANTS' ISSUES FOR DETERMINATION” were as follows:

“Whether or not the dismissal of the three claimants was fair and lawful?

1. Whether or not the employer was entitled, at law, to institute fresh disciplinary proceedings without complying with the Supreme Court order of 16 July 2013 ordering them to reinstate the claimants without loss of salary and benefits?

2. Whether or not it was lawful for the employer to charge first and third claimants with wilful disobedience of lawful orders arising out of their failure to handover vehicles when the matter of ownership and possession of the vehicles was sub judice (the subject of a legal dispute) which is still pending in the High court in case numbers HC6419/2010, HC6420/10, HC4233/10 and HC4258/2010 which cases were all consolidated under case number HC4258/2010 for purposes of trial?

3. Whether the labour dispute leading to the disciplinary proceedings instituted by the respondent against claimants on 17 July 2013 had prescribed in terms of section 94 of the Labour Act Chapter 28:01 and whether the respondent had a right to charge the claimants for misconduct over the events that allegedly occurred on August 2009?”

The arbitrator, on the basis of the terms of reference placed before her, found that the employer's orders were lawful as they were meant to advance the employer's business. She accordingly upheld the claimants' conviction. She, however, overturned the penalty of dismissal and substituted it with a lesser penalty of final written warning.

The award reads:

“AWARD

1. The Respondent, Zimbabwe Manpower Development Fund (ZIMDEF), be and is hereby ordered to substitute the dismissal penalty with a final written warning valid for twelve (12) months.

2. Respondent be and is hereby ordered to reinstate the claimants without loss of pay and benefits from the date of dismissal.

3. If reinstatement is no longer tenable parties may negotiate for damages in lieu of reinstatement failure of which either party my approach the arbitrating authority for quantification.”

Dissatisfied with the above order reinstating the three (3) respondents, the employer appealed to the Labour Court. The respondents did not, however, cross-appeal against the arbitrator's award upholding the Disciplinary Authority's verdict convicting them of dismissible acts of misconduct as charged.

The second respondent, in the court a quo, Emmerson Pamire, was, however, partially successful in that Court. The court a quo set aside the arbitrator's award and upheld the decision of the Disciplinary Authority dismissing the first and third respondents from employment as prayed for by the employer.

The appeal against the reinstatement of the second respondent, in the court a quo, was, however, unsuccessful in that the court a quo upheld the arbitrator's order of reinstatement. The court a quo's order reads:

“WHEREFORE IT IS ORDERED THAT:

1. The appeal be and is hereby allowed.

2. The arbitration award issued by arbitrator C K Kadenga dated 8 December 2015 is set aside.

3. The dismissal from employment of 1st and 3rd respondents (Tendayi Tamanikwa and Frank Tinarwo) by appellant is upheld.

4(a) The appellant shall reinstate the 2nd respondent Emmerson (Emmerson Pamire) without loss of salary and benefits; or

(b) If reinstatement is no longer tenable, appellant shall pay 2nd respondent damages in such (sic) either agreed by the parties or assessed by this court.”

Unhappy with the Court a quo's judgment, ordering their dismissal from employment, the first and second appellants, in the main appeal, Tendayi Tamanikwa and Frank Tinarwo, appealed against part of the court a quo's judgment upholding their dismissal from employment....,.

Turning to the cross appeal, the appellant is appealing against the reinstatement of the respondent, Emmerson Pamire, to his former employment.

The main appeal was dismissed with costs at the legal practitioner client scale leaving the concerned parties to argue the cross-appeal.

I now proceed to consider the cross-appeal.

The facts giving rise to the cross appeal are by and large common cause. The undisputed facts are that the disciplinary authority convicted the respondent of wilful disobedience to a lawful order to sign declaration of secrecy forms and ordered his dismissal from employment. He appealed to the arbitrator who upheld the conviction but reduced the penalty of dismissal to one of final written warning. The arbitrator then ordered his reinstatement without any loss of salary or benefits. In the alternative, the court a quo ordered damages to be assessed in the event that reinstatement was no longer possible.

The appellant appealed to the court a quo against the order to reinstate the respondent. The respondent did not, however, cross-appeal against the arbitrator's verdict upholding the disciplinary authority's verdict of guilty.

The respondent's failure to cross appeal against conviction can only mean that he accepted his guilt as charged. All he was challenging in the court a quo was the severity of punishment and not his conviction. His plea in the court a quo was one for mercy rather than a denial of misconduct as alleged.

As none of the parties questioned the correctness of the guilty verdict, and, in the absence of a cross-appeal, the appeal in the court a quo fell to be determined on the basis of the issues raised by the appellant in its grounds of appeal which were laid down before the court as follows:

“1. The arbitrator erred, on a question of law, by substituting the employer's discretion to impose a dismissal penalty.

2. The arbitrator erred on a question of law by not realising that the respondent(s') misconduct went to the root of their employment contract(s) thereby justifying a dismissal penalty.

3. The arbitrator grossly erred and misdirected himself that she had no jurisdiction on the second count against the respondents as per section 4(2)b of the Arbitration Act.

4. The arbitrator grossly erred and misdirected herself at law by failing to find that the appeal to the internal appeals officer was filed out of time.”

From the above grounds of appeal it is self-evident that the question of liability was not one of the issues to be determined by the court a quo as that issue had already been conclusively determined by the lower adjudicating authorities. It was therefore remiss of the court a quo to determine an issue that was not before it when it held at page 3 paragraph 5 of its cyclostyled judgment that:

“5. All respondents were not guilty of the charge related to the secrecy document.”

By framing and determining its own issue not raised by the parties, the court a quo erred and strayed into the wilderness of illegality.

The respondent's failure to challenge the question of liability amounts to an admission of guilt.

It was therefore grossly irrational for the court a quo to find the respondent not guilty as charged in circumstances where he was virtually pleading guilty to the charge.

CC04-20 : INNOCENT GONESE and JESSIE MAJOME vs PARLIAMENT OF ZIMBABWE and SPEAKER OF THE NATIONAL ASSEMBLY and PRESIDENT OF THE SENATE and EMMERSON MNANGAGWA N.O. and PRESIDENT OF ZIMBABWE
Ruled By: MALABA CJ, GWAUNZA JCC, GARWE JCC, GOWORA JCC, HLATSHWAYO JCC, PATEL JCC, GUVAVA JCC, MAVANGIRA JCC and BHUNU JCC

The two applicants are Members of Parliament. They brought two separate applications in terms of section 167(2)(d) of the Constitution of Zimbabwe Amendment (No.20) 2013 (“the Constitution”), as read with Rule 27 of the Constitutional Court Rules.

They alleged failure by Parliament to fulfil the constitutional obligation to act in accordance with the procedure for amending the Constitution prescribed by section 328 of the Constitution.

The allegations in the applications are the same. So are the issues. The two applications were consolidated and heard as one.

The applicants challenged the validity of the proceedings that culminated in the passing of Constitutional Amendment Bill (No.1) 2017.

The relief sought is by way of a declaratory order in the terms that:-

1. Parliament failed to fulfil the constitutional obligation provided for in section 328(5) of the Constitution of Zimbabwe, which requires a Constitutional Bill to be passed by two-thirds of the membership of each House sitting separately, when it passed Constitutional Amendment Bill (No.1) of 2017 on 25 July 2017 and 1 August 2017 in the National Assembly and the Senate respectively.

2. Accordingly, the proceedings in Parliament, pertaining to Constitutional Amendment Bill (No.1) of 2017, on 25 July 2017 and 1 August 2017, be and is hereby set aside.

3. The first respondent pays costs of suit.

The Constitutional Bill was intended to amend section 180 of the Constitution insofar as it related to the procedure for the appointment of the Chief Justice, the Deputy Chief Justice, and the Judge President of the High Court. The proposed amendment would also add to section 180 of the Constitution a provision relating to the appointment of the Senior Judges of the Labour Court and the Administrative Court by the Chief Justice.

The application was filed on 6 September 2017. Before it could be heard, the President signed Constitutional Bill (No.1) 2017 into law.

The applicants filed another application under CCZ58/17. They sought an order setting aside the Constitutional Amendment Act on the basis that Parliament had failed to fulfil a constitutional obligation in the passing of the Constitutional Bill.

There are two distinct challenges to the passing of the Constitutional Bill.

The validity of the passing of the Constitutional Bill is challenged by impugning the proceedings in the National Assembly and the Senate.

In respect of the proceedings in each House, the contention is that the passage of the Constitutional Bill was in contravention of the amending procedure prescribed by section 328(5) of the Constitution. The grounds for the claimed violation of section 328(5) of the Constitution are different.

In respect of the proceedings in the National Assembly, the grounds raise factual questions, whilst the grounds in relation to the proceedings in the Senate raise a question of law.

The Court holds that the applicants have failed to show, on a balance of probabilities, that there was no voting conducted in the National Assembly. They also failed to show that the “Aye” votes did not reach the required minimum threshold of 180 votes.

The Court is of the view that the applicants have not been able to prove failure on the part of the National Assembly to act in accordance with the procedure for the amendment of the Constitution prescribed by section 328(5) of the Constitution.

The constitutional obligation imposed on Parliament, by section 328 of the Constitution, when exercising the power to amend the Constitution is to ensure that the procedures prescribed are complied with.

The Court entertains no doubt that, to amend the Constitution by the method prescribed by section 328, every requirement prescribed by the provision must be observed. The omission to comply with any one of the requirements is fatal to the validity of the proposed amendment.

The applicants established that the Constitutional Bill was not passed with the requisite two-thirds majority in the Senate. There was no compliance with the requirements of the procedure prescribed by section 328(5) of the Constitution.

The reasons for the decision now follow.

The Court notes the fact of the conflicting versions of facts and the interpretation of the applicable constitutional provisions. The granting of the relief sought by the applicants depends on one reality. It is discoverable by the finding of the facts on the matters in dispute, the declaration of the true meaning of the applicable constitutional provisions, and the application of the law to the facts.

The proposed amendment to section 180(1) of the Constitution was the cause of the events which culminated in the cause of action pleaded by the applicants for the relief sought. Nothing turned on the substantive value of the proposed amendment of the Constitution.

Before the proposed amendment, section 180 of the Constitution read as follows:

“180 Appointment of judges

(1) The Chief Justice, the Deputy Chief Justice, and the Judge President of the High Court and all other judges are appointed by the President in accordance with this section.

(2) Whenever it is necessary to appoint a judge, the Judicial Service Commission must -

(a) Advertise the position;

(b) Invite the President and the public to make nominations;

(c) Conduct public interviews of prospective candidates;

(d) Prepare a list of three qualified persons as nominees for the office; and

(e) Submit the list to the President; whereupon, subject to subsection (3), the President must appoint one of the nominees to the office concerned.

(3) If the President considers that none of the persons on the list submitted to him or her in terms of subsection (2)(e) are suitable for appointment to the office, he or she must require the Judicial Service Commission to submit a further list of three qualified persons, whereupon the President must appoint one of the nominees to the office concerned….,.”

Section 180 of the Constitution would read as follows after the proposed amendment:

“180 Appointment of judges

(1) The Chief Justice, the Deputy Chief Justice, and the Judge President of the High Court and all other judges are appointed by the President in accordance with this section.

(2) The Chief Justice, the Deputy Chief Justice, and the Judge President of the High Court shall be appointed by the President after consultation with the Judicial Service Commission.

(3) If the appointment of a Chief Justice, Deputy Chief Justice or Judge President of the High Court is not consistent with any recommendation made by the Judicial Service Commission in terms of subsection (2), the President shall cause the Senate to be informed as soon as is practicable: Provided that, for the avoidance of doubt, it is declared that the decision of the President, as to such appointment, shall be final.

(4) Whenever it is necessary to appoint a judge, other than the Chief Justice, Deputy Chief Justice or Judge President of the High Court, the Judicial Service Commission must -

(a) Advertise the position; and

(b) Invite the President and the public to make nominations; and

(c) Conduct public interviews of prospective candidates; and

(d) Prepare a list of three qualified persons as nominees for the office; and

(e) Submit the list to the President; whereupon, subject to subsection (5), the President must appoint one of the nominees to the office concerned.

(5) If the President considers that none of the persons on the list submitted to him or her in terms of subsection (4)(e) are suitable for appointment to the office, he or she must require the Judicial Service Commission to submit a further list of three qualified persons, whereupon the President must appoint one of the nominees to the office concerned.

(6) The President must cause notice of every appointment under this section to be published in the Gazette.

(7) The offices of senior judge of the Labour Court and senior judge of the Administrative Court must be filled by another judge or an additional or acting judge, as the case may be, of the court concerned, and are appointed by the Chief Justice after consultation with the Judicial Service Commission.”

FACTUAL BACKGROUND

The main contention by the applicants was that there was no proper vote in Parliament.

The allegations of fact on which the applicants' cause of action was based had no support from the evidence produced.

That was the case in respect of what they alleged happened in the National Assembly.

NATIONAL ASSEMBLY

The applicants made the following allegations of fact.

There were 234 Members of the National Assembly present in the House on 25 July 2017 out of a total number of 270. This appears from the Order Paper. There was a debate on the Mid-Term Budget Review and the Economic Outlook Statement presented by the Minister of Finance on 20 July 2017.

The fourth respondent (Emmerson Mnangagwa) moved a motion to adjourn the debate in favour of the presentation of the Constitutional Bill.

There was argument between the second respondent (the Speaker of the National Assembly) and Members of the opposition. Eventually, the second respondent agreed with the fourth respondent. He ruled that the House was to proceed with the third reading of the Constitutional Bill.

The first applicant (Innocent Gonese) moved a motion in terms of Standing Order 152(3) that the Constitutional Bill be sent back to the Committee stage to ensure that it incorporated matters that had not been included in the text.

The motion was disallowed by the second respondent.

Bells rang so that voting could commence. According to the applicants, the House was not properly divided at this stage.

A point of privilege was raised to the effect that there had to be a secret vote.

The raising of the point, that the voting be by secret ballot, was based on the suspicion that some Members of the ruling party had been intimidated to vote for the Constitutional Bill. The contention was that a secret ballot was necessary in the circumstances.

The second respondent ruled that the vote was not going to be by secret ballot.

While the point of privilege was being considered, the tellers were counting Members. The Members who were sitting on the Government benches were counted as part of the “Aye” vote. Those who sat on the opposition benches were counted as being part of the “Noe” vote.

The tellers told the second respondent that the “Aye” votes were 187.

The first applicant raised an objection and pointed out that the second respondent had the obligation to ascertain whether there were more than 180 Members in the House. He argued that the second respondent was obliged, by Standing Order 127, to separate Members who voted in favour of the Constitutional Bill from those who voted against it.

The applicants aver that the process was not in accordance with Standing Order 127. They relied on the un-revised Hansard and the Order Paper to advance their argument.

According to the unrevised Hansard, there was commotion in the House following the communication to the second respondent by the tellers that 187 Members had voted in favour of the Constitutional Bill.

Some Members left the House.

The second respondent acceded to the request that the counted numbers should be verified.

The Sergeant-at-Arms was ordered, by the second respondent, to conduct a recount.

After the recount, the un-revised Hansard records that the second respondent said:

“After the verifications, the figure given of the results of the count is: Ayes – 182 and the Honourable Members who left are Honourable Matuke, Honourable Chinomona, Honourable Ruvai, Honourable Nyamupinga and Honourable Muchenje. Those against – 41. The number of affirmative votes recorded is not less than two-thirds of the membership of the House.

I, therefore, declare the final votes in the House on the Constitutional Amendment Bill to have been in accordance with the provisions of section 328(5) of the Constitution.”

According to the applicants, the irregularities in the vote were as follows -

1. When the bells were rung, the doors of the Chamber were closed. Before the vote was concluded, and before the verification was conducted, an Honourable Member walked in.

2. The second respondent breached the Standing Orders by opening the doors before the process of the vote was completed.

3. No vote took place and the verification process became the vote. The counting of the votes was based on an assumption that those on the Government benches supported the motion. This is not permitted by the Standing Orders and the Constitution.

4. The second respondent failed to properly divide the House, as is required by the Rules.

5. The second respondent did not allow the Chief Whips and the Sergeant-at-Arms, together with the tellers, to move around to make the necessary verifications after the vote.

6. Honourable Pedzisayi was counted twice for the “Aye” votes according to the Order Paper.

The applicants averred that the names of those alleged to have voted with the “Ayes” appear in both the un-revised Hansard and the Order Paper. According to both sources, there were 182 “Aye” votes. Those who voted with the “Ayes” included the names of Honourable Beremauro G, Honourable Mukanduri and Honourable B Tshuma. These Members were not in Zimbabwe on 25 July 2017. They were in Uganda on a Parliamentary visit.

The allegation was also that Honourable D Marapira and Honourable G Mabuwa, who were recorded as part of the Members who voted in favour of the Constitutional Bill, were absent on official leave.

The applicants said that Honourable M Chikukwa, Honourable M Hlongwani, Honourable P Dutiro, Honourable Y Simbanegavi and Honourable D Ndlovu were not present. They were, nonetheless, recorded as being part of the “Aye” vote.

According to the applicants' calculation, there were 171 “Aye” votes against a required threshold of 180 votes in favour of the proposed amendment to the Constitution.

There was a contradiction in the averments.

The applicants alleged that voting did not take place in the National Assembly. They also said that the vote was conducted in an irregular manner. They averred that the required minimum threshold of 180 votes in favour of the Constitutional Bill was not reached in the National Assembly....,.

On the merits, the first and the third respondents averred that the procedural requirement that there must be an affirmative two-thirds vote for a valid Constitutional amendment was complied with.

The second respondent averred that he acted in accordance with Standing Order 127 in the conduct of the vote.

The bells were rung, and all Members present moved into the Chamber. He then appointed tellers and divided the House, by directing that the “Ayes” should go to the right and the “Noes” should go to the left. An objection was raised when the House had already been divided. The unrevised Hansard relied on by the applicants did not capture everything that transpired. The revised Hansard and the audio recording show that voting was conducted properly. There were 182 “Aye” votes as recorded in the corrected Hansard, unlike the numbers relied on by the applicants which are based on the unrevised Hansard.

The first and the second respondents relied on the Journal of the House (“the Journal”) and alleged that it was the correct record of the proceedings of the House. They alleged that the un-revised Hansard, relied upon by the applicants, was subsequently corrected after reconciliation with the audio recording.

Their position was that, contrary to the allegations made by the applicants, the audio recording captured both the division of the House and the conducting of the vote.

The first and the second respondents contended that the applicants' case was based on the report in the unrevised version of the Hansard. The names of those Members who voted were corrected in the Journal in terms of Standing Order 131. They explained that, in terms of the procedure of the Journals Office and the Hansard Operational Manual, the corrected version of the Hansard and the corrected Votes and Proceedings were filed in the Journal of the House, which is bound at the end of each Session.

The Master Copy of the Hansard was prepared by the Hansard Reporters after they had gone through the un-revised version of the Hansard while listening to the audio recording.

The Order Paper relied on by the applicants contained errors, which were corrected using this method.

The second respondent conceded that, according to the corrected records, Honourable Mukanduri, Honourable Beremauro and Honourable Tshuma were out of the country. However, he maintained his position that Honourable Marapira and Honourable Mabuwa were present during the proceedings in the House relating to the voting on the Constitutional Bill. Their inclusion on the list of Members absent with leave was an error which was corrected.

The second respondent maintained that, whilst the Hansard is the official report of the proceedings in Parliament, it does not necessarily constitute an accurate record of what transpired on the day in question. The accurate record is contained in the Journal, which is bound at the end of each Session after it has been proof-read and corrected if necessary. The Journal is a security item and is kept by the Clerk of Parliament.

The second respondent stated in the opposing affidavit, in part, as follows:

“I conducted the vote in terms of Standing Order 127. The un-revised Hansard relied upon by the applicants did not capture that part. The audio record recording at minute 01:58:16-20 (which audio will be played at the hearing if required) and the corrected Hansard (vide 'CC' hereto) clearly show that the voting was done properly…,.

It is also important for this Court to note that, unlike the unrevised Hansard, the Journal (vide Annexure 'BB' hereto) is the correct record of proceedings. See also the alterations of the Master Copy of the Hansard (vide Annexure 'CC') before submitting it to the printers to produce Annexure 'DD' hereto which forms part of the Journal….,.

These allegations are denied.

The audio recording clearly shows what transpired…,. The applicant relied on the 'Unofficial Report Un-revised' Hansard as shown on its cover and the 'Advance copy - Uncorrected Votes and Proceedings' which the applicant is referring to as the 'Order Paper', which may, at times, contain errors, as in this case, and such errors in the names of the division list were corrected in the Journal of the House in terms of Standing Order 131 of the Standing Rules and Orders of the National Assembly.”

The second respondent took the argument further.

He averred that the unrevised Hansard left out four Members, Honourable Muchinguri, Honourable Mukupe, Honourable Madzinga and Honourable D Mpofu, who were present and voted with the “Ayes”. This was confirmed by the Attendance Register and the corrected copy of Votes and Proceedings.

According to this record, the “Aye” votes remained at 182.

It was also the second respondent's contention that the Attendance Register and the corrected copy of the Votes and Proceedings showed those Members who were present and voted for the proposed amendment of the Constitution. According to these records, Honourable Chikukwa, Honourable Hlongwani and Honourable Dutiro were present and voted “Aye”.

In terms of the Attendance Register compiled by the Sergeant-at-Arms, Honourable Simbabegavi was marked absent but she came late and participated in the voting and voted with the “Ayes”.

The second respondent alleged that the Sergeant-at-Arms failed to correct the error.

As for Honourable D Ndlovu, the second respondent said there was an error. The intended entry was Honourable A Ndlovu.

In regard to the issue that Honourable Pedzisayi was counted twice, he admitted that there was an error, which was corrected in terms of Standing Order 131.

The second respondent maintained that the Journal confirmed that 182 Members voted in favour of the Constitutional Bill. He contended that the Constitutional Bill was passed in accordance with the procedure prescribed by section 328(5) of the Constitution.

Finally, the first and the second respondents averred that, at the verification of the votes, the five Members who had voted, but subsequently left the House, were not included in the 182 “Ayes”. They had initially been counted as part of the 187, but were excluded following the verification exercise because they had left before the verification was conducted.

The applicants alleged, in their answering affidavits, that the documents relied on by the first, the second and the third respondents were fabricated, doctored, and tampered with.

The applicants relied on the unrevised Hansard and the Order Paper. They rejected the corrections made to the documents.

The first applicant averred, in the answering affidavit, as follows:

“I also wish to state that the recordings of Parliament, on the 25th of July 2017, must have been recorded and captured on video.

Surely, this Honourable Court has powers, which I do not have, of summoning both the video recording of what happened in Parliament which I notice the respondents do not refer to in their papers.”...,.

The interpretation and application of the provisions of section 328 of the Constitution, in the context of the effect of the principles on the amendment of the Constitution, disclose the invalidity of the passing of the Constitutional Bill in the Senate.

The process confirms the constitutionality of the conduct of the National Assembly....,.

Section 328 of the Constitution provides, in part:

“328 Amendment of Constitution

(1) In this section —

'Constitutional Bill' means a Bill that seeks to amend this Constitution;…,.

(2) An Act of Parliament that amends this Constitution must do so in express terms.

(3) A Constitutional Bill may not be presented in the Senate or the National Assembly, in terms of section 131, unless the Speaker has given at least ninety days' notice in the Gazette of the precise terms of the Bill.

(4) Immediately after the Speaker has given notice of a Constitutional Bill, in terms of subsection (3), Parliament must invite members of the public to express their views on the proposed Bill in public meetings and through written submissions, and must convene meetings and provide facilities to enable the public to do so.

(5) A Constitutional Bill must be passed, at its last reading in the National Assembly and the Senate, by the affirmative votes of two-thirds of the membership of each House.

(6) Where a Constitutional Bill seeks to amend any provision of Chapter 4 or Chapter 16 —

(a) Within three months after it has been passed by the National Assembly and the Senate in accordance with subsection (5), it must be submitted to a national referendum; and

(b) If it is approved by a majority of the voters voting at the referendum, the Speaker of the National Assembly must cause it to be submitted, without delay, to the President, who must assent to and sign it forthwith.”...,.

The amendment of different Constitutional provisions is not done by the same process.

An amendment of a provision other than Chapter 4, Chapter 16 and section 328 of the Constitution requires affirmative votes to be not less than two-thirds of the membership of each House of Parliament.

An amendment of a provision under Chapter 4, Chapter 16 and section 328 requires a referendum in addition to the special majority referred to in section 328(5) of the Constitution.

The Constitution thus follows the tradition whereby certain subjects are too important to be amended by a special majority in Parliament. This means that the issue of constitutional amendment is not an ordinary provision. It is one which enjoys special protection by the Constitution itself.

When interpreting section 328(5) of the Constitution, this underlying principle ought to be borne in mind.

INTERPRETATION OF SECTION 328(5) OF THE CONSTITUTION

The question for determination is whether section 328(5) of the Constitution requires that the amount of the votes in support of the Constitutional Bill must not be less than two-thirds of the total number of persons the Constitution declares that the House consists of. Does the subsection mean that the votes must not be less than two-thirds of the Members of the House who are alive and capable of voting at the time the voting is conducted?

The two Houses of Parliament interpreted the phrase “the membership of each House”, as used in section 328(5) of the Constitution, differently.

The National Assembly interpreted the words to mean the total number of persons the Constitution has declared the House to consist of as its Members. The Senate interpreted the phrase to mean the number of Members of the House who are alive and capable of voting at the time the vote on the proposed amendment to the Constitution is taken at the third reading.

The interpretation must take into account the language used, the context, the subject-matter, the purpose, and the object of section 328(5) of the Constitution. The Court must bear in mind that it is the Constitution it is construing.

Section 328(5) of the Constitution is a fundamental law which prescribes the procedural and substantive requirements for a valid amendment of the Constitution. It sets out an objective standard for the determination of the validity of the amendment. The words “the membership of each House”, as used in section 328(5) of the Constitution, refer to an element of the prescribed requirements of the objective standard for the measurement of the validity of the amendment of the Constitution which is peculiar to each House.

The requirement that the amount of the vote in favour of the Constitutional Bill must be not less than two-thirds of the membership of the House is applicable to votes by each House. The only factor of the requirement of the objective standard for the measurement of the validity of the proposed amendment which differentiates one House from the other, and relates to its membership, is the total number of persons the Constitution declares to be what each House consists of.

Section 120(1) of the Constitution provides that the Senate consists of eighty Senators, who become its members by being elected by the electorate in the manner prescribed. Section 124(1) of the Constitution provides that the National Assembly consists of two hundred and seventy Members, who are elected in the manner prescribed.

It is necessary to consider the meaning and purpose of other provisions of the Constitution that have a bearing on the subject of section 328(5) of the Constitution. No single constitutional provision may be taken out of its context and interpreted by itself.

The fundamental principle is that a Constitution is a mode of limited government, characterised by the apportionment and distribution of powers. The powers concerned must be exercised for the benefit of the people as a whole in accordance with the constitutionally prescribed procedures.

Section 117(2)(a) of the Constitution expressly provides that the power to amend the Constitution conferred on the Legislature must be exercised in accordance with section 328 of the Constitution.

Sections 120(1) and 124(1) of the Constitution are the laws governing the composition of the Houses. The contents of each provision provide the meaning of the words “the membership of each House”, as used in section 328(5) of the Constitution.

The subject-matter of section 328(5) of the Constitution is the objective standard for the measurement of the validity of the amendment.

As an element of the standard by which the validity of the amendment of the supreme law of the land is to be measured, the membership of each House has to be a constant element enjoying a degree of permanence. Considering the fact that amendment of section 328(5) of the Constitution is rendered more difficult by the requirements of section 328(9) of the Constitution, the membership of each House, in the context of section 328(5) of the Constitution, is a constant factor.

Section 138(1) of the Constitution provides that all questions proposed for decision in either House of Parliament are to be decided by a majority of the votes of the Members of that House present and voting.

The provision of a special procedure, under section 328 of the Constitution, for the exercise of the power to amend the Constitution, means that the procedure prescribed by section 138(1) of the Constitution is not applicable to the special process of amending the Constitution.

The exclusion of the procedure for deciding questions proposed for decision in either House of Parliament, prescribed in section 138(1)(a) of the Constitution, from the special process of amending the Constitution is evidence of the intention of the makers of the Constitution to protect the Constitution from fluctuating standards for the measurement of the validity of the amendment of the Constitution.

The effect of the contention by the respondents that the words “the membership of each House”, as used in section 328(5) of the Constitution, mean the total number of Members of the House who are alive and capable of voting at the time the vote is taken is the importation of the procedure prescribed by section 138(1)(a) of the Constitution into the special process of amending the supreme law of the land.

The interpretation of the words “the membership of each House”, as used in section 328(5) of the Constitution, to mean the total number of persons the Constitution declares each House to consist of is consistent with the object of the provision.

The purpose and object of the requirements of the procedure for the exercise of the power to amend the Constitution, prescribed by section 328(5) of the Constitution, is to ensure that the amendment of the Constitution is of common benefit to the people. The procedural and substantive requirements of section 328(5) of the Constitution ensure that there is representation of the people and protection of their interests in the process of the amendment of the Constitution.

In making the Constitution, and committing themselves to it as the supreme law of the land, the people imposed on themselves the obligation to accept an amendment of the Constitution effected by a vote in accordance with the standard of validity prescribed by section 328(5) of the Constitution.

The meaning of the words “the membership of each House” as the whole number of persons the Constitution has declared the House to consist of receives support from the provisions of section 344(3) and (4) of the Constitution. The section reads, in relevant part, as follows:

“344 Quorum and effect of vacancies in Constitutional bodies

(1)…,.;

(2)…,.;

(3) Any reference in this Constitution to the votes of —

(a) Half of the membership of a body whose membership is not a multiple of two;

(b) Two-thirds of the membership of a body whose membership is not a multiple of three; or

(c) Three-quarters of the membership of a body whose membership is not a multiple of four; is to be interpreted to mean that the number of votes must be not less than the whole number next above one-half, two-thirds or three-quarters, as the case may be, of the body's membership.

(4) Any reference to the total membership of Parliament is a reference to the total number of persons who, for the time being, are Members of Parliament.”

Counsel for the applicants argued that the Constitution maintains a distinction between section 344(4) and section 328(5).

He submitted that the Constitution must be interpreted purposively and not in the abstract.

He took the point further and argued that section 344 is not a substantive section. It is a definition section. There is a difference in the construction of the two. Any other interpretation would render section 328(5) meaningless. The provision is meant to make constitutional amendment difficult.

He finally argued that section 328 of the Constitution grades different provisions based on how important they are.

Counsel for the first, second, and third respondents a contrary view.

He argued that the first port of call is the definition of “Member of Parliament” in the Constitution. 'Membership' is derived from 'Member of Parliament'. Hence, in order to understand what “membership” means, regard has to be had to the definition of “Member of Parliament”. Membership depends on the construction of 'Member of Parliament'.

He further contended that the law does not allow for a vacuum.

The interpretation to be given to the provision must be one which best achieves the intention of the lawmakers.

Counsel for the first, second, and third respondents urged the Court to find, in respect of the Senate, that the relevant number is 79. He said the reason was that section 328(5) of the Constitution relates to “membership”, which is derived from “Member”. 'Member of Parliament' relates to a person who is alive and is able to carry out Parliamentary business.

Section 344(4) of the Constitution is related to sections such as section 109(1), which relates to a vote of no confidence in Government, section 114(2), which relates to the revocation of a declaration of war, section 113(2), which relates to the approval of a declaration of a State of Emergency, section 122(8)(f), which relates to the vacation of office by the President of the Senate, and section 126(8)(f), which relates to the vacation of office by the Speaker.

The provisions, which give substance to section 344(4) of the Constitution, show that its application is determined by the subject-matters to which the specific provisions relate and is confined to those provisions. The provisions of section 344(4) cannot be interpreted as giving meaning to section 328(5) of the Constitution. To the contrary, section 344(4) of the Constitution sheds light on what section 328(5) of the Constitution does not mean.

There is no provision which is similar to section 328(5) in the Constitution.

The contrast can be seen in section 113(6) of the Constitution, which provides:

“113(6) If, by a resolution passed by a majority of the members present at a joint sitting of the Senate and the National Assembly, Parliament resolves that a declaration of a State of Public Emergency —…,.”…,.

This provision relates to Members “present”.

The majority that carries the day depends on the Members actually present and voting.

Another example of a similarly worded provision is section 138 of the Constitution, which provides:

“138 Voting and right of audience in Parliament

(1) Except where this Constitution provides otherwise —

(a) All questions proposed for decision in either House of Parliament are decided by a majority of the votes of the Members of that House present and voting;…,.”

The provision under which the Constitution is amended does not relate to the presence of the Members. Its provisions are an exception referred to in section 138(1) of the Constitution.

It means that, in terms of section 328(5) of the Constitution, the controlling concept is the membership of the House, which relates to the total number of persons the House is declared, by the Constitution, to consist of. The number does not fluctuate since it is fixed by the Constitution.

It is a definite number.

When the provisions are contrasted, it becomes apparent that “the membership of each House”, as used in section 328(5) of the Constitution, does not mean persons who are, at any given time, Members of Parliament.

Section 328(5) of the Constitution has two references to membership of the House. The first relates to the exercise of the power to vote. The vote can only be cast by Members of Parliament who are present and voting. The second reference is to the objective standard for the measurement of the votes cast in favour of the proposed amendment to the Constitution. It is the requirement of that objective standard that the votes in favour of the proposed amendment must not be less than two-thirds of the membership of the House concerned.

For the purposes of the objective standard for the measurement of the validity of amendment of the Constitution, in terms of section 328(5) of the Constitution, the makers of the Constitution decided to fix the minimum threshold to be reached by the votes in favour of the proposed amendment by reference to the constant constitutive element of each House. They were free, in the exercise of the power of sovereignty, to do so. They were not under delegated authority, as the Legislature is.

Section 328(5) of the Constitution is not in conflict with any other provision of the supreme law. The matters it regulates are exclusive to its provisions.

“The membership of each House” is an essential element of the requirement of the objective standard fixed by the fundamental law. It is therefore binding on all Members of the House, individually and collectively, in the exercise of the power to amend the Constitution.

The people decreed, by the supreme law, that the validity of the exercise of the power to amend its provisions be determined by application of an objective standard, which takes into account the representation and the protection of their interests.

When searching for the true construction of a constitutional provision, a court must constantly bear in mind that its authors were not executing a delegated authority, limited by other constitutional constraints. They were establishing a fundamental law. To that extent, the people, in the exercise of the power of sovereignty, were intent upon establishing such principles as seemed best calculated to produce good government and promote public happiness. They did so at the expense of any, and all, existing institutions which might stand in their way.

The objective standard for the determination of the validity of the proposed amendment of the Constitution is applied to the amount of votes in favour of the amendment at the third reading. It is that vote which decides the question whether the Constitutional Bill is passed by the House concerned. Compliance with all the procedural requirements prescribed by section 328 of the Constitution is obligatory.

In enacting the provisions of section 328(5) of the Constitution, the people deliberately chose the formulation of the objective standard for the determination of the validity of an amendment of the Constitution. The objective standard subjects the votes in favour of the proposed amendment to a minimum threshold fixed by reference to the whole number of persons fixed by the Constitution itself as the anchor for the standard. The people settled for the formula prescribed by section 328(5) of the Constitution because they were satisfied that its application would secure the object of protection and promotion of their interests. It is a means of affording indirect popular participation in the process of amending the fundamental law.

Section 344(3) of the Constitution relates to provisions which use the formula for determining the validity of decisions on any questions for decision by the House by requiring the votes in favour of what is proposed to reach a minimum threshold fixed by reference to the membership of the body. The sub-section prescribes what should happen when “the membership of a body” is not a multiple of the denominator to the vulgar fraction to express the minimum threshold.

The words “membership of a body”, as used in section 344(3) of the Constitution, relate to the whole number of members the body is declared by the Constitution to consist of.

It is clear, from section 344(3) of the Constitution, that reference to the “membership of a body” in any provision of the Constitution is reference to the total number of persons the Constitution has declared the body to consist of.

It is important to note, for the purpose of the determination of the question before the Court, that section 344(3) of the Constitution refers to “the membership of a body” when used in the Constitution in reference to the votes of a constitutional body.

Section 328(5) of the Constitution falls into the category of provisions in which the formula fixing the minimum threshold for votes in favour of the proposed action by reference to the membership of the body concerned is used.

The words “the membership of each House” are used in section 328(5) of the Constitution in a constitutive sense to refer to what constitutes each House, as prescribed by the fundamental law. The words refer to what constitutes the full strength of each House.

The correctness of the construction of section 328(5) of the Constitution, linking the minimum threshold the votes in favour of the proposed amendment of the Constitution have to reach to the whole number of Members making up each House, as fixed by the Constitution itself, is supported by the provisions of section 344(4) of the Constitution.

Section 344(4) of the Constitution provides that any reference in the Constitution to “the total membership” of Parliament is reference to the total number of persons who for the time being are Members of Parliament.

The definition of the total membership of Parliament is given immediately after the provisions of section 344(3), where reference is made to “the membership of a body”.

The effect of section 344(4) of the Constitution is that where reference is made in a provision of the Constitution to the “membership of a body”, and that body is one of the Houses of Parliament, reference is not being made to the total number of persons who for the time being are Members of Parliament.

Section 332 of the Constitution defines “Member of Parliament” to mean a Senator or a Member of the National Assembly.

The people decided that the objective standard for the determination of the validity of an amendment of the Constitution should not include an essential element which would depend on the effects of unpredictable occurrences of such events as death or removal from office of Members of either House. This self-restriction in the Constitution serves to guarantee stability and respect for the established constitutional order.

The amendment of the Constitution must not be an easy process.

Section 328 of the Constitution prescribes the procedure for amending the Constitution, reflecting different degrees of difficulty depending on the provision sought to be amended. The amendment of the Constitution is a matter on which the public places a lot of importance. A swift and easy method of amending the Constitution would weaken the sense of security which the rigid Constitution gives. There would be too little distinction from the method for amending ordinary legislation. That would erode the special status of the supremacy of Constitutional Law.

The Constitution would not occupy the special place it occupies today in the country's legal system.

Changing provisions of the Constitution, without following the special procedure provided for in section 328, would expose the Constitution to passing interests. The idea reigns that solidity and security are the most vital attributes of a fundamental law. See BRYCE “The American Commonwealth” Vol 1…,.

The effect and substantive value of the foundational principle of supremacy of the Constitution is that, once ordained by the people, the Constitution and its provisions bind the people themselves. The people must respect and obey the dictates of what has been done by Parliament within the ambit of the limited powers they would have conferred on it and in accordance with the procedure they would have prescribed for its conduct.

Democracy is a limited form of government. The principle of supremacy of the Constitution is to the effect that, once the people have given the representatives they would have put in Parliament, the power to make the final decision by the prescribed amount of votes in favour of the amendment of the Constitution in accordance with the prescribed procedure, they would have bound themselves to accept the amendment as being in the common interests of the entire people.

Therein lies and governs the principle of the rule of law.

It is to the effect that law is the master to be obeyed by the State, every person, and every institution and agency of Government at every level.

When a Member of a House of Parliament casts a vote in favour of the proposed amendment to the Constitution, he or she is discharging a democratic mandate. He or she is not casting the vote for personal interests. The principle of representative democracy guarantees every Member of Parliament not only freedom in the exercise of his or her mandate but also equal status as a representative of the entire people.

In principle, each House complies with its function as a body of representation in its entirety. The law does not differentiate votes in favour of the proposed amendment to the Constitution according to the political affiliation of the Members casting the votes. The voter acts as a Member of the House who is required to act in accordance with his or her conscience within the confines of the duties of the office of membership.

The fact that a political party with a majority of Members of Parliament manages to secure the requisite special majority of two-thirds of the membership of the House to amend the Constitution does not change the fact that, at law, the affirmative votes for the amendment of the Constitution represent the entire citizenry.

The reason is that, although cast by an individual, the vote is an exercise of the power belonging to Parliament as a constitutional body established for the purpose of exercising legislative authority for the common good of the entire people. The people established Parliament as a means by which they would exercise, through representatives, the legislative authority they vested it with for their common interests. The Constitution creates a representative democracy, under-girded by the doctrine of separation of powers.

The interpretation of section 328(5) of the Constitution must seek to give effect to the fundamental values on which a republican form of government is founded.

Section 328 of the Constitution does not only prescribe the procedures that those entrusted with the power to amend the fundamental law have to keep in mind and bear the obligation to act according to their requirements in the exercise of the power. The duty-bearers must also appreciate the rationale behind the limitation on the exercise of the power conferred on them in the context of the dynamism of the relationship with the people. They have to appreciate the legal consequences of failure to act in accordance with the procedures prescribed by section 328 of the Constitution.

ANALYSIS OF THE FACTS

NATIONAL ASSEMBLY

The parties agreed that the applicable figure with regards the National Assembly is 270. They agreed that two-thirds of that number is 180.

The agreement was based on the interpretation of section 124(1) of the Constitution which provides for the composition of the National Assembly.

The question was whether the applicants established, on a balance of probabilities, that there was no vote in Parliament.

The cause of action, as pleaded, was the alleged complete failure by the Speaker to conduct voting proceedings in the House to enable the Constitutional Bill to be passed. In the same breath, the applicants accepted that the voting did take place.

The cause of action, on this version of pleadings, was that the votes cast in favour of the Constitutional Bill failed to reach the minimum threshold of 180 votes required by the provisions of section 328(5) of the Constitution....,.

It is a clear contradiction in the applicants' case to suggest that there was no vote and then later accept that there was a verification process which established that an affirmative vote of 182 was reached in the National Assembly....,.

It was a contradictory pleading for the applicants to allege that the vote in favour of the Constitutional Bill did not reach the minimum threshold of two-thirds of the membership of the House when they averred at the same time that no vote was conducted....,.

One cannot allege that the required threshold was not met without accepting that there was a vote. Implicit in the alleged failure to reach the required minimum threshold is an acceptance that a vote was conducted.

One cannot make two mutually inconsistent averments in the same pleading. It has the effect of destroying the cause of action because a cause of action cannot be sustained by contradictory averments.

CC20-20 : MATHEW SOGOLANI vs MINISTER OF PRIMARY AND SECONDARY EDUCATION and HEADMASTER, MASHAMBANHAKA SECONDARY SCHOOL and HEADMASTER, CHIZUNGU PRIMARY SCHOOL and ATTORNEY-GENERAL OF ZIMBABWE
Ruled By: MALABA CJ, GWAUNZA DCJ, GARWE JCC, GOWORA JCC, HLATSHWAYO JCC, GUVAVA JCC, MAVANGIRA JCC, BHUNU JCC and UCHENA JCC

This is an application made in terms of section 85(1)(a) of the Constitution of Zimbabwe Amendment (No.20) Act, 2013 (“the Constitution”) for appropriate relief based on a freedom of religion claim.The application raises questions of the constitutionality of the policy and the actions of the education authorities of compelling school ...

SC54-06 : VIGOUR FUYANA vs NTOMBAZA MOYO
Ruled By: CHIDYAUSIKU CJ

This is a Chamber application for the condonation of the late noting of an appeal. Although the applicant does not specifically aver this, I shall assume that the application is made in terms of Rule 31 of the Supreme Court Rules (“the Rules”).

On 25 July 2005, SANDURA JA, sitting with MALABA JA and NDOU AJA, issued the following order:

“WHEREUPON, after reading documents filed of record and hearing counsel, IT IS ORDERED THAT:

The matter be struck off the roll with costs.”

The record reveals that both parties were present, and the record of SANDURA JA, who presided over the matter, indicates that the matter was struck off the roll because the Notice of Appeal was filed out of time and no application for condonation had been made.

Because of the multiplicity of cases involving the same parties, it is important to understand that the Court was seized with appeal case no. SC236/2000, which was an appeal against judgment no. HB44/2000.

Where an appeal is noted out of time, before the matter can be heard by this Court an application for condonation has to be made, and such condonation granted, before the appeal can be entertained.

A matter that is set down for hearing without condonation being first granted will be struck off the roll, as happened in this case.

On 14 and 18 July 2000 the applicant filed a Chamber application for directions before KAMOCHA J. He handed down judgment dismissing the application on 20 July 2000. The judgment is judgment number HB44/2000, HB44-00.

Over a year after the handing down of the judgment, on 21 August 2001, the applicant filed a Notice of Appeal against the judgment of KAMOCHA J. The headnote of that Notice of Appeal reads as follows:

“Take notice that the applicant hereby appeals against the judgment of the High Court No. HB44/2000, in terms of which the Honourable Judge dismissed the applicant's application for discharge of the provisional order in case number HC5207/99 with costs on the grounds and reasons detailed below.”

Apart from the fact that the above Notice of Appeal does not comply with the Rules, in particular Rule 29(a) and (c), in that it does not give the date when the judgment was delivered nor state whether the appeal is against the whole or part of the judgment, and is therefore invalid, it was filed way out of time.

The applicant was appealing against the judgment of KAMOCHA J (No. HB44/2000) which had been handed down on 20 July 2000 and not any of the other judgments involving the same parties - of which there are several. Thus, the Court was seized with an appeal against judgment No. HB44/2000 and no other matter.

The applicant, in his submissions to the Court, alleges that he filed a Notice of Appeal against this judgment, No. HB44/2000, on 15 August 2000 and that the above Notice of Appeal, of 21 August 2001, was an amendment to the Notice of Appeal filed on 15 August 2000.

The alleged Notice of Appeal, of 15 August 2000, is not on the record.

The Notice of Appeal of 21 August 2001, cited above, is not an amendment but a Notice of Appeal on its own.

However, even if I were to accept that the applicant did file a Notice of Appeal on 15 August 2000, that Notice of Appeal would have been out of time. Judgment HB44/2000 was handed down on 20 July 2000, and, according to my calculations, the dies induciae for noting an appeal expired on 10 August 2000.

Thus, the Notice of Appeal filed on 15 August 2000 was outside the fifteen days prescribed by the Rules of the Supreme Court.

Thus, whichever of the two dates one accepts as the date for the filing of the Notice of Appeal makes no difference. Both dates were outside the dies induciae.

Consequently, the striking off of the matter from the roll admits no doubt.

The applicant contends that the matter should not have been struck off the roll and impugns the integrity of the Court for striking the matter off the roll....,.

Ten months after the appeal was struck off the roll, on 17 May 2006, the applicant filed the present application for condonation of the late noting of an appeal.

The Rules of this Court provide that condonation for the late noting of an appeal can be granted upon the establishment of a good cause.

It is well settled that the essential elements of a good cause are:

(a) A reasonable explanation for the failure to file the Notice of Appeal within the prescribed period;

(b) Some prospect of success on the merits; and

(c) The bona fides of the application....,.

Before concluding, I would like to make the following observations:

Voluminous submissions, affidavits, and documents relating to the validity or otherwise of an Agreement of Sale, and the issue and status of the Agreement of Sale, were filed in this application for condonation. These were totally irrelevant to the issues I need to determine in this case, namely, whether or not KAMOCHA J was correct in dismissing an application for directions seeking the discharge of a provisional order which had already been referred to trial by another Judge.

It is trite that supporting affidavits in an application should contain essential averments in support of the relief claimed.

The papers filed in this case bear no resemblance to the above requirement. For instance, the founding affidavit and its attachments run into some forty pages, yet there is no explanation as to why the Notice of Appeal was not filed in time. Further, as part of the application, a bundle of documents of about seventy pages headed 'Evidence' was filed. Another bundle of documents entitled 'Supporting Heads of Argument', consisting of not less than fifty-five pages was also filed. A good part of the so-called 'Supplementary Heads of Argument' is devoted to principles of what the applicant called 'Advocacy', 'Advocacy A Code of Conduct', 'Objections in limine'.

A long list of the cases that were cited and summarised in the supplementary heads of argument had no bearing on the application for condonation of the late noting of an appeal.

There was also another bundle of documents filed in this application headed 'Civil Appeal'. This bundle of documents amounted to some forty pages and consisted of what the applicant called 'Opening Speech', 'Consolidated Heads', and 'Closing Speech'.

In brief, this application was overloaded with rubbish.

Appealed
SC87-19 : PRECIOUS CHIPUNZA vs MOSLEY MASHINGAIDZE
Ruled By: PATEL JA, BHUNU JA and BERE JA

This is an appeal against the decision of the High Court granting an order evicting the appellant and requiring him to pay holding over damages and costs of suit.

The respondent alleged that he was the registered owner of the property in question, situated in Meyrick Park, Harare, and that the appellant was occupying the property without his consent, entitling him to claim holding over damages in the sum of $500 per month from 1 November 2011.

The appellant himself also claimed title to the property.

He denied having transferred the property to the respondent or to any other person. He had borrowed $19,000 from one Frank Buyanga and was made to sign a purported Agreement of Sale in respect of the property. After he failed to settle his loan debt, Frank Buyanga sold the property to an entity called Gildastone Holdings (Pvt) Ltd.

The appellant disputed that the respondent was a bona fide purchaser or that he was entitled to holding over damages and punitive costs.

High Court Judgment

The court a quo found that the respondent was the registered owner of the property, having purchased it from Gildastone Holdings - without having been told of any disputed sale. He paid $55,000 for the property and his current rental claim was not disputed by the appellant who was still occupying the property. His evidence was credible and not controverted under cross-examination.

Conversely, the court found that the appellant's evidence was too complicated. He had either sold the property to Lalapanzi Properties (Pvt) Ltd or had failed to service his loan agreement bringing the Agreement of Sale into fruition.

On either of his versions, he had agreed to the sale of his house.

He placed no evidence before the court to support his bald assertion that Frank Buyanga was behind the fraudulent sales of properties in similar circumstances.

As regards the appellant's point in limine, that the instant matter be deferred until another matter in Case No. HC2469/13, dealing with the ownership of the property, is determined, the court noted that this was a later case instituted several years after the instant case. The court found that the appellant's point in limine was an afterthought and was not genuinely raised. In any case, although the respondent's claim was for eviction, it was based on the actio rei vindicatio and therefore required the court to determine the true ownership of the property. The point in limine accordingly failed and was dismissed.

The court reiterated that the respondent had provided a title deed to show that he was the holder of legal title to the property. The appellant was in occupation of the property and had to show that he was vested with some right to remain which was enforceable against the registered owner. He had failed to raise any recognisable defence to the respondent's claim for eviction or holding over damages. Consequently, the court ordered the appellant to vacate the property forthwith. The appellant was also ordered to pay holding over damages of $500 per month, from 1 November 2011 to the date of vacation or eviction, and costs of suit.

Grounds of Appeal and Relief Sought

The grounds of appeal herein are essentially twofold:

(i) The primary ground of attack is that the court a quo erred in ordering eviction despite the matter pending in the High Court to resolve the substantive question of ownership. The court therefore misdirected itself in failing to stay eviction proceedings during the pendency of Case No. HC2469/13, wherein Frank Buyanga and his associated companies were cited and which was therefore better placed to resolve the question of ownership....,.

Whether Point In Limine Properly Raised A Quo

In his pre-trial conference minute, dated 23 October 2012, the appellant raised two specific issues, as to whether Gildastone Holdings had any lawful title to pass to the respondent and whether the respondent enjoyed lawful ownership of the property. Until that stage, the appellant was legally represented.

In the joint pre-trial conference minute, signed on 12 February 2013, these two issues were omitted and the question of ownership was not directly addressed. At that time, however, the appellant had ceased to be legally represented.

In his plea, filed on 5 January 2012, the appellant had specifically disputed the respondent's ownership of the property. However, he did not raise the defence of lis alibi pendens. That defence was only indirectly alluded to later in his supplementary summary of evidence, filed on 5 March 2014 by his current legal practitioners, wherein he indicated that he had issued summons in Case No. HC2469/13, seeking nullification of the transfer of the property from himself to Lalapanzi Properties together with all subsequent transfers, and that he was still the owner of the property in dispute.

Counsel for the respondent refers to Rule 137(2) of the High Court Rules 1971. She submits that this sub-rule requires that all special pleas must be taken and filed together with the main plea. The appellant's plea and the joint pre-trial conference minute did not raise any special plea relating to the pendency of Case No. HC2469/13. The special plea was raised for the first time in the appellant's closing submissions a quo, filed on 8 January 2018. Consequently, so it is submitted, the special plea was unprocedurally raised.

Furthermore, it is contended that the court a quo quite correctly found that the appellant was delaying the matter by raising the special plea at a late stage. It was not raised bona fide and the court properly exercised its discretion in dismissing the appellant's point in limine in that regard.

Counsel for the appellant counters that the Rules do not require that a special plea must be raised at the same time as the main plea. In any event, so he submits, the pendency of Case No. HC2469/13 was raised not by way of a special plea but as a new point of law.

Order 21 of the High Court Rules 1971 deals with special pleas, exceptions, applications to strike out and applications for particulars. Rule 137(1) sets out the various alternatives available to a party instead of pleading to the merits. Rule 137(2) prescribes the form to be utilised, mutatis mutandis, for that purpose. It certainly does not, as is argued by counsel for the respondent, relate to when a special plea must be taken and filed. The only relevant provision in that regard is Rule 139(1) which provides that:

“A party shall state all his special pleas and exceptions and make all his applications to strike out at one time: Provided that where an exception or special plea is taken or where application to strike out is made it shall not be necessary to plead to the merits of the case.”

As is correctly submitted by counsel for the appellant, the Rules quite clearly do not dictate that a special plea must be taken and filed at the same time as the main plea. Rule 139(1) is only concerned with the filing of alternatives to pleading to the merits and makes it abundantly clear that it is not necessary for a party who excepts or takes a special plea to plead to the merits of the case.

In any event, the court a quo evidently did not relate to the pendency of Case No. HC2469/13 as a special plea but simply as a point in limine pertaining to the defence of lis alibi pendens.

The court noted that it had been requested to stay the matter before it pending the determination of the question of ownership in Case No. HC2469/13, in the interests of justice and to prevent conflicting judgments emanating from the same court. The learned judge then proceeded to deal with the substantive merits of the point in limine, without questioning its procedural propriety, before dismissing the defence of lis alibi pendens.

In my view, there was nothing that was procedurally incorrect in the manner in which the defence was raised a quo and disposed of by the learned judge. It was a matter that appears to have properly arisen from the pleadings and submissions before the court.

View Appeal
HH211-18 : MOSLEY MASHINGAIDZE vs PRECIOUS CHIPUNZA
Ruled By: MATANDA-MOYO J

The plaintiff sued the defendant by way of summons for the following relief;

(a) An order evicting the defendant and all those claiming occupation through him from the plaintiff's premises known as Number 20 Saint Stephens Road, Meyrick Park, Harare;

(b) Holding over damages in the sum of $500 per month with effect from 1 November 2011 to date of vacation or eviction; and

(c) Costs of suit on a legal practitioner-client scale.

The plaintiff alleged that he is the owner of Number 20 Saint Stephens Road, Meyrick Park, Harare which is described as Stand 3206 Marbelreign Township 17 of Greeba of Mabelreign measuring 1,065 square metres, held under Deed of Transfer 4941/2011 dated 18 October 2011. The defendant is in occupation of that property. As a result of such occupation by the defendant, the plaintiff alleged he is suffering $500 per month holding over damages from 1 November 2011. The $500 represents the amount the plaintiff would realize from renting out the above property.

The defendant disputed the plaintiff's ownership of the property. The defendant, instead, claimed ownership of the property.

It is the defendant's case that if the plaintiff indeed holds title to the property then such title would have been fraudulently acquired. The defendant denied having transferred his property to the plaintiff nor to any other person. Instead, the defendant pleaded that he borrowed $19,000 from a certain Frank Buyanga. He was made to sign a purported Agreement of Sale in respect of the property, hence, after the defendant failed to settle the debt, Frank Buyanga sold the property to Gildastone Holdings (Pvt) Ltd who have a pending eviction matter before the Magistrates Court against the defendant. It is the defendant's case that if indeed the plaintiff purchased the property, then he was and is not a bona fide purchaser.

The defendant denied being liable for holding over damages, insisting he was the owner of the property, and also denied that the plaintiff was entitled to costs on a legal practitioner-client scale. He also prayed for dismissal of the plaintiff's claim with costs on a higher scale.

Without replicating, the matter was set down for pre-trial conference. The issues for trial were as follows;

1. Whether or not the defendant has a defence to the plaintiff's claim;

2. Whether or not the plaintiff is entitled to recover holding over damages in the sum of $500 from 1 November 2011 to date of eviction; and

3. Whether or not the plaintiff is entitled to costs on a higher scale of legal practitioner and client....,.

On the issue of holding over damages, the defendant put no defence to that claim...,.

SC11-08 : DOCTOR DANIEL SHUMBA and ADVOCATE BRUCE CHIOTA vs THE ZIMBABWE ELECTORAL COMMISSION and MR MUSHANGWE N.O.
Ruled By: CHIDYAUSIKU CJ, SANDURA JA, ZIYAMBI JA, MALABA JA and GARWE JA

The applicants in this case allege that their right to freedom of association, guaranteed by sections 21(1) and 21(2) of the Constitution of Zimbabwe (“the Constitution”), and their right to protection of the law, guaranteed by section 18(1) of the Constitution, were violated by the second respondent, an employee of the first respondent.

The alleged violation of the applicants' rights occurred in the course of the second respondent's employment with the first respondent.

THE FACTS

The applicants in this case are leaders of two different political parties. Both applicants wished to contest the Presidential Election conducted on 29 March 2008. The election which the respondents wanted to contest is complete and the outcome has been announced.

The applicants are seeking a declaratory order that their rights were violated.

Counsel for the applicants submitted that the outcome of this application has no bearing on the already completed election. He contends, however, that this application for a declaratory order is more than a mere academic exercise. He contends that a determination by this Court will provide a useful guideline for the future conduct of election officials.

Put differently, the completed electoral process will not be affected by the outcome of this case.

15 February 2008 was the nomination day for the Presidential Election conducted on 29 March 2008. All aspiring candidates wishing to contest the 29 March 2008 Presidential Election were required to file their nomination papers by four o'clock on the afternoon of 15 February 2008.

The first applicant avers that on 15 February 2008 he arrived at and entered the Nomination Court at or about 15:45 hours. This was fifteen minutes before the official closing time for nominations.

He submitted his nomination papers to the second respondent who advised him to wait until the official had finished attending to the second applicant. The second applicant at that time was filling in some forms.

He sat in the Nomination Court awaiting his turn to be attended to and to file his own nomination papers.

When the second applicant finished filling in his papers, he presented them to the second respondent, only to be told that the Nomination Court had closed and his nomination papers would not be accepted.

When the second applicant was told that his nomination papers could not be accepted, the first applicant moved forward to submit his own nomination papers as he had been advised to wait until the nomination officer had finished attending to the second applicant. The first applicant contends that upon presenting his nomination papers he too was told that his nomination papers could not be accepted as the Nomination Court had closed.

He protested at this turn of events to no avail.

What transpired thereafter is not entirely clear from the affidavits filed by the parties.

The first applicant sets out his version of what transpired in paragraph 11 of the founding affidavit, while the first respondent sets out its version of what transpired in paragraph 6 of the opposing affidavit.

The two versions do not present a clear chronology of the events which occurred thereafter.

Counsel for the respondents, in both the High Court and the Electoral Court proceedings, made certain submissions which were accepted by the applicants as correct. These submissions, to some extent, clarified what transpired after the rejection of the applicants' nomination papers....,.

The averments of the applicants, as to what transpired at the Nomination Court, have not been put in issue by the respondents. In particular, the second respondent has not filed an affidavit disputing the allegations made against him relating to his conduct during the Nomination Court proceedings.

Given this situation, this Court has to accept, as a fact, that the applicants arrived at the Nomination Court at least fifteen minutes before the closing time on the nomination day....,.

The proposition that what is not denied in affidavits must be taken as admitted is not disputed by the respondents and is supported by authorities: see Fawcett Security Operations P/L v Director of Customs and Excise and Ors 1993 (2) ZLR 121 (S)…,; Nhidza v Unifreight Ltd SC27-99; and Minister of Lands and Agriculture v Commercial Farmers Union SC111-01…,.

The second respondent has not filed an affidavit in this case.

HH260-15 : DR PARTSON ZVANDASARA vs BELVEDERE NURSING HOME (PVT) LTD
Ruled By: MATHONSI J

The plaintiff is a medical doctor, a gynaecologist, and a professor at the University of Zimbabwe. He boasts that he is a founder member and majority shareholder of the defendant, a maternity institution he is suing for $50,000, being money he says he paid to a creditor of the defendant on its behalf.

In his declaration, the plaintiff averred that sometime in September 2005, while he was the Managing Director of the defendant, he entered into an agreement with Vengesayi Architects (the architects), on behalf of the defendant, in terms of which the architects were to provide the defendant with services for a fee. The architects were contracted to make town planning applications for special consent on the Stand, co-ordinate all project consultations, design, work on drawings and supervise construction work of the proposed additions and alterations to the hospital.

Although the architects drew up the plans, the defendant did not proceed with the construction, but, the agreement he had concluded with the architects resulted in the defendant being indebted to the architects in the sum of US$1,300,000.

As Managing Director, founder, and majority shareholder of the defendant he paid a sum of $50,000 towards settlement of the debt in order to protect the integrity and good name of the defendant.

The $50,000 was paid by him in instalments between 30 May 2011 and 18 July 2011. The plaintiff averred, in paragraph 8 of the declaration, that:

“The money paid to the architects by the plaintiff thus made the latter the defendant's creditor. There is no dispute as to whether the plaintiff made the payment aforesaid.”

The plaintiff then prayed for judgement in the sum of $50,000 together with interest at the prescribed rate and costs of suit on a legal practitioner and client scale.

Having entered appearance to defend, the defendant filed a plea denying liability and stating that the plaintiff was not authorised by its Board of Directors and shareholders to enter into an agreement with the architects and that he had entered into that agreement unlawfully.

It further averred that when the plaintiff paid the sum of $50,000 to the architects, he did so without the authority of the defendant. As he had entered into the agreement without authority, the plaintiff was personally liable to the architects. The plaintiff's claim should therefore be dismissed with punitive costs.

At the pre-trial conference the parties agreed on the issues as:

1. Whether the plaintiff entered into an architectural agreement with the architects without the authority of the defendant's Board of Directors and shareholders.

2. Whether the defendant is liable to the plaintiff in the sum of $50,000 paid to the architects.

Only the plaintiff gave evidence at the trial of this matter, stating that he had been the Managing Director of the defendant since 1998 and he still holds that position.

On 29 January 2010, the defendant's Board had proposed, and agreed, that they should negotiate terms of payment of the architects' fees for work done. The architects had performed work for the defendant and submitted a claim for the payment of their fees.

Prior to that, the architects had drawn plans for the development of the hospital which was called the second phase.

A contract had been signed in 2005 between the hospital and the architects with the former being represented by himself. He made reference to pages 66 to 69 of exhibit 1, being the agreement in question, stating that it was signed by himself in his capacity then as Executive Chairman and countersigned by the defendant's Administrator.

The plaintiff maintained that he had the authority of the Board which he worked with then, to enter into the agreement, and, as such, the agreement was binding on the defendant which however did not pay the fees of the architects even though a demand for payment was initially made in 2006, re-submitted in 2009, and, finally, in 2010.

Prior to making payment on behalf of the defendant, he had been specifically mandated, by the Board, to negotiate with potential investors for the funding of the project. He had brought in Banc ABC which was willing to invest $7.5 million and Mbizvo Group which was willing to invest $15 million into the project. Content with the funding arrangement, the plaintiff said he had incorporated the architects' fees in the funding. He then paid $50,000 to the architects satisfied that he could recoup his money in due course.

The payment was made in order to create a good atmosphere for negotiation with the architects.

The plaintiff referred to letters written by the architects between 30 May 2011 and 18 July 2011…, in which the architects were acknowledging payment of the various sums allegedly made by the defendant to them.

The letters themselves are drafted the same way except for the figure acknowledged. The plaintiff did not explain why no receipt, in the usual manner, was issued. It was suggested to him, under cross-examination, that the letters were manufactured to justify his claim and he did not give a meaningful response.

The plaintiff stated that he had paid the money to the Administrator of the defendant, Mr Makamure, who, alone with the accountant, Mr Tembo, effected payment to the architects.

He pointed out that there was no formal Board meeting to authorize the payment and there was evidence that some Board members did not want payments to be made to the architects while others favoured payment.

There was no formal instruction given to him to effect that payment.

He however sought legal advice from Mr Mabulala, who was also a Board member. Before Mr Mabulala's advice came, in the form of a letter dated 13 June 2011..., the plaintiff went ahead and started paying instalments to the architects, the first one of $3,500 being made on 30 May 2011. When the letter from Mabulala & Motsi legal practitioners finally came it not only endorsed that payment was a fait accompli, it also counselled caution. It reads:

“RE: ARCHTECTS

I refer to your note to me dated 9th June 2011 and the letter from Kantor and Immerman dated 8th June 2011. It seems to me that you have already committed yourself, personally, to paying the architects' fees, and, any opinion from me would be of academic interest. The question which remains is whether or not you can, and did, lawfully commit the hospital as well. I hope the Board and the shareholders are fully informed of these latest developments.”

From the correspondence that had been refereed to Mr Mabulala, it is apparent that the plaintiff had already offered to pay $50,000 to the architects in “tranches” and had already agreed with them that he would sign a Deed of “surety, acknowledgement and undertaking” in respect of the full extent of their claim of $1,303,783 in respect of their fee note dated 3 August 2010…,.

The plaintiff says he then convened a meeting of the Board, in September 2011, intending to regularise what he had done without Board approval.

Unfortunately, on 21 September 2011, he says he was locked out of his office at the hospital and was prevented from going in by armed guards. He has never had access to the office since then and his efforts to reclaim his position and the office, subsequent to that, have hit a brick wall.

He approached this court, in HC9630/11, for spoliatory relief but was turned down. The judgement in that matter, delivered by MUTEMA J is HH221-11, and, at p3 of it, the court made the following findings:

“Applicant alleges (he) was despoiled of the office as well as his personal belongings lodged therein which he uses for his private life and business. Respondents have offered that applicant is at liberty, at his earliest convenience, to come and collect his personal items. I have no reason to doubt the sincerity of that offer.

However, as regards the office, that is a different kettle of fish.

While applicant alleges spoliation, respondents' papers clearly show that it is him who is the spoliator. He had been away for some 8 months and Saungweme was in lawful and undisturbed possession of that office. He was denied occupation of the office but he locked it to the exclusion of everyone except himself. This, despite the exitant dispute between the parties, amounts on the applicant's part, to self-held.

I did not hear applicant to dispute respondents' version either on paper or in oral submissions, of how he ended up re-occupying the office. He therefore cannot come to court with clean hands. He is the spoliator. To allow him audience would be tantamount to sanctioning unlawfulness.”

He says that if the meeting took place he does not know what transpired as he was unable to attend.

What is even more important is the fact that he was unable to “regularize” his payments made to the architects without approval - meaning that the plaintiff's payments remained unsanctioned.

The plaintiff testified that he paid the architects, on behalf of the defendant, because it was necessary to maintain the integrity and good name of the institution.

HH260-15 : DR PARTSON ZVANDASARA vs BELVEDERE NURSING HOME (PVT) LTD
Ruled By: MATHONSI J

The essence of any claim is to be found in the pleadings.It is the function of pleadings 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 to define the limits of ...

HH520-18 : AIR NAMIBIA (PROPRIETARY) LTD vs CHENJERAI MAWUMBA and JULIANA MAGOMBEDZE and FADZAI MAWUMBA and RUTENDO MUWUMBA and TADIWANASHE MAWUMBA (minors represented by father & natural guardian)
Ruled By: CHITAPI J

A legal practitioner should identify the issue, or issues, for determination and focus on them.

HH551-15 : W AND D CONSULTANTS (PRIVATE) LIMITED vs SEAN THOMAS NIELSON DORAN
Ruled By: DUBE J

This dispute came before me as a trial matter. The parties agreed to dispense with the need to call oral evidence there being no disputes of fact arising from the facts. Thereafter, the parties filed heads of argument and a Statement of Agreed Facts. After argument, the court granted the ...

“IT IS ORDERED THAT:

1. The defendant shall give vacant possession of No.7 St. Michaels Lane, Borrowdale otherwise known as the remaining extent of Stand 10 Reitfontein Township of Lot 1AB Reitfontein measuring 4,714 square meters within (7) seven days from the date on which the order is served on the defendant.

2. If the respondent, or any person occupying the property through him, remains on the property after that date, the Sheriff is authorised to remove them and their possessions from the property.

3. Payment of holding over damages in the sum of US$2,000 dollars per month from the 7th of February 2013 to the date of ejectment.

4. Costs of suit.”

Brief reasons for the order were given. The court has now been requested for detailed reasons for its order.

The salient facts of this dispute are common cause.

On 12 July 2013, the plaintiff issued summons claiming the ejectment of the defendant and all persons claiming occupation through him from No.7 St Michael's Lane, Borrowdale, Harare and holding over damages at $3,000 per month from January 2013 to the date the defendant vacates the property.

The plaintiff is the registered owner of the property in dispute having bought it at a sale in execution and subsequently transferred it into its name. The defendant, who is in occupation of the property with his family, has refused to vacate the property.

The brief background of this case is aptly summarised in the Statement of Agreed Facts as follows;

“1. A judgment by default for the payment of an amount of US$415,951=91, under case number HC5917/10, was obtained by Kingdom Bank against the defendant, Dreibond Investments (Private) Limited (“Dreibond”) and 9 other defendants on the 14th of February 2011.

2. The judgment also provided that a certain piece of immovable property known as certain piece of land situate in the District of Salisbury called the Remaining Extent of Stand 10 Rietfontein Township of Lot 1AB Reitfontein measuring 4,714 square meters (“the Property”) be declared executable.

3. The Property was registered in the name of Dreibond. Dreibond is not a trading company.

4. The defendant holds all the issued shares in Dreibond.

5. The directors of Dreibond, as per the Company Office records, are Louise Nielson-Doran and the defendant.

6. A writ of execution against immovable property was issued in matter HC5917 on the 15th of April 2011.

7. The Property was attached into execution and duly advertised for sale by public auction on the 19th of October 2012.

8. The Plaintiff, represented by Tsitsi and Prince Zireva, bid for the Property, and the Sheriff for Zimbabwe, on the 7th of November 2012, duly declared the Plaintiff the highest bidder and purchaser of the Property at a purchase price of US$284,000.

9. The Property was transferred to and registered in the name of the Plaintiff on the 5th of February 2013.

10. On the 7th of February 2013, the Plaintiff demanded that the Defendant vacates the Property.

11. The Defendant has refused to vacate the Property and contends that he has the right to remain in occupation in terms of a lease agreement allegedly executed between Dreibond and his wife, Louise Nielsen Doran, on the 28th of September 2012. A copy of the alleged lease agreement is attached hereto marked Annexure “A”. The alleged lease agreement provides for the payment of rentals at the rate of US$1,500 per month.

12. The Defendant and/or his wife have not paid any rentals whatsoever to the Plaintiff. The Defendant tendered rent to the Plaintiff on the 24th of July 201.

13. The Defendant and the other 10 defendants applied for the rescission of the default judgment of the 14th of February 2011 under case number HC9634/11. The application was dismissed on the 17th of October 2013. Judgment HH363-13 refers.

14. On the 19th of March 2013, the Plaintiff obtained a report from Clipcrunt Real Estate which put market rentals for the property at US$3,000 per month. A copy of the report is attached hereto marked Annexure “B”.

15. Defendant obtained two (2) independent evaluation reports from Estate Agents which put the rentals for the Property at US$1,500. Copies are attached marked as Annexure “C” and “D”.

16. The Parties have agreed that a fair market rental for the Property is in the amount of $2,000 per month.”

At the hearing of this matter, the defendant raised preliminary points which I will deal with in seriatim....,.

The defendant submitted that the plaintiff does not have the requisite locus standi to bring this application on the basis that it does not own the property which is subject of the dispute.

The parties agree, in their Statement of Agreed Facts, that the plaintiff bought the property and registered it in its name.

This point was not pursued.

HH978-15 : IGNATIUS MASAMBA vs SECRETARY-JUDICIAL SERVICE COMMISSION
Ruled By: MUNANGATI-MANONGWA J

This is an exception by the defendant to the plaintiff's summons and declaration, as amplified by further particulars, on the grounds that the plaintiff's claim does not disclose a cause of action.

The defendant further avers that the claim is bad in law.

The background to this case is that the plaintiff had sued for damages in the Magistrates' Court in an action he had stated as “trespass on person-battery”. As no appearance to defend was entered, he sought default judgement. The magistrate threw out his application, and, in doing so, stated that the plaintiff had sued for “trespass on land”.

The plaintiff appealed against the decision and the appeal is pending in this court.

Arising out of those circumstances, the plaintiff has, in this matter, instituted an action for damages against the defendant, being Secretary–Judicial Service Commission.

The plaintiff relies on vicarious liability, and is suing the defendant in a representative capacity as the employer of the magistrate who dismissed his case.

The action is defended.

The plaintiff's claim is couched as follows:

“The failure or omission to read accurately all the plaintiff's documents filed of record at court by the plaintiff in this matter, that has a cause of action of 'Trespass to the person-battery' which the magistrate read as 'Trespass to land'…, inexplicably.”

The plaintiff further states that he is suing the defendant in contract and delict in her representative capacity.

The defendant requested for further particulars; upon being furnished with same, the defendant raised an exception to the plaintiff's summons.

The exception is premised on the following grounds:

(i) The summons do not reveal a cause of action for its claim against the defendant thus does not comply with the peremptory provisions of Order 3 Rule 11(c) of this court's rules which specifically provides that a summons shall contain “a true concise statement of the nature, extent, and grounds of the cause of action and of relief or remedies sought in the action.”

(ii) The summons are vague and embarrassing in that it is not clear whether the plaintiff's claim is in contract or in delict. The plaintiff has not averred any of the elements required to succeed in a claim either in delict or contract.

(iii) There is no action known as “professional negligence for mental suffering” which further points to the fact that the claim is vague and embarrassing.

The defendant sought dismissal of the plaintiff's claim with costs at a higher scale.

After service of the exception on the plaintiff, he filed a document headed “Notice of Amendment” in which he sought to amend the claim indicating that at the hearing he was to apply to amend the summons.

No such application was made on the day of the hearing.

Suffice to say, the notice of amendment would not have changed the state of papers as nothing materially changed apart from creating further confusion.

Before the hearing, the plaintiff raised issue that the defendant had not filed her heads of argument on time since they were filed after the plaintiff had filed a response to the exception and filed a notice to amend summons, hence, the defendant was barred.

The defendant's counsel disputed that assertion insisting there was no bar in operation against the defendant.

The court found no merit in the plaintiff's assertion.

Clearly, the defendant filed heads of argument on 2 November 2015 and served same on plaintiff; the plaintiff filed his on the 12th November 2015, hence, there is no issue of delay in that aspect and no bar operated against the defendant.

The court proceeded to hear the matter on the merits.

Counsel for the defendant argued that the plaintiff's summons did not satisfy the mandatory requirements set out in Rule 11(c) of the High Court Rules; that omission rendered them a nullity. She referred the court to the case of Bank of Credit & Commerce Zimbabwe Ltd v Jani Investments (Private) Limited 1983 (2) ZLR 317 (H)…, where, faced with similarly defective summons, the court remarked:

“It will be immediately realised, of course, by someone who runs very quickly as he reads, that the summons is wholly invalid since it discloses no cause of action whatever. Any exception to such summons can only succeed instantly and completely.”

She further argued that the summons was vague and embarrassing as it did not disclose whether the claim was based in delict or contract law.

In response, the plaintiff maintained that a reading of the summons and declaration, which documents were complimentary, made issues clear. Further, he had filed a notice of amendment.

The heads of argument filed by the plaintiff were not helpful as they contained a lot of historical evidence and did not further his case.

I agree with the submissions made by the defence counsel regarding the non-compliance and the inadequacy of the summons and declaration.

A reading of the summons, declaration, and further particulars, clearly reveals that these documents contain long winding explanations duly tainted with allegations of bribery, corruption, and political interference against different court officials.

There is no true and concise statement of the nature, extent, and grounds of the cause of action.

Facts and evidence are all mixed up and one gets to pains as to determine the facts upon which, at law, one can rely on to sustain a claim.

In ODGERS Principles of Pleading and Practice in Civil Actions in the High Court of Justice, 2nd Ed…, it is stated as follows;

“The object of pleadings is to ascertain, definitely, what is the question at issue between the parties and this object can only be attained when each party states his case with precision.”

It is this precision that, in my view, Rule 11(c) of this court's rules advocates for.

The reason behind Rule 11(c) is to ensure that a summons be a document that clearly and concisely sets out the facts that the plaintiff relies on which establish a cause at law for which specific relief can be sought. Compliance with the requirement would create or bring out a case to which the defendant is able to answer. It must be clear, to the defendant, what it is he is alleged to have done giving rise to the plaintiff, at law, to claim the relief sought.

Rule 99(c) of the High Court Rules, although not referred to by the defendant, comes to play. It states that;

“A pleading shall -

(c) Contain a statement, in summary form, of the material facts on which the party pleading relies for his claim or defence, as the case may be, but not the evidence by which they are to be proved.”

There has to be a summary of allegations of fact which, in law, give rise to a claim or justify the relief sought.

In casu, facts in the summons and declaration are so mixed up so as to cloud the case to which the defendant has to answer. In essence, they are vague and embarrassing so as to go to the root of the claim.

The court further agrees with the defendant's submissions that it is not clear under which branch of law the plaintiff is suing.

Be it in delict or contract, the plaintiff has failed to satisfy the elements that sustain a claim under either of the branches.

In purporting to claim delictual damages, the plaintiff's declaration reads as follows:

“(i) There was damage of mental suffering directly arising out of the magistrate's ruling to the plaintiff which is actionable under negligence law.

The plaintiff bases this averment on what he considers to be failure by the defendant to recruit a competent magistrate.”

The issue is: there is no cause of action like 'damage of mental suffering'.

Even if one can sue for mental distress, the facts alleged do not support liability.

The plaintiff appealed against the judgment granted in the Magistrates' Court.

Further, one cannot sue a magistrate for damages when he/she is acting in their professional capacity for mis-interpreting the law or the facts, hence the appeal and review processes.

Of note is the fact that the defendant in this matter is the Secretary–Judicial Service Commission; apart from not being the employer of Ms Dzikiti, the alleged magistrate (the employer being the Judicial Service Commission) the sitting magistrate herself was not cited.

Most important, as the defendant is not an employer in the circumstances no vicarious liability can attach to her.

The contractual claim is stated as follows:

“The plaintiff is suing in contract because the plaintiff paid court fees being in consideration for a competent (a fit and proper ruling).”

The question is; in paying for court fees, did the plaintiff enter into a contract with the sitting magistrate?

This is not so, as court fees are meant for processing of papers and never for the judgment.

In Ebrahim v Controller of Customs and Excise 1984 (1) ZLR 41 (HC) McNALLY J…, considered, at length, the meaning of 'cause of action' as defined by scholars and in certain judgments. As a result, the accorded meaning in that case was stated as:

“The entire set of facts which give rise to an enforceable claim, this includes every fact which is material to be proved to entitle a plaintiff to succeed in his claim.”

My understanding is that the plaintiff has to specifically plead material facts that entitle him to relief under the specific branch of the law.

This, the plaintiff has failed to do.

From the pleadings, no material facts have been averred to sustain a claim for damages under delict or the law of contract.

Notably, the plaintiff had not made the claims in the alternative; he sought to rely on both causes of action for the same relief. As demonstrated, none of the claims could hold.

In HERBSTEIN and Van WINSEN, Civil Practice of the High Courts of South Africa, 5th ed, Vol 1…, the learned authors clearly deal with the purpose of an exception:

“The aim of the exception procedure is thus to avoid the leading of unnecessary evidence and to dispose of a case, in whole or in part, in an expeditious and cost-effective manner. Thus, pleadings whose contents are so vague and it is impossible to determine the nature of the claim or the defence and pleadings which are bad in law in that their contents do not support any legally recognised cause of action or defence are struck out.”

Certainly, the plaintiff's claim does not disclose a legally recognised cause of action: the facts pleaded do not inform the defence in concise terms the claim the defendant has to answer to. The summons and declaration are fatally defective - the pleadings are incurably bad.

The claim can therefore not stand.

In the premises, the exception has to be upheld; this being the expeditious and cost effective way of disposing the case without putting the defendant to unnecessary expense.

Where an exception is upheld, the court is at liberty to grant the affected party an opportunity to amend its pleadings. This, in the case of a plaintiff, could be in the form of leave to amend the particulars of claim, if so advised, within a specified period of time as the court may determine.

As alluded to earlier, the plaintiff had filed a notice of amendment.

A reading of the proposed amendment shows that the contents are argumentative and consist of historical and evidentiary facts not necessary in a pleading. In essence, the summons and declaration, and the proposed amendments, consist of pleadings which are incurably bad - nothing can be salvaged. This, coupled by the fact that the party sued is the wrong party, the defendant not being the employer, and there being no direct legal relationship between the parties, granting the plaintiff leave to amend his pleadings is a futile exercise.

In such an instance, the court has no option but to order dismissal of the plaintiff's claim....,.

1. The defendant's exception is upheld.

2. The plaintiff's claim is dismissed with costs on a legal practitioner and client scale.

SC01-15 : FIRSTEL CELLULAR (PRIVATE) LIMITED vs NETONE CELLULAR (PRIVATE) LIMITED
Ruled By: ZIYAMBI JA, GARWE JA & PATEL JA

This is an appeal against the decision of the High Court granting summary judgment against the appellant in the sum of US$8,330,470=52 together with interest at 2.5% per annum above the prime overdraft Bank rate and costs of suit.The claim against the appellant arose from a Service Provider Agreement concluded ...

The claim against the appellant arose from a Service Provider Agreement concluded between the parties on 10 March 2006 (the Agreement). The Agreement required the appellant to pay the sums due thereunder within thirty days of receiving the respondent's invoices.

It is common cause that the appellant owed the respondent the outstanding amount claimed as at 30 September 2010.

The respondent issued summons on 16 November 2010, and, following the appellant's appearance to defend, applied for summary judgement on 14 February 2011.

The court a quo held that the respondent's claim was unimpeachable and that the appellant had no plausible defences to the claim. In particular, the court found that there was no supervening impossibility due to the currency regime changeover between January and March 2009, entailing any objective impossibility of recovering debts from the appellant's customers. Additionally, there was no condition precedent in the Agreement that those customers should first pay the appellant before it became obliged to pay the respondent. Lastly, there was no principal and agent relationship between the parties to preclude the recovery of payments from the appellant upon presentation of the respondent's invoices.

The grounds of appeal herein arise from the defences raised in the High Court, viz: supervening impossibility of performance, recovery from customers as a condition precedent for payment, and the existence of a principal and agent relationship between the parties.

In essence, the question to be determined is whether the learned judge was correct in holding that the respondent's claim was unassailable and that the appellant had no bona fide defences to that claim....,.

GROUNDS OF APPEAL

The grounds of appeal set out in the notice of appeal appear to have conflated the three defences raised in the court a quo.

The essence of these grounds is that the relationship between the parties, based on their conduct after the inception of the Agreement, was one of principal and agent, whereby the appellant was an agent of the respondent in sourcing customers for post-paid cellular airtime usage, collecting payments for the airtime used or sold, and then remitting payments to the respondent after deducting its commission.

Consequently, since payments to the respondent would only be due upon the appellant recovering the same from its customers, payment by the latter was a condition precedent to any payment to the respondent. This applies to the entire amount of US$8,330,470=52 claimed by the respondent.

Again, on the same footing, the appellant's failure to recover the payments from its customers constituted a supervening impossibility suspending the appellant's obligation to remit payments to the respondent, there being nothing to remit until such time as payments had been made by or recovered from the customers.

PRINCIPAL AND AGENT RELATIONSHIP

The appellant's position, as I understand it, is as follows:

Although not expressly stated in the Agreement, the common understanding of the parties was that the appellant would be paid by its customers for network service usage and would then deduct its commission and pass on the balance to the respondent.

This position appears to be buttressed by paragraph 3 of the respondent's declaration which states that the appellant would collect payments for airtime used by its customers and remit the collected amounts less its commission to the respondent.

In this connection, counsel for the appellant submits that the Court must look at the true nature and substance of the Agreement and not merely at its form. The description of the parties contained in the Agreement is not necessarily conclusive as it disguises the true nature of their principal and agent relationship.

I note in this regard the remarks of SILKE: The Law of Agency in South Africa (3rd ed.)…, where the learned author adverts to the difficulties in ascertaining the true nature of an agency relationship.

Turning to the provisions of the Agreement itself, clause 2 thereof sets out the principal rights and obligations of the parties.

The respondent undertakes to supply and distribute terminal equipment and network services to the appellant's customers (clause 2.1). In turn, the appellant may from time to time order and purchase quantities of smartcards from the respondent (clause 2.2.1). The respondent is then obliged to make the network service available to the appellant for onward supply to the appellant's customers (clause 2.2.2 as read with clause 6.1). The smartcards ordered and purchased by the appellant are allocated by it to its own customers (clause 4.1). The appellant is liable to the respondent for all charges generated in respect of each smartcard activated by the appellant with effect from the date of such activation (clauses 4.5.1 and 4.5.2). The respondent is then entitled to raise call charges, monthly service charges, and all other charges for the account of the appellant (clause 8.1). Thereafter, all charges invoiced by the respondent to the appellant shall be paid by the appellant to the respondent within 30 days of the date of the relevant tax invoice (clause 8.3).

My reading of the afore-cited provisions of the Agreement is that they clearly spell out the true nature of the relationship between the parties.

In essence, it was agreed that the appellant would go to the airtime market and source its own customers for the network services to be provided by the respondent. The respondent did not decide who those customers would be or which of them would receive network service on credit. More significantly, it was the appellant itself that carried the risk of default by its customers.

As was quite correctly conceded by counsel for the appellant, the respondent had no right, except where this was ceded to it by the appellant, in terms of clause 17.1, to sue the appellant's customers in order to enforce and collect any payments due and outstanding from them. There was simply no nexus or privity of contract between the respondent and the appellant's customers. If the appellant was merely an agent for the respondent, as its principal, those customers would have been directly liable to the respondent.

The apparent admission of agency emanating from paragraph 3 of the respondent's declaration is not, in my view, of any material significance.

The importance of pleadings should not be unduly magnified so long as there is no likelihood of prejudice being occasioned to any of the parties. While the parties should ordinarily be restricted to the averments in their pleadings, the courts should not enslave themselves to the pleadings in complete disregard of their duty to decide the real dispute between the parties so that justice is eventually attained.

See, in this context, the very pertinent observations of CHATIKOBO J in Musadzikwa v Minister of Home Affairs & Another 2000 (1) ZLR 405 (H)…, and the authorities there cited, which were subsequently applied by this Court, per ZIYAMBI JA in Moyo & Another v Intermarket Discount House Ltd 2008 (1) ZLR 268 (S)…,.

In short, pleadings cannot be construed so as to compromise the delivery of justice.

In the instant case, although paragraph 3 of the declaration is somewhat ineptly worded, it cannot be elevated above the entire declaration and the clear terms of the Agreement itself.

In any event, that paragraph makes explicit reference to the Agreement itself. More importantly, it is immediately followed by paragraph 4 which captures the essence of the appellant's obligation to pay in terms of the Agreement, i.e. to make payment for all charges within thirty days of receiving the respondent's tax invoice.

Having regard to the Agreement as a whole, I am unable to discern from its express provisions anything approximating the principal and agent relationship espoused by the appellant. It was clearly contemplated by the parties that the appellant would be engaged as an independent contractor to distribute to its own customers the network services provided by the respondent.

Appealed
HH92-07 : PHAROAH B. MUSKWE vs DOUGLAS NYAJINA and MUNHUWEI G.T. and MINISTER OF LOCAL GOVERNMENT, NATIONAL HOUSING AND URBAN DEVELOPMENT N.O.
Ruled By: KUDYA J

It came out in the minutes of 15 October 2003 that the Kawoko House supplied the “doo”. This was confirmed by Chikari. In those minutes, the averments by the Kawoko House that it designated Bere's burial spot and distributed his property were not challenged.

HH108-09 : CHAIR RORE vs THE MINISTER OF DEFENCE
Ruled By: CHITAKUNYE J

The plaintiff is a male adult resident at House Number 2365 St Marys Chitungwiza. The defendant is the Minister of Defence cited in his official capacity.

On 14 November 2003, the plaintiff filed a suit against the defendant for damages in the sum of Z$500,000. The plaintiff alleged, that, on 19 March 2003 he was asleep at his mother's house, House Number 2365 St Marys Chitungwiza when he was awakened by a knock on his door. When he went outside in response to the knock, he was assaulted by members of the Zimbabwe National Army during the course and scope of their employment with the defendant. He therefore claimed damages in the sum of Z$500,000 as a result of the injuries he sustained from the assault.

At trial, the plaintiff amended his claim. He now claimed a total of US$685 made up as follows:

1. US$311 being damages for shock, pain and suffering.

2. US$187 being damages for loss of amenities of life.

3. US$187 being damages for contumelia.

The defendant denied that any member of the Zimbabwe National Army assaulted the plaintiff on the date in question. The defendant contended, that, the Zimbabwe National Army (herein referred to as “ZNA”) members were only deployed in the plaintiff's area of residence on 20 March 2003 up to 26 March 2003.

The issues for determination were essentially two, namely:

1. Whether the plaintiff was assaulted by members of the Zimbabwe National Army (ZNA); and

2. Whether the plaintiff is entitled to the quantum of damages as per summons as amended.

The plaintiff gave evidence after which he called his wife, Rossy Domingo, as his only witness. The defendant's case was testified to by Emmanuel Matatu. At the time of the incident in question he was the Brigadier General Operations based at the ZNA Headquarters.

The plaintiff's evidence was to the effect, that, on 19 March 2003 he was asleep in the house when he was awakened by a knock on the door. Those knocking were also calling out his name. He got up and went outside. As he stood by the door he saw some soldiers. The soldiers were wearing an attire he described as their usual camouflage uniform. In further describing the attire, he said it was green; grey; cream in colour with red barets. He was able to see this because of lighting from electricity lights at the residence. He realized that these people were carrying guns he described as big guns – rifles.

When he went out of the house, the soldiers asked him whether he was Chair and he confirmed so. The same question was asked to another man who was not in uniform. He later identified that man as his friend Danmore. After confirming that he was Chair, one of the soldiers grabbed him and started assaulting him with a stick. They were also interrogating him in the process. When he got hold of the stick that was being used to assault him other soldiers joined in assaulting him. They were now assaulting him with clenched fists. At some stage, he felt as if a sjambock was also used and an iron bar. After a while, the soldiers took him and Danmore, who apparently was also in their captive, to some houses in the neighbourhood. The soldiers pointed a gun at him and ordered him to go and point out neighbours he attended meetings with.

When they got to Brenda's father's house they were ordered to lie down and were assaulted further at this house. Brenda's father was not there but his wife. From that house they went to another house. From this other house the soldiers were pointing rifles at Danmore and himself. They went to Florence's house. At this house, Danmore and himself were ordered to lie down facing down. The soldiers plucked tree branches from an avocado tree and started assaulting them with the branches. The assaults were concentrated at the back. They then went to Daniel's house which is near his mother's house where he had been sleeping. Daniel was called and assaulted. At Daniel's house, all the people that were found there were assaulted.

After that, the plaintiff, Danmore, and Florence were severely assaulted further. Towards dawn, they were ordered to stand up. It was then that he saw some motor vehicles by the gate. These were army motor vehicles as they were painted in the same colour as the uniforms of the soldiers. The motor vehicles were four in number and they looked like Pumas. He also realized that the number of soldiers had increased.

It was also his evidence that they were later ordered to board the ZNA trucks he described as similar to Pumas. In the truck, he observed benches on the sides and they sat in between the benches in the centre of the loading tray.

They were then driven and ordered off at some place along the Mbare-Chitungwiza road.

Upon disembarking, they ran away in different directions. When he returned to his residence, his wife applied hot compression on him. Later, but on that same day, 20 March 2003, he left for Shurungwi to reside with his brother.

After about three weeks he returned to St Marys. He thereafter proceeded to Harvest House in Harare where MDC top officials gave him a letter to take with him to a doctor. He confirmed that he received medication and Dr Coric examined him and compiled a medical affidavit.

The plaintiff's wife, Rossy Dimingo, gave evidence in support of the plaintiff's case. Her evidence, on the identity of the assailants, was to the effect that they were ZNA members. According to her evidence, after knocking on the door, the soldiers entered their bedroom and she saw that they were soldiers as they were clad in ZNA camouflage uniform. When they entered, she saw that they were armed with sjamboeks which they wanted to assault the plaintiff with.

She indicated that the soldiers then went out and started assaulting the plaintiff. The soldiers were clad in camouflage green; grey and brownish in colour uniform. They also were putting on red berets and black boots. After assaulting the plaintiff, the plaintiff and Danmore were taken away by the soldiers. At that time there were six soldiers.

It is pertinent to point out that the plaintiff's case had its own problems:

Whilst in his evidence in court the plaintiff and his wife referred to the guns the assailants had as rifles without any hesitation; in his summary of evidence, the plaintiff referred to the guns as service pistols.

In paragraph 3 of the summary of evidence, the plaintiff had this to say:

“Some uniformed members of the ZNA wielding service pistols forced entry into the plaintiff's bedroom.”

Nowhere, in either the declaration or the summary of evidence, did the plaintiff refer to rifles as having been used or even sighted on the night in question.

According to his declaration and summary of evidence, the assaults were perpetrated using baton sticks, fern belt, and boots; yet, in their evidence in court, both the plaintiff and his wife opted to include other weapons like sjamboek and rifles. The plaintiff went on to include avocado tree branches and an iron bar.

In paragraph 5 of the summary of evidence, the plaintiff indicated, that, after being assaulted with baton sticks, fenn belt, and boots all over the body, he was then dragged to Chitungiwza cemetery and was dumped there.

The evidence adduced did not support such an assertion at all.

The aspect of dragging was within the premises of the house he was found at, and it was as he was being assaulted. He was not dragged to the cemetery at all. He was taken to the Mbare-Chitungwiza road in a motor vehicle.

In paragraph 6 of the same summary of evidence, the plaintiff stated that:

“As a result of the assault, the plaintiff suffered excrutiating pain. He also sustained multiple bruises, cuts, and a broken right arm. He had to be detained in hospital for some time.”

Surprisingly, in his evidence in court, the plaintiff and his witness never alluded to being detained in hospital at all.

The sequence of events the two seemed agreed on was that on 20 March 2003 the plaintiff left for Shurugwi. In Shurungwi he never attended any medical institution or sought medical attention from anyone. According to the plaintiff, he spent about three weeks in Shurugwi. He then returned to St Marys. He later went to his party's Head Office at Harvest House in Harare where he saw some top officials. The top officials gave him a letter which he took to a doctor. It was then that he received some medical attention. He was thereafter referred to Dr Milos Coric an Orthopaedic Surgeon. As a result of that visit, Dr Coric compiled a medical affidavit. According to that affidavit, the examination was conducted on 14 April 2003 - a period of at least twenty five days from the date of the assault.

The plaintiff's wife seemed to confirm that the plaintiff did not seek immediate medical attention. The medical affidavit did not show the multiple bruises and cuts referred to in the summary of evidence. The affidavit simply confirms a fracture of the right ulna (forearm). The assertion that the plaintiff was detained in hospital is not supported by any evidence adduced in court.

As already alluded to, the medical affidavit, by Dr Coric, pertained to the examination done on 14 April 2003. It did not show that the plaintiff was ever detained in hospital.

Another point of concern on the medical affidavit is on the history.

In the copy of the medical affidavit dated 7 March 2007, which the plaintiff seemed to prefer, exhibit 1, under history it is stated that ”Zimbabwe National Army officers attacked this man on 19 March 2003.”

In the second copy of the same affidavit, dated 10 August 2004, exhibit 2, the same doctor endorsed the history as being that “this man was attacked by political opponents on 19 March 2003.”

The change in the identity of attackers from political opponents, as in the affidavit of 19 August 2004, to Zimbabwe National Army (ZNA) officers, as on the affidavit dated 7 March 2007, needed the deponent thereto to clarify.

Unfortunately, this was not done.

This is an irregularity that put into question the credibility of the affidavit in question. The plaintiff himself could not adequately explain that anomaly.

Whilst the plaintiff's counsel sought to downplay the anomaly, I am of the view, that, in as far as the history of a patient is concerned, it is expected to be from the patient or someone with such knowledge; such an anomaly casts a shadow of doubt on the plaintiff's credibility as well.

If, on 14 April 2003, he indicated his assailants as political opponents, why have that changed to Zimbabwe National Army (ZNA) officers in March 2007?

In any case, no reason was advanced for seeking a second medical affidavit.

If the assailants were Zimbabwe National Army (ZNA) officers, and the plaintiff knew that as of fact, that should have been reflected from the onset.

In as far as the only difference between the first medical affidavit and the second medical affidavit is on the history and date, one is tempted to believe that the second medical affidavit was obtained to tie up the medical affidavit to the plaintiff's claim.

It must be remembered that as was held in Matiza v Pswarayi 1999 (1) ZLR 140 (S)…, where there are mutually destructive stories the court must be satisfied that the version given by the party on whom the onus rests is true and the other false. Unless this can be found, the plaintiff cannot be said to have discharged the onus on him.

For a party's version to be found to be true, there should be some consistency in his version. Discrepancies may be overlooked where such discrepancies do not seriously affect the party's credibility in version of events.

Where, as in this case, the plaintiff's version, as contained in papers filed of record, is inconsistent with the plaintiff's evidence in court on material aspects relevant to the issue at hand it is difficult to find that the plaintiff has discharged the onus.

In Matiza v Pswarayi 1999 (1) ZLR 140 (S), the court was faced with a similar situation whereby the plaintiff on whom rested the onus of proof, gave three versions. The first version in the declaration, another version in a letter tendered, and a third version in his evidence in court. The trial court made a finding that he had not discharged the onus on him.

On appeal, the Supreme Court…, also concluded that:

“It cannot be said that the appellant's version is true and that the respondent's version is false. The appellant did not, therefore, prove his claim on a balance of probabilities.”

See also S v Nicolle 1991 (1) ZLR 211…,.

In casu, the factors that the plaintiff alluded to in identifying the assailants were quite common. He indeed referred to the attire as “the usual uniform”. Clearly, this would not have been his first time to see such a uniform with such colors. This camouflage uniform for the Zimbabwe National Army (ZNA) is common. Being able to describe the camouflage uniform that is commonly worn by ZNA members cannot, on its own, be an indication that he indeed saw the soldiers on the night in question. This has to be taken together with other factors. Even his wife's description was a common description of the usual uniform.

The two did refer to the soldiers putting on red barets as well.

As Emmanuel Matatu indicated, these are worn by members of the military police. He also indicated that members of the military police are not deployed on such operational duties.

It was thus pertinent to rebut that.

The discrepancies in the plaintiff's evidence do point to someone intent on either embellishing his evidence or simply not being candid with the court at all.

The medical affidavit confirms the desire to shift blame for what may have befallen the plaintiff on the night of 19 March 2003 from his political opponents to being members of the Zimbabwe National Army.

In the light of all these discrepancies, I am not satisfied that the plaintiff has proved, on a balance of probabilities, that his assailants were members of the Zimbabwe National Army.

Accordingly, the plaintiff's claim is hereby dismissed with costs.

HHH142-10 : ALBERT MATAPO and OTHERS vs THE STATE
Ruled By: MUSAKWA J

The applicants are seeking the dismissal of the charge for which they were committed for trial on 4 June 2008 on the basis that they were not brought to trial within six months of such committal.

The facts, as set out in counsel for the applicant's founding affidavit, are that the applicants were arrested on charges of contravening section 20 of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. They have been in custody since 30 May 2007. On 4 June 2008 they were served with indictment papers for trial before the High Court on 7 July 2008.

Subsequent to the committal for trial, the defence wrote to the prosecution on 5 June, 12 June, and 2 July 2008.

In the first two letters, they sought to be furnished with documentation and witnesses' statements. In the last letter, they were reminding the prosecution of the delay in being furnished with witnesses' statements and the difficulties defence counsel experienced in accessing the applicants in order to prepare their Defence Outline.

There were no replies to those letters.

On the date of trial, the matter could not be heard as the defence persisted with its complaints. The Defence Outline was later filed on 11 July 2008. On the other hand, the State was notified of the defence's intention to raise a constitutional challenge against the charge that was preferred against the applicants.

On 5 August 2008, the constitutional issue was argued before HLATSHWAYO J who reserved judgment. Judgment was handed down on 18 November 2008 whereupon the matter was referred to the Supreme Court. The Supreme Court handed down its decision, in which it dismissed the application, on 7 December 2009.

Following the Supreme Court decision, the applicants' counsel personally attended at the offices of the Attorney-General where he requested that the matter be set down during the First Term of 2010. He was advised that it was not possible to set the matter down during that term.

In March 2010, the defence was notified of the setting down of the matter for 21 June 2010.

During the course of the applicants' incarceration, several applications for bail have been made. There was also an attempt to re-indict the applicants at the Magistrates Court a week before 21 June 2010. This was successfully resisted by the defence.

In his heads of argument, counsel for the applicants submitted, that, in terms of section 66 of the Criminal Procedure and Evidence Act [Chapter 9:07] the Attorney General is dominus litis in respect of cases he decides to prosecute. In this respect, a matter may be set down for trial even a year in advance.

He further submitted, that, in terms of section 160(2) of the Criminal Procedure and Evidence Act, an accused who has been committed for trial but not tried within six months is entitled to have his case dismissed. He also submitted that the provision in question is meant to protect an accused person from lengthy incarceration before he is brought to trial. The period in question should be six calendar months calculated in terms of the Interpretation Act [Chapter 1:01].

Counsel for the applicants further submitted that the reckoning of time is between the time the accused persons were indicted and the trial date. That period should exclude the time the Constitutional application was awaiting determination by the Supreme Court. That is the only time the applicants were not available for trial as the trial could not be set down whilst the Constitutional application was still pending.

The State did not file an opposing affidavit.

I must also point out that despite the State having been directed to file a response to the application by 28 June 2010 what were only filed were the State's submissions on the day of hearing.

The court was made to understand that the officer who previously attended to this matter was ill-disposed. However, that does not absolve the State from its obligations.

At the end of the day, one cannot say the matter was opposed in the manner expected of a contested application because effectively all the averments that were made against the State in the applicants' founding affidavit went unanswered save for issues of law that were addressed in the submissions.

HH66-16 : MEIKLES LIMITED vs ZIMBABWE STOCK EXCHANGE and ALBAN CHIRUME
Ruled By: MAKONI J

The plaintiff (Meikles) issued summons against the two defendants, Zimbabwe Stock Exchange (ZSE) and Alban Chirume (Chirume) claiming a declaratur and damages in the sum of $50,000,000.

The background to the matter is that on 16 February 2013, the defendants suspended the trading of Meikles shares on the Zimbabwe Stock Exchange.

The suspension was done without affording Meikles an opportunity to make representations before such a serious adverse action was taken.

On 26 February, the defendants placed an advert in the Herald Newspaper cautioning the public to “exercise caution in dealing with the plaintiff's shares.”

The suspension was eventually lifted.

The defendants entered appearance to defend and filed an exception on behalf of both defendants and a special plea in bar in respect of Alban Chirume.

I must, at the onset, deal with the nature of pleadings before me.

The plaintiff's summons and declarations is ten pages and to it is attached two letters as annexures. The defendants' exception is three pages and the second defendant's plea in bar is one page.

Order 3 Rule 11 of the High Court Rules 1971 on this issue provides:

“Before issue, every summons shall contain -

(a)…,.

(b)…,.

(c) A true and concise statement of the nature, extent, and grounds of the cause of action and the relief or remedies sought in the action.”

The author, ISAACS. in Beck's Theory and Principles of Pleading in Civil Actions, 5ed…, had this to say:

“17. Before the court is asked to decide any question which is in controversy between litigants it is in all cases necessary (except as hereinafter indicated) that the matter to be submitted to it for decision shall be clearly ascertained.

The plaintiff shall state, in concise terms, what facts he intends to rely on and to prove and the defendant shall do the same so that on the day of trial neither party shall be taken by surprise and that it may not be necessary to have the case adjourned, thereby causing wasted expense both litigants from which the State and the lawyers alone derive profit.

It has therefore often been stated by our courts, and it cannot be too often stated, that, the object of requiring the parties to file pleadings is to enable each side to come to trial prepared to meet the case of the other.”

The authors HERBASTEIN and Van WINSEN in The Civil Practice of the High Courts of South Africa, 5th ed…, stated the following about pleadings:

“The requisites of good pleading are said to be that it should contain a statement of -

(1) Fact, not law;

(2) Material facts only;

(3) Facts not evidence; and

(4) Facts stated in a summary form and that 'material facts' are all facts which must be proved in order to establish the ground of claim or defence.”

MATHONSI J, in Fungai Nhau v Memory Kipe and Anor HH73-15, confronted with what he terms long winding special plea in bar/abatement, had this to say:

“By definition, pleadings must be concise and to the point.

They must identify the branch of the law under which the claim or defence to it is made and should not contain evidence.

Pleadings which are long-winding and argumentative should not find their way to these courts. It is a serious dereliction of duty for legal practitioners to continue, presenting such offensive pleadings when they have the aid of literature guiding the drafting of pleadings. I associate myself fully with the sentiments of MAKARAU JP (as she then was) in Chifamba v Mutasa & Ors HH16-08 (unreported) that:-

'Legal practitioners are urged to read on the law before putting pen to paper to draft pleadings in any matter is that what they plead is what the law requires their clients to prove to sustain the remedy they seek…,.. Litigation in the High Court is serious business and the standard of pleadings in the court must reflect such.'”

I associate myself fully with the above remarks.

Maybe if the legal practitioners in this matter had taken heed of the advice, the present application might not have been made.

HH593-15 : JESSIE CHINZOU vs OLIVER MASOMERA [as Executor Dative in the Estate late Fred Garikayi Muchenje] and THE MASTER OF THE HIGH COURT N.O. and CITY OF HARARE N.O.
Ruled By: CHITAKUNYE J

In this application, the applicant seeks an order, inter alia, that:-

1. The applicant be and is hereby declared the sole beneficiary for House No.4040 Glen Norah A, Harare, registered in the name of the late Fred Garikayi Muchenje, and, consequently the 1st Respondent be and is hereby directed to reflect that position in the distribution account for Estate Late Fred Garikayi Muchenje, DR565/12.

2. The third respondent be and is hereby ordered to effect cession of ownership of House No.4040 Glen Norah A, Harare from the name of the late Fred Garikayi Muchenje into the name of the applicant upon receipt of a distribution account prepared by the first respondent and approved by the second respondent....,.

The applicant was married to the late Fred Garikayi Muchenje in 1965 in terms of the Marriages Act (now Chapter 5:11). In 1972, the late Fred Garikayi Muchenje (hereinafter referred to as the late Fred) was offered tenancy of Stand 4040 Glen Norah A, Harare. In order to qualify for that tenancy he had tendered his marriage certificate as was required then. That house was eventually offered for purchase to the late Fred Garikayi Muchenje as a sitting tenant in 1981.

On 22 March 2012 the late Fred Garikayi Muchenje passed on.

At the time of his death, the late Fred Garikayi Muchenje and the applicant were no longer staying together as husband and wife. The applicant was not clear as to when they separated. She only stated, that, during his lifetime, her husband consummated an adulterous affair with another woman and he subsequently chased the applicant out of the matrimonial home.

Nowhere in her affidavits did she disclose when she was chased away.

It was, however, agreed, that, at the time of his death, the late Fred Garikayi Muchenje was staying with this other woman, Stembile Muchenje, at the property in question.

It was only in the opposing affidavit that the first respondent revealed that the two had lived apart for 37 years prior to the late Fred Garikayi Muchenje's death.

The applicant did not dispute that. It is thus taken as accepted.

View Appeal
HH351-20 : THE SHERIFF OF ZIMBABWE and GURTA AG vs ANDERSON MANJA and 98 OTHERS
Ruled By: CHIKOWERO J

I refer to two documents on litigation before I determine this matter.The first is a “handout” prepared for the 1995 University of Zimbabwe Faculty of Law final year students by Ms Sheilla Jarvis, the then Practical Skills Law Lecturer.In those days, lecturers often handed out notes in written form. The ...

I refer to two documents on litigation before I determine this matter.

The first is a “handout” prepared for the 1995 University of Zimbabwe Faculty of Law final year students by Ms Sheilla Jarvis, the then Practical Skills Law Lecturer.

In those days, lecturers often handed out notes in written form. The document in question runs up to 11 pages, but I confine myself to pages 2-3, which read as follows:

“DRAFTING COURT DOCUMENTS

Writing in all contentious matters, claims, or offers in letters, pleadings, affidavits, or heads of argument, needs the same approach, although the final form differs according to the role of the document.

1. Establish as many facts as you can, using your interview technique and examining all available documents.

2. Decide what is the applicable law or practice, looking at all possible causes of action or defence you can think of…,; check a textbook and any cases on the subject to ensure you do know all the law.

3. Decide what are the essential elements of each; on what basis will the right be recognized or discretion be exercised? This tells you what has to be alleged (underlining in original).

4. Decide whether you can allege the facts to meet all those elements. Get more details from client if necessary, and consider whether you can prove each essential fact by admissible evidence. Anticipate problems. Always look for any “essence” that could decide the case and emphasize it if you find one. (underlined words are in bold in original)

5. Reconsider whether there are any possible alternative causes of action eg to contract: unjust enrichment/delictual negligence; to agency ostensible authority; to share of house under Mat causes: joint commercial venture or universal partnership. Because of trial delays and prescription you probably won't be able to start a fresh action if the principal cause of action fails. Repeat steps 2-4 for these alternatives.

6. Check relevant rules for format.

Distinguish between any Forms which should be followed closely, and precedents which are simply available to help you.

7. Get on with writing:

(i) Make sure you cover each essential point.

(ii) Ask for everything needed to do what the client wants done, a.s.a.p.

(iii) Go back and make sure you've justified everything you've asked for (underlining is mine)

(iv) Do it in a logical order, generally chronological but putting all the elements of each separate cause of action together.

Don't think this is too difficult: If you follow this approach, drafting can be simple.

HIGH COURT PLEADINGS AND AFFIDAVITS

Pleadings simply state the basis of the claims and defences to define the dispute. They will be followed later at the trial by the evidence.

The papers in applications do not just define the issues for a trial; they must also contain sufficient evidence to convince the court that the party should get whatever he is asking for. (underlining mine for emphasis).

The difference between what is put into an affidavit and what is put into a pleading follows naturally from their different purpose. (underlining not mine).

Both pleadings and applications use the ancient method of alternative allegations to ascertain precisely the matters on which the parties differ and the points on which they agree.

Be clear, concise, accurate, complete (my underlining)”.

Mr George Charles Chikumbirike was a reputable Zimbabwean legal practitioner, notary public and conveyancer.

He is now late.

On 25 May 1989, he presented a 7 page paper at the Law Society of Zimbabwe Winter Law School at a venue not disclosed on the face of the paper itself. I will liberally quote from the document, which is headed “THE TECHNIQUE OF LITIGATION”:

“…,. The young lawyer these days qualifies after leaving University with an LLB degree (these days labelled honours as if there is some magic in that caption). He is no longer required to serve his articles of clerkship like some of the grey hairs in this room were wont to be.

THIS IS WHERE THE PROBLEM STARTS.

He is then launched upon the world, theoretically qualified to appear in any court and tribunal in the land, perhaps to plead for the life of an accused person whose funds do not cover such trifles as his defence on a murder charge. This is serious business.

There is obviously need for the young practitioner to study the art of advocacy. But how does he learn. Bitter experience is, of course, one of the best teachers, but, bitter experience is apt to leave in its wake a trail of destruction or a clutch of ghosts that ever and anon will return to haunt their creator.

But how can one avoid this? How can one learn the 'how' of practice without having to destroy oneself at one's inception? There are books of course, but….,. Rather, I desire to collate lessons which can be learned from the law reports and practical experience of about 9 years in the courts, apply those lessons in particular to local circumstances and present day practice in Zimbabwe.

…,.

…,.

What does one require to be a good lawyer – in this instance, a good court lawyer. Intellect, voice, personality?

Yes, it is necessary to possess these qualities. But, are they enough? Is any one of them more important than the others?

The answer is: of course not.

Intellect, voice, personality are all weapons in one's armoury, but to none can be ascribed any degree of dominance or even of importance. There is, however, one quality that can overcome any physical failing, and, fortunately, it is a quality that is yours for the taking.

It is the quality of being or becoming conscientious or diligent.

A legal practitioner should strive to be known for this quality to his colleagues and to the Bench. Judges, and Magistrates, in my view, and I have seen this happen, listen with more tolerance and more receptively to an argument which they know has conscientious effort as its foundation. You should therefore display this characteristic, it will help you gain the respect of your clients, and, from this respect, will acquire the reputation upon which a successful legal practice is built…,.

…,.

…,.

Practical suggestions

Your greatest cases will be those in which you call no witnesses (or only formal witnesses). Your finest cross-examination will be where you ask fewer questions, your soundest arguments will be where the facts speak for themselves. It is where these Utopian conditions do not apply that court craft and trial technique are important whether the tribunal be the Community Court, Magistrates Court, or High Court.

From the moment a client walks into your office, gives you a story, you are engaged in a tug of war behind two forces:

(i) Firstly, the facts; and

(ii) Secondly, the law.

Which one do you concentrate on?

In my view, you concentrate on the facts, because, if you do, the law can bend to the facts. Simple isn't it?

If you are to fight cases, as you will be doing, look for the facts; if you are compelled to argue a case, you may look for the law.

The first rule of practice, as Professor Christie would sometimes say…, also the paramount rule for the experienced practitioner, is to look for one issue of law or fact which determines the matter.

In every case, in every problem, in every point, there will be found an essence, indeed a quint-essence, hidden perhaps, dissipated perhaps, but nevertheless there for seeking. The successful practitioner is he who can recognise this essence, can pursue it, and can ultimately distill and capture it.

It is unfortunate that with a less discerning mind, you will create numerous phantom problems and encounter false scents, all too alluring that they may be taken for reality. There are, however, no set rules to be applied to these tasks; the insight required cannot be taught, it can only be gained by experience and by patience.

The other word of advice I would like to share with you is this:

NEVER MAKE A MISTAKE.

Accountants may make mistakes, our bookkeepers always do – and add up their figures again. Doctors may make mistakes and either rely on nature or call in a specialist. The mistakes of these professional men are their own and normally reversible. But, you, as a lawyer, must know that you are faced with an adversary who will seize on any mistake and may not allow it to be reversed. I do not refer here to technical mistakes, but to such tactical blunders as calling the wrong witness or not calling the right witness.

It is well known that no one is perfect; what is not so well known is that the lawyer cannot afford to be less than perfect. Leave out an allegation in a pleading, or a statement in an affidavit, and that roaring noise about your ears will be the roof falling in.

In this regard, it is necessary to have as a principle, as a motto, this: You should approach every case as though it is your first and if not handled properly, it may be your last…,.

…,.

…,.

…,.

Another issue which I need to venture into is research; research on law…,.

…,. However, in your desire to learn the techniques of litigation, be not in haste. Legal practice requires not only perseverance, conscientiousness - but patience as well…,. The practice of law requires the consideration of a problem from many angles, from every angle, and, indeed, from angles that Euclid never imagined…,.”

HH236-15 : KETTEX HOLDINGS (PVT) LTD vs KENCOR MANAGEMENT SERVICES (PVT) LTD
Ruled By: MATHONSI J

In HC3216/13 the respondent sued the applicant for payment of $33,856=15 as damages arising out of its breach of a contract allegedly entered into between the parties about September 2010 together with interest and costs of suit.

In its declaration, the respondent averred that:

“1. Plaintiff is KENCOR MANAGEMENT SERVICES (PRIVATE) LIMITED a company incorporated with limited liability according to the laws of Zimbabwe, carrying on business under the style 'NATIONAL TESTED SEEDS' in the sale and supply of horticultural and crop seed of 750 Lorrain Drive, Bluff Hill Harare.

2. Defendant is KETTEX HOLDINGS (PRIVATE) LIMITED, a company similarly incorporated, having its registered office at Arlington Estate, Harare Airport, Harare.

3. In terms of an agreement entered into between the parties during or about September 2010, Plaintiff made available quantities of seed to Defendant on a consignment basis.

4. The material obligations of Defendant under such agreement were the following:

4.1 To maintain and store the seed at its centralised storage facility and all its distribution outlets in a safe, orderly, and clean manner, and in such a way to prevent contamination, inter alia, by water, rodents, and other pests;

4.2 To undertake the sale and delivery of the seed in its branches and distributorship countrywide to the best of its ability, at prices recommended by Plaintiff;

4.3 To make available to plaintiff reconciliations for the consignment stock on a monthly basis;

4.4 To effect payment in respect of stock sold within seven days of reconciliations;

4.5 To retain and preserve unsold stock at its premises;

4.6 To return unsold stock to Plaintiff in an orderly, clean, uncontaminated, and undamaged state;

4.7 To pay for any missing or damaged stock on the basis that it was considered sold.

5. In breach of the said agreement, defendant failed to take proper and reasonable steps to ensure;

5.1 The safe, orderly, and clean storage of the stock and to prevent its contamination;

5.2 The return of unsold stock in an undamaged state to plaintiff.

6. In consequence thereof, defendant became liable to pay plaintiff damages in the sum of $33,856=15 in respect of the damaged and/or unreturned stock.

7. Despite demand, defendant neglects or refuses to pay this amount.”

The respondent then prayed for judgment aforesaid.

The applicant must have entered appearance to defend (it is not attached to the papers) and promptly filed a plea which is not only legendary by its brevity for one responding to the above clear and incisive averments; it is also a bare denial of a sort. It pleaded:

“Defendant pleads to plaintiff's claim as follows:

1. AD PARA 1-7

No issues arise

2. AD PARA 8

The defendant denies entering into any form of agreement with the plaintiff. Plaintiff is thus put to strict proof thereof.”

That is all the applicant had to say in answer to the averments made by the respondent.

Let me mention here that;

(i) Firstly, there is no paragraph 8 in the respondent's declaration which the applicant was pleading to and therefore in paragraph 2 of the plea it was denying nothing at all.

(ii) Secondly, counsel for the applicant did not hesitate to concede that paragraph 1 of that plea was an admission, and, therefore, the fact that the plea was a confessionary pleading is not in dispute….,.

Section 36 of the Civil Evidence Act [Chapter 8:01] provides that:

“(1) An admission as to any fact in issue in civil proceedings made by or on behalf of a party to the proceedings shall be admissible in evidence as proof of that fact, whether the admission was made orally or in writing or otherwise.

(2)…,.

(3) It shall not be necessary for any party to civil proceedings to disprove any fact admitted on the record of proceedings; Provided that this subsection shall not prevent any such admission being withdrawn with leave of the court…,.”

If the original plea were to remain as it is it would be a confessionary pleading and therefore taken for granted. It would be unnecessary to prove those facts that have been admitted: Adler v Elliot 1988 (2) ZLR 283 (S)…,.; Copper Trading Co (Pvt) Ltd v City of Bulawayo 1992 (1) ZLR 134 (S)…,.; Wamambo v Municipality of Chegutu 2012 (1) ZLR 452 (H)…,.; DD Transport (Pvt) Ltd v Abbot 1988 (2) ZLR 92 (S)…,.

HH521-18 : DEPUTY SHERIFF MARONDERA vs ESTHER HOMBARUME and VIOLET MUNJARANJI and EPHISON NDAHWI and SHAKI MUSEVE and NOMUHLE BANGANI and COOPER SMIT and TIANZE TOBACCO PL and LAWRENCE KATSIRU
Ruled By: CHITAPI J

In this application, the applicant attached in execution certain movable goods listed in annexure B to the application. The goods were attached for execution to satisfy a judgment of this court in the case Tian Ze Tobacco Company (Pvt) Ltd v Lawrence Katsiru Case No. HC2100/14.

The two parties are the judgment creditor and debtor respectively.

In terms thereof, the judgment creditor caused the issue of a writ of execution to recover an amount in excess of $224,003=16 and execution costs. The applicant, in executing on the writ, proceeded to the judgment debtor's farm called Cambridge Farm in Marondera and attached a number of vehicles and machinery on 24 June 2014.

Following the attachment, the applicant received claims to the property by the claimants.

This development culminated in the applicant filing this interpleader application on 4 August 2014. The applicant wishes that the court determines the validity of the claims made; his interest being the recovery of his costs.

The applicant's legal practitioner had no submissions other than to abide by his papers whilst emphasizing that he does not collude with any of the claimants.

Inter pleader proceedings are very common in that following an attachment of property to satisfy a judgment of the court, the Sheriff, or his deputy, receives claims from third parties alleging ownership of attached property and seeking its removal from attachment arguing that they are not party to the proceedings.

In the fluid, lucid and didactic judgment in The Sheriff of the High Court v Munyaradzi Tutini Majoni & 3 Ors HH689-15 MAFUSIRE J explained what inter-pleader proceedings entail, the incidence of proof, and the court's approach.

I embrace what the learned judge indicated therein and note in particular that the claimant bears the onus to prove ownership of the goods which the claimant claims.

I would add that the onus is not limited to proving ownership as such. The position should be stated as that the claimant bears the onus to prove, on a balance of probabilities, that, the attached goods whose removal from execution is sought are not legally susceptible to execution. This could be by reason of ownership by the claimant or such other good and legally recognizable reason why the attached goods should not be executed upon.

In casu, I will briefly detail the individual claimant's claims and the facts advanced to support the exclusion and release from attachment of property as claimed:...,.

Fourth claimant - Shaki Museve

In the case of the fourth claimant, he claims to be owner of a case tractor which was attached. He states that the judgment debtor is a neighbour with whom they assist each other with farming equipment. In the same affidavit he refers to a motor vehicle described in “Annexure D” described as the official registration book of the same. The said annexure D was however not attached. The affidavit is disjointed in content. It refers to a tractor, then to tractors and a motor vehicle. There is no interactive drafting of his depositions. One cannot tell exactly what he claims should not be executed upon nor the basis thereof.

In his submissions, the legal practitioner for the third claimant said that paragraph 3 of the claimant's affidavit was done in error. The paragraph refers to a motor vehicle.

It is difficult to understand how a deposition made in an affidavit can be said to have been done in error.

HH586-14 : WELLINGTON TAKAWIRA vs CZI INCORPORATED (PVT) LTD
Ruled By: UCHENA J

The applicant was the respondent's employee. He resigned from employment by letter dated 1 October 2013. The respondent accepted his resignation by letter dated 6 January 2014. Through the same letter, the respondent acknowledged that it owed the applicant US$32,542=07 for salaries, pension refunds, cash in lieu of leave, and ...

1. 1st instalment by 7th February 2014 - $10,000-00

2. 2nd instalment by 28 February 2014 - $ 3,757-00

3. 3rd instalment by 31st March 2014 - $ 3,757-00

4. 4th instalment by 30th April 2014 - $ 3,757-00

5. 5th instalment by 31st May 2014 - $ 3,757-00

6. 6th instalment by 30th June 2014 - $ 3,757-00

7. 7th instalment by 31st July 2014 - $ 3,757-00

In addition, the respondent asked the applicant to handover the company vehicle by the 31st December 2013 which was his last working day. The respondent did not pay the applicant as promised. The applicant did not handover the company motor vehicle as directed.

The applicant issued summons claiming the sum of US$32,542=07 from the respondent. The respondent entered appearance to defend. The applicant applied for summary judgment.

The respondent opposed the applicant's application and counter applied for an order that the applicant handover the company vehicle, an Isuzu KB registration number ABD 4174, to the respondent.

At the hearing of the applicant's application for summary judgement and the respondent's counter application, the respondent in the application for summary judgment raised a point in limine challenging the jurisdiction of this court on the basis of section 89(6) as read with section (1) of the Labour Act [Chapter 28.01] which provides as follows;

“(1) The Labour Court shall exercise the following functions —

(a) Hearing and determining applications and appeals in terms of this Act or any other enactment; and

(b) Hearing and determining matters referred to it by the Minister in terms of this Act; and

(c) Referring a dispute to a labour officer, designated agent or a person appointed by the Labour Court to conciliate the dispute if the Labour Court considers it expedient to do so;

(d) Appointing an arbitrator from the panel of arbitrators referred to in subsection (6) of section ninety-eight to hear and determine an application;

(d1) Exercise the same powers of review as would be exercisable by the High Court in respect of labour matters;

(e) Doing such other things as may be assigned to it in terms of this Act or any other enactment.

(6) No court, other than the Labour Court, shall have jurisdiction in the first instance to hear and determine any application, appeal, or matter referred to in subsection (1).”

The applicant submitted that this court has jurisdiction because there is no dispute the Labour Court can hear and determine as the respondent admits and acknowledged its indebtedness to the applicant.

Commending on the respondent's counter application, counsel for the applicant said the applicant is holding the respondent's motor vehicle as a lien for the acknowledged debt.

He is agreeable to this court ordering the respondent to pay the sum owed and his client being ordered to handover the motor vehicle to the respondent. It is therefore clear that both parties have no defence to the other party's claim against them.

There is therefore no dispute to be determined by the Labour Court.

The Labour Court's exclusive jurisdiction does not apply where a party has admitted its indebtedness arising from a labour relationship which amicably ended with the rights of both parties clearly spelt out and admitted by the other.

Section 89(6) of the Labour Act applies where the Labour Court has “to hear and determine any application, appeal, or matter referred to in subsection 1.”

In this case, both parties admit their liability to the other leaving no dispute to be determined by the Labour Court.

Where a party acknowledges his indebtedness to the other, this court has jurisdiction to determine whether or not to grant summary judgment.

In the case of Madinda Ndhlovu v Highlanders Football Club HB95-11 CHEDA J, dealing with a similar situation, said;

“It is my respectful view, that, while it was the intention of the legislature to oust the jurisdiction of the courts from adjudicating on matters involving labour disputes, an acknowledgment of debt, even if it arises from a contract of labour, is not what the legislature intended to mean. An acknowledgment of debt is nothing but a liquid document which is covered by the rules of this court, for which an application for summary judgment can be applied for.”

The respondent's point in limine is therefore dismissed.

The applicant's application for summary judgement should be granted as the amount claimed is acknowledged in the letter in which the respondent accepted the applicant's resignation.

The debt is further admitted in the opposing affidavit of Nozipho Guzha…, where, in paragraphs 12, 13, and 14, she clearly admits that the respondent owes the applicant the sum of US$32,542=07, but has delayed the promised payments due to financial problems the respondent is facing.

The counter-application should also be granted because the applicant admits that the motor vehicle belongs to the respondent, but was holding it as a lien.

On the granting of the court order, the need for a lien falls away as the applicant can execute the court order to be granted.

Counsel for the applicant submitted that his client is not opposed to the order sought in the respondent's counter claim being granted.

In the result, the applicant's application for summary judgment and the respondent's counter application for the handing over of its motor vehicle, are granted in terms of their respective draft orders as amended.

HH688-14 : GERALD CHIWESHE and SAMEER KHAN and BRUCE THOMAS vs AIR ZIMBABWE HOLDINGS (PVT) LTD
Ruled By: MTSHIYA J

In this consolidated action, each plaintiff claims payment of salary arrears and allowances from the defendant.On 22 January 2013, KUDYA J, who dealt with the pre-trial conference relating to the parties herein issued the following order:“IT ORDERED THAT:1. The parties have failed to reach a settlement.2. The present matter, HC315/12, ...

HH740-15 : COSMAS ZAVAZAVA and VONGAI ZAVAZAVA vs JONAH TENDERE and TENDAI TENDERE and THERMO-DYNAMICS REAL ESTATE and REGISTRAR OF DEEDS N.O.
Ruled By: MATHONSI J

It would appear that conveyancing laws of this country are not foolproof because fraudsters continue to exploit the weaknesses in the procedure for registration of transfers to defraud innocent property seekers.

The leakages in the system have meant that cases of unlawful transfers of immovable property continue to reach the courts with alarming frequency.

For how long will these fraudsters, who strut among communities, continue to hold sway, to make a mockery of transfer rules to milk unsuspecting home seekers dry in order to make a dishonest living?

These shameless individuals bring the whole process of private ownership of immovable property and registration of title to disrepute. There is a pressing need for reforms to be introduced in conveyancing rules, in order, not only to modernise the system, but also to render the system foolproof and hopefully protect property owners.

Counsel for the applicant has drawn my attention to the remarks of HOLMES JA, which are apposite, in the case of Oakland Nominees Ltd v Gelria Mining & Investment Co Ltd 1976 (1) SA 441 (A) 452A where the learned judge of appeal made emphasis that our law jealously protects the right of ownership and the correlative right of the owner over his property. He further stated:

“The legal principle enunciated above is solidly noble because since time immemorial, at every stage of human evolution, societies have suffered the inevitable unfortunate phenomenon of having in their midst, an array of thieves, fraudsters, robbers, cut-throats, the throwbacks in evolution etc with no qualms whatsoever in employing force or chicanery to dispossess fellow humans of ownership of their property.

If the law did not jealously guard and protect the right of ownership and the correlative right of the ownership to his/ her property, then ownership would be meaningless and the jungle law would prevail to the detriment of legality and good order.”

Just how does a fraudster and a thief, coveting another person's property, succeed to advertise the property, attract a buyer, sign a sale agreement, and engage a conveyancer to successfully transfer that property from the true owner to the buyer before gleefully skipping away with the proceeds?

Cosmas Luckyson Zavazava is employed by an international organisation which posts him to various parts of the world and is currently stationed in Geneva, Switzerland. He and his wife, Vongai, identified an under-developed piece of land, Stand 816 Ruwa Township of Stand 659 Ruwa Township (the property) and purchased it on 29 November 1996.

They took transfer on 20 March 1997 and held title by Deed of Transfer number 997/1997.

They did not commence developing the property owing to their sojourn in foreign territories in pursuit of the husband's employment. When they tried to do so, in 2013, they discovered, to their amazement, that, Jonah Tendere and Tendai Idzai Anania Tendere, husband and wife, who are the first and second respondents in this matter, were busy trying to develop the property.

It turns out that, unbeknown to the Zavazava family, who are the applicants in this matter, a stranger, by the name Wilson Madziva, who is now deceased and was running an estate agency known as Thermo-Dynamics Real Estate (what a name), which is the third respondent in this matter, had advertised the property through the agency of another estate agent, Elite Real Estate (Pvt) Ltd, attracting the interest of the first and second respondents.

A sale agreement was entered into between them and the third respondent and signed on 17 July 2009 in terms of which the property was sold for $8,500. It was subsequently transferred from the third respondent to the first and second respondents with the active involvement of the late Wilson Madziva, by Deed of Transfer Number 204/2011.

The third respondent had itself taken transfer of the property by Deed of Transfer Number 1680/2009.

The conveyance of the property, from the applicants to the third respondent, was handled by one Walter Bherebhende, a conveyancer practising at Mavhunga & Sigauke Legal Practitioners of Harare.

The applicants say they never sold their property and never instructed Walter Bherebhende to transfer it to the third respondent. Only Walter Bherendere knows what transpired and he has deposed to an affidavit which has not been challenged stating:

“4. My knowledge of this matter is as follows:

4.1. In March 2009, I was practising under Messrs Mavhunga & Sigauke Legal Practitioners when I was approached by a Mr Wilson Madziva who was a client of our law firm and also the proprietor of an estate agent known as Thermo Dynamics Real Estate which is the third respondent herein.

4.2. Mr Madziva instructed me to process the transfer of Stand 816 Ruwa Township of Stand 659 Ruwa Township which was registered under the applicant's names under Deed of Transfer No.997/1997 into the name of the third respondent.

4.3. I confirm that I was shown an agreement of sale which purported to have been signed by all the parties.

4.4. I then proceeded to prepare the necessary powers of attorney to pass transfer and I requested that all of the parties appear at our offices to attend to the signing of the declarations and powers of attorney. I also requested the parties to bring their original identity documents and the original title deed.

4.5. Wilson Madziva appeared on behalf of the third respondent and persons purporting to be the applicants also appeared on behalf of them with the original title deed and identity documents in the applicants names.

4.6. I confirm that I had no reason to suspect that the persons purporting to be the applicants were in actual fact not the applicants.

4.7. Accordingly, the transaction proceeded as normal, and, after all normal channels and procedures were followed, the property only transferred into the name of the third respondent under Deed of Transfer No.1680/2009.

4.8. I was surprised, when, five years later, I was approached by the police and advised that the persons who had appeared before me were in actual fact not the applicants. Unfortunately, I had not made copies of the identity documents and I tried to access them from ZIMRA; however, ZIMRA insisted that it would only release the same upon a court order compelling them to do the same.

4.9. I can however confirm that the parties who appeared before me are not the applicants in this present matter.

4.10. Mr Wilson Madziva is however now deceased therefore he is also not in a position to clarify the issues.

5. In the circumstances, in light of the fact that initial transfer was done through a misrepresentation, I would aver that the applicants are entitled to the relief they seek in respect of cancellation of the title deeds.”…,.

Therein lies the problem.

The conveyancing instructions given to the conveyancer came from the purported purchaser of the property, Wilson Madziva, representing the third respondent, and not from the purported sellers and owners of the property - the applicants.

This did not stop the conveyancer, purporting to act on behalf of the sellers, from proceeding with such instructions.

He says he only requested that all the parties should appear before him, which is as difficult to believe as it is very unlikely in the circumstances of a busy law practice - assuming his was also busy.

A conveyancer is the agent of the seller and undertakes transfer at the instance of the seller and not the purchaser.

As long as legal practitioners in this jurisdiction do not grasp that basic fact, we will continue to have fraudulent transfers of property as occurred in this matter.

I must add, that, as long as law firms continue to relegate conveyancing practice to clerks and paralegals the rot that is presently manifesting itself will perpetuate.

For one thing, these conveyancing clerks and lodging clerks do not appreciate the legal implications of the procedure provided for transfer, and, as far as they are concerned, as long as the necessary documents have been signed, no matter by who, and the conveyancing fees paid, the job has been done.

Invariably, the conveyancer is merely presented with processed documents and happily appends his signature on the top of the Deed and appropriates the fee before hastily leaving the office to play golf.

No effort is made to verify the documentation and to ensure compliance with the rules.

In short, the rules are adulterated for expediency and the most important element in legal practice, conveyancing, is reduced to a mockery.

Once signed, the deeds are taken to the Deeds Registry by a lodging clerk for lodgement, and, although the contents announce to the world that the conveyancer appeared before the Registrar of Deeds to convey the transfer; in practice, the conveyancer never does that.

It is for that reason that we are now experiencing an influx in cases of fraudulent transfers.

What we have here therefore is an unfortunate situation indeed borne out of laxity and inattention.

The conveyancer was remiss in a big way and only succeeded in transferring property belonging to the applicants unlawfully. A fraudster took that transfer and later sold the same property to the first and second respondents who are also victims of a fraud.

The question which arises therefore is: what was the legal effect of all that activity and where does it leave the parties?

The papers before me clearly demonstrate that the applicants did not sell their property to the third respondent. They did not transfer it either. That was done by someone else - without their knowledge or consent.

The position of the law, in that regard, is aptly stated by the leaned author R.H. CHRISTIE, Business Law in Zimbabwe, 2nd Ed, Juta & Co Ltd…,:

“An owner whose property has been sold and delivered without his consent remains the owner, as the seller cannot pass ownership that was not his. The true owner can bring a vindicatory action to recover his property from anyone, including a bona fide buyer, in whose hands he finds it. The general rule that the seller can give no better title than he has operates in favour of the true owner, unless the purchaser proves that the true owner is estopped from denying the seller's authority to sell.”

McNALLY JA developed that point further in Mashave v Standard Bank of South Africa Ltd 1998 (1) ZLR 436 (S)…, when he pronounced:

“The Roman-Dutch law protects the right of an owner to vindicate his property, and, as a matter of policy, favours him against an innocent purchaser. See for instance Chetty v Naidoo 1974 (3) SA 13 (A) at 20 A-C. The innocent purchaser's only defence is estoppel.”

The nemo dat quod non habet and nemo plus iuris ad alium transferre potest quam ipse habit; that is, no one can give what he does not have and noone can transfer any right greater than he himself possesses are firmly rooted in our legal science.

Therefore, where a person who is not the owner, and possesses no mandate to do so, purports to transfer property, such transfer is a nullity; see SILBERBERG and SCHOEMAN, The Law of Property, 2nd ed…,.

The applicants therefore have a vindicatory right against whomsoever is in possession of their property - even an innocent purchaser.

The actio rei vindicatio is available to the owner whose property is in the possession of another without his authority or consent. Its concept is that an owner cannot be deprived of his property against his will. Such owner is entitled to recover the property from any person who is in possession of it without his consent.

All the owner is required to prove is that he is the owner and that the property is in the possession of another at the commencement of the action. Proof of ownership shifts the onus to the possessor to prove a right of retention; see Jolly v A Shannon & Anor 1998 (2) ZLR 78 (H)…,; Chetty v Naidoo 1974 (3) SA 13 (A)…,; Stanbic Finance Zimbabwe Ltd v Chivhungwa 1999 (1) ZLR 262 (H).

It is regrettable that the possessors of the applicants' property are an innocent couple which was trying to find a home for themselves and have lost their money to a trickster who has already met his maker.

There is however a glimmer of hope for them because the third respondent, the vehicle through which Wilson Madziva operated, is said to be still operational presenting them with a chance to recover damages from it.

For our purposes, to the extent that the applicants did not alienate their property, the attempt to do so by someone else was a nullity. Therefore, the purported transfer from the applicants to the third respondent, by Deed of Transfer No.1680/2009 was invalid as a non-owner could not transfer what he or she did not own. It follows, therefore, that, the purported transfer from the third respondent to the current holders was also a monumental nullity.

At all times, the applicants legally retained ownership.

As a necessary consequence, the provisions of section 8(2) of the Deeds Registries Act [Chapter 20:05] apply. It provides:

“Upon the cancellation of any deed pursuant of an order of court -

(a) The deed under which the land or any real right in land was held immediately prior to the registration of the deed which is cancelled shall be revived to the extent of such cancellation unless a court orders otherwise; and

(b) The registrar shall make the appropriate endorsement on the relevant deeds and entries in the registers.”

In the result, it is ordered that:

1. The 4th respondent is hereby directed to cancel Deed of Transfer No.1680/2009 and Deed of Transfer No.204/2011 in favour of the 3rd respondent and the 1st and 2nd respondents respectively in respect of the immovable property described as certain piece of land in the district of Goromonzi called Stand 816 Ruwa Township of Stand 659 Ruwa Township and to make any appropriate endorsements on the said Deeds of Transfer and entries in the registers to reflect the said cancellations.

2. Deed of Transfer No.997/1997 is hereby declared the valid deed in respect of the immovable property described as certain piece of land situate in the district of Goromonzi called Stand 816 Ruwa Township of Stand 659 Ruwa Township.

3. The 1st and 2nd respondents and all those occupying through them the immovable property described as certain piece of land situate in the district of Goromonzi called Stand 816 Ruwa Township of Stand 659 Ruwa Township, shall give vacant possession of the said property to the applicants within fifteen (15) days of this order failing which the Sheriff of the High Court or his lawful deputy is hereby authorised and directed to evict them and give vacant possession to the applicants.

4. The 1st, 2nd and 3rd respondents shall bear the costs of suit jointly and severally the one paying the others to be absolved.

SC11-21 : TENDAI BONDE vs NATIONAL FOODS LTD and LOVEJOY NYANDORO [as Chairman of Appeals Committee] and CHIPO NHETA [as Chairman of Works Council]
Ruled By: GUVAVA JA

In Mudyavanhu v Saruchera Others SC75-17 the Court stated the following:“Rule 29(1)(e) is specific in its language and requires that the relief sought be exact and competent so that the court is left in no doubt as to what exactly the appellant seeks.”See also Sambaza v AL Shams ...

SC04-18 : ZIMBABWE REVENUE AUTHORITY vs CHESTER MUDZIMUWAONA
Ruled By: CHIDYAUSIKU CJ, GOWORA JA and MUTEMA AJA

This was an appeal against the whole judgment of the Labour Court delivered on 17 May 2012. After perusing the record and hearing the submissions of the parties, this Court allowed the appeal and indicated that the reasons would be availed in due course.

The following are the reasons for the order.

The facts arising in this matter are that, in 2002, the respondent was employed by the appellant as a Revenue Trainee on a fixed term contract of three years. It specifically stated the following:

“Upon successful completion of the probation period, the employment contract shall run for a further period of 24 (twenty-four) months after which the authority may, at its sole discretion, offer you permanent employment on such terms and conditions as determined by it at the time.”

The literal meaning of that clause is that the respondent's contract was subject, first, to the successful completion of the probation period and then would terminate at the end of the 36 month.

In 2005, the respondent was based at the Beitbridge Border post and was charged with failing to uphold ethical and professional standards of behaviour within the workplace as well as carrying out an act inconsistent with the express or implied conditions of the contract of employment.

He was arraigned before a Disciplinary Committee and was found guilty of both charges. He was, as a consequence, dismissed from employment.

He appealed to the Appeals Committee without success.

The respondent appealed against that decision to the Labour Court which upheld the appeal and held that the he had been unlawfully dismissed. The court a quo ordered the appellant to reinstate the respondent without loss of salary or benefits, and, in the event that reinstatement was no longer tenable, to pay damages in lieu of reinstatement.

This decision was not appealed against.

Instead, the parties decided to negotiate the quantum of damages but failed to agree resulting in the respondent applying to the Labour Court for quantification.

He claimed, that, when he was dismissed he had not completed his training period but it was common cause that he was going to continue with his job after training and thus he was entitled to compensation as if he was a permanent employee.

The appellant opposed the quantification on the basis that the respondent was employed on a fixed-term contract and he had failed his examinations and thus the contractual relationship would have ended at the expiry of the 36 months provided in the contract.

The Labour Court ruled in favour of the respondent and ordered the appellant to pay:

(a) US$19,740=16 as back-pay and benefits.

(b) Twelve (12) months' salary that the respondent would have earned in August 2011 minus US$150 earned by the respondent per month for a period of twelve months.

The appellant was aggrieved by the decision, and, with the leave of this court has appealed the order of the court a quo.

It is criticized for the following reasons:

(i) Failing to put due weight to the fact that the respondent was employed as a Revenue Trainee on a fixed term contract of 36 (thirty six) months.

(ii) Failing to give proper weight to the fact, that, when the respondent was dismissed he was left with a period of 6 (six) months before expiration of the contract.

(iii) Failing to give proper weight to Clause 1.3 of the Zimbabwe Revenue Authority offer of employment which provides that permanent employment could only be offered at the sole discretion of the appellant....,.

On the merits, the issues which are pertinent in the determination of the appeal are the following:

(a)...,.

(b) Whether or not the respondent had a legitimate expectation of being offered employment on a permanent basis;...,.

In terms of clause 3.1 of the contract, the appellant had the sole discretion in deciding whether or not to offer the respondent a permanent position.

When the respondent was dismissed, the appellant had not exercised that discretion.

As a consequence, the court a quo ought to have given effect to that clause....,.

The respondent had not completed his training period at the time that he was dismissed and he had failed two core courses which he resat for examinations in 2005 - and failed. He would only be competent to be employed on a permanent basis after successfully completing the training.

Paragraph 9 of the Zimbabwe Revenue Authority Staff Training and Development Policy provides:

“A Revenue Trainee who fails to successfully complete level 2, and has a negative mentor's report, will have his/her contract of employment terminated at the end of the prescribed traineeship period. However, in exceptional cases, or on recommendation by a mentor/supervisor, he/she may be given one chance to re-sit the failed subject.”

He did not deny that he had re-written the required examinations and that he had failed a second time.

His explanation, upon being shown the examination scripts, was that he had forgotten having written the said examinations.

Against these clear admissions, it was therefore a serious misdirection on the part of the court to accept a contention from the respondent that he had only seen the 2005 examination scripts for the first time in court when the appellant produced them.

From what is stipulated in the policy, it is clear that the respondent's employment would have been terminated at the end of the 36 months because he had failed the examinations.

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

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

“It is ordered that:

1. The application be and is hereby granted.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

SSC17-21 : MARRY MUBAIWA CHIWENGA vs THE NATIONAL PROSECUTING AUTHORITY and THE CLERK OF COURT ROTTEN ROW MAGISTRATE'S COURT
Ruled By: UCHENA JA

It is trite that what is not disputed need not be proved.

HB02-15 : RHINE INVESTMENTS (PVT) LTD and ROGER MADANGURE vs WASAA COMMODITIES (PTY) LTD
Ruled By: TAKUVA J

This is an application for rescission of a decision made in case number HC1646/12 wherein it was ordered that the applicant's defence should be struck out and the matter referred to the unopposed roll.The facts are that on 21st May 2012, the respondent instituted proceedings against the applicants for payment ...

Appealed
HH405-20 : ROBIN VELA vs AUDITOR GENERAL OF ZIMBABWE N.O. and BDO ZIMBABWE CHARTERED ACCOUNTANTS (whose partners are Ngoni Kudenga, Gladman Sabarauta, Martin Makaya, Gilbert Gwatiringa and Jonas Jonga)
Ruled By: CHINAMORA J

The law is clear on the consequences of failure to deny a specific allegation of fact.For the avoidance of doubt, an unrefuted allegation is taken as having been admitted: see Fawcett Security Operations v Director of Customs Excise 1993 (2) ZLR 121 (SC).

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Law Portal Zimbabwe

Pleadings re: Approach to Pleadings, Pre-Trial Proceedings, Disparities with Oral Evidence and Unchallenged Statements

HH05-03 : U-FREIGHT EUROMAR (PRIVATE) LIMITED vs EMMANUEL MUTEBUKA Ruled By: MAKARAU J

HH174-16 : BASIL MAKURURU vs DERICK VORI Ruled By: MWAYERA J

HH222-15 : ELIOT ROGERS vs PUWAYI CHIUTSI Ruled By: MAFUSIRE J

HH227-15 : ZIMBABWE TOBACCO GROWING COMPANY (PVT) LTD t/a NORTHERN TOBACCO vs GEORGE MANIWA Ruled By: CHITAKUNYE J

HH227-15 : ZIMBABWE TOBACCO GROWING COMPANY (PVT) LTD t/a NORTHERN TOBACCO vs GEORGE MANIWA Ruled By: CHITAKUNYE J

SC85-14 : REMO INVESTMENT BROKERS (PRIVATE) LIMITED and MAHOMED IQBAL MAHMED and REZANA EBRAHIM and JOHN MOTSI vs SECURITIES COMMISSION OF ZIMBABWE Ruled By: GARWE JA, GOWORA JA and PATEL JA

View Appeal HB16-14 : CASPER TSVANGIRAI vs ZIMASCO (PVT) LTD and BAOBAB REAL ESTATE and THE REGISTRAR OF DEEDS, BULAWAYO Ruled By: MUTEMA J

Appealed SC16-20 : INFRASTRUCTURE DEVELOPMENT BANK OF ZIMBABWE vs ENGEN PETROLEUM ZIMBABWE (RIVATE) LIMITED Ruled By: GUVAVA JA, MAVANGIRA JA and ZIYAMBI AJA

SC48-09 : HALWICK INVESTMENTS t/a WHELSON TRANSPORT vs GARAI NYAMWANZA Ruled By: SANDURA JA, ZIYAMBI JA and GARWE JA

Appealed SC50-20 : ALASTAIR SMITH vs ABIGAIL SMITH Ruled By: GARWE JA, BHUNU JA and MAKONI JA

View Appeal HH540-16 : ALASTAIR SMITH vs ABIGAIL SMITH Ruled By: UCHENA J

View Appeal HMT55-19 : CAMBRIA AFRICA PLC vs BREASTPLATE SERVICES (PRIVATE) LIMITED T/A NEMCHEM INTERNATIONAL Ruled By: MUZENDA J

HHH517-20 : INTRATREK ZIMBABWE PL and WICKNELL CHIVHAYO and STANLEY KAZHANJE vs PROSECUTOR GENERAL OF ZIMBABWE and P MATURURE N.O. Ruled By: CHIKOWERO J and KWENDA J

HH604-18 : PUWAYI CHIUTSI and ELLIOT RODGERS vs SHERIFF OF HIGH COURT and ELLIOT RODGERS and REGISTRAR OF DEEDS and BARIADIE INVESTMENTS PL and MC DUFF MADEGA N.O. and PUWAYI CHIUTSI Ruled By: MATHONSI J

SC86-20 : CONSTANTINE CHIWENGA vs MARRY MUBAIWA Ruled By: GWAUNZA DCJ, GARWE JA and BHUNU JA

HH928-15 : ABC BANK LIMITED vs MACKIE DIAMONDS BVA and THE DEPUTY SHERIFF HARARE, N.O. Ruled By: HUNGWE J

HH928-15 : ABC BANK LIMITED vs MACKIE DIAMONDS BVA and THE DEPUTY SHERIFF HARARE, N.O. Ruled By: HUNGWE J

HH495-16 : TETRAD HOLDINGS LTD vs MASTER OF THE HIGH COURT, HARARE and THE FORMER PROVISIONAL JUDICIAL MANAGER OF TETRAD INVESTMENTS BANK LTD – W. MILITALA and DEPOSIT PROTECTION CORPORATION Ruled By: MANGOTA J

HH116-12 : EDGAR MAFEMERA vs ZAC CHIDAVAENZI AND THE MINISTER OF HOME AFFAIRS N.O Ruled By: BERE J

HB100-18 : ERASMUS DUBE vs ZIMBABWE ELECTRICITY TRANSMISSION DISTRIBUTION COMPANY Ruled By: MAKONESE J

SC73-17 : TENDAYI TAMANIKWA and FRANK TINARWO vs ZIMBABWE MANPOWER DEVELOPMENT FUND and EMMERSON PAMIRE Ruled By: GWAUNZA JA, BHUNU JA and UCHENA JA

SC54-06 : VIGOUR FUYANA vs NTOMBAZA MOYO Ruled By: CHIDYAUSIKU CJ

Appealed SC87-19 : PRECIOUS CHIPUNZA vs MOSLEY MASHINGAIDZE Ruled By: PATEL JA, BHUNU JA and BERE JA

View Appeal HH211-18 : MOSLEY MASHINGAIDZE vs PRECIOUS CHIPUNZA Ruled By: MATANDA-MOYO J

SC11-08 : DOCTOR DANIEL SHUMBA and ADVOCATE BRUCE CHIOTA vs THE ZIMBABWE ELECTORAL COMMISSION and MR MUSHANGWE N.O. Ruled By: CHIDYAUSIKU CJ, SANDURA JA, ZIYAMBI JA, MALABA JA and GARWE JA

HH260-15 : DR PARTSON ZVANDASARA vs BELVEDERE NURSING HOME (PVT) LTD Ruled By: MATHONSI J

HH260-15 : DR PARTSON ZVANDASARA vs BELVEDERE NURSING HOME (PVT) LTD Ruled By: MATHONSI J

HH520-18 : AIR NAMIBIA (PROPRIETARY) LTD vs CHENJERAI MAWUMBA and JULIANA MAGOMBEDZE and FADZAI MAWUMBA and RUTENDO MUWUMBA and TADIWANASHE MAWUMBA (minors represented by father & natural guardian) Ruled By: CHITAPI J

HH551-15 : W AND D CONSULTANTS (PRIVATE) LIMITED vs SEAN THOMAS NIELSON DORAN Ruled By: DUBE J

HH978-15 : IGNATIUS MASAMBA vs SECRETARY-JUDICIAL SERVICE COMMISSION Ruled By: MUNANGATI-MANONGWA J

SC01-15 : FIRSTEL CELLULAR (PRIVATE) LIMITED vs NETONE CELLULAR (PRIVATE) LIMITED Ruled By: ZIYAMBI JA, GARWE JA & PATEL JA

Appealed HH92-07 : PHAROAH B. MUSKWE vs DOUGLAS NYAJINA and MUNHUWEI G.T. and MINISTER OF LOCAL GOVERNMENT, NATIONAL HOUSING AND URBAN DEVELOPMENT N.O. Ruled By: KUDYA J

HH108-09 : CHAIR RORE vs THE MINISTER OF DEFENCE Ruled By: CHITAKUNYE J

HHH142-10 : ALBERT MATAPO and OTHERS vs THE STATE Ruled By: MUSAKWA J

HH66-16 : MEIKLES LIMITED vs ZIMBABWE STOCK EXCHANGE and ALBAN CHIRUME Ruled By: MAKONI J

HH593-15 : JESSIE CHINZOU vs OLIVER MASOMERA [as Executor Dative in the Estate late Fred Garikayi Muchenje] and THE MASTER OF THE HIGH COURT N.O. and CITY OF HARARE N.O. Ruled By: CHITAKUNYE J

View Appeal HH351-20 : THE SHERIFF OF ZIMBABWE and GURTA AG vs ANDERSON MANJA and 98 OTHERS Ruled By: CHIKOWERO J

HH236-15 : KETTEX HOLDINGS (PVT) LTD vs KENCOR MANAGEMENT SERVICES (PVT) LTD Ruled By: MATHONSI J

HH521-18 : DEPUTY SHERIFF MARONDERA vs ESTHER HOMBARUME and VIOLET MUNJARANJI and EPHISON NDAHWI and SHAKI MUSEVE and NOMUHLE BANGANI and COOPER SMIT and TIANZE TOBACCO PL and LAWRENCE KATSIRU Ruled By: CHITAPI J

HH586-14 : WELLINGTON TAKAWIRA vs CZI INCORPORATED (PVT) LTD Ruled By: UCHENA J

HH688-14 : GERALD CHIWESHE and SAMEER KHAN and BRUCE THOMAS vs AIR ZIMBABWE HOLDINGS (PVT) LTD Ruled By: MTSHIYA J

HH740-15 : COSMAS ZAVAZAVA and VONGAI ZAVAZAVA vs JONAH TENDERE and TENDAI TENDERE and THERMO-DYNAMICS REAL ESTATE and REGISTRAR OF DEEDS N.O. Ruled By: MATHONSI J

SC11-21 : TENDAI BONDE vs NATIONAL FOODS LTD and LOVEJOY NYANDORO [as Chairman of Appeals Committee] and CHIPO NHETA [as Chairman of Works Council] Ruled By: GUVAVA JA

SC04-18 : ZIMBABWE REVENUE AUTHORITY vs CHESTER MUDZIMUWAONA Ruled By: CHIDYAUSIKU CJ, GOWORA JA and MUTEMA AJA

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

SSC17-21 : MARRY MUBAIWA CHIWENGA vs THE NATIONAL PROSECUTING AUTHORITY and THE CLERK OF COURT ROTTEN ROW MAGISTRATE'S COURT Ruled By: UCHENA JA

HB02-15 : RHINE INVESTMENTS (PVT) LTD and ROGER MADANGURE vs WASAA COMMODITIES (PTY) LTD Ruled By: TAKUVA J

Appealed HH405-20 : ROBIN VELA vs AUDITOR GENERAL OF ZIMBABWE N.O. and BDO ZIMBABWE CHARTERED ACCOUNTANTS (whose partners are Ngoni Kudenga, Gladman Sabarauta, Martin Makaya, Gilbert Gwatiringa and Jonas Jonga) Ruled By: CHINAMORA J

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Law Portal
Zimbabwe

HH05-03 : U-FREIGHT EUROMAR (PRIVATE) LIMITED vs EMMANUEL MUTEBUKA
Ruled By: MAKARAU J

HH174-16 : BASIL MAKURURU vs DERICK VORI
Ruled By: MWAYERA J

HH222-15 : ELIOT ROGERS vs PUWAYI CHIUTSI
Ruled By: MAFUSIRE J

HH227-15 : ZIMBABWE TOBACCO GROWING COMPANY (PVT) LTD t/a NORTHERN TOBACCO vs GEORGE MANIWA
Ruled By: CHITAKUNYE J

HH227-15 : ZIMBABWE TOBACCO GROWING COMPANY (PVT) LTD t/a NORTHERN TOBACCO vs GEORGE MANIWA
Ruled By: CHITAKUNYE J

SC85-14 : REMO INVESTMENT BROKERS (PRIVATE) LIMITED and MAHOMED IQBAL MAHMED and REZANA EBRAHIM and JOHN MOTSI vs SECURITIES COMMISSION OF ZIMBABWE
Ruled By: GARWE JA, GOWORA JA and PATEL JA

View Appeal
HB16-14 : CASPER TSVANGIRAI vs ZIMASCO (PVT) LTD and BAOBAB REAL ESTATE and THE REGISTRAR OF DEEDS, BULAWAYO
Ruled By: MUTEMA J

Appealed
SC16-20 : INFRASTRUCTURE DEVELOPMENT BANK OF ZIMBABWE vs ENGEN PETROLEUM ZIMBABWE (RIVATE) LIMITED
Ruled By: GUVAVA JA, MAVANGIRA JA and ZIYAMBI AJA

SC48-09 : HALWICK INVESTMENTS t/a WHELSON TRANSPORT vs GARAI NYAMWANZA
Ruled By: SANDURA JA, ZIYAMBI JA and GARWE JA

Appealed
SC50-20 : ALASTAIR SMITH vs ABIGAIL SMITH
Ruled By: GARWE JA, BHUNU JA and MAKONI JA

View Appeal
HH540-16 : ALASTAIR SMITH vs ABIGAIL SMITH
Ruled By: UCHENA J

View Appeal
HMT55-19 : CAMBRIA AFRICA PLC vs BREASTPLATE SERVICES (PRIVATE) LIMITED T/A NEMCHEM INTERNATIONAL
Ruled By: MUZENDA J

HHH517-20 : INTRATREK ZIMBABWE PL and WICKNELL CHIVHAYO and STANLEY KAZHANJE vs PROSECUTOR GENERAL OF ZIMBABWE and P MATURURE N.O.
Ruled By: CHIKOWERO J and KWENDA J

HH604-18 : PUWAYI CHIUTSI and ELLIOT RODGERS vs SHERIFF OF HIGH COURT and ELLIOT RODGERS and REGISTRAR OF DEEDS and BARIADIE INVESTMENTS PL and MC DUFF MADEGA N.O. and PUWAYI CHIUTSI
Ruled By: MATHONSI J

SC86-20 : CONSTANTINE CHIWENGA vs MARRY MUBAIWA
Ruled By: GWAUNZA DCJ, GARWE JA and BHUNU JA

HH928-15 : ABC BANK LIMITED vs MACKIE DIAMONDS BVA and THE DEPUTY SHERIFF HARARE, N.O.
Ruled By: HUNGWE J

HH928-15 : ABC BANK LIMITED vs MACKIE DIAMONDS BVA and THE DEPUTY SHERIFF HARARE, N.O.
Ruled By: HUNGWE J

HH495-16 : TETRAD HOLDINGS LTD vs MASTER OF THE HIGH COURT, HARARE and THE FORMER PROVISIONAL JUDICIAL MANAGER OF TETRAD INVESTMENTS BANK LTD – W. MILITALA and DEPOSIT PROTECTION CORPORATION
Ruled By: MANGOTA J

HH116-12 : EDGAR MAFEMERA vs ZAC CHIDAVAENZI AND THE MINISTER OF HOME AFFAIRS N.O
Ruled By: BERE J

HB100-18 : ERASMUS DUBE vs ZIMBABWE ELECTRICITY TRANSMISSION DISTRIBUTION COMPANY
Ruled By: MAKONESE J

SC73-17 : TENDAYI TAMANIKWA and FRANK TINARWO vs ZIMBABWE MANPOWER DEVELOPMENT FUND and EMMERSON PAMIRE
Ruled By: GWAUNZA JA, BHUNU JA and UCHENA JA

SC54-06 : VIGOUR FUYANA vs NTOMBAZA MOYO
Ruled By: CHIDYAUSIKU CJ

Appealed
SC87-19 : PRECIOUS CHIPUNZA vs MOSLEY MASHINGAIDZE
Ruled By: PATEL JA, BHUNU JA and BERE JA

View Appeal
HH211-18 : MOSLEY MASHINGAIDZE vs PRECIOUS CHIPUNZA
Ruled By: MATANDA-MOYO J

SC11-08 : DOCTOR DANIEL SHUMBA and ADVOCATE BRUCE CHIOTA vs THE ZIMBABWE ELECTORAL COMMISSION and MR MUSHANGWE N.O.
Ruled By: CHIDYAUSIKU CJ, SANDURA JA, ZIYAMBI JA, MALABA JA and GARWE JA

HH260-15 : DR PARTSON ZVANDASARA vs BELVEDERE NURSING HOME (PVT) LTD
Ruled By: MATHONSI J

HH260-15 : DR PARTSON ZVANDASARA vs BELVEDERE NURSING HOME (PVT) LTD
Ruled By: MATHONSI J

HH520-18 : AIR NAMIBIA (PROPRIETARY) LTD vs CHENJERAI MAWUMBA and JULIANA MAGOMBEDZE and FADZAI MAWUMBA and RUTENDO MUWUMBA and TADIWANASHE MAWUMBA (minors represented by father & natural guardian)
Ruled By: CHITAPI J

HH551-15 : W AND D CONSULTANTS (PRIVATE) LIMITED vs SEAN THOMAS NIELSON DORAN
Ruled By: DUBE J

HH978-15 : IGNATIUS MASAMBA vs SECRETARY-JUDICIAL SERVICE COMMISSION
Ruled By: MUNANGATI-MANONGWA J

SC01-15 : FIRSTEL CELLULAR (PRIVATE) LIMITED vs NETONE CELLULAR (PRIVATE) LIMITED
Ruled By: ZIYAMBI JA, GARWE JA & PATEL JA

Appealed
HH92-07 : PHAROAH B. MUSKWE vs DOUGLAS NYAJINA and MUNHUWEI G.T. and MINISTER OF LOCAL GOVERNMENT, NATIONAL HOUSING AND URBAN DEVELOPMENT N.O.
Ruled By: KUDYA J

HH108-09 : CHAIR RORE vs THE MINISTER OF DEFENCE
Ruled By: CHITAKUNYE J

HHH142-10 : ALBERT MATAPO and OTHERS vs THE STATE
Ruled By: MUSAKWA J

HH66-16 : MEIKLES LIMITED vs ZIMBABWE STOCK EXCHANGE and ALBAN CHIRUME
Ruled By: MAKONI J

HH593-15 : JESSIE CHINZOU vs OLIVER MASOMERA [as Executor Dative in the Estate late Fred Garikayi Muchenje] and THE MASTER OF THE HIGH COURT N.O. and CITY OF HARARE N.O.
Ruled By: CHITAKUNYE J

View Appeal
HH351-20 : THE SHERIFF OF ZIMBABWE and GURTA AG vs ANDERSON MANJA and 98 OTHERS
Ruled By: CHIKOWERO J

HH236-15 : KETTEX HOLDINGS (PVT) LTD vs KENCOR MANAGEMENT SERVICES (PVT) LTD
Ruled By: MATHONSI J

HH521-18 : DEPUTY SHERIFF MARONDERA vs ESTHER HOMBARUME and VIOLET MUNJARANJI and EPHISON NDAHWI and SHAKI MUSEVE and NOMUHLE BANGANI and COOPER SMIT and TIANZE TOBACCO PL and LAWRENCE KATSIRU
Ruled By: CHITAPI J

HH586-14 : WELLINGTON TAKAWIRA vs CZI INCORPORATED (PVT) LTD
Ruled By: UCHENA J

HH688-14 : GERALD CHIWESHE and SAMEER KHAN and BRUCE THOMAS vs AIR ZIMBABWE HOLDINGS (PVT) LTD
Ruled By: MTSHIYA J

HH740-15 : COSMAS ZAVAZAVA and VONGAI ZAVAZAVA vs JONAH TENDERE and TENDAI TENDERE and THERMO-DYNAMICS REAL ESTATE and REGISTRAR OF DEEDS N.O.
Ruled By: MATHONSI J

SC11-21 : TENDAI BONDE vs NATIONAL FOODS LTD and LOVEJOY NYANDORO [as Chairman of Appeals Committee] and CHIPO NHETA [as Chairman of Works Council]
Ruled By: GUVAVA JA

SC04-18 : ZIMBABWE REVENUE AUTHORITY vs CHESTER MUDZIMUWAONA
Ruled By: CHIDYAUSIKU CJ, GOWORA JA and MUTEMA AJA

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

SSC17-21 : MARRY MUBAIWA CHIWENGA vs THE NATIONAL PROSECUTING AUTHORITY and THE CLERK OF COURT ROTTEN ROW MAGISTRATE'S COURT
Ruled By: UCHENA JA

HB02-15 : RHINE INVESTMENTS (PVT) LTD and ROGER MADANGURE vs WASAA COMMODITIES (PTY) LTD
Ruled By: TAKUVA J

Appealed
HH405-20 : ROBIN VELA vs AUDITOR GENERAL OF ZIMBABWE N.O. and BDO ZIMBABWE CHARTERED ACCOUNTANTS (whose partners are Ngoni Kudenga, Gladman Sabarauta, Martin Makaya, Gilbert Gwatiringa and Jonas Jonga)
Ruled By: CHINAMORA J