In his heads of argument, the President states, that, whilst he does not entirely agree with the reasoning of the court a quo, he agrees with the order made.

He submits, as he did before the court a quo, that, the Presidential prerogative is a power that attaches to the President by virtue of his office, and that, under the common law, he has always enjoyed prerogative powers which entitle him to promulgate temporary legislation in urgent situations. Those prerogative powers were never abolished but are now codified under the Presidential Powers (Temporary Measures) Act.

The reference to “other law” in section 110(1) of the Constitution includes, by necessity, the provisions of the common law in force in this country.

Lastly, he maintains, that, as the Presidential Powers (Temporary Measures) (Amendment of Electoral Act) Regulations, S.I.117/2017 have to be laid before Parliament for approval, this shows that Parliament, essentially, still retains its primary lawmaking power.

In the course of considering the possible disposition of this matter, a question of law arose, namely, whether the appellant could properly appeal to this Court against a determination of constitutional validity by the court a quo.

Being an important issue that could be dispositive of this matter, and in light of the fact that neither party had hitherto addressed the court on it, this Court asked both parties to file supplementary submissions within a given time frame.

This the parties proceeded to do.

On the 23rd of March 2015, Mr Sebastian Bakare; Mr Terrance Moody; Ms Natsai Nyamuwanza; Mr Cephas Sagwete; Ms Poshier Magada; Ms Maraidza Elizabeth Mutambara joined together to form United Mutare Residents and Ratepayers Trust.

Counsel for the applicant appears on the copy of the Resolution dated 3rd July 2018 which was prepared just a day before the current application was filed at Court was added to the list of Trustees.

Clause 6 of the Deed of Trust specifies the applicant's Core Business thus:

“The provision of a comprehensive platform for residents participation in local governance, service delivery, local democracy, and policy formulation, accountability and transparency.”

Article 2, captioned “LEGAL STATUS” provides inter alia:

“The Trust shall be a body corporate and as such…,.”

It is not clear as whether it can sue or be sued in its name, however, it can acquire, own, and is
limited to its property in as far as liability is concerned.

On the 4th of July 2018, the applicant filed an application seeking the following relief:

“It is declared that 1st Respondent has failed to comply with its Constitutional mandate to 'ensure good governance by being effective, transparent, accountable and institutionally coherent' in exercising its right to govern the local affairs of the Community of Mutare by not carrying out an external audit of books, balance sheet and accounts for the financial years ending 30 June 2014, 30 June 2015, 30 June 2016 and 30 June 2017.

2. And it is ordered that:

(a) 1st Respondent appoints a reputable firm of registered public auditors within 30 days of the granting of this order to carry out an audit of its books, balance sheets and accounts referred in section 286 of the Urban Councils Act [Chapter 29:15] for the financial years ending 30th June 2014-2017.

(b) Further that, 1st Respondent produce to the auditors for the purpose of audit, accounts, balance sheets, all relevant books, papers, writings and minutes books in its possession for the financial years ending 30 June 2014-2017 within 30 days of the granting of this order.

(c) Further, that, 1st Respondent prepare and present before this court a comprehensive report within the first 90 days of the granting of this order, detailing how it has complied with this order and at 180 days mark, an audit report for the financial years ending 30th June 2014-2017 as provided under section 306(3) of the Urban Councils Act [Chapter 29:15] failure which 1st Respondent shall be in contempt of court.

3. 1st Respondent will pay costs of suit on a legal practitioner-client scale.”

From 10 to 19 December 2015, the second respondent embarked on an institutional special investigative audit report at the first respondent's institution following complaints that the first respondent's, the City Council, employees were being owed salary arrears of eighteen months.

Obviously, the report by the Ministry was adverse and revealed anomalies committed by Mutare City Council.

The applicant accessed the investigative report and offered to assist the City Council.

The City Council refused and the applicant wrote threatening letters to the first respondent and indicated to Municipality of Mutare that it was going to advise residents to boycott payment of utility bills until the City Council met their demands.

The City Council responded encouraging dialogue, and, further letters were exchanged and the letter of 16 April 2018, written by the applicant's legal practitioners, proposed a tripartite meeting between the applicants, the City Council officials, and the residents and ratepayers on the other side.

No meeting was held.

The City Council supplied some information in June 2018, availing to the applicant schedules of Zinara funds, education levy, and outstanding debts due to the Council per ward.

The applicant was not amused by the conduct of the City Council, and, on the 4th of July 2018, this application was filed at the court.

The first respondent, the City Council, is opposing the application.

The first respondent raised three points in limine;

(i) The first one being that of locus standi in judicio;

(ii) The second one is that the relief sought is vague, imprecise, and unusual; and

(iii) The third and final one is that the applicant did not exhaust domestic remedies.

On the other hand, after receiving the first respondent's opposing papers, the applicant, in its replying affidavit, also introduced the fourth point in limine before this court, challenging the authority of Mr Joshua Maligwa in preparing the opposing affidavit without a resolution of the City Council.

On that note, the applicant proposed to the court, that, there is no valid opposition and the application has to be granted.

On the date of hearing of the application, I granted the first respondent an opportunity to address the court, first, focusing on all the points in limine - including that raised by the applicant.

After the first respondent had addressed the court, the applicant was given the opportunity to reply and address the court on the question of Mr Maligwa's lack of authority.

This is an income tax appeal filed in the High Court in terms of section 65 of the Income Tax Act [Chapter 23:06].

The two questions for determination are:

(i) Whether the appeal is valid; and

(ii) Whether the commission paid to two foreign agents for facilitating the sale of tobacco constituted fees for services of a technical, managerial, administrative or consultative nature as contemplated by section 30 of the of the Income Tax Act and the Seventeenth Schedule to the Income Tax Act.

The appellant, an exporter and seller of processed tobacco from Zimbabwe, is a locally registered company. It entered into two successive sales and marketing agreements with two foreign companies on 1 April 2004 (annexure 1 of respondent's case and p1-2 of appellant's bundle) and 1 April 2011 (annexure 2 of respondent's case and p3-4 of appellant's bundle) respectively, for the sale of export tobacco in foreign markets.

The sales were on commission of 7.5% of the aggregate net export sales and FCA Zimbabwe sales value of each export, respectively.

In 2007, the respondent audited the affairs of the appellant. It decided that the commission paid for the period to 2005 constituted fees for services of a technical and administrative nature performed by the overseas agent on behalf of the appellant for which the appellant was liable for withholding non-resident tax in terms of the Seventeenth Schedule to the Income Tax Act.

On 5 April 2007, the respondent submitted schedules showing the appellant's withholding tax liability on the tobacco sales commissions payable to the overseas agent.

The tax adviser of the appellant objected to the schedules and imposition of withholding tax on the sales commissions.

On 10 August 2007, the respondent disallowed the objection.

A notice of appeal was filed on 24 August 2007.

The appellant's case was not filed within 60 days of the service of the notice of appeal or at all. In accordance with the provisions of section 65(3) of the Income Tax Act, the appeal lapsed.

The appellant continued to remit non-residents withholding tax to the respondent until the advent of the multi-currency era.

On 24 October 2013, officials of the respondent conducted a routine audit visit at the premises of the appellant during which the Finance Director of the appellant indicated that further remittals had stopped in consequence of the unresolved 2007 appeal.

In a further meeting of 5 December 2013, the appellant requested and was provided with a schedule of the non-residents tax on fees payable from January 2009 to October 2013.

The schedules consisted of 11 columns showing the period covered, the amount of commission paid, the withholding tax rate, the witholding tax due, the penalty charged at 100%, the period covered in respect of interest computation, the period of delay in paying, the interest rate, and the amount of tax due.

The principal amount of the non-residents tax on fees due was in the sum of US$4,252,647=57. An equivalent amount was imposed as penalty and a further US$795,988=62 was imposed as interest.

The penalties were later reduced by half leaving the revised total liability of US$5,974,959=97.

The appellant responded to the schedule by way of the objection letter dated 10 December 2013, which was served on the respondent on the same day.

It disputed that the commissions constituted the fees contemplated in section 30 and the Seventeenth Schedule of the Income Tax Act. It undertook to pay the outstanding principal amount in four instalments between 13 December and 20 January 2014. In consequence of the undertaking, the respondent further waived the reduced penalty and interest by e-mail of 19 December 2013.

The appellant, however, paid the principal amount by 20 December 2013.

A meeting was held between the appellant's tax advisers and the respondent on 13 December 2013. The parties appeared to have agreed, in that meeting, that, the objection had been improperly made.

However, the appellant filed a notice of appeal on 25 March 2014 and served it on the respondent on the following day. The appeal was based on the deemed decision arising from the failure to respond to the letter of objection within three months as contemplated by section 62(4) of the Income Tax Act. The parties filed their respective cases on 28 May 2014 and 13 August 2014.

The respondent took the point, that, as it did not issue any assessment on the appellant on 5 December 2013 or any other date, the objection of 10 December 2013, and the subsequent notice of appeal of 25 March 2014, was invalid and of no force or effect.

The appellant contended, inter alia, that the appeal was validated by paragraph (y) of the Eleventh Schedule to the Income Tax Act.

Both counsel correctly submitted, that, the 2007 appeal was abandoned by the appellant.

The effect was that the appellant accepted liability for the non-residents tax on fees, which it failed to withhold and remit to the respondent. In addition, it also accepted that the commissions paid during the period prior to August 2007 constituted fees for services of a technical, administrative, managerial or consultative nature.

It was common cause that the 2007 matter was not pending and could not preclude the appellant from objecting, as it did, to liability for failing to remit non-residents tax on fees for the period from January 2009 to October 2013.

The suggestion, in the respondent's pleadings and minutes of meetings, that the present matter could not be objected to on the basis of the 2007 appeal was clearly devoid of any merit.

The Objection of 10 December 2013 (p12 of Rule 11 documents)

The basis for the objection was set out in paragraph 2 of the letter of 10 December 2013. It reads:

"We wish to object to the imposition of withholding tax on sales commissions. The 17th Schedule of the Income Tax Act defines fees as any amount from a source within Zimbabwe payable in respect of any services of a technical, managerial, administrative or consultative nature. The sales commissions paid to agents were for facilitating the sale of tobacco as a result of the sales and marketing services provided by the agent. It is clear that the commission was based on making a sale. Where there was no resultant sale, no commission was paid to the agent. It is therefore our contention that the sales commissions were not in any way technical, managerial, administrative or consultative in nature."

A reading of the whole letter clearly demonstrates that the appellant did not object to an assessment.

The averments in paragraph 3 and 4 of the appellant's case, to the extent that they declare that the appellant "duly objected to the said assessment" were not based on the letter of objection. In my view, the appellant merely objected to the decision of the Commissioner that the commissions constituted the type of fees contemplated by section 30 and the Seventeenth Schedule of the Income Tax Act.

In terms of section 65(4) of the Income Tax Act, both the High Court and Special Court are obliged to confine their decision to the grounds stated in the notice of objection unless leave, based on good cause shown, or agreement of the parties, has been granted to the appellant to rely on other grounds.

In the present matter, no such leave was sought nor granted.

It is therefore unnecessary for me to decide the issues that were raised and ventilated concerning assessments, notices of assessment, and estoppel.

At the hearing of this matter, I granted the application for registration of an arbitral award with costs on an ordinary scale.

I gave brief reasons for the judgment, being of the view, that, the law that governs the question of whether the noting of an appeal against an arbitral award suspends the operation of the award is settled and that there was no evidence that the respondent could successfully rely on to challenge the registration applied for.

I have now been asked to provide detailed reasons for judgment. These are they.

The applicant sought the registration of a Labour arbitral award handed down in compulsory arbitration proceedings on 23 November 2012, by Ms E. Maganyani.

In terms of section 98(14) and (15) of the Labour Act, any party to whom an arbitral award relates may submit it for registration to a court of corresponding monetary jurisdiction.

The applicant was awarded various sums of money totalling US$19,125 plus interest thereon at the prescribed sum, calculated from the date of the arbitral award to the date of payment in full.

In his founding affidavit, he averred, that, as at the date of his application for registration of the arbitral award, 7 December 2012, the respondent had failed, refused or neglected to pay this sum. Registration of the arbitral award was sought for purposes of enforcement. The application was served on the respondent on 10 December 2012.

The respondent filed a notice of opposition on 19 December 2012. The grounds of opposition were;

(i) Firstly, that the applicant was never its employee, but a mere contractor;

(ii) Secondly, that there was need for oral evidence from both parties;

(iii) Thirdly, that no quantification was done by both parties.

(iv) The last reason for opposing the registration of the arbitral award was that the respondent had since appealed to the Labour Court against the decision of the arbitrator, on points of law.

The details of the appeal were attached to the notice of opposition.

The applicant filed his answering affidavit on 16 April 2013. He attached copies of both parties written submissions which had been submitted to the arbitrator, to counter the allegation by the respondent that it had been denied an opportunity to be heard by the arbitrator. He denied having been a contract worker, and reiterated that he fitted the statutory definition of employee, as set out in the Labour Act.

He averred, that, the respondent had deliberately chosen not to attend the date of the hearing by the arbitrator, despite being notified of it. He reiterated that the arbitrator was asked to determine the matter on the basis of the papers filed of record when the respondent failed to respond to the notice of set down of the hearing.

He alleged, that, the respondent's appeal to the Labour Court was fatally defective, being filed out of time, and alleged that the opposition to the registration of the arbitral award was an attempt by the respondent to frustrate him and delay in paying him his dues.

At the hearing of the matter, both parties abided by their heads of argument and had nothing of value to add.

The applicant submitted, that, the issue that the court ought to determine was whether the arbitral award, made on 23 November 2012, can be registered as an order of this court for purposes of enforcement.

I agree with that submission, and note, that, the issue is purely one of law.

The applicant sought to raise a point in limine, via its heads of argument, that, the deponent to the opposing affidavit was not duly authorized to represent the respondent.

He relied on the following cases as authorities for that proposition: United Associates (Pvt) Ltd v Est Ncube & Ors HC29/03; Madzivire Enterprises (Pvt) Ltd v Schweggman Family Trust HB02-07.

He submitted, that, the court proceed on the basis that there was no opposition before it.

The respondent, in opposing the point in limine, submitted it was a duly registered company and that the deponent to the opposing affidavit was its Managing Director who was duly authorized to depose to the affidavit.

The respondent submitted, that, while it is correct that an application stands or falls on its founding affidavit, there are exceptions to that rule when it comes to the capacity of a company representative that was involved in the main matter and whom both parties know to be a duly authorized company representative from previous dealings.

The respondent relied on the case of Air Zimbabwe Corporation & Ors v Zimra HH96-03 and on Mall Cape (Pty) Ltd v Merino Ko-operasie Bpk 1957 (2) SA 347 where the court stated that:

“…, the best evidence that the proceedings have been properly authorized would be provided by an affidavit made by an official of the company annexing a copy of the resolution; but, I do not consider that form of proof as necessary in every case. Each case must be considered on its own merits and the court must decide whether enough has been placed before it to warrant the conclusion that it is the applicant which is litigating and not some unauthorized person on its behalf.”

A perusal of the papers filed of record will show, that, the applicant's objection is not that the deponent to respondent's opposing affidavit is not known or is a stranger to the respondent. The objection appears to be, that, no averment was made in the opposing affidavit that the deponent was duly authorized to represent the respondent in the proceedings.

In my view, such an objection should be raised only in those instances where the deponent to the affidavit on behalf of a company is a total stranger.

In this case, I am satisfied, that, the parties all knew each other from previous dealings, and from proceedings in the main matter, and that, there can be no question of the deponent to the opposing papers being a stranger to the respondent company, or to the applicant.

The point in limine is dismissed on that basis.

Although counsels put this as an issue for determination, none of them addressed it in their heads of argument.

I would not know if the omission was an oversight or deliberate.

Be that as it may, I realised that it was an issue that I could determine without recalling counsels to address me on.

The present matter relates to interpleader proceedings instituted by the Claimant in terms of Order 30 of the High Court 1971 (The Rules) whereby the court is requested to determine competing rights of the parties.

The background to the matter is that the Judgment Creditor loaned and advanced some funds to the Judgment Debtor who later failed to repay necessitating litigation against him under case No. HC532/13. The Judgment Debtor defended the proceedings, and, at pre-trial conference stage, the parties entered into a Deed of Settlement. The Judgment Debtor then breached the terms of the Deed of Settlement by not honoring its obligations resulting in the Judgment Creditor obtaining a judgment against him.

Consequently, a writ of execution was issued.

The applicant went on to attach property at the Judgment Debtors house, on 25 November 2015, leading to these proceedings.

The claimant, who is married to the Judgment Debtor, out of community of property, is claiming that the property attached is not the Judgment's Debtor's property because she bought it and has receipts as proof.

The claimant avers, that, the Judgment Debtor is her husband and that they are married out of community of property and the place where the property was attached is their matrimonial house.

She said the applicant must have attached the property under a mistaken view that same belongs to the Judgment Debtor. She attached receipts to prove ownership to her inter pleader affidavit. She further averred, that, the receipts are authentic and therefore cannot be challenged.

The law regarding inter pleader proceedings is fairly settled.

It was restated in the case of Deputy Sheriff, Marondera v Traverse Investments (Private) Limited and Anor HH11-03 as follows:

“The case cited by Mr. Biti in his heads of argument is apposite, namely: Bruce N.O. Josiah Parkes & Sons Ltd 1972 (1) SA 68 (R) at 69G-H:

'In my view, in proceedings of this nature, the claimant must set out facts and allegations which constitute proof of ownership so that the question whether or not to refer the matter to trial would arise only in the event of there being a conflict of fact which cannot be decided without hearing oral evidence.

This court therefore finds that the claimant has proved its ownership to the hides in question on a balance of probabilities.'”

Also, the case of The Sheriff of The High Court v Kwekwe Consolidated Gold Mines (Pvt) Ltd & Anor HH39-15, MANGOTA J put it this way:

“It is a well-established rule of civil procedure that he who avers must prove, on a balance of probabilities, what he is averring.”

In casu, the claimant has managed to prove, on a balance of probabilities, that she is the owner of the attached property by producing authentic documentary evidence in the form of receipts.

The only issue raised by the Judgment Creditor is that the claimant and the Judgment Debtor are married in community of property.

He contended, that, according to Family Law in Zimbabwe by PROFESSOR W. NCUBE…, marriages in community of property means that the property of the spouse, wherever situated, present and future, movable and immovable, including debts, is merged into a joint estate in which the spouses hold equal and indivisible shares regardless of their contributions.

So, if one spouse is reckless with their financial affairs, it will affect the other spouse, as they are each responsible for one another's debts.

Marriage in community of property means, that, all money, possessions, belongings to either of the spouses at the time of the marriage, or acquired by them during the time of the marriage, cease to be private. The property belongs to both of them. The joint estate is shared equally, including debts.

The whole confusion arose as a result of the fact, that, when the claimant filed her inter-pleader affidavit she, mistakenly, stated that her marriage was in community of property.

The correct facts were put before the court at the hearing by a legal practitioner who assumed agent on her behalf.

Therefore, the above principles relied on by the Judgment Creditor do not apply in the case of the Claimant since her marriage to the Judgment Debtor is not in community of property.

In Mtuda v Ndudzo 2000 (1) ZLR 710 (H)…, GARWE J…, held that where an issue is not raised in the pleadings but has been identified for determination at a pre-trial conference, and fully canvased at the trial, even if an amendment is not moved, a court is entitled to adjudicate on it.

This effectively means, that, a defective pleading will be cured by evidence.

To similar effect is HERBSTEIN and Van WINSEN's Civil Practice of the High Courts of South Africa, 5th ed by CILLIERS et al…, where it is stated, that:

“Even where no amendments have been applied for, both trial and appeal courts have adjudicated on issues not raised on the pleadings but fully canvassed at the trial.”

Again Du PLESSIS in The South African Law of Unjustified Enrichment, Juta, 2012 at p3 footnote 10 writes that:

“A plaintiff who initially pleads the incorrect action may be allowed to amend his claim (see Hughes v Levy 1907 TS 276). But, even if such a plaintiff did not amend his claim, the court can still award the action that he should have relied on, as long as its requirements were fully canvassed in evidence and the defendant would not be prejudiced by reliance on the incorrect action in the pleadings….,.

If the pleadings contain some of the customary allegations of a specific enrichment claim, and the defendant was alive to the basis of the claim, the defendant may not maintain a passive stance; he must raise an exception if he considers that the case has not been properly pleaded.”…,.

I note, in passing, that, the underlined words also accorded with Order 21 Rule 137 of the High Court Rules 1971.

This is an appeal against the whole judgment of the High Court handed down on 1 June 2020 granting an interdict in favour of the first and second respondents (Lilian Timveos and Thabitha Kuhumalo).

On 3 April 2020, the second appellant (Douglas Mwonzora), in his capacity as Secretary General of the first appellant (Movement for Democratic Change-Tsvangirai), sent identical letters to the third and fourth respondents (Speaker of the National Assembly and President of the Senate) recalling the first and second respondents from the Parliament of Zimbabwe.

The reason for the recalls was that they had ceased to be members of the first appellant, Movement for Democratic Change-Tsvangirai (MDC-T).

On 5 May 2020, the third and fourth respondents informed their respective houses of the receipt of the second appellant's letter and vacancies created thereby.

The Zimbabwe Electoral Commission (ZEC) was duly informed of the same so that the electoral process could begin in terms of section 39(3) of the Electoral Act [Chapter 2:13] (herein after referred to as the Act).

The first and second respondents were aggrieved by the recalls. They approached the High Court with an urgent chamber application in a bid to stop the appellants from replacing their seats in Parliament.

The provisional order they sought was couched as follows:

“TERMS OF FINAL ORDER SOUGHT

It is ordered that:

1. It is hereby declared that first, second, and third respondents or anyone acting through them or on their behalf have no power or authority to replace second and third applicants (sic) who are members of the MDC–Alliance as members of the Senate and National Assembly respectively by members of the MDC-T, or any of their appointees and that such replacement of applicants is unlawful.

2. Pending a resolution of the applications in Case Nos. HC2308/20, HC2351/20 and HC2352/20 the replacements of applicants as Members of Parliament by the respondents be and is hereby stayed.

3. Respondents to bear the costs, jointly and severally, the one paying the other to be absolved.

Pending confirmation or discharge of the provisional order, it is ordered that:

1. First, second, and third respondents or anyone acting through them or on their behalf be and are hereby interdicted, barred, and stopped from replacing applicants as members of the Senate and National Assembly, respectively, by members of MDC-T or any of their appointees.

2. Sixth respondent be temporarily interdicted from Gazetting the existence of vacancies in applicants Constituencies for purposes of taking steps to have them filled by nominees of first, second, and third respondents.”

In their founding affidavit, the first and second respondents alleged that they did not belong to (MDC-T) but to Movement for Democratic Change Alliance (MDC-A) led by Nelson Chamisa, a party completely different from MDC-T.

According to them, only MDC-A could recall them from Parliament.

They further alleged that they were nominated to be voted into Parliament under MDC-A.

In opposing the application, the second appellant (Douglas Mwonzora) contended, that, the first appellant (MDC-T) was entitled to replace the first and second respondents as they were voted into office under the MDC-T party.

Further, he averred that the relief sought by the first and second respondents had an effect of interfering with the first appellant's right to replace its own members of Parliament.

He further stated, that, MDC-A is a pre-election pact of seven political parties that were constituted in terms of a Composite Political Agreement. The nominated candidates did not individually belong to the MDC-A, but to their respective political parties which formed the Alliance.

Further, he averred that the matter was not urgent.

The third appellant (Dr. Thokozani Khupe) raised the following preliminary points, that:

(i) The certificate of urgency was defective in that it did not state the date on which the need to act arose;

(ii) The Zimbabwe Electoral Commission ought to have been cited as a party and not citing the Chairperson;

(iii) The matter was not urgent as the founding affidavit did not have a cause of action;

(iv) There was material non-disclosure of the judgment under SC56-20 which nullified the appointment of Nelson Chamisa as president;

(v) The interim and final relief sought was the same;

(v) The court could not grant interim relief as the vacancies should be filled within 90 days.

On the merits, the third appellant associated herself with the arguments raised by the second appellant in as much as the argument that MDC-A is not a political party on its own.

She further averred, that, the first and second respondents have an alternative remedy which was to have the main matter resolved expeditiously.

The third and fourth respondents (Speaker of the National Assembly and President of the Senate) also filed their opposition.

In their opposition, they averred that the matter was not urgent as the alleged urgency was self-created.

They further contended, that, the High Court did not have jurisdiction to entertain the matter as the matter was a constitutional one.

They submitted, that, the first and second respondents case was based on the allegation that Parliament failed to fulfil its constitutional obligations by violating section 129(1)(k) of the Constitution. This allegation therefore placed the matter within the exclusive jurisdiction of the Constitutional Court in terms of section 167(2)(d) of the Constitution.

The court a quo dismissed all the points in limine.

It held that the certificate of urgency was not defective as it contained crucial information relating to the fears of the first and second respondents.

It further held that the matter was urgent.

On the question of non-citation of the Zimbabwe Electoral Commission (ZEC) the court a quo held, that, the citation of the Chairperson of ZEC, instead of the Zimbabwe Electoral Commission was proper.

It reasoned, that, the citation of the Zimbabwe Electoral Commission (ZEC) in legal proceedings is governed by section 14 of the Electoral Act which provides that the State Liabilities Act [Chapter 8:14] applies whenever ZEC is to be cited in legal proceedings.

The State Liabilities Act provides that when suing a Ministry, the Minister is to be cited.

The court held, that, equating the Zimbabwe Electoral Commission (ZEC) to a Ministry, the citing of the Chairperson of ZEC is proper.

In this regard, the court a quo also relied on the case of Shumba & Anor v ZEC & Anor 2008 (2) ZLR 65 (S)...,.

On the issue of material non-disclosure, the court a quo held that judgments of the courts are in the public domain.

It further held that the Supreme Court judgment declared what the position in the MDC was and this did not pertain to the expulsion of the first and second respondents from Parliament.

It also found that the substance of the interim relief sought and the final order sought was not the same.

On the merits, the court a quo found that the first and second respondents had established a prima facie right which must be protected. It thus granted the order on the premise, that, the first and second respondents had established a prima facie case for the grant of the provisional order.

The order granted reads as follows:

“Pending the determination, or disposal by this Court, of the proceedings under the reference case nos. HC2351/20 and HC2352/20, the first, second and third respondents, or anyone acting through them, or on their behalf, shall refrain and desist from, and they are hereby interdicted, barred, and restrained from submitting any nomination papers in terms of section 39(4)(b) of the Electoral Act [Chapter 2:13], or submitting or supplying the names of any other person for the purposes of filling up any perceived vacancies in the Parliament of Zimbabwe in respect of the seats held by the first and second applicants in the Senate and National Assembly, respectively, as at 3 April 2020.”

Dissatisfied with the decision of the court a quo, the appellants noted this appeal. The appellants raised ten (10) grounds of appeal.

In motivating the appeal, counsel for the appellants, on reflection, abandoned the first two grounds relating to findings on urgency. He also seemed to have abandoned grounds 4 and 10 as he did not address these grounds.

The grounds that remained pertained to:

(i) The findings that the joinder of the Zimbabwe Electoral Commission (ZEC) was not necessary;
(ii) That, the interim relief was not the same as the final relief;
(iii) That, the court a quo had jurisdiction to grant the interdict as it did not interfere with the process by the Zimbabwe Electoral Commission (ZEC); and
(iv) That, the respondents had established a case for the interdict.

Before counsel could make detailed submissions on the remaining grounds of appeal, the court drew the attention of counsel for the parties to the order granted by the court a quo and whether such was in sync with the relief the first and second respondents had approached the court for.

In addressing this point, counsel for the appellants submitted that though the grounds of appeal had not succinctly captured this anomaly, grounds 8 and 9, on the interim relief being the same as the final relief, were in fact intended to address the fact that the order granted was not proper as it was final in nature when the respondents had only sought a provisional order.

He further submitted, that, the court a quo erred in granting a final order upon a finding that only a prima facie case had been established.

It was his view that this Court may exercise its powers in terms of section 25 of the Supreme Court Act [Chapter 7:13]....,.

Counsel for the first and second respondents conceded, that, the court a quo erred by granting a final order based on a finding that the first and second respondents had only established a prima facie case.

He submitted, that, the only amendment he made to the interim relief sought was the abandonment of paragraph 2 which sought to temporarily interdict the Zimbabwe Electoral Commission (ZEC) from gazetting the existence of vacancies in their respective constituencies. There was thus no other amendment to their prayer warranting the order that was granted.

He confirmed that what the court a quo granted was not what his clients had approached the court for.

Just as with the appellants counsel, he submitted that he only saw that the court had granted such an order upon reading the judgment.

In the circumstances, he was not averse to this Court exercising its powers in terms of section 25 of the Supreme Court Act in resolving the irregularity....,.

Upon a careful consideration of the submissions made we are of the view that this appeal may be disposed of on the basis of the order granted.

On 13 April 2021, the applicants filed a chamber application for condonation and extension of time to appeal in terms of Rule 61 as read with Rule 43 of the Supreme Court Rules 2018.

It is opposed by the first respondent.

They seek the following relief:

1. The application for condonation and non-compliance with Rule 60(2) of the Supreme Court Rules 2018 be and is hereby granted.

2. The application for extension of time within which to file and serve a notice of appeal in terms of the Rules be and is hereby granted.

3. The applicants shall file their notice of appeal within five (5) days after the date this order is granted.

4. Each party shall bear its own costs.

The deponent to the applicants founding affidavit was their legal practitioner of record by reason of his intimate involvement in the matter and the purely procedural nature of the relief sought.

The legal practitioner has acted in that capacity from the time the two challenged the termination of their employment before a labour officer on 20 November 2015, in the confirmation proceedings before the Labour Court on 18 November 2016, and in the three false starts that this matter has had in this Court in SC566/17 (an appeal), SC743/17 (application for striking of the appeal by the first respondent) and SC1089/17 (an application for joinder by the first respondent).

The two applicants were formerly employed by the first respondent as a Procurement Director and General Manager, respectively.

The first respondent (the employer) is a confectionery company incorporated in Zimbabwe, which is no longer trading. It has, however, been succeeded by Innscor Africa Ltd t/a Baker Inn Bakeries.

The second respondent is the labour officer who heard the dispute between the parties and sought confirmation of his ruling in the Labour Court in November 2016.

The first applicant and the employer purportedly concluded a consensual written agreement of termination of employment on 5 June 2014.

The agreement was alleged to have been brokered by Owen Murumbi, the former Finance and Human Resources Director of the employer.

The two parties signed the agreement and Owen Murumbi also appended his signature as a witness to the agreement.

The first applicant regards the termination to be a retrenchment process.

The second applicant was retrenched with the approval of the Retrenchment Board (the Board) on 5 December 2014.

He signed a retrenchment agreement in which, in paragraph 5, he absolved the first respondent from any further claims arising from the retrenchment process.

The two applicants were aggrieved by the entire retrenchment process.

They requested the labour officer to adjudicate a case of unfair dismissal and non-payment of employment benefits. The labour officer dismissed their claim in his draft ruling on 2 September 2016.

He provisionally held, that, the termination in respect of the first applicant was by mutual consent. He found that mutual consent was depicted by, firstly, the signatures of the first applicant and his witness; and, secondly, by the first applicant's unequivocal acceptance and consumption of the terminal package.

Regarding the second applicant, he found that he had been properly retrenched in accordance with the relevant statutory dictates of the Labour Act.

He also found the second applicant's specific disclaimer against the first respondent, in respect of any prospective claims arising from the retrenchment process, and his unequivocal acceptance and utilization of his substantial retrenchment benefits, to be inconsistent with the challenge before him.

He further found that both applicants had, by their acceptance without reservation, and further utilization of the terminal benefits, waived their legal right to challenge their respective termination processes.

Lastly, he declined to assume jurisdiction in respect of the Share Subscription Agreement on two bases:

(i) The first was that the first applicant had failed to establish that the agreement was concluded with his employer.

(ii) The second was that it had a reservation arbitration clause.

Thereafter, the labour officer sought confirmation of his draft ruling at the Labour Court on 16 November 2016.

The Labour Court confirmed the ruling on 19 May 2017.

It specifically found, that, by virtue of their seniority in the first respondent, the applicants must have knowingly waived their rights to challenge their respective terminations by the acceptance without reservation, and by the consumption of their terminal packages.

It also confirmed that the labour officer lacked the jurisdiction to deal with the Share Subscription Agreement as it was a contractual and not a labour issue.

Aggrieved by the confirmation, the applicants appealed to this Court in SC566/17 on 4 August 2017.

The subsequent chamber application instituted by the employer, to strike off the appeal under SC743/17, was dismissed. Resultantly, the employer sought to be joined in the appeal on 18 December 2017, in SC1087/17.

The application for joinder was set down together with the appeal hearing.

At the hearing, on 22 February 2018, this Court mero motu raised the propriety of the confirmation proceedings.

The views of this Court must have prevailed, as an order by consent, in which the employer withdrew the joinder application while the applicants withdrew the appeal ensued.

On 13 April 2021, the applicants filed a chamber application for condonation and extension of time to appeal in terms of Rule 61 as read with Rule 43 of the Supreme Court Rules 2018.

It is opposed by the first respondent.

They seek the following relief:

1. The application for condonation and non-compliance with Rule 60(2) of the Supreme Court Rules 2018 be and is hereby granted.

2. The application for extension of time within which to file and serve a notice of appeal in terms of the Rules be and is hereby granted.

3. The applicants shall file their notice of appeal within five (5) days after the date this order is granted.

4. Each party shall bear its own costs.

The deponent to the applicants founding affidavit was their legal practitioner of record by reason of his intimate involvement in the matter and the purely procedural nature of the relief sought.

The legal practitioner has acted in that capacity from the time the two challenged the termination of their employment before a labour officer on 20 November 2015, in the confirmation proceedings before the Labour Court on 18 November 2016, and in the three false starts that this matter has had in this Court in SC566/17 (an appeal), SC743/17 (application for striking of the appeal by the first respondent) and SC1089/17 (an application for joinder by the first respondent).

The two applicants were formerly employed by the first respondent as a Procurement Director and General Manager, respectively.

The first respondent (the employer) is a confectionery company incorporated in Zimbabwe, which is no longer trading. It has, however, been succeeded by Innscor Africa Ltd t/a Baker Inn Bakeries.

The second respondent is the labour officer who heard the dispute between the parties and sought confirmation of his ruling in the Labour Court in November 2016.

The first applicant and the employer purportedly concluded a consensual written agreement of termination of employment on 5 June 2014.

The agreement was alleged to have been brokered by Owen Murumbi, the former Finance and Human Resources Director of the employer.

The two parties signed the agreement and Owen Murumbi also appended his signature as a witness to the agreement.

The first applicant regards the termination to be a retrenchment process.

The second applicant was retrenched with the approval of the Retrenchment Board (the Board) on 5 December 2014.

He signed a retrenchment agreement in which, in paragraph 5, he absolved the first respondent from any further claims arising from the retrenchment process.

The two applicants were aggrieved by the entire retrenchment process.

They requested the labour officer to adjudicate a case of unfair dismissal and non-payment of employment benefits. The labour officer dismissed their claim in his draft ruling on 2 September 2016.

He provisionally held, that, the termination in respect of the first applicant was by mutual consent. He found that mutual consent was depicted by, firstly, the signatures of the first applicant and his witness; and, secondly, by the first applicant's unequivocal acceptance and consumption of the terminal package.

Regarding the second applicant, he found that he had been properly retrenched in accordance with the relevant statutory dictates of the Labour Act.

He also found the second applicant's specific disclaimer against the first respondent, in respect of any prospective claims arising from the retrenchment process, and his unequivocal acceptance and utilization of his substantial retrenchment benefits, to be inconsistent with the challenge before him.

He further found that both applicants had, by their acceptance without reservation, and further utilization of the terminal benefits, waived their legal right to challenge their respective termination processes.

Lastly, he declined to assume jurisdiction in respect of the Share Subscription Agreement on two bases:

(i) The first was that the first applicant had failed to establish that the agreement was concluded with his employer.

(ii) The second was that it had a reservation arbitration clause.

Thereafter, the labour officer sought confirmation of his draft ruling at the Labour Court on 16 November 2016.

The Labour Court confirmed the ruling on 19 May 2017.

It specifically found, that, by virtue of their seniority in the first respondent, the applicants must have knowingly waived their rights to challenge their respective terminations by the acceptance without reservation, and by the consumption of their terminal packages.

It also confirmed that the labour officer lacked the jurisdiction to deal with the Share Subscription Agreement as it was a contractual and not a labour issue.

Aggrieved by the confirmation, the applicants appealed to this Court in SC566/17 on 4 August 2017.

The subsequent chamber application instituted by the employer, to strike off the appeal under SC743/17, was dismissed. Resultantly, the employer sought to be joined in the appeal on 18 December 2017, in SC1087/17.

The application for joinder was set down together with the appeal hearing.

At the hearing, on 22 February 2018, this Court mero motu raised the propriety of the confirmation proceedings.

The views of this Court must have prevailed, as an order by consent, in which the employer withdrew the joinder application while the applicants withdrew the appeal ensued.

A further attempt to file another notice of appeal at the Labour Court was declined by the Registrar of the Labour Court on the ground that such a notice was, in terms of section 92F of the Labour Act [Chapter 28:01] (the Act), due at the Supreme Court.

Thereafter, the applicants concerted effort to the Registrars of the Labour Court and Supreme Court, in March 2018, for directions on the appropriate procedure to assail the draft ruling went unanswered.

On 25 September 2018, some seven months after the consensual withdrawals, this Court passed judgment in Drum City (Private) Limited v Brenda Garudzo SC57-18.

In that case, the labour officer entered a draft ruling in favour of the employee and against the employer. The labour officer then sought confirmation of the draft ruling before the Labour Court, in terms of section 93(1) as read with section 93(5a) and (5b) of the Labour Act.

She cited the losing employer as the only respondent, purportedly in terms of section 93(5a) of the Labour Act, which required “the employer or any other person against whom the ruling is made” to be the respondent in the confirmation proceedings.

This Court held, that, the legislature could not have intended to exclude a party with a direct and substantial interest in the confirmation proceedings, such as the employee in whose favour the draft ruling pertained, from participating in such proceedings as a co-respondent.

It accordingly allowed the appeal, set aside the confirmation proceedings, and remitted the matter to the Labour Court for the joinder of the employee and a re-hearing of the confirmation.

However, at paragraphs [12] and [13] this Court, en passant, remarked that:

“[12]…, only if the labour officer rules against the employer or any person will he or she be required to take the steps outlined in ss(5a) and (5b). In other words, the provisions do not confer on the Labour Court the jurisdiction to confirm a draft ruling made against an employee (such employee would, it seems, have to pursue other avenues to appeal against the draft ruling).

That this is the case is left in no doubt by the wording of section 93(5)(c)(ii) which specifically provides for a ruling like the one in casu in circumstances where the labour officer finds that the dispute of right in question 'must be resolved against any employer or other person in a specific manner…,.'

[13] Without a clear pronouncement to that effect, there can, in my view, be no doubt that reference to 'any person' in this provision, is not to be read as including the employee in the same dispute. I am satisfied that the import of the provision is to exclude the confirmation and registration of a draft ruling by the labour officer which is made in favour of an employer and against an aggrieved employee. It follows that the Labour Court has no jurisdiction to entertain such a matter, and should, on that basis, properly decline to hear it.”

These remarks were jettisoned by MALABA CJ in the Constitutional Court in Isoquant Investments (Pvt) Ltd t/a ZIMOCO v Memory Darikwa CC06-20…,. He pertinently observed that:

“One cannot interpret the Drum City (Pvt) Ltd case supra as authority for the proposition that it would only be cases where a draft ruling has been made against the employer that confirmation proceedings would ensue. The remarks were made as obiter dictum. The ratio decidendi of that case is that an employee must be joined in confirmation proceedings.”

The remarks in [12] and [13] were clearly obiter dictum because they did not relate to the issue that was before the court, which was whether or not the Labour Court could properly hear and determine an application for confirmation in which the employee was not cited.

The remarks answered the question, which was not before the Supreme Court, whether confirmation proceedings could be lodged in respect of a draft ruling that was made against an employee.

Before the Constitutional Court was a contention that the citation of the employer or other person against whom the draft ruling related, to the exclusion of the employee, infringed the employer's right to equal protection and benefit of the law enshrined in section 56(1) of the Constitution.

The Constitutional Court, inter alia, relied on the ratio decidendi of Drum City (Private) Limited v Brenda Garudzo SC57-18, and held that despite the “statutory ambiguity or vagueness” in the words “employer or other person” in section 93(5a) and (5)(c) of the Labour Act, the employee was a necessary party to the proceedings. Further, that, the architecture of the entire provisions of section 93 of the Labour Act required that a draft ruling be subjected to confirmation proceedings irrespective of whether it was in favour of the employer and against the employee, or in favour of the employee and against the employer.

It was on the basis of the reasoning of the Constitutional Court that the applicants lodged the present application on 13 April 2021.

It was opposed by the first respondent on 20 April 2021.

The applicants filed an answering affidavit on 22 April 2021. Thereafter, the applicants filed their heads on 28 April 2021 while the first respondent did so on 12 May 2021.

In her written heads of argument, and at the hearing, counsel for the first respondent raised the issue of prescription as a preliminary point.

The first respondent did not plead prescription in its opposing affidavit but raised it for the first time in its written heads of argument.

Counsel for the first respondent contended, that, prescription, being a question of law could be raised at any time in the proceedings.

She argued, that, the applicants right of appeal, and, by extension, the right to sue out the present application constituted a debt as defined in the Prescription Act [Chapter 8:11], which was susceptible to the vagaries of prescription in terms of section 15(d) of the Prescription Act....,.

The relevant provisions of the Prescription Act that fall to be considered in this application are section 2, 13(1), 15(a)(ii) and (d) and 20(2).

This is an appeal against the judgment of the Labour Court (the court a quo) handed down on 21 October 2016 which allowed an appeal by the respondent against an arbitral award issued by an arbitrator on 13 October 2015.

The court a quo set aside the arbitral award and remitted the matter to an arbitrator of the parties choice, or one selected by the Registrar, for a hearing to determine the appropriate penalty to be imposed on the appellant.

The case itself has a chequered history, being a labour dispute that has gone backwards and forwards as the parties bickered over either the procedure adopted or the choice of arbiter.

The appellant was employed by the respondent as its Managing Director. He was suspended from employment in April 2010 on allegations of gross incompetence and gross inefficiency under section 4(f) and (h) of the National Employment Code of Conduct, S.I.15 of 2006 (the National Code of Conduct).

Five counts of misconduct were preferred against the appellant:

(i) Firstly, it was alleged that he had submitted a report to the Board of Directors of a net loss of US$56,930 for the year ending on 31 December 2009 when the real net loss, as uncovered by external auditors, was US$657,365.

(ii) Secondly, it was alleged that the appellant failed to fully account for R700,000 which had been transferred from Mavambo Coaches.

(iii) Thirdly, it was alleged that the appellant paid himself a US$2,000 long service award in January 2010 without Management and Board approval.

(iv) Fourthly, he was accused of authorising staff loans amounting to US$23,549 in December 2009 and January 2010, when the company was in financial dire straits.

(v) Fifthly, the appellant was accused of paying management incentives amounting to US$21,800 in December 2009, against a loss which militated against payment of incentives.

An internal disciplinary hearing was conducted which found the appellant guilty and recommended his dismissal from employment.

The appellant challenged the propriety of those proceedings through a review application brought before the court a quo.

That contested review application yielded a consent order granted by the court a quo on 28 October 2010 in the following terms:

“IT IS HEREBY ORDERED THAT:

1. The disciplinary hearing held against the applicant be and is hereby set aside to allow a de novo hearing and the suspension letter dated 13 April 2010 remains in force.

2. The arbitration proceedings before Arbitrator M. Dangwa be and is (sic) hereby withdrawn.

3. A fresh disciplinary hearing shall be held before Mr J. T. Mawire as the hearing officer and the parties shall share the costs of the hearing officer equally.

4. The issue of whether the applicant should be paid between the period of April to October 2010 is reserved for ruling by the court after receiving submissions from the parties legal practitioners before close of business on 29 October 2010.”

I note in passing that J. T. Mawire was appointed as a “hearing officer” by consent of the parties.

The earlier disciplinary proceedings were abandoned in favour of a hearing de novo before a different hearing officer, J. T. Mawire, who was appointed “to hear and determine the matter in terms of the Code.”

Indeed, hearing officer Mawire heard the matter, took evidence from both parties, and received written closing submissions.

In his determination dated 22 February 2012, Mawire found the appellant not guilty of misconduct. He ordered that he be reinstated without loss of salary and benefits from the date of suspension.

The respondent was aggrieved.

Initially, it made frantic efforts to appeal internally against the determination by the hearing officer. Again, the parties bickered for some time on the choice of an Appeals Authority.

Problems started when, at the instance of the appellant as claimant “an independent arbitrator” Munyaradzi Dangarembizi issued an arbitral award on 13 November 2012 to wit:

“AWARD

Wherefore, after carefully analysing the facts and the law, I make the following award -

That the claimant's prayer is upheld and I hereby order that the merits of the matter be conciliated upon by the Labour Officer.”

Following that award, it is common cause that a Labour Officer unsuccessfully held conciliation proceedings as a result of which the matter was referred to compulsory arbitration before an arbitrator.

When the respondent took its grievance to the arbitrator it stated categorically, at paragraph 2.8 of the Claimant's statement of claim and submissions:

“2.8. Hence, the matter in casu is an appeal by the employer, the claimant herein against the determination of Mr Mawire, the Disciplinary Authority dated 22nd February 2012.”

It is also beyond disputation that the arbitrator also dealt with the matter as an appeal.

He said so at paragraph 5 of the arbitral award dated 8 October 2015, to wit:

“Therefore, the instant matter is an appeal by the claimant against the determination of Mr Mawire, the disciplinary authority, dated 22 February 2012.”

The arbitrator upheld the determination of the hearing officer.

He ordered the reinstatement of the appellant to his position with no loss of salary and benefits from the date of dismissal. In the event that reinstatement was no longer possible, the appellant was to be paid damages in lieu of reinstatement.

The respondent was again unhappy with the arbitral award. It lodged an appeal to the court a quo on three grounds:

(i) The first was that the arbitrator grossly erred and misdirected himself on a point of law by failing to make a finding that the employee was grossly incompetent.

(ii) The second was that the arbitrator erred and misdirected himself at law by relying on an affidavit without according the respondent the opportunity to cross examine its deponent and to adduce oral evidence.

(iii) The third ground was that the arbitrator grossly erred and misdirected himself at law by handing down a grossly irrational and unreasonable award.

The court a quo found that the appellant had a responsibility to account to the Board on the operations of the business. He could not simply rely on his subordinates regarding the financial figures of the company as the buck stopped with him because he was the Managing Director.

The court a quo found, that, before presenting the financial figures to the Board, it was incumbent upon the appellant to verify the correctness of the figures. In its view, this was a case of res ipsa loquitar wherein the failure of the appellant to verify the figures was proof of incompetence.

The court a quo further found, that, the arbitrator's finding that the appellant was not responsible for the presentation of the faulty accounts to the Board flew in the face of available evidence. It was a gross misdirection entitling the court to interfere and set aside the award.

It set aside the award and remitted the matter for the assessment of an appropriate penalty.

It became the appellant's turn to be aggrieved.

He appealed to this Court on five (5) grounds of appeal most of which attacked the factual findings of the court a quo instead of the law as required by section 92F(1) of the Labour Act [Chapter 28:01].

In terms of that section, an appeal lies from any decision of the Labour Court to this Court on a question of law only.

As that issue was not canvassed with the parties at the hearing of the appeal, it shall not be used as a basis for resolution of the appeal.

At the commencement of the hearing, counsel for the appellant took a point of law that the entire proceedings before the Labour Officer who conciliated the matter, the arbitrator who heard what was in fact an appeal from a decision of the hearing officer, and the subsequent appeal before the court a quo were a nullity.

Counsel for the appellant entreated this Court to strike off the appeal from the roll and to invoke its power, in terms of section 25 of the Supreme Court Act [Chapter 7:13], to set aside those proceedings.

In advancing that argument, on nullity of the proceedings, counsel for the appellant relied on the authority of two judgments of this Court in Mabeza v Sandvick Mining (2) Construction (Pvt) Ltd & Anor SC91-19 and Living Waters Theological Seminary v Rev Chikwanha SC59-21.

In those cases, this Court pronounced that proceedings referred to the court a quo, having been adjudicated upon by a Labour Officer without authority to do so, were a nullity.

In response, counsel for the respondent took a different view, namely, that, the authorities in question were distinguishable from the present case.

In his view, those authorities applied to situations where an employer would have made a determination in terms of a Code of Conduct thereby ousting the jurisdiction of the Labour Officer.

Counsel for the respondent submitted further, that, in the present case, the employer did not decide the matter at all.

According to counsel, what was placed before the Labour Officer was not an appeal but a referral to the Labour Officer in terms of section 93 of the Labour Act.

He submitted that section 93 of the Labour Act conferred what he called “a special jurisdiction” to the Labour Officer.

Counsel for the respondent submitted, that, the law which was applicable at the time the dispute arose made it legally competent for disputes to be referred to Labour Officers as happened in this case.

I must mention, that, after hearing submissions from counsel on that preliminary point, this Court directed the parties to file written submissions on the point of law.

The appellant was directed to do so by 24 January 2022 while the respondent was directed to file a response by 27 January 2022.

The parties managed to file their submissions timeously which is commendable indeed.

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

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

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

“Accordingly, I order as follows:

1. The plaintiff's claim is dismissed.

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

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

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

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

The background facts are largely common cause.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Following these developments the appellant moved quickly.

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

The respondent was unmoved.

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

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

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

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

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

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

The appellant would have none of it.

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

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

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

The claim was contested by the respondent.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

On the evidence presented before the court a quo, including the manner in which the parties conducted themselves, the basis upon which the appellant should pay an additional duty was the directive given by the Zimbabwe Energy Regulatory Authority (ZERA) as read with S.I.10 of 2019, the Petroleum (Petroleum Products Pricing) Regulations.

I mention here, that, the court a quo correctly found that the sale became perfecta at the beginning of November 2018.

In other words, the sale was completed before the Statutory Instrument came into effect.

The question which then arises is whether its application extended to the diesel, which, for all intents and purposes, had been sold and belonged to the appellant.

I have already dealt with the two Statutory Instruments (SI9 of 2019 and SI10 of 2019), their introduction, and purposes. I have also stated that S.I.9 of 2019 expressly provided that it came into effect on 13 January 2019 and that it did not provide for retrospective application.

In statutory interpretation, there is a salutary presumption, as can be gleaned from section 20(1) of the Interpretation Act [Chapter 1:01], that statutes are not to be construed retrospectively.

In fact, the general rule is that, in the absence of express provision to the contrary, statutes should be regarded as affecting future matters only. They should, if possible, be so interpreted as not to take away rights actually vested at the time of their promulgation: see Curtis v Johannesburg Municipality 1906 TS 308…,.

The above proposition has been hallowed by repetition over the years in this jurisdiction: see Nkomo & Anor v Attorney General & Ors 1993 (2) ZLR 422 (S)…,.; and Greatermans Stores (1979) (Pvt) Ltd & Anor v Minister of Public Service, Labour and Social Welfare & Anor 2018 (1) ZLR 335 (CC)…,.

I have no hesitation in concluding, that, the pricing regime introduced in January 2019, not having retrospective application, did not affect the diesel forming the basis of this dispute.

This is so because ownership of it had long passed to the appellant.

The issue however does not end there because the respondent also placed reliance on section 230(1) of the Customs and Excise Act [Chapter 23:02] as bringing the diesel in question under the new pricing regime. The section provides:

“230 Seller under contract may recover any increase and purchaser may deduct any decrease of duty

(1) Whenever any duty is imposed or increased on any goods, and such goods, in pursuance of a contract made before the duty or increased duty becomes payable, are thereafter delivered to and accepted by the purchaser, the seller of the goods may, in the absence of agreement to the contrary, recover from the purchaser, as an addition to the contract price, a sum equal to any amount paid by him reason of the said duty or increase.”

This provision admits of no ambiguity. It must be given its simple grammatical meaning.

In the context of the present case, it raises a number of juridical factors that must be established before its provisions are engaged:

(i) First, there must be a contract entered into before duty was increased.

(ii) Second, duty must have been increased.

(iii) Third, the goods must have been delivered to and accepted by the purchaser after duty was increased.

(iv) Fourth, the seller must have paid the duty thereby entitling him or her to recover a sum equal to the amount so paid by reason of the increase.

In light of the definition of “duty” in section 2 of the Customs and Excise Act as “any duty leviable under this Act or any other law relating to customs and excise and includes surtax” one wonders whether the Petroleum (Petroleum Pricing) Regulations 2018 are a law relating to customs and excise.

They incorporate the component of duty in the pricing formula to be considered by the Zimbabwe Energy Regulatory Authority (ZERA).

The Petroleum (Petroleum Pricing) Regulations 2018 merely ensure just prices of petroleum products and do not levy a duty.

It is the Customs and Excise (Tariff) (Amendment) Notice (No.7) 2019, however, which is a law relating to customs and excise.

This issue was not canvassed with counsel in argument. Accordingly, it will not be engaged any further in the resolution of this appeal.

This is an appeal against the whole judgment of the High Court of Zimbabwe handed down on 9 September 2020 in which it ruled that the arbitral award granted against the first respondent be set aside and the matter be referred to a different arbitrator.

The appellant and the first respondent entered into a consultancy contract which commenced on 1 January 2013 and was expected to terminate on 31 July 2013.

Although the contract was not signed by the first respondent, the parties were agreed that the contract regulated their relationship.

The purpose of the contract was to transform the appellant from being a building society into a commercial bank.

On 28 February 2013, the Managing Director of the appellant wrote a letter to the first respondent advising that it was not renewing the contract. It thus terminated the contract and tendered to pay the first respondent cash in lieu of notice.

Aggrieved by the contents of the letter, the first respondent referred the matter to arbitration.

The first respondent's contention before the second respondent (the arbitrator) was that the appellant had no right, in terms of clause 7.1 of the contract, to unilaterally, and without reason, terminate the contract. It argued, that, the appellant should have given it notice to cure the breach and/or an opportunity to defend itself.

It claimed that the contract should be reinstated failing which it be paid damages in the sum of US$1,744,451=50.

The appellant argued that it exercised its rights to terminate the contract on notice in terms of clause 7.1 of the contract. It argued that termination of the contract, in terms of clause 7.1, did not require the existence of a breach or fault as a pre-condition to invoke the clause. It further argued that it was therefore not obliged to justify or give the first respondent reasons for the termination.

The appellant further argued, that, the first respondent had breached the contract as it had failed to implement the project successfully within the agreed time frame and budget.

It contended, that, in order to mitigate its losses, it engaged another consultant to complete the project. It argued that it suffered contractual damages in the sum of US$1,648,169=91 as a result of the breach and filed a counterclaim for damages in the stated sum.

The appellant conceded, that, a monthly payment of US$23,517 for the month of March 2013 was due to the first respondent in terms of clause 4 of the contract.

The first respondent denied that it had breached any terms of the contract. It argued that the damages claimed by the appellant were wrongly calculated and incompetent.

The arbitrator made a finding, that, the termination of the contract was in compliance with clause 7.1 of the contract which clause permitted termination of the contract without giving reasons for the termination.

The arbitrator dismissed the first respondent's claim that the cancellation of the contract be declared a nullity and that the contract be reinstated.

He also dismissed the first respondent's claim for damages.

The arbitrator awarded the first respondent the sum of US$23,517 being the monthly payment for the month of March 2013 due to the first respondent from the appellant.

The arbitrator further held, that, the appellant had not established its entitlement to the damages in the sum of US1,648,169=91. He therefore dismissed the appellant's counterclaim.

Aggrieved, the first respondent applied to the High Court to have the arbitral award set aside in terms of Article 34(2)(b)(ii) of the Uncitral Model Law, Schedule to the Arbitration Act [Chapter 7:15] (the Model Law).

The first respondent argued that the arbitrator misdirected himself in his interpretation of the contract.

It was argued, that, the arbitral award offends the principles embodied in our public policy as the arbitrator was biased in his decision. It was submitted that the possibility of bias arose from the fact that the arbitrator and Kevin Terry, the Managing Director of the appellant, were known to each other. It was contended that the two engaged in a conversation at the hearing during which the arbitrator expressed more than a casual interest in the life of Kevin Terry. It further contended, that, the two had a prior relationship, and, as a result, the conversation was likely to give rise to a reasonable apprehension of bias on the part of the arbitrator and he ought to have recused himself.

The first respondent further argued that the arbitrator, in an opposing affidavit which he filed in response to the application before the court a quo, used intemperate and unacceptable language towards the first respondent. It was submitted, that, the language used was evidence that the arbitrator was supporting the appellant in proceedings in which he ought to have been neutral.

In response, the appellant submitted that the conversation between Kevin Terry and the arbitrator was done in the presence of all the parties. It was further submitted, that, the conversation did not relate to the subject matter of the arbitral proceedings. It was argued that the conversation was innocuous, and, therefore, there was no basis for the apprehension of bias.

The appellant further argued, that, the allegations relating to the intemperate language in the arbitrator's opposing affidavit were not the basis for the first respondent's apprehension for bias as they were contained in the answering affidavit and not the founding affidavit.

The court a quo was urged to disregard the arbitrator's opposing affidavit.

The court a quo found, that, the arbitrator's interpretation of the contract, though it was faulty, did not render the award contrary to public policy.

The court a quo held, that, the conversation between the arbitrator and Mr Kelly was innocuous and did not raise a reasonable apprehension of bias. It found that the first respondent did not raise the allegations of bias with the arbitrator during the arbitration process. The allegations were only raised after the decision of the arbitrator. It therefore concluded, that, the first respondent had not established reasonable apprehension of bias in the making of the award.

The court a quo, however, found that the arbitrator's post award averments, in the opposing affidavit, created an impression that he was “pitching camp” with the appellant.

It found that the averments were intemperate, disparaging, and unacceptable in judicial proceedings. The court a quo held, that, disparaging averments taken in conjunction with the conversation between the arbitrator and Mr Terry, and the faulty interpretation of the contract, gave a reasonable apprehension of bias.

Consequently, it ruled that the arbitral award be set aside and the matter be remitted to a different arbitrator.

Aggrieved by the court a quo's decision, the appellant noted the present appeal.

The appellant noted the appeal on the following grounds:

“(1) The court a quo erred and grossly misdirected itself on the facts and evidence in holding that the degree of fault in the arbitrator's reasoning in the award, and his alleged acquaintance with Kelvin Terry, gave rise to a reasonable impression and apprehension of bias on part of the arbitrator, and that, consequently, the award was contrary to the public policy of Zimbabwe.

(2) The court a quo erred and misdirected itself, and, in any event, in considering the factual basis of the alleged bias which allegedly took place three months after the granting of the award and therefore could not invalidate the prior award on the basis of the alleged bias.

(3) The court a quo erred in placing reliance on the opposing papers in finding that there was an impression of bias as opposed to the founding papers upon which the application ought to have succeeded or failed.

(4) The court a quo erred and acted without jurisdiction in referring the dispute between the parties to be determined by a different arbitrator.”

The grounds of appeal raise two issues for determination:

1. The first three grounds of appeal raise one issue: whether the court a quo misdirected itself in holding that there was a reasonable apprehension of bias warranting the setting aside of the arbitral award.

2. The second issue is raised in the fourth ground of appeal. In that ground, the appellant seeks to challenge the order of the court a quo to remit the dispute between the parties for determination by a different arbitrator on the basis that the High Court is not reposed, by the Arbitration Act, with the power to make an order for remittal.

Counsel for the appellant submitted, that, the judgment of the court a quo was irregular in that it set aside the award on a basis other than the one alleged by the first respondent in its founding affidavit.

He submitted that the first respondent, in the proceedings a quo, alleged, in its founding affidavit, bias of the arbitrator during the arbitral proceedings. He argued that an application stands or falls on its founding affidavit.

He further argued that the court a quo was therefore called to answer whether there was bias on the part of the arbitrator during the making of the award.

He submitted, that, the court a quo correctly concluded that the first respondent did not establish bias and hence the application ought to have failed on that basis.

Counsel for the appellant argued, that, the court a quo however placed a lot of emphasis on the arbitrator's opposing affidavit to the application instead of the first respondent's founding affidavit.

Counsel for the appellant further submitted, that, the court a quo made a finding that both the substance of the award and the manner of the making of the award were not contrary to public policy. Counsel for the appellant argued that the court a quo therefore misdirected itself in relying on the arbitrator's affidavit which was filed three months after the issuance of the award.

He also argued that the court a quo erred in making contradictory findings and thus reviewed itself.

He submitted, that, the court a quo found that the conversation between Kevin Terry and the arbitrator did not constitute a reasonable apprehension of bias. He argued that the court a quo, later in the same judgment, found that the same conversation constituted bias if it is read together with the arbitrator's opposing affidavit.

He submitted that the court a quo misdirected itself by taking into account factors it had rejected earlier in its judgment.

Counsel for the first respondent submitted, that, the court a quo could not be faulted for accepting the evidence adduced by the first respondent in support of its claim that the arbitrator was biased.

He argued that the issue of bias was raised in the first respondent's founding affidavit.

He submitted that the adverse averments in the arbitrator's opposing affidavit were alluded to in the answering affidavit to illuminate the allegations of bias in the founding affidavit.

He submitted, that, the court a quo did not misdirect itself in considering the arbitrator's conduct post the award. He submitted that the court a quo did not review itself but considered the arbitrator's pre-award conduct together with the post-award conduct.

It is trite that an application stands or falls on its founding affidavit.

The founding affidavit sets out the case that a respondent is called upon to answer.

The principle was aptly set out in Austerlands (Pvt) Ltd v Trade & Investment Bank Limited & Ors SC92-05. CHIDYAUSIKU CJ remarked…, as follows:

“The general rule that has been laid down in this regard is that an application stands or falls on the founding affidavit and the facts alleged in it. This is how it should be, because the founding affidavit informs the respondent of the case against the respondent that the respondent must meet. The founding affidavit sets out the facts which the respondent is called upon to affirm or deny.”

The first respondent alleged, in its founding affidavit in the court a quo, that the conversation between the arbitrator and Mr Terry was the basis for its apprehension of the bias of the arbitrator and the reason why the arbitrator arrived at a wrong decision.

It stated, in paragraph 9.10 of the founding affidavit, that:

“Finally, the inexplicable findings of the Honourable Arbitrator as illustrated above could only be understood in the contest (sic) of some other influence. I am constrained to give that influence as the unusual familiarity between the Honourable Arbitrator and Kelvin Terry the managing director of the 1st respondent.”

The appellant disputed that the conversation was a cause for an apprehension of bias.

The court a quo held that there was no basis for any reasonable person to have an apprehension of bias.

It remarked, at p10, that:

“I agree with the observations made by the respondent in its heads of argument. These are that the discussion forming the basis of the applicant's case was held in the presence of both parties and within hearing distance. There was nothing to hide. A biased arbitrator would have been more circumspect. The discussion centred not on the arbitral proceedings themselves but on Mr. Terry's pending relocation to Kenya on transfer. The timing of his relocation was relevant from a case management point of view in the event that oral evidence was required.”

Further down, at p11, the court stated that:

“I am satisfied that the discussion between him and the arbitrator arose as a result of that communication by the respondent's legal practitioners and that the Arbitrator's sole interest in Mr Terry's imminent departure was legitimate. No reasonable person could perceive bias under these circumstances. Further, no allegation has been made that the prior dealings referred to by the applicant were in any way connected to the matter under arbitration.”…,.

The court a quo agreed with the appellant's submissions, and, in essence, concluded that the first respondent had not established bias.

The court a quo therefore ought to have dismissed the application following its finding.

The court a quo however proceeded to consider the first respondent's contention that the remarks by the arbitrator, in his opposing affidavit, gave credence to the first respondent's assertions of the arbitrator's bias.

It remarked that:

“In my view, the applicant's case hinges on the following factors: the degree of faultiness in the arbitrator's reasoning, the fact that the arbitrator and Kevin Terry are acquaintances, and the fact that in response to the present application, the arbitrator has attacked the applicant's intelligence and its legal practitioners professional standing.

Do these three factors, taken together, give rise, in the mind of a reasonable litigant in the applicant's position, to a reasonable apprehension of bias on the part of the arbitrator?

In my view, that question should be answered in the affirmative.

The arbitrator's post award comments in particular give the impression that he is 'pitching camp with, or rendering assistance to one of the contestants to the dispute before him'.”…,.

The court a quo misdirected itself in three respects when it took into account the arbitrator's averments in the opposing affidavit.

(i) Firstly, the first respondent's allegations of the arbitrator's bias, as contained in the founding affidavit, were based on the conversation between the arbitrator and Mr Terry during the arbitral proceedings.

The arbitrator's averments in the opposing affidavit were not pleaded in the founding affidavit. They found their way into the answering affidavit.

The first respondent therefore raised fresh allegations of bias in the answering affidavit instead of confining itself to its allegations in the founding affidavit.

The first respondent could not make out a case against the appellant on the basis of the answering affidavit.

The court a quo therefore misdirected itself when it made a decision relying on the fresh allegations in the answering affidavit.

The order of the court a quo was therefore not on the basis upon which the application had been brought in the founding affidavit.

On 13 March 2017, the plaintiff issued summons claiming against the defendants, jointly and severally, one paying the other to be absolved, payment of:

(a) US$368,706=62 being capital;
(b) US$20,654=10 being interest;
(c) Interest on the sum of US$368,706=62 at the rate of 18% per annum subject to change from time to time with effect from 26 of November 2016 to date of payment;
(d) Costs of suit on a legal practitioner and client scale and collection commission as provided for under the law society of Zimbawe by-laws (1982).

At the commencement of trial, on 27 August 2018, by consent of all the parties, the claim was amended in paragraph 16 of the declaration as follows:

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

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

The total amount being claimed by the plaintiff coming up to US$389,362=72.

The plaintiff's claim, as amplified in the declaration, is premised on the following synopsis:

“9. In or about November 2015, at Harare, Plaintiff and first defendant entered into an agreement in terms of which plaintiff extended to first defendant a loan of US$373,000. The loan was accessed through first defendant's operating account.

10. Interest was to accrue on the facility at the rate of 12 per cent per annum subject to change from time to time, but, in the event of first defendant defaulting on making due and punctual payment of any installment, the arrears were to attract interest at the rate of 18 per cent per annum subject to change from time to time, further, first defendant agreed to pay bank charges regarding the administration of the account.

11. The loan advanced of US$373,000 was repayable to plaintiff as follows:

(a) US$2,000 on the 30 of November 2015;
(b) US$1,500 on the 30 of December 2015;
(c) US$2,000 on the 30 January 2016; and, thereafter, US$15,200 per month with effect from the 28 of February 2016 until full payment.

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

13….,.

14. Second, third, fourth, fifth, sixth and seventh defendants bound themselves jointly and severally as sureties and co-principal debtors with first defendant for payment of any and all monies due to plaintiff by first defendant.

15. On diverse occasions, defendants defaulted on making due and punctual payments under the agreement resulting in the total outstanding amount under the agreement, as at the fifth of November 2016, in the sum of US$389,360=72 falling due and payable on the 25th of November 2016.”

All the seven defendants deny that the amount of US$373,000 the plaintiff claims arises from the loan agreement.

The first defendant denies that it is liable to the plaintiff for the capital sum of US$361,034=23 (as amended), or at all, arising out of the loan agreement signed on 16 November 2015 because only US$350,000 in capital was actually lent and advanced to the first defendant and the entire capital debt was repaid in full on 30 December 2015 - less than two months after 16 November 2015.

The agreement terminated in sixty (60) days in terms of the loan or facility agreement.

And the agreement does not have a survival clause.

Paragraph 24 of the facility cancels all previous agreements and this meant that even the balance on the first defendant's account is not covered by the agreement in question.

The first defendant denies liability under the facility and contended that the plaintiff actually recovered more interest than was lawfully due to it.

The first defendant also denies liability for any legal costs as it does not owe the plaintiff any money under the facility in question, and, if the plaintiff is successful, it would only be entitled to normal costs.

The defendants contend that all the suretyship deeds are void for vagueness in that they cover unlimited liability. The liability under suretyship must contain a limit in monetary terms.

The defendants further challenge the validity of the suretyship for they were not all authorized by the second defendant's Board of Directors. The second defendant challenges the company resolution for having been signed by an incompetent company representative.

The acknowledgement of debt alluded to by the plaintiff is challenged by the first defendant because it was not typed by its representatives. Equally so, the resolution signed by Ms Blumears was a nullity, the second defendant avers.

The first defendant denies defaulting payment. It denies owing the plaintiff any amount and also deny being liable to payment of the plaintiff's claims.

On 30 May 2017, the defendants sought to amend their pleas.

They added, that, if at all, the first defendant was liable ex contractu the loan agreement of 16 November 2015, the first defendant will dispute the amount owing since provisionally, as at the end of 2016, the first defendant's credits against debits had brought the first defendant's debit balance to less than US$109,000.

The defendants further contend, that, either the purported acknowledgement of debt or the loan agreement, or both, contravene section 12 of the Money Lending and Rates of Interest Act and consequently invalid and unenforceable.

The second defendant further pleaded that its act of suretyship fails to comply with the requirements of section 12 of the Money Lending and Rates of Interest Act for an instrument of debt as defined in that Act and the purported act of suretyship is therefore of no force or effect as an instrument of debt.

The second defendant's act of suretyship had expired by reason of the effluxion of time, having been signed more than three years before the grant of the loan as claimed for; it was signed on 23 May 2012.

The second defendant further pleaded, that, neither of the mortgage bonds filed reflect that they were surety bonds for debts owing by the first defendant to the plaintiff and accordingly do not bind the second defendant to the plaintiff for this purpose. Further, the mortgage bonds filed amount to a disposal of the whole or a greater part of the second defendant's assets in the absence of formal approval of a general meeting of shareholders as required by the Companies Act, and, for that reason, they are of no force or effect.

It reiterated that the registration of the mortgage bond in favour of the plaintiff was not authorised by the second defendant and that the plaintiff, as lender, clearly over-reacted and unlawfully requested the mortgage bonds.

The third, fourth, fifth, sixth and seventh defendants challenged the suretyships and validity of the mortgage bonds and contravention of the Money Lending and Rates of Interest Act.

Some of the suretyships were also signed long back, in February 2011; they had expired, the defendants aver.

The defendants pray for the plaintiff's claim to be dismissed with costs.

Due to the invalidity of the suretyships alleged in the pleas, the defendants pray that their respective purported suretyships be declared null and void and of no force and effect.

The second defendant, in its counter-claim, also prays that the plaintiff be ordered to issue formal consent according to deeds registry requirements for the cancellation of mortgage bonds registration nos 1557/2013 and 1656/2013 allegedly passed by the second defendant in favour of the plaintiff, and, with the said documents of consent, to release to the second defendant the deeds of the said mortgage bonds and deed of transfer no.1998/1975 made in favour of the second defendant on 7 May 1975.

The third and fourth defendants further pray that the plaintiff be ordered to issue formal consent, according to deeds registry requirements, for the cancellation of mortgage bonds reg nos. 2416/2011 and 4889/2011 allegedly passed by the third and fourth defendants in favour of the plaintiff, and, with the said documents of consent, to release to the third and fourth defendants the deeds of the said mortgage bond and deed of transfer no. 8573/95 made in favour of the third and fourth defendants on 15 December 1995.

The defendants jointly further pray for costs of suit in respect of this claim in reconvention.

The plaintiff, in its plea to the defendants claim in reconvention, contends that the defendants executed open guarantees which are valid, lawful, and enforceable.

It further avers, that, the second defendant's suretyship was and is properly constituted and was extended premised upon a valid resolution by the defendant company.

The acknowledgement of debt was also properly executed by the first defendant and is valid.

The plaintiff added that due process was equally provided in the execution on the guarantee by the second defendant, and the plaintiff was unaware that the third and fourth defendant's daughter unlawfully signed the guarantee and does not admit same.

The plaintiff denies that its representatives interfered in the execution of the guarantee by the second defendant. It argues that the guarantee is hence valid and enforceable.

The plaintiff contends further, that, due process was followed in the registration of the two bonds.

According to the plaintiff, the second defendant's resolutions were made and powers of attorney issued. The bonds were properly registered and are valid. As a result, according to the plaintiff, there is no legal basis on which the second defendant's guarantee and mortgage bonds should be cancelled.

The plaintiff prays for the dismissal of the defendant's claim in reconvention with costs.

1. Whether or not the first defendant is indebted to the plaintiff in the sum of US$361,024 as capital and US$28,246=49 as interest under and in terms of the loan agreement signed by the parties and dated 2 November 2015.

2. Whether or not the second, third, fourth, fifth, sixth and seventh defendants are jointly and severally liable together with first the defendant for the capital and interest amount claimed under and in terms of their respective deeds of suretyship.

3. Whether or not the second defendant's first and second mortgage bonds numbers 1557/13 and 1655/13, in favour of the plaintiff, are valid and enforceable, and whether or not the said bonds be declared null and void and cancelled.

On 27 August 2018, the plaintiff opened its case by calling Cuthbert Gunundu. He is a university graduate holding a Bachelor of Business Studies, a Masters Degree in Business Administration, a holder of a diploma certificate in Institute of Bankers of Zimbabwe, and is employed by the plaintiff as an Account Relationship Manager.

He has been employed by the plaintiff since January 2008.

His job entails managing customers account, more particularly the customer's operating account, receiving credit applications for borrowing to assess credit worthiness of the borrower and make recommendations to the Credit Committee, to approve or reject a credit application.

Once a resolution to lend to the customer is made, he will monitor performance of that client's account to ensure that the borrower performs in line with the terms of the facility.

When there is a deviation by the borrower, the witness would make recommendations for call up or otherwise of the debt.

These are the major roles of his job.

He knows the first defendant as a long outstanding customer of the plaintiff. The second to seventh defendants are guarantors to the first defendant. He testified, that, since 2011, when he was assigned to manage the first defendant's account, the plaintiff demanded the requirement of guarantees to safeguard its moneys loaned out.

From 2011, the plaintiff received guarantees, in terms of security guarantees as well as mortgage bonds against the third and fourth defendants properties. The security guarantees proferred by the third and fourth defendants were for unlimited lifespans until the defendants have paid their debts in full.

In 2013, the witness told the court that the first defendant approached the plaintiff for further borrowing and the first defendant's directors were advised, by the plaintiff, that, the plaintiff would need further security. At that stage, the third defendant indicated that it had associates to cover and provide security for the debt.

Sometime in 2015, the first defendant submitted an application to get assistance from the plaintiff through a loan to pay off its existing debt.

At that stage, the witness stated that the first defendant had failed to meet its obligations.

The first defendant then approached the plaintiff to access a loan whose proceeds the first defendant would then use to pay off its existing debts. That fresh application, of 2015, culminated into a fresh loan agreement which is the agreement dated 2 November 2015.

As at the date of the loan agreement, the witness told the court that the first defendant owed the plaintiff a total of US$373,000.

The terms of that loan agreement was that the Bank had to be secured, and, in terms of clause 6 of the agreement, the security was already in the hands of the plaintiff.

As a result of the 2 November 2015 agreement, the plaintiff advanced a loan to the first defendant to pay off the debt, a loan draw down of $350,000; and, that amount was to pay off the first defendant's outstanding debt.

On 30 December 2015, the second entry on the bank statement shows that there was a loan repayment of $350,000 and the witness told the court that to the plaintiff it was a debit to show that it was a new loan account.

The witness denies that the first defendant repaid the amount on 30 December 2015; there was no settlement on the account.

The witness denied the assertion made by the defendants, that, the plaintiff had sued under the wrong agreement.

He further added, that, the first defendant was using its operating account.

The witness also explained, that, the customer signed an acknowledgment of debt cited on pp10-12 of the plaintiff's bundle of documents, p202 of the record of proceedings. The document, the witness said, was executed by the third defendant and did so on behalf of the first defendant. He added, that, although the loan agreement shows a figure of $373,000 and the acknowledgement of debt bears an amount of $377,299=70 the two (2) documents relate to the same transaction.

Asked by the plaintiff's lawyer to explain, the witness stated that by 6 November 2015 the first defendant owed the plaintiff $377,299=70, the facility letter dated 2 November 2015 showed $373,000, and the acknowledgement of debt, dated 16 November 2015, was the date the acknowledgment of debt was executed.

The acknowledgment of debt was sent to the first defendant on 31 October 2015, and, by that date, the amount due to the plaintiff from the first defendant was $377,299=20; from time to time, the first defendant was periodically depositing money into the operating account and this resulted in gradual reduction of the first defendant's obligation.

However, from 2 November 2015 the first defendant failed to meet its obligations.

The witness further explained to court, that, the defendants provided two forms of security, the guarantees and mortgage bonds, contained on pp67-69 of the plaintiff's bundles.

The second defendant executed it for registration.

In 2012, the borrower applied for an increase to its loan facility and that is when the security was made.

The witness insisted that all the documents were properly executed and the resolution on p69 of the bundle was authentic and valid.

Mr Gunundu was cross-examined by counsel for the first, third, fourth, fifth, sixth and seventh defendants and was put to task to explain the capital debt of $373,000 and the $361,024 and also $350,000 and he had difficulties to explicitly define such figures.

Tasked to explain why the plaintiff would write on its statement that the second entry on the statement of 30 December crediting the first defendant's account with an amount of $350,000, the witness stated that it was a “confirmation” of the loan advanced to the first defendant.

Further, under cross examination, the witness averred that the loan agreement of 2 November 2015 permitted the plaintiff to factor in the old debts.

Pressed to explain clause 12 of the facility letter, on p16 of the record; that clause 12 cancels and invalidates all previous agreements, the witness admitted that the plaintiff was bound by that clause.

He could not produce a letter or application to show that the first defendant applied to the plaintiff for a loan to facilitate funding an existing debt.

Commenting on clause 2 of the facility letter relating to “working capital requirements” he testified that a letter application for a loan to pay off existing debt includes or encapsulates working capital requirements.

He failed to explain precisely the purpose of the loan, he could not satisfactorily explain the purpose of $350,000 whether it was for settling previous debts or was for working capital requirements; if it was for payment of old debts, then, it ceased to be for working capital.

On the aspect of surety, he agreed that the surety agreements violated section 12 of the Money Lending and Rates of Interest Act [Chapter 14:14] but insisted that they are valid.

The defendants, after signing the 2 November 2015 loan agreement, did not provide securities to cover the new loan.

On the aspect of the in duplum rule schedule, the witness computed the figures starting from 1 October 2015 and did not commence on 2 November 2015. The calculation patently included past debts and recapitalised the interest and he could not answer the question put to him, whether it was not proper to calculate the figures with effect from the date of the new loan.

He denied that the amount due to the plaintiff is at least $108,000 however the entries on the bank statement were debited based on the new loan not on the old debts.

He also admitted that the acknowledgment of debt, on p9 of the plaintiff's bundles was prepared by the Bank using a blank form which is later completed by the customer and the customer provides handwritten information to an existing format and the figure on the acknowledgement of debt $377,499=70 was written by the plaintiff.

He had difficulties of explaining the signature on the acknowledgment of debt.

The witness was referred to p6 of the bundle by counsel for the second defendant and asked to comment on the aspect of the declaration by the plaintiff, that, the plaintiff's claim is based on the 2 November 2015 agreement and no other, and he agreed.

He agreed with the second defendant's defence lawyer that the whole cause of action is premised on the 2 November 2015 agreement.

He agrees further that the $350,000 was for working capital.

He could not, however, agree that on 30 December 2015 the first defendant paid off the borrowed $350,000 clearly acquitted by the narrative.

He confirmed that the 2 November 2015 agreement is a stand-alone agreement and cancels all previous facility letters.

On the security and mortgage bonds, he concurred with counsel for the second defendant, that, the amounts of $437,500 was not registered for the 2015 November loan agreement but were meant for loans for 2013.

The mortgage bonds were executed for the 2013 agreement not for the 2 November 2015 agreement.

There was no accompanying resolution by the second defendant authorising the third defendant to represent the second defendant in any capacity, yet the 2013 agreement was totally distinct from the 2015 loan agreement.

The resolution captured on p70, the resolution by the second defendant's directors, was prepared by the plaintiff Bank and it does not authorise a power of attorney to pass a mortgage bond. It also does not provide for registration of a continuing covering bond, nor does it identify any property which is going to be covered by the mortgage bond.

Relating to the causa of the mortgage bond, he admitted that the second defendant was not indebted to the plaintiff.

On p99 of the record, it is clear that the second defendant was not granted any loan by the plaintiff and the $375,000 was not loaned to the second defendant by the plaintiff.

On p105, the clauses on the surety bonds do not reflect the truth about the entire transactions, the witness confirmed under cross-examination, because it appears that the surety bond was passed by the debtor itself.

The witness does not know as to who signed the documents and was not there when such documents were signed.

He was at pains in marrying the documents prior to November 2015 with the 2015 loan agreement which is the cause of action for the plaintiff.

He sought to rely on the clauses of the mortgage bond which speak of continuing cover and failed to explain the practicality of clause 12 of the 2 November 2015 agreement.

The witness had difficulties to explain what transpired relating to figures and signature on documents and legality of the documents contained on the plaintiff's bundle.

He did not impress as a good witness, moreso when he was subjected to a protracted cross-examination by the defendants legal practitioners. He did not fare well in evidence in chief and under cross examination.

He did not know much, even on basic issues of practices and interpretation of a simple loan agreement.

If clause 12 of the loan agreement cancelled all past agreements, how can the witness resort to previous debts to calculate the capital debt?

How can the witness “confirm” a loan facility after a month from the date the loan was signed and then enter into its own books the inscription “loan repayment $350,000?”

The capital sum of $373,000 keeps changing and no comprehensive statement to explain that continuous change of figures was produced and no good explanation by the plaintiff's witnesses was proferred.

This court cannot prepare a contract for the parties, it will interpret what is on paper and draw conclusions from such.

The duty to clarify the terms of the agreement lies with the plaintiff through its witness; Mr Gunundu left a lot of issues hanging.

The second witness to be called by the plaintiff was Mr V.S. Nyangulu, a registered legal practitioner, a Conveyancer and Notary Public.

He was conveyancer in the registration of the second defendant's first and second mortgage bonds (numbers 1557/13 and 1655/13) in favour of the plaintiff.

According to the witness, valid and proper resolutions were passed authorising him to attend to the bond registration process which was executed by the second defendants representatives. He added, that, all due process was followed pertaining to the registration of the mortgage bonds and there is no legal basis for their setting aside.

The witness also pointed out, that, on instructions, the Bank would normally send an e-mail stating that it wants to have a bond registered by him; the Bank will forward the copy of the title deed then he prepares the relevant papers. He would then prepare a power of attorney to pass a bond, a resolution by the company borrower, and send the papers back to the client Bank via email.

The Bank will download the documents, print them out, and send to client borrower for signing.

After all the papers are signed, the Bank submits them, together with the requisite on original title deeds, to the conveyancer who then lodges them with the Registrar of Deeds.

He is the one who prepared and registered all the documents on p294 of the record and the one on p293. Otherwise, all the other processes were done by the plaintiff.

He is the one who prepared the power of attorney which he filed with the Registrar of Deeds, including the mortgage bond on p303. He also prepared the resolution accompanying the power of attorney.

He admitted that the documents before the court, attached to the plaintiff's bundle, are mortgage bonds and not surety mortgage bonds; however, they are relevant to the loan under consideration and they are a continuous cover, the borrower will continue to draw money from the lender, and, according to Mr V.S. Nyangulu, paragraph 2 of Schedule of the Mortgage Bond provides for a continuing cover.

After the witness evidence, counsel for the first, third, fourth, fifth, sixth and seventh defendants did not have questions to the witness.

Counsel for the second defendant questioned the witness about the legal requirements of a mortgage bond as well as surety bonds, more particularly on the aspect of the causa which can either be a loan or a surety.

The witness acknowledged, that, the causa on both documents was not accurately captured and admitted that once the causa is defective the entire document is a nullity.

He was also put to task on the authenticity or otherwise of a power of attorney and/or a resolution and again admitted that the documents before the court had shortcomings.

A power of attorney must accurately describe the causa and prepared by an authorised person for a specific purpose. The resolution of a company must be prepared and signed by the appropriate agents and Directors of the body corporate.

The power of attorney on p293, the witness admitted, was not authorised. He also admitted that the second defendant, as a company, cannot execute any document and has to do that via an agent by power of a resolution and name a natural person, and, the plaintiff has failed to prove all these essential elements.

He further acknowledged, that, the power of attorney on p293, which authorized to pass a mortgage bond in the sum of $375,000 becomes the causa to pass a mortgage bond and not to pass a surety mortgage bond.

On p302 of the record, the witness does not know the identity of the person who executed the document, and, the power of attorney at p293 does not pass the test of a valid document.

At p294, the mortgage bond itself on the causa, the identity of the debtor is not correct; one cannot be both surety and borrower.

On p295, the declaration, which is the basis of the acknowledgment of debt, is falsely stated. Both the declaration and the causa are incorrect.

The effect is that the documents are a nullity and also subsequently invalidates the mortgage bond.

The witness also admits, that, on p302 of the record, authority that is given to a legal practitioner to pass a mortgage bond and not a surety mortgage bond. He also admitted on p303 the debtor shown there is not the correct one. The same applies to the declaration on p309. Both are invalid. He finally admitted that the power of attorney had shortcomings that go to the root of the documents.

The effect of the cross examination completely resulted in the destruction of the mortgage bonds, surety bonds, and requisite powers of attorney to pass mortgage bonds, more particularly, relating to the 2 November 2015 loan agreement.

The plaintiff then closed its case.

The first and third to seventh defendants indicated that they wished to make an application for absolution for instance. The second defendant also made the same indications.

In their application for absolution the first and third to seventh defendants argue that the issues for determination in this mater are:

(i) Whether or not the plaintiff led sufficient evidence, on the face of it, to establish its case against the defendants in respect of the pleaded cause of action.

(ii) Whether or not the plaintiff's evidence prima facie established valid sureties and mortgage bonds for that pleaded cause of action.

The cause of action pleaded by the plaintiff, the defendants submitted, against the first defendant is that in or about November 2015, at Harare, the plaintiff and the first defendant entered into a loan agreement in terms of which the plaintiff loaned and advanced to the first defendant the amount of $373,000 through the first defendant's operating account with the plaintiff and that the first defendant defaulted on making due and punctual repayment in terms of the agreement resulting in the first defendant owing the total sum of $389,360=72 made up of the capital sum of $361,034=23 and interest of $28,246=49.

The cause of action against the second and seventh defendants was pleaded as arising out of them having bound themselves jointly and severally, as sureties and co-principal debtors with the first defendant for the due payment of any and all monies due to the plaintiff by the first defendant under the loan agreement.

The plaintiff attached to its summons a statement of account pleaded to reflect the transaction history of the loan account. That statement of account showed that on 15 November 2015 the plaintiff credited the first defendant's operating account with the amount of $350,000 described as “loan draw down” under reference number LD 1532 460482, and, further, on 30 December 2015 the operating account was credited with the same amount of $350,000 described as “payment of principal” under the same reference number LD 1532460482.

The defendants submit, that, the net effect of these entries was to restore the first defendant's previous overdrawn overdraft facility.

The plaintiff also attached copies of surety agreements with the third to seventh defendants all of which predated the pleaded loan agreement having been made:

(a) By third defendant on 25 February 2011;

(b) By fourth defendant on 25 February 2011;

(c) By fifth defendant on 25 February 2011;

(d) By sixth defendant on 25 February 2011;

(e) By seventh defendant on 25 February 2011;

Further, the plaintiff's cause of action against the third and fourth defendants, the plaintiff attached mortgage bond numbers 2416/2011 and 4889/2011, dated 19 April 2011 and 4 August 2011 respectively, by the third and fourth defendants against a property they co-own as a certain piece of land situate in the District of Salisbury, called Stand 7 Greencroft Township Ascot of Subdivision A and B of Mabelreign measuring 2392 square metres.

The respective mortgage bonds contain the same causa clause stating that “the Appearer” declared that whereas that mortgagors have been granted certain loan credit and/or other facilities by NMB Bank Limited in respect of the mortgage bonds.

The two mortgage bonds also contain the same declaration stating that “the Appearer hereby acknowledged the mortgages to be truly and lawfully indebted and held firmly bound into and on behalf of the Bank in the capital sum arising from and being money lent and advanced or to be lent and advanced or re-advanced.”

The defendants submitted, that, Cuthbert Gunundu contradicted in material respects the particulars of the plaintiff's claim as pleaded and as amplified by the documentary evidence attached to the summons and declaration.

Under cross-examination by the defence, the witness insisted that the loan agreement was not to finance the first defendant's working capital needs but to refinance existing indebtedness; he could not, however, produce the written application made by the first defendant to refinance existing debt.

To Mr Gunundu, the loan described in the agreement of 2 November 2015 as being to refund working capital requirements meant the same thing as the refinancing of existing debt, and, further, that the narration on 31 December 2015 (there was debit entry of payment of principal) was a mere confirmation of the loan amount which had been credited on 20 November 2015.

According to the defendants, the documentary evidence produced by the plaintiff shows that the loan amount was repaid and narrated as such on 31 December 2015.

The defendants further submitted that the 2 November 2015 loan agreement was repaid and what may be owed to the plaintiff, by the first defendant, may be from the old debt.

The defendants argued that the plaintiff is estopped from disputing that the loan advanced on 2 November 2015 was repaid on 31 December 2015 and cited cases for that submission.

Similarly, the plaintiff is estopped from disputing that the loan was for funding the first defendant's working capital requirements.

The defendants went on to argue, that, the plaintiff cannot claim the amount of $361,034=23 as capital arising out of the loan agreement of 2 November 2015 because only $350,000 was credited to the first defendant's account under the loan agreement and the rest of the amount up to $361,034=23 relates to monies advanced earlier in terms of prior credit facility agreements otherwise not pleaded as part of the plaintiff's cause of action.

The amount of $361,034=23 being claimed relates to money advanced earlier than 2 November 2015 in terms of some other agreements, which amount clearly includes both old capital and old interest in circumstances where the plaintiff has not provided the in duplum schedule relating to those agreements.

The defendants also argue, that, the acknowledgement of debt, dated 6 November 2015, does not take the plaintiff's case any further.

In the declaration, the plaintiff has not pleaded any cause of action founded on the acknowledgement of debt. Secondly, as an instrument of debt, the acknowledgement of debt does not bind the first defendant because no evidence was led as to any resolution of the first defendant authorizing the acknowledgement, the acknowledgement does not bear the name of any official of the first defendant authorised to execute it, and who so executed it, and the acknowledgement was not executed by any official of the first defendant authorised or otherwise as it does not bear any such official signatures.

As a result of the foregoing, the third to seventh defendants argue that the plaintiff has not managed to prove their liability to it of the principal debt given that their liability is pleaded and arising out of them having stood as surety to the first defendant's indebtedness.

As the application for absolution relates to the registration of continuing covering mortgage bond which was not outlined, the third to seventh defendants submitted that the plaintiff produced a Board resolution dated 21 May 2012 which allegedly authorized it to register a mortgage bond against the second defendants property; that authority was not for a continuing covering mortgage bond.

None of the defendants ever authorised the plaintiff to register a continuing covering mortgage bond. The plaintiff was only authorised, by the surety mortgage bond, to register just one surety mortgage bond in respect of the loan that was advanced to the first defendant in 2012 and not any time thereafter.

The plaintiff's purported rights, arising from the registration of a continuing mortgage loan that was not authorised, cannot be saved from the inevitable consequences of invalidity; the defendants argued and they cited Elsie v Johnson ZW SC49-17.

The sureties executed by the third to seventh defendants were all executed on 25 February 2011 in respect of some facility arrangement availed to the first defendant in 2011 but in respect of which the plaintiff gave absolutely no evidence.

The plaintiff seeks that these sureties be held to bind the third to seventh defendants in respect of the loan agreement of 2 November 2015.

The defendants argued, that, the surety agreements cannot found a valid cause of action against the third to seventh defendants on account of the fact that having been executed on 25 February 2011 the underlying indebtedness arising out of them, as of that date, prescribed three years after 25 February 2011, that is, on 25 February 2014 by virtue of section 15(d) of the Prescription Act [Chapter 8:11].

The fact that the surety agreements are invalid because they contravene section 12 of the Money Lending and Rates of Interest Act [Chapter 14:14] in that they did not state the amount actually lent to the borrower.

Thirdly, the fact that the plaintiff did not obtain the consent of the third to seventh defendants when the terms of the first defendants indebtedness were materially altered when the plaintiff and the first defendant entered into the loan agreement of 2 November 2015 which was materially different from the overdraft facilities in respect of which they were or equally given in 2011.

On the issue of mortgage bonds, the third to seventh defendants submitted that a mortgage bond which contains a false causa and a false declaration is invalid, of no force or effect, and unenforceable; they referred the court to MHISHI M.L a Guide to the Law and Practice of Conveyance in Zimbabwe, 2004…,.

Mr Nyangulu did not refer to mortgage bonds executed over the property of the third and fourth defendants.

However, the defendants urge the court to equally apply the principle of the law relevant to the third and fourth defendants property which were executed or registered by Mr Sobusa Gula Ndebele who was not called by the plaintiff to give evidence.

The third to seventh defendants contend, that, the mortgage bonds relied upon in respect of third and fourth defendants are the same as those relied upon as against the second defendant.

Both bonds contain false causa and false declaration since they state that they are for monies lent and advanced to the third and fourth defendants when it is common cause that no monies were lent and advanced by the plaintiff to the third and fourth defendants.

Hence, the third and fourth defendants are that the mortgage bonds that were registered by Mr Gula-Ndebele, at the behest of the plaintiff or in favour of the plaintiff, as against the third and fourth defendant's Mabelreign immovable property, are invalid and of no force or effect and unenforceable against the two defendants.

The bonds allegedly also contravene section 45 of the Deeds Registries Act [Chapter 20:05] in that even therein there are continuing bonds, the third and fourth defendants liability under each of them is uncapped.

In any event, the unlimited surertyship agreement from which they are founded is contrary to public policy for its attempt to provide an unlimited surety.

The first and third to seventh defendants pray for absolution and also pray for the cancellation of the two (2) mortgage bonds registered against their Mabelreign property.

The second defendant also applied for absolution, and, in addition, it prays for the grant of its counter claim at the close of the plaintiff's case on the basis that the facta probanda has been resolved in its favour at the close of the plaintiff's case, and, as such, the second defendant believes that there is no need for evidence to establish the same.

According to the second defendant, the plaintiff's evidence has established the following:

1. That there was resolution to pass a mortgage bond in respect of the first bond;

2. That both mortgage bonds are generally covering bonds as opposed to surety mortgage bonds;

3. That the causa is money lent and advanced;

4. That the plaintiff never in fact lent and advanced any money to the second defendant;

5. That the causa in respect of the bonds is in fact false; and

6. That one cannot be a surety for one's own debt.

The second defendant further added, that, the plaintiff relies on the mortgages. The plaintiff had the onus of establishing that the mortgages were complete and regular on the face thereof. An incident of this onus was the duty to begin. The plaintiff failed to discharge this onus, it meant that the only material before the court is the second defendant's admitted claim.

The second defendant prays for a judgment in its favour.

The second defendant associates itself with the first and third to seventh defendants facts laying the basis for the application for absolution, inclusive of the submissions made by the first and third to seventh defendants.

However, the second defendant added that the plaintiff's case is that it entered into a facility agreement. That agreement resulted in the first bond, which was intended to be a surety mortgage bond.

The truth, according to the second defendant, is that no surety mortgage bond was registered, but a continuing general covering bond predicated on money lent and advanced.

It is common cause that no money was lent and advanced. The plaintiff never related with the second defendant.

The plaintiff testified, that, the first arrangement was not honoured; the result was a refinancing agreement, but, from the evidence led by the plaintiff, it did not consult the second defendant on the plaintiff's own case, there was novation, but it was novation without recourse to the surety discharges, the surety, and all security.

In any event, the plaintiff admitted that a new arrangement came into place, it would therefore not sue on the old arrangement.

On the face of the documentary evidence, the money advanced to the principal debtor was paid off within just over a month of the advance. The second defendant contends that the net effect of the evidence on the principal debt and alleged sureties is:

(a) The agreement between the plaintiff and the principal debtor was novated;

(b) The plaintiff's claim had been compromised as between the plaintiff and the principal debtor;

(c) The obligations between the plaintiff and the principal debtor were materially and prejudicially altered;

(d) There was prejudicial extension of time within which to meet the alleged conditions of the contract as between the plaintiff and the principal debtor;

(e) There was prejudicial agreement not to enforce as between the plaintiff and the principal debtor.

A guarantee extends to the obligations which flow from the contract itself, the suretyship agreement could not apply to that new agreement - a novation by the agreement between the parties.

The plaintiff's claim was grounded on the fact, that, this novation agreement between the plaintiff and the principal debtor was not effected as desired, but, a novation releases the surety....,.

The plaintiff dismisses the defendants suggestion by all sureties, that, they should be released from suretyships because there was a material variation of the principal obligation.

It says that this point was not pleaded by the defendants and thus should not be considered....,.

On the debiting of $350,000 on 30 December 2015, under the narration of “payment of principal” Mr Gunundu for the plaintiff testified, that, that entry was not a payment by the first defendant but a confirmation of the loan and the first defendant's debt under the agreement dated 2 November 2015.

The plaintiff's replication to the defendants plea, on page 26 of the record, does not show that the entry of $350,000 in the plaintiff's statements is a confirmation of the loan; the word confirmation appeared for the first time during hearing, when Mr Gunundu was giving evidence.

The first defendant, in its plea, had pleaded that it had repaid $350,000 on 30 December 2015 and the plaintiff, in its wisdom, did not see the importance of addressing that averment in its replication.

3. The matter is remitted for a determination on the merits by the same judicial officer.”

This is an appeal against the entire judgment of the High Court delivered on 5 February 2020.

The court a quo held that eighty-five percent (85%) of Number 16 Hawkshead Drive, Borrowdale, also known as Lot 1 of Lot 4 of Lot FA Quinnington situate in the District of Salisbury, measuring 1,2770 Morgen held under Title Deed 3999/96 be awarded to the respondent as her sole and absolute share with the appellant being awarded the remaining 15 per cent share.

The appellant and the respondent married in terms of the Marriage Act [Chapter 5:11] in 1996. Both parties were business partners involved in the property sector. The appellant was into property development and the respondent was into real estate management. Both were directors of a company called Bern-win Development Company.

This company was liquidated, and the parties lost everything.

They were advised, by their lawyers, to separate their business properties from their family assets by forming Trusts.

Consequently, Mai-Kai Property Development Trust was formed in January 2000 and Paradza Trust in July 2000. The beneficiaries of both Trusts were Tsitsi Mutanga, Bernard Tanatsa Mutanga, Lucinda Ropafadzo Mutanga, and Rusiya Mutekenya, who is the appellant's mother.

It was the intention of both parties that Paradza Trust be the asset holding Trust while Mai-Kai Property Development Trust would be the property selling Trust.

The proceeds of the business were pooled together and used to buy assets for the family which were registered under Paradza Trust.

Unfortunately for the parties, their marital relationship broke down and the respondent issued summons for divorce in which she cited irretrievable breakdown of the marriage as the cause for divorce. She further sought an order for distribution of the assets of the parties.

During the proceedings in the court a quo, the parties agreed on all ancillary issues including custody and maintenance of their children save for the distribution of one immovable property which is No.16 Hawkshead Drive, Borrowdale (hereinafter referred to as the property).

According to the appellant, the property was not an asset of the spouses.

He claimed, that, the property belonged to a private company called Brabourn Investments (Private) Ltd and that the company was wholly owned by Brabourn Trust of which the respondent was neither a trustee nor a beneficiary.

The appellant further claimed, that, the reason why the property could not be distributed in terms of section 7 of the Matrimonial Causes Act was that Paradza Trust had failed to raise the purchase price and hence the sale was not perfecta.

He also claimed that it was at that point that Brabourn Trust purchased the shares in Brabourn Investments (Private) Limited.

He however failed to produce evidence to the effect that Paradza Trust had failed to raise the purchase price and that the contract had been cancelled.

According to the evidence adduced by the respondent during the trial, the property was acquired through the purchase of shares in Brabourn Investments (Private) Limited by Paradza Trust.

Paradza Trust purchased 100 per cent paid up shares in Brabourn Investments (Private) Limited which represented ownership of the property. The effect of such acquisition was that the property now vested in Paradza Trust in which the appellant, the respondent, their children, and the appellant's mother were beneficiaries.

The respondent claimed that the property in dispute was an asset owned by both parties, and, as such, was distributable in terms of section 7 of the Matrimonial Causes Act [Chapter 5:13].

The respondent further testified, that, Brabourn Trust which was purported to own Brabourn Investments (Private) Limited, was fraudulent.

She highlighted to the court, that, the Trust Deed creating Brabourn Trust was null and void as it did not have the mandatory protocol number; that the dates in the Deed were inconsistent with the sequence of events; and, lastly that the legal practitioner who purported to have drafted and registered the Trust Deed was still at law school at the time of such registration, and, as such, was not yet practicing law.

Basing on the evidence placed before it, the court a quo held that No.16 Hawkshead Drive, Borrowdale was an asset that belonged to Paradza Trust.

It further held that the property was distributable in terms of section 7 of the Matrimonial Causes Act.

It also held that Brabourn Trust was a stratagem by the appellant to thwart the respondent's claim to the property.

The property was then distributed, with the respondent being awarded an 85 per cent share in the property while the appellant received the remaining 15 per cent share.

Aggrieved by the decision of the court a quo, the appellant noted an appeal to this Court on the following grounds:

1. The court a quo misdirected itself in finding that number 16 Hawkshead Drive, Borrowdale was a family asset and registered in Paradza Trust that could be distributed, a finding which is contrary to the evidence presented.

2. The court a quo misdirected itself in finding that the Brabourn Trust Deed was null and void.

3. The court a quo erred at law when it concluded that Paradza Trust was the original purchaser of Brabourn Investments (Private) Limited with 100 per cent paid up shares, being the only one with a claim to number 16 Hawkshead Drive, Borrowdale.

4. The court a quo erred at law when it concluded, that, the respondent was entitled to a share of number 16 Hawkshead Drive, Borrowdale, not just as a spouse but as a beneficiary of Paradza Trust, when there was no evidence that Paradza Trust acquired the property.

5. The court a quo misdirected itself in granting an order that number 16 Hawkshead Drive, Borrowdale also known as Lot 1 of Lot 4 FA Quinnington situate in the District of Salisbury held under title deed number 3999/96 measured 1,2770 Morgen instead of 1,0938 hectares.

The appellant's counsel argued, that, the property in dispute did not belong to the appellant individually, and that it had not been purchased by and was not owned by Paradza Trust. He submitted, that, it did not fall under the ambit of property that was distributable under section 7 of the Matrimonial Causes Act as it was owned by a third party, which is Brabourn Investments (Private) Limited.

He further argued, that, besides the agreement of sale of the 100 per cent shares in Brabourn Investments (Private) Limited, there is no proof of transfer to Paradza Trust, which further clarifies the position that the property belonged to Brabourn Trust.

Counsel for the respondent, per contra, argued that the property belongs to Paradza Trust.

She submitted that the parties lived on the premises until the time they decided to lease it out.

She further submitted that to date, the property belongs to Paradza Trust and all monies derived from that property go to the beneficiaries of the Trust, who, at the time of registration were Rusiya Mutekenya (appellant's mother), their two children, Bernard Tanatsa Mutanga, Lucinda Ropafadzo Mutanga, and the respondent herself.

As will become apparent shortly, both counsels were asked to address this Court on the non-joinder of the trustees of Paradza Trust.

Counsel for the appellant submitted, that, the trustees of Paradza Trust should have been joined in the proceedings a quo. On the other hand, counsel for the respondent submitted that the issue of joinder was defeated by the appellant's claim that the property belonged to Brabourn Trust. That is why the chairman of the Trust was subpoenaed to testify before the court a quo.

Counsel for the respondent also placed reliance on section 7 of the Matrimonial Causes Act which provides that a court can direct that property of one spouse be transferred to another spouse.

In view of the non-determination by the court a quo of an issue that was argued before it, this appeal stands to be disposed of on that very issue.

It therefore becomes unnecessary to advert to the appellant's grounds of appeal....,.

In terms of section 25 of the Supreme Court Act [Chapter 7:13], the Supreme Court has certain powers that are vested in it which include the power to review proceedings and decisions of lower courts.

Of particular importance is subsection (2) which provides, that, the powers to review can be exercised whenever it comes to the attention of a judge or the Supreme Court that an irregularity has occurred in any proceedings notwithstanding that such proceedings or decision is not the subject of appeal.

It has come to this Court's attention, that, there was an irregularity in the proceedings of the court a quo, and, such irregularity is not the subject of appeal. The irregularity pertains to the court a quo's omission to determine the issue of joinder despite the fact that such issue was argued before the court a quo.

The court a quo found that once the first respondent has acted upon a recommendation by a Tribunal on the question of whether a judge should be removed from office, that action becomes a decision in terms of the Constitution, whose validity cannot be reviewed. It stated;

“The question then becomes whether or not the decision made by the first respondent is subject to review by this court. Whatever recommendation is made, the President must act in terms of section 187(8). In my view, once removal or no removal is recommended and acted upon, it becomes a decision made in terms of the Constitution.

It could not have been the intention of the legislature that once such removal is finalised in terms of the Constitution, that this court assumes jurisdiction, even under the guise of 'inherent' jurisdiction, as contended by Mrs Mtetwa.

Conversely, in my view, it would be absurd for the Judicial Service Commission for instance, to seek a reversal of a recommendation not to remove a judge by way of an application for review in this court.”…,.

(iii) Finally, while accepting that the President's exercise of his prerogative power may be subject to review, the court a quo concluded, that, the first respondent did not exercise prerogative power in acting upon the Tribunal's recommendations which could be reviewed.

In its finding, the only executive powers of the President that are subject to review are those in which he has discretion or where he is required to act by a specific piece of legislation.

The court a quo reasoned that in the present matter, the first respondent had no discretion whatsoever once recommendations had been made concerning the question of the removal of a judge. In its view, he was required to act on those recommendations.

It was principally on the basis of the foregoing findings and conclusions of law that the court a quo declined jurisdiction....,.

Thus, the pre-eminent issue commending itself for determination is whether or not the court a quo erred in concluding that it had no jurisdiction over the appellant's review application....,.

In Chombo v National Prosecuting Authority & Ors SC158-21…, the Court held that:

“In Mutukwa v National Dairy Co-operative Ltd 1996 (1) ZLR 341 (S), with respect to the High Court, but, applicable with equal force to this Court, it was held as follows:

'In any case, a question of jurisdiction is one which a court imbued with review powers may raise mero motu; for parties cannot confer jurisdiction on an adjudicating authority where such jurisdiction has not been conferred on that adjudicating authority by statute.'

In fact, for a court with review and/or appellate jurisdiction to overlook or fail to address the lack of jurisdiction of the court or tribunal whose decision or proceedings have been placed before it is to compound the irregularity, as that reviewing or appellate court's proceedings would be marred by the initial lack of jurisdiction of the court of first instance rendering them, in turn, to be a nullity.”

This is an appeal against a judgment of the Labour Court dismissing the first appellant's, a labour officer, application for confirmation.

The ruling was in favour of the second appellant, a former employee of the respondent, who was dismissed from employment sometime in March 2016 on allegations of certain acts of misconduct, including theft and/or fraud.

At the hearing of the appeal, we allowed the appeal and issued an order in the following terms:

IT IS ORDERED THAT:

1. The appeal be and is hereby allowed with no order as to costs.

2. The proceedings before the Labour Officer and the Labour Court be and are hereby set aside.

2.1 The matter is remitted to the Labour Court to be heard as an appeal against the decision of the Designated Appeals Officer in terms of section 92(1) of the Labour Act.

3. The second appellant herein shall file his Notice of Appeal to the Labour Court within 15 days from the date of this order.

3.1 Thereafter, the matter shall proceed in terms of the Labour Court Rules.

We indicated that reasons for judgment would follow. These are they.

The second appellant was employed by the respondent as an Administration Clerk in charge of cash sales. He was in the respondent's employ for a period running from May 1998 until March 2016 when he was dismissed from employment following allegations of misconduct.

The background relating to the dismissal is the following:

On 29 February 2016, the second appellant was issued with a charge letter detailing the grounds upon which the misconduct charges were premised. He was charged with theft or fraud in breach of section 4(d) of the Labour (National Employment Code of Conduct) Regulations, 2006 (S.I.15/2006), also commonly known as the Model Code of Conduct.

It was alleged, that, sometime in October to November 2015, he was assigned, by management, to backstop one Shayne Mbizi who was going on leave, and, that, during the course of that period the appellant failed to account for R1,780 and USD600 respectively.

The respondent alleged that during the period in issue, the second appellant had:

(a) On 29 October 2015, been given a cash sales book together with sales for that day. Among those sales was R1,780 as per receipt number 018461. The said amount was neither posted onto the daily cash book nor was it banked with the cash office as per the company practice.

(b) On 2 November 2015, received USD1,200 in cash sales but had only posted USD1,000 onto the cashbook. In terms of receipt number 018529, received a cash sale of USD286 but only USD186 was posted onto the cashbook.

(c) On 16 November 2015, posted USD120 from receipt number 018538 valued at USD220, and, as a result, USD100 was not remitted to the cash office.

(d) On 18 November 2015, a receipt number in the name of a client, one Thomas Knowledge, indicated a cash payment of USD546 but only USD446 was posted onto the cash sale.

In response to the charge letter, the second appellant accepted indebtedness of the USD600, and, as far as the issue of the missing R1,780 was concerned, he requested that further investigations be conducted.

Pursuant to the charges, disciplinary proceedings were conducted wherein the second appellant was found guilty and dismissed from employment.

An internal appeal was lodged to the Appeals Committee which upheld the decision of the disciplinary authority.

Thereafter, the second appellant approached the Ministry of Public Service, Labour, and Social Welfare with a complaint of unfair dismissal.

The parties then appeared before the first appellant for conciliation.

They reached a stalemate, which led to the subsequent issuance of a Certificate of No Settlement.

The first appellant, the labour officer, then proceeded to deal with the matter in terms of section 93(5)(c) of the Labour Act [Chapter 28:01].

Before the labour officer, the second appellant raised six grounds of appeal in which he contended, that, he had been wrongly accused of the said charges. He further argued, that, the acknowledgment of debt, which he is said to have purportedly written, was fabricated. In his final submissions, the second appellant argued, that, these charges were a ploy by the respondent to deprive him of his retrenchment package.

The respondent opposed the second appellant's case in all material respects.

Following the arguments, the labour officer made a ruling in favour of the second appellant. She overturned the decision of the Disciplinary Committee on the basis, that, the respondent had failed to prove its case beyond a reasonable doubt. In arriving at this decision, reliance was placed on the case of Astra Industries Ltd v Chamburuka SC27-12.

The labour officer consequently ordered the reinstatement of the second appellant without loss of salary and benefits.

It is this ruling which was subject of confirmation before the court a quo in terms of section 93(5a) and (5b) of the Labour Act.

The application for confirmation was opposed.

The issue for determination before the court a quo was whether or not the second appellant was unfairly dismissed.

Contrary to the findings of the labour officer, the court a quo held that the onus of proof in disciplinary proceedings was on a balance of probabilities.

The court a quo held, that, the labour officer had erred in placing reliance on Astra Industries Ltd v Chamburuka SC27-12.

In assessing the charge, on a balance of probabilities, the court a quo found that there was no unfair dismissal and proceeded to dismiss the application for confirmation.

Aggrieved by the decision of the court a quo, the second appellant noted an appeal to this Court on the following grounds:

“(a) The court a quo erred on a point of law in finding, that, the second appellant (the employee) had the onus to prove the admitted fact, that, in compiling the electronic cash book, he had relied only upon the cashier's handwritten notes.

(b) Further, the court a quo erred on a point of law in not finding that the respondent had failed to prove the essential elements of theft or fraud.

(c) Further, the court a quo misdirected itself in interfering with the labour officer's factual findings which had not been proved to be irrational or grossly unreasonable.”

Although the labour officer was cited as the first appellant she has not participated in this appeal nor has she filed any documents.

That is the proper way of dealing with the dispute, as she is not a litigant.

She would only have filed the application for confirmation in compliance with the law. She would therefore have no interest in the matter and we heard the appeal in her absence.

In his heads of argument, the second appellant argued, that, the court a quo erred in holding that he, the second appellant, had the onus to prove an admitted fact.

The appellant argued, that, the nature of the court a quo's misdirection in that regard was such that the conclusion arrived at by the court a quo was per incuriam.

The appellant further argued, that, the court a quo erred when it failed to make a finding that the respondent had failed to prove the essential elements of theft or fraud.

It was his argument that the respondent failed to prove its case, even on a preponderance of probabilities, and, as such, the court a quo ought not to have found in its favour.

In his final submissions, the appellant averred that the court a quo misdirected itself when it interfered with the factual findings of the labour officer without a finding of irrationality on the part of her decision.

Per contra, the respondent argued that the key issue for determination was whether or not the court a quo had erred in making its decision.

The respondent argued, that, the burden of proof in labour proceedings was proof on a balance of probabilities; therefore, the appellant had failed to interpret the position in Astra Industries Ltd v Chamburuka SC27-12.

It further argued, that, what determines where the onus of proof lies is the person who makes the allegations. In casu, the respondent argued, that, it was the appellant making the allegations, and, therefore, on principle, he must be able to prove the point.

The respondent further argued, that, the court a quo was not in error, as such, the appeal ought to be dismissed with costs.

Although the parties have made arguments on the merits, it is our view that a more fundamental issue, pertaining to the procedure adopted by the parties, including the labour officer, in the resolution of the matter, arises in this case.

It is imperative to note, that, a claim for unfair dismissal was brought by the second appellant in terms of SI 15/2006 subsequent to the dismissal of an appeal by the appeals authority.

The court notes, that, the disciplinary authority, when hearing the matter, made factual findings which were confirmed by the designated Appeals Officer.

It is against this background that the court takes the view, that, a properly considered critical analysis of the proceedings before the labour officer, under section 93 of the Labour Act, be made to establish whether or not those proceedings in question were properly before the labour officer in the first place.

In that regard, the issues that arise for determination are the following:

(i) The ambit of the jurisdiction of a labour officer, under section 93 of the Labour Act, where a matter is referred to him or her in terms of section 8(6) of the Labour (National Employment Code of Conduct) Regulations S.I. 15 of 2006, otherwise referred to as the Model Code of Conduct; and

(ii) Consequent thereto, whether or not the subsection is consistent with sections 101 and 92D of the Labour Act [Chapter 28:01] (the Act) as well as section 12B thereof.

The appellant abandoned grounds 3 and 7 which were raising constitutional issues not dealt with in the court a quo.

It was the respondents argument before the Supreme Court, which was upheld, that it was this court, not the applicants, which had improperly formulated the cause of action on which it had eventually granted them relief.

I turn, first, to the Supreme Court decision.

The finding by the Supreme Court, that, the applicant had not lodged an objection with the first respondent to trigger the exercise of discretion by the first respondent in terms of the then Rule 359 of the High Court Rules was clearly not in answer to any of the issues that arose from the appeal or could have risen therefrom.

This is so because it was common cause amongst the parties, that, the applicant was not afforded the mandatory fifteen days within which to lodge the objection to the second sale.

It was this denial of the right, created and afforded him by the law, which triggered the litigation before the High Court.

In the circumstances of this application, the conclusion that the Supreme Court did not determine the real issue that was placed before it by the appeal is unavoidable.

The import of a failure by the Supreme Court to deal with the issues raised by the appeal has been discussed in a number of decisions of the Supreme Court itself: see Nzara & Others v Kashumba N.O. and Others SC18-18; A Adam & Company (Private) Limited & Others v Good Living Real Estate (Private) Limited & Others SC18-21; Zimbabwe Revenue Authority v Packers International (Private) Limited SC28-16; and Gwaradzimba N.O. v C.J. Petron & Company (Proprietary) Limited SC12-16.

It is the settled position that any failure to determine the issue or issues arising from the dispute between the parties is a misdirection gross enough to vitiate the order made at the end of the hearing.

The Supreme Court has held, that, it is improper for any court to either stray from the issues arising from the pleadings or to pick up an issue for the parties and determine the dispute on the basis of the issue so created by it.

This is the standard that the Supreme Court, as the apex court in all common law matters, has, since time immemorial, set and enforced upon the procedures and decisions of lower courts.

It is therefore the standard against which its own procedures and decisions must, in turn, be measured.

It is trite, that, a claim or cause of action should be based on the founding affidavit and that new matters should not be raised in the answering affidavit.

In the case of Mangwizi v Ziumbe NO and Anor 2000 (2) ZLR 489 (S)…, SANDURA JA quoted with approval the following by GARDINER JP in the case of Coffee, Tea & Chocolate Co. Ltd v Cape Trading Company 1930 CPD…,.:

"A very bad practice, and one by no means uncommon, is that of keeping evidence on affidavit until the replying stage, instead of putting it in support of the affidavit filed upon the notice of motion. The result of this practice is either that a fourth set of affidavits has to be allowed or that the respondent has not an opportunity of replying. No affidavits…, should, in my opinion, properly have been put in support of the notice of motion. They are not a reply to what has been said by the respondent, and, I am not prepared to allow them to be put at this stage."

In view of the fact, that, virtually all the annexures attached to the answering affidavit and related averments therein should have formed part of the applicant's founding affidavit, as they relate to the facts that the respondents would have wanted, but cannot, respond thereto, they are not properly before the court, have unduly wasted the court's precious time and should be disregarded.