Cause of Action and Draft Orders re: Criminal Allegations Raised in Civil Proceedings

HH10-18 : UPENYU MASHANGWA and BLESSING MASHANGWA vs EMMANUEL MAKANDIWA and RUTH MAKANDIWA and UNITED FAMILY INTERNATIONAL CHURCH
Ruled By: MANGOTA J

The plaintiffs are husband and wife. They are members of the third defendant.

The first and second defendants are also husband and wife respectively. They are leaders of the third defendant.

The third defendant operates under the name United Family International Church.

The first and second defendants, as leaders of the third defendant, are allegedly endowed with the spiritual gift of being able to foretell a person's past, present, and future circumstances.

They are, in the parlance of the third defendant's teachings, referred to as prophets.

The plaintiffs filed six claims against all the three defendants. These entered appearance to defend.

They, in terms of Rule 140 of the High Court Rules 1971 addressed a letter to the plaintiffs. The letter is dated 9 August 2017.

The letter complained about the manner in which the plaintiffs pleaded their claims. Its contents alleged that:

(i) The claim was either vague and embarrassing; or

(ii) The claim did not disclose a cause of action; or

(iii) The claim did not clarify if the plaintiffs were suing in contract or in delict; or

(iv) The plaintiffs did not know how to plead defamation under the actio injuriarum; or

(v) The plaintiffs failed to appreciate that mental anguish was not a head for damages claimable for defamation; or

(vi) The plaintiffs did not state, in regard to the sixth claim, if they were pleading defamation or injuria.

The letter placed the plaintiffs on notice to remedy the alleged defects which the defendants complained of failing which the latter would except to the claims.

The plaintiffs received the letter on 10 August 2017. They did nothing about the complaint.

The defendants filed the exception on 30 August 2017. This is, therefore, the subject of these proceedings.

The record does not show the date on which the defendants served the plaintiffs with the exception. Nor does it show the date that they served their heads of argument upon the plaintiffs.

What is evident, however, is that both parties filed their Heads.

The defendants Heads were filed on 20 September 2017. The plaintiffs filed theirs on 4 October 2017.

The filing of Heads by the parties set the stage for the exception to be heard and determined.

The defendants summarised their case in paragraphs (3) and (4) of their Heads. They submitted that the plaintiffs summons and declaration were excipiable in two respects. These were that:

(a) They did not disclose any cause of action against any of the three defendants; and

(b) They are vague and embarrassing to the extent that the vagueness and embarrassment go to the root of the cause of action.

Critical to the resolution of this matter is whether or not one or more, or all, of the claims do not, as the defendants alleged, disclose a cause of action.

Where they do not, the defendants position remains unassailable. Where they do, the defendants complaint remains unwarranted.

The phrase 'cause of action' was aptly defined in Peebles v Dairiboard Zimbabwe (Pvt) Ltd 1999 (1) ZLR 41 which the defendants cited in their Heads. The case authority says of the phrase:

“Simply, a factual situation the existence of which entitles one person to obtain from the court a remedy against another person.”

The question which begs the answer is: does that factual situation exist in each of the plaintiffs six claims?

The plaintiffs said it does.

They also submitted, and in my view correctly so, that all their claims were grounded in delict and not in contract.

An analysis of each of the six claims is relevant. It is from the intended analysis that the existence or otherwise of the cause of action is established.

The plaintiffs case was/is that their claims (1) to (4) rested on the delict of fraud.

Professor G. FELTOE defines fraud in his “A Guide to The Zimbabwean Law of Delict” 3rd Ed…,. The learned author states that the delict of fraud falls under deceptive practices. He says fraud is committed when the defendant, with intent to defraud, makes a statement to the plaintiff knowing or suspecting that the statement is false and intending that the plaintiff will act upon it to his prejudice. He stresses that, if the plaintiff suffers loss as a result of such fraudulent deception, he is entitled to claim damages.

With fraud, therefore, the false statement is made to the plaintiff who acts upon it.

The definition which Professor FELTOE gave for the delictual action of fraud is, with minor variations, substantially the same as fraud as defined in the law of contract.

INNOCENT MAJA defines fraud from the perspective of the law of contract. The learned author states in his book “The Law of Contract in Zimbabwe”…, that:

“For an innocent party to claim delictual damages successfully, she/he must establish that:

(a) There was a wrongful or unlawful conduct (by either commission or omission) by the wrongdoer:

(b) The conduct led to the harm of a person, property, or finances; and

(c) The wrongdoer caused patrimonial loss either intentionally or negligently.”

The plaintiff's statement, as regards each of the four claims, is that they are claiming delictual damages from the defendants.

They submitted that the damages are based on the misrepresentations which the defendants made to them and other members of the third defendant. The misrepresentations, they argued, induced them to act as they did to their actual prejudice. The defendants, they said, by word or conduct, created false impressions in their minds and the impressions induced them to act in the way which they did much to their serious loss. They argue that the defendants made the false statements with the specific intention to defraud them.

The argument of the defendants is that the statements were not made to the plaintiffs alone. They were made to all members of the third defendant, and during church service.

The plaintiffs declaration shows that whilst the statements were made to all members of the third defendant, the plaintiffs acted upon them. These, it is evident, enjoyed a special privileged position in the third defendant. A reading of each claim shows the following:

Claim 1:

The first and second defendants knew, before the date the statement was made, that the plaintiffs had an existing ZB Bank loan to the tune of $500,000. The plaintiffs had informed them of that matter privately. The statement, which was to the effect that anyone with a bank debt or loan would be cancelled as it was the season of miraculous cancellation of debts did induce the plaintiffs, more than any other congregant, to believe the defendants. They did, and, in the process, they lost their Marlborough house as a result of the same.

Claim 2:

The defendants statement, which was to the effect, that, one Tichaona Mawere was a great lawyer who would never lose a case, was taken seriously by the plaintiffs. Out of their trust in the defendants, they handed their case to Mr Mawere for his attention. When he produced no results, they consulted the defendants on the same. These assured them that everything was above board.

Claim 3:

The first and second defendants would call the plaintiffs onto the stage, presumably during church service, and announce to the congregants that the plaintiffs were a successful example of their Ministry. Such statements encouraged the plaintiffs to pour more and more contributions, in the form of money, into the third defendant's pocket.

Claim 4:

The defendants paraded the plaintiffs on stage, presumably during church service, and showed them as the chosen people whom God showered with blessings to a point where they were regarded as successful business people.

It is evident, from the foregoing, that, the plaintiffs and the defendants enjoyed very good social, and possibly, spiritual ties. That fact alone explains why the plaintiffs took the word of the defendants more seriously than any other member of the third defendant did.

That the defendants made the statements, in words or deed, in all the four claims, requires little, if any, debate.

The statements, the plaintiffs argue, were false.

They were made with the intention that they act upon them. They so acted upon them to their actual prejudice in regard to each claim. They stated, and correctly so, that, if they had known the true facts, they would not have acted in the manner which they did.

The plaintiff's case in regard to the four claims is water-tight. There is nothing which is vague and/or embarrassing in each of those claims. Their cause of action for each is clear, cogent, and to the point. The claims fall neatly into the delict of fraud. They are neither frivolous nor vexatious.

The defendants urged the court not to concern itself with the claims of the plaintiffs. They submitted that the claims arose from proceedings which took place within the third defendant. They said the proceedings related to matters of faith in which the court had no business.

They, in the mentioned regard, referred the court to the dictum of DOUGLAS J who made some remarks on a matter which was similar to the present one. The learned judge stated in United States v Ballard 322 US 78 (1944) that religious doctrines and beliefs could not be subjected to the rigours of legal proof.

The defendants took their arguments to the jurisdiction of this court.

They referred me to what DEVITTE J stated in Independent African Church v Maheya HH79-90 wherein he remarked as follows:

“…, in the case of a congregational schism, where the resolution of a church property dispute involves matters of church doctrine and practices, the courts should not become immersed in a consideration of the merits of doctrinal matters. They ought, instead, to use a term applied by the American courts to apply 'neutral principles of law.'”

The plaintiffs argued to the contrary.

They stated that the court can, indeed, inquire into matters ecclesiastical. They, in the mentioned regard, placed reliance on Church of the Province of Central Africa v Diocesan Trustees of the Diocese of Harare SC48-12 which they said rejected the position which this court took in Independent African Church v Maheya HH79-90.

They insisted that the current case does not require the court to inquire into matters ecclesiastical. They said it requires the court to inquire into the defendants lies.

They placed further reliance on Robert Martin Gumbura v The State SC78-14 wherein PATEL JA, dismissing Gumbura's appeal for bail pending appeal, stated as follows:

“In the circumstances presented by this case, the quasi-mystical force of religious dogma might overwhelm its conscripts and devotees to a point where it operates to vitiate and negate any meaningful consent to sexual abuse and exploitation by their spiritual masters.

Taking a broad conspectus of the facts and probabilities in casu, it appears to me that the complainants having been enmeshed within the overpowering cocoon woven by the appellant, unwillingly succumbed to his sexual advances and predations. Thereafter, constrained by fear and misconception, they remained taciturn for several years and only reported their respective ordeals after appreciating the full nature of their sexual bondage.”…,.

The background to the above citation is that Gumbura, like the first two defendants, was a leader of his church. He was tried and convicted of rape by a magistrate. He appealed to this court against conviction and sentence. He unsuccessfully applied to the magistrate for bail pending appeal. He appealed to this court and also failed. He appealed to the Supreme Court against the decision of this court which refused to grant him bail pending appeal. He submitted, as a ground of appeal, that the complainants took an inordinate delay to complain against what he was alleged to have done to them. He said the complainants delay in reporting the rape showed that his prospects of success on appeal were very strong.

The learned judge of appeal rejected his argument.

He remained of the view, that, Mr Gumbura had to prosecute his appeal while he is in prison. He, therefore, dismissed the appeal.

Two important matters come out of the above cited case:

(i) The first is that every person is fallible. No one is, therefore, immune to making mistakes. That is so notwithstanding the person's standing, social, spiritual or otherwise, in society.

(ii) The second is that, where one commits a crime or a wrong (i.e delict) the person cannot escape the long arm of the law. He will either be prosecuted or sued, depending on what he is alleged to have done. That depends on the definition which society places on his conduct. That will, once again, occur irrespective of his status, social, spiritual or otherwise, in society.

Applying the above-observed matters to the current case, therefore, the defendants cannot be allowed to hide behind the proposition that their situation relates to ecclesiastical matters which the court has no jurisdiction to determine.

A fortiori when Independent African Church v Maheya HH79-90, upon which they placed reliance, was over-ruled by the Supreme Court.

Where they are alleged, as in casu, to have acted fraudulently to the prejudice of some of their congregants, the latter have every right to sue them.

The plea which they advance will not, therefore, assist them.

Appealed
SC95-21 : UPENYU MASHANGWA and BLESSING MASHANGWA vs EMMANUEL MAKANDIWA and RUTH MAKANDIWA and UNITED FAMILY INTERNATIONAL CHURCH
Ruled By: GWAUNZA DCJ, MAKONI JA and BERE JA

This is an appeal against the whole consolidated judgment of the High Court dismissing the appellants application in HC4197/18 and granting the respondents application in HC1774/18.FACTUAL BACKGROUNDThe appellants are husband and wife and were, at one point, members of the United Family International Church (“UFIC”), the third respondent in casu.The ...

This is an appeal against the whole consolidated judgment of the High Court dismissing the appellants application in HC4197/18 and granting the respondents application in HC1774/18.

FACTUAL BACKGROUND

The appellants are husband and wife and were, at one point, members of the United Family International Church (“UFIC”), the third respondent in casu.

The first and second respondents are also husband and wife and are the leaders (prophet and prophetess, respectively) of the United Family International Church (UFIC).

In the court below, the appellants instituted an action against the respondents, under HC7214/18 claiming a total sum of US$6,535,000 to be paid jointly and severally, the one paying the others to be absolved, broken down as follows:

“(a) Damages for US$700,000 being the value of property number 14 Edinburgh, Marlborough, Harare.

(b) A refund of the sum of US$1,698,000 for misrepresentation.

(c) US$37,000 being refund for fees paid to Tichaona Mawere.

(d) An amount of US$1,100,000 being a refund paid to the defendants.

(e) An amount of US$2,000,000 being damages for fraud and misrepresentation.

(f) An amount of US$500,000 being damages for mental anguish.

(g) US$500,000 being damages for defamation of character. (sic)

(h) Payment of interest on the sums in (a) to (g) above at the prescribed rate from the date of demand to the date of full and final payment.

(i) Payment of costs of suit on a legal practitioner and client scale.”

The claims were particularised in the declaration as summarised hereunder:

CLAIM ONE

In 2012, and during church proceedings, the first and second respondents fraudulently misrepresented to the appellants “that anyone with a bank debt or loan was to be cancelled as it was a season of miraculous cancellation of debts.” (sic)

It is alleged, that, this followed after the respondents had been 'privately' informed that the appellants had an existing ZB Bank loan in the sum of US$500,000.

As a result of this misrepresentation, the appellants were induced not to pay back the loan, and, as a consequence, the Bank executed on their immovable property thus causing them to lose a property worth US$700,000.

CLAIM TWO

In the same year, the respondents misrepresented in church, that, one Tichaona Mawere (Mawere) “was a great lawyer and that he would not lose a case” when in fact he was not a registered legal practitioner.

Acting on the misrepresentation, the appellants instructed the said Tichaona Mawere (Mawere) to handle their matter for a claim of US$1,698,000 and expended fees in the sum of US$37,000. Mawere produced fake court orders resulting in them making a loss to the tune of US$1,735,000.

CLAIM THREE

That, in the period ranging from 2014 to 2016, the appellants were called on stage in church. The respondents would announce that the appellants “were a successful example in the Ministry.”

Acting on these “misrepresentations” the appellants made various direct contributions amounting to US$1,100,000 to the respondents. The respondents would represent “that, in so contributing, the plaintiffs (the appellants) would reap what was commensurate with their contributions.”

CLAIM FOUR

The appellants were again paraded in church on stage “as a chosen people by God to have succeeded in business.”

As a result of that further “misrepresentation” the appellants marketed the respondents prophecies for the advancement of the respondents interests and “their prophesies as the success story of the prophesies.” In the process, the appellants were prejudiced to the tune of US$2,000,000.

CLAIM FIVE

Before the amendment, which I shall deal with later, the claim was that “the defendants (the respondents) caused damages through defamation (sic) by publishing false articles against the plaintiffs and their business activities; articles claiming that the plaintiffs perfumes cause cancer.”

CLAIM SIX

The appellant's claimed that “the defendants caused mental anguish to the plaintiffs, emotional embarrassment and torture by exposing the plaintiffs private lives on the defendants Facebook online page 'The Truth About Prophet Makandiwa.'”

It was further averred, that, the information had been given to the respondents “in private” and the statements were meant to destroy their reputation.

Upon being served with the summons, the respondents entered an appearance to defend.

They further addressed a letter to the appellants, in terms of Rule 140 of the High Court Rules 1971 (the Rules), to the effect that the claims in question were vague and embarrassing and that they did not disclose a cause of action.

It was averred that it was not clear whether the appellants were suing in terms of Contract or under the Law of Delict, and, as regards claims five and six, whether the claims were made under defamation or injuria.

The appellants did not respond to this letter.

Consequently, the respondents filed an exception to the appellants summons and declaration.

The exception was dismissed on 12 January 2018 by MANGOTA J who ordered that the appellants amend their declaration in respect of claims five and six, that the respondents file their plea, and that the matter proceeds in terms of the Rules.

As directed, the appellants amended their declaration in respect of claims three, five, and six.

CLAIM THREE

It was amended by the addition of paragraph 20.1.

It was claimed, that, upon being confronted by the appellants, the respondents undertook to repay the appellants all the money they had contributed upon proof of such payment. Despite being furnished with the proof, the respondents have refused or neglected to pay in accordance with their undertaking.

CLAIM FIVE

It was amended by deleting the original claim and substituting it as summarised below:

The appellants were in the business of manufacturing and selling perfumes. On or around 16 August 2016, and after the fallout between the appellants and the respondents, the respondents caused to be published an article in the Herald Newspaper in which they said:

“You just need one person who can move around telling people that your perfumes can cause cancer and the news begins to spread; your company will begin to go down.” (sic)

“The statement was false and the respondents intended to spread a rumour and thereby injure the appellants in their trade. In view of the close relationship between the parties before the fallout, the words of the respondents caused a rumour to spread that the appellants perfumes cause cancer. As a result of the statement, and the subsequent rumours, the public desisted from purchasing appellants perfumes. Consequently, the appellants, through their company, ceased to manufacture the perfumes. The appellants suffered damages due to the respondents wrongful conduct in the sum of USD$500,000.”

CLAIM SIX

The original claim was deleted and substituted with a claim summarized as follows:

On or about 2 February 2017, the respondents caused to be published on their Facebook page titled “The truth about Emmanuel Makandiwa” private and intimate details of the appellants which they had received in confidence. The publication of the details was wrongful and was done with an intention to injure the appellants standing in society, and was done in the wake of the fallout between the parties. Appellants suffered damages, as a result of the unlawful intrusion into their private lives, in the sum of USD$500,000.

Following the dismissal of the exception, and, on 23 February 2018, the respondents filed an application for the dismissal of the appellants claims in toto in terms of Order 11 Rule 75 of the High Court Rules, under HC1774/18.

The respondents, having failed to prosecute their application under HC1774/18 timeously, the appellants filed a chamber application for dismissal of the same for want of prosecution in terms of Rule 236(3)(b) of the High Court Rules, on 8 May 2018, under HC4197/18.

Since both matters were set down for hearing at almost the same time, and, before different judges, a request was made for their consolidation and it was granted.

DETERMINATION BY THE COURT A QUO

The court' s approach was to determine the application in terms of Rule 236(3)(b) of the High Court Rules under HC4197/18 first.

It opined, that, if it granted the relief being sought by the appellants that would be the end of both matters. If it dismissed the application, then, it would proceed to hear the respondents application in terms of Rule 75 of the High Court Rules, under HC1774/18, which it coined the main matter.

Regarding the application for dismissal for want of prosecution, the court found that the reasons proffered for the delay in prosecuting the matter were reasonable. It also stated that it had a discretion to discharge the application or make any other order as it deemed fit in the circumstances.

In the result, the application for dismissal for want of prosecution was dismissed and the court ordered that the main matter be heard on the merits.

Pertaining to the issue of the dismissal of the appellants claims, in terms of Rule 75 of the High Court Rules, the court a quo dealt with each of the appellants claims in turn.

It found, that, the appellants claims were frivolous and vexatious and warranted summary dismissal.

Aggrieved by the decision of the court a quo, the appellants noted an appeal to this Court. This is the appeal that this Court is seized with.

GROUNDS OF APPEAL

“1. The court a quo erred and misdirected itself in that having found that respondents had, by their admission, failed to prosecute their cause within the prescribed period, it ought to have dismissed for want of prosecution; no special circumstances existing to exercise a discretion in their favour.

2. The court a quo grossly erred and misdirected itself in that a prior judgment of the High Court, in HH10-18, having established that a valid and substantiated cause of action based on fraud existed between the parties, it could not render otherwise.

3. A fortiori the court a quo effectively reviewed and contradicted an extant earlier judgment of a judge of parallel jurisdiction on the same cause, between the same parties, contrary to the principles of res judicata and issue estoppel.

4. The court a quo further erred and misdirected itself in finding, contrary to law, that, fraud and fraudulent misrepresentation did not constitute a valid cause of action at law; subsequently, the court a quo erred in failing to find that the question of whether fraud and its constituent elements had been proven was an evidentiary issue reserved for trial.

5. The court further grossly erred and misdirected itself in determining the matter regardless of conflicting material averments which could not be resolved on affidavit a fortiori, it could not find as a matter of fact that the claims by the appellants were frivolous and vexatious, absent evidence and its testing in contested action proceedings....,.

Regarding grounds four and five, the court, at the outset during the hearing, enquired of counsel for the appellants whether these grounds had been abandoned as they had not been motivated in the Heads of Argument.

In response, counsel for the appellants advised, that, none of the grounds were being abandoned.

On being asked to direct the court to where these grounds were motivated, he directed the court to paragraph 15 of the appellants Heads of Argument. This is what paragraph 15 states;

“Even if the court per TAGU J could revisit the question, it still did so wrongly and wrongfully. That there is a valid cause of action is beyond doubt. The law allows refunds and reimbursements for unlawfully paid funds. As a result, there cannot be argument that no cause of action can arise.”

The argument advanced in this paragraph completely misses the respondents position.

It is not that there is no cause of action. It is that the appellants pleaded falsehoods and that they could never succeed at trial on the facts as pleaded. Their action was therefore frivolous and vexatious.

The paragraph also misconstrues the finding of the court a quo.

Nowhere in the judgment a quo is it stated that a misrepresentation did not constitute a valid cause of action.

The court a quo examined each claim separately and gave reasons as to why it found each claim to be frivolous and vexatious. The crisp finding of the court a quo, in respect of each claim, was that on the facts as pleaded by the appellants, no competent cause could be sustained.

By way of illustration, in Claim One, the appellants alleged that the respondents alleged that they stopped paying the loan that they had obtained from ZB Bank on the basis of a prophecy made by the respondents to the effect that it was “a season of miraculous cancellation of debts.”

It could not, on the facts as pleaded by the appellants, be established through a deeds search at the Registrar of Deeds office that the appellants owed ZB Bank Limited USD500,000 and that the property they allegedly lost was bonded in favour of ZB Bank for that amount.

It could not be supported, factually, through a search carried out in the Civil Registry of the High Court that ZB Bank sued the appellants for USD500,000 between 2012 and 2017 as alleged, and that the property in question was attached or sold in execution as alleged or at all at the instance of ZB Bank Limited.

The reality on the ground, which the appellants never controverted, was that the property was at all material times owned by Carmeco Investments (Private) Limited (Carmeco) a separate persona from the appellants in terms of Deed of Transfer No.10763/2002 dated 24 September 2002.

In that regard, the law relating to companies applies with full force and effect.

The appellants cannot claim to have been prejudiced in respect of what they did not own.

In any event, as early as 29 February 2012 Carmeco Investments (Private) Limited had sold the property for USD800,000 to Nemajo Family Trust as represented by Steward Nyamushaya. The purchase price thereof was paid in full through the appellants agents, McDowells International (Private) Limited.

At no time did it appear from the deeds search that Carmeco Investments (Private) Limited, which owned the property, mortgaged number 14 Edinburgh Road, Marlborough to ZB Bank Limited for the sum of USD500,000 during the period 2012 to 2017.

The above illustration clearly demonstrates that the appellants pleaded falsehoods.

In their notice of opposition to the application, the appellants did not controvert these facts.

They contended, that, they did not have to reply to the evidence submitted by the respondents as it was a matter of evidence to be related to at trial.

They overlooked the fact, that, in terms of Rule 75(2) and (3) of the High Court Rules a party making an application in terms of subrule (1) is required to do two things:

(i) Firstly, he or she shall file an affidavit in which he sets out his belief that the action is frivolous and vexatious and the grounds for his belief.

(ii) Secondly, he or she may attach documents which verify his or her belief that the matter is frivolous and vexatious.

Once that information has been placed before the court, it should be incumbent upon the other party to controvert it.

In casu, the appellants did not do so. Rather, they directed their energy to a vitriolic attack on the respondents instead of addressing the requirements of Rule 75 of the High Court Rules.

Having misconstrued the court a quo's finding, grounds of appeal four and five must fail.

View Appeal
HH40-19 : UPENYU MASHANGWA and ANOR HC4197/18 and EMMANUEL MAKANDIWA and OTHERS HC1774/18 vs EMMANUEL MAKANDIWA and RUTH MAKANDIWA and ANOR and UPENYU MASHANGWA and ANOR
Ruled By: TAGU J

The two matters were consolidated to avoid conflicting judgments as the two matters involving the same parties, and same issues, were ready for arguments at almost the same time before different judges.

At the hearing of the two matters, counsels for the parties did not make oral submissions but agreed that the two matters be decided on the papers filed of record.

The following is the background to the two matters.

Upenyu and Blessing Mashangwa (the Mashangwas) are husband and wife respectively. They are members of the United Family International Church (UFIC).

Emmanuel and Ruth Makandiwa (the Makandiwas) are also husband and wife respectively. The Makandiwas are leaders (prophet and prophetess respectively) of United Family International Church (UFIC).

In case HC7214/18 the Mashangwas filed summons in this Honourable Court containing six claims against the Makandiwas and the United Family International Church for a total sum of US$6,535,000 to be paid jointly and severally, the one paying the other to be absolved.

In their declaration, the Mashangwas claimed that:

(1) In the year 2012, at Harare, and in church, the Makandiwas fraudulently and misrepresented to the Mashangwas that anyone with a bank debt or loan was to be cancelled as it was the season of miraculous cancellation of debts after the Makandiwas were informed, privately, that the Mashangwas had an existing ZB Bank loan to the tune of US$500,000.

As a result of the misrepresentation, the Mashangwas were induced not to pay the ZB Bank loan, and, in the result, the Bank executed on the Mashangwas property being 14 Edinburgh Road, Harare for $500,000 thereby losing their house valued at $700,000.

(2) In the same year, the Makandiwas misrepresented, in church, that one Tichaona Mawere was a great lawyer who would not lose a case, when, in fact, Mr Tichaona Mawere was an unregistered legal practitioner.

Acting on the misrepresentation, the Mashangwas handed over their McDowell file to the said Tichaona Mawere for a claim of US$1,698,000 and expended in fees an amount of US$37,000. Tichaona Mawere then produced fake court orders and the Mashangwas lost a total sum of US$1,735,000.

(3) In the years ranging from 2014 to 2016, the Mashangwas were called on stage, in church, by the Makandiwas and were announced as a successful example in their Ministry (UFIC).

Acting on this misrepresentation, the Mashangwas made various direct contributions to the Makandiwas and the church money amounting to US$1,100,000.

(4) The Mashangwas were also paraded in church, on the stage, by the Makandiwas, as the chosen people by God to have succeeded in business.

As a result of the misrepresentation, the Mashangwas marketed the Makandiwas prophecies to the tune of US$2,000,000.

(5) and (6) In claims (5) and (6), they alleged that the Makandiwas defamed them thereby destroying their reputation and causing monetary loss to the tune of USD500,000.

Having been served with the summons, the Makandiwas entered appearance to defend the claims.

They proceeded to address a letter, in terms of Rule 140 of the High Court Rules 1971, to the Mashangwas pointing out that the claims were vague and embarrassing and that they did not disclose a cause of action, and asked whether they were suing in contract or delict; and, as regards claim (5) and (6) asked whether the claims were in defamation or injuria.

The Mashangwas did not respond to the letter, causing the Makandiwas to file an exception on 30 August 2017 to the Mashangwas pleadings in terms of Order 21 Rule 137(1)(b) in case HC7214/18.

The exception was heard on 6 November 2017 by MANGOTA J in respect of all the six claims but was dismissed on 12 January 2018 and the Mashangwas were ordered to amend their declaration in respect of claims (5) and (6), and, the Makandiwas to plead, and thereafter, the matter was to proceed in terms of the High Court Rules 1971.

However, after the dismissal of their exception, the Makandiwas filed another court application on 23 February 2018 for the dismissal of the Mashangwas claims in terms of Order 11 Rule 75(1) of the High Court Rules 1971 in HC1774/18.

The Mashangwas, having felt that the Makandiwas had neglected or failed to timeously prosecute the court application which they instituted under case HC1774/18, filed a chamber application for dismissal on 8 May 2018 under HC4197/18.

Both applications were ready for hearing at almost the same time, before different judges, hence the consolidation of the two applications.

ISSUES FOR DETERMINATION

This court is therefore being asked to decide two issues simultaneously:

(i) The first issue is whether the Makandiwas application should be dismissed for want of prosecution as prayed for by the Mashangwas in HC4197/18.

In the event of this court granting the relief asked by the Mashangwas, this would be the end of the matters and this court will not deal with the Makandiwas application.

(ii) However, in the event that this court dismisses the Mashangwas application for dismissal, the court will proceed to deal with the second issue pertaining to the Makandiwas application for dismissal of the Mashangwas claims in the main case under HC7214/17....,.

SHOULD MAIN MATTER BE DISMISSED IN TERMS OF ORDER 11 RULE 75(1) OF THE HIGH COURT RULES

After the dismissal of their exception in HC7214/17 the Makandiwas pleaded to the main case and filed this application for summary dismissal of the principal case as being frivolous and vexatious in terms of Order 11 Rule 75(1) of the High Court Rules 1971 (the Rules).

The principal case contained the six claims brought against them by the Mashangwas as outlined above. I shall endeavor to deal with each of the claims where possible.

Suffice to state, at this stage, that Rule 75 of the High Court Rules provides that:

“75 Application for Dismissal of Action

(1) Where a defendant has filed his plea, he may make a court application for the dismissal of the action on the ground that it is frivolous or vexatious.

(2) A court application in terms of subrule (1) shall be supported by affidavit made by the defendant or a person who can swear positively to the facts or averments set out therein, stating that in his belief the action is frivolous or vexatious and setting out the grounds for his belief.

(3) A deponent may attach to his affidavit, filed in terms of subrule (2), documents which verify his belief that the action is frivolous or vexatious.”

In their supporting affidavits, the Makandiwas prayed that the principal case must accordingly be summarily dismissed pursuant to Rule 75(1) of the High Court Rules, and contended, among other things, that the action in the principal case is not only both frivolous and vexatious, but also a self–evident gross and contemptuous abuse of the process of this court on the bases that -

“1. The plaintiffs have deliberately pleaded and founded their purported causes of action on deliberate and easily demonstrable falsehoods;

2. Each of the six (6) claims suffers from predictable failure and so groundless that no reasonable person could ever hope to obtain relief therefrom;

3. The principle case has not been brought with the bona fide intention of obtaining relief;

4. The proceedings have been brought with the sole and mala fide intention of annoying and harassing us. It as such amounts to the unmitigated abuse and contempt of this court and the process thereof; and

5. The principal case is inconsistent with reason and common sense, and, as such, unworthy of serious consideration.”

The respondents (the Mashangwas) opposed the application. They took seven points in limine. The points were:

(1) Matter passed in rem judicatam;

(2) Estopel;

(3) Disputes of fact;

(4) Unlawful reversal of order of proceedings;

(5) Attempt to avoid the consequences of a valid acknowledgement;

(6) Mala fides and abuse of court process; and

(7) Provisions of the Rules not available to applicants.

On the merits, they contended, among other things, that, Mr Makandiwa is a common fraudster, a false prophet who has no relationship with God, is a liar who lied about a lawyer called Tichaona Mawere, and many other ills....,.

AD MERITS

The Makandiwas filed this application in terms of Rule 75(1) of the High Court Rules 1971 for the summary dismissal of frivolous and vexatious action proceedings instituted by the Mashangwas in an action pending before this court under case number HC7214/17.

The respondents made six claims.

Their cause of action in claims 1-4 is said to fall into the delict of fraud. The fifth claim is said to relate to the delict of injurious falsehoods. The sixth claim has been held to fall under the delict of injuria.

A common thread runs through these claims.

They plead that they were members of the third applicant (United Family International Church), a Christian Church founded by the first and second applicants (Emmanuel Makandiwa and Ruth Makandiwa). They further allege that they either received prophesies or representations in church or that certain injurious publications were made of and concerning them or their business. Hence, they claimed various sums all aggregating to a staggering six and a half million United States Dollars.

The applicants pleaded to each of the six claims. They denied the allegations.

Their pleas were filed in contemplation of the present application for dismissal.

The applicants placed before the court a detailed verifying affidavit that traversed and attached incontrovertible evidence which they said exposed the falsity of the facts pleaded by the plaintiffs in their declaration.

The applicants, thereafter, filed the present application for the dismissal of the suit as frivolous and vexatious.

The application is strongly opposed by the respondents.

THE LAW

Rule 75 of the High Court Rules allows a defendant, who has pleaded, to apply for the summary dismissal of the action on the grounds that it is vexatious.

The defendants must, on notice of motion, positively swear to the facts and verify their belief that the action is vexatious and deserving of summary dismissal.

The purpose of this procedure is the same as that of the procedure for summary judgment or provisional sentence.

The court, if satisfied, has the inherent jurisdiction to disallow and dismiss proceedings that are frivolous or vexatious: see Ushewokunze Housing Co-oporative Society Limited v Crest Breeders International (Private) Limited HH529-16; Rogers v Rogers & Another 2008 (1) ZLR 330…,.; and S v Coopers & Others 1977 (3) SA 475…,.

The test to be applied can be explained in no better words than those of MAKARAU JP…, in Stationery Box (Pvt) Ltd v Natcon (Pvt) Ltd & Anor HH64-10 as follows:

“The test to be applied in summary judgment applications is clear and settled. The onus resting on a defendant resisting summary judgment has been described as amongst the lightest that the rules of procedure cast on the litigants. He does not have to prove his defence. He must merely allege facts, which, if he can succeed in establishing them at the trial, would entitle him to succeed in his defence.

The defence so set up must, however, be plausible and bona fide.

Obviously implied in this test, but oft overlooked by legal practitioners, is that the defendant must raise a defence. The facts alleged must lead to and establish a defence that meets the claim squarely. If the facts that he alleges, fascinating as they may be and which he may very well be able to prove at the trial of the matter, do not amount to a defence at law, the defendant would not have discharged the onus on him and summary judgement must be granted.

To defend a claim arising out of a contract of sale, the purchaser must attack either the existence of the agreement itself or the fact that the goods sold were not delivered to him. If other defences are raised, they must be raised explicitly. It is not the function of the court to put words into the defendant's mouth and thereby establish a possible defence on his behalf when the defendant fails to do so in his opposing affidavit.”

In the present case, the respondents ultimately denied any liability to the plaintiffs.

This application, therefore, turns on the law of summary dismissal of cases on the basis that they are frivolous and vexatious.

Order 11 Rule 75(1) of the High Court Rules, which provides for this procedure, states that the defendant may make an application for the summary dismissal of the case, after filing of his plea, on the grounds that it is frivolous and vexatious.

My sole duty is to determine whether or not the claims are frivolous and vexatious.

CLAIM ONE

In claim one, the Mashangwas alleged that in the year 2012, and in church, the Makandiwas fraudulently and misrepresented that anyone with a Bank debt or loan was to be cancelled as it was a season of miraculous cancellation of debts.

The essence of this claim is that the applicants, having been informed, privately, that the respondents were indebted to ZB Bank Limited in the sum of $USD500,000 made representations well knowing same to be false.

The respondents were induced to believe the applicants more than anyone else in the church and defaulted on the payment of their loan resulting in their house being executed.

This misrepresentation has been denied on the basis, that, the said property had been sold by the respondents as early as February 2012 for USD800,000 to the Nemanji Family Trust represented by one Steward Nyamushaya. Hence, the claim was based on falsehoods meant to annoy, vex, and harass the applicants and without any bona fide intention of obtaining relief.

Even if it is true that such a representation was made in church, it is inconsistent with common sense and reason that God would unconditionally cancel all the debts of every nature and description and that congregates should immediately stop paying any loans that they had even before the same had been cancelled; that congregates should accordingly not engage their creditors; and that congregates should ignore demands, court processes, judgments, notices of attachment and advertisements of sales in execution and must not take any steps to safeguard their positions.

The respondents, from the papers, are business people of undoubted and unparalleled acumen. They knew very well that the debts, if any, they had incurred, they had done so in terms of positive law and not ecclesiastical law.

Even in the Holy Bible, King James Version, in Genesis 3 v 19, God advised Adam in the following words:

“In the sweat of thy face shalt thou eat bread, till thou return unto the ground; for out of it was thou taken…,.”

“By the sweat of your face you shall eat bread, till you return to the ground, for out of it you were taken; for you are dust, and to dust you shall return.”: see The Gideons International version…,.

In the vernacular language: 'uchadya cheziya kusvikira murufu': this is loosely translated to mean there is nothing for free and every man shall work hard to achieve what he wanted until death, and that God would give them power and wisdom to achieve their goals and not just expect miracles to happen on their own.

If Makandiwa talked of season of miraculous cancellations of debts, he did not literally mean those with debts should go home and just sit waiting for debts to be miraculously wiped without them doing something about them.

The law on misrepresentations in delict is settled: see Murray v McLean N.O. 1970 (1) SA 133 (R).

I therefore find the first claim to be frivolous and vexatious and must be summarily dismissed with the contempt it deserves in terms of Order 11 Rule 75(1) of the High Court Rules.

CLAIM TWO

The allegations in Claim Two are that the applicants made representations, in church, that a certain Tichaona Mawere was a great lawyer and that he would not lose any case.

This representation was denied by the applicants.

The applicants alleged, that, the prophecy given concerned the Mawere's exclusively to their family problems. It particularly related to their legal skills at home in resolving their family disputes. The applicant said so while counselling the Maweres not to do so. Never was anyone told to engage Tichaona Mawere who was a great lawyer. The applicants alleged they could not have said so given the fact that the respondents had engaged one Tichaona Govere of Govere Law Chambers to act for them on 20 March 2013, on a contingent basis, to prosecute the case against McDowells in judgment number HH288-13 which was argued before TAKUVA J on 23 July 2013, whose judgment was delivered on 2 September 2013.

If at all something to that effect was said, the respondents are not saying they were directly told to engage Tichaona Mawere.

The claim was contrived and perjured.

In my view, if indeed the applicants said Tichaona Mawere was a great lawyer, or words to that effect, they did not specifically tell the Mashangwas to hire him. They just misconstrued the prophecy or sermon to their own prejudice.

It is equally frivolous and vexatious that no relief could be obtained from it. The claim deserves to be summarily dismissed.

CLAIM THREE

Claim Three is based on the fact, that, from the year 2014 to 2016, the Mashangwas were called on stage, in church, and were announced as a successful example in their Ministry, United Family International Church (UFIC), and, as a result, they made direct contributions to the church amounting to $1,100,000.

The gravamen of this claim is that the respondents lost the sum of USD$1,100,000 as a result of the representation made by the applicants: in short, they are saying if the applicants had not paraded them in church as a successful example in the Ministry they would not have made contributions to the church.

Contributions are generally known as tithes and offerings.

Tithes and offerings are biblical concepts recorded as early as the Book of Genesis. Tithes and offerings are acts of worship that edifies the relationship between the person who gives the offering and God. They are predicated on the believer's faith and are not enforced. They are free will offerings given in all the Christian Churches. Tithes and offerings constitute 10% of the giver or offeror's income, though, in practice, not all believers give the exact 10%. Only in certain churches is the 10% enforced by forcing the followers to declare their incomes from which the 10% is calculated.

If the respondents allegation is true, which may be so given that they are business people, then, their income during the period in question exceeded USD$11,000,000, and, if they believed the representation made by the applicants, that they are a successful example in the Ministry, they willingly parted with an amount of USD1,100,000.

However, what makes the claim frivolous and vexatious, in my view, is the fact that if ever the respondents parted with such kind of money inside the third applicant, United Family International Church (UFIC), those were free will offerings not recoverable from anyone - unless the respondents wish to try the impossible and get that from God, the receiver of the offerings.

How they hope to get a court to interpret scripture and say one reading is preferable to another in the Holy Bible remains a mystery.

In casu, the respondents admitted, in their pleadings, that the tithes they gave cannot be returned.

Having made that admission in pleadings, the admission thereof had fatal consequences to their case. The admissions are conclusive proof of the admitted fact and the respondents are, at law, precluded from controverting it.

This is our law.

See DD Transport (Pvt) Ltd v Abbort 1988 (2) ZLR 92 (SC); Moresby–White v Moresby White 1972 (3) SA 222 (RA).

This claim, like the others above, is frivolous and vexatious and is summarily dismissed.

CLAIM FOUR

Claim Four, with the greatest of respect, does not make sense; its vague and embarrassing.

The gravamen of the claim is that the respondents were paraded on stage, in church, and shown to the other congregates as the chosen people by God to have succeeded in their business. As a result, they then marketed the first applicant's prophecies (Emmanuel Makandiwa) for the advancement of the applicants interests and prophesies, when, in truth and fact, this was sheer misrepresentation and they lost USD2,000,000.

What the respondents are saying is that when they were paraded in church as the chosen people by God, in actual fact, they were not chosen people by God. That, when they were said to be successful in their own business (remember they were in fact business people) they were really not successful people. That, because of the praise made by the applicants, they went on their own way to market the applicants prophesies using their own funds without being ordered to do so by the applicants. They did so because they genuinely believed that they were the chosen people by God. They, in my view, decided to show off and lost USD2,000,000.

At law, they did not plead any cognizable or known cause of action.

This is bad in law, and is frivolous and vexatious to then claim the sum of USD2,000,000 from the applicants. If at all, this may fall under volenti non fit injuria (he who voluntarily exercises his will suffers no injury).

The claim is therefore frivolous and vexatious and must be summarily dismissed.

CC21-19 : NELSON CHAMISA vs EMMERSON DAMBUDZO MNANGAGWA and OTHERS
Ruled By: MALABA CJ, GWAUNZA DCJ, GARWE JCC, MAKARAU JCC, HLATSHWAYO JCC, PATEL JCC, BHUNU JCC, UCHENA JCC and MAKONI JCC

Counsel for the first respondent further submitted that the applicant's case had been premised on bare and bald allegations which were insufficient to set aside the Presidential election result….,.Counsel for the twenty-third (Zimbabwe Electoral Commission), twenty-fourth (Chairperson of the Zimbabwe Electoral Commission) and twenty-fifth (Chief Executive Officer of the Zimbabwe ...

Counsel for the first respondent further submitted that the applicant's case had been premised on bare and bald allegations which were insufficient to set aside the Presidential election result….,.

Counsel for the twenty-third (Zimbabwe Electoral Commission), twenty-fourth (Chairperson of the Zimbabwe Electoral Commission) and twenty-fifth (Chief Executive Officer of the Zimbabwe Electoral Commission) respondents also submitted that there was no proof of over-voting. The bald allegations of over voting were not substantiated. He further submitted that the applicant failed to meet the standard of proof of the allegation of rigging, especially having regard to the fact that the allegation was not in any way linked to the actual ballot papers.

Counsel for the twenty-third, twenty-fourth and twenty-fifth respondents submitted that the applicant did not place sufficient evidence before the Court to challenge the validity of the Presidential election result announced by the twenty-fourth respondent in terms of the law….,.

The only issue arising for determination was whether the applicant produced sufficient and clear evidence to prove his case.

Where the grounds for challenging the validity of an election result are allegations of irregularities committed by officers of the body charged with the responsibility of conducting the election or electoral malpractices committed by others who took part in the election process, the duty of a court is to satisfy itself, by sufficient and clear evidence produced by the party bearing the onus of proof of the allegation, that the alleged acts occurred….,.

It is standard procedure that the one who alleges a fact on the basis of which his or her cause of action depends bears the onus of proving that fact.

It was for the applicant to prove, to the satisfaction of the Court, that the irregularities he alleged were committed by the Zimbabwe Electoral Commission and its officers in the conduct of the election were, as a matter of fact, committed. It was for the applicant to produce sufficient and clear evidence to establish the grounds of the application to entitle him to the granting of the relief sought….,.

In Buhari v Obasanjo (2005) CLR 7 (k) (SC) the Supreme Court of Nigeria decided the question of who bears the burden of proof in election petitions. It said:

“He who asserts is required to prove such fact by adducing credible evidence. If the party fails to do so its case will fail. On the other hand, if the party succeeds in adducing evidence to prove the pleaded fact it is said to have discharged the burden of proof that rests on it. The burden is then said to have shifted to the party's adversary to prove that the fact established by the evidence adduced could not, on the preponderance of the evidence, result in the Court giving judgment in favour of the party.”

The same position was adopted by the Supreme Court of Kenya in Raila Odinga and Five Ors v Independent Electoral and Boundaries Commission and Three Ors (Petition 5,3 and 4 of 2013) [2013] eKLR where the court explained as follows at paragraphs [195] and [196]:

“[195] There is, apparently, a common thread in the foregoing comparative jurisprudence on burden of proof in election cases. Its essence is that an electoral cause is established much in the same way as a civil cause: the legal burden rests on the petitioner, but, depending on the effectiveness with which he or she discharges this, the evidential burden keeps shifting. Ultimately, of course, it falls to the Court to determine whether a firm and unanswered case has been made.

[196] We find merit in such a judicial approach, as is well exemplified in the several cases from Nigeria. Where a party alleges non-conformity with the electoral law, the petitioner must not only prove that there has been non-compliance with the law, but that such failure of compliance did affect the validity of the elections. It is on that basis that the respondent bears the burden of proving the contrary. This emerges from a long-standing common law approach in respect of alleged irregularity in the acts of public bodies. Omnia praesumuntur rite et solemniter esse acta: all acts are presumed to have been done rightly and regularly. So, the petitioner must set out by raising firm and credible evidence of the public authority's departures from the prescriptions of the law.”…,.

In Apolot v Amongin (Election Petition Appeal No. 0060 of 2016) [2018] UGCA 18 where, speaking generally on the evidence required in election petitions, the Ugandan Court of Appeal held…,:

“It is now trite law in election petitions that the petitioner must adduce cogent evidence to prove his or her case to the satisfaction of the Court. In Masiko Winifred Komuhangi v Babihuga J. Winnie Election Petition Appeal No.9 of 2002, JUSTICE MUKASAKIKONYOGO DCJ, (as she then was) held in her lead judgment that:

'As I have already stated above, the decision of Court should be based on the cogency of evidence adduced by the party who seeks judgment in his or her favour. It must be that kind of evidence that is free from contradictions, truthful so as to convince a reasonable tribunal to give judgment in a party's favour.'”…,.

There is a controversy on whether the standard of proof to be applied in election petitions should be the civil standard of balance of probabilities or the criminal standard requiring proof beyond a reasonable doubt. This is based on the fact that often the allegations relating to electoral malpractices include criminal and quasi-criminal allegations, such as bribery, fraud, corruption and violence.

In the decision of the Supreme Court of Kenya in Odinga and Anor v Independent Electoral and Boundaries Commission and Ors Presidential Election Petition No.1 of 2017 [2017] eKLR, the court struck a balance between the criminal and civil standard of proof. It said…,:

“…, where no allegations of a criminal or quasi-criminal nature are made in an electoral petition, an 'intermediate standard of proof', one beyond the ordinary civil litigation standard of proof on a 'balance of probabilities', but below the criminal standard of proof 'beyond reasonable doubt' is applied.”…,.

Where the allegations of electoral malpractices do not contain allegations of commission of acts requiring proof of a criminal intent, such as fraud, corruption, violence, intimidation and bribery, the standard of proof remains that of a balance of probabilities. In allegations that relate to commission of acts that require proof of criminal intent, the criminal standard of proof beyond reasonable doubt would apply. There is no basis for departing from settled principles of standards of proof to hold a petitioner to a higher standard of proof in electoral petition cases simply by reason of their sui generis nature. In the view of the Court, there is no justification for an “intermediate standard of proof” to be applied in election petitions.

SC38-19 : PIA NGWARU vs FIRST MUTUAL HEALTH COMPANY (PRIVATE) LIMITED
Ruled By: GARWE JA, GUVAVA JA and MAVANGIRA JA

The appellant was charged with breaching sections 24(c) and 25(h) of the First Mutual Holdings Limited Group Code of Conduct. The charges were framed as:“1…..,.2. Section 25 'Offences relating to dishonesty, theft, fraud and other related offences'(h) Any other dishonesty towards company, fellow members of staff or members of the ...

The appellant was charged with breaching sections 24(c) and 25(h) of the First Mutual Holdings Limited Group Code of Conduct. The charges were framed as:

“1…..,.

2. Section 25 'Offences relating to dishonesty, theft, fraud and other related offences'

(h) Any other dishonesty towards company, fellow members of staff or members of the public.”

The first of the two remaining issues for determination relates to the second Count that the appellant was charged and found guilty on. The submission by counsel for the appellant was that the respondent had to prove the appellant's guilt on that Count beyond reasonable doubt and not merely on a balance of probabilities.

The position at law, as settled in this jurisdiction, is that the standard of proof in disciplinary proceedings is a balance of probabilities - even if the act of misconduct is of a criminal nature.

In ZESA v Dera 1998 (1) ZLR 500 (S), the respondent was an employee of the appellant. He was charged with dishonesty, in contravention of the appellant's Code of Conduct. The committee found him guilty as charged and imposed a penalty of dismissal. An Appeals Committee dismissed the respondent's appeal. The then Labour Relations Tribunal overturned the Appeals Committee's decision, on appeal, on the grounds that the appellant had to prove the respondent's guilt beyond reasonable doubt, not merely on a balance of probabilities.

In allowing the appeal against the Labour Relations Tribunal's decision, this Court rejected the position taken by the Labour Relations Tribunal that, in disciplinary proceedings, the accused's guilt must be proven beyond reasonable doubt. At 503E-504D, this Court remarked thus;

“It is a startling, and in my view, an entirely novel proposition, that, in a civil case, the standard of proof should be anything other than proof on a balance of probabilities. The reason, I have always understood, why in a criminal case proof beyond reasonable doubt is required, is that the loss of a criminal case can result in death by hanging, incarceration, or at the least, the branding of a person as a criminal or convict. A criminal trial is an attack by the State, representing the whole of society, upon the integrity of an individual. Thus, a person convicted of a crime is marked as one whose conduct stands condemned by society.

A civil case, on the other hand, is merely a dispute between individuals. The loss of such a case, however ruinous in terms of money or property, loss of employment or loss of face, is not a judgment by society as a whole, but simply a resolution of the dispute between the parties. Moreover, the parties in a civil dispute are equally interested parties, in the sense that each one seeks relief. A claims money from B, B claims an order that he owes nothing; A wishes to dismiss B, B wishes to remain employed. In a criminal matter, the State does not stand to gain or lose by the outcome of the trial. So, if B is acquitted of theft, the State does not suffer. But if A is forced to continue to employ B whom it has accused of theft, A does indeed suffer if B, who is in fact a thief, is found not guilty of theft. So, in a criminal case, one is primarily concerned with doing justice to the accused. In a civil case, one is concerned to do justice to each party. Each party has a right to justice and so the test for that justice has to balance their competing claims. Hence the 'balance of probability' test.

ZESA, in the present case, has a right not to be forced to employ a thief; Dera has a right not to be dismissed unjustly. The law must balance those rights.”

This understanding is reinforced by authority. HOFFMAN & ZEFFERTT, SA Law of Evidence, 4ed…, say categorically:

“There are no exceptions to the rule that all issues in a civil action are decided upon a preponderance of probabilities.”

JOUBERT, The Law of South Africa, Vol. 9…, says equally unequivocally:

“In civil proceedings, proof is furnished upon a preponderance of probability and this is the case even when allegations of criminal or immoral conduct are to be proved.”

These statements are fully supported by the cases cited by the learned authors, and, more recently, by dicta in such cases as B v P 1991 (4) SA 113 (T)…, (a Full Bench decision), and Industrial Steel & Pipe Ltd v Sengeredo SC128-97.

This Court, in the unreported judgment of Nyarumbu v Sandvik Mining & Construction Zimbabwe (Pvt) Ltd SC31-13…, also stated as follows:

“As a general rule, the standard of proof required in disciplinary matters is that on a balance of probabilities. This is obviously not as stringent as the standard required in criminal cases.”

The position is also the same in South Africa, as explained by J GROGAN, Workplace Law (11^th ed, Juta & Co (Pty) Ltd, Grahamnstown, 2014) where…, he states thus;

“As in criminal proceedings, the decision of the presiding officer should be made in two distinct stages. First, the guilt of the accused employee should be determined on the evidence, without reference to the employer`s disciplinary record. As far as proof of guilt is concerned, the presiding officer must ensure that the employee indeed infringed the applicable rule. The standard of proof in this regard is proof on a balance of probabilities. When assessing whether the initiator has achieved that standard, all material evidence must be considered. While it is recognised that presiding officers are usually lay persons, they must still apply the law when assessing guilt. The degree of accuracy expected of presiding officers will depend partly on the disciplinary code and partly on the manner in which the charges are phrased. A charge of theft, for example, requires a presiding officer to ensure, at the very least, and, albeit, on a balance of probabilities, that the employee appropriated the property with the intention of denying the owner possession.”

In Clarence v National Commissioner of the South African Police Services [2012] 2 BLLR 99 (LAC), the appellant was an inspector in the South African Police Service. As a result of an incident on 12 November 2004 the appellant was charged with contravening Regulation 18(3) of the South African Police Service Discipline Regulations of 1996. It was alleged that he performed an act or failed to perform an act which constituted an offence, namely, murder, when he shot and killed a colleague on the day in question. He was found guilty by the employer and dismissed from work. Aggrieved by that decision, the appellant in that matter alleged an unfair dismissal. The arbitrator found that the dismissal of the appellant was substantively unfair and ordered the respondent to reinstate him retrospectively. The arbitrator's decision was set aside on review in the Labour Court and this resulted in an appeal before the South African Labour Appeal Court.

The court held as follows with regards to the standard of proof;

“The employer bears the onus of proving, at the arbitration, that the member of the SAPS has in fact committed an offence although, of course, the arbitrator does not convict the member of the offence. The employer must prove that the member has committed the act on a balance of probabilities and not on the criminal law onus of proof beyond reasonable doubt. If the member raises a defence, as the appellant did here, and pleads that his action was in private defence so that he acted lawfully does SAPS bear the onus of proving that this defence would have failed had it been raised at a criminal trial? It does, because in a criminal trial the State would have borne the onus, and, in the context of misconduct, SAPS must show, on a balance of probabilities, that the act, allegedly committed by the member, was unlawful.”

There has been, at some stage, some confusion on the issue of the applicable standard of proof in disciplinary proceedings owing to the decision in Mugabe & Anor v Law Society of Zimbabwe 1994 (2) ZLR 356 (S).

In that case, the appellants, who were legal practitioners, and their two juniors, were jointly and severally charged and found guilty of unprofessional, dishonourable or unworthy conduct by the Law Society Disciplinary Tribunal in that they had mis-appropriated clients trust funds and/or had failed to keep proper books of account as required by the Legal Practitioners Act and the relevant Regulations and By-laws. In determining the standard of proof in that case the court…, held as follows;

“This raises squarely the issue of the burden of proof in matters coming before the Disciplinary Tribunal of the Law Society. It seems to me, from a perusal of the authorities, that the burden of proof varies with the gravity of the offence charged. Where the offence has strong criminal connotations, the burden, as submitted by counsel for the appellants, is on the Society to prove its case beyond reasonable doubt. On the other hand, where the offence bears no criminal implication, the burden is the ordinary civil one of a balance of probabilities.”

The law is succinctly stated by the learned author of The Law of South Africa, Vol 14 p371 para360 as follows:

“In an application to strike an attorney from the roll for misappropriation of a client's money, proof of guilt beyond reasonable doubt is required from the Law Society.”

The two cases cited by the learned author for this proposition are Inc Law Soc of the Tvl v C 1954 (4) SA 410 (T) at 412G – 413C and Pitluk v Law Soc of Rhodesia 1975 (2) SA 21 (RA) at 29A–D. The learned author advances, as a requirement for this higher standard of proof, the reason that:

“Proceedings of this nature against an attorney are proceedings of a highly penal character. They are very analogous to criminal proceedings.”

In support of this statement, the learned author refers us to Inc Law Soc v Van Os 1906 TS 733 at 739. He, however, cautions that:

“Disciplinary proceedings are in the nature of civil proceedings. Hassim (also known as Essack) v Inc Law Soc of Natal 1977 (2) SA 757 (A), notwithstanding that a higher standard of proof is demanded of the Society where it prefers charges that impute criminal conduct and the fact of an attorney's conviction of a criminal offence is regarded as prima facie proof that he had in fact committed the offence. In the instant case, there is no such conviction of the appellants and nothing less than proof beyond a reasonable doubt is required from the Society.”

The learned author concludes para 360 (supra) with the following:

“'If the allegation goes no further than alleging some breach of professional etiquette, then proof of that allegation need only be on a balance of probabilities: Pitluk v Law Soc of Rhodesia supra.

Counsel for the Society drew our attention to a conflict between the approach of the courts in South Africa and that of the courts in Zimbabwe regarding the onus of proof at disciplinary proceedings. Baker J, in Law Society, Cape v Koch 1985 (4) SA 379 (C), relying on the decisions in Olivier v Cape Bar Council 1972 (3) SA 485 (A) and Rheeder v Ingelyfde Wetsgenootskap van die Oranje-Vrystaat 1972 (3) SA 502 (A) held that, in all civil cases or cases civil in character, such as disciplinary proceedings of tribunals before which the appellants appeared, proof on a balance of probabilities was the applicable measure of proof.

In Pitluk v Law Soc of Rhodesia supra, even though Olivier's case supra was brought to the attention of the court, Beadle CJ at p 29B–D reflected that:

'I think, however, that in order to remove any difficulty in deciding whether an allegation involves professional misconduct simpliciter or where an allegation involves an element of deceit or moral turpitude of a high order some indication should be given as to where to draw the line.'

The learned Chief Justice then advised:

'The line, I consider, can appropriately be drawn between those allegations which might make the accused liable to criminal prosecution and those which might not. For example, if the allegation against the attorney was that he had embezzled trust funds, that allegation should be proved beyond a reasonable doubt; but, if the allegation went no further than alleging some breach of professional etiquette, then proof of that allegation need only be proved on a balance of probabilities.'

This view, expressed by the learned Chief Justice, represents the law of Zimbabwe in respect of the issue of onus in proceedings such as that under consideration, whatever the law in South Africa on this subject may be. Misappropriation of trust funds attracts the striking off the Register the name of a legal practitioner: Chizikani v Law Soc of Zimbabwe 1994 (1) ZLR 382 (S). It would be grossly unfair to condemn a man and punish him for an offence of a criminal nature on the balance of probabilities rather than evidence which established the commission of the offence beyond a reasonable doubt.'”

Mention must be made of the decision of this Court in Astra Industries Ltd v Peter Chamburuka SC27-12 where OMERJEE AJA, relying on the decision in Mugabe & Anor v Law Society of Zimbabwe 1994 (2) ZLR 356 (S)…, stated, obiter, as follows:

“The respondent was charged and convicted of theft among other offences. The essential elements of theft remain the same whether in a disciplinary hearing or in a criminal trial. The position now appears settled, in this jurisdiction, that where a person is charged in a disciplinary hearing with an offence of a criminal nature, such an allegation should be proved beyond a reasonable doubt and that it would be unfair to condemn a man and punish him for an offence of a criminal nature on a balance of probabilities rather than evidence which established the commission of the offence beyond a reasonable doubt. In this connection see Mugabe & Anor v Law Society of Zimbabwe 1994 (2) ZLR 356 (S) 364G – 365B. For the purposes of the present appeal, it is not necessary to determine whether or not this principle should apply to ordinary disciplinary proceedings in labour matters.”…,.

The burden of proof, as set out in Mugabe & Anor v Law Society of Zimbabwe 1994 (2) ZLR 356 (S) was, however, qualified by McNALLY JA in ZESA v Dera 1998 (1) ZLR 500 (S)…, where, at 504E-G he stated as follows;

“I am satisfied that the concession as to the law in this regard before the Tribunal was entirely wrong. Reliance was placed upon cases involving the disciplining of lawyers before disciplinary tribunals such as Mugabe & Mutezo v Law Society of Zimbabwe supra at 365B-C; and Pitluk v Law Society of Rhodesia 1974 (2) RLR 245 (A). The fact that, in such proceedings, a higher standard of proof is required, does not lead to the conclusion that a higher standard of proof is required in all disciplinary proceedings.

There is a fundamental distinction.

When the Law Society is disciplining one of its members, it is acting as a guardian of the public interest. It is not itself a directly interested party in the sense that an employer is. It is acting more like the State in a criminal trial, than like an employer in a civil dispute with its employee. Its interests do not need to be protected in the same way as those of an employer. There is no need to balance competing interests, as there is in a dispute between employee and employer.”…,.

On the qualification of Mugabe & Anor v Law Society of Zimbabwe 1994 (2) ZLR 356 (S), as expounded in ZESA v Dera 1998 (1) ZLR 500 (S), I am respectfully unable to agree with this Court's remarks in Astra Industries Ltd v Peter Chamburuka SC27-12.

What can be concluded from the authorities above. therefore, to the exclusion of the judgment in Astra Industries Ltd v Peter Chamburuka SC27-12, is that in disciplinary proceedings before a disciplinary tribunal, the burden of proof is on a balance of probabilities and not beyond reasonable doubt.

Various codes of conduct have provisions which prohibit acts of misconduct that are criminal in nature like theft. There is no requirement, neither is it a part of our law, that those acts of misconduct must be proved beyond reasonable doubt.

Where, however, a person is charged and arraigned before a body like the Law Society disciplinary tribunal for acts of misconduct of a criminal nature, the accused person's guilt must be proven beyond reasonable doubt because the Law Society acts as a guardian for society against unscrupulous lawyers.

In that regard, therefore, the correct position of the law is that in all disciplinary proceedings the burden of proof is on a balance of probabilities. The only exception is in disciplinary proceedings before a body like the Law Society disciplinary tribunal where a legal practitioner faces charges of a criminal nature. In those proceedings, the guilt of the legal practitioner must be proved beyond reasonable doubt.

I find further fortification in this regard in the recent judgment by GWAUNZA DCJ, in the case of Charles Marevesa v Telone (Private) Limited SC32-19 where…, she stated:

“From the above analysis of relevant dicta, I am satisfied that the position spelt out in ZESA v Dera (supra) remains the correct position of the law. The burden of proof in labour proceedings is proof on a balance of probabilities. This is so regardless of whether or not the charge in point has criminal connotations. The Labour Court does not sit as a Criminal Court and proceedings before it are civil in nature. The applicant, I find, misinterpreted the remarks in Astra Industries v Chamburuka judgment (supra).”

The court therefore finds that the argument made on behalf of the appellant on this aspect is without merit and is accordingly dismissed.

SC27-12 : ASTRA INDUSTRIES LIMITED vs PETER CHAMBURUKA
Ruled By: ZIYAMBI JA, GARWE JA and OMERJEE AJA

The position is now settled in our law, that, in civil proceedings, a party who makes a positive allegation bears the burden to prove such allegation. This position has been affirmed by this Court. In Book v Davidson 1988 (1) ZLR 365 (S)…, DUMBUTSHENA CJ quoted with approval the words ...

HH656-15 : INNOCENT CHITIKI vs PAN AFRICAN MINING (PRIVATE) LIMITED
Ruled By: CHIGUMBA J

In a civil case, the plaintiff must prove its case on a balance of probabilities. This has been interpreted to mean that:“It must carry a reasonable degree of probability but not so high as required in a criminal case. If the evidence is such that the tribunal can say 'we ...

In a civil case, the plaintiff must prove its case on a balance of probabilities. This has been interpreted to mean that:

“It must carry a reasonable degree of probability but not so high as required in a criminal case. If the evidence is such that the tribunal can say 'we think it more probable than not' the burden is discharged; but if the probabilities are equal it is not.”

See Milner v Minister of Pensions1947 2 All ER 372…,. and Thulisani Dube Nyamambi v Bongani Ncube HB82-15.

In the case of Zimbabwe Electricity Supply Authority v Dera 1998 (1) ZLR 500 (SC), the court said that:

“…, in a civil case, the standard of proof is never anything other than proof on the balance of probabilities. The reason for the difference in onus between civil and criminal cases is that in the former the dispute is between individuals, where both sides are equally interested parties. The primary concern is to do justice to each party, and the test for that justice is to balance their competing claims. In a criminal matter, on the other hand, the trial is an attack by the State, representing society, on the integrity of an individual. The main concern is to do justice to the accused. If the prosecution fails, the State does not lose.”

The learned authors, HOFFMAN & ZEFFERTT, in their book SA Law of Evidence, 4ed…,state that;

“There are no exceptions to the rule that all issues in a civil action are decided upon a preponderance of probabilities.”

In JOUBERT, The Law of South Africa, vol 9…, the learned author says that:

“In civil proceedings, proof is furnished upon a preponderance of probability and this is the case even when allegations of criminal or immoral conduct are to be proved.”

Accordingly, we must balance the plaintiff's claim against the defendant's defence, and, in so doing, decide which of their versions is more likely to be true. In other words, which version is more believable or most likely to have transpired than the other.

The preponderance of probabilities is an exercise which involves an evaluation and an assessment of the likelihood of the plaintiff's version being the correct one as opposed to the defendant's or vice versa. In making this decision we look at the pleadings, at the documentary evidence, and at what the parties' representatives said and did while they were in the witness stand.

HH653-15 : LEWENOD ENTERPRISES (PRIVATE) LIMITED vs FREIGHT AFRICA LOGISTICS
Ruled By: CHIGUMBA J

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

This is an appeal against the decision of the High Court handed down under HH253-16 wherein the court a quo found the appellant liable to pay to the respondent the sum of US$847,847=65 together with costs of suit and interest at the prescribed rate from the date of the granting of the judgment to the date of payment in full.

The appellant is a statutory corporation set up in terms of the Infrastructure Development Bank of Zimbabwe Act [Chapter 24:14] (“the IDBZ Act”). The respondent is an oil company registered in accordance with the Companies Act [Chapter 24:03].

The background to the matter may be summarized as follows:

A company known as Wedzera Petroleum (Private) Limited (“Wedzera”) entered into a verbal agreement with the respondent wherein the respondent would sell bulk petroleum fuels to it from time to time. The respondent would supply the petroleum products on credit and raise invoices to be settled by Wedzera Petroleum. Wedzera Petroleum would, in turn, settle the invoices within ten days from the date on which the invoices would be raised.

In November 2010, the respondent sold to Wedzera, petroleum products worth US$847,847=65. The sale of the petroleum products was made on the basis of two guarantees made by the appellant binding itself to pay in the event that Wedzera Petroleum failed to honour the debt. The two guarantees were drafted on 5 November 2010 and 19 November 2010 for the sums of US$500,000 and US$450,000 respectively.

The guarantees issued by the appellant were in the form of a letter, which bore the letter head of the Infrastructural Development Bank of Zimbabwe. It was addressed to the respondent and signed by one Francis Mugwara (“Mugwara”) the Head of the Short Term Loans Unit.

Part of the first guarantee, dated 5 November 2010, read as follows:

“In consideration of Wedzera Petroleum (Pvt) Ltd…, agreeing to the submission of a guarantee for the supply of fuel products by Engen Petroleum Zimbabwe (Pvt) Ltd, we, Infrastructure Development Bank of Zimbabwe – IDBZ…, do hereby guarantee full payment of USD500,000.00…, being the total amount of the Bank Guarantee to Engen Petroleum Zimbabwe (Pvt) Limited. The payment of the USD500,000 will be after a period of 10 (ten) days from the date of fuel drawdown and is on revolving basis…,.”

The second guarantee, dated 19 November 2010, read as follows:

“In consideration of Wedzera Petroleum (Pvt) Ltd…, agreeing to the submission of a guarantee for the supply of fuel products by Engen Petroleum Zimbabwe (Pvt) Ltd, we, Infrastructure Development Bank of Zimbabwe – IDBZ…, do hereby guarantee full payment of USD450,000…, being the total amount of the Bank Guarantee to Engen Petroleum Zimbabwe (Pvt) Limited. The payment of the USD450,000 will be after a period of 10 (ten) days from the date of fuel draw-down and is on revolving basis…,.”

After the guarantees had been issued, Wedzera Petroleum failed to pay the debts arising from the petroleum products which were sold to it on credit by the respondent.

On 8 March 2011, Wedzera Petroleum wrote to the respondent informing that it (Wedzera Petroleum) was experiencing negative cash flows due to the unavailability of fuel during the months of December 2010 and January 2011 and that it was aware of its indebtedness to the respondent. Wedzera Petroleum further informed the respondent that it would pay its entire indebtedness within 14 days.

Wedzera Petroleum failed to honour its indebtedness as promised.

The respondent wrote to the appellant on 15 March 2011 informing it to liquidate Wedzera Petroleum's debt in accordance with the two guarantees.

The appellant, through a letter dated 31 of March 2011, informed the respondent that upon checking its records it found that it had not issued the guarantees in favour of the respondent against any debts incurred by Wedzera Petroleum. The appellant further informed the respondent that it was unsure of the circumstances under which the purported guarantees had been drafted and issued to the respondent on behalf of Wedzera Petroleum.

Following the failure by Wedzera Petroleum to make due payment of the debt, and the repudiation of the guarantees by the appellant, the respondent issued summons against Wedzera Petroleum and the appellant for the payment of the sum of US$847,847=65.

PROCEEDINGS BEFORE THE COURT A QUO

In the court a quo, Wedzera Petroleum, in its plea, admitted its indebtedness to the respondent but denied liability as it argued that liability had passed to the appellant who undertook to settle the debt due in terms of the two guarantees.

The appellant, in its plea, denied being indebted to the respondent at all. It indicated that according to their records there was no indication that Wedzera Petroleum had applied for, or had been granted any guarantees. It further alleged that the guarantees had been generated through fraud.

At the pre-trial conference, the main issue which was referred to trial was: whether or not the appellant was liable to pay Wedzera Petroleum's debt on the basis of the two guarantees.

At the trial, Wedzera Petroleum was in default. The court a quo, upon application from the respondent, granted default judgment against Wedzera Petroleum in favour of the respondent for the sum of US$847,847=65 together with costs of suit and interest at the prescribed rate.

The trial proceeded against the appellant.

In analysing closing submissions made by counsel, the court a quo noted that the appellant's counsel sought to introduce a new argument which had not been pleaded.

The argument was based on the fact that the appellant was a statutory corporation which derived its powers from the Infrastructure Development Bank of Zimbabwe Act [Chapter 24:14] and that the provisions of the Companies Act [Chapter 24:03] (“the Companies Act”), which codified the Turquand Rule, could not be applied against the appellant in terms of section 30 of the Infrastructure Development Bank of Zimbabwe Act [Chapter 24:14].

The court held that in spite of the provisions of section 30 of the Infrastructure Development Bank of Zimbabwe Act (IDBZ Act) which made the appellant immune to the provisions of the Companies Act, the actions of Francis Mugwara fell squarely within the scope of the presumptions of ostensible authority.

The court found that Francis Mugwara held a senior position in the Bank; that he had subordinate staff under him; he had access to and used the appellant's stationery. He was the Head of the Short Term Loans Unit which Unit had, amongst others, a mandate to issue guarantees.

The court further found that Francis Mugwara's job description empowered him: “…, to generate, manage and control the Bank's short-term lending portfolio as well as [to] supervis[e]…, Regional Offices.”

Further, that his key duties included decision making authority, authority to approve departmental expenses and the budgets for the Unit and the Regional Offices.

The court found that the onus was on the appellant to prove that Francis Mugwara did not have any form of authority to facilitate guarantees and to prove any form of fraud and bribery on his part.

The court found the appellant liable to the respondent for the guarantees which were issued by Francis Mugwara in respect of Wedzera Petroleums's indebtedness. The appellant was thus ordered to pay the respondent the sum of US$847,847=65, or the remaining amount after payment was made by Wedzera Petroleum, together with costs of suit and interest at the prescribed rate from the date of the granting of the judgment to the date of payment.

PROCEEDINGS ON APPEAL

Aggrieved by the findings of the court a quo the appellant noted this appeal on the basis of the following grounds of appeal:

(i) Having found, as it did, that there was no conclusive evidence to establish that one Francis Mugwara had authority to issue the two guarantees relied upon by the respondent on his single signature, the court a quo erred in law in placing a further negative onus of proof on the appellant to establish that one Francis Mugwara had no such authority.

(ii) Having found, as it did, that there was no conclusive evidence to establish that one Francis Mugwara had authority to issue the two guarantees relied upon by the respondent on his single signature, the court a quo erred and misdirected itself on the facts, and in law, in finding, as it did, that Francis Mugwara had actual and/or implied authority to issue the two guarantees relied upon by the respondent in its cause of action.

(iii) The court a quo erred and misdirected itself in law in finding the appellant liable to the respondent on the basis of ostensible authority when such was not pleaded by the respondent in the Summons and Declaration.

(iv) The court a quo grossly erred and misdirected itself on the facts in finding, as it did, or must be taken to have done that the appellant represented to third parties, in particular to the respondent, that one Francis Mugwara had authority to issue the guarantees relied upon by the respondent in its cause of action.

(v) The court a quo erred in law in failing to find that the two guarantees relied upon by the respondent were fraudulently procured and thereafter tendered to the respondent by Wedzera Petroleum (Private) Limited, and, as such, no liability could flow from such fraudulent instruments.

(vi) The court a quo erred on the facts and in law in finding, as it did, that the respondent had acted diligently in accepting the two guarantees tendered to it by Wedzera Petroleum (Private) Limited in the absence, inter alia, of any facility between the appellant and Wedzera Petroleum (Pvt) Ltd.

(vii) The court a quo erred on the facts and in law in failing to find that the conduct of Francis Mugwara, in purporting to issue the two guarantees in the absence, inter alia, of any facility agreement between the appellant and Wedzera Petroleum (Pvt) Ltd and/or the respondent not only offended the internal processes of the appellant but also the procedure set out in the Infrastructure Development Bank of Zimbabwe Act [Chapter 24:14]. Consequently, the court a quo ought to have found that his conduct was a legal nullity and no liability attached to the appellant.

(viii) The court a quo erred in law in effectively finding the appellant liable on the two guarantees on the basis of the Turquand Rule when the application of such rule is specifically ousted by the provisions of section 30 of the Infrastructure Development Bank of Zimbabwe Act.

In my view, it is apparent from the appellant's grounds of appeal that three issues arise for determination. These are the following:

A. Whether or not the court a quo erred in finding that Francis Mugwara had authority to issue the two guarantees relied upon by the respondent.

B. Whether or not the court a quo erred in finding the appellant liable to pay the respondent on the basis of ostensible authority.

C. Whether or not the appellant was liable to pay the respondent on the basis of the Turquand Rule when such was never pleaded by the respondent in its summons and declaration....,.

The appellant argued that Francis Mugwara's contract of employment did not give him authority to act on behalf of the Bank. It also submitted that the court a quo erred in its factual findings to the effect that he had implied authority to act on behalf of the appellant.

In order to fully understand the authority Francis Mugwara possessed there is need to make reference to his key duties in the Bank.

Francis Mugwara held the title of the 'Head of Short Term Loans'. Under this title, he was the second in charge after the office of the Director of Private Sector Projects as shown from the organogram of the Short Term Loans Unit. A summary of Francis Magwara's job was stated as:

“To generate, manage, and control the Bank's short term lending portfolio as well as supervision of Regional Offices.”

Among his key tasks was “marketing of Bank products to achieve bankable portfolio of clients, disbursements of funds on approved facilities, and making presentations to the Private Sector Projects Committee (PSPC) on projects for approval.”

In addition, Francis Mugwara's job description had an incidental clause on error of judgment and the consequences which would affect the Bank if the Head of Short Term Loans made a wrong decision. The clause stated as follows:

“Catastrophic as bad decisions can lead to the insolvency of the Bank through the creation of a Bad Loan portfolio. Reputation of the Bank can be on the line if prompt and correct decisions are not made.”

The court made factual findings that Francis Mugwara had authority to act on behalf of the appellant. The court a quo noted the following:

“…, notwithstanding the Bank's argument that Mugwara's power might have been limited, I find that as much as between himself and the Bank, Mugwara had actual or implied authority to issue those guarantees. I find that as between Engen and the Bank, Mugwara had ostensible authority to issue the guarantee and to bind the Bank to third party recipients.”

A clear reading of Francis Mugwara's key tasks shows that he worked under a Unit which controlled the manner in which guarantees were issued. He was the senior personnel in the Bank as he was second in command from the Director of the Unit. He had access and control of the appellant's stationery to an extent that he had business cards to identify himself. He had the task of marketing Bank products and disbursements of funds on approved loan facilities.

The court a quo found that on these factual findings the key tasks done by Francis Mugwara were enough evidence to show that he had authority to act on behalf of the appellant.

The court a quo also took into account that although criminal proceedings were instituted against Francis Mugwara by the appellant, on the basis of fraud and bribery, the office of the Prosecutor General refused to prosecute the matter on the basis that it was a labour matter. That, in any event, the appellant had failed to provide adequate evidence to sustain a conviction.

The court a quo, in determining the impact of the criminal charges laid against Francis Mugwara, found that the onus to prove fraud and bribery was on the appellant and that the prosecutor had failed to prove that Francis Mugwara had been fraudulent or had received any bribe.

The proof to be proffered by the appellant for fraud and bribery in casu would be proof on a balance of probabilities as the fraud and bribery were being alleged in a civil trial after the criminal charges had failed to materialise.

Proof in civil proceedings is always on a balance of probabilities.

In the case of Zimbabwe Electricity Supply Authority v Dera 1998 (1) ZLR 500 (SC), the court stated the following:

“…, in a civil case, the standard of proof is never anything other than proof on the balance of probabilities. The reason for the difference in onus between civil and criminal cases is that in the former the dispute is between individuals, where both sides are equally interested parties. The primary concern is to do justice to each party, and the test for that justice is to balance their competing claims.

In a criminal matter, on the other hand, the trial is an attack by the State, representing society, on the integrity of an individual. The main concern is to do justice to the accused. If the prosecution fails, the State does not lose.”

Francis Mugwara, having admitted that he issued the guarantees and having alleged that he did so lawfully, it was for the appellant to prove all the allegations laid against him of fraud and bribery.

The appellant did not adduce any proof to the contrary, but, rather, stood on the argument that he had no authority to individually sign a guarantee.

View Appeal
HH253-16 : ENGEN PETROLEUM ZIMBABWE [PVT] LTD vs WEDZERA PETROLEUM [PVT] LTD and INFRASTRUCTURE DEVELOPMENT BANK OF ZIMBABWE
Ruled By: MAFUSIRE J

This was a civil trial. The first defendant [“Wedzera”] was in default. On application by the plaintiff [“Engen”] in respect to which the second defendant [“the Bank” or “IDBZ”] had nothing to say, I entered a default judgment against Wedzera, in favour of the plaintiff, in the sum of $847,847=65, together with costs of suit and interest at the prescribed rate.

Most of the material facts were common cause.

Engen was an oil company. It sold bulk fuels. Wedzera operated filling stations at which it retailed fuels. IDBZ was a statutory corporation set up in terms of its enabling Act, the Infrastructure Development Bank of Zimbabwe Act [Chapter 24:14] [“IDBZ Act”].

Engen's claim arose out of petroleum fuels sold and delivered to Wedzera in terms of an agreement between them. Wedzera had failed or neglected to pay. Engen claimed IDBZ had guaranteed the due payment by Wedzera up to an amount in the sum of $950,000. That amount was made up of two guarantees, one for $500,000 and the other for $450,000.

But, IDBZ disowned them. It argued that one of its ex-employees had issued them fraudulently or without authorisation.

Engen called two witnesses.

The first, Johannes Mudzengerere [“Mudzengerere”] had been Engen's Managing Director at the relevant time. He had been in charge of Engen's entire operations, including the procurement and disposal of fuel stocks.

Engen's second witness, Francis Mugwara [“Mugwara”], was the man at the centre of the guarantees. He had been subpoenaed just before the trial commenced. He was the one who had signed and issued the impeached guarantees. Figuratively, and perhaps not unexpectedly, the Bank sought to lynch him.

For the Bank, there were also two witnesses.

At the relevant time, Norbert Munengwa [“Munengwa”] had been an Assistant Director in charge of a unit or division called Private Sector Projects. He reported to the Chief Executive Officer. His portfolio covered the crafting of strategies, policy formulation, and business development. Within that sector Francis Mugwara had, at all relevant times, been the Head of the unit called Corporate Banking. It was formerly called the Short Term Loans Unit. He had joined it as Assistant Head, and had subsequently been promoted. He reported to Norbert Munengwa.

The Bank's second witness was Desmond Matete [“Matete”]. He was a qualified lawyer. At the relevant time he was the Director for Legal and Corporate Services. Amongst other duties, he was the custodian of the Bank's legal documents.

There was much convergence, or little controversy, on such key aspects of the evidence as would, in my view, decide the matter. Differences were mainly on peripheral issues and on the parties' application of the law to the facts.

Wedzera used to buy bulk fuels from Engen for cash. As its sales increased, it wanted more fuels - but on credit. Engen obliged. Wedzera signed Engen's standard credit facility application form. Johannes Mudzengerere ran it past Engen's agent for credit rating. He also sought and obtained clearance from Engen's head office in South Africa. Everything seemed in order.

Wedzera had to provide a Bank guarantee to guarantee the due payment for the fuels. These came from IDBZ.

During this period, 2010, the country's economy had just “dollarized”. A multi-currency system had been introduced following the demise of the local currency. Most companies' balance sheets had almost reduced to zero. As a re-capitalisation strategy, the Bank had decided to offer non-traditional or non-generic products that either avoided or minimised direct cash outlays, or that brought in quick income. The witnesses said the Bank was trading off-balance sheet. The Bank's new strategy concentrated on non-direct cash products such as short to medium term loans, Bankers' acceptances, Bills discounting and Bank guarantees. This strategy also involved the bulk importation of petroleum products and the procurement of fertilisers for disposal on the local market.

The Bank had set up a body known as the Private Sector Projects Committee [“the PSPC”]. This committee would grant global approvals and cap the upper monetary limits for any new projects. The members of this committee were the Bank's senior officials, including Norbert Munengwa and Desmond Matete. But heads of divisions, such as Francis Mugwara, were also members. Francis Mugwara was a member.

It was common cause that Francis Mugwara had the Bank's authority to market this new strategic innovation. He had the authority to procure new business, to manage, and grow it.

The point of departure between Francis Mugwara, on the one side, and Nobert Munengwa and Desmond Matete on the other, was the extent of Francis Mugwara's authority - specifically with regards to the issuing of guarantees.

Francis Mugwara claimed he had the authority to issue guarantees in favour of third parties and binding on the Bank, for as long as the amounts on them did not exceed the limits set by the Private Sector Projects Committee (PSPC). He claimed he could issue such guarantees on his single signature. He had access to the Bank's stationery - including sample guarantee forms. He managed Harare, Bulawayo and other towns. He was in charge of all staff falling under his unit. He insisted he had complied with all the standard operating procedures, not least opening an account for Wedzera and issuing it with a facility letter; raising bank charges and completing all other relevant documents. He claimed all the paper work had been placed in the relevant Bank records which Desmond Matete kept. He challenged Desmond Matete to produce those records.

Of some guarantees that were produced in evidence bearing two signatures and which the Bank gave as an example of what a valid guarantee was like, Francis Mugwara said these had been initiated by his subordinates who also had the authority to issue guarantees. However, guarantees by subordinates had to be countersigned by himself, as head of the unit, or else they would be invalid.

Nobert Munengwa and Desmond Matete vehemently disputed that Francis Mugwara could issue guarantees on his single signature and bind the Bank. They said all the Bank's guarantees had to be counter-signed. They said there were elaborate internal standard operating procedures. These had to be followed at all times that the Bank would offer any credit facility to anyone. Of the two guarantees in question, and some two others that Francis Mugwara had also issued on his single signature in favour of other third parties, Nobert Munengwa and Desmond Matete said they were invalid for lack of authority. They had never been brought up to the Private Sector Projects Committee (PSPC) for specific approval.

Nobert Munengwa and Desmond Matete also accused Francis Mugwara of fraud. They said when they had confronted him after Johannes Mudzengerere had called up the guarantees and was pressing for payment, Francis Mugwara had broken down and confessed to having been paid by Wedzera's Managing Director, one Eric Nhodza [“Nhodza”], an amount in the sum of $10,000 in return for the guarantees. The Bank had raised misconduct charges against him. However, he had ducked out of the disciplinary process by resigning.

Francis Mugwara denied the fraud. He denied the confession. He maintained he had issued the guarantees within the scope of his mandate.

It was common cause that the Bank had reported Francis Mugwara to the police. However, it was also common cause that the State had declined to prosecute for lack evidence.

For Engen, Johannes Mudzengerere said his first encounter with Francis Mugwara was when, a few days before the guarantees, Francis Mugwara had arrived at his office offering Engen two million litres of fuel. Francis Mugwara had introduced himself as the Bank's Head of Corporate Unit. He had produced his business card. However, the fuel deal had subsequently fallen through. When Wedzera was increasing its fuel purchases and was asking for supplies on credit, Johannes Mudzengerere had required the provision of security in the form of assets or guarantees from a reputable Bank. A few days later a Wedzera representative and Francis Mugwara had returned to Johannes Mudzengerere's office with a sample guarantee from IDBZ. Johannes Mudzengerere had been satisfied with the wording. He had been comfortable with IDBZ as a “Government Bank”.

The first guarantee had been issued. It was for $300,000. Engen never had to call it up. Wedzera had paid in accordance with the agreement. Wedzera had further increased its fuel purchases. It had provided further guarantees from IDBZ for $500,000 and $450,000.

It was on these last two guarantees that the case before me was all about. Wedzera had failed to pay. Its debt at the time of the default stood at $847,847=65. That was the amount claimed in the summons.

There was no issue about the wording of the guarantees.

When Johannes Mudzengerere called up the guarantees, Francis Mugwara got in touch with Wedzera. Wedzera wrote something to assuage Engen. Johannes Mudzengerere was un-impressed. He pressed for payment. Eventually, he got through to Nobert Munengwa. Nobert Munengwa disowned the guarantees. The Bank's position was that Wedzera was not, and had never been, a customer of the Bank. Among other things, and contrary to standard operating procedures, there was no record of any account having been opened for Wedzera before or after the guarantees had been incepted. No bank charges had been raised as fees for the guarantees. There was simply no paper trail relating to them. As far as the Bank was concerned, the purported guarantees had been an abuse of the Bank's stationery by Francis Mugwara. They were invalid.

Having faced a brick wall, Engen sued. That was essentially the case before me.

Counsel for the plaintiff argued that the Bank's defence was misconceived. From the facts, Francis Mugwara had the actual authority to issue the guarantees in question. He was the Head of the Bank's unit that had the requisite mandate to issue such type of Bank products. Francis Mugwara's contract of employment empowered him to issue such guarantees. Counsel for the plaintiff further argued that if it should be said that Francis Mugwara had no actual authority to issue the guarantees, then he undoubtedly had ostensible authority. The Bank had held him up as one with such authority. He had started off as Assistant Head in the Short Term Loans Unit. He had interacted with the public in that capacity. This unit had subsequently changed its name to Corporate Banking. Francis Mugwara had subsequently been promoted to head it. All this had been in the eyes of the public.

Counsel for the plaintiff highlighted that Francis Mugwara had access to the Bank's stationery. It had provided him with business cards, obviously to assist in the marketing of its products. One such product had been the non-generic, off balance sheet facility that involved minimal cash outlay. There were also other innovations, such as the non-traditional trade in fuels and fertilizers. Francis Mugwara had been mandated to market and manage them. Third parties, like Engen, could hardly be faulted for accepting Francis Mugwara's authority and his guarantees. Nothing warned them that he might be unauthorised. That he might have breached the Bank's in-house standard operating procedures, or that he might have exceeded the bounds of his authority, could not dis-entitle Engen from holding the Bank to the guarantees.

Counsel for the Bank explored Francis Mugwara's contract of employment in some detail and argued that nothing said therein could be said to amount to authority for Francis Mugwara to issue such guarantees on his single signature.

Counsel for the Bank further explored the Bank's standard operating procedures and concluded that Mr Mugwara had manifestly breached all the important check-lists. Among other things, Wedzera had never been a customer of the Bank. There was nothing on record to show that any of the account opening and account operating procedures had been put in place. No fees had been raised. No facility letter had been issued. No customer vetting had been done. The guarantees had never been brought up to the Private Sector Projects Committee (PSPC) for approval. There was not a single meeting convened for this business, let alone any minutes taken in respect of it.

To the Bank, Francis Mugwara was just a rogue.

He had taken a bribe for $10,000 in return for the guarantees. When confronted by Messrs Nobert Munengwa and Desmond Matete, he had confessed. To avoid disciplinary action he had simply resigned. He had an axe to grind with the Bank. He had been blacklisted and was no longer employable in the finance industry....,.

The Bank's reliance on fraud or bribery was problematic.

Nothing was proved. The criminal case that the Bank had reported against Francis Mugwara had collapsed.

In casu, the Bank had no records or document of any sort to support the allegations. Its witnesses said that some of its records had been misplaced or had become unavailable when it had changed offices sometime after the incident. They further said that they had been unaware that Francis Mugwara would testify for Engen until a few days before the trial.

That was rather lame.

Whether or not Francis Mugwara had been lined up to testify for Engen did not detract from the fact that the onus would always lie on the Bank to prove fraud or bribery. It was the Bank making those allegations.

Furthermore, the Bank had reported Francis Mugwara to the police soon after the guarantees had surfaced. Nobert Munengwa's witness' statement to the police did not contain any reference to Francis Mugwara having received a cash inducement from Eric Nhodza. The complaint was concealment by Francis Mugwara of his transactions of which Nobert Munengwa concluded amounted to fraudulent misrepresentation.

No wonder the State had declined to prosecute.

In his testimony, Francis Mugwara maintained that the allegations of fraud or bribery had never been made to him at any time before the trial.

The Bank did not satisfactorily refute this.

HH89-10 : NATHAN CHILUFYA vs COMMISSIONER GENERAL OF POLICE and CO MINISTERS OF HOME AFFAIRS and OFFICER IN CHARGE ZRP CHIKURUBI DETENTION BARRACKS and CHIEF SUPT MUTODZA
Ruled By: UCHENA J

The applicant is a Detective Assistant Inspector in the Zimbabwe Republic Police. He was charged and convicted for bringing disrepute to the Zimbabwe Republic Police in contravention of section 35 of the Police Act [Chapter 11:10] (hereinafter called the Police Act).He was sentenced to twelve days imprisonment.The first respondent is ...

He was sentenced to twelve days imprisonment.

The first respondent is the Commissioner General of the Zimbabwe Republic Police, who is being sued in his official capacity as the Head of the Zimbabwe Republic Police.

The second respondents are the Co-Ministers of Home Affairs, being sued in their capacity as the Ministers responsible for the Zimbabwe Republic Police.

The third respondent is the officer in charge of Chikurubi Detention Barracks, where the applicant will be lodged for twelve days if he is to serve the sentence imposed on him by the fourth respondent.

The fourth respondent is the officer who tried, convicted, and sentenced the applicant to twelve days imprisonment.

The applicant was convicted by the fourth respondent on allegations that he had sought and obtained a bribe of US$500, and stolen a plasma television from a suspect he had arrested and was about to lodge in police cells. He was charged under section 35 of the schedule to the Police Act, which provides as follows:

“Acting in an unbecoming or disorderly manner or in any manner prejudicial to good order or discipline or reasonably likely to bring discredit to the Police Force.”

He was convicted and sentenced to twelve days imprisonment.

The suspect, and another witness, gave evidence at the trial leading to the conviction of the applicant.

In this application, the applicant alleges that the fourth respondent did not warn himself about the dangers of convicting on the evidence of accomplice witnesses. He also alleged, that, the fourth respondent did not warn the accomplices before they testified.

He further alleges that he is being exposed to double jeopardy as he is also being charged for the same acts under the Magistrate's Court....,.

Counsel for the applicant submitted that section 35(1) of the Police Act [Chapter 11:10] requires the trial under the Police Act to closely comply with the procedure followed in the courts of Zimbabwe. It provides as follows:

“(1) The proceedings before or at any trial by a board of officers or an officer in terms of this Act, shall, as near as may be, be the same as those prescribed for criminal cases in the courts of Zimbabwe.”

The intention of the legislature is clear.

The tribunal or trial officer must, as nearly as is possible, comply with the rules of evidence and procedure as is done in the courts of Zimbabwe. Where the tribunal or trial officer significantly departs from the procedure set for criminal proceedings in the courts of Zimbabwe the proceedings may be set aside on review....,.

On the question of the accused person being exposed to double jeopardy as he is being tried in the Magistrate's Court for the same offence, I am satisfied that he can raise his conviction and sentence as a mitigating factor if he is convicted in the Magistrates Court.

A trial and conviction in terms of section 34(1) is, in terms of section 34(9) of the Police Act [Chapter 11:10] not regarded as a conviction in terms of any other law. It is regarded as a disciplinary action. Section 34(9) of the Police Act provides as follows:

“(9) A member who is found guilty of a contravention of this Act by an officer shall not be regarded as having been convicted of an offence for the purpose of any other law.”

This means the applicant is not exposed to double jeopardy as alleged. The trial in the Magistrate's Court does not therefore justify the staying of a sentence imposed for disciplinary purposes.

SSC113-00 : IN RE: PATRICK ANTHONY CHINAMASA vs X
Ruled By: GUBBAY CJ, McNALLY JA, EBRAHIM JA, MUCHECHETERE JA and SANDURA JA

PICKERING J, in Uncedo Taxi Service Association v Maninjwa Ors 1998 (6) BCLR 683 (E), 1998 (3) SA 417 (E)..., went on to find, after an exhaustive review of the authorities..., that the civil standard of proof was inapplicable; that, as contempt of court is an offence of ...

HH86-09 : CHAWASARIRA TRANSPORT (PVT) LTD vs THE RESERVE BANK OF ZIMBABWE
Ruled By: BHUNU J

The standard of proof in criminal proceedings is ordinarily proof beyond reasonable doubt whereas that for civil wrongs is proof on a balance of probabilities.

HH36-09 : T NYIKADZINO vs JOHN ASHER and MUSUNGA & ASSOCIATES and THE DEPUTY SHERIFF and THE MINISTER OF STATE FOR LANDS AND RURAL RESETTLEMENT
Ruled By: MAKARAU JP

It is also trite that the burden of proof in all civil matters is proof on a balance of probabilities.

HH261-16 : KARNEC INVESTMENTS (PRIVATE) LIMITED and ROBERT STRONG vs ECONET WIRELESS (PRIVATE) LIMITED
Ruled By: TSANGA J

This is an opposed application in which the applicants seek that the respondent, Econet Wireless (Private) Limited (“Econet”), be fined for contempt of a court of an order granted on 4 February 2011 by consent of both parties....,.Econet's counsel placed heavy reliance on the South African case of Fakie NO ...

Econet's counsel placed heavy reliance on the South African case of Fakie NO v CCII Systems (Pty) Ltd 2006 (4) SA 326 (SCA) in his argument that the standard of proof in contempt cases must now be beyond a shadow of doubt.

Materially, what was sought in Fakie NO v CCII Systems (Pty) Ltd 2006 (4) SA 326 (SCA) was committal to prison arising from the alleged contempt. It was in that context that it was laid down, in that case, that, an applicant for committal for contempt is required to prove all elements of contempt beyond a reasonable doubt so as to accord with constitutional protections availed accused persons.

However, it was highlighted that the respondent in such proceedings is “not an accused person but is entitled to analogous protections as are appropriate in motion proceedings.”

It was further explained, in that case, that, the applicant is not required to lead evidence on the respondent's state of mind.

Therefore, once an applicant in contempt proceedings proves three requisites, namely; the existence of the order; its service or notice; and non-compliance; it is the respondent who then leads evidence as to whether the non-compliance was wilful or mala fide. The respondent need only adduce evidence that establishes a reasonable doubt.

The parameters of contempt of court were summed up in Fakie NO v CCII Systems (Pty) Ltd 2006 (4) SA 326 (SCA)…, as follows:

“(a)…,.

(b)…,.

(c) In particular, the applicant must prove the requisites of contempt (the order; service or notice; non-compliance; and wilfulness and malafides) beyond a reasonable doubt.

(d) But once the applicant has proved the order; service or notice; and non compliance; the respondent bears an evidential burden in relation to wilfulness and mala fides. Should the respondent fail to advance evidence that establishes a reasonable doubt as to whether non-compliance was wilful and mala fide, contempt will have been established beyond a shadow of doubt…,.

(e)…,.”

Appealed
SC24-21 : BIG VALLEY MASTERS (PRIVATE) LIMITED vs SHI JINWU
Ruled By: GWAUNZA DCJ, GUVAVA JA and MAVANGIRA JA

It is pertinent to note that the standard of proof in all civil matters is on a balance of probabilities.The concept of proof on a balance of probabilities was enunciated in British American Tobacco Zimbabwe v Chibaya SC30-19 wherein the court quoted with approval the case of Miller v Minister ...

SC68-21 : SIBONILE DUBE vs PAUL MUREHWA and MINISTER OF LOCAL GOVERNMENT, PUBLIC WORKS AND NATIONAL HOUSING N.O.
Ruled By: GUVAVA JA, MAVANGIRA JA and KUDYA AJA

It is settled in our jurisdiction that the standard of proof in civil matters is “a balance of probabilities.”In ZESA v Dera 1998 (1) ZLR 500 the court held, that, in a civil case, the standard of proof is never anything other than proof on the balance of probabilities. It ...

HH62-14 : JOHANNES MAKONYE vs KENAE RAMODIMOOSI and ENTREDEV PROPERTY GROUP and C.H. LUKAS
Ruled By: CHIGUMBA J

This is an application in terms of section 34 of the Model Law as set out in the Second Schedule to the Arbitration Act [Chapter 7:15] for the setting aside of an arbitral award dated 23 February 2012, granted by the third respondent.

The second respondent was the applicant's estate agent.

At the hearing of the matter, I dismissed the application with costs on a legal practitioner client scale, being of the view that the application was entirely devoid of merit. I have now been asked to provide detailed reasons for judgment for purposes of appeal.

These are they.

The arbitral award that is sought to be impugned reads as follows:

“IT IS AND IS ORDERED THAT:

1. The termination of the agreement of lease in respect of Number 7 Westcott Road, Mount Pleasant, Harare signed by the parties on the 6th of September 2011 is confirmed.

2. The respondent (applicant in the matter now under consideration) refunds and pays to the claimant the sum of US$16,800 plus interest thereon from the 1st of November 2011 to the date of receipt of payment.

3. The costs of the Arbitrator, amounting to US$2,000, and covered by a deposit paid by the claimant, be refunded to the claimant by the respondent.”

The background giving rise to the dispute between the applicant and the first respondent involved the termination of a lease agreement entered into by the parties on 6 September 2011.

The parties had agreed that the first respondent would occupy the leased premises on 1 November 2011. The premises were under renovation, and the applicant gave an assurance that the renovations would be complete by the date of occupation.

The first respondent paid a sum of US$16,800, being a deposit and six months rent in advance, to the applicant.

Both parties submitted voluminous written statements to the arbitrator, the applicant, as the respondent, on 31 December 2011. The second respondent, the letting agent, also submitted a written statement to the arbitrator, on 9 February 2012.

The arbitrator found, that, the rental amount had been assessed based on the size of the kitchen, which the applicant had promised to extend and make bigger according to the first respondent's specifications.

This is the reason why the first respondent had agreed to pay six months rent in advance.

The applicant was unable to complete the renovations by the agreed date of occupation.

The parties entered into further negotiations which broke down after the applicant demanded more money which the first respondent refused to advance.

On 1 November 2011, the date of occupation, the premises were still under renovation.

The first respondent terminated the lease agreement and claimed a refund of the US$16,800 that had been advanced.

The arbitrator found, that, the applicant's inability to renovate the kitchen by the agreed date went to the root of the lease agreement, and confirmed that the lease agreement had been correctly terminated, and ordered that the applicant refund the monies advanced to him by the first respondent.

The basis of the application to set aside the arbitral award is that the applicant was not given an opportunity to be heard by the arbitrator.

He averred, that, he never agreed that the arbitrator could determine the mater on the papers filed by the parties. He averred, further, that, the third respondent only remitted US$12,800 to him, and that the first respondent had already been reimbursed US$3,840 by the second respondent.

The applicant averred, that, the arbitral award should be set aside on the basis that it had been awarded contrary to public policy in Zimbabwe, and in breach of the rules of natural justice.

The first respondent opposed the application on the basis, that, the applicant had given a mandate to the respondents to file a written report before the arbitrator in an electronic mail dated 7 January 2012.

The first respondent averred further, that, the arbitrator, had, in an electronic mail communication to all the parties, dated 5 January 2012, asked the parties how they wished to proceed and the parties agreed to make written submissions to the arbitrator.

The first respondent pointed out, that, the applicant, in the email dated 7 January 2012, to the arbitrator, stated that:

“…, written submissions only are fine, more focused and cheaper financially and time wise by me.”

The first respondent admitted, that, the amount outstanding was US$12,800 and averred, that, when the arbitral award is registered, it will be registered in that sum.

The first respondent reiterated, that, it was not fatal to an arbitral award if parties agreed to forgo an oral hearing and mandated the arbitrator to make a determination on the basis of written submissions.

The second respondent opposed the application and averred that it had no interest in the outcome of the matter, but merely wished to protect itself against an adverse order as to costs.

The second respondent averred, that, it was given a mandate to manage the applicant's property, Number 7 Westcott Road, Mt Pleasant, Harare, in August 2011.

Pursuant to that mandate, it secured the first respondent as a tenant for those premises. It averred that a dispute arose between the parties which resulted in the first respondent terminating the lease agreement and to demand a refund of rentals and deposit paid in advance.

The second respondent confirmed that both the applicant and the first respondent requested that it submit a written report to the arbitrator....,.

In regards to the merits of the matter, the second respondent averred that it failed to find any justification in the applicant's complaints against its report - which the applicant had specifically requested that it be submitted to the arbitrator.

Copies of e-mails between the parties were attached to confirm the second respondent's version of events.

The second respondent reiterated that the applicant's contention, that it was not given an opportunity to be heard, were entirely devoid of merit....,.

The question that the court must determine is whether the arbitral award handed down by the third respondent is contrary to public policy in Zimbabwe as envisaged by Article 34 of the Model Law, Arbitration Act [Chapter 7:15].

In other words, did the third respondent grant the arbitral award without proper consideration of the terms of the lease agreement between the parties; without affording the applicant an opportunity to be heard; or with fraud and corruption?

Article 34 of the Model Law provides that:

“Article 34 Application for setting aside as exclusive recourse against arbitral award

(1) Recourse to a court against an arbitral award may be made only by an application for setting aside in accordance with paragraphs (2) and (3) of this article.

(2) An arbitral award may be set aside by the High Court only if —

(a) The party making the application furnishes proof that —

(i)…,.

(ii) The party making the application was not given proper notice of the appointment of an arbitrator or of the arbitral proceedings or was otherwise unable to present his case; or

(iii)…,.

(iv)…,.

(b) The High Court finds, that —

(i)…,.

(ii) The award is in conflict with the public policy of Zimbabwe.”

“Article 19 Determination of Rules of Procedure

(1) Subject to the provisions of this Model Law, the parties are free to agree on the procedure to be followed by the arbitral tribunal in conducting the proceedings.

(2) Failing such agreement, the arbitral tribunal may, subject to the provisions of this Model Law, conduct the arbitration in such manner as it considers appropriate. The power conferred upon the arbitral tribunal includes the power to determine the admissibility, relevance, materiality and weight of any evidence.”

Article 24 of the Model Law provides that:

“Article 24 Hearings and Written Proceedings

(1) Subject to any contrary agreement by the parties, the arbitral tribunal shall decide whether to hold oral hearings for the presentation of evidence or for oral argument, or whether the proceedings shall be conducted on the basis of documents and other materials.”

The test applies to an arbitral award, in order to set it aside on the basis that it is contrary to public policy is that:

“An arbitral decision can only be held to be contrary to public policy if some fundamental principle of law or morality or justice is violated or if it is so defiant of logic or accepted moral standards that the concept of justice in Zimbabwe would be intolerably hurt.”

See Chanakira v Mapfumo & Anor HH155-10; and Husaihwevanhu & Ors v USF Collaborative Research Programme HH237-10, where the court stated that:

“The courts in this country have construed the defense of public policy very restrictively so that the objective of finality to arbitration is achieved.

It follows, that, the grounds upon which an award may be set aside…, are very narrow. The import of Article 34 and Article 36 of the First Schedule to the Act is not to endow the court before which the award is set aside with powers of appeal to determine the correctness of the decision of the arbitrator;…, an award by the Arbitrator is not contrary to public policy merely because it wrong in law or in fact in reaching the conclusion arrived at…, award…, goes beyond mere faultiness or incorrectness and constitutes a palpable iniquity that is so far reaching…,.”

See Pioneer Transport (Private) Limited v Delta Corporation Ltd & Anor HH18-12.

Based on the provisions of Article 19 of the Model Law, I find that it was entirely proper and permissible for the arbitrator and the applicant and the first respondent to agree on the procedure to be followed.

The arbitrator was even at liberty to conduct the arbitration in such manner as it considered appropriate if the parties failed to agree on which procedure could be used (Article 19(2) of the Model Law).

The power conferred on the tribunal included the power to: “determine the admissibility, relevance, materiality and weight of any evidence.”

There is nothing in the papers filed of record which suggests that the arbitrator did not have these powers.

The evidence placed before this court, via copies of electronic mail communication between the parties, clearly shows that the applicant consented to the matter being determined on the basis of written submissions placed before the arbitrator. The applicant is on record as celebrating the advantages of this course of action as being cheaper and less time consuming.

To turn around now and ask this court to find that the arbitral award was made without affording the applicant an opportunity to be heard is downright dishonest and dishonorable.

Article 24 of the Model Law gives the arbitrator the power to override any agreement between the parties themselves in regards to how the matter should proceed, and stipulates that the arbitral tribunal SHALL decide whether to hold an oral hearing or whether the proceedings shall be conducted on the basis of documents or other materials.

In essence, the conduct of the hearing is entirely at the tribunal's discretion.

There is no onus on the tribunal to hear oral submissions. The onus on the tribunal relates to notification of the hearing; and, an arbitrator has exclusive jurisdiction, contrary to the parties wishes, to decide how to collate evidence. There is no provision to compel the arbitrator to hear oral evidence.

What is required is for all the parties to be notified of the hearing, to be given an opportunity to present their case as stipulated by the arbitrator, and to have sight of the submissions made by the other parties, if in writing.

The second respondent was clearly implored by all the parties to submit a written report to the arbitrator.

A careful reading of the party's emails will confirm this.

There is therefore no basis on which the applicant can aver, that, despite advising the arbitrator that he preferred being heard verbally, his request was denied or ignored. In fact, the evidence before the court is that the applicant submitted the most voluminous written submissions before the arbitrator.

The court has also been unable to find any evidence of fraud on the part of the arbitrator in determining the arbitral award.

There is no evidence that the offence of fraud was committed or reported to the police by the applicant.

Fraud is a criminal offence which involves an element of misrepresentation to deceive another to his prejudice.

There is no evidence that the applicant was operating under any misrepresentation by the arbitrator, or of any prejudice which he may have suffered as a result of such misrepresentation.

According to Zimbabwe Electricity Supply Authority v Maposa 1999 (2) ZLR 452 (SC)…, Article 34 of the Model Law “…, means that, if, for example, if the arbitrator was fraudulently misled or bribed by a party, the award, however innocuous, would be contaminated in the process of making and contrary to public policy. There is simply no evidence before the court that the third respondent misrepresented himself in order to deceive or cause prejudice to any of the parties, or that he received a gift or benefitted in any way in reaching the decision that he did.”

The allegations of fraud and corruption against the third respondent, by the applicant, are clearly baseless and without foundation.

HH435-15 : LADRAX INVESTMENTS (PVT) LTD vs IGNATIOUS CHIRENJE and RUTENDO CHIRENJE
Ruled By: TSANGA J

On 8 October 2014, I granted the applicant's claim for an eviction order against the respondents stemming from a sale in execution that had been confirmed by the Sheriff and where transfer of the property had already taken place.

I also dismissed the respondent's application for upliftment of bar for reasons I here upon elucidate.

The background facts are these:

The applicant bought the property through a Sherriff's sale for $116,000. The property is described as Subdivision A, Lot 16, Block B of Avondale, held under Deed of Transfer Registration No.4835/05.

The sale was in execution of a debt owed to Genesis Bank by the first respondent and his business partners and for which the property belonging to both respondents had been used as security.

Mr Maxwell Kufakunesu Chisvo was declared the highest bidder for the property on 18 March 2013.

On 19 March 2013, the second respondent applied to have the sale set aside on the basis that the price realised was unreasonable, given that their own evaluation was for $215,000.

The second respondent's application, which was in terms of Order 40 Rule 359, also contained various averments regarding the impropriety of the security that the Bank had obtained in the initial instance.

The application was dismissed in July 2013 and the sale was confirmed since the judgment debtor had failed to produce the buyer for this higher price.

Issues relating to any impropriety regarding the obtainment of the initial security were said to be matters for the court.

The property was duly transferred into the applicant's name in January 2014, which was some six months later.

On 22 January 2014, the applicant gave the respondents notice to vacate the premises.

On 24 January, the respondents practitioners wrote to the applicant's representative advising them of pending proceedings to challenge the terms on which the property had been acquired.

It was the applicant's position, that, the sale was no longer conditional but a confirmed sale, and, accordingly sought eviction on 10 February 2014 and holding over damages.

The respondents filed a notice of opposition, on 25 February, in which they argued, that, the highest bidder was one Mr Kufakunesu Chisvo and that they were surprised that the property was then transferred to Ladrax Investments (Pvt) Ltd.

Their primary objection was that the applicant is an imposter.

The applicant filed its answering affidavit, on 25 February, explaining that the applicant is a company whose directors are Mr Kufakunesu Chisvo and his wife, Joyce Chisvo.

He further explained, that, Mr Chisvo had made a request for the property be transferred into the applicant's name, which wish was acceded to by the Sherriff.

On 24 April 2014, the applicant filed its heads of argument. This is not disputed (the certificate of service confirms says that these were served on the Respondent on the 24th of May 2014. However the Registrar's stamp on proof of service reads 23rd of May so the assumption is that 24th of May is most likely a typing error and should have read 24th April which was when the heads were filed with the court).

It is also not in dispute, that, the respondents failed to file their heads of argument and were therefore barred.

The relevant Rule of the High Court, 1971 reads as follows:

“Rule 238(2a)

Heads of argument referred to in subrule (2) shall be filed by the respondent's legal practitioner not more than 10 days after the heads of argument of the applicant or excipient, as the case may be were delivered to the respondent in terms of sub-rule (1); provided that –

(i) No period during which the court is on vacation shall be counted as part of the ten day period;

(ii) The respondent's heads of argument shall be filed at least five days before the hearing.

(2b) Where heads of argument that are required to be filed in terms of subrule (2) are not filed within the period specified in subrule (2a), the respondent concerned shall be barred and the court or judge may deal with the matter on merits or direct that it be set down for hearing on the unopposed roll.”

On 8 October 2014, some five months after the filing of the applicant's heads, the matter came before me for hearing.

The respondents, being barred, they sought to make an application for upliftment of the bar through their practitioner…,.

He stated, that, the respondents case for upliftment of the bar is based on prior proceedings in which the allegation of fraud were made. He clarified to the court, that, when his firm received instructions from the respondents, its view was that an independent assessment of the allegations was necessary. As such, he said they were reluctant to push the matter without independent evidence. He went on to state, in his quest, that, a report had since been produced, on 25 September 2014, which would now form the basis of the application for upliftment of the bar.

It is necessary here to say a few words about the nature of those allegations as gleaned from the papers filed of record.

The respondents made allegations of fraud in the acquisition of the loan by one of the husband's business partners, particularly in that he had forged the second respondent's signature in order to register the bond.

The respondents had purported to bring two applications against Genesis Bank - one for condonation of late filing for rescission of the default judgment that the Bank had obtained resulting in the sale (HC973/13), and, another, for the actual rescission of the judgment itself (HC11069/11).

However, the respondents, having failed to pursue these applications to their logical conclusion, the documents filed of record indicate that Genesis Bank had brought chamber applications to have these matters dismissed for want of prosecution.

Also, no report had been made to the police concerning the alleged fraud.

HMT12-20 : CHENESO MUVANDI vs CITY OF MUTARE and MATIVENGA MHISHI N.O. (as Executor of the Estate Late Washington Jekanyika)
Ruled By: MUZENDA J

Fraud should not only be pleaded but must be established by way of tangible evidence.

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

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

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

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

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

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

BACKGROUND FACTS

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

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

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

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

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

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

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

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

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

The loan advanced was repayable to the appellant as follows:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

They also alleged that their sureties were not valid.

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

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

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

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

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

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

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

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

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

In the result, the court made the following order:

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

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

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

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

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

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

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

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

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

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

2. The court a quo erred in holding that:

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

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

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

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

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

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

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

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

PROCEEDINGS BEFORE THIS COURT

On the merits, counsel for the appellant argued that it was improper for the court a quo to grant counterclaims that were not filed in terms of Rule 121 of the High Court Rules 1971 ('the High Court Rules').

Counsel further argued, that, the judgment of the court made factual findings without hearing the evidence of the first respondent. The factual findings could only have been made after hearing the defence case.

He also argued, that, the inference drawn by the court in respect of the statement of account was not the only inference in the circumstances of the case, and, in any event did not prove that the debt owed by the respondents had been repaid.

It was also counsel's argument, that, the appellant proved a prima facie case in establishing that the loan facility was disbursed to the first respondent and it was for the respondents to prove that the loan was repaid in full.

He prayed that the appeal be allowed with the matter being remitted to the court a quo for continuation of trial and an order for costs.

Per contra, counsel for the first, third to seventh respondents argued that the court a quo correctly found that the appellant failed to establish a prima facie case as there was no valid cause of action.

Counsel further argued, that, the documentary evidence produced before the court a quo showed that the loan was repaid in full on 31 December 2015, and, as such, the appellant had no basis to sue.

He also argued, that, the appellant's witness, Gunundu, contradicted himself in his evidence, and, as such, a prima facie case could not have had been established by the appellant.

Counsel further argued, that, the purported sureties made in the names of the third to seventh respondents were invalid and void.

Counsel prayed for the dismissal of the appeal.

Counsel for the second respondent also prayed for the dismissal of the appeal and argued, that, the appellant had no cause of action against the second respondent as no loan facility was ever advanced to it.

Counsel submitted, that, the loan was repaid on 31 December 2015 and that the appellant had admitted that this was the position in evidence.

He further submitted, that, there was no valid mortgage bond in the name of the second respondent upon which the appellant could execute. The mortgage bond made by the second respondent, in favour of the appellant, related to a 2011 loan facility and not the 2015 loan facility.

Counsel further maintained, that, the second respondent had only one director in Zimbabwe, and, as such, no valid resolution could have been made in the absence of the second director. As such, counsel argued that the power of attorney and mortgage bond were not properly executed.

It is my view, that, the appellant's grounds of appeal raise a single issue, i.e. whether or not the court a quo erred in granting the application for absolution from the instance.

ANALYSIS

Whether or not the court a quo erred in granting the application for absolution from the instance

The cause of action of the appellant, against the first respondent (Formscaff (Pvt) Ltd), was based on a credit facility dated 2 November 2015. It was alleged that the first respondent had failed to repay the loan advanced to it under that facility.

The cause of action as against the second to seventh respondents (Penniwill (Pvt) Ltd, Rodney Callaghan, Millicent Callaghan, Charles Cannings, Clifford Johnson and Lesley Bennet) was based on the various surety and mortgage bonds filed of record which were made in favour of the appellant by the respondents at different times.

The court a quo, in granting the respondents application for absolution from the instance, found that the loan advanced to the first respondent was repaid on 31 December 2015. The basis of this finding was an accounting entry made by the appellant in its statement of accounts, which showed a credit entry in the sum borrowed as having been paid.

On the basis of this entry, the court reasoned that there was no cause of action upon which the appellant could claim as there was no outstanding debt.

The law to be applied in an application for absolution from the instance is well settled. In United Air Charters (Pvt) Ltd v Jarman 1994 (2) ZLR 341 (S)…, the Court held that:

“The test in deciding an application for absolution from the instance is well settled in this jurisdiction. A plaintiff will successfully withstand such an application if, at the close of his case, there is evidence upon which a court, directing its mind reasonably to such evidence, could or might (not should or ought to) find for him:” see also Oesthuizen v Standard General Versekeringsmaa & Kappy BPK 1981 (A) 1035 (H)).”

In Gordon Lloyd Page & Associates and Rireira & Another 2001 (1) SA 88 (SCA)…, it was held that:

“The test for absolution to be applied by a trial court at the end of plaintiff's case was formulated in Claude Neon Lights (SA) Ltd v Daniel 1976 (4) SA 403 (A) at 409G-H in these terms:

'…, when absolution from the instance at the close of plaintiff's case, the test to be applied is not whether the evidence led by the plaintiff established what would finally be required to be established, but, whether there is evidence upon which a court applying its mind reasonably to such evidence could or might (not should or ought) find for the plaintiff…,.'

This implies that the plaintiff has to make out a prima facie case in the sense that there is evidence relating to all elements of the claim…,.”

Absolution from the instance is thus granted by the court when an application has been made by a defendant at the close of a plaintiff's case who fails to prove a prima facie case.

A prima facie case was noted in Fillieks and Others v S [2014] ZAWHC 34 as follows:

“Prima facie evidence, in its more usual sense, is used to mean prima facie proof of an issue, the burden of proving which is upon the party giving that evidence. In the absence of further evidence from the other side, the prima facie proof becomes conclusive and the party giving it discharges his onus…,.”

In granting the application for absolution from the instance, the court a quo thus had to be guided by the question of whether or not the appellant made out a prima facie case against the respondents on the basis of which the court could or might have found for the appellant.

The appellant's cause of action was based on the credit facility which it advanced to the first respondent on the 2nd of November 2015 for the sum of US$350,000. The purpose of the facility was to assist the first respondent in financing its working capital requirements.

The facility further provided, under clause 6, that, the security for the amount advanced as the loan was secured by sureties and mortgage bonds registered in the names of the respondents in favour of the appellant.

Under clause 12 of the facility, all previous facility letters advanced to the first respondent, by the appellant, were cancelled.

The accounting statements of the appellant, filed of record, show that on 17 November 2015, under transaction number LD1532460482, and described as “Loan Drawdown” the appellant credited the first respondent's account with the sum of US$350,000. On the 30th of December 2015, under transaction number LD1532460482 and described as “Payment of Principal” the sum of US$350,000 was reversed from the first respondent's account into the appellant's account.

The first respondent remained with a debit balance of US$375,671=35.

The appellant's witness, Gunundu, explained that the first entry meant that the appellant was crediting the first respondent with the proceeds of the loan. The second entry showed that those proceeds were meant to pay off an existing debt that the first respondent already had with the Bank.

It is important to quote the exchange between counsel for the appellant and the witness where he states that:

“Q. If you move further down, you will see that the same $350,000 appears on that page?

A. Yes, the second entry for $350,000 which in this instance now appears as a debit on the borrowers account, was passed on 30th December 2015. The second entry that was passed by the Bank on the 30th of December 2015 for 350,000 entailed that the Bank was now debiting the customer's account to confirm that this was now a new loan agreement with terms as contained in the facility letter offer of 2nd November 2015.”

The first respondent however maintained the argument a quo, and before this Court, that, the loan was repaid on the 30th of December 2015 under the transaction description of “Payment of Principal”.

On the basis of the above exchange, the court a quo found that the witness of the appellant did not establish its claim at all. The court concluded that Gunundu was not a credible witness and found that the appellant had failed to make out a prima facie case upon which the respondents could be placed on their defence.

It is our view, however, that the court a quo fell into error in arriving at this finding.

It should be noted from the onset, that, the appellant and the first respondent have had a long standing relationship of a banking nature.

The record shows, that, from 2011 to 2015, when the credit facility which is the subject of this appeal was entered into, the appellant was advancing the first respondent different loan facilities and overdrafts.

These loan facilities were advanced on the basis of the securities which were made by the second to seventh respondents.

For over five (5) years, the appellant was advancing money to the first respondent on the basis of those securities with no issues arising.

Emails filed of record further show correspondence between the third respondent (Rodney Callaghan), the first respondent's Finance Manager, one Jill Ngwerume Gunundu, on behalf of the appellant, and Nyangulu, which correspondence shows how some of the securities were registered.

Emails between Rodney Callaghan and Darryn Blumears (acting on behalf of the second respondent) are also part of the record which shows the parties acknowledging that certain sums of money were owed and that the respondents would raise money to pay the debts.

Although these emails were written in 2013 to 2014, this confirms the nature of the relationship between the appellant and the respondents, and that, as at 2014, there was a debt owed to the appellant.

Having found that there existed a banking relationship between the appellant and the respondents, the next question relates to the credit facility advanced to the first respondent on 2 November 2015 and whether or not that facility was repaid.

There is no documentary evidence in the record which shows that the first respondent wrote to the appellant seeking a refinancing loan to cover its existing debts.

However, given the history between the parties on how the appellant advanced several loans to the first respondent over the years, it can be taken that the first respondent must have approached the appellant seeking a loan to repay its outstanding debts.

A reading of the appellant's accounting statement shows, that, before the “loan drawdown” was made to the first respondent's account, the account showed a debit balance of US$367,981=74. When the loan sum was deposited, the balance was reduced to US$17,981=74. This means that the loan reduced an existing debt. When the loan was reversed back to the appellant's account on 30 December 2015, the balance returned to US$375,671=35.

This summary shows, that, the loan was advanced by the appellant to refinance an existing debt.

The credit facility, though not clearly labelled as a refinancing loan, appears to have been made in order to give the first respondent time to repay the loan. This explains the creation of a repayment plan on how the first respondent would repay its debt.

In my view, the credit facility, though not specified as a re-financing loan, must have been made for the purpose of extending the period in which the first respondent had to repay its debts.

It is important to borrow the words quoted with approval by GUBBAY CJ in Chikoma v Mukweza 1998 (1) ZLR 541 (SC)…, wherein the Court noted that:

“Not to be overlooked, as well, are the wise words of Lord Wright in Hillas & Co. Ltd v Arcos Ltd [1932] All ER Rep 494 (HL) at 503I; (1932) 147 LT 503 (HL) at 514:

'Businessmen often record the most important agreements in crude and summary fashion; modes of expression sufficient and clear to them in the course of their business may appear to those unfamiliar with the business far from complete or precise. It is, accordingly, the duty of the court to construe such documents fairly and broadly, without being too astute or subtle in finding defects; but, on the contrary, the court should seek to apply the old maxim of English Law, verba ita sunt intelligenda ut res magis valeat quam pereat.'

See also Burroughs Machines Ltd v Chenille Corp of SA (Pty) Ltd 1964 (1) SA 669 (W) at 670G-H.”

Thus, essentially, what was before the court a quo was a claim for the repayment of a loan.

The appellant had a duty, after all the evidence had been led by both the appellant and the respondents, to prove its case on a balance of probabilities.

The argument in the respondents plea, that the loan was repaid in less than a month, does not carry much weight and is an argument which the respondents had to prove in evidence.

It is important to note, that, there was nothing in the record showing a deposit from the respondents to indicate that the first respondent had paid off the loan.

The court a quo fell into error in making its decision solely on the entry made on 30 December 2015 in the appellant's statement of account.

That entry had to be read in conjunction with all the facts of the matter and the banking history which existed between the parties.

The first respondent never denied owing the appellant, but, rather, denied the sum claimed by the appellant and averred in its plea, that, if at all it owed the Bank, its debit balance was less than US$109,000.

All these are issues which the court a quo could not determine without putting the first respondent to its defence.

The court a quo further erred in making a finding that the appellant's witness was not a credible witness in circumstances when it had not heard evidence from the respondents. This was a clear error as there was nothing upon which the court could measure the appellant's evidence.

In Megalink Investments (Pvt) Ltd v Reserve Bank of Zimbabwe HH04-17…, the court held that:

“I need to point out, too, that, at this stage, the court is not so much concerned with questions of the credibility of the witnesses and the probabilities of the case as there is nothing to measure those aspects against in the absence of the defendant's evidence. The court, at this stage, is presented with only one side of the story which alone must be examined to determine whether the requirements for absolution have been satisfied.”

In the case of Professor Charles Nherera v Jayesh Shah SC51-19, GARWE JA…, quoted the case of Supreme Service Station 1969 (Pvt) Ltd v Fox & Goodridge (Pvt) Ltd 1971 (1) ZLR 1, in which BEADLE CJ highlighted some of the considerations that a court, faced with an application for absolution from the instance, ought to bear in mind.

He pointed out, that, the court should always bear in mind that the defendant has not yet given evidence, or been cross-examined. Thus, the court should not dismiss the plaintiff's evidence unless it is glaringly incredible.

The court a quo thus misdirected itself by making a finding on the credibility of the appellant's witnesses in the absence of evidence from the respondents witnesses.

Gunundu explained how the transactions under the credit facilities were made and how they operated. He further explained how the appellant had always worked with the first respondent in trust and on the basis of the securities which had been lodged with the Bank by the first respondent over the years.

It seems to me that his evidence was sufficient to establish a prima facie case for the appellant with regard to whether or not the respondent owed the appellant.

It is common cause that the respondents agreed to be sureties and co-principal debtors in the event that the first respondent failed to repay the appellant. The security documents are part of the record. They have the signatures of the respondents.

In making its claim in reconvention a quo, the second respondent averred that the mortgage bonds in favour of the appellant were fraudulently acquired by the appellant.

Nyangulu testified on how he processed the registration of the mortgage bonds through the Bank. Counsel for the second respondent however put him to task on the effect of the mortgage bonds registered against the second respondent's property in favour of the appellant.

The court a quo reasoned, that, as Nyangulu had admitted, under cross examination, that there may have been shortcomings in the manner in which the mortgage bonds were registered, therefore they were invalid.

However, the record shows, that, as at 29 May 2014, Darryn Blumears, in an email to Rodney Callaghan, was having conversations as to “a figure breakdown for the loan against Pagomo”.

Pagomo was one of the properties upon which a mortgage bond was registered by the second respondent in favour of the appellant.

On the same day, in an e-mail from Rodney Callaghan to Darryn Blumears, he was informed that:

“The total loan is $450,000 to NMB of which $325,000 is against Pagomo and the balance of $125,000 is against Tarlington Road.”

This email is just but one of the correspondence in the record which suggest that there existed debts between the first respondent and the appellant and that those debts were covered by securities in the form of sureties and mortgages.

This evidence, in my view, shows that there was an acceptance by the respondents that the loans were covered by the sureties and mortgage bonds. Thus, any denial of the proposition by the appellant that the mortgage bonds were valid should have been contradicted by the respondents in evidence.

It should also be noted, that, in making their pleas a quo, the respondents jointly made averments with regards to the sureties and mortgage bonds.

Of note, are the material allegations made by the respondents that the surety signed by the second respondent was signed by the daughter of the third and fourth respondents without a valid Board resolution for her to do so. Further, the acknowledgment of debt was not signed by the first respondent and that an official of the appellant fraudulently made the third and fourth respondent's daughter sign as surety on behalf of the second respondent.

It was further averred, that, the appellant thus registered unauthorised mortgage bonds against the second respondent.

All these averments made by the respondents in their pleas raise issues which were disputed by the appellant and therefore needed to be proved by way of viva voce evidence from the respondents.

As such, the court a quo could not grant absolution, as it did, without allowing the respondents to take to the stand to prove their claims....,.

As long as the suretyships remained signed, with a provision that they are of an unlimited nature, and the appellant remains in possession of the title deeds to the properties under the mortgage bonds, the security documents must be held as being valid.

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Cause of Action and Draft Orders re: Criminal Allegations Raised in Civil Proceedings

HH10-18 : UPENYU MASHANGWA and BLESSING MASHANGWA vs EMMANUEL MAKANDIWA and RUTH MAKANDIWA and UNITED FAMILY INTERNATIONAL CHURCH
Ruled By: MANGOTA J

Appealed
SC95-21 : UPENYU MASHANGWA and BLESSING MASHANGWA vs EMMANUEL MAKANDIWA and RUTH MAKANDIWA and UNITED FAMILY INTERNATIONAL CHURCH
Ruled By: GWAUNZA DCJ, MAKONI JA and BERE JA

View Appeal
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Ruled By: TAGU J

CC21-19 : NELSON CHAMISA vs EMMERSON DAMBUDZO MNANGAGWA and OTHERS
Ruled By: MALABA CJ, GWAUNZA DCJ, GARWE JCC, MAKARAU JCC, HLATSHWAYO JCC, PATEL JCC, BHUNU JCC, UCHENA JCC and MAKONI JCC

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Ruled By: GARWE JA, GUVAVA JA and MAVANGIRA JA

SC27-12 : ASTRA INDUSTRIES LIMITED vs PETER CHAMBURUKA
Ruled By: ZIYAMBI JA, GARWE JA and OMERJEE AJA

HH656-15 : INNOCENT CHITIKI vs PAN AFRICAN MINING (PRIVATE) LIMITED
Ruled By: CHIGUMBA J

HH653-15 : LEWENOD ENTERPRISES (PRIVATE) LIMITED vs FREIGHT AFRICA LOGISTICS
Ruled By: CHIGUMBA J

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

View Appeal
HH253-16 : ENGEN PETROLEUM ZIMBABWE [PVT] LTD vs WEDZERA PETROLEUM [PVT] LTD and INFRASTRUCTURE DEVELOPMENT BANK OF ZIMBABWE
Ruled By: MAFUSIRE J

HH89-10 : NATHAN CHILUFYA vs COMMISSIONER GENERAL OF POLICE and CO MINISTERS OF HOME AFFAIRS and OFFICER IN CHARGE ZRP CHIKURUBI DETENTION BARRACKS and CHIEF SUPT MUTODZA
Ruled By: UCHENA J

SSC113-00 : IN RE: PATRICK ANTHONY CHINAMASA vs X
Ruled By: GUBBAY CJ, McNALLY JA, EBRAHIM JA, MUCHECHETERE JA and SANDURA JA

HH86-09 : CHAWASARIRA TRANSPORT (PVT) LTD vs THE RESERVE BANK OF ZIMBABWE
Ruled By: BHUNU J

HH36-09 : T NYIKADZINO vs JOHN ASHER and MUSUNGA & ASSOCIATES and THE DEPUTY SHERIFF and THE MINISTER OF STATE FOR LANDS AND RURAL RESETTLEMENT
Ruled By: MAKARAU JP

HH261-16 : KARNEC INVESTMENTS (PRIVATE) LIMITED and ROBERT STRONG vs ECONET WIRELESS (PRIVATE) LIMITED
Ruled By: TSANGA J

Appealed
SC24-21 : BIG VALLEY MASTERS (PRIVATE) LIMITED vs SHI JINWU
Ruled By: GWAUNZA DCJ, GUVAVA JA and MAVANGIRA JA

SC68-21 : SIBONILE DUBE vs PAUL MUREHWA and MINISTER OF LOCAL GOVERNMENT, PUBLIC WORKS AND NATIONAL HOUSING N.O.
Ruled By: GUVAVA JA, MAVANGIRA JA and KUDYA AJA

HH62-14 : JOHANNES MAKONYE vs KENAE RAMODIMOOSI and ENTREDEV PROPERTY GROUP and C.H. LUKAS
Ruled By: CHIGUMBA J

HH435-15 : LADRAX INVESTMENTS (PVT) LTD vs IGNATIOUS CHIRENJE and RUTENDO CHIRENJE
Ruled By: TSANGA J

HMT12-20 : CHENESO MUVANDI vs CITY OF MUTARE and MATIVENGA MHISHI N.O. (as Executor of the Estate Late Washington Jekanyika)
Ruled By: MUZENDA J

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

Categories

Law Portal Zimbabwe

Cause of Action and Draft Orders re: Criminal Allegations Raised in Civil Proceedings

HH10-18 : UPENYU MASHANGWA and BLESSING MASHANGWA vs EMMANUEL MAKANDIWA and RUTH MAKANDIWA and UNITED FAMILY INTERNATIONAL CHURCH Ruled By: MANGOTA J

Appealed SC95-21 : UPENYU MASHANGWA and BLESSING MASHANGWA vs EMMANUEL MAKANDIWA and RUTH MAKANDIWA and UNITED FAMILY INTERNATIONAL CHURCH Ruled By: GWAUNZA DCJ, MAKONI JA and BERE JA

View Appeal HH40-19 : UPENYU MASHANGWA and ANOR HC4197/18 and EMMANUEL MAKANDIWA and OTHERS HC1774/18 vs EMMANUEL MAKANDIWA and RUTH MAKANDIWA and ANOR and UPENYU MASHANGWA and ANOR Ruled By: TAGU J

CC21-19 : NELSON CHAMISA vs EMMERSON DAMBUDZO MNANGAGWA and OTHERS Ruled By: MALABA CJ, GWAUNZA DCJ, GARWE JCC, MAKARAU JCC, HLATSHWAYO JCC, PATEL JCC, BHUNU JCC, UCHENA JCC and MAKONI JCC

SC38-19 : PIA NGWARU vs FIRST MUTUAL HEALTH COMPANY (PRIVATE) LIMITED Ruled By: GARWE JA, GUVAVA JA and MAVANGIRA JA

SC27-12 : ASTRA INDUSTRIES LIMITED vs PETER CHAMBURUKA Ruled By: ZIYAMBI JA, GARWE JA and OMERJEE AJA

HH656-15 : INNOCENT CHITIKI vs PAN AFRICAN MINING (PRIVATE) LIMITED Ruled By: CHIGUMBA J

HH653-15 : LEWENOD ENTERPRISES (PRIVATE) LIMITED vs FREIGHT AFRICA LOGISTICS Ruled By: CHIGUMBA J

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

View Appeal HH253-16 : ENGEN PETROLEUM ZIMBABWE [PVT] LTD vs WEDZERA PETROLEUM [PVT] LTD and INFRASTRUCTURE DEVELOPMENT BANK OF ZIMBABWE Ruled By: MAFUSIRE J

HH89-10 : NATHAN CHILUFYA vs COMMISSIONER GENERAL OF POLICE and CO MINISTERS OF HOME AFFAIRS and OFFICER IN CHARGE ZRP CHIKURUBI DETENTION BARRACKS and CHIEF SUPT MUTODZA Ruled By: UCHENA J

SSC113-00 : IN RE: PATRICK ANTHONY CHINAMASA vs X Ruled By: GUBBAY CJ, McNALLY JA, EBRAHIM JA, MUCHECHETERE JA and SANDURA JA

HH86-09 : CHAWASARIRA TRANSPORT (PVT) LTD vs THE RESERVE BANK OF ZIMBABWE Ruled By: BHUNU J

HH36-09 : T NYIKADZINO vs JOHN ASHER and MUSUNGA & ASSOCIATES and THE DEPUTY SHERIFF and THE MINISTER OF STATE FOR LANDS AND RURAL RESETTLEMENT Ruled By: MAKARAU JP

HH261-16 : KARNEC INVESTMENTS (PRIVATE) LIMITED and ROBERT STRONG vs ECONET WIRELESS (PRIVATE) LIMITED Ruled By: TSANGA J

Appealed SC24-21 : BIG VALLEY MASTERS (PRIVATE) LIMITED vs SHI JINWU Ruled By: GWAUNZA DCJ, GUVAVA JA and MAVANGIRA JA

SC68-21 : SIBONILE DUBE vs PAUL MUREHWA and MINISTER OF LOCAL GOVERNMENT, PUBLIC WORKS AND NATIONAL HOUSING N.O. Ruled By: GUVAVA JA, MAVANGIRA JA and KUDYA AJA

HH62-14 : JOHANNES MAKONYE vs KENAE RAMODIMOOSI and ENTREDEV PROPERTY GROUP and C.H. LUKAS Ruled By: CHIGUMBA J

HH435-15 : LADRAX INVESTMENTS (PVT) LTD vs IGNATIOUS CHIRENJE and RUTENDO CHIRENJE Ruled By: TSANGA J

HMT12-20 : CHENESO MUVANDI vs CITY OF MUTARE and MATIVENGA MHISHI N.O. (as Executor of the Estate Late Washington Jekanyika) Ruled By: MUZENDA J

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

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Zimbabwe

HH10-18 : UPENYU MASHANGWA and BLESSING MASHANGWA vs EMMANUEL MAKANDIWA and RUTH MAKANDIWA and UNITED FAMILY INTERNATIONAL CHURCH
Ruled By: MANGOTA J

Appealed
SC95-21 : UPENYU MASHANGWA and BLESSING MASHANGWA vs EMMANUEL MAKANDIWA and RUTH MAKANDIWA and UNITED FAMILY INTERNATIONAL CHURCH
Ruled By: GWAUNZA DCJ, MAKONI JA and BERE JA

View Appeal
HH40-19 : UPENYU MASHANGWA and ANOR HC4197/18 and EMMANUEL MAKANDIWA and OTHERS HC1774/18 vs EMMANUEL MAKANDIWA and RUTH MAKANDIWA and ANOR and UPENYU MASHANGWA and ANOR
Ruled By: TAGU J

CC21-19 : NELSON CHAMISA vs EMMERSON DAMBUDZO MNANGAGWA and OTHERS
Ruled By: MALABA CJ, GWAUNZA DCJ, GARWE JCC, MAKARAU JCC, HLATSHWAYO JCC, PATEL JCC, BHUNU JCC, UCHENA JCC and MAKONI JCC

SC38-19 : PIA NGWARU vs FIRST MUTUAL HEALTH COMPANY (PRIVATE) LIMITED
Ruled By: GARWE JA, GUVAVA JA and MAVANGIRA JA

SC27-12 : ASTRA INDUSTRIES LIMITED vs PETER CHAMBURUKA
Ruled By: ZIYAMBI JA, GARWE JA and OMERJEE AJA

HH656-15 : INNOCENT CHITIKI vs PAN AFRICAN MINING (PRIVATE) LIMITED
Ruled By: CHIGUMBA J

HH653-15 : LEWENOD ENTERPRISES (PRIVATE) LIMITED vs FREIGHT AFRICA LOGISTICS
Ruled By: CHIGUMBA J

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

View Appeal
HH253-16 : ENGEN PETROLEUM ZIMBABWE [PVT] LTD vs WEDZERA PETROLEUM [PVT] LTD and INFRASTRUCTURE DEVELOPMENT BANK OF ZIMBABWE
Ruled By: MAFUSIRE J

HH89-10 : NATHAN CHILUFYA vs COMMISSIONER GENERAL OF POLICE and CO MINISTERS OF HOME AFFAIRS and OFFICER IN CHARGE ZRP CHIKURUBI DETENTION BARRACKS and CHIEF SUPT MUTODZA
Ruled By: UCHENA J

SSC113-00 : IN RE: PATRICK ANTHONY CHINAMASA vs X
Ruled By: GUBBAY CJ, McNALLY JA, EBRAHIM JA, MUCHECHETERE JA and SANDURA JA

HH86-09 : CHAWASARIRA TRANSPORT (PVT) LTD vs THE RESERVE BANK OF ZIMBABWE
Ruled By: BHUNU J

HH36-09 : T NYIKADZINO vs JOHN ASHER and MUSUNGA & ASSOCIATES and THE DEPUTY SHERIFF and THE MINISTER OF STATE FOR LANDS AND RURAL RESETTLEMENT
Ruled By: MAKARAU JP

HH261-16 : KARNEC INVESTMENTS (PRIVATE) LIMITED and ROBERT STRONG vs ECONET WIRELESS (PRIVATE) LIMITED
Ruled By: TSANGA J

Appealed
SC24-21 : BIG VALLEY MASTERS (PRIVATE) LIMITED vs SHI JINWU
Ruled By: GWAUNZA DCJ, GUVAVA JA and MAVANGIRA JA

SC68-21 : SIBONILE DUBE vs PAUL MUREHWA and MINISTER OF LOCAL GOVERNMENT, PUBLIC WORKS AND NATIONAL HOUSING N.O.
Ruled By: GUVAVA JA, MAVANGIRA JA and KUDYA AJA

HH62-14 : JOHANNES MAKONYE vs KENAE RAMODIMOOSI and ENTREDEV PROPERTY GROUP and C.H. LUKAS
Ruled By: CHIGUMBA J

HH435-15 : LADRAX INVESTMENTS (PVT) LTD vs IGNATIOUS CHIRENJE and RUTENDO CHIRENJE
Ruled By: TSANGA J

HMT12-20 : CHENESO MUVANDI vs CITY OF MUTARE and MATIVENGA MHISHI N.O. (as Executor of the Estate Late Washington Jekanyika)
Ruled By: MUZENDA J

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