Documentary Evidence re: Questioned Documents

SC30-19 : BRITISH AMERICAN TOBBACO ZIMBABWE vs JONATHAN CHIBAYA
Ruled By: GARWE JA, GOWORA JA and MAVANGIRA JA

This is an appeal against the entire judgment of the Labour Court dismissing the appellant's appeal against a decision of the Grievance and Disciplinary Committee of the National Employment Council for the Tobacco Industry (“the NEC Grievance and Disciplinary Committee”) which found that the appellant had failed to prove a ...

FACTUAL BACKGROUND

The appellant, British American Tobacco Zimbabwe, is a company registered in terms of the laws of Zimbabwe. The respondent was employed by the appellant as a Trade Marketing representative.

The respondent was charged with an act of misconduct which was couched in the following terms:

“Alleged Act of Misconduct: Dishonesty, theft, fraud and related matters Violation of Clause (d) defined as;

Theft, or abetting theft, fraud or embezzlement or extortion or corruption and bribery:

Charges against you are emanating from that on 31^st May 2012 you allegedly withdrew US$2,605= from British American Tobacco Zimbabwe's (BAT Zimbabwe) account and converted this amount to your own use.”

The charge arose after it was discovered that there were two withdrawals of an amount of USD2,605= from the appellant's Standard Chartered Bank account on two occasions, namely, 18 May 2012 and on 31 May 2012 using one withdrawal instruction. The withdrawal of 18 May 2012 was authorised and was made by the respondent. The withdrawal of 31 May 2012 was un-authorised and was deemed fraudulent as the instruction used on 18 May 2012 was the same one which was used again to withdraw money on 31 May 2012. On the face of it, the latter withdrawal was also made by the respondent.

The charges were laid almost a year later, on 29 July 2013 and the respondent was suspended from work with full pay and benefits in terms of the applicable Code of Conduct, being the Collective Bargaining Agreement: Tobacco Industry (Tobacco Industry Code of Conduct, SI 322/96).

A disciplinary hearing was held and the Disciplinary Committee found the respondent guilty as charged on the basis of a forensic report by a forensic scientist, who, after analysing several samples of the respondent's signature, concluded that the signature on 31 May withdrawal slip was consistent with the respondent's standard signature. Consequently, the respondent was dismissed from employment with effect from 30 August 2013, the date on which the disciplinary committee made the decision.

The respondent appealed to the Works Council against the dismissal. The appeal was heard on 24 September 2013 and the proceedings were adjourned to allow the panel to:

(a) Obtain the original withdrawal documents;

(b) Get an explanation from the Bank on the processing of a withdrawal slip;

(d) Seek clarification on issues raised by the Mutare branch manager during the initial hearing.

However, without obtaining and considering the documents and evidence it had hoped to get from the Bank, on 25 November 2013, the Works Council made and availed its decision upholding the dismissal penalty by the Disciplinary Committee.

Aggrieved by the decision of the Works Council, the respondent further appealed to the NEC Grievance and Disciplinary Committee which upheld his appeal and set aside the order by the Works Council. The NEC Grievance and Disciplinary Committee's reasoning in arriving at this decision was that the only evidence which the appellant had relied on, namely, the handwriting expert's report, was unreliable as it was based on photocopies which do not clearly show some of the features and that therefore the appellant had failed to prove its case against the respondent.

Further, the NEC Grievance and Disciplinary Committee found that the Bank was not co-operative as it failed to provide information which would have assisted the committee in its determination of the guilt of the respondent or otherwise. This information included the original withdrawal slip, the relevant video footage and an explanation of how withdrawal slips are processed. In light of the inconclusive handwriting report and the missing information which the Bank was reluctant to supply, the NEC Committee concluded that, whilst the respondent's connivance with the Bank could not be ruled out, on the proven facts and available evidence, the appellant had failed to prove the respondent's guilt on a balance of probabilities.

Aggrieved by the decision of the NEC Grievance and Disciplinary Committee, the appellant noted an appeal to the Labour Court.

The appellant's grounds before that court were essentially that the NEC Committee had erred at law and misdirected itself in a number of respects;

(i) It had erred and misdirected itself in holding that the appellant had failed to substantiate its claim when it found that connivance with the Bank could not be ruled out;

(ii) In disregarding the forensic report by the handwriting expert;

(iii) In ignoring the respondent's identification details which were affixed on the withdrawal slip; and

(iv) In holding that the fraudulent transaction had been committed by a member of the Bank.

The court a quo upheld the decision of the NEC Grievance and Disciplinary Committee. It reasoned that the withdrawal slip of 31 May 2012 was effected at 0800 hours, a time when the doors of the Bank get opened to the public and that there was no evidence that was led to show that the respondent was already in the Bank at that time. Further, it found that the forensic report relied upon was based on the examination of photocopies and not the original documents which were kept at the Bank. Consequently, the court a quo concluded that the evidence on record pointed rather to the involvement of the Bank's personnel and not that of the respondent. The appeal was thus dismissed.

BASIS OF PRESENT APPEAL

Aggrieved by the court a quo's decision, the appellant has appealed to this Court on the following grounds:

1. The court a quo erred and misdirected itself in failing to find that sufficient evidence, including expert forensic evidence and facts had been established linking the respondent to commission of the offences charged under clause (d) of S.I.322 of 1996.

2. The court a quo further erred and misdirected itself in failing to find that, in any event, sufficient evidence had been led to establish the respondent's connivance in the commission of the offences charged under clause (d) of S.I.322 of 1996.

3. The court a quo further erred and misdirected itself in rejecting expert evidence pointing to the respondent's guilt and connivance in the commission of the offence charged under clause (d) of S.I.322 of 1996.

4. The court a quo consequently erred and misdirected itself in failing to find that the respondent's guilt had been established, and, consequently, his dismissal was lawful.

THE ISSUE

From these grounds of appeal, and the facts above, the only issue for determination is whether or not there was sufficient evidence in the record to link the respondent to the commission of the offence.

APPELLANT'S SUBMISSIONS BEFORE THIS COURT

The submission by counsel for the appellant, in both his written and oral submissions, is that the appellant managed to prove, on a balance of probabilities, that the fraudulent withdrawal of its funds, on 31 May 2012, was made in the respondent's name and on his signature; that the withdrawal instruction bore the respondent's identity details, all of which aspects were confirmed by the handwriting expert's report which concluded that the signature on the withdrawal slips matched that of the respondent.

Consequently, the appellant argued, the respondent was guilty of the offence charged and the NEC Grievance and Disciplinary Committee had therefore wrongly found him not guilty.

RESPONDENT'S SUBMISSIONS BEFORE THIS COURT

Counsel for the respondent argued that the appellant failed to prove, on a balance of probabilities, that the respondent had committed the offence. He argued that the respondent could not have signed the withdrawal slip of 31 May 2012 because he could not have been in the Bank before the bank's opening time for him to have been served at 8.00am and that therefore the withdrawal could only have been done by a staff member of the Bank.

He further argued that the handwriting expert's report was unreliable and inconclusive because the expert relied on photocopies of the withdrawal slips in assessing the signature. To show the unreliability of the photocopies, the respondent pointed out the fact that the expert missed the variation between the forged signature on the photocopy of 31 May 2012 withdrawal slip which ended with two dots and the appellant's standard signature which had none.

ANALYSIS

The charges that were laid against the respondent arose after the withdrawal of 31 May 2012 because the withdrawal slip was in his name and was purportedly signed by him. In addition, his identification particulars were also recorded thereon. A perusal of the record shows that there was no direct evidence linking the respondent to the offence. The appellant relied on circumstantial evidence. The respondent, on his part, argued that the circumstantial evidence relied on did not prove that he was guilty.

In S v Tambo 2007 (2) ZLR 33 (H)…, (a criminal matter), the court held that;

“Circumstantial evidence can only be used to draw an inference if the inference sought to be drawn is the only reasonable one which can be drawn from those facts. It must be supported by rational reasoning and an analysis of the proved facts. The correct judicial assessment of evidence must be based on establishing proved facts, the proof of which must be a result of careful analysis of all the evidence led. The final result must be the product of an impartial and dispassionate assessment of all the evidence placed before the court.”…,.

However, in cases where not only one inference can be drawn, the court, in Ebrahim v Pittman NO 1995 (1) ZLR 176 (H)…, held that;

“In a civil case, where the court seeks to draw inferences from the facts, it may, by balancing probabilities, select a conclusion which seems to be the more natural or plausible (in the sense of credible) conclusion from among several conceivable ones, even though that conclusion is not the only reasonable one.”…,.

In Miller v Minister of Pensions [1947] 2 All ER 372, 374, the concept of balancing probabilities was explained as follows;

“It must carry a reasonable degree of probability but not so high as is 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.”…,.

In the book, The South African Law of Evidence, 4^th Edition, HOFFMAN and ZEFFERTT state as follows:

“In a civil case…, if the facts permit more than one inference, the court must select the most plausible. If this favours the plaintiff, he is entitled to judgment. If inferences in favour of both parties are equally possible, the plaintiff has not discharged the burden of proof…,.

Selke J held, in Govan v Skidmore, that the selected inference must 'by the balancing of probabilities be the more natural, or plausible, conclusion from among several conceivable ones.'”

The learned authors expound further and explain that the court may, however, find that the contentions of the party who has produced no evidence are the more probable. They state that what is weighed in the balance is not quantities of evidence but the probabilities arising from that evidence and all the circumstances of the case.

In the text, Principles of Evidence, 4^th edition, the authors SCHWIKKARD and Van der MERWE similarly state:

“In civil proceedings, the inference sought to be drawn must also be consistent with all the proved facts, but it need not be the only reasonable inference: it is sufficient if it is the most probable inference. For example, in AA Onderlinge Assuransie-Assosiasie Bpk v De Beer (1982 (2) SA 603 (A)) it was held that a plaintiff who relies on circumstantial evidence does not have to prove that the inference which he asks the court to draw is the only reasonable inference: he will discharge his burden of proof if he can convince the court that the inference he advocates is the most readily apparent and acceptable inference from a number of possible inferences.”

In casu, the appellant having alleged that the respondent had committed an offence, had the burden to prove the allegation. It is trite in our law that he who alleges must prove.

It was the evidence of the appellant that the fraudulent withdrawal slip was processed at 0800 hours on 31 May 2012. The fraudulent withdrawal was made in the name of the respondent and an almost similar signature to his was affixed to the withdrawal slip. The withdrawal slip also bore the respondent's personal details.

It was on the strength of this that the charge was laid against the respondent leading to a disciplinary hearing, where a handwriting expert was called to examine the withdrawal slip to determine whether it was forged or it was indeed signed by the respondent.

The expert found that the signature on the withdrawal slip was the same as the appellant's standard signature. The expert's conclusion was based on an examination of photocopies and it was on this score that the respondent challenged the expert's finding as well as the fact that his true signature had no dots as reflected on the signature appearing on the photocopies.

The Bank was asked to assist in this matter but was not co-operative. At one point, it was asked to provide the original copies of the withdrawal slip; it was also asked to assist with an explanation of the processing of a withdrawal slip and to also produce a video footage placing the respondent at the Bank. The Bank did not come through on all these requests. The Bank's unco-operative attitude must be viewed against the backdrop of the allegation that the Bank knew or already had the respondent's details; that the withdrawal slip was, at all material times, in the possession of the Bank and was never accessed by the respondent; and that the same Bank Teller who had served the respondent and processed the withdrawal of 18 May 2012 was the same Teller who processed the same withdrawal on 31 May 2012.

The Bank's uncooperative attitude is not irrelevant in the determination of this appeal. The specific requests that were made of it were in relation to critically material aspects that would need to be adverted to in determining whether, on a balance of probabilities, the respondent could be said to be guilty. In the absence of such, the guilt of the respondent cannot be said to have been proved, even on a balance of probabilities. The finding of the NEC Grievance and Disciplinary Committee, which was confirmed by the court a quo, cannot, in the circumstances, be faulted.

The finding was that the probabilities pointed to the direct involvement of a Bank official in the dishonest activities, particularly because the transaction took place at 8.00am - the exact time that the Bank would have been opening its doors to the public. No evidence placed the respondent at or inside the Bank at the relevant time. The Bank already had the respondent's personal details. There was no evidence that the respondent had ever accessed the withdrawal slip in question as it remained in the Bank's possession at all material times. This is particularly significant when note is taken of the fact that the withdrawal slip was in the Bank's possession for some thirteen days before the second withdrawal was made. The Bank's failure to co-operate unfortunately meant that a number of possibilities cannot be discounted in this matter.

The court a quo found that, because the Bank was in possession of the withdrawal slip, any of its officials could have used the documents that had previously been presented in order to capture the signature and the identity particulars of the respondent. The court a quo found that it was not clear whether the respondent was involved or not in the withdrawal of 31 May 2012. The appellant's involvement was thus not proved. The appellant's involvement or guilt in the withdrawal that occurred on 31 May 2012 was not the most readily apparent and acceptable inference. Rather, the balance of probabilities tended, in the view of the court a quo, to point to direct involvement by the Bank or its employees.

Regarding the evidence of the handwriting expert, it is trite that expert opinion evidence is admitted in evidence to assist the court to reach a just decision by guiding the court and clarifying issues not within the court's general knowledge.

In Menday v Protea Assurance Co. Ltd 1976 (1) SA 565…, it was stated that;

“It is not the mere opinion of the expert witness which is decisive but his (or her) ability to satisfy the Court that, because of his (or her) special skill, training and experience, the reasons for the opinion which he (or she) expresses are acceptable.”

In R v Chidota 1966 (3) SA 428 (another criminal matter) the learned judge QUENET (JP) held that:

“Where the sole evidence concerning an accused with the commission of an offence is that of a handwriting expert, precaution should be taken to remove the possibility of error.”

It is trite that, in the final analysis, the court itself must draw its own conclusions from the expert opinion and must not be overawed by the proffered opinion and simply adopt it without questioning or testing it against known parameters.

In S v Zuma 2006 (2) SACR 257, 263 the court held that the expertise of a professional witness should not be elevated to such heights that sight is lost of the court's own capabilities and responsibilities in drawing inferences from the evidence.

In casu, the handwriting expert, having relied on photocopies, was found to have consequently missed certain distinguishing features peculiar to the respondent's signature. For that reason, the adjudicating authority ought to have found that such evidence was inadequate and thus could not be relied on. It would be remiss for a court to rely on expert opinion evidence which fails to clarify that which the court needs clarification on. Where a handwriting expert relies on photocopies of the document in issue, any conclusions drawn therefrom could be inconclusive as there is a real chance that the analysis may miss certain details crucial to the determination of whether or not the document is forged may be overlooked. The purpose of seeking expert opinion evidence is thereby defeated.

DISPOSITION

In light of the above findings, I am of the view that the appeal lacks merit and therefore ought to be dismissed with costs following the cause.

In the result, it is ordered that the appeal be and is hereby dismissed with costs.

SSC07-11 : THE ATTORNEY-GENERAL vs ROY BENNETT
Ruled By: CHIDYAUSIKU CJ

The respondent in this case (whom I shall refer to as "the accused" hereafter for convenience) was charged in the High Court, firstly, with possession of weaponry with the intention to commit an act of insurgency, banditry, sabotage or terrorism in contravention of section 10(1) of the Public Order and Security Act [Chapter 11:17].

Arising from that charge were alternative charges of –

(a) Possession of dangerous weapons in contravention of section 11(1) of the Public Order and Security Act; or

(b) Unlawful possession of prohibited firearms in contravention of section 24(1)(d) of the Firearms Act [Chapter 10:09]; or

(c) Unlawful possession of firearms in contravention of section 4 of the Firearms Act [Chapter 10:09].

On the second count, the accused was charged with incitement to commit, or conspiracy to commit, an act of insurgency in contravention of section 6 of the Public Order and Security Act [Chapter 11:17].

At the close of the State case, the accused applied for a discharge or acquittal in terms of section 198(3) of the Criminal Procedure and Evidence Act [Chapter 9:07] (hereinafter referred to as "the Act") which provides that:

"(3) If at the close of the case for the prosecution the court considers that there is no evidence that the accused committed the offence charged in the indictment, summons or charge, or any other offence of which he might be convicted thereon, it shall return a verdict of not guilty."

The application found favour with the court a quo and the accused was found not guilty and discharged at the close of the State case.

The Attorney-General was dissatisfied with the outcome and now applies for leave to appeal against that finding.

He makes this application in terms of section 198(4) of the Criminal Procedure and Evidence Act which provides, in relevant part, as follows:

"(4) If the Attorney-General is dissatisfied with a decision in terms of subsection (3), he may, with the leave of a judge of the Supreme Court, appeal against such decision to the Supreme Court….,."

In determining whether such leave should be granted or refused, the guiding factor is the prospect of success on appeal.

Thus, if the appeal has prospects of success, the leave to appeal should be granted, but, if the appeal has no prospects of success, such leave should be refused.

I will now examine the Attorney-General's prospects of success on appeal.

The proposed grounds of appeal are set out in the proposed Notice of Appeal attached to this application. They read:

"1. The learned trial court erred at law when it considered the pieces of evidence in isolation from the other thereby failing to take a holistic assessment of all evidence, the totality of which established a prima facie case against the accused person.

In other words, the existence of a bank account in the name of Peter Michael Hitschmann, the e-mail communication between Hitschmann and Roy Bennett, as well as the fact that the said emails contain messages pointing to the funding of firearms acquisition, all points to a conspiracy between the said Hitschmann and the respondent.

2. The learned trial court misdirected itself when it ruled, that, the authenticity of the e-mail printouts was solely dependent on the credibility of a computer expert when in fact the circumstances surrounding the discovery of the said e-mails was the most fundamental consideration which the learned trial court did not even bother to consider in its evaluation of evidence.

In other words, the court failed to make a finding of fact as to where those e-mails actually originated. In the context of the said e-mails having been found in possession of an alleged co-conspirator, Peter Michael Hitschmann, the fact that the latter disputed them called for the court to consider, for a fact, whether the e-mails were concocted or not.

Had the court a quo approached the question with a view of making a finding of fact in that respect, the question of forensic evidence would have been a non-issue since the court eventually found Nyasha Matare's evidence generally impressive beyond reproach.

3. The court a quo misdirected itself when it reasoned that the police should have investigated whether Roy Bennett had a computer carrying the said email address used in the recovered e-mails, when in fact all the witnesses who testified told the court that Roy Bennett had absconded to South Africa where he obtained asylum for three years. With the full knowledge of that fundamental fact, the learned Judge should not have made that gratuitous finding in favour of the accused who never disputed absconding at the time Hitschmann was arrested in 2006.

4. The learned trial court erred at law when it found the testimony of Mutsetse appalling only because he acknowledged lack of knowledge as to the existence of computer criminals known as hackers without any tested evidence to the effect, that, the persons who discovered the e-mails on the person of Hitschmann are criminals known as hackers.

By so doing, the learned Judge contradicted his earlier finding of fact, that, the mere fact that e-mails can be fake does not mean that the emails before the court, as exhibit 13, are also fake.

The ultimate finding, that, the e-mails are not admissible on the basis that they are capable of being faked, was, consequently, outrageous in its defiance of logic.

5. The learned judge a quo made an error of law when he found, that, the authenticity of e-mails was predicated upon computer forensics and scientific detection, whereas the print-outs (sic), just like any other document, is admissible on the basis of the credibility of the person who discovered the document.

Where in (sic) this case the said e-mails were discovered in custody of a co-conspirator and ultimately admitted as executive statements at law, their contents should have been interpreted by the court with a view to find out if they had any link to real facts on the ground pointing at Roy Bennett as a co-conspirator.

The failure by the court to read and interpret the contents of the e-mails deprived it of the benefit of meticulously finding the relevance of other pieces of evidence whose totality affirm the link of the respondent to the offence.

These are the incitement messages targeting a microwave link at Melfort near Goromonzi, the confirmation of bank deposits in Manica, Mozambique, and the fact that Hitschmann actually possessed a myriad of weaponry, ranging from prohibited firearms, classified as dangerous by the legislature, to detonators, and explosive devices."

The learned Judge in the court a quo, in a meticulous and well reasoned judgment, concluded that the accused had no case to answer and discharged him at the close of the State case.

I have carefully perused the voluminous record in this case. I am satisfied, that, on the evidence led up to the close of the State case, the learned Judge could not have come to a different conclusion than he did.

After the learned Judge ruled, quite correctly in my view, inadmissible, the confessions of Hitschmann and the e-mails, there was literally no evidence linking the accused to the crimes he was charged with.

In the circumstances, the prospects of success on appeal are non-existent.

In terms of the Criminal Procedure and Evidence Act, the State is required to serve on the accused a Summary of the State Case, setting out the witnesses that it intends to call and a summary of the evidence that they will give.

Similarly, the defence is required to furnish the State with a Defence Outline, in terms of which the accused sets out his defence to the charge and the evidence he intends to lead.

The record reveals, that, at the close of the State case, the State had not led the evidence it alleged in the State Outline it would lead. Some of the evidence not led was critical to the linking of the accused to the offence. This critical evidence for the State was either ruled inadmissible or the State witnesses told a different story from that alleged in the Summary of the State Case.

In particular, the viva voce evidence of Peter Michael Hitschmann (hereinafter referred to as "Hitschmann") and Sipho James Makone (hereinafter referred to as "Makone") differed from the purported evidence set out in the Summary of the State Case.

This had the effect of destroying the State case. I shall deal with this aspect of the case later in this judgment.

Before dealing with the evidence in this case, I wish to set out the law.

The Law

Section 188(3) of the Criminal Procedure and Evidence Act [Chapter 59] is the predecessor to the present section 198(3) of the Criminal Procedure and Evidence Act [Chapter 9:07], in terms of which the court a quo discharged the accused.

Section188(3) of the Criminal Procedure and Evidence Act [Chapter 59] provided as follows:

"(3) If at the close of the case for the prosecution the court considers that there is no evidence that the accused committed the offence charged in the indictment, summons or charge, or any other offence of which he might be convicted thereon, it may return a verdict of not guilty."…,.

Section 198(3) of the Criminal Procedure and Evidence Act [Chapter 9:07] is worded in identical terms, except for the substitution of the underlined word 'may' by the word 'shall'.

The Legislature, in substituting the word 'may' with the word 'shall' evinces the clear intention of the Legislature to remove the discretion from the court, of deciding whether or not an accused should be placed on his defence in the circumstances set out in section 198(3) of the Criminal Procedure and Evidence Act [Chapter 9:07].

Previous authorities have differed on whether a court has such a discretion or not. The Legislature has spoken and the dispute determined beyond doubt.

The law, as it stands, is that the court is bound to discharge an accused where it is satisfied that there is no evidence that the accused committed the offence charged in the indictment, summons, or charge.

What constitutes no evidence that the accused committed the offence charged in the indictment, summons, or charge has been the subject of interpretation by this Court in a number of cases.

A perusal of those authorities reveals that there is no evidence that the accused has committed the offence charged in the indictment, summons, or charge in the following circumstances –

(i) Where there is no evidence to prove the essential elements of the offence: see Attorney-General v Bvuma and Ano 1987 (2) ZLR 96 (SC)…,.;

(ii) Where there is no evidence on which a reasonable court, acting carefully, might properly convict: see Attorney-General v Mzizi 1991 (2) ZLR 321 (SC)…,.; and

(iii) Where the evidence adduced on behalf of the State is so manifestly unreliable that no reasonable court could safely act on it: see Attorney-General v Tarwirei 1997 (1) ZLR 575 (S)…,.

The State agrees with the above proposition. Indeed, counsel for the State cited the above authorities.

The respondent's stance seems to be, that, the above circumstances are correct but not exhaustive. However, counsel for the respondent did not cite any authority setting out any other circumstances.

I will now proceed to examine the evidence.

The Evidence

The main thrust of the Attorney-General's case is that the court a quo assessed the evidence piecemeal and failed to consider the overall effect of the evidence led.

The contention by the Attorney-General is that the overall effect of the existence of a bank account in the name of Hitschmann in Mozambique, and the contents of the e-mails, established a prima facie case against the accused.

This is the gist of the first ground of appeal set out in the proposed Notice of Appeal.

The contention is enforced in paragraph 4 of the applicant's statement in support of the application. It reads:

"4. It is submitted that the Honourable Court a quo misdirected itself by assessing evidence in that matter (manner?) to an extent that the court ultimately assessed pieces of evidence in isolation thereby failing to adopt a holistic analysis of circumstantial evidence adduced by the State.

The law surrounding assessment of evidence proves, that, the trial court should not adopt a piecemeal approach in evaluating the weight of evidence.

In casu, the mere fact that Sipho James Makone went to Mozambique and confirmed the existence of the bank account in the name of Peter Michael Hitschmann, and obtained a bank statement showing deposits, confirms that surely a bank account exists in the name of Hitschmann.

In his testimony, Hitschmann confirmed that he holds a bank account in Mozambique, although he was at pains to explain why he holds the bank account in Mozambique.

Sipho James Makone stated, that, he went to Mozambique not only to verify what Hitschmann himself had pointed out during interrogation, but to confirm the e-mail communication between Roy Bennett and Peter Michael Hitschmann.

Makone's testimony can thus not be faltered (faulted?) because he did not bring the said bank statement from Mozambique."

I do not accept that the court a quo misdirected itself by examining different aspects of the evidence separately. In fact, this is how evidence is generally evaluated.

It is only after individual assessment of evidence that a court considers the overall effect of that evidence.

It is quite clear from a reading of the judgment, that, the learned Judge analysed the evidence piecemeal, but concluded, that, the overall effect of the evidence examined piecemeal was that it failed to establish a prima facie case or a case for the accused to answer at the close of the State case.

I will now turn to consider the evidence led, or attempted to be led, by the State....,.

(iii) The e-mails as evidence

The State case was that certain e-mails, exhibit 13, were downloaded from Hitschmann's computer.

Hitschmann denied that exhibit 13 was downloaded from his computer.

To establish that the emails were downloaded from Hitschmann's computer, the State called a Ms Matare, who testified that she did download some documents from Hitschmann's computer. She did not read the contents of the documents she downloaded.

The court found her to be a credible witness.

Accepting her evidence to be truthful, its value to the State case is very limited. It only establishes that certain documents were downloaded from Hitschmann's computer.

It does not establish that the e-mails, exhibit 13, were genuine or authentic.

The e-mails were accordingly admitted at that stage of the trial on condition that the State would establish, through other evidence, that exhibit 13 were genuine emails from the accused to Hitschmann.

The court simply admitted exhibit 13, at that stage of the proceedings, as documents downloaded from a laptop computer belonging to Hitschmann.

The court reserved the finding on whether the emails were genuine or not until after the State had led evidence to establish that the e-mails were genuine emails from the accused to Hitschmann.

I pause here to make the following observation.

Whenever the State seeks to produce a statement as evidence, and the production of that statement is challenged, it immediately assumes the onus of proving:

(i) Firstly, that the statement was made as a matter of fact by the alleged author of the statement; and

(ii) Secondly, that the legal requirements governing the admissibility of such a statement have been complied with.

The former is a question of fact, and the latter a question of law.

Thus, in casu, the State had the onus to prove that the e-mails were, as a matter of fact, sent by the accused. It is only after the State had established that the emails were sent by the accused to Hitschmann that the question of their admissibility, as executive statements, would arise.

The State failed to clear the first hurdle of proving, as a matter of fact, that the accused sent the e-mails. Consequently, the issue of their admissibility as executive statements fell away.

As I have already stated, the court a quo provisionally admitted the e-mails on condition their genuineness would be proved later.

In this regard, the learned Judge had this to say at p9 of the cyclostyled judgment (Judgment No. HH79-10):

"As previously stated in my earlier ruling, the court's admission of the e-mails was conditional upon the State being able to prove that the questioned e-mails are genuine and authentic. The State's failure to prove the authenticity of the emails automatically renders the e-mails inadmissible. For that reason alone, the court is not obliged to consider the contents of the e-mails and the question of interpretation does not arise."

This approach by the court a quo is supported by authority: see R v Victor and Anor 1965 (1) SA 243.

When the State closed its case, the court held that it had not led credible evidence to establish that the accused had, as a matter of fact, sent the e-mails, exhibit 13, to Hitschmann.

The court, accordingly, ruled them inadmissible and that they could not be used as evidence for the State.

Whether the court was correct in excluding the e-mails as evidence is dependent on whether the court correctly assessed the evidence of Mutsetse and Makone.

I will now turn to examine whether the court a quo was correct in concluding that the evidence of Mutsetse and Makone did not establish that the accused was the author of the emails.

With the exclusion of the e-mails as evidence, the case for the State literally collapsed and the State was left with no leg to stand on.

(iv) The evidence of Mr Mutsetse

Perekayi Denshard Mutsetse ("Mutsetse") was called by the State as an expert witness to establish that the e-mails downloaded from Hitschmann's computer were authentic and represented communication between Hitschmann and the accused.

The learned Judge's assessment of Mutsetse as a witness appears on p9 of the cyclostyled judgment:

"In his testimony, Mr Mutsetse made it clear that he was only contacted by the police in 2009, about three years later, when it was now virtually impossible to trace the origins of the e-mails in question. That being the case, he was constrained to make the valid concession, under cross-examination, that, he could not establish the source or destination of the disputed emails. That concession virtually destroyed any link between the accused and the questioned e-mails."…,.

Further down on p9 of his judgment, the learned Judge made the following scathing remarks about this witness:

"It is needless to say, that, Mr Mutsetse was an appalling witness. He was argumentative and arrogant in the witness stand. When he could not stand the heat, he asked to be excused, saying that he had some business to attend to in Mozambique. The Court refused to let him off the hook, pointing out that every other witness had some business to attend to.

The witness did not take kindly to that ruling, and, when eventually excused, after exhausting his evidence, he had a parting shot for the Court when he retorted:

'Thank you My Lord for wasting my time'.

The Court chose to turn a deaf ear to his contemptuous behaviour, seeing that he had been badly bruised and traumatised under cross-examination."

A reading of the evidence in the record clearly justifies the learned Judge's assessment of Mutsetse's evidence.

In any event, an Appellate Court is in no better position to assess the demeanour of a witness. It is only on those rare occasions where the trial court's finding is not supported by the record that an Appellate Court interferes with such a finding.

In casu, the record supports the conclusion of the court.

Apart from this adverse finding on Mutsetse's credibility, his evidence, as an expert witness, was demonstrated to be palpably unreliable.

When an expert gives evidence, it is critical that the expert's evidence provides the factual basis of his opinion so that the court can decide whether or not to accept the expert's opinion.

Apart from his dubious qualifications and experience entitling him to be considered as an expert, the factual basis of Mutsetse's opinion, that the e-mails were sent by the accused to Hitschmann, was demonstrated to be fallacious.

Mutsetse's evidence was that the e-mails, exhibit 13, had the following three features:

(1) The emails reflected the name of the service provider, which was hashmail.com;

(2) The bottom beach bore the characteristics https/; and

(3) The e-mails bore the characteristics 'From' and 'To' denoting the names of the sender and the receiver.

Mutsetse's evidence in chief was that once these features are on an e-mail, then, the email must be genuine and must be concluded as having been sent by the person and to the person indicated on the email.

On this basis, he concluded that the e-mails were sent by the accused to Hitschmann as reflected on the emails.

When it was demonstrated in court that an e-mail can bear the above characteristics and still be fake, he made the concession that his opinion was inaccurate.

No court could have accepted the opinion of Mutsetse as reliable in the face of a clear demonstration that the basis of such an opinion is fallacious, and the expert's own admission that his opinion was based on false premises.

In the result, the court a quo was correct in concluding that the evidence of Mutsetse did not establish that the e-mails were genuine and therefore admissible as executive statements. Accordingly, the court was entitled to exclude exhibit 13 as inadmissible evidence.

Once it is accepted that the emails were properly excluded as evidence, there is little else to support the State case.

(v) The evidence of Makone

It was also argued for the State, that, the evidence of Makone, who was the investigating officer in this case, taken together with the contents of the e-mails, confirms that the emails were genuine.

I am not persuaded by this submission.

If Makone had given his viva voce evidence along the lines suggested in the State Outline, and the court a quo had found his evidence credible, the court most probably would have held that the e-mails were genuine and admitted them as executive statements.

However, the viva voce evidence of Makone departed materially from the State Outline.

He stated, that, he had travelled to Mozambique and that all he was able to retrieve from Mozambique was the bank account number of Hitschmann.

Hitschmann never disputed that he had an account in a Mozambican bank.

Makone never testified that he secured a bank statement showing that money was ever deposited into Hitschmann's account as alleged in the e-mails. There was no bank statement of Hitschmann showing that any money was ever deposited into or withdrawn from that account.

If the State had established, by way of bank statements, that $5,000 was deposited into the account of Hitschmann, then, that evidence could be regarded as evidence aliunde proving that the e-mails were genuine.

Simply establishing that Hitschmann had a bank account in Mozambique falls far short as evidence aliunde proving that the emails were genuine.

The difficulties that Makone and the State had in securing such evidence are understandable. Banks, generally speaking, do not disclose information on their clients accounts to third parties.

So, the effect of all this, is that the bits and pieces of evidence which the Attorney-General sought to rely on, individually, amounted to zero in their probative value.

When you add zero to zero ad infinitum the sum total is always zero....,.

The e-mails which implicated the accused were correctly ruled inadmissible because the State failed to establish, as a matter of fact, that the accused sent the emails to Hitschmann.

SC31-15 : WECTOR ENTERPRISES (PVT) LTD vs LUXOR (PVT) LTD
Ruled By: ZIYAMBI JA, HLATSHWAYO JA and MAVANGIRA AJA

On 25 February 2014, the respondent (Luxor), as the plaintiff, issued, simultaneously, a summons and a declaration claiming, inter alia:

“(a) Cancellation of the lease agreement between the Plaintiffs and the Defendants on the 31st January 2005;

(b) Payment of the sum of US$11,127=55 being arrear rentals, operational costs, and rates as at 25 January 2013, for Shop 1 Luxor House, Fife Street/9th Avenue, Bulawayo;

(c) Eviction of the Defendant(s) from Shop 1 Luxor House, Fife Street/9thAvenue, Bulawayo together with all those who claim title through him;

(d) Payment of holding over damages of US$1,000 per month calculated from 1st January 2013 to the date of eviction and/or cancellation of the lease agreement;

(e) Costs of suit on a client Attorney (sic) scale.”

On 11 March 2013, the summons were served on the appellants by the Deputy Sheriff, Bulawayo who explained to them the exigencies thereof.

No appearance to defend was entered.

On 4 April 2013, Luxor applied for default judgment. The matter was duly set down for hearing on the roll of unopposed matters, and, on 11 April 2013, default judgment was granted by the High Court as prayed, save that costs were granted on the ordinary scale.

On 22 April 2013, a Writ of Execution and Ejectment was served on the appellants by the Deputy Sheriff. The date of ejectment was set for the 25 April 2013.

Certain items of movable property, as well as a motor vehicle, were attached and removed by the Deputy Sheriff pending their sale in execution on 9 May 2013.

On 29 April 2013, the appellants were evicted in terms of the writ.

On 7 May 2013, the appellants filed a court application for rescission of the default judgment.

They based their application on Order 49 Rule 449(1)(a) of the High Court Rules 1971.

They alleged, that, the default judgment was erroneously granted in that it disclosed no cause of action. In particular, they alleged that there was no allegation in the declaration of a breach of the lease agreement nor was there a computation as to how the amount claimed was arrived at.

The application was opposed by Luxor, whose opposing affidavit was deposed to by one Simon Moyo, a partner in Knight Frank estate agents, who are the letting agents of Luxor.

He averred that he was authorized to depose to the affidavit on behalf of Luxor and could swear to the facts.

He denied that the judgment was erroneously given and alleged that not only were the averments in the summons and declaration sufficient to sustain the cause of action alleged, which was a failure to pay rent and operational costs, but, that documentary evidence in the form of a schedule of payments by the appellants, deeds of suretyship signed by the second and third appellants, and a schedule showing the balance outstanding as at January 25, 2013 were produced to the Court which granted the application for default judgment.

The appellants, it was alleged, had followed the wrong procedure and should have brought their application in terms of Rule 63 of the High Court Rules.

Their failure to take action after service of the summons, coupled with their inaction even when they were served with the writ of execution and eventually evicted on 29 April 2013, was a clear indication that they had no defence to Luxor's claim.

In their answering affidavit, the appellants alleged that the opposing affidavit of Simon Moyo was not properly before the court in that he had no authority (in the form of a resolution by Luxor) to act on behalf of Luxor.

Further, there was no need for the appellants to enter appearance to defend, because, upon receipt of the summons, they approached Luxor and the parties reached an agreement that the court process be stayed as an agreement to settle the rental arrears was reached.

One notes, in passing, that the fact that the rentals were in arrears was accepted by the appellants.

The learned Judge found no merit in the application and dismissed it with costs, hence this appeal.

THE APPEAL

Two main points were taken by the appellants. They were:

(i) That, the court a quo erred in dismissing the application when there was clearly no cause of action; and

(ii) Secondly, that the deponent of Luxor's opposing affidavit had no authority to represent the respondent since not only had no resolution of the directors of Luxor been produced authorizing him to do so, but, in addition, one Mr Stirling, whom the appellants alleged to be a director of Luxor, had instructed Knight Frank not to proceed with the matter against the appellants.

The second point was taken in limine and I deal with it first.

THE AUTHORITY OF MR MOYO

It was submitted, on behalf of Luxor, that, Mr Moyo was not the litigant but had merely deposed to the affidavit, in terms of the High Court Rules, as one who could attest to the facts since he had represented Knight Frank as agent for Luxor in most of the dealings with the appellants in connection with the lease.

In my view, the criticism leveled against the respondent in this regard is misplaced.

The appellants served the court application on the legal practitioners for Luxor. The legal practitioners in question had been acting on behalf of Luxor in the past proceedings between the parties.

It is trite that a company, being an artificial person, must be represented by a legal practitioner.

All that Luxor was called upon to do, in response to the application filed by the applicants, was to file a notice of opposition in Form No.29A together with one or more opposing affidavits: see Rule 233(1) of the High Court Rules.

This is what it did.

The notice of opposition was filed by its legal practitioners.

The appellants cannot blow hot and cold. By serving the application on Luxor's legal practitioners, they have accepted that Luxor is represented by its legal practitioners in the litigation.

They cannot now deny that Luxor is the party litigating.

The affidavit by Simon Moyo is merely an accompanying affidavit filed in terms of Rule 233 of the High Court Rules.

The court a quo was attacked for accepting the affidavit sworn by Simon Moyo whereas it rejected the letter of a Mr Stirling, who, it is alleged, had instructed Knight Frank not to proceed with the case against the appellants.

The two positions can hardly be compared for, as the learned Judge found, the letter had no evidential value as it was not supported by an affidavit from Stirling confirming that he had written the letter and had authority to do so.

SC40-17 : FADZAI JOHN vs DELTA BEVERAGES LIMITED
Ruled By: GUVAVA JA

This is a chamber application for leave to appeal against the decision of the Labour Court in terms of section 92F of the Labour Act [Chapter 28:01].

After hearing arguments from both parties on the preliminary points raised, I dismissed the application with costs. The applicant has requested written reasons for the decision. These are they.

The brief facts of the matter may be summarized as follows:

The applicant was employed by the respondent as a Sales Representative. The respondent alleged, that, on 20 September 2010, the applicant requested and was given 40 cases of soft drink cans in order to replace a bad batch which had been delivered to Food World, a shop based along Cameron Street.

The respondent further alleged, that, the 40 cases were never delivered to Food World.

Based on these allegations, the applicant was charged with theft under section 1(1) of the respondent's Code of Conduct.

Following a disciplinary hearing, the applicant was found guilty of theft and dismissed from employment.

The main evidence against the applicant was a document which was allegedly signed by an employee from Food World acknowledging receipt of 21 cases instead of 40.

During the disciplinary hearing, the Food World employee who had signed for the 21 cases was made to sign, five times, to check his signature against that on the delivery note in question. The members of the Disciplinary Committee came to the conclusion that the signatures did not match, and, consequently, that the drinks were never delivered.

Based on that conclusion, the applicant was found guilty of theft.

The applicant was aggrieved by the decision and appealed to the Labour Court. On appeal to the Labour Court, the disputed signatures were sent to a handwriting expert.

The expert confirmed the finding before the Disciplinary Committee, that the signatures which had been taken during the hearing did not match the signature of the witness.

The appeal was thus dismissed.

The applicant applied for leave to appeal to the Supreme Court, which leave was denied. The applicant then filed the present application.

SC110-22 : CONSTRUCTION RESOURCES AFRICA (PVT) LTD vs CENTRAL AFRICAN BUILDING AND CONSTRUCTION COMPANY (PVT) LTD t/a CENTRAL AFRICAN BUILDING
Ruled By: BHUNU JA, MATHONSI JA and KUDYA AJA

CONSTRUCTIONThe appellant appeals against the whole judgment of the High Court dated 14 March 2012, wherein the court a quo granted an order for the eviction of the appellant.The appellant was evicted from the respondent's three immovable properties situated in Harare.The eviction awarded punitive costs as against the appellant and ...

CONSTRUCTION

The appellant appeals against the whole judgment of the High Court dated 14 March 2012, wherein the court a quo granted an order for the eviction of the appellant.

The appellant was evicted from the respondent's three immovable properties situated in Harare.

The eviction awarded punitive costs as against the appellant and its legal practitioner, Mr D. Chinawa.

THE FACTS

The appellant and the respondent are both companies that are duly incorporated in Zimbabwe. The two companies signed two separate and distinct but inter-related agreements of sale on 29 November 2004, wherein the respondent was the seller while the appellant was the purchaser.

The respondent was represented by Jose Eduardo Vieira, who, together with his father (Luis Vieira), were its sole shareholders and directors.

The appellant was represented by Danny Musukuma, who, together with his brother, Lincewesi Musukuma, were also its sole shareholders and directors.

The parties denoted the first agreement as “the Agreement of Sale” and the second “the Deed of Sale” which terms I hereinafter adopt in this judgment.

The Agreement of Sale encompassed the sale of specified movable assets for the sum of US$219,000 payable on the date of signature, in Zimbabwean dollars, at the auction rate prevailing on 26 November 2004 (the effective date).

In terms of clause 5, interest would accrue from the due date of payment at the rate of 7 and a half per centum per annum calculated on a daily basis.

The assets comprised office furniture and fittings, motor vehicles, radios, water pumps, generators, and “workshop assets”.

It was, however, common cause that the appellant did not pay the purchase price for the movables on the date of signature but had managed to do so in the local currency equivalent as at the date of summons.

The Deed of Sale, whose effective date was 29 November 2004, comprised the sale of three immovable properties for the total sum of US$481,000.

These are identified in clause 1 of the agreement as:

“(a) Certain piece of land situated in the District of Salisbury, Stand 272, measuring 3,145 square metres (8 Whites Way, Msasa, Harare) and held under Deed of Transfer No.6884/92 together with the permanent improvements situate thereon valued at US$296,000 (two hundred and ninety-six thousand United States Dollars).

(b) Certain piece of land situated in the District of Salisbury, Stand No.195, measuring 4,794 square metres (8 Lorely Close, Msasa, Harare) and held under Deed of Transfer No.05691/94 valued at US$97,000 (ninety-seven thousand United States Dollars).

(c) Certain piece of land situated in the District of Salisbury, Stand No.8 measuring 8,790 square metres (8 Comet Close, Mount Pleasant, Harare) held under Deed of Transfer No.3404/78 valued at US$88,000 (eighty-eight thousand United States Dollars), together with all permanent improvements thereto (hereinafter referred to jointly as 'the Property')”.

The purchase price of US$481,000 was payable in instalments on the dates and in the amounts specified in the attachment to the Deed of Sale, Annexure A.

The amounts payable were apportioned between the United States dollar and Zimbabwe dollar.

Default interest accrued at the rate of seven (7) and a half per cent per annum from the date of default to the date of payment.

By letter dated 30 November 2004, the respondent undertook “upon settlement of the full purchase price for the Deed of Sale and Agreement of Sale” to deliver to the appellant “all share certificates of shares of the Company” and duly signed and stamped share transfer forms, the Certificate of Incorporation, Memorandum and Articles of Association, the share register, the minute book and other company documents, hold the requisite meetings of directors and shareholders to transfer the company to the appellant and thereby procure the resignation of the directors, secretary, public officer and other officers of the company.

In the same letter, the respondent further promised to procure the transfer of the company's post office box and all telephone and mobile communication lines to the appellant “upon signature” of the Agreement of Sale.

It was common cause that the letter did not alter, amend, or supplant the terms stipulated in the agreements.

It, however, appears to have clarified that the respondent was not sold as a going concern.

In December 2004, the appellant commenced the utilization of the movable assets, and, by 25 January 2005, the respondent had effected the undertakings premised upon the signature of the Agreement of Sale.

On an undisclosed date, Luis Vieira, as the Chairman of the respondent's Board of Directors, purportedly “read, approved, and signed 'Minutes of Meeting of Members of the Company held at Harare on 3 January 2005.'”

The minutes recorded that the Chairman, Managing Director, Jose Vieira, Danny Musukuma, and Mrs F Maio attended the meeting.

The only business dispatched at that meeting was the appointment of Danny Musukuma “as a new director of the company with immediate effect.”

On 20 September 2005, Luis Viera also signed a CR14 form which showed, that, on 3 January 2005, he and Jose Vieira resigned their directorships and were replaced by Danny and Lincewesi Musukuma while LAWAI resigned as Secretaries and were replaced by Samerstone Services.

The CR14 was, however, lodged with the Registrar of Companies, by Samerstone Services, on 14 September 2006.

Between 11 March 2005 and 27 October 2006, the parties exchanged correspondence in which the respondent demanded payment of and the appellant invariably undertook to pay the outstanding purchase price.

On 1 August 2006, the Zimbabwe dollar was revalued by the removal of three (3) zeroes under the Presidential Powers (Temporary Measures) (Currency Revaluation) Regulations, 2006 SI 199/2006.

As at 4 January 2006, the appellant had paid ZW$2,530,000,000, which, as my computation will show later on in this judgment, was equivalent to US$242,624=25 and purportedly owed ZW$1,480,578,188. These amounts were exclusive of interest.

A further payment of ZW$500,000 (revalued) was rejected and returned to the appellant on 2 August 2006.

The purported sum of ZW$1,480,578,188 was still owing on 25 October 2006.

By letter dated 7 November 2006, the respondent accorded the appellant 30 days notice within which to rectify the breach failing which the agreement would be deemed cancelled.

On 6 December 2006, the appellant tendered a cheque payment of ZW$2.5m “in full and final settlement.”

The cheque was rejected and returned to the appellant.

On 12 December 2006, the respondent duly cancelled the Deed of Sale.

The cancellation was premised on the appellant's failure to pay the United States dollar denominated portion of the purchase price, either in hard currency or in local currency at the agreed rate of conversion.

On 9 January 2007, at the instance of Jose Eduardo Vieira, the respondent issued summons for the vindication of the immovable properties and concomitant eviction of the appellant therefrom.

In its amended plea of 17 May 2007, the appellant conceded that the three immovable properties were owned by the respondent, but, denied being in occupation thereof.

The matter failed to commence on the initial trial date on 12 July 2007 but eventually did so on 14 June 2010.

However, between 28 May 2008 and 9 March 2009, notwithstanding that the properties were res litigiosa and pleadings had been closed in the matter, the immovable properties were purportedly sold and transferred by the appellant, at the instance of the Danny Musukuma board, to some third parties.

These third parties did not join and were not joined to the vindicatory proceedings.

THE CONTENTIONS A QUO

The proceedings in the court a quo, and in this Court, primarily revolved upon the Deed of Sale. Specious references were made to the Agreement of Sale in a bid to establish whether or not the appellant purchased the respondent “as a going concern” and whether or not it paid the aggregate purchase price for the immovable properties.

The respondent submitted, that, as it was the common cause owner of the immovable properties at the time of litis contestatio (the close of pleadings) by the appellant's rejoinder of 7 June 2007, and, as it had established that the property was possessed by the appellant or its privies against its will, it was entitled to recover possession from whomsoever was in possession.

Per contra, the appellant contended, that, its sole shareholders and directors became the sole shareholders and directors of the respondent on 3 January 2005, and, thereafter, ran the respondent's affairs.

It relied on the purported minutes of even date and the CR14 signed by Luis Vieira on 20 September 2005 and lodged by the appellant's secretaries (Samerstone Services) with the Registrar of Companies on 24 January 2006.

It further contended, that, the common cause fact that the immovable properties were either occupied by the respondent's “current directors” or had been sold by the respondent at the instance of the new directors, negated the vindicatory action instituted at the instance of the former directors, long after they had vacated office.

It also took the alternative contention, that, in the absence of a resolution by the Vieiras, as directors of the respondent, the institution of the proceedings was unauthorized, and, therefore, an irredeemable nullity.

The appellant, additionally, contended that the 30 days notice was defective in that it did not state “the exact sum due and owing” as envisaged by section 8(1) and (2) of the Contractual Penalties Act [Chapter 8:04].

In reply, the respondent contended that the purported minutes were forged, the signature of Luis Viera on the CR14 was procured by Danny Musukuma by deceit and its lodgment with the Registrar of Companies a nullity.

Its contention was premised on the appellant's failure to fulfill the conditions precedent necessary for the transfer of its equity and directorship embodied in the Deed of Sale and amplified in the letter of 30 November 2004.

It also argued, that, the appellant's failure to establish the validity of the CR14 further proved that the Vieiras never lost their directorship and shareholding to the Musukuma brothers. Consequently, the acts undertaken at the instance of the Vieiras were valid while those that were instigated by the Musukumas were null and void and of no force or effect.

In respect of the alternative contention, the respondent argued, on the authority of Smith v Kwanonqubela Town Council 1999 (4) SA 947…, and Uitenhage Municipality v Uys 1974 (3) SA 800 (E)…, that, the defect had been cured by, and at, its Extraordinary General Meeting held on 17 February 2009.

The respondent further disputed the construction rendered by the appellant to section 8(1) of the Contractual Penalties Act.

THE FINDINGS OF THE COURT A QUO

At the close of the respondent's case, in a separate judgment handed down on 2 May 2011, the court a quo dismissed the application to absolve the appellant from the instance.

In the appealed judgment, the court a quo held that the appellant had paid the Zimbabwe dollar component under the first agreement in full.

Regarding the Deed of Sale, it adjudged the sole witness called by the appellant, Danny Musukuma, to be an un-impressive and evasive witness, and generally accepted the evidence of the respondent's sole witness, Jose Vieira.

It further held, that, the appellant had not paid the full purchase price in the currency apportionments and manner specified in Annexure A.

It, consequently, found that the Vieiras could not have relinquished either their directorships or shareholding to the appellant's sole directors and shareholders.

This finding was buttressed by the concession elicited from Danny Musukuma, in cross examination, that the purported minutes of 3 January 2005, which he produced in evidence, were fake.

It was common ground, that;

(i) Firstly, no such meeting was ever convened;

(ii) Secondly, Danny Musukuma never attended the said meeting; and

(iii) Lastly, Jose Vieira did not, and could not have been in attendance as his passport showed that he was not in Zimbabwe between 1 December 2004 and 1 November 2009.

The court a quo further held, that, the transfer taken at the instance of the Musukuma brothers constituted a fraudulent act, which could not bar the appellant from recovering its property from whosoever was in possession thereof.

This was because the Musukumas knew that the appellant had not discharged the contingent obligation upon it to pay the full purchase price, which would have triggered the transfer of the equity of and power to run the respondent to them.

They also knew that they were alienating res litigiosa properties.

On the authority of Chatrooghoon v Desai & Ors 1951 (4) SA 122 (N)…, and Rautenbach v Venner 1928 T.P.D. 26, it upheld the respondent's contention, that, section 8(2) of the Contractual Penalties Act [Chapter 8:04] did not require a plaintiff to state “the exact sum due and owing by the defendant” in the notice of cancellation.

It reasoned, that, the exact amount of the local currency payable could only be known on the date the appellant elected to make payment.

It upheld the cancellation of the Deed of Sale on two grounds:

(i) The first was that the notice was in compliance with the provisions of section 8(1) of the Contractual Penalties Act.

(ii) The second was that the appellant had demonstrably failed to prove that the amount tendered on 6 December 2006 would have adequately discharged the outstanding debt.

The court a quo also upheld the respondent's contention, that, Annexure A required the appellant to pay the United States dollar denominated purchase price in the specified ratio of 45 per cent hard currency to 55 per cent local currency.

It found that while the United States dollar monthly component was static, the local currency component, being dependent on the prevailing auction rate on the date of payment, could not, and was not intended by the parties to be constant.

The likelihood of the fluctuation of the local currency component of the purchase price over the payment period, in its view, militated against a constant instalment figure.

Consequently, the constant local currency figures embodied in Annexure A were only given as an example of what the appellant would pay if the future auction rates remained static.

The court a quo, therefore, found that the appellant had not paid the hard currency component of the purchase price, either in that currency or in the equivalent local currency amount.

The court a quo found the requirements for actio rei vindicatio, which are set out in Chetty v Naidoo 1974 (3) SA 13 (A)…, were met.

It further found, that, the appellant had failed to establish its right to retain possession of the properties which had passed to it on 29 November 2004.

It, accordingly, granted the vindicatory relief and ordered the eviction of the appellant and its privies from the three immovable properties in question.

GROUNDS OF APPEAL

On 28 March 2012, the appellant filed 18 grounds of appeal. On 20 October 2014, it gave notice of its intention to substitute them with 6 grounds.

At the commencement of the appeal hearing, the Court, by consent of the parties, duly substituted the former grounds of appeal with the following:

“1. The court a quo erred in law in relating to a matter which had not been properly authorized and under circumstances in which those who could properly authorize it had not brought the proceedings.

2. The court a quo a fortiori erred in concluding that the plaintiff (respondent) was properly before it, particularly given that those who litigated under its name had executed an extant public document in which they surrendered their interests in respondent.

3. The court a quo further erred in effectively invalidating the respondent's CR14 at no one's motion and instance.

4. The court a quo erred in coming to the conclusion that the agreement between the parties had been properly cancelled under circumstances where no valid notice of cancellation had been given and there had been no jural act of cancellation exercised ex nunc.

5. The court a quo further erred and misdirected itself in coming to the conclusion that cause existed for the termination of the agreement between the parties (on the false prompting of Mr. Vieira) and in then making an order which was not sensitive to the equities of the matter.

6. The court a quo erred in coming to the conclusion that “respondent” had met the requirements for an actio rei vindicatio and in even taking the view that respondent could sue for the vindication of immovables, the subject matter of the litigation.

PRAYER

The appellant prays for the setting aside of the order of the court a quo and the substitution therein with an order that the claim for eviction, as per the summons, be and is hereby dismissed with costs.”

THE ISSUES

The six grounds of appeal raise the following issues:

1. Whether the respondent was properly before the court a quo.

2. Whether:

(i) The notice to cancel was precise;

(ii) The Deed of Sale was cancelled.

3. Whether the requirements of the actio rei vindicatio were established.

THE ARGUMENTS BEFORE THIS COURT

THE APPELLANT'S CONTENTIONS

Counsel for the appellant submitted, that, in the absence of a resolution issued prior to the institution of action, on 9 January 2007, the respondent could not properly litigate a quo.

He anchored his submission on the CR14, the public document wherein the Musukumas, and not the Vieiras, were depicted as the only subsisting directors of the appellant.

He argued, that, in the absence of a resolution by the subsisting directors to institute the vindicatory action, the proceedings under appeal were improperly taken by the former directors.

He also took the alternative point, that, even if the Vieiras were the subsisting directors of the respondent, the proceedings would have been afflicted by the absence of a resolution authorizing the institution of the proceedings.

He further contended, that, the improperly instituted proceedings could not be cured by the purported ratification done at the instance of the Vieiras on 17 February 2009.

He took the further alternative point, that, even if the appointment of the Musukumas was found to be defective, the acts undertaken by them, as directors, were not only deemed to be valid by the provisions of sections 12 and 13 of the Companies Act [Chapter 24:03] but were also saved by the provisions of section 170 of the Companies Act.

Counsel for the appellant also relied on the “immediate delivery” of the movables and goodwill on 30 November 2009 and subsequent delivery of the motor vehicles on 14 December 2004 and the telephones and postal box on 25 January 2005 to argue that the respondent had been disposed of as “a going concern” a term he interchangeably substituted with the disposal of the Vieiras shareholding in the respondent.

He argued, that, on the authority of CHRISTIE's Business Law in Zimbabwe (Juta 1985…,.) and Laing v South African Milling Co. Ltd 1921 AD 387…, the delivery of the movables transformed the Agreement of Sale into a credit sale, the effect of which was twofold:

(i) Firstly, ownership of the movables passed to the appellant on the date of delivery and not on the envisaged date of full payment.

(ii) Secondly, such a credit sale evinced a clear intention to not only dispose of movable assets and immovable properties separately, but of the respondent itself as a going concern.

He sought to buttress his contention by reference to the immediate delivery of occupation of the immovable properties on the date of signature, the passing of profit in both agreements, and the purported appointment of Danny Musukuma as the principal officer of the respondent.

Counsel for the appellant further contended, that, the purported cancellation of the Deed of Sale was a nullity.

He argued, firstly, that the phrase “of the breach concerned” in section 8(2)(b) and (c) of the Contractual Penalties Act denoted the specification of the exact amount owing and not the mere generalization of the breach.

Secondly, that the payment tendered, on 6 December 2006, which was rejected and returned on 12 December 2006, adequately remedied the purported breach.

That, in any event, the court a quo overlooked the important fact that payment of the purchase price in foreign currency, without the requisite exchange control authority, was, at the time, illegal, hence the discharge of the payment obligation in local currency.

He therefore submitted, that, the respondent erroneously cancelled the Deed of Sale while the court a quo also erroneously confirmed the cancellation.

Finally, counsel for the appellant submitted, that, the respondent having failed to meet the requirements for vindicatory relief, the court a quo erred in ordering the eviction of the appellant.

He therefore prayed for the success of the appeal, vacation of the order, and its substitution by a dismissal order.

THE RESPONDENT'S CONTENTIONS

Per contra, counsel for the respondent made the following contentions:

The action instituted by the respondent, at the instance of the Vieiras, on 9 January 2007, without the requisite resolution of the Vieiras as the lawfully appointed directors of the respondent, was ratified by them on 17 February 2009.

In terms of the pronouncement articulated by NICHOLAS AJA in Moosa & Cassim NNO v Community Development Board 1990 (3) SA 175 (A)…, such ratification validated the proceedings, retrospectively, to 9 January 2007.

The appellant failed to discharge the onus on it to show that it had paid the full purchase price in the manner and method stipulated in Annexure A.

The respondent had shown, by credible and uncontroverted evidence, that, the CR14 lodged with the Registrar of Companies, on 24 January 2006, was a fake document that was predicated on false minutes of a non-existing meeting.

The averments in Luis Vieira's affidavit of 6 August 2009, that Danny Musukuma had taken advantage of his advanced age (85years old) and lack of fluency in the English language and company procedures, and tricked him into appending his signature on the fake minutes and fake CR14 were not controverted by Danny Musukuma in his oral testimony a quo.

The CR14, upon which the appellant nailed its defence, was a proven nullity, which could not confer any rights of directorship on the Musukuma brothers.

Clause 12 of the Agreement of Sale, and the letter of 30 November 2004, precluded the appellant's appointees from exercising the rights of shareholders and directors prior to the full payment of the purchase price in respect of the two agreements.

He also argued, that, the two agreements did not transform the sale of the movable assets and immovable properties into the sale of the respondent as a going concern.

A sale of assets, which precludes the passing of ownership and transfer of equity in the seller prior to the payment of the purchase price in full and the assumption of the seller's debts and human resources, could not be regarded as the sale of a going concern.

He also argued, on the authority of Macape (Pty) Ltd v Executrix Est Forrester 1991 (1) ZLR 315 (S)…, that, the prescribed payments in foreign currency for the immovable properties did not contravene the provisions of the Exchange Control Regulations 1996.

That, the specific text of clause 4 of the Deed of Sale denominating a portion of the purchase price in foreign currency rendered the agreement valid.

On the construction of section 8(2) of the Contractual Penalties Act, he maintained that the notice, as worded, was in full compliance with the phrase “the breach concerned.” The respondent was not required to quantify the breach.

The appellant's conduct and response, of 6 December 2006, exhibited an appreciation of the ascertainable nature of the debt.

The appellant breached the Deed of Sale by failing to pay the instalments delineated in both currencies and the concomitant municipal and utility bills in both alternative currencies, and failed to remedy the breach in the 30 days prescribed in clause 13 of the agreement and section 8 of the Contractual Penalties Act.

Regarding the granting of the actio rei vindicatio, he submitted that the order could not be defeated by the disposal of the property after litis contestatio, as, at that stage, the property would have become res litigiosa.

He strongly argued for the dismissal of the appeal with costs on the higher scale.

RESOLUTION OF THE ISSUES

I proceed to resolve the issues seriatim.

WHETHER THE RESPONDENT WAS PROPERLY BEFORE THE COURT A QUO

In our law, it is trite that an artificial person, and especially a registered company, is a legal person distinct from its members, which can only litigate through an authorized natural person.

The authority of such a person is generally conferred by a properly promulgated resolution issued by the artificial entity in accordance with its constitutive instruments comprising Articles of Association, a Charter or Constitution or even a legislative enactment.

Where the institution of the proceedings is impugned, sufficient evidence must be availed, which satisfies the court that the litigation in the name of the artificial entity is being brought by an authorized natural person at its behest: see Mall (Cape) (Pty) Ltd v Merino Ko-Operasie BPK 1957 (2) SA 347 (C)….,.; Cuthbert Elkana Dube v PSMAS SC73-19…,.; Cape Pacific Ltd v Lubner Controlling Investments (Pty) Ltd and Ors 1995 (4) SA 790…,.; Madzivire & Ors v Zvariwadzwa & Ors 2005 (2) ZLR 148; and TFS Management Co. (Pvt) Ltd v Graspeak Investments (Pvt) Ltd & Ors 2005 (1) ZLR 333…,.

In terms of Article 13(f) of the respondent's Articles of Association, a minimum quorate of two (2) directors is empowered to institute proceedings in its name.

It is axiomatic that a company, such as the respondent, acts through its directors.

It must therefore follow, that, the answer to the first issue must perforce depend, in part, on who, between the Vieiras and the Musukumas, were the true directors of the respondent.

Counsel for the appellant impugned the finding made a quo in favour of the Vieiras.

He argued, that, the finding was contrary to the CR14, a public document lodged with the Registrar of Companies, which showed that the Vieiras resigned their directorships and were simultaneously replaced by the Musukumas on 3 January 2005. He therefore contended, that, the Vieiras could not direct the respondent to institute proceedings, some two (2) years after the termination of their tenure as directors.

It was, however, common cause that the CR14 in question was based on nothing.

It was derived from the purported minutes of 3 January 2005. The minutes were a record of a meeting purportedly held on that date. The minutes were produced by the appellant's sole witness, Danny Musukuma, and signed at his instance, by Luis Vieira.

At the time, Luis Vieira was aged 85. He was proficient in Portuguese but not in English. He claimed that he was deceived into signing the purported minutes and the CR14 by Danny Musukuma.

His claims were not disputed by Danny Musukuma.

The probabilities also favoured his claims.

It was common ground, that, at the time Luis Vieira purportedly resigned, the full purchase price had not been paid.

It is highly unlikely that he would have resigned his directorship and handover his company to the Musukuma brothers before the appellant had paid the purchase price in full.

It was also common cause, that, Jose Vieira was out of the country when the meeting was purportedly held.

A proper assessment of the totality of the evidence adduced a quo clearly established that no meeting of the respondent was ever held on 3 January 2005, the purported minutes of that day were false, and the CR14, which was founded on those minutes, was not only fake but also invalid.

An invalid CR14 is a nullity. It could not, therefore, have conferred any rights of directorship on the Musukuma brothers.

It would also not require a court order to set it aside: see Ngani v Mbanje & Anor 1987 (2) ZLR 111 (S)…,.; and Jensen v Acavalos 1993 (1) ZLR 216…,.; and Guwa & Anor v Willoughby's Investments (Pvt) Ltd SC31-09…,.; and TBIC Investments (Pvt) Ltd & Anor v Mangenje & Others 2018 (1) ZLR 137 (S)…,.

View Appeal
HH703-21 : PROFESSOR CHARLES NHERERA vs JAYESH SHAH
Ruled By: MATHONSI J

The facts of this matter are aptly captured in two earlier judgments.

The first is a judgment of this court in Nherera v Shah 2015 (2) ZLR 455 (H) which granted absolution from the instance at the conclusion of the plaintiff's case. The second is a judgment of the Supreme Court, on appeal, in Nherera v Shah SC51-19 which allowed the plaintiff's appeal against the grant of absolution from the instance and remitted the matter to this court for continuation of the trial proceedings.

For completeness, and to put the matter in proper perspective, I will summarise those facts as follows:

On 30 November 2011, the plaintiff sued out a summons against the defendant claiming damages of US$100,000 for malicious prosecution and US$300,000 for malicious arrest and detention.

The plaintiff alleged, that, on 21 March 2006, and on several diverse other occasions, the defendant had reported that he had solicited for a bribe in order to facilitate the purchase of certain buses from Gift Investments (Pvt) Ltd, a company in which the defendant had an interest, by Zimbabwe United Passengers Company (“ZUPCO”), another company in which the plaintiff was the chairperson of the Board of Directors.

The plaintiff alleged, that, when making the report, the defendant knew that it was false and malicious. All he intended to do was to coerce the plaintiff and Zimbabwe United Passengers Company (ZUPCO) to purchase his company's buses without following proper tender procedures.

The plaintiff averred, that, as a result of the defendant's report, he was arrested, prosecuted for contravening a provision of the Prevention of Corruption Act [Chapter 9:16] (now repealed), and sentenced to three (3) years imprisonment of which one year imprisonment was suspended on condition of future good behaviour.

It was further alleged by the plaintiff, that, on 19 November 2009, this court quashed the conviction on appeal and set aside the sentence.

By procuring his arrest, prosecution, and imprisonment, so the plaintiff alleged, the defendant maliciously caused him injury to his reputation, dignity, and liberty thereby entitling him to damages aforesaid.

In contesting the claim, the defendant denied instigating the plaintiff's arrest, prosecution, and detention.

He however admitted placing information that he held before a police officer in good faith, in the honest and bona fide belief that the plaintiff had solicited for a bribe. The act of conveying that information, so the defendant pleaded, was neither wrongful nor as result of a subjective malicious intent to injure the plaintiff.

According to the defendant, the decision to arrest was that of the police, upon a consideration of all the relevant information, and the formulation of a reasonable suspicion that the plaintiff had committed a criminal offence. The decision to prosecute was that of the Attorney General of Zimbabwe (now the Prosecutor General), in the exercise of a Constitutional mandate, and upon consideration of all relevant facts.

The defendant further averred, that, the decision to imprison the plaintiff was that of the trial magistrate, upon consideration of all the evidence placed before her and in the discharge of her lawful mandate.

He insisted that the information conveyed to the police was true and was conveyed in good faith in the discharge of a subject's obligation to adhere to the laws of Zimbabwe.

The defendant admitted in his plea, at paragraph 5.1 thereof, that he “reported to the police” that the plaintiff had solicited for a bribe as alleged. He asserted that he did no more than place a report before the police who were not obligated to arrest the plaintiff upon the making of such report. The police could only do so upon formulating a reasonable suspicion that an offence had been committed.

Regarding the quashing of the conviction, the defendant denied that it meant that the allegations he made were false or that the plaintiff had not solicited for a bribe, or that the report he made was malicious.

The issues for trial, as determined by the parties at a pre-trial conference held before a judge and set out in the joint pre-trial conference minute they signed, are as follows:

1. Whether the report to the police was the cause of the plaintiff's arrest, prosecution, and detention.

2. Whether the said report was made in good faith or whether it was false and malicious.

3. Whether the prosecution failed.

4. What damages, if any, were suffered by the plaintiff as a result.

Only two witnesses testified during the trial. The plaintiff stood against the defendant, with each of them testifying against the other.

THE PLAINTIFF'S EVIDENCE

The evidence of the plaintiff, in support of the claim, is set out in detail in both the judgment of this court given upon an application for absolution from the instance at the close of the plaintiff's case, and in the Supreme Court judgment.

No useful purpose would be served by repeating that evidence in this judgment.

It should suffice to state, that, the plaintiff denied having solicited for a bribe from the defendant at all. He denied holding a meeting with the defendant at Kensington Shopping Centre at which he was allegedly recorded by the defendant demanding a bribe.

It was the plaintiff's testimony that Zimbabwe United Passengers Company (ZUPCO) could not purchase buses without going through tender procedures and without the approval of the Tender Board.

The defendant made false accusations against him, and went to the extent of fabricating a recording which he played to various individuals and institutions in order to cause his arrest and imprisonment.

The defendant did so after he, as the chairperson of the Zimbabwe United Passengers Company (ZUPCO) Board and other Board members, had steadfastly refused to bend to the defendant's demands to purchase his buses, which had already been painted with ZUPCO colours, without following procedure.

In the plaintiff's view, the defendant was intent on causing his arrest and imprisonment in order to get him out of the way. Without him, the defendant would clandestinely sell the buses to Zimbabwe United Passengers Company (ZUPCO) - as he later did after the plaintiff's imprisonment.

The plaintiff insisted that it was the defendant's report which instigated his arrest.

The fact that the defendant was also picked up by the police at some point was of no moment, especially as he subsequently solicited for, and obtained immunity from prosecution, and proceeded to testify against the plaintiff during his criminal trial at the Magistrates Court.

According to the plaintiff, it is not true that the defendant had been a reluctant witness at the criminal trial.

In fact, according to the plaintiff, his criminal trial commenced on 2 May 2006 with the defendant promptly taking the witness's stand to testify against him. He did so before the then Attorney General gave him immunity, and before he deposed to his lengthy witness's statement on 27 July 2006.

The plaintiff stated that he was convicted by the Magistrates Court and sentenced to three (3) years imprisonment of which one (1) year imprisonment was suspended on condition of future good behaviour. Following sentence, he was incarcerated at Harare Central Prison for a period of 1 year. The conditions at that prison were appalling. The diet was bad, the cells were bad, and the ablution facilities dehumanising.

After his stint at Harare Central Prison, the plaintiff said he was transferred to Connemara Prison in Midlands. The conditions at that prison were much better as he could even visit his family once a week.

He said he remained there until he was released in February 2008, having been given a remission of part of his effective two (2) year prison term. All in all, he served an effective sixteen (16) months imprisonment.

The plaintiff stated, that, he is a Professor of Education and currently the Pro-Vice Chancellor of Women University in Africa. He submitted his curriculum vitae detailing his professional activities. He was the founding Vice Chancellor of Chinhoyi University of Technology reporting, inter alia, to the President of Zimbabwe in his capacity as Chancellor of the University.

He stated that in that position he collaborated with other Universities, both local and abroad. He had a string of international relations with other universities, like the University of Colombo and the University of Shexiang in China, where he did collaborative research.

He had benefits that accrued to him, like a ministerial car (mercedes benz), entertainment, housing, security, fuel, and cell phone allowances as well as educational benefits for his children and wife. He enjoyed annual holiday within the region with his wife.

The plaintiff added that he is married with two children, a daughter and a son. At the time of his incarceration, his daughter had just started first year tuition at the University of Cape Town while the son was doing Form 3 at Gateway High School in Harare where his wife was a teacher.

When he was imprisoned, apart from the embarrassing treatment he was subjected to, including being stripped of the suit he had been wearing and being given tattered prison garb, he lost his job and its attendant benefits. His professional development “moved backwards”. He lost his research networks and consultancies including his chairmanship of Zimbabwe United Passengers Company (ZUPCO).

The plaintiff did not particularise his claim for damages beyond what I have stated above. He did not set out how he arrived at the figure of US$100,000 for malicious prosecution and US$300,000 for malicious arrest and detention as delictual damages.

THE DEFENDANT'S EVIDENCE

In his oral evidence in court, the defendant stuck to his defence as set out in his plea, with quite some difficulties, especially during cross examination. He adopted his plea as part of his evidence on oath.

He also adopted his testimony in the criminal proceedings as part of his evidence on oath before this court.

Apart from that, the defendant also adopted his witness affidavit deposed to on 27 July 2006 as part of his evidence before this court.

The essence of the defendant's evidence is that he did not make a report to the police about the plaintiff having solicited for a bribe.

This is at variance with the contents of his plea.

According to the defendant, he had approached the then Minister of Local Government, Dr Chombo, the then Governor of the Reserve Bank, Dr Gono, the then Minister of State Security, Goche, and some Central Intelligence Officers and confided in them that the plaintiff had demanded from him a US$5,000 bribe per bus for Zimbabwe United Passengers Company (ZUPCO) to flight a tender for the purchase of buses.

The defendant stated, that, he had attended a meeting on 28 January 2005 at Minister Chombo's office at which the plaintiff had been in attendance. After the meeting, the plaintiff had directed him to follow him to Kensington Shopping Centre. Upon meeting the plaintiff at that Vali's Coffee Shop, the plaintiff repeated a solitation he had made previously, namely, that the defendant should pay US$5,000 per bus to him for the supply of 80 buses to Zimbabwe United Passengers Company (ZUPCO). This was a condition the plaintiff imposed for ZUPCO to flight a tender for the supply of the buses.

The defendant stated, that, he recorded the conversation on his cell phone. The recording was later given to the police, but, not before he had played it to Minister Chombo and other officials, including the Zimbabwe United Passengers Company (ZUPCO) Board at a meeting convened by Minister Chombo on 21 March 2005.

Although he had pleaded that he had placed information to the police and indeed reported to the police that the plaintiff had solicited for a bribe from him, the defendant stated, in his viva voce evidence, that he did not do so.

Instead, riding on the evidence he had given at the criminal trial of the plaintiff, the defendant stated, that, around 10 April 2005, the police had picked him up and taken him to the police station for purposes of charging him with corruption. It was during interrogation by the police, who beat him up and tortured him in the process, that he disclosed to them that the plaintiff had solicited for a bribe in 2003 as a result of which he paid him and Bright Matonga a total of $20,000 to renew a lease Gift Investments (Pvt) Ltd had.

After his release, he left the country and was not prepared to return because of the manner of the police had treated him.

It was only a year later that Gula Ndebele, then the Attorney General, started calling him entreating him to return to the country to assist with the case involving, inter alia, the plaintiff.

For him to do so, he demanded assurance that he would not be subjected to further abuse at the hands of the police. He later demanded full immunity from prosecution and would not settle for anything less than the immunity granted by the Attorney-General himself.

The one given by Superintendent Magwenzi, in a letter dated 24 April 2006, was, according to the defendant, not enough.

I mentioned, in passing, though, that, when he testified at the criminal trial, on 2 May 2006, the only immunity letter given to him was that of Superintendent Magwenzi. The one given by Attorney General Gula Ndebele was only written on 20 July 2006, just a few days before the defendant submitted his lengthy witness statement. He said that statement was for the purpose of prosecuting others, including Minister Chombo and Bright Matonga.

The defendant insisted, that, in 2005, the plaintiff again solicited for a bribe from him.

This time, as already stated, he wanted to be paid $5,000 for each bus Zimbabwe United Passengers Company (ZUPCO) was to purchase from the defendant's company.

Although he did not pay the bribe, this is the information he disclosed to the authorities leading to the plaintiff's arrest.

According to the defendant, the case involving the bribe of US$20,000 for the renewal of the Gift Investments (Pvt) Ltd lease with Zimbabwe United Passengers Company (ZUPCO) has come before this court. It was the finding of TSANGA J, who presided over that case, which finding was upheld by the Supreme Court on appeal, that the defendant had been involved in a corrupt relationship with the plaintiff and Bright Matonga.

He has accepted that finding.

As to whether the prosecution of the plaintiff failed, the defendant stated that it did not.

According to him, the involvement of Johannes Tomana, who had been a Board member and legal advisor of Zimbabwe United Passengers Company (ZUPCO) at the material time, the legal practitioner of the plaintiff when he instituted a defamation claim against the defendant in 2006, and an active defence witness at the plaintiff's criminal trial, meant that the concession made by the State was tainted.

The State, which in 2009, when it conceded the plaintiff's appeal against conviction and sentence was led by Johannes Tomana, deliberately compromised the case in favour of the plaintiff.

Issues for Determination

I have already outlined the issues that were placed before this court for determination at the trial.

The determination of those issues has now been affected by the judgment of the Supreme Court which has made quite pointed findings which are binding on this court by virtue of the doctrine of stare decisis.

This court is therefore restricted by those findings to the extent that most of the issues have now been determined. What remains to be determined now is very narrow indeed.

I now proceed to examine the issues on turn.

Whether the defendant's report to the police was the cause of the plaintiff's arrest, prosecution, and detention

It is common cause that the plaintiff was arrested, prosecuted, and imprisoned following accusations of soliciting for a bribe levelled against him by the defendant. In response to the plaintiff's claim, the defendant filed a plea in which he made unequivocal admissions.

(i) Firstly, the defendant admitted placing information before a police officer that the plaintiff had solicited for a bribe. His defence was that his act of conveying that information to the police was not wrongful and not malicious.

(ii) Secondly, the defendant specifically pleaded another admission in paragraph 5.1 of his plea, namely, that he reported to the police that the plaintiff had solicited for a bribe. His defence, following the admission, was that he had done no more than place a report before the police but the police were under no obligation to act upon the report. The police could only act once a reasonable suspicion that an offence had been committed was formulated.

None of the admissions made by the defendant were withdrawn, neither was there any attempt to amend the plea. More importantly, the defendant did not explain, in his evidence or in his closing address, why what was clearly a confessionary pleading could be contradicted by viva voce evidence given by the same pleader.

The impression created by the defendant is that an admission made in pleadings could be cast away by the presentation of evidence contradicting it.

The law relating to admissions must be taken as settled in this jurisdiction.

A party to civil proceedings may not, without the leave of the court, withdraw an admission made, nor may it lead evidence to contradict any admission the party has made. By the same token, a party cannot be allowed to attempt to disprove admissions it has made.

This is by virtue of section 36 of the Civil Evidence Act [Chapter 8:01] which also makes it unnecessary for any party to civil proceedings to disprove any fact admitted on the record of proceedings. Subsection (4) of section 36 of the Civil Evidence Act also makes it clear that it shall not be competent for any party to civil proceedings to disprove any fact admitted by him on the record of proceedings.

The remarks made by this court in Wamambo v Municipality of Chegutu 2012 (1) ZLR 452 (H)…, are apposite in this regard:

“It is therefore mysterious that the defendant led evidence which had the effect of withdrawing a confessionary pleading without attempting to amend such pleading, and, ultimately, without any leave of the court. No explanation whatsoever was given for doing so. Even if I was inclined to do so, I am unable to exercise the discretion reposed upon me to allow the defendant to withdraw the admission, because, as stated earlier, I have not been requested to do so.

The admissions made by the defendant amount to a confessionary pleading, and, as such, they are taken for granted, making it unnecessary for the plaintiff to prove them: Adler v Elliot 1988 (2) ZKLR 283 (S) at 288C; Copper Trading Co. (Pvt) Ltd v City of Bulawayo 1997 (1) ZLR 134 (S) at 143H-144B and 144G.”

Accordingly, the fact that the defendant placed information before a police officer, and that he made a report that the plaintiff solicited a bribe from him, is taken for granted. The plaintiff did not have to prove that fact. Equally, it was not competent for the defendant to attempt to disprove what was in fact admitted by him on the record of proceedings.

In any event, whatever my views may have been on the admission made would have counted for nothing because the Supreme Court has already made conclusive findings on it. In its judgment, Nherera v Shah SC51-19, the Appeal Court stated:

“[49] In this plea to the appellant's claim before the High Court, whilst denying instigating the plaintiff's arrest, detention, and prosecution, the respondent accepted that he placed information before a police officer in the bona fide belief that the plaintiff had solicited for a bribe. In para 5.1 of his plea, he admitted reporting to the police.

[50] In his evidence before the court a quo, the appellant stated that the respondent had made allegations to all and sundry that he, the appellant, had solicited for a bride. He stated that the respondent made a report not only to senior Government officials but also the Attorney-General's Office and to the police. He further stated, that, the respondent had gone to the extent of manufacturing a tape recording which he alleged contained evidence of the solicitation. He also testified that the respondent had even approached the Reserve Bank Governor and had been given the sum of US$5,000 in order to entrap the appellant.

[51] Contrary to the findings of the court a quo, the respondent himself accepts that he made a report to the police. That plea, weighed against the evidence given by the appellant, prima facie established that the appellant (sic) not only reported the matter to the authorities, but that he involved himself further in attempts to incriminate the appellant.

[52] Going by the cross-examination of the appellant by counsel for the respondent, it is apparent that the respondent's stance is that since he did not personally approach the police to make a report, he could not have procured or instigated the arrest of the appellant.

In my view, that cannot be correct. If a person approached the National Prosecuting Authority alleging corruption on the part of an accused person, and the person so accused is consequently arrested by the police, the former can hardly be heard to state that the arrest was not a consequence of the report he made to the Authority. The arrest would be regarded as being the result of the report made to the Authority.

The fact that the report was made indirectly would, in my view, not alter the fact that the arrest was set in motion by such person. On the basis of the evidence given before it, the court a quo should, in my view, have concluded that the respondent prima facie set in motion the events that led to the arrest of the appellant.”…,.

The foregoing conclusion by the Appeal Court settles the issue completely.

The defendant was therefore required to demonstrate, in his evidence in rebuttal, that the prima facie case found by the Appeal Court could be, and was, rebuttable by his own account.

Yet, the defendant expended a lot of energy and spent all his time repeating the same story, that, even though he reported to high ranking officials that the plaintiff solicited for a bribe, it was not his business that the plaintiff was subsequently arrested.

In his view, because he did not personally approach the police, this exonerated him from wrongdoing.

The defendant is wrong in that regard.

The Supreme Court has said so and the prima facie evidence of the plaintiff mutated to proof of the plaintiff's case on a balance of probabilities.

I conclude, that, the defendant's report, whether to high ranking Government officials or to the police, was the cause of the plaintiff's arrest, his prosecution on a charge of corruption, and his incarceration.

Whether the said report was made in good faith or whether it was false and malicious

Subsumed in this issue for trial is the pertinent question of whether there was reasonable and probable cause for filing a report that the plaintiff had solicited for a bribe.

In a case where no other witnesses, except the antagonists testified, the whole case centres on the plaintiff's word against that of the defendant.

Sight must, however, not be lost of the fact that the onus of proof very well rests on the plaintiff to prove his case, but, the entire case emanates from the defendant's accusations against the plaintiff.

It is the defendant who pointed an accusing finger against the plaintiff that he was a bribe-monger.

It is that accusation that anchored the State case in the criminal prosecution. So, the defendant was also required to establish the solicitation for the prosecution to succeed.

Other than the defendant's word that there was solicitation, which the plaintiff vehemently denied, the only other piece of evidence relied upon as proving it was the audio recording.

The recording was not produced in this court.

Reliance was only placed on its transcript produced at the criminal trial. The transcript presented everyone, including the defendant himself, with some difficulties.

To begin with, its source was shrouded in mystery.

The defendant initially claimed that he had recorded the conversation on his laptop. That is what he told the police. At the criminal trial, he swung round to say he had recorded it using a dictaphone device in his Siemen cellphone.

He was taken to task in cross-examination before this court on the source of that evidence.

I can only say that his prevarication did not paint him in good light.

That is not all.

The recording itself was said to be inaudible by the majority of the witnesses at the criminal trial. Yet, the defendant vouched for the correctness of the transcript of the criminal proceedings when he had the opportunity to present his case before this court.

The Supreme Court was unequivocal in its rejection of the audio recording.

With that rejection also went any semblance of evidence that the plaintiff had solicited for a bribe. The court stated:

“[61] The second issue is whether, prima facie, he had reasonable and probable cause. This is of course, a question of fact. The appellant denied ever soliciting for a bribe and stated that this whole episode was fabricated in order to get him out of the way.

This was a case of one person's word against that of the other.

It was common cause that ZUPCO had not, at that stage, ordered any buses from Gift Investments and that no tender procedures had been followed.

The tape recording did not incriminate the appellant. It was largely inaudible. Other than the respondent's mere say so, there is no other evidence which suggests that the appellant may indeed have attempted to solicit for a bribe.

It was the appellant's testimony, that, the respondent was desperate to offload, onto ZUPCO, a number of buses which were already painted in ZUPCO colours, even though no Tender Board approval had been sought or granted; prima facie, therefore, on the basis of the evidence given by the appellant a quo, there was no reasonable or probable cause for the arrest and prosecution of the appellant. This was not an issue that could be determined in favour of the respondent at the stage of absolution and required that the respondent, as defendant, be put on his defence.”

The defendant, indeed, had an opportunity to rebut the plaintiff's case when he was put to his defence.

His evidence in this regard was entirely unhelpful to his cause. He did not improve on his inaudible audio recording.

Apart from that, he was an extremely poor witness whose testimony was thrown into disarray even before he was cross-examined.

In the end, I was left in no doubt that the defendant possessed no evidence, whatsoever, other than his own word, that the plaintiff solicited for a bribe.

This being a case to be determined on a preponderance of probabilities, I cannot help but conclude that the probabilities weigh heavily against the defendant.

What business person imports into the country buses already painted in a potential buyer's colours before the latter has even flighted a tender for those buses?

Apart from that, so desperate was he to have the tender flighted (as if it was guaranteed he would win it), that he did not hesitate pressurising the Minister to fire the plaintiff for not authorising the tender.

This is a person who was already leasing space right at the potential buyer's premises to warehouse the same buses.

It occurs to me, that, the probabilities are that, at that stage, the defendant would have done anything to offload the buses - including fabricating the story of the bribe.

I come to the conclusion, that, the defendant has done nothing in his testimony to disgorge the prima facie case found to having been established by the plaintiff on appeal. Therefore, that case has become proof of the absence of reasonable and probable cause for the arrest of the plaintiff.

In our law, the existence of malice is inferred from the absence of reasonable and probable cause for prosecuting the plaintiff.

I have no hesitation in finding, that, the defendant did not lodge a report against the plaintiff in good faith. Quite to the contrary, the report was not only false it was also malicious. He set about to abuse the legal process maliciously and without reasonable and probable cause for bringing criminal proceedings against the plaintiff.

Whether the prosecution failed

In my view, following the pronouncement of the Supreme Court, on appeal against the grant of absolution from the instance at the close of the plaintiff's case, this is no longer a live issue for determination at this trial.

I say so because there was nothing really that the defendant could do in his evidence to respond to the Appeal Court's finding that the plaintiff's prosecution failed.

To that extent, no amount of evidence led by the defendant before this court could upset the definitive finding, that, the common cause facts established the final requirement for a successful claim for malicious arrest, prosecution, and detention that the prosecution instigated by the defendant failed.

The Supreme Court found that the order granted by two judges of this court, on 19 November 2009, allowing the plaintiff's appeal against both conviction and sentence “fully and finally” quashed the conviction and sentence of the plaintiff.

The Appeal Court concluded:

“[63] Finally, that the prosecution failed is not in doubt. The Attorney-General's Office gave detailed reasons why it did not support the conviction, consequent upon which both conviction and sentence were set aside.”

The pronouncement by the Supreme Court, that the prosecution failed, is binding on this court, it being final and definitive in respect of that issue. The issue has therefore been resolved.

When the defendant went on and on in his evidence about how the involvement of Johannes Tomana had polluted the resolution of the appeal, he was engaged in an exercise in futility, the issue having ceased to be alive one....,.

This court has also found, that, there was no reasonable and probable cause for the arrest of the plaintiff.

Accordingly, the report made by the defendant could not have been made in good faith and it was false. As a result, the existence of malice, on the defendant's part, is inferred from the absence of reasonable and probable cause by operation of law.

The failure of the prosecution triggered by the defendant's report, has been finally and definitively determined on appeal.

What all this means is that the requirements grounding delictional damages have been satisfied.

The liability of the defendant is proved.

As a corollary to that, the plaintiff is entitled to damages for the delict committed against him.

What remains to be determined is the quantum of those damages.

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Zimbabwe

Documentary Evidence re: Questioned Documents

SC30-19 : BRITISH AMERICAN TOBBACO ZIMBABWE vs JONATHAN CHIBAYA
Ruled By: GARWE JA, GOWORA JA and MAVANGIRA JA

SSC07-11 : THE ATTORNEY-GENERAL vs ROY BENNETT
Ruled By: CHIDYAUSIKU CJ

SC31-15 : WECTOR ENTERPRISES (PVT) LTD vs LUXOR (PVT) LTD
Ruled By: ZIYAMBI JA, HLATSHWAYO JA and MAVANGIRA AJA

SC40-17 : FADZAI JOHN vs DELTA BEVERAGES LIMITED
Ruled By: GUVAVA JA

SC110-22 : CONSTRUCTION RESOURCES AFRICA (PVT) LTD vs CENTRAL AFRICAN BUILDING AND CONSTRUCTION COMPANY (PVT) LTD t/a CENTRAL AFRICAN BUILDING
Ruled By: BHUNU JA, MATHONSI JA and KUDYA AJA

View Appeal
HH703-21 : PROFESSOR CHARLES NHERERA vs JAYESH SHAH
Ruled By: MATHONSI J

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Law Portal Zimbabwe

Documentary Evidence re: Questioned Documents

SC30-19 : BRITISH AMERICAN TOBBACO ZIMBABWE vs JONATHAN CHIBAYA Ruled By: GARWE JA, GOWORA JA and MAVANGIRA JA

SSC07-11 : THE ATTORNEY-GENERAL vs ROY BENNETT Ruled By: CHIDYAUSIKU CJ

SC31-15 : WECTOR ENTERPRISES (PVT) LTD vs LUXOR (PVT) LTD Ruled By: ZIYAMBI JA, HLATSHWAYO JA and MAVANGIRA AJA

SC40-17 : FADZAI JOHN vs DELTA BEVERAGES LIMITED Ruled By: GUVAVA JA

SC110-22 : CONSTRUCTION RESOURCES AFRICA (PVT) LTD vs CENTRAL AFRICAN BUILDING AND CONSTRUCTION COMPANY (PVT) LTD t/a CENTRAL AFRICAN BUILDING Ruled By: BHUNU JA, MATHONSI JA and KUDYA AJA

View Appeal HH703-21 : PROFESSOR CHARLES NHERERA vs JAYESH SHAH Ruled By: MATHONSI J

Categories

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Law Portal
Zimbabwe

SC30-19 : BRITISH AMERICAN TOBBACO ZIMBABWE vs JONATHAN CHIBAYA
Ruled By: GARWE JA, GOWORA JA and MAVANGIRA JA

SSC07-11 : THE ATTORNEY-GENERAL vs ROY BENNETT
Ruled By: CHIDYAUSIKU CJ

SC31-15 : WECTOR ENTERPRISES (PVT) LTD vs LUXOR (PVT) LTD
Ruled By: ZIYAMBI JA, HLATSHWAYO JA and MAVANGIRA AJA

SC40-17 : FADZAI JOHN vs DELTA BEVERAGES LIMITED
Ruled By: GUVAVA JA

SC110-22 : CONSTRUCTION RESOURCES AFRICA (PVT) LTD vs CENTRAL AFRICAN BUILDING AND CONSTRUCTION COMPANY (PVT) LTD t/a CENTRAL AFRICAN BUILDING
Ruled By: BHUNU JA, MATHONSI JA and KUDYA AJA

View Appeal
HH703-21 : PROFESSOR CHARLES NHERERA vs JAYESH SHAH
Ruled By: MATHONSI J