Pleadings re: Belated Pleadings, Matters Raised Mero Motu by Court and Doctrine of Notice iro Approach

SC86-22 : CITY OF HARARE vs EVARISTO MUNGATE
Ruled By: GOWORA JA, MAKONI JA and BERE JA

After hearing counsel, in the matter, we dismissed the appeal with costs and indicated that reasons would follow in due course. Below are the reasons for judgment.This is an appeal against the whole judgment of the High Court upholding the respondent's claim for damages arising from the appellant's negligence.THE BACKGROUND ...

After hearing counsel, in the matter, we dismissed the appeal with costs and indicated that reasons would follow in due course. Below are the reasons for judgment.

This is an appeal against the whole judgment of the High Court upholding the respondent's claim for damages arising from the appellant's negligence.

THE BACKGROUND FACTS

On 28 March 2014, at around 19:00 hours, near Lyon's Maid offices, along Simon Mazorodze Road, the respondent fell into the appellant's uncovered drainage tunnel commonly referred to as a “catch pit.” He was rushing to board a commuter omnibus which he had waved down. He broke his leg, sustaining a permanent limp. The catch pit is situated on a traffic island which is between Simon Mazorodze Road and a pedestrian or foot path.

Subsequently, on 23 September 2014, the respondent issued summons against the appellant claiming damages amounting to US$305,796; interest thereon, and costs of suit.

The breakdown of the damages claimed by the respondent was as follows:

(a) Shock, pain, and suffering US$50,000;
(b) Loss of amenities of life US$100,000;
(c) Disability US$100,000;
(d) Medical expenses US$5,796;
(e) Contumelia US$50,000;

The respondent averred, that, the appellant was liable for the injuries he suffered and ensuing damages as it had failed to either cover or put up any cautionary signs to warn pedestrians of the existence of the uncovered catch pit.

In its plea, the appellant denied liability in toto stating that it was not negligent in any way, nor was it liable for the respondent's injury, loss incurred, and damages claimed. It put the respondent to the strict proof thereof.

It further averred, that, the misfortune that befell the respondent was a result of the respondent's negligence since he failed to keep a proper lookout and acted without due care and attention.

The appellant prayed for the dismissal of the respondent's claim.

PROCEEDINGS IN THE COURT A QUO

The following issues were referred to trial:

“(i) Whether or not the defendant(s) are liable for injuries allegedly suffered by the plaintiff.

(ii) Whether the plaintiff's injuries were not a result of Plaintiff's own negligence and failure to keep a proper outlook.

(iii) Whether or not the defendant(s) are liable to pay any damages whatsoever.

(iv) If the defendant(s) are liable, what is the quantum thereof.”

The respondent was the sole witness in his case.

He testified that he fell into a pit whilst running to catch a lift that he had waved down. He stated that several factors contributed to his fall:

(i) Firstly, the area was unlit because of the absence of street lights.

(ii) Secondly, the area surrounding the pit was covered with tall grass which obscured the pit.

(iii) Thirdly, there was no cover over the catch pit.

(iv) Fourthly, there was no warning sign to caution him of the existence of the pit.

The respondent stated, that, under such circumstances, it was difficult for him to see the catch pit.

He also stated, that, the appellant was liable since council's employees had admitted the pit had been constructed and was under the maintenance of the appellant.

The respondent also produced photographs showing the surrounding area and the pit which he had fallen into, the evidence of the medical expenses which he incurred as a result of the injuries sustained and a report by a medical doctor stating that he suffered a 15 percent permanent disability.

The respondent substantiated his claim for damages stating, that, further to the injuries he sustained from the fall, he had been subjected to embarrassment, had suffered, and continued to suffer pain and shock, had lost amenities of life in that he could not earn extra income as he used to, or attend festivals, run, jog or dance.

In its defence, the appellant led evidence through one George Munyonga, who is a Deputy Chief Engineer employed by the appellant, responsible for maintaining road infrastructure.

He conceded that the catch pit belonged to the appellant and that from the evidence presented before the court, the catch pit was not covered by a steel grating.

However, he took issue with the alleged severity of the respondent's injuries and argued that the injuries sustained by the respondent were not consistent with a fall into a catch pit.

He also testified, that, even if it was established that the respondent had fallen into the appellant's pit and sustained injuries as claimed, these were as a result of the respondent's own negligence.

He stated, that, the respondent had been negligent in crossing the road as he did since he was familiar with the road and would have known of the existence of the various catch pits along the road. He further stated, that, he must have known that there was a possibility of an accident. Further to that, the respondent ran across a traffic island instead of using the pedestrian path. He also sought to board a vehicle at an undesignated bus stop and he ought to have taken more care as the area was unlit.

Issue was also raised in relation to the fact, that, there was a three months delay between the occurrence of the accident and the time the respondent notified the appellant of the accident.

Mr Munyonga conceded that a catch pit without a cover poses a hazard to humans and that it is the appellant's duty to carry out regular maintenance by carrying out inspections and repairs to catch pits every three months. He also conceded that if it was dark, the respondent could not have seen the catch pit, even with a proper lookout. He also affirmed, that, it was impossible for one to board transport from the pedestrian path without crossing over the island where the catch pit was located. He also stated that along the road in question several theft cases of stolen steel gratings covering the pits had been reported.

He however stated, that, the process of replacing the steel covers required funding and since the appellant was going through a cash crunch, there were delays in procuring the necessary infrastructure.

DETERMINATION OF THE COURT A QUO

After considering the parties arguments and evidence placed before it, the court a quo found in favour of the respondent.

It concluded, that, the respondent broke his leg as a result of falling into the appellant's catch pit. The court further held, that, the appellant was liable for the respondent's injuries and that the requirements of the standard test for negligence, as enunciated in Kruger v Coetzee 1966 (2) SA 428…, had been met. The harm was reasonably foreseeable; a diligens pater familias would have taken reasonable steps to guard against such occurrence and no such steps were taken.

The court a quo further held, that, uncovered catch pits posed a deadly hazard to the public and the appellant had a legal duty to ensure that they were regularly inspected and properly covered. It was reasonably foreseeable that an uncovered catch pit could pose danger to the public. Further to this, the appellant was aware of such cases, as several cases of such a nature had been reported to the appellant before. The appellant should have carried out regular inspections of the catch pits; replacing the missing lids; mowing the grass around the catch pits to ensure visibility; maintaining adequate street lighting to ensure visibility at night; erecting danger warning signs to warn members of the pubic of the existence of open catch pits; and erecting barriers to block public access to the catch pits.

The appellant had failed to take these steps and thus failed to do its duty and could not be absolved from liability. It further held, that, the respondent's explanation for the delay was plausible considering the severity of the injuries he sustained.

The court a quo further found, that, the respondent may have been negligent by running in the dark when he could not properly see where he was stepping, as he was obscured by tall grass. The risk of tripping and falling, even in the absence of a catch pit, could not be ruled out.

The court, however, concluded that the respondent's negligence was not the proximate cause of the fall.

The proximate cause of the fall was the absence of the catch pit cover. The court stated that if the catch pit had been covered, even if the plaintiff had walked on the island where he was not supposed to, or if he had run in the dark when he could not properly see, he would not have fallen into the catch pit.

Accordingly, the court upheld the respondent's claim and awarded damages amounting to US$9,769. The computation was as follows:

1. US$796 being damages for medical expenses.
2. US$2,000 being damages for shock, pain and suffering.
3. US$1,000 being damages for loss of amenities of life.
4. US$1,000 being damages for disability.

The court, however, dismissed the respondent's claim for damages for contumelia on the basis that he had failed to prove intention, on the part of the appellant, to humiliate him or cause embarrassment to him.

Regarding costs, the court awarded the respondent costs of suit since he had succeeded in his claim.

However, it expressed displeasure at the respondent's ridiculously high and unrealistic claims for damages which, in its view, would have hindered chances of the matter being settled at pre-trial conference stage. It stated that damages are meant to compensate the injured party and not to punish the wrongdoer, and, further, that damages should reflect the state of economic development and the current economic conditions of the country.

Aggrieved by this outcome, the appellant noted this present appeal based on the following grounds:

GROUNDS OF APPEAL

“(i) The court a quo erred in coming to the conclusion, that, there was no contributory negligence by the respondent. It also erred in that it misapplied the 'proximate cause' principle leading to the incorrect conclusion, that, despite being negligent, plaintiff did not contribute to the accident.

(ii) Furthermore, the court erred in its apportionment of damages as a consequence of its failure to apportion blame. It so erred in that an appropriate apportionment of blame would have reduced the amount of damages payable by the appellant at least by half.

(iii) In any event, the decision of the court a quo, as it relates to the issue of contributory negligence, is so outrageous in its defiance of logic that no reasonable person applying his mind to the question to be decided would have arrived at such a conclusion.

(iv) At any rate, the court erred by ordering appellant to pay costs having found that the respondent was equally to blame for the litigation which could have been avoided.”

SUBMISSIONS IN THIS COURT

The appellant's major contention was that some measure of liability must be attributed to the respondent as this was a classical case where the doctrine of contributory negligence was applicable.

Counsel for the appellant submitted, that, the court a quo misapplied the 'proximate cause' principle in the sense that there was more than one proximate cause of the accident. He argued that there were multiple acts of negligence by both the appellant and the respondent which contributed to the accident.

Accordingly, damages should be apportioned in terms of section 4 of the Damages (Apportionment and Assessment) Act [Chapter 8:06], reducing the damages payable by the appellant in half.

Pertaining to the issue of costs, counsel for the appellant argued, that, each party ought to bear its own costs since the respondent was equally to blame for the accident and the litigation because of the unrealistic claims he made which militated against a possible settlement.

Counsel for the respondent, on the other hand, contended that the appellant should have specifically pleaded the defence of contributory negligence and the appropriate relief for apportionment of damages.

It ought to have, at least, set out detailed grounds showing the respondent's negligence and how he contributed to the occurrence of the accident. The issue was not covered in the pleadings, as such, the court a quo could not have canvassed the issue in its judgment in the circumstances.

Counsel for the respondent further stated, that, the court a quo was correct in finding that whatever negligence attributable to the respondent, such negligence was not the cause of the loss. He averred that whatever negligence attributable to the respondent was “negligence in the air” as the respondent would not have been injured but for the existence of the uncovered catch-pit.

The respondent also argued, that, the determinant factor before damages could be apportioned is that the respondent's negligence must have caused the loss. However, the court a quo found, as a fact, that the appellant was the actual cause of the harm suffered by the respondent.

Regarding costs, counsel for the respondent submitted, that, in the absence of a demonstration that the court a quo grossly erred in its exercise of discretion, there would be no basis for interfering with the court a quo's order of costs.

As for the damages, the respondent also argued, that, the appellant had not established a substantial variation or striking disparity between the trial court's award and what the Appellate Court would have awarded, neither had it been proved that the court a quo did not have a sound basis for awarding damages at that scale.

ISSUES FOR DETERMINATION

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

(i) Whether or not the court a quo fell into error when it found that the respondent was negligent and then failing to find that there was contributory negligence thereby misapplying the proximate cause principle?

(ii) Whether the court a quo erred in ordering the appellant to pay the costs of suit?

THE LAW

Fault

The case of Kruger v Coetzee 1966 (2) SA 428 …, lays down the standard test for negligence, which is:

(i) Whether the harm was reasonably foreseeable;

(ii) Whether the diligens pater familias would have taken reasonable steps to guard against such occurrence; and

(iii) Whether the defendant failed to take those steps.

In United Bottlers (Private) Limited v Shambawamedza 2002 (1) ZLR 341 (S)…, this Court stated:

“It has been said that negligence is a question of fact, and the onus of proving it is on the party alleging it. A person is negligent if he did not act as a reasonable man would have acted in the particular circumstances. He will be held liable for the actual consequences of his negligence which are reasonably foreseeable.”

In Cape Town Municipality v Paine 1923 AD 207…, INNES CJ said:

“It has repeatedly been laid down in this Court that accountability for unintentional injury depends upon culpa - the failure to observe that degree of care which a reasonable man would have observed. I use the term reasonable man to denote the diligens paterfamilias of Roman Law - the average prudent person.

Every man has a right not to be injured in his person or property by the negligence of another, and that involves a duty on each to exercise due and reasonable care.

The question whether, in any given situation a reasonable man would have foreseen the likelihood of harm, and governed his conduct accordingly, is one to be decided in each case upon a consideration of all the circumstances. Once it is clear that the danger would have been foreseen and guarded against by the diligens paterfamilias, the duty to take care is established, and it only remains to ascertain whether it has been discharged.”

See also: Lomagundi Sheetmetal & Engineering (Private) Limited v Basson 1973 (1) RLR 356 (A)…,.; (4) SA (RAD) 523…,.

CONTRIBUTORY NEGLIGENCE

The defence of contributory negligence is provided for in section 4 of the Damages (Apportionment and Assessment) Act [Chapter 8:06] (“The Act”). It provides:

“(1) Where any person suffers damage which was caused partly by his own fault and partly by the fault of any other person, a claim in respect of that damage shall not be defeated by reason of the fault of the claimant, but, the damages awarded in respect thereof shall be reduced by the court to such extent as the court may deem just and equitable having regard to the respective degrees of fault of the claimant and of such other person in so far as the fault of either of them contributed to the damage.”

The defence must be pleaded and the appropriate relief of an apportionment of damages must be claimed in the plea in the alternative.

In Lewis v Mushangi & Anor HB41-99; 1999 (1) ZLR 506 (H) the court stated that:

“The general rule is that the alternative defence of contributory negligence must be pleaded and the appropriate relief of an apportionment of damages must be claimed in the plea.”

In Mugari v Machiri SC164-87; 1987 (1) ZLR 164 (SC)…, this Court stated that:

“It may not be fatal to fail to allege apportionment (see Cooper and Bamford South African Motor Law at pages 287-8) but it is certainly highly desirable that a defendant should, in the alternative, set out the grounds on which he alleges that the plaintiff was negligent and thereby contributed to the occurrence of the accident.”

It is for the defendant to prove that the plaintiff was negligent and that his negligence was causally connected to the damages suffered by the plaintiff.

APPLICATION OF THE LAW TO THE FACTS

It is the appellant's contention, that, the court a quo fell into error when it failed to make an order that damages be apportioned between the parties considering that the respondent had contributed to the damages he suffered.

On the contrary, the respondent contends, that, he was not negligent at all and that the appellant did not put in issue the contributory negligence of the respondent in its plea and therefore it should not have been canvassed in the judgement of the court a quo.

The starting point is to determine whether the respondent was negligent, and, if so, whether his negligence was causally linked to the damages he suffered.

It is common cause, that, the appellant, in its plea in the court a quo, disputed the respondent's claim in its totality and prayed that the respondent's claim be dismissed with costs.

It did not, in the alternative, specifically plead contributory negligence and pray for an appropriate relief of apportionment of damages.

Nor did it set out, in meaningful detail, the respects in which it was alleged that the plaintiff had been negligent.

In its plea, after denying all averments by the respondent, it stated the following:

“In any event, plaintiff's misfortune, if any, was a failure to keep a proper look out and acting without due care and attention.”

The issue of the alleged respondent's contributory negligence then, somehow, came out, for the first time, in the joint Pre–Trial Conference Minute. It was settled as one of the issues for trial.

The case of Mashonaland Tobacco Company (Private) Limited v Mahem Farms (Private) Limited and Anor SC152-20…, aptly sums the general principle regarding the necessity of pleading a cause of action:

“As a general rule, judgment cannot be granted on a cause of action that is not pleaded. The pleadings must clearly set out the precise parameters of the issues contested between the parties. Thus, in the Namibian case of Courtney-Clarke v Bassingthwaighte 1991 (1) SA 684 (Nm) at 698, it was explained that:

'…, there is no precedent or principle allowing a court to give judgment in favour of a party on a cause of action never pleaded, alternatively, there is no authority for ignoring the pleadings…, and giving judgment in favour of a plaintiff on a cause of action never pleaded. In such a case, the least a party can do if he requires a substitution of or amendment of his cause of action, is to apply for an amendment.'”

During cross examination of the plaintiff, by the appellant's counsel, various particulars of negligence were put to the respondent. These include that he waved down a commuter omnibus where there was no designated bus stop; he ran in the dark and could not see where he was stepping on; he could see that the grass was unkempt and long but still proceeded.

The learned author ISAACS in Beck's Theory and Principles of Pleading in Civil Actions, 5th ed…, makes some very pertinent observations regarding general rules as to pleading:

“It is the duty of defendant to set out his plea in such a manner as to enable the plaintiff to know the nature of the defence. If the defendant admits facts in the declaration, it is not necessary for the plaintiff to prove these facts, and thus those facts are not in issue in the trial. The plaintiff is entitled to know the limits of the defence in clear and concise manner.”

See also Medlog Zimbabwe (Private) Limited v Cost Benefit Holdings (Pvt) Ltd SC24-18; 2018 (1) ZLR 449 (S)…,.

In casu, the appellant, as the defendant in the court a quo, did not, in my view, set out its plea in such a manner as to enable the respondent to fully appreciate the nature of its defence.

In Keavney & Anor v Msabaeka Bus Services (Pvt) Ltd 1996 (1) ZLR 605 (S)…, the following point was made:

“A pleader cannot be allowed to direct the attention of the other party to one issue, and then, at the trial, attempt to canvass another; as MILNE J (as he then was) put it in Kali v Incorporated General Insurance Ltd 1976 (2) SA 179 (D) at 182A.

'The purpose of pleadings is to define the issues and to enable the other party to know what case he has to meet' per MULLINS J in Niewoudt v Joubert 1988 (3) SA 844 (C). See also DD Transport (Pvt) Ltd v Abbot 1988 (2) ZLR 92 (S) at 101F-G.”

Further down on the same page, at D-E, the following findings were made:

“The failure, in this case, to plead the real defence, suggests one or other of three possible explanations:

1. Sheer idleness and incompetence on the part of the pleader.

2. A deliberate and unconscionable attempt to avoid attracting an onus or 'burden of adducing evidence'.

3. That the defence was an afterthought on the part of the defendant.

4. The learned judge who heard the matter made no comment on all this.”

To compound matters, the judge seized with the Pre-Trial Conference let in an issue which did not arise from the pleadings.

The court a quo made the following findings on the issue of the plaintiff's negligence:

“It is not in dispute that when the plaintiff fell into the catch pit, he was rushing to board a commuter omnibus which he had waved (sic) down at a place which is not a bus stop. Bus stops have been put in place by Council to stop members of the public from boarding transport at places which pose danger to them and to prevent commuters from having to run after vehicles as the plaintiff did on the fateful day.

As correctly submitted by the defendant, Council put in place bus stops to minimize road accidents.

From the pictures which were produced by the plaintiff, it is clear that there is no bus stop near the catch pit he fell into. He had therefore stopped the commuter omnibus at an undesignated pick up point. This prompted him to run across the island where the catch pit was instead of walking along the pedestrian path provided after the island. The catch pit is strategically positioned on the side of the road to drain storm water.

George Munyonga explained, that, as a safeguard measure, catch pits are deliberately located on the island because people are not supposed to walk on the island but on the pedestrian path. He said that the island is not a walk way or run way.

It is admitted, that, if the plaintiff had not walked on the island in the dark he would not have fallen into the catch pit. Pedestrians do not walk or board transport wherever they deem. Vehicles also do not stop to pick up passengers wherever they feel like. They should do so at designated pick up points. The plaintiff was running in the dark when he could not properly see where he was stepping. He could also see that the grass was unkempt and it was long. The motor vehicle had stopped for him. So, there was no need for him to run, especially considering that he could not see properly. The risk of tripping and falling, even in the absence of a catch pit, could not be ruled out in such circumstances.”

In making the above findings, the court a quo relied on what was put to the respondent during cross examination - which issues did not arise from the pleadings.

The judge a quo concluded, that, the respondent was negligent by not waiting for transport at designated bus stops.

This was never the appellant's defence, and, the court fell into error in making that finding in the absence of evidence that there are designated stops along that road.

The claim for apportionment seems to emanate from that conclusion.

SC94-19 : ZIMBABWE ANTI CORRUPTION COMMISSION vs GIBSON MANGWIRO and CHRISTOPHER CHISANGO
Ruled By: MAVANGIRA JA

This is an application that is headed “Chamber Application for Condonation of Late Filing of Application for Leave to Appeal in terms of Rule 61 of the Supreme Court of Zimbabwe Rules 2018.”BackgroundThe respondents were employed by the applicant. On 14 June 2016 they were brought before a disciplinary committee ...

This is an application that is headed “Chamber Application for Condonation of Late Filing of Application for Leave to Appeal in terms of Rule 61 of the Supreme Court of Zimbabwe Rules 2018.”

Background

The respondents were employed by the applicant. On 14 June 2016 they were brought before a disciplinary committee on allegations of misconduct. They were found guilty. This culminated in their discharge from employment on 14 July 2016.

Aggrieved by the decision, the respondents filed with the Labour Court (the court a quo) an application for review of the proceedings.

The court a quo set aside the dismissal of the respondents. It remitted the matter for a re-hearing before “a properly constituted disciplinary committee.” It also ordered that the respondents “revert to the status quo ante which was suspension pending the disciplinary hearing.”

Aggrieved by the decision of the court a quo, the applicant sought the court a quo's leave to appeal against its decision to this Court.

On 17 August 2018, the court a quo dismissed the application for leave to appeal.

On 28 August 2018, the applicant filed with the Supreme Court a chamber application for leave to appeal, its right to do so deriving from section 92F(3) of the Labour Act [Chapter 28:01]. The application was set down for hearing on 19 October 2018, but was, on that date, struck off the roll.

On 5 April 2019 this application was filed.

The respondents opposed it.

The matter was set down for hearing on 26 July 2019, but was only eventually heard on 20 August 2019.

THIS APPLICATION

Preliminary Issue

At the onset of proceedings, counsel for the respondents raised what he termed a composite preliminary point, to the effect that the matter was not properly before the court and must be struck off the roll with costs.

Counsel for the respondents submitted, that, Rule 61 of the Rules of this Court, in terms of which the applicant has purported to bring this application, is inapplicable in this matter as the Rule only relates to applications for condonation of failure to note an appeal timeously and extension of time for instituting the appeal.

He submitted that Rule 61 of the Supreme Court Rules relates to situations where leave to appeal (where necessary) would have been granted in terms of Rule 60 and a party fails to file its notice of appeal within the time frame stipulated in Rule 60(2) of the Supreme Court Rules. Such a party would then have recourse to Rule 61 and make an application in which it shows special circumstances why its failure should be condoned and extension of time granted.

Counsel for the respondents further submitted, that, the applicant ought to have proceeded in terms of the relevant provisions in Part VI of the Rules. He also made reference to Part VII headed “Miscellaneous Appeals and References” with particular emphasis on Rule 64 of the Supreme Court Rules which provides, that, in the case of a lacuna, the provisions of Part VI shall apply.

The second aspect of the preliminary point was that the applicant's founding papers do not set out factual averments for motivation of extension of time, thereby compounding the impropriety of the application.

Counsel for the applicant, on the other hand, submitted that the application is properly made in terms of Rule 61 of the Supreme Court Rules and is properly before the court.

He submitted, that, Rule 61 of the Supreme Court Rules provides for a “composite or in-series” application and is not only meant for situations where leave to appeal has been granted. He further submitted, that, what the applicant seeks from this Court in this application is “condonation and extension of time to seek leave to appeal.”

If Rule 61 of the Supreme Court Rules is inapplicable, as contended on behalf of the respondents, then, this application ought to be struck off the roll as the court would have no jurisdictional basis on which to relate to it on the merits.

Analysis

Rule 61 of the Supreme Court Rules provides:

“Applications for extension of time to appeal

Save where it is expressly or by necessary implication prohibited by the enactment concerned, a judge may, if special circumstances are shown by way of an application in writing, condone the late noting of the appeal and extend the time laid down, whether by Rule 60 or by the enactment concerned, for instituting an appeal.”

The context of Rule 61 is as a sequel to Rule 60 of the Supreme Court Rules which reads:

“Time within which notice to be given

60(1) Subject to the provisions of Rule 61 and the enactment under which the appeal is lodged, a notice of appeal shall be delivered and filed in accordance with the provisions of Rule 59 within 15 days of the date of the decision appealed against.

(2) An appeal from a decision of the Labour Court in terms of section 92F of the Labour Act [Chapter 28:01] shall be delivered and filed with a registrar within 15 days from the grant of leave to appeal by the Labour Court, or, where such leave is refused, within 15 days from the grant of leave by a judge:

Provided that where leave to appeal is refused by the Labour Court, the applicant shall apply for leave to appeal to a judge within ten days of the refusal to grant leave.”

The right to make an application pursuant to the above quoted proviso to Rule 60(2) of the Supreme Court Rules derives or emanates from section 92F(3) of the Labour Act which provides:

“(1) An appeal on a question of law only shall lie to the Supreme Court from any decision of the Labour Court.

(2) Any party wishing to appeal from any decision of the Labour Court, on a question of law, in terms of subsection (1), shall seek from the President who made the decision leave to appeal that decision.

(3) If the President refuses leave to appeal in terms of subsection (2), the party may seek leave from the judge of the Supreme Court to appeal.”

According to the applicant's founding affidavit, the striking off by this court on 19 October 2018 of the application that had been timeously filed on 28 August 2018 was by consent of the parties, and, it was for the reason that “the appeal record…, was not attached to the application.”

That application having been struck off the roll, the applicant was well within its rights to approach this Court, again, as it has done, by way of the instant application.

Unfortunately, however, the applicant has approached this court in terms of Rule 61 of the Supreme Court Rules as already indicated above.

Rule 61 of the Supreme Court Rules provides for an application to be made for the court to “condone late noting of the appeal and extend the time laid down.”

There is no reference to condonation of failure to apply for leave to appeal timeously. Neither is there any provision in Part VII under which Rule 61 of the Supreme Court Rules falls, that provides for such.

However, Rule 64 of the Supreme Court Rules (in Part VII) provides:

“In the event of any casus omissus in this Part, the provisions of Part VI shall apply, mutatis mutandis.”

In Part VI which is headed “Applications for leave to appeal or extension of time to appeal” Rule 43(3) of the Supreme Court Rules provides as follows:

“An application for condonation of non-compliance with the rules and for extension of time in which to appeal shall have attached to it a notice of appeal containing the matters required in terms of subrule (1) of Rule 37 and an affidavit setting out the reasons why the appeal was not entered in time or leave to appeal was not applied for in time. Counsel may set out any relevant facts in a statement. Where such application is in relation to a matter in which leave to appeal is necessary the application shall, in addition, comply with the requirements of subrule (2).”

Subrule (2) reads:

“An application for leave to appeal shall set out the date on which the High Court refused leave to appeal and shall have attached to it –

(a)…,.

(b)…,.

(c)…,.”

Rule 43(3) of Part VI, applying herein mutatis mutandis, would provide for the making of an application for condonation of non-compliance with the proviso to Rule 60(2) of the Supreme Court Rules, viz, the failure to apply for leave to a judge of this Court within ten days of the refusal to grant leave by a judge of the court a quo.

Subrule (8) of Rule 43 of the Supreme Court Rules is also pertinent in its provision, that:

“If leave to appeal or condonation and extension of time to appeal is granted, the appeal shall be deemed to have been instituted in accordance with the notice of appeal filed in the application on the date on which leave is granted, unless the judge otherwise orders.”

I might comment, in passing, on the draft Notice of Appeal filed together with the application.

It seeks to appeal against the judgment of the court a quo dismissing the applicant's application for “upliftment of bar and condonation of late filing of an application for leave to appeal to the Supreme Court” (sic). The ultimate relief sought, besides being improperly drafted, is for the setting aside of the order refusing leave to appeal and purportedly the substitution thereof with an order that reads:

“The application for upliftment of bar and condonation of filing of application for leave to appeal to the Supreme Court be and is hereby granted.” (sic)

The notice of appeal is therefore not meant to institute an appeal against the decision of the court a quo in the main matter for which leave to appeal was originally sought before the court a quo. The applicant seems to labour under a misconception or probably confusion as to the course it ought to follow.

In essence, the applicant seeks before a judge of this Court condonation for its non-compliance with Rule 60 of the Supreme Court Rules upon which a judge of this Court will then allow it to file its application for leave to appeal within five days of this court's order.

This accords not only with counsel for the applicant's submission cited earlier but with the terms of the draft order that it prays for in this application which reads as follows:

“IT IS ORDERED THAT:

1. The non-compliance with Rule 60 of the Supreme Court Rules be and is hereby condoned.

2. Application for condonation of late filing of application for leave to appeal in terms of Rule 61 of the Supreme Court Rules be and is hereby granted.

3. The applicant is to file its application for leave to appeal within 5 days of this order.

4. That there be no order as to costs.”

The applicant seems unclear as to the correct procedure to be followed.

Its application for leave to appeal having been dismissed by the court a quo, it then applied to this Court for the leave that it supposedly craved. Its first application to this Court was allegedly timeously made, but, unfortunately, for the applicant it was struck off the roll.

It then filed this application.

The “disconnect” now appears from the relief sought herein. The applicant now seeks to go back to the court a quo to seek the very leave that section 92F(3) of the Labour Act and the proviso to Rule 60(2) of the Supreme Court Rules require that it seeks from this Court.

In University of Zimbabwe v Jirira & Another SC12-18 BHUNU JA aptly stated:

“In terms of section 92F(3) of the Labour Act [Chapter 38:01], where a judge of the Labour Court refuses to grant leave to appeal, the applicant may seek leave from a judge of this Court. When a judge of the Supreme Court sits in chambers to decide the application for leave to appeal, he does not treat the application as an appeal against the refusal to grant leave by the court a quo. He simply decides the matter on the merits as if it was fresh application before him/her.”

On a view of the applicable law, as provided in section 92F of the Labour Act as well as Rule 60(2) of the Supreme Court Rules, it is clear that when a party seeks before a judge of this Court leave to appeal, such leave is for the purpose of appealing against the decision in the main matter and not against the refusal to grant leave.

This court cannot possibly be asked to grant leave to the applicant for the applicant to go back to the court a quo for the purposes of seeking leave to appeal as that would be an absurd outcome.

The application in casu is fundamentally flawed. It is not properly before me as it is predicated on an inapplicable Rule and ought to be struck off the roll for that reason.

The applicant ought to have been guided by Rule 43(3) of the Supreme Court Rules and ought to have filed a composite application for;

(i) Firstly, condonation and extension of time within which to apply for leave to appeal to a judge of the Supreme Court; and

(ii) Secondly, leave to appeal.

In its opposing papers, the respondent's stance was that the application was devoid of merit and ought to be dismissed with costs on the higher scale. In oral submissions at the hearing, at which only the preliminary point was argued, counsel for the respondents urged the court to strike the matter off the roll with an order of costs in favour of the respondent.

The preliminary point that was raised at the hearing had not been raised in the opposing papers.

It is trite that costs will follow the cause.

However, I am unable to find any justification for the exercise of my discretion that would justify an award of costs on the higher scale in favour of the respondent.

Rule 61 of the Supreme Court Rules being inapplicable, this application is not properly before me.

It must be, and it is hereby, struck off the roll with costs on the ordinary scale.

SC148-21 : NESTLE ZIMBABWE (PVT) LTD vs ZIMBABWE REVENUE AUTHORITY
Ruled By: GUVAVA JA, MAVANGIRA JA and MAKONI JA

This is an appeal against part of the judgment of the Special Court for Income Tax Appeals, handed down on 25 March 2020, which dismissed the appellant's appeal filed in terms of section 65 of the Income Tax Act [Chapter 23:06] (“the Act”) against the decision of the respondent.

The respondent had dismissed certain aspects of an objection filed by the appellant against various amended assessments that the respondent had issued.

FACTUAL BACKGROUND

The respondent, which is the administrative body tasked with assessment, collection, and enforcement of the payment of taxes leviable under the Income Tax Act, carried out an investigation and audit into the appellant's tax compliance for annual income tax assessment returns for the period 2009 to 2013.

The investigation constituted a review into the appellant's submitted tax self-assessment returns.

Several documents were submitted to the respondent, and a number of meetings were held between the parties. During the scope of the review, the respondent noted numerous anomalies within the tax self-assessment returns submitted by the appellant.

Thereafter, on 1 June 2016, the respondent issued five amended tax assessments for the 2009 to 2013 tax years on all the disputed issues claiming an aggregate amount of US$4,905,776=34.

The appellant proceeded to note its objection to the amended income tax assessments in terms of section 62 of the Income Tax Act. The appellant's objections centred on prescription regarding the 2009 income tax year, written-off bad debts, disallowed excess capital, accrued expenses, management fees, and excess royalty payments on brands.

On 26 September 2016, the Commissioner determined the objections lodged by the appellant.

The Commissioner held, that, he was entitled to issue amended tax assessments with regards to the tax year 2009 as a result of the various misrepresentations arising from excess capital allowances, unrealised exchange losses, and bad debts that were deducted from the taxable income and were unsubstantiated.

In respect of the other years, the Commissioner largely disallowed the objections lodged by the appellant except excess royalty on grossed up payments due to adjustments on withholding tax which was paid late.

The respondent ruled, that, the fifty per centum penalty on unpaid principal tax would remain in force to deter non-compliance.

The appellant, dissatisfied with the determination by the Commissioner, appealed to the court a quo.

At the pre-hearing meeting, the parties settled ten issues to be determined by the court a quo. During the hearing, the appellant called evidence of two tax experts and produced two sets of documentary exhibits.

The respondent did not call oral evidence but relied on the pleadings filed of record.

The court a quo made the following findings in respect of the issues appealed against. It found that —

(i) The respondent was entitled to re-open the 2009 tax assessment, after six years, in terms of section 47(1)(ii) of the Income Tax Act in light of the misrepresentation by the appellant of its tax affairs in its tax returns;

(ii) The respondent correctly disallowed capital allowances for mark-ups on capital assets acquired by the appellant's related company exceeding the perimeter of the margins used by the appellant's Group as these were in excess of the unconditional legal obligation to pay the related company;

(iii) The appellant had failed to prove that the basis of the deductions on management fees were equivalent to the cost mark-up formula provided in the appellant's Management Services Agreement and that the respondent had correctly disallowed the deductions in respect of the management fees relating to the appellant's related company;

(iv) The appellant could not claim deductions in respect of brands as this expenditure was indivisible from expenditure in respect of intellectual property.

The appellant, aggrieved by the decision of the court a quo, noted an appeal to this Court against part of the judgment on the following grounds:

GROUNDS OF APPEAL

“1. The learned President erred as a matter of law in determining that the word 'misrepresentation' as used in proviso (ii) of section 47(1) of the Income Tax Act [Chapter 23:06] fell to be interpreted as any error made by the taxpayer in submitting a return, regardless of the state of mind of the taxpayer.

2. The learned President erred on the facts in finding that the appellant had misrepresented any facts to the respondent when it filed its self–assessment for the tax year ending 31 December 2009.

3.The learned President accordingly erred in finding that the respondent was entitled, as a matter of law, to issue an amended assessment in respect of the tax year ending 31 December 2009.

4. The learned President erred as a matter of law and fact in holding, that, the appellant was only entitled to a deduction, in terms of section 15 of the Income Tax Act, in respect of charges raised by and paid to a related party on the acquisition of capital goods on the basis of an unconditional legal obligation to pay rather than on the basis of expenditure actually incurred in the tax year in which the deduction was made, for the purpose of trade and producing income, and erred in imposing a ceiling of Swiss francs 8,000 on such expenditure.

5.The learned President erred in fact by rejecting the evidence of the appellant as to the amount it had actually expended in each of the tax years in question in respect of management fees, which, because of exchange control requirements, had been capped at 2% of its annual turnover, and which amount had actually been paid to its regional management service company in the Republic of Kenya, and was thus expenditure actually incurred for the purposes of its business and in the production of income, and, as such, deductible in terms of the legislation.

6.The learned President erred in fact and as a matter of law in holding, that, the appellant was not entitled to claim a deduction in terms of section 15 of the Income Tax Act in respect of expenses incurred on branding, and disregarded the fact that those expenses were actually incurred for the purposes of its trade or the production of income.

7.The learned President erred both as a matter of law and as a matter of fact in holding that tax was payable on expenditure incurred in respect of branding yet having agreed that the expenditure was deductible for corporate income tax, being indivisible from expenditure incurred in the use and application of other intellectual property rights.”

RELIEF SOUGHT

The appellant prays that the appeal be allowed and that an order for costs be made in its favour in terms of section 15(2)(bb) of the Income Tax Act [Chapter 23:06], and that paragraph 2 of the order of the Special Court for Income Tax Appeal be altered as follows:

(i) By the deletion from sub–paragraph (c) thereof of US$32,094=23 to the 2009 tax year;

(ii) By the deletion from sub–paragraph (d) thereof of US$303,379 to the 2009 tax year;

(iii) By the deletion therefrom of sub–paragraphs (e), (f), and (h);

(iv) By the insertion at the end of sub–paragraph (i) of the words 'other than the 2009 tax year'....,.

At the hearing of the appeal, counsel for the appellant, took two preliminary points which were not raised in the appellant's Heads of Arguments:

(i) His first point was that a quo the respondent did not lead any evidence.

It was only the appellant that led evidence.

He stated that this has consequences in that in the absence of evidence led by the taxman, the prima facie case led by the appellant coalesces into a conclusive case in its favour. For authority he relied on CIR v Middleman 1991 (1) SA 200 (C) and A & Anor v Commissioner of Taxes 2018 ZATC 10.

He submitted, that, in respect of issues relating to management fees, handling fees, and branding fees, it is only the taxpayer which established a case before the court a quo.

(ii) Counsel for the appellant's second point was that the assessments before the court a quo, for tax years 2010 to 2013, did not comply with the requirements of section 2 of the Income Tax Act.

He submitted, that, in effect, there were no assessments. For authority, he relied on Barclays Bank of Zimbabwe v Zimbabwe Revenue Authority HH162-04; 2004 (2) ZLR 151 (H).

The assessment for the year 2009 would otherwise have been an assessment as contemplated in terms of section 2 of the Income Tax Act but negated its validity upon being made “subject to an audit”.

It was his submission, that, the position of the law is that if a taxman is adjusting an assessment, he cannot make that assessment subject to an audit because it is a correction of an assessment already accepted....,.

Counsel for the respondent started by pointing out that the issues being raised by counsel for the appellant were being raised for the first time in this court. They were not raised in the objection to the Commissioner neither were they raised in the court a quo....,.

I must observe that the points raised by counsel for the appellant were points of law which can be raised at any time. It is trite and requires no authority that a point of law can be raised at any time provided that there is no prejudice to the other party.

Counsel for the respondent did not seriously contest the point. He also did not argue that the respondent would be prejudiced in any way.

SC165-21 : SHARADKUMAH PATEL and MEADOWS (PVT) LTD vs THE COSMO TRUST and OTHERS
Ruled By: GARWE JA, GUVAVA JA and MATHONSI JA

This is an appeal against a decision of the Administrative Court of Zimbabwe handed down on 8 March 2019 upholding two consolidated appeals by the first to the fourth respondents (The Cosmo Trust, Babra Vitoria, Margaret Soper and Linda Bromley) challenging the issuance of an environmental impact assessment certificate by the sixth respondent (Environmental Management Agency) and a development permit issued consequent thereto by the City of Harare.

The City of Harare, the fifth respondent herein, has also filed a cross-appeal against the same judgment of the Administrative Court.

The gravamen of the grievance before the court a quo was that the issuance of the environmental impact assessment certificate and development permit violated various procedural requisites as well as Environmental Law.

After due consideration of all the papers filed of record, and submissions made by counsel on behalf of the parties, I am not persuaded that, save for the decision of the court a quo to relate to the merits of the dispute inter se, the court a quo was wrong in upholding the appeal.

In the circumstances, subject to that rider, both appeals stand to be dismissed with costs.

FACTUAL BACKGROUND

The first appellant, Sharadkumar Patel, is a director of Meadows (Pvt) Ltd, a company incorporated in accordance with the laws of this country.

It was to him that the development permit for the Meadows of Monavale was granted.

The company, Meadows (Pvt) Ltd, owns a piece of property called The Meadows of Monavale Extension of Mabelreign. It was in respect of that piece of land that the development permit was granted by the City of Harare.

The first respondent, The Cosmo Trust, is a duly registered trust whose powers and objectives include the protection of the environment and natural resources of Monavale in the general interest of its residents.

The second to the fourth respondents occupy separate pieces of land along Fennela Drive that are contiguous to the Meadows of Monavale.

The fifth respondent, the City of Harare, is a local authority which issued the development permit for the construction of residential units on the Meadows of Monavale.

The sixth respondent, the Environmental Management Agency, is a statutory body established in terms of the Environmental Management Act [Chapter 20:27].

The seventh respondent is the Minister of Environment, Tourism and Hospitality Industry (“the Minister”), under whose aegis the sixth respondent falls.

It was also the Minister who dismissed the first to the fourth respondents appeal against the issuance of an environmental impact assessment certificate issued by the sixth respondent, which decision is partly the subject of the present appeal.

The piece of land that lies at the centre of the dispute between the parties, namely, the Meadows of Monavale Extension of Mabelreign, was transferred into the second appellant's name (Meadows (Pvt) Ltd) in June 1987.

It is 16,2885 hectares in extent and borders Fennella Drive and Monavale Road in Monavale.

The property has remained largely undeveloped over the years, although the record shows that the first appellant has a residence on a portion of that property. It is part of a much bigger piece of land known as the Meadows of Monavale which is five hundred and seven (507) hectares in extent and is a wetland known as the Monavale Wetland.

That wetland forms the headwaters of the Marimba River and its tributary, the Avondale stream, and is part of a network of wetlands within the City of Harare, providing a wide diversity of beneficial ecosystems to the city. It is an important component of Harare's water system, through water accumulation from direct rainfall, runoff and groundwater influx; flood flow attenuation, and slow release of water to base flow in streams; groundwater recharge; protection against flooding and the impact of storms; trapping excess sediment from runoff, reducing siltation of dams; and improvement of water quality for household supply through filtration.

Following a proposal by the first respondent and an organisation called Birdlife Zimbabwe, surveys were carried out resulting in the appellants obtaining authority, from the Surveyor-General, for the Meadows of Monavale Extension of Mabelreign to be subdivided into two plots; the first being a 9,35 hectare plot on the northern side of the property which was to be known as Stand 201 and which was to be sold to Birdlife Zimbabwe and the remainder, a six hectare plot, to be retained by the appellants. The subdivision permit subsequently lapsed and the sub-division was never effectuated.

Zimbabwe acceded to the Convention on Wetlands of International Importance Especially as Waterfowl Habitat known as the Ramsar Convention on 3 January 2013.

Upon accession, the country nominated seven sites, including Monavale Wetland, to be included in country's Ramsar list of Wetlands of International Importance. The other sites were Cleveland Dam, Chinhoyi Caves, Driefontein Grasslands, Victoria Falls National Park, Mana Pools and Lake Chivero.

In 2014, the appellants submitted an application for an environmental impact assessment certificate for a housing development on the land.

On 9 July 2014, the Director-General of the Environmental Management Agency dismissed the application on the basis that the land was not suitable for such a development as it was situated in an ecologically sensitive area and ecosystem in need of protection under the Ramsar Convention. The appellants were advised to adopt an alternative land use that would ensure that the area was maintained and protected.

That decision was not thereafter challenged.

In 2015, the appellants submitted an application for a development permit with the City of Harare (“The City Council”). Despite objections, a development permit was issued. The first respondent lodged an appeal against the development permit in the Administrative Court. The permit was set aside, in November 2016, on the basis that the appellants had not, before applying for the permit, secured an environmental impact assessment certificate.

That judgment remains extant although there was an attempt to appeal against it, which was abandoned.

Pursuant to the decision of the Administrative Court, the appellants submitted another application for an environmental impact assessment certificate to the Environmental Management Agency.

The application was made in respect of Stand 201, Monavale.

No stakeholder consultation was conducted with interested parties, notwithstanding the peremptory provisions of section 136 of the Environmental Management Act [Chapter 20:27] (“the EMA”).

An environmental impact assessment certificate was then issued by the agency on 10 November 2017.

The certificate stated, that, it had been granted in respect of a housing development on Stand 201 Monavale (6804), subject to eight conditions highlighted in an annexure to that certificate.

Armed with the environment impact assessment certificate, the appellants wrote to the City Council requesting the Council to re-issue the development permit previously granted in November 2015. The request was treated, by Council, as a new application for a development permit.

The first respondent then appealed to the Minister against the decision by the agency to issue the certificate.

In the appeal, the first respondent raised a number of complaints; that there was no Stand known as 201 Monavale and that interested persons had not been given the opportunity to make representations in the matter; that the developer had failed to carry out wide consultations with stakeholders before approaching the agency; that, notwithstanding its clear interest in the matter, it had not been notified of the issuance of the certificate; that the decision to grant the certificate violated its environmental rights and those of its members; and that the decision breached the country's international obligations under the Ramsar Convention. Further, that the certificate had not been issued by the agency's Director-General.

In a response penned by the Ministry's Permanent Secretary, the appeal was dismissed on various bases.

That, whilst the agency was not in a position to confirm whether or not Stand 201 existed, the Director General of the Environmental Management Agency could properly delegate the authority to issue the certificate to a junior; that, the documents submitted reflected that there had been public consultation on the part of the developer and that reservations had been taken into account.

Whilst accepting that the agency may have erred in failing to notify interested persons of the issuance of the certificate, he stated that no injustice had been occasioned by such failure; that, whilst the objectors had rights, the appellants also had rights to their property, subject only to the need for any development on the property to take into account the need for the wise use of the land.

Unhappy with that decision, the first respondent noted an appeal to the Administrative Court in June 2018.

In the meantime, the appellants had submitted an application for a development permit with the City Council in May 2018.

On receipt of notification of the application, the first to fourth respondents, individually and separately, filed letters of objection. The Council's Director of Works then advised the appellants of these objections. The appellants responded to those objections and attached supporting documentation, including an environmental impact assessment report prepared at their instance in respect of Stand 201.

The Director of Works did not cause the response to be forwarded to the respondents.

Instead, he compiled a report recommending that the City Council's Environmental Management Committee, a sub-committee of Council, issue a development permit as requested.

The land on which the one hundred and twenty one cluster houses were to be developed was reflected as “Meadows of Monavale Township.”

The Director also suggested a number of conditions, including, ironically, the need to obtain an environmental impact assessment certificate - which had already been issued by the sixth respondent (the Environmental Management Agency).

On 23 July 2018, the City Council's Environmental Management Committee held a meeting to consider a total of fourteen matters, including the building permit application submitted by the appellants. The meeting commenced at 2:10pm and ended at 2:50pm. It recommended the granting of a development permit authorising the appellants to erect one hundred and twenty one cluster houses, subject to the conditions stipulated in the report compiled by the Director of Works.

In September 2018, the first to fourth respondents then filed an appeal with the Administrative Court against the issuance of the development permit.

By agreement between the parties, the two appeals were consolidated for purposes of the filing of the heads of argument and hearing.

PROCEEDINGS BEFORE THE ADMINISTRATIVE COURT

In their grounds of appeal and submissions in respect of the development permit issued by the City Council, the first to fourth respondents attacked the decision to issue the permit on a number of bases:

(i) First, that the Environmental Management Committee of the Council is not a local planning authority, and, consequently, had no power to issue a development permit.

(ii) Second, that no proper application for a development permit had been filed with the Council.

(iii) Third, that the permit had been issued in the absence of a valid environmental impact assessment certificate, since the permit imposed, as one of the conditions for the grant of the permit, the need to secure an environmental impact assessment certificate.

(iv) Fourth, that the proceedings of the committee were tantamount to a kangaroo court as the committee had not adverted to the merits of the matter, and, in particular, the fact that this was a protected wetland, before resolving to grant the permit.

(v) Fifth, that the committee had resolved to grant the permit without affording the respondents the right to be heard. They submitted, that, the development permit had been improperly issued and that it should, as a consequence, be set aside.

In respect of the environmental impact assessment certificate, the respondents submitted as follows:

1. First, that there had been no public participation and the audi alteram partem rule had not been observed.

2. Second, that the certificate was void for vagueness as it did not identify the project, contrary to section 100(5) of the Environmental Management Act.

3. Third, that the certificate had been issued in respect of Stand 201, which did not exist, rendering the certificate void for vagueness; and

4. Fourth, that there had been a failure, on the part of the Minister and the Environmental Management Agency, to appreciate that environmental rights take precedence over private rights to land.

In its heads of argument filed in the Administrative Court, the City Council submitted as follows:

(i) First, that the mere failure to comply with one or other administrative provision does not necessarily result in a nullity. It depends on whether the statute envisages that the failure should result in a nullity. It also depends on its materiality.

(ii) Second, that a proper application for a development permit had been filed.

(iii) Third, the first to fourth respondents objections had been considered in the Director of Works report, and, therefore, the audi alteram partem principle had not been violated.

(iv) Fourth, that the Ramsar Convention had neither been approved by Parliament nor had it been incorporated into domestic legislation. Therefore, it was not binding on Zimbabwe.

(v) Fifth, that the social rights claimed by the respondents had to be reviewed against the appellants competing right to develop a property that belonged to them.

(vi) Sixth, that the environmental management committee exercised a power vested in it by Council itself.

In their heads of argument, dealing with both appeals, the appellants in this matter submitted as follows:

(a) The decision made by the environmental management committee of the City Council was a decision of the Council itself, as a local town planning authority.

(b) Second, that there was a proper application before the Council which cannot be impugned on the basis, that, having been made by a committee of Council, it had not been made by Council itself.

(c) Third, that the committee was not bound to formally hear the first to the fourth respondents as it was sufficient for written objections to be considered.

(d) Fourth, that the decision of the Administrative Court, holding that the environmental impact assessment certificate had to precede the issuance of a development permit, was wrong.

(e) Fifth, that the Ramsar Convention itself does not prohibit development on a wetland, but, instead, encourages the wise-use of such land.

THE DETERMINATION OF THE ADMINISTRATIVE COURT

In its determination, the court a quo found as common cause, that, the property belonging to the appellants is part of a wetland and that the piece of land on which the appellants intended to erect one hundred and twenty-one cluster homes was virgin and undeveloped. It found that the development was intended to take place on the unregistered Stand 201 measuring 9.35 hectares which the appellants had unsuccessfully attempted to shear off from the main Meadows of Monavale Extension.

It found, further, that, the omission to particularise that portion of the land on which the development was to take place was a serious error which should not have been condoned by Council.

The court further found, that, the failure to attach the signed consent of NMB Bank, which had a mortgage bond registered over the property, was a fatal irregularity.

In doing so, the court took into account the provisions of section 26 of the Regional, Town and Country Planning Act [Chapter 29:12] (“the RTCP Act”) which provides, that, an application for a permit shall be accompanied by the consent, in writing, of the holder of any real right registered over the property.

The appellants, not having justified why the application had not been accompanied by the consent in writing of NMB Bank, the court found that the defect rendered the application invalid.

Further, the court found that the development permit related to the larger undivided piece of land owned by the appellants. The environmental impact assessment certificate, to the contrary, related to the unregistered Stand 201 measuring 9.35 hectares.

It therefore found, that, the development permit, which related to the entire 16,2885 hectares, could not be predicated on an environmental impact assessment certificate issued in respect of 9.35 hectares of land. Moreover, the development permit made it clear that it had been issued to enable the erection of one hundred and twenty-one cluster houses.

The environmental impact assessment certificate, on the other hand, stated that it had been granted to the appellants to enable a housing development to take place on Stand 201 Monavale. The court found, that, it was impossible to ascertain the nature of the developments proposed by those two sets of documents.

As regards the application for a development permit filed by the appellants on 15 May 2018, the court a quo found that it relied on documentation annexed to an earlier application submitted in 2015.

It concluded, that, since an application that is not determined within three months is deemed to have been refused in terms of section 26(7) of the Regional, Town Country Planning Act, those documents could not have been relied upon in the application submitted on 15 May 2018.

The court accordingly found, that, the application for the development permit was defective in that respect and that it should not have been processed by the City Council. By necessary implication, it further found that the development permit issued pursuant to that application was also a nullity.

On the objections filed by the first to fourth respondents, the court noted, that, although four letters of objection had been forwarded to the City Council, the Director of Works had referred to only two objections in his write-up to Council. He did not indicate which two of the objections had been considered.

The court also found, that, the City Council had unlawfully shifted the onus of proof to the first to fourth respondents when it determined that their objections were not supported by evidence.

As regards the contention that Council had failed to properly address the implications of granting a development permit on an internationally-protected wetland, the court determined, that, whilst the appellants have the right to deal with the property in a manner they may choose, that right was attenuated by section 86 of the Constitution 2013, which provides that the enjoyment of rights and freedoms must be exercised reasonably and with due regard to the rights and freedoms of others.

It found, that, there was good reason for the view, that, the core of the wetland be left wild, untouched, and suitable for the diverse range of migrant birds, including some that are endangered species that come all the way from countries as far afield as Cameroon, Congo, and Kenya.

The court found, that, the construction of cluster houses would involve digging up foundations, clearing land, and erection of houses.

In these circumstances, so the court concluded, there was need to rely on the precautionary principle which is applicable where, due to unavailable scientific knowledge, there is uncertainty as to the future impact of the proposed development.

On the environmental impact assessment certificate, the court reiterated its earlier finding, that, this had been issued in respect of Stand 201, which does not exist. The certificate was issued in respect of the whole property measuring 16,2338 hectares. The first to fourth respondents had not been consulted during the preparation of the report which preceded the issuance of the certificate.

Consequently, the court also upheld the appeal against the grant of the certificate.

In the result, having upheld both appeals, the court ordered that the appellants, the City Council, and the Minister pay the costs of suit on the ordinary scale.

It is against that order that the two appeals were noted to this Court by the appellants and the City Council.

GROUNDS OF APPEAL BEFORE THIS COURT

In their notice of appeal, the appellants relied on a number of grounds. I reproduce these hereunder:

“1. The Administrative Court fundamentally erred in failing to find that the first respondent, being a Trust, did not have legal capacity to have mounted the appeals that it mounted in the Administrative Court.

2. The Administrative Court further grossly erred in interfering with the discretion of the 5th respondent in condoning the reference to an undivided portion of the Meadows of Monavale, known as Stand 201 of Monavale, when such condonation had been done in the exercise of the administrative discretion by the 5th respondent.

3. The Administrative Court further erred in finding, that, the application for a development permit submitted to the 5th respondent was defective in that it had been accompanied by documents from a previous application when such attachments did not have the effect of invalidating the application.

4. The Administrative Court grossly erred in finding, that, the appellants failure to attach to their application for a development permit, submitted to the 5th respondent, the consent of NMB Bank was fatal to such application when there was no evidence that the said Bank had an interest in the land and was not argued by the parties.

5. The Administrative Court further erred in finding, that, the 5th respondent had violated the audi alteram partem rule and had therefore not properly considered the objectives of the 1st up to 4th respondents objectives to the development permit.

6. The Administrative Court further erred in its application of the concept of restrictive measures in section 86(2)(f) of the Constitution of Zimbabwe and finding, therefore, that the appellants could not carry out the development on the property in issue as part of the exercise of the right of ownership enshrined in section 71(2) of the Constitution of Zimbabwe.

7. The Administrative Court further erred in relying upon the precautionary principle in prohibiting the development proposed on the piece of land in issue by the appellants.

8. The Administrative Court grossly erred in finding, that, the environmental impact assessment certificate issued by the 6th respondent was void for vagueness when it related to an identifiable property and the correction of the certificate had been placed before the Court.”

The City of Harare, as appellant, also attacked the determination of the court a quo on a number of grounds which I quote verbatim hereunder:

“1. The court a quo erred in finding that the application for a development permit was defective in that it was accompanied by documents from a previous application when such deficiency, if any, did not have the effect of invalidating the permit.

2. The court a quo erred in finding that appellant had violated the audi alteram partem rule by failing to properly consider the objectives when there was clear evidence throughout the record of a consideration of the objections.

3. The court a quo erred in stopping a development on the bases of unproven likelihood of harm to the environment.

4. The Administrative Court erred by failing to arrive at the conclusion, that, the permitted development was consistent with the 'wise use' concept contained in the provisions of the Constitution, the Environmental Management Act, and the Ramsar Convention on the protection of the environment.

5. The court a quo erred in allowing immaterial and irrelevant objections to the permit and the Environmental Impact Assessment Certificate to guide it. It so erred to appreciate that this was a town planning matter and one to be dealt with in the wide sense.

6. At any rate, the court a quo erred in failing to consider that any deviation from the provision of the Regional, Town and Country Planning Act and the Environmental Management Act was not material enough to warrant nullification of the permit. It so erred in that it failed to consider the materiality principle.”

APPELLANTS SUBMISSIONS BEFORE THIS COURT

In their submissions, the appellants submitted as follows:

The first respondent, being a Trust, cannot sue or be sued in its name, but, rather, in the name of the trustees.

The appeal instituted by the Trust against the grant of the Environmental Impact Assessment Certificate was therefore invalid.

Although the High Court Rules 1971 define association to include a Trust, and further allow any such association the locus standi to sue or be sued in its own name, the Rules do not apply to the Administrative Court.

The Administrative Court (Miscellaneous Appeals) Rules 1980 SI 122/1980, do not have a provision similar to the High Court Rules. The first respondent (the Trust) should not, therefore, have been a party to the proceedings before the court a quo.

Further, the appellants submitted that the City Council, being a town planning authority, could quite competently delegate its functions to a committee of Council in terms of section 12(3) of the Regional, Town and Country Planning Act.

They also submitted, that, the Environmental Management Committee of the City Council was entitled to condone mis-references in the papers that were placed before it.

The complaint by the first to fourth respondents, on the incorrect description of the property, was therefore not a fundamental defect that warranted interference by the court a quo, especially because the court had accepted that the development was to take place on the appellants property measuring 16,2885 hectares.

There was no requirement that the appellants identify the specific portion of that land where the development was to take place, particularly in view of the fact that the subdivision previously applied for had lapsed.

The error was not serious and the objectors had been able to lodge their objections.

As regards the finding by the court a quo, that the application was invalid on account of the fact that documents from a previous application (that had lapsed) had been attached, the appellants submitted that these were supporting documents and constituted “such information as may be prescribed” as provided for in the Regional, Town, Country Planning Act. The fact that an application is deemed dismissed, in terms of section 26(7) of that Act does not mean documents from that application cannot be attached or used in a subsequent application.

On the finding by the court a quo, that, the failure to attach the consent of the NMB Bank was fatal, the appellants submitted that the issue had only been very vaguely referred to and that it had been assumed that it had been abandoned.

The parties had not addressed the court on this issue.

Moreover, being a question of fact, the four respondents had not shown whether the bonds in issue were still current.

It was therefore an irregularity for the court to make a finding on an issue of fact not traversed by the parties and which was not founded in the pleadings by the parties.

As regards the finding that the audi alteram partem principle had been violated, the appellants submitted that the four respondents objections contained in letters they had sent to the City Council had been considered before the City Council came up with a decision on the application for a developmental permit.

Indeed, the objections were brought to the attention of the appellants who responded to each of the issues raised in the objections....,.

In his oral address, counsel made the following further submissions:

That, the issue of the locus standi of the first respondent had been raised during oral submissions but was not dealt with by the court a quo.

SC04-13 : ALTEM ENTERPRISES (PVT) LTD T/A RUWA FURNISHERS vs JOHN SISK & SON (PVT) LTD
Ruled By: ZIYAMBI JA, GARWE JA and MAKARAU JA

The respondent also filed a cross appeal, not against the final order made, but against the findings by the court a quo that the other breaches of the lease agreement had not been proved and that the respondent had not shown it genuinely required the premises for its own use.At ...

At the hearing of the matter before this Court, counsel for the respondent conceded that since the cross appeal was not directed at the substantive order, the cross-appeal was not properly before the court and should be struck off.

This concession was made in the light of the decision of this Court in Chidyausiku v Nyakabambo 1987 (2) ZLR 119 (S). Although the cross appeal is no longer the subject of this appeal, it has, in my view, raised a fundamental question on whether the decision in Chidyausiku v Nyakabambo 1987 (2) ZLR 119 (S) is entirely correct….,.

I feel obliged, as already indicated, to express my personal view on the correctness or otherwise of the decision of this Court in Chidyausiku v Nyakabambo 1987 (2) ZLR 119 (S). I confess that I do so without the benefit of argument from both counsel.

Chidyausiku v Nyakabambo 1987 (2) ZLR 119 (S) is authority for the proposition that in order to be valid, a notice of appeal must be directed to the whole or part of the order made by the court a quo and not to its reasons for making the order in question. GUBBAY JA…, remarked…, -

“…, what this Court is being asked to do is not to reverse the order of the learned judge but to cure the procedural defects by either considering the merits of the application itself or remitting the matter for the learned judge to do so. Once that is done, the appellant will be content whatever the outcome should happen to be. That this is the approach is evident from the wording of the so-called prayer to the notice of appeal, which omits to seek an order that the application brought in terms of Rule 18 be dismissed.”

I am prepared to accept that, as a general rule, the above remarks correctly reflect the law of this country. To the extent, however, that the judgment suggests that this is a hard and fast rule I am inclined to differ. There may well be cases, such as the present, where the slavish adherence to the above principle would not only cause prejudice but would result in a certain degree of absurdity. I revert to the facts of this case to justify why I am of this opinion.

In the court a quo, the respondent approached the court seeking the eviction of the appellant as well as holding over damages. It had several causes of action. The main was that it required the premises for its own use. In the alternative, it alleged several breaches of the lease agreement. These were that the appellant had, without authority, sublet a portion of the leased premises; that the appellant had constructed a permanent structure without authority; that the appellant had failed to maintain the premises in a state of repair; and, lastly, that the appellant had failed to pay the rental due. It will be apparent from the above that each breach alleged by the respondent constituted a separate cause of action which, if proved, would have justified either singly or cumulatively, the eviction sought in the prayer.

The court a quo rejected the respondent's claim that it required the premises for its own use. It also rejected all but one of the respondent's claims that the appellant had breached the agreement. Having accepted that the appellant had failed to pay the rent due the court then ordered the eviction of the appellant as well as holding over damages. However, the appellant appealed to this Court against that order. It was at this stage that the respondent had to make a difficult decision.

If the appeal filed by the respondent were to succeed, then the order of eviction and holding over damages would fall away. Since the issue before the Supreme Court would be only whether the court a quo was correct in holding that the appellant had failed to pay the rent due, there would be no basis for the respondent to attack the other findings by the court a quo, which findings could also justify the order of eviction and payment of holding over of damages, unless the respondent also cross appealed against those findings.

This is what the respondent…, did.

However, faced with the decision of this Court in Chidyausiku v Nyakabambo 1987 (2) ZLR 119 (S), the respondent was forced to concede that the cross-appeal did not comply with the law as it did not seek any relief on the substantive order made. My understanding of the respondent's position was that in the event the main appeal succeeded, this Court should revisit the finding made by the court a quo in dismissing the other causes of action and in the event that any one of them succeeded then the eviction and holding over damages would stand.

Speaking for myself, I find nothing wrong with such an approach, and, indeed, it seems to me that in a case such as this one there is no other alternative.

Hopefully this issue will come up for consideration by a full court so that the principle can be revisited in order to ascertain whether it still makes good law.

HH301-17 : FIRST MUTUAL INVESTMENT (PVT) LTD vs ROUSSALAND ENTERPRISES (PVT) LTD t/a THIRD WORLD BAZZAR and SMITH OKONKWO and DADIRAI OKONKWO
Ruled By: MANGOTA J

Loosely defined, a lease is an agreement in which one party (lessor) offers his property (subject matter of contract) on hire to another (lessee) for a certain fixed sum of money (rent) which is paid periodically.

The lessor-lessee agreement is either written or verbal.

Where it is written, its clauses spell out the rights and obligations of the parties and all matters which are ancillary to the contract.

The applicant and the first respondent entered into a written lessor-lessee relationship respectively. The first respondent leased from the applicant Shop Number 13, First Mutual Centre, 82-86 Herbert Chitepo Street, Mutare (“the property”).

Clause 1.2 of the lease stipulates the rent which the first respondent was to pay to the applicant.

The second and third respondents stood as surities and co-principal debtors for the due and punctual payment of the first respondent's indebtedness to the applicant.

The parties relationship subsisted from September 2010 to February 2016 when the applicant cancelled the lease.

It did so on the allegation that the respondent(s) had breached the terms of the lease. It contended, that, these failed to pay the rent and operating costs as was stipulated in the lease. It alleged that the respondents were indebted to it in the sum of $10,249=30 in toto. It moved the court to:

(i) Enter judgment against all the three respondents in the sum of $10,249=30; and

(ii) Order that the respondents:

(a) Be evicted from its property;

(b) Pay to it holding over damages at the rate of $66=87 per day with effect from 1 June 2016 to the date of their eviction from the property; and

(c) Pay costs of this application on a higher scale.

The respondents opposed the application. They raised one preliminary matter.

They averred, on the merits, that, the lease agreement which, according to them, expired on 31 August 2013, discharged the suretyship agreement.

They stated that any claim against the second and third respondents was, therefore, without any basis.

They submitted that no claim lay against the second respondent, as the latter did not sign the contract of suretyship.

They denied breaching any terms of the lease. They insisted that, if any term(s) was/were breached, the applicant condoned such breach.

They contended, that, the court did not have the jurisdiction to hear and determine the application. They relied on clause 6.1 as read with clause 34.1 of the lease agreement in the mentioned regard. They stated, that, the applicant should have referred the rent dispute to an arbitrator. They submitted that the arbitrator, and not the court, should have determined the rent which they were enjoined to pay.

They maintained the position, that, after 31 August 2013, the parties did not renew their lease and the first respondent became a statutory tenant.

The first respondent, they stated, paid, and continues to pay, what it considered reasonable rentals for the property.

They denied that they owed the applicant any money. They challenged the applicant's statement of account. They insisted that the statement did not capture the parties transactions accurately.

They moved the court to dismiss the application with costs on an attorney and client scale.

In the in limine matter which they raised, the respondents challenged the authority of the deponent to the founding affidavit. They submitted that he was not clothed with the applicant's authority to depose to the affidavit on its behalf as he did.

They, on the mentioned basis, insisted that the applicant was not before the court and that the application should, therefore, be dismissed.

The deponent to the founding affidavit, one Innocent Mupfururirwa, a property manager in the employment of the applicant, stated to the contrary.

He said he was authorised to depose to the affidavit. He stated, in the answering affidavit, that, it was not necessary for him to attach proof of authority to depose to the affidavit. He insisted that the respondents knew that he had the requisite authority. He said they knew of that matter because he had dealt with them on the matter which was then in dispute.

He attached to his answering affidavit Annexures E, F and G.

The annexures were, according to him, evidence of the letters which he respectively addressed to the respondents on 10 December 2013; 20 May 2015; and 12 February 2016. The letters related to the issue of rent for the property.

He contended, that, it was on the basis of the mentioned letters/annexures that the respondents were made aware of his authority to sue for and on behalf of the applicant.

The deponent's argument is devoid of any substance.

Authority to speak or act for and on behalf of the applicant can never be derived from the correspondences which he made to, or with, the respondents as he claimed.

A company, as a legal person, has no mouth through which it articulates its intentions. It has no ears with which to hear. It has no sense of sight or smell. It has no mind of its own. It speaks to no one except through its directors, not individually but collectively, through resolutions, which they pass when they are assembled in one room for the purpose of transacting the business of the company.

Directors, and no one else, are, together, the eyes, ears, nose and mind of the company.

HAHLO brings out the above stated principle in a clear and lucid manner in his South African Company Law Through Cases, 6th ed. The learned author makes reference to the Board of Directors and their powers. He states at p343 as follows:

“The powers of the company vest in the directors as a board, and not as individuals. Directors exercise their powers by passing resolutions at board meetings; of which proper notice must be given to all directors, and at which a quorum must be present….,.”

Just as the mind is the controlling faculty of a person's whole being, directors are the controlling mind of the company. They manage it and they act on its behalf.

The Supreme Court restated that obvious position in Madzivire & Ors v Zvarivadza & Ors 2006 (1) ZLR 514 (S), the headnote of which reads:

“A company, being a separate legal entity from its directors, cannot be represented in a legal suit by a person who has not been authorised to do so. This is a well-established legal principle which the courts cannot ignore….,. The fact that a person is the managing director of the company does not clothe him with the authority to sue on behalf of the company in the absence of a resolution authorising him to do so. The general rule is that directors of a company can only act validly when assembled at a board meeting. An exception to this rule is where a company has only one director who can perform all judicial acts without holding a full meeting.”…,.

It is evident, from the foregoing, that, the assertion of the deponent to the founding affidavit, which is to the effect that he did not need to produce proof of authority, was misplaced.

The law is clear on the matter. Authority to sue is a sine qua non of applications of the present nature.

He said his statement was anchored on the advice which his legal practitioners tendered to him. That advice was, unfortunately for him, a very poor one.

A fortiori when his authority to sue for and on behalf of his employer was being challenged, he did not say the applicant fell into the category of exceptions which the Supreme Court enunciated in Madzivire & Ors v Zvarivadza & Ors 2006 (1) ZLR 514 (S).

Madzivire & Ors v Zvarivadza & Ors 2006 (1) ZLR 514 (S) over-ruled the case which he cited in support of his position on the matter at hand. Direct Response Marketing (Pvt) Ltd v Shepherd 1993 (2) ZLR 218 (H) was decided by this court before Madzivire & Ors v Zvarivadza & Ors 2006 (1) ZLR 514 (S).

I mention, in passing, that, the citation which counsel for the respondent referred in Tattersal and Anor v Nedor Bank Ltd 1995 (2) SA 222, 228F did not match the names of the parties. I was, therefore, unable to derive any benefit from that case as I did not find it in the 1995 (2) set of case authorities.

Tattersal and Anor v Nedor Bank Ltd 1995 (2) SA 222, 228F was, at any rate, decided earlier than Madzivire & Ors v Zvarivadza & Ors 2006 (1) ZLR 514 (S). The latter case, therefore, over ruled Tattersal and Anor v Nedor Bank Ltd 1995 (2) SA 222, 228F as it did Direct Response Marketing (Pvt) Ltd v Shepherd 1993 (2) ZLR 218 (H).

The deponent to the founding affidavit had every opportunity to attach, to his answering affidavit, a resolution of the applicant's directors as the law required him to have done. The resolution would have constituted clear evidence of his authority to depose to the founding affidavit.

His decision not to attach the resolution left the applicant's case standing on nothing. He failed to convince the court that he was clothed with the requisite authority to speak for and on behalf of his employer.

The application cannot, on the mentioned basis, be allowed to stand.

The respondents assertion, which was to the effect that the court did not have the jurisdiction to hear the application, fell more into the realms of a wild goose chase than it fell into the domain of reason.

They hinged that statement on clause 6.1 as read with clause 34 of the lease agreement.

The respondents know, as much as I do, that, section 171(a) of the Constitution of Zimbabwe did not, and does not, allow them to enter into a contract which ousts the jurisdiction of this court. It reads:

“171 JURISDICTION OF THE HIGH COURT

(1) The High Court -

(a) Has original jurisdiction over all civil and criminal matters throughout Zimbabwe;

(b)…,.;

(c)…,.;

(d)…,.”

GARWE JA lucidly stated the inherent jurisdiction of this court in Gawa & Anor v Willoughby Investments (Pvt) Ltd 2009 (1) ZLR 368 (S) wherein he remarked…, that:

“…,. In terms of jurisdiction, the distinction between the Supreme Court and the High Court may be summarised as follows:

Except where specifically empowered, the Supreme Court has no jurisdiction to hear or determine any matter and may only exercise powers in respect of an appeal in terms of the provisions of the Act and Rules of the court. The High Court, on the other hand, has the jurisdiction to hear all matters except where limitations are imposed by law.

In other words, whilst the Supreme Court may do nothing that the law does not permit, the High Court may do anything that the law does not forbid.”…,.

For the abovementioned reason, it was perfectly in order for me to hear the application.

I would, in any event, have heard it for the other reason, that, the lease agreement which the parties signed contained a condition precedent which the respondents did not fulfil.

The condition rendered the contract inoperative until it was satisfied.

Reference is made in this regard to clause 38 of the lease agreement. It reads:

“38 SURETYSHIP IF TENANT IS A COMPANY

In the event that the Tenant is a private, incorporated company, it is a condition precedent to this Agreement that at the time of signature thereof the Tenant shall furnish to the Landlord with written deeds of suretyship and co-debtorship signed by at least two (2) of the directors of the Tenant (or, in the event that the Tenant has only one director, that person plus one other person of equivalent financial means), binding themselves jointly and severally to the Landlord and as co-principal debtors with each other and as co-sureties for each other and renouncing the benefits of excursion and division owed to the Landlord by the Tenant in terms of this Agreement.”…,.

Annexure B, which the deponent to the founding affidavit attached to the application, is the Deed of Suretyship.

Only one director of the first respondent signed the deed. Dadirai V. T. Okonkwo signed it. The other director, Smith Okonkwo, did not.

No reasons were advanced in regard to the observed matter.

It is evident that the lease contains a suspensive condition. It is also clear that the condition remained unfulfilled from the time that the parties signed the lease to date.

A suspensive condition suspends or postpones the operation of a contract or obligation until the condition is fulfilled: see INNOCENT MAJA: The Law of Contract in Zimbabwe…,.

A suspensive condition, also known as a condition precedent, is an event or a state of affairs that is required before something else occurs. It is an event which must occur unless its non-occurrence is excused before performance becomes due, i.e, before any contractual duty exists: see Wikipedia: the free encyclopedia.

DUHAIME's Law Dictionary defines a condition precedent as a contractual condition that suspends the coming into effect of a contract unless and until a certain event takes place.

The condition to which the parties subscribed when they signed the lease is clear and un-ambiguous. It falls within the ambit of the remarks of GREENBERG JA, who, in Worman v Hughes & Ors 1948 (3) SA 495 (A) stated…, as follows:

“It must be born in mind, that, in an action on a contract, the rule of interpretation is to ascertain, not what the parties intention was, but what the language used in the contract means, i.e what their intention was as expressed in the contract.”

The condition, in my view, should have been fulfilled informa specifica and not per aequipollens.

In forma specifica because the contract of suretyship required the signatures of at least two of the first respondent's directors and not one.

The fact that the first respondent has two directors means that the signatures of those two to the suretyship deed would have sufficed. That would have made the lease agreement operative, with rights and obligations of the parties to the lease flowing from the same.

Clause 39.2 of the lease provides, that, the agreement represents the parties entire contract and that no amendment, etcetera, shall be valid until it is reduced to writing and signed by them.

No such amendment of the agreement was made by the parties.

That, it is evident, constitutes the parties acknowledgment that their agreement was to be carried out in its original form.

The duty to comply with the deed of suretyship lay on the respondents. They did not fulfil their obligation in the mentioned regard. They proferred no reason for their non-compliance with the mandatory provision of the lease which they signed with the applicant.

The suspensive condition which existed in the Deed of Suretyship suspended the rights and obligations of each party to the lease agreement. The suspension is still extant until the condition is fulfilled.

It follows from the foregoing, that, but for the lack of authority by the deponent of the founding affidavit, the applicant could have lawfully terminated the contract of lease.

It, however, cannot do so as it remained out of, instead of inside, the court.

The applicant is not before the court.

The application is, accordingly, dismissed with each party being ordered to bear its own costs.

HH707-15 : RICHARD MATTHEWS vs CRASTER INTERNATIONAL (PRIVATE) LIMITED
Ruled By: MAFUSIRE J

This was an application for the registration of an arbitral award. It was opposed.

Before the arbitrator, the within named applicant was the Claimant. The respondent herein was also the respondent therein.

The applicant was a former employee of the respondent.

The arbitration happened after the cessation of the employer-employee relationship. That cessation had been mutually and amicably agreed upon. Both parties were also agreed, in principle, that, the applicant was due a terminal package. However, they were not agreed as to the nature and quantum of that package.

It was for the determination of the appropriate terminal package that the matter was referred to arbitration.

The arbitrator was a retired judge of this court, Justice Smith. The operative part of his award read as follows:

“My award, therefore, is that the Respondent pays the Claimant -

(a) USD7,000 being his salary for August 2007;

(b) USD42,000 as a severance package;

(c) Cash-in-lieu of the leave he had acquired and not taken as at 4 September 2009 in line with the Respondent's leave policies.”

I have highlighted paragraph (c) of the award because argument for and against registration was partly centred on it.

The proceedings before me commenced by way of a chamber application. The heading to the application was:

“CHAMBER APPLICATION FOR REGISTRATION OF AN ARBITRAL AWARD IN TERMS OF SECTION 98(14) OF THE LABOUR ACT”

The highlighted portion was another source of argument.

The applicant vehemently sought to disown the reference to section 98(14) of the Labour Act, saying it was a mistake. He said his application had been made in terms of Article 35 of the Arbitration Act [Chapter 7:15], and not in terms of the Labour Act [Chapter 28:01].

On the other hand, the respondent sought to firmly bind the applicant to the letter of his heading.

It shall soon become apparent why the parties took such positions.

The opposition to the application was based on four grounds:

(i) The first was that paragraph (c) of the arbitral award did not sound in money. As such, it was unregistrable.

For support, the respondent cited the cases of Mandiringa & Ors v National Social Security & Ors 2005 (2) ZLR 329 (H) and Herbert Sauramba & Ors v Mitchells Bakery Mutare HH134-10.

(ii) The second ground of opposition was that the award had made no provision for Pay As You Earn tax (“PAYE”) in terms of the Income Tax Act [Chapter 23:06]. As such, the award was incomplete and therefore not registrable. Otherwise, to register it in that form, the court would be countenancing an illegality.

(iii) The third ground of opposition was that the applicant had failed to attach to his application for registration, a duly authenticated original of the arbitral award or a duly certified copy thereof. As such, he had breached the peremptory provisions of the Arbitration Act.

(iv) The fourth and last ground of opposition was that the respondent had earlier on obtained an arbitral award of its own against the applicant for an amount far in excess of what the applicant had been awarded in the arbitral award that he was seeking to register. As such, the principle of set-off had to be applied in order to do justice between man and man.

Otherwise, it would be inequitable that the applicant, who was owed much less by the respondent, should seek to recover from the respondent, which was owed much more by the applicant, when the two arbitral awards in question were intrinsically linked to each other, more particularly in that they had arisen out of the same set of facts and from the same relationship....,.

(b) Arbitral award not sounding in money

As I understand them, the ratio decidendi of Mandiringa & Ors v National Social Security & Ors 2005 (2) ZLR 329 (H) and Herbert Sauramba & Ors v Mitchells Bakery Mutare HH134-10 was that the purpose of registering an arbitral award, in terms of section 98(14) of the Labour Act, is so that it can be enforced; that, as such, for one to sue out a writ of execution to enforce an arbitral award, it must necessarily sound in money, and that an award that does not specify the sum due is incomplete and incapable of registration as an order of this court.

In my view, section 98(14) of the Labour Act and Article 35 of the Arbitration Act are in pari materia.

On the face of it, both provisions facilitate the registration of arbitral awards with the conventional courts for the purpose of enforcement.

In section 98(14) of the Labour Act, any party to whom an arbitral award relates may submit for registration to either the court of the magistrate, or the High Court, the copy of the arbitral award given to him in terms of sub-section (13).

The choice of court depends on the quantum of the award. Any award in excess of the monetary jurisdictional limit of the Magistrate's Court is to be submitted to this court.

In Article 35 of the Arbitration Act, an arbitral award, irrespective of the country in which it was made, is binding upon its registration with this court.

That the purpose for registering an arbitral award, in terms of section 98(14) of the Labour Act, is for enforcement is made clear by the next sub-section, namely, subsection (15).

It says, that, where an arbitral award has been registered, it shall have the effect “…, for purposes of enforcement…,” of a civil judgment of the appropriate court.

Similarly, with Article 35 of the Arbitration Act, that the purpose for registration is enforcement is self-evident from both the intrinsic provisions of the Article itself as well as the heading to it.

Sub-article 35(1) of the Arbitration Act says that the arbitral award, upon application to the High Court “…, shall be enforced…,” subject to the other provisions.

Sub-article 35(2) of the Arbitration Act also provides that the party applying for the “…, enforcement…,” of the award has to submit the original or certified copy.

The heading of the Article as a whole is “Recognition and enforcement.”

In casu, the applicant sought to wriggle out of the provisions of section 98(14) of the Labour Act, evidently to escape the conclusion in Mandiringa & Ors v National Social Security & Ors 2005 (2) ZLR 329 (H) and Herbert Sauramba & Ors v Mitchells Bakery Mutare HH134-10.

In my view, for the respondent to have insisted on binding the applicant to section 98(14) of the Labour Act, just because the heading to his application said so, was to insist on form prevailing over substance.

It was common cause, that, the reference of the dispute to arbitration had not been made in terms of the Labour Act. The arbitrator had not been appointed in terms of the Labour Act. The reference to arbitration, and the appointment of the arbitrator, had both been made in terms of the Arbitration Act.

For the above reason, I accept the applicant's submission that the applicant's reference to section 98(14) of the Labour Act in the heading to his founding papers was a mistake.

Furthermore, other than that the mistake may have deprived the respondent, on the face of it, the immediate opportunity to automatically rely on the case authorities aforesaid, and, other than that the mistake may have inconvenienced both the respondent and the court, I find no other discernible prejudice caused to the respondent.

Therefore, the applicant's mistake, in referring to section 98(14) of the Labour Act in its heading to its application, is excused.

The application to amend the heading by deleting the reference to section 98(14) of the Labour Act is hereby granted.

However, excusing the applicant for the mistake aforesaid does not altogether determine the point in issue.

If section 98(14) of the Labour Act and Article 35 of the Arbitration Act are in pari materia, as I believe they are, then, in my view, a legal finding on the one should be relevant to the other.

I find myself in agreement, with all due respect, with the views of MAKARAU J…, in Mandiringa & Ors v National Social Security & Ors 2005 (2) ZLR 329 (H) and CHIWESHE JP in Herbert Sauramba & Ors v Mitchells Bakery Mutare HH134-10.

In casu, paragraph (c) of the arbitral award was undoubtedly incomplete.

If an award is one that must sound in money and it is not, then, in my view, it is incapable of registration. It is incomplete.

In this case, if the parties went for arbitration to determine the nature and quantum of the terminal package due to the applicant, then, it is rather surprising that they came out of that arbitration with only two-thirds of the award having been quantified.

An order that an employer must pay his ex-employee cash-in-lieu of the leave due to him, and not taken for the period in question, is not complete.

Counsel for the applicant argued that it was complete because the leave days and their sum total were both capable of easy ascertainment.

But, that kind of approach is precisely what was rejected in the cases referred to above.

In particular, in Mandiringa & Ors v National Social Security & Ors 2005 (2) ZLR 329 (H), MAKARAU J said…,.:

“The awards did not compute the loss that each employer had to make good even if he chose to reinstate the respective applicant. It is conceded that while such computations are relatively easy by comparing what a similarly placed employee received in emoluments over the same period, the issue remains, that, the quantum thereof is not part of the award made and was not determined as part of the arbitration proceedings in the presence of both parties. It was not agreed upon in any one of the matters.”…,.

I agree with the learned judge's approach.

In casu, paragraph (c) of the arbitral award did not specify the period the leave was due to the applicant. It did not specify the number of those leave days. Naturally, it did not specify the quantum. It did not state what the respondent's leave policies were.

Before me, none of the parties said they were agreed on any of these items. Thus, the field for potential disagreement on them in the future was vast.

Counsel for the applicant argued, that, this did not render the award incapable of registration.

He conceded, that, it was not possible to sue out a writ of execution to enforce that part of the award if it remained in that form. However, he argued that the parties could always go back to the arbitrator for clarification if a dispute subsequently arose.

But, that precisely is the problem. The award was simply incomplete.

Counsel for the applicant's approach would entail the registration application being made and being heard twice. In my view, there was no conceivable basis for overburdening this court like that. The applicant simply had to submit for registration an award that was complete.

Therefore, I hold that paragraph (c) of the arbitral award by Retired Justice Smith, on 28 June 2012, was incapable of registration as an order of this court because it was incomplete, more particularly, in that it did not sound in money.

However, holding that paragraph (c) of the award by the arbitrator was incapable of registration as an order of this court begs the further question, namely, whether it could be split or severed so that paragraphs (a) and (b) could be registered and (c) rejected.

This point did not squarely arise, either at the hearing or in the papers.

The nearest reference to it was in the respondent's heads of argument. After arguing that no remedy may be fashioned outside the provisions of the Arbitration Act and that neither can be availed by the court, paragraph 2.3 of the respondent's heads of argument went on to declare, that, the request to register paragraph (c) of the award had to be refused.

The submission seems to imply severability of the award.

In context, the respondent was objecting to the registration of the arbitral award as a whole, and not just paragraph (c) thereof.

However, with regards to paragraphs (a) and (b), the objection was that no PAYE tax had been provided for.

Thus, the argument that the award did not sound in money was peculiar to paragraph (c) only.

So, the argument did not address the question of severability.

Article 36 of the Arbitration Act provides the grounds upon which the recognition or enforcement of arbitral awards may be refused by this court.

One of them, in sub-article (1)(a)(iii), is that if the award deals with a dispute not contemplated by, or not falling within the terms of the submission to arbitration, or if the award contains decisions on matters beyond the scope of the submission to arbitration, then, recognition or enforcement may be refused.

It is the proviso to sub-paragraph (iii) of paragraph (a) of sub-article (1) of Article 36 of the Arbitration Act that permits the severability of an award. It says:

“[P]rovided that, if the decisions on matters submitted to arbitration can be separated from those not so submitted, that part of the award which contains decisions on matters submitted to arbitration may be recognized and enforced….,.”

In Confederation of Zimbabwe Industries v Mbatha HH125-15, MATHONSI J said that the Article allows the severance of an offending part of the award where appropriate.

However, other than Article 36(1)(a)(iii) aforesaid (and Article 34(2)(a)(iii), which says the same thing on the same subject matter, but in the context of an application to set aside an arbitral award) I have found no other provision dealing with the severability of an arbitral award for the purpose of registration with this court.

The situation dealt with by Article 36 (and Article 34) of the Arbitration Act, and the judgment in Confederation of Zimbabwe Industries v Mbatha HH125-15 is different from the one in the present matter.

In the present matter, the award by Retired Justice Smith did not deal with a dispute not contemplated by, or falling within the terms of the submission to arbitration. It did not contain decisions on matters beyond the scope of the submission to arbitration. It was simply incomplete in part.

So, did this render the whole award incapable of registration?

The question is not a moot point.

The award sought to be registered was not made by this court. It was made in another forum. The governing legislation does not provide for divisibility of awards made elsewhere when they are submitted for registration with this court.

If only paragraphs (a) and (b) of the award are registered they become an order of this court. But, to split the award in that manner would amount to transforming the arbitral award of the arbitrator.

I do not think the court can do that.

In my view, it does not matter that each of the paragraphs in the award seems to be stand-alone orders that deal with different heads of emoluments due to the applicant, and thus seem complete by themselves. But, if only paragraphs (a) and (b) are registered at this stage, then, the applicant may have to come back again sometime for the registration of paragraph (c), if he eventually gets it quantified. This then goes back to the point about the registration application having to be determined by this court piece meal. It serves to emphasize the incompleteness of the award.

The applicant brought this application prematurely.

The respondent argued, that, having seen that paragraph (c) of the award did not specify the amount, the applicant should have proceeded in terms of Article 33 of the Arbitration Act. This Article provides for the correction and interpretation of an award within thirty days of the receipt of the award, or within a longer period as may be agreed upon by the parties.

In paragraph (a) of sub-article (1), a party may, on notice to the other, request the arbitrator to, inter alia “…, give an interpretation of a specific point or part of the award.”

If the arbitrator considers the request to be justified, it shall make the correction or give the interpretation, within thirty days of the receipt of the request.

It was not explained why the applicant did not avail himself of this provision.

Now, with the view that I have taken in respect of the respondent's objection No.1, it is no longer necessary to deal with the rest of the other objections, namely, whether or not the award should have specified the amount of PAYE tax payable and whether or not set-off should apply.

DISPOSITION

In this matter, paragraph (c) of the arbitral award by Retired Justice Smith, dated 28 June 2012, relating to the payment of cash-in-lieu of leave, is not capable of registration as an order of this court as it is incomplete, more particularly, in that it does not sound in money, the amount due not having been specified.

Not being an order of this court, and there being no provision in law for the severability or separation of this type of award so as to register it in part, for the purpose of enforcement, the arbitral award, as a whole, is therefore not capable of registration.

In the circumstances, the application is dismissed with costs.

HB03-23 : LUKE DUBE vs SHERIFF OF ZIMBABWE N.O. and EXMIN SYNDICATE and PROVINCIAL MINING DIRECTOR MATABELELAND SOUTH N.O. and OTHERS
Ruled By: DUBE-BANDA J

This is an urgent application wherein, initially, the applicant sought a provisional order. At the hearing, the court, mero motu, raised the issue whether this court has the jurisdiction and the competence to pronounce on the validity or lack thereof of a Supreme Court order.On reflection, counsel for the applicant ...

SC13-24 : UNKI MINES (PRIVATE) LIMITED vs SHURUGWI TOWN COUNCIL and JUSTICE A. EBRAHIM N.O.
Ruled By: UCHENA JA

This is an opposed chamber application in terms of Rule 43 of the Supreme Court Rules 2018, for condonation and extension of time within which to note an appeal.BACKGROUND FACTSThe applicant and the first respondent entered into an agreement of sale of land belonging to the first respondent. The land ...

This is an opposed chamber application in terms of Rule 43 of the Supreme Court Rules 2018, for condonation and extension of time within which to note an appeal.

BACKGROUND FACTS

The applicant and the first respondent entered into an agreement of sale of land belonging to the first respondent. The land is held under Deed of Transfer 1989/08. The first respondent proposed a subdivision of the piece of land. The proposed subdivisions were never taken out of the original land identified under Deed of Transfer 1989/08.

The proposed subdivisions were made the subject of a sale agreement between the applicant and the first respondent.

It was a term of the agreement, that, in the event of a dispute, the parties would refer the matter for arbitration.

The merx of the sale were the proposed subdivisions, as depicted on the map.

The said map was later found to be invalid as it identified wrong portions of the land. A new map was produced which identified land which is different from the land identified in the agreement of sale itself.

A dispute arose concerning the number of Stands or sub-divisions bought by the applicant.

The dispute was brought before an arbitrator, who is the second respondent in this matter. The arbitrator's award held, that, there was a binding agreement between the parties.

The first respondent was aggrieved by the arbitrator's award.

It filed an application for the setting aside of the arbitrator's award before the court a quo, on the basis that the arbitral award is contrary to public policy.

At the hearing of the matter, the first respondent raised a point in limine to the effect, that, the arbitrator failed to keep a complete record of proceedings with regards to the matter.

It also averred, that, the applicant's counter application was incompetent as it was lodged through an opposing affidavit.

It averred, that, an application in the High Court is made in the form of a founding affidavit and under Form 29.

On the merits, the first respondent argued, that, the award given by the arbitrator is a brutum fulmen in that the disposition of the award is incapable of enforcement as it did not make an enforceable order.

It argued, that, the arbitrator did not give a formal order directing either party to do anything.

It further argued, that, the arbitrator failed to comply with the provisions of Article 31 and 33 of the Arbitration Act. It further argued, that, the arbitral award is contrary to public policy because the order interfered with the sanctity of the parties agreement and the agreement is contrary to mandatory provisions of the law.

On the contrary, the respondent, who is the applicant in this case, raised a point in limine to the effect, that, the application for the setting aside of the arbitral award could not be heard before its application for dismissal for want of prosecution is heard and completed.

On the merits, it argued that there was no basis for the setting aside of the arbitral award as the findings of the arbitrator were factually and legally correct. It disputed that the first respondent bought individual Stands. It contended, that, it bought the whole subdivision through an addendum to the Main Agreement.

The court a quo ruled, that, in the absence of the arbitrator's record, it would not be possible for it to scrutinize the proceedings in terms of Article 34 and 36. It held, that, at law, any tribunal whose proceedings may be challenged before another tribunal ought to keep and maintain a record of proceedings.

Regarding the applicant's counter-application, the court struck it off on the basis that it was not filed in the prescribed form.

It found, that, the arbitral award was contrary to public policy in that it made additions to the express terms of the parties agreement which was itself made contrary to mandatory provisions of the law.

The court a quo therefore set aside the arbitrator's award.

The applicant wishes to appeal against the decision of the court a quo but it is out of time, hence, the application for condonation and leave to note the appeal out of time.

At the hearing of this application, on 14 November 2023, counsel for the applicant submitted, that, the applicant failed to note an appeal on time because he was not advised of the handing down of the judgement which the applicant seeks to appeal against. He submitted, that, in the circumstances, a delay of a period of not more than 22 days is not inordinate. He further submitted, that, the fact that he was not advised of the handing down of the judgment proves that the applicant was not in willful defiance of the rules of this Court and that the explanation for the delay is reasonable.

Regarding the issue of prospects of success, he submitted that the application has good prospects of success.

Counsel for the first respondent agreed, that, the parties were not notified of the handing down of the judgment which the applicant seeks to appeal against and that it was handed down in the absence of the parties.

He submitted, that, the intended grounds of appeal enjoy no prospects of success as real rights to land can only be sold after a subdivision permit has been issued. He further submitted, that, there was no approved diagram. He submitted, that, the contract entered into by the parties is unenforceable because it does not comply with mandatory provisions of the law.

Counsel further averred, that, without a record of proceedings by the arbitrator, it is impossible for the court to make an informed decision.

After hearing submissions from both parties, I postponed the matter to 20 November 2023 and directed the parties to file supplementary heads on the interpretation of section 39(1) and (2) of the Regional Town & Planning Act [Chapter 29:12] (hereinafter referred to as the RTP Act”) and section 152(1)-(4) of the Urban Councils Act [Chapter 29:15] (hereinafter referred to as the UC Act”).

SC23-24 : EDWARD MUDYAVANHU vs CAIRNS FOODS LIMITED
Ruled By: MAKONI JA, MATHONSI JA and CHATUKUTA JA

This is an appeal against the whole judgment of the Labour Court of Zimbabwe (the court a quo) sitting at Harare, dated 27 July 2022. After hearing submissions from the appellant and counsel for the respondent, the court dismissed the appeal with costs indicating that reasons for the order would ...

FACTS

The appellant was employed by the respondent as a Management Accountant. In 2001, his employment was terminated after a restructuring exercise. The appellant challenged the termination. The challenge resulted in a judgment handed down by MAKAMURE J on 13 April 2004, under LC/H/35/2004, who ruled, that, the appellant had been wrongfully dismissed from employment and ordered that he be paid damages as compensation for the wrongful dismissal.

In 2009, the appellant filed an application for quantification of damages in the Labour Court. In a judgment handed down on 27 May 2009, MHURI J quantified the damages payable in the total amount of Zimbabwean dollars $26,076,252.

In 2020, the appellant approached the High Court seeking registration of the judgment by MHURI J. DUBE J…, struck the matter off the roll. She found that the matter was improperly before the court as the award was denominated in Zimbabwean dollars which was no longer a usable currency during the period in question.

Following the striking off of the matter from the roll by the High Court, the appellant approached the Labour Court, again, under case number LC/H/APP/43/20 seeking an order for the evaluation of his salaries and benefits owed to him by the respondent. In that application, the appellant sought a variation of his damages which had been quantified in 2009 in Zimbabwean dollars to be varied to reflect a quantum of 'Zimbabwean dollars as they are currently valued'.

MANYANGADZE J, in dealing with the application, struck the matter off the roll on 3 July 2020, for the reason, that, it was improperly before the court as the appellant sought relief which had already been rendered by the court.

In September 2021, the appellant sought to contest the judgment by MANYANGADZE J, by way of appeal. He sought condonation for late filing of an application for leave to appeal as he was out of time. The application was made under case number LC/H/462/21. The application was struck off the roll by CHIVIZHE J for failure to meet the requirements of an application for condonation.

PROCEEDINGS IN THE COURT A QUO

The appellant then proceeded to make an application, in terms of paragraph 5 of Practice Direction 3 of 2013 (Practice Direction), under case number LC/H/206/22, for reinstatement of LC/H/APP/43/20 which had been struck off the roll by MANYANGADZE J on 3 July 2023.

The application for reinstatement was opposed by the respondent who averred, that, in terms of Rule 36 of the Labour Court Rules, the appellant had thirty days within which to apply for the reinstatement of LC/H/APP/43/20. In this regard, the respondent argued, that, the appellant was out of time to seek the reinstatement he sought.

The respondent also opposed the application on the basis, that, the application before MANYANGADZE J had been struck off the roll because it had been made on the basis of a subject matter which had already been disposed of by the same court. The respondent thus argued, that, reinstating the application would not result in any tangible result.

On 27 July 2022, CHIVIZHE J dealt with the application for reinstatement and found, that, the Practice Direction was introduced with a view to ensuring the uniform use of legal terms and the application of those terms in the Superior Courts.

The court noted, that, the Practice Direction was not created to replace court rules, and, as such paragraph 5 of the Practice Direction had to be read together with Rule 36 of the Labour Court Rules, 2017.

In this regard, the court found, that, as the appellant's matter had been struck off the roll because of a jurisdictional basis, and not on the basis of failure to comply with rules, the court was functus officio. The matter could not therefore be reinstated in terms of paragraph 5 of the Practice Direction.

The court further found, that, the appellant's recourse was in Rule 36 of the Labour Court Rules. The court, however, noted, that, the appellant could only resort to that Rule within 30 days of becoming aware of the abandonment of his matter, and that, in the circumstances of the case, the appellant had brought his matter two years after the last order was issued.

The application was thus struck off the roll.

THE APPEAL

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

GROUNDS OF APPEAL

“(i) The learned judge erred at law in deciding the matter on the basis of procedural technicalities when the parties had revealed to the court a consensual position for resolution of matters on the basis of merits.

(ii) Applying the requirements of Rule 36 of the Labour Court Rules 2017 in a matter that is under the regulation of, and was brought to court in terms of paragraph 5 of the Superior Courts Practice Direction 3 of 2013.”

The appellant sought the following relief, that;

“1. The appeal be allowed with costs.

2. The Labour Court order LC/ORD/499/2022 be set aside and substituted with the following:

(i) The application in case number LC/H/APP/43/20, for valuation, on the basis of the prevailing currency, of salaries, benefits and severance pay owed to Applicant by Respondent, be and is hereby, reinstated to the roll.

(ii) The Registrar be and is hereby ordered to set the matter down for hearing at the earliest convenience.

(iii) Respondent to pay cost of suit.”

PROCEEDINGS BEFORE THIS COURT

The appellant argued, that, the court a quo erred in refusing to grant the application for reinstatement of case LC/H/APP/43/20 which was his only remedy in view of the fact that it was struck off the roll. He further argued, that, the court erred as his remedies for reinstatement were provided for in the proviso to paragraph 5 of the Practice Direction.

The Court explained to the appellant, that, the application which he sought to reinstate had been struck off the roll because the court did not have jurisdiction to deal with the matter on the basis that it was functus officio. The issue had already been dealt with by MHURI J.

The court also directed the appellant's attention to the fact, that, paragraph 5 of the Practice Direction could not apply to the matter in casu. It could only be resorted to in instances where a matter is struck off the roll for infractions of the Rules.

The appellant maintained, that, the court a quo erred in striking his matter from the roll and that he had a remedy to reinstate his matter under the proviso to paragraph 5 of the Practice Direction.

Per contra, counsel for the respondent argued, that, the reinstatement which was sought by the appellant could not be attained as he could not reinstate a matter where the Labour Court had already pronounced itself on the issue at hand.

Counsel for the respondent further argued, that, the court a quo did not err in finding that the Practice Direction could not be used to reinstate the matter.

With that, counsel prayed that the appeal be dismissed with costs.

ISSUE FOR DETERMINATION

Whether or not the court a quo erred in striking off the roll the appellant's application.

APPLICATION OF THE LAW TO THE FACTS

Whether or not the court a quo erred in striking off the appellant's application

The court a quo struck off the appellant's application for reinstatement on the basis, that, the applicant wrongly applied the Practice Direction in making the application.

The court a quo opined, that, the appellant's matter, having been struck off the roll in 2020, had been deemed abandoned and the appellant could only, therefore, in the circumstances, have recourse to Rule 36 of the Labour Court Rules 2017.

It was also the court a quo's position, that, Rule 36 required the application to have been made within 30 days of the party becoming aware of the abandonment. The application was brought two (2) years after the last order, and it was, on that basis, that, the court struck the application off the roll.

The appellant's position is simply, that, because MANYANGADZE J, for whatever reason, ultimately struck his matter off the roll, his remedies lie in the Practice Direction.

In his application before the court a quo, and his initial submissions, he relied on the entire paragraph 5 of the Practice Direction. After the intervention of the court, regarding the applicability of that paragraph, he then sought to rely, only, on the proviso to paragraph 5.

The Practice Direction 3 of 2013, which provides for the meaning of the phrase 'struck off the roll' provides as follows, in the relevant parts:

“3. The term shall be used to effectively dispose of matters which are fatally defective and should not have been enrolled in that form in the first place.

4. In accordance with the decision in Matanhire vs BP & Shell Marketing Services (Pvt) Ltd 2004 (2) ZLR 147 (S) and S vs Ncube 1990 (2) ZLR 303 (SC), if a Court issues an order that a matter is struck off the roll, the effect is that such a matter is no longer before the Court.

5. Where a matter has been struck off the roll for failure by a party to abide by the Rules of the Court, the party will have thirty (30) days within which to rectify the defect, failing which the matter will be deemed to have been abandoned.

Provided that a Judge may, on application, and for good cause shown, reinstate the matter on such terms as he deems fit.”…,.

It was the appellant's argument, that, the proviso allows a party to seek reinstatement, and that, a Judge can grant the application on 'good cause shown'. He contended, that, the general provision, that is paragraph 5, which makes reference to failure to abide by the rules, and Rule 36 of the Labour Court Rules 2017, relied on by the court a quo, did not apply.

In the case R v Dibdin 1910 Probate…, LORD FLETCHER MOULTON…, in the Court of Appeal, said:

“The fallacy of the proposed method of interpretation (i.e. to treat a proviso as an independent enacting clause) is not far to seek. It sins against the fundamental rule of construction, that, a proviso must be considered in relation to the principal matter to which it stands as a proviso.

It treats it as if it were an independent enacting clause instead of being dependent on the main enactment.

The Courts, as for instance in such cases as Ex parte Partington 6 Q.B. 649; In re Brockelbank 23 Q.B. 461; and Hill v East and West India Dock Co. 9 App. Cas. 448, have frequently pointed out this fallacy, and have refused to be led astray by arguments such as those which have been addressed to us, which depend solely on taking words absolutely in their strict literal sense, disregarding the fundamental consideration that they appear in a proviso.”

A proviso cannot be treated as an independent clause but has to be considered in relation to the principal matter to which it stands as a proviso.

The argument by the appellant, that, he was only relying on the proviso to paragraph 5 'sins against the fundamental rule of construction, that, a proviso must be considered in relation to the principal matter to which it stands as a proviso.'

Reliance by the appellant on the proviso was totally misplaced.

In any event, the appellant's application a quo was not made in terms of the proviso. It was made in terms of the entire paragraph 5 of Practice Direction 3 of 2013.

The appellant could therefore not change the basis of his application a quo on appeal.

SC37-23 : CFI HOLDINGS t/a FARM & CITY vs ANDREW MACHAYA
Ruled By: GUVAVA JA, CHATUKUTA JA and MWAYERA JA

This is an appeal against the whole judgment of the High Court (court a quo) in which the court granted an application for the registration of the judgment of the Labour Court amounting to US$177,408 in favour of the respondent.FACTUAL BACKGROUNDThe labour dispute between the appellant and the respondent has ...

FACTUAL BACKGROUND

The labour dispute between the appellant and the respondent has been raging on for the past twenty-three years, dating back to 2000. The respondent was employed by the appellant as a Personnel Manager. Sometime in 2003, the appellant suspended the respondent on allegations of misconduct. The respondent challenged the suspension, resulting in a judgment by this Court, in 2012, in which the suspension was declared a nullity.

Following the nullification of the suspension, the appellant opted to retire the respondent in 2012.

The appellant paid the respondent his salaries and benefits for the period from January 2009 up to 2012 in United States dollars.

The payment for that period did not raise any dispute between the parties as the country had dollarized.

A dispute, however, arose as to the payment of salaries and benefits for the period extending from 1 April 2003 to 31 December 2008 which were denominated in Zimbabwean dollars.

The respondent filed an application in the Labour Court for the quantification of the outstanding salaries and benefits for the period 1 April 2003 to 31 December 2008 in United States Dollars.

The total amount he sought was US$1,001,381=14.

The Labour Court held, that, the respondent was not entitled to payment of benefits. It awarded him an amount of US$177,408 being arrear salaries and cash in lieu of leave with interest on the total sum payable at the prescribed rate.

PROCEEDINGS BEFORE COURT A QUO

The respondent filed an application in the court a quo for the registration of the Labour Court judgment in terms of section 92B(3) of the Labour Act [Chapter 28:01]. The respondent submitted, in the court a quo, that, the Labour Court judgment was sounding in money and could therefore be registered.

The appellant opposed the application.

It argued, that, the judgment of the Labour Court was unenforceable as it was denominated in United States dollars, which currency had ceased to be lawful currency. It submitted, that, the Labour Court erred in ordering payment in United States dollars for a debt that was incurred prior to 22 February 2019.

It was further argued, that, the judgment was therefore contra bonos mores and not registrable.

It was also argued, that, an application for leave to appeal was pending in the Labour Court under case number LC/H APP/293/2020, and, the court a quo should defer determining the application pending determination of the appeal.

In response, the respondent argued, that, the appellant was not being denied the right to pay in local currency using the Reserve Bank of Zimbabwe auction rate. He denied there being a pending application for leave to appeal. He also argued, that, the existence of an application for leave to appeal was not a valid reason for refusing to register a judgment.

DETERMINATION BY THE COURT A QUO

The court a quo found, that, the respondent had managed to satisfy the requirements for registration of the judgment of the Labour Court. It further found, that, the issue of currency of the judgment is a question of law which could only be entertained by the Supreme Court, on appeal, in terms of section 92F of the Labour Court Act. It held, that, registration of the judgment was not contrary to public policy.

The court a quo further held, that, the appellant could not seek to rely on an intended appeal as a ground for opposing the registration of the judgment, and that, in any event, the noting of an appeal does not suspend the decision appealed, and, consequently, the registration as well.

The court a quo proceeded to grant the application for the registration of the Labour Court judgment.

Aggrieved by the court a quo's decision, the appellant noted the present appeal on the following grounds:

GROUNDS OF APPEAL

“1. The court a quo erred and misdirected itself in relying on an authority neither argued nor brought to the attention of the parties.

2. The court a quo further erred and misdirected itself in failing to exercise judicial function to determine an application before it contra the specific provision of section 92B(3) of the Labour Act.

3. The court a quo further erred in failing to distinguish between and conflating the determination of the executability of a judgment with an appeal addressing the correctness of a judgment.

4. The court further erred and misdirected itself in registering and ordering the enforcement of judgment whose enforcement is proscribed and contra statutory authority per section 22 of Finance Act and section 2 of S.I. 142/19, section 4(1)(d) of SI 33/19 and section 12A(1), 92B(3) and section 94 of the Labour Act.”

SUBMISSIONS BY THE APPELLANT

Counsel for the appellant submitted, that, to order execution on an unlawful currency is contrary to the law. He argued, that, the order issued by the court a quo was not sounding in money as it was denominated in United States dollars which, at the time, was not legal tender. He further argued, that, the court a quo could therefore not register a judgment which ordered payment of arrear salaries in illegal tender.

Counsel for the appellant argued, that, the court a quo failed to exercise its judicial function when it held, that, the matter raised a point of law which could only be determined by the Supreme Court. He submitted, that, the court a quo ought to have determined whether or not the amount in issue was legal tender rather than avoid the issue.

SUBMISSIONS BY THE RESPONDENT

Counsel for the respondent submitted, that, the court a quo was not required to go into the merits of the case as doing so would be usurping the powers of the Labour Court. He submitted, that, the court a quo did not misdirect itself in failing to deal with the issues raised by the appellant. He further submitted, that, the court a quo cannot amend the Labour Court's judgment.

Counsel submitted, that, the judgment was sounding in money thereby satisfying the requirements for registration.

He argued, that, the issue that the judgment was not sounding in money was never raised in the court a quo and could not therefore be raised for the first time before this Court.

He further submitted, that, if the Labour Court's judgment was unlawful, as alleged, the appellant ought to appeal against that decision.

ISSUES FOR DETERMINATION

Two issues fall for determination:

(i) Firstly, whether the Labour Court judgment was registrable; and

(ii) Secondly, whether the court a quo ought to have entertained the question of law raised by the appellant, that, the judgment was denominated in an illegal currency.

THE LAW AND ANALYSIS

The requirements to be satisfied in an application for the registration of an award were listed in Biltrans (Pvt) Ltd v Minister of Public Service, Labour and Social Welfare & Ors 2016 (2) ZLR 306. MALABA DCJ…, citing with approval the remarks by CHIWESHE JP…, in Olympio & Ors v Shomet Industrial Development HH191-12, remarked…, as follows:

“In registering an arbitral award, the High Court and the Magistrates Court are not carrying out a mere clerical function.

While the registering Court may not go into the merits of the award, since its duty is to provide an enforcement mechanism and not to usurp the powers of the Labour Court, it must be satisfied, before registering an award, that all the necessary formalities have been complied with.

In Olympio & Ors v Shomet Industrial Development HH191-12, CHIWESHE JP at 1 and 2 of the cyclostyled judgment, outlining the requirements for registering an arbitral award, stated:

'The purpose of registration is merely to facilitate the enforcement of such an order through the mechanism availed to the High Court or the Magistrate Court, namely, the office of the Deputy Sheriff or the Messenger of Court, respectively….,.

In an application such as the present one, this Court is not required to look at the merits of the award - all that is required of this Court is that it must satisfy itself that the award was granted by a competent arbitrator, that the award sounds in money, that the award is still extant and has not been set aside on review or appeal, and that the litigants are the parties, the subject of the arbitral award. There must also be furnished, a certificate given under the hand of arbitrator….,.'

The requirements that must be satisfied before the High Court or the Magistrates Court grants an application for registration of an award are:

(a) The award must have been granted by a competent arbitrator.

(b) The award must sound in money.

(c) The award is still extant and has not been set aside on review or appeal.

(d) The litigants are the parties to the award.

(e) The award must be certified as an award of the arbitrator.”...,.

As correctly noted by the court a quo, whilst both cases related to the registration of arbitral awards, they apply with equal force to the registration of Labour Court judgments.

In casu, the appellant did not dispute that requirements (a), (c), (d), and (e) were satisfied. It, however, argued, that, the judgment was not sounding in money as it was not denominated in legal tender. It further argued, that, the judgment was not, as a result, executable and hence could not be registered.

As correctly submitted by the respondent, the question whether the judgment was sounding in money was not raised in the court a quo.

The court a quo cannot, therefore, be faulted for failing to determine an issue that was not raised before it. Had it done so, the court would have gone on a frolic of its own: see Nzara v Kashumba SC18-18....,.

WHETHER OR NOT THE COURT A QUO OUGHT TO HAVE ENTERTAINED THE QUESTION OF LAW RAISED BY APPELLANT

The appellant submitted, that, it filed an application in the Labour Court for leave to appeal against the Labour Court judgment on the basis, that, the judgment is denominated in a currency that was not legal tender at the time the judgment was rendered.

The issue whether the Labour Court could render the judgment as it did is one that the court a quo shied away from determining, and, in our view, correctly so.

The court a quo stated that:

“The issue of the currency is one that is a question of law. It can only be entertained by the Supreme Court in terms of section 92F of the Labour Court Act. It is telling, that, the respondent, in its draft founding affidavit for an intended application for leave to appeal, raised the same issue relating to S.I. 33/19 as read with the Finance Act (No.2 of 2019). The same was raised in the draft notice of appeal. The respondent clearly realised that this Court cannot purport to review the order of the Labour Court or treat it as an appeal. It is ironic that the respondent persisted with this issue at the hearing when clearly it had no merit.”

The request by the appellants, for the court a quo to determine the issue of the currency, was, in essence, a request for the court to determine the lawfulness or correctness of the decision of the Labour Court.

The court a quo did not have the power to determine the propriety of the judgment of the Labour Court. To do so would amount to delving into the merits of the matter before the Labour Court.

The court a quo could only do so in the exercise of its review or appeal powers.

The limitation of the court a quo's powers was addressed in the remarks cited above from Vasco Olympio & Ors v Shomet Industrial Development HH191-12 and Biltrans (Pvt) Ltd v Minister of Public Service, Labour and Social Welfare & Ors 2016 (2) ZLR 306 where it was clearly pronounced, that, the court a quo would not have the power to delve into the merits of the case in an application for the registration of an award, and, in this case, a Labour Court judgment.

All that the court a quo was required to do was to determine whether the requirements for registration of the judgment had been met.

It appears the appellant was mindful of the limitation of the court a quo's powers.

It argued in this Court, that, the court a quo ought to have deferred determining the application pending determination of an application for leave to appeal against the Labour Court judgment filed before the Labour Court.

It appears, from the respondent's heads of argument, that, the application was filed on 23 October 2020 and was regarded as abandoned by the Registrar of the Labour Court on 1 December 2020.

Having failed to file an application for the reinstatement of the application for leave to appeal within the time stipulated in the Labour Court Rules 2017, the appellant filed an application for condonation for the late filing of the application for reinstatement on 27 May 2021.

The appellant did not disclose to this Court the status of the application for condonation.

The court a quo could not be expected to defer the determination of the application for registration of the judgment in circumstances where there was no such application for leave pending in the Labour Court.

The court a quo did not misdirect itself in holding, that, even if there was an application for leave before the Labour Court, such application was not a barrier to the registration of the judgment.

It is trite, that, even an appeal from the Labour Court does not suspend the judgment appealed against.

The only circumstances where the High Court would be constrained to determine an application for registration is where an application for suspension of a judgment of the Labour Court is pending determination.

In Biltrans (Pvt) Ltd v Minister of Public Service, Labour and Social Welfare & Ors 2016 (2) ZLR 306…, it was stated that:

“An application for registration of an arbitral award presupposes, that, there is no application made to or pending before the Labour Court for an interim order suspending the execution of the decision appealed against. A party cannot submit, for registration, an arbitral award he or she knows, or ought to know, is subject to an interim determination suspending its execution pending appeal. The High Court or Magistrates Court would be required to take into account the fact, that, there is, at the time of entertaining the application for registration, no application pending before the Labour Court for an interim determination suspending the execution of the decision appealed against.”

An application for an interim determination suspending the execution of the decision of the Labour Court is made in terms of section 92C(3) of the Labour Act.

It is common cause, that, there is no appeal against the judgment of the Labour Court before this Court which would be the basis for the application for an interim determination suspending the execution of the decision of the Labour Court.

The court a quo was correct in holding, that, an appeal on a question of law lies to the Supreme Court from any decision of the Labour Court: see section 92F of the Labour Court Act [Chapter 28:01].

In the absence of an appeal against the Labour Court judgment, this Court is constrained to determine the question relating to the correctness of the judgment of the Labour Court where the matter is not properly before it.

SC41-23 : CASSIAN MANUHWA vs SEEDCO ZIMBABWE (PRIVATE) LIMITED
Ruled By: GWAUNZA DCJ, KUDYA JA and MWAYERA JA

The appellant appeals against the whole judgment of the Labour Court (the court a quo), which was handed down on 9 January 2015. The court a quo dismissed his appeal against the determination of the disciplinary authority, which found him guilty of misconduct and dismissed him from employment.The FactsThe appellant ...

The Facts

The appellant was employed by the respondent as a Sales Distribution Services Manager. He was suspended from employment without any salary or benefits on 13 December 2010. On 4 January 2011, he was charged, by the disciplinary authority, with an act of conduct or omission inconsistent with the fulfilment of the express or implied conditions of his contract of employment in contravention of section 4(a) of the Labour (National Code of Conduct) S.I.15/2006 (the National Employment Code).

He was alleged to have authorized the dispatch of seed maize valued at US$931,735=06 on credit to Nelmah Holdings (Pvt) Ltd (the agro-dealer) in violation of the requisite internal procedures of the respondent.

He contested the charge, but, was subsequently convicted thereof, on 13 January 2011, and dismissed with effect from the date of suspension.

He was legally represented at the hearing.

He raised two defences:

(i) The first was that he was verbally authorized by his immediate supervisor, Ivan Craig, to dispatch the seed maize to the agro-dealer.

(ii) The second was that the respondent's electronic credit management system broke down and disabled him from detecting the breach of the credit limit of the agro-dealer and stop the sales transactions in real time.

He, however, conceded that he was well versed with the respondent's manual pre-credit check system.

The disciplinary authority found his “evidence to be full of inconsistencies” and his “conduct reckless”. It held, that, Ivan Craig did not authorize him to dispatch the seed maize to the agro-dealer.

It was common cause, that, the appellant did not conduct any pre-credit checks. It was also common cause, that, the manual pre-credit checks preceded the credit sales and the electronic notification of the breach of a credit sale. It was further common cause, that, the respondent's electronic sales management system was down and could not, therefore, alert the Sales Office of any credit limit breach in real time.

The disciplinary authority found, that, by virtue of his seniority, the appellant knew the manual, internal pre-credit checking procedures required of him before he could authorize the sale of seed maize on credit. It, therefore held, that, the failure of the electronic system to flag the breach would not absolve him from physically verifying the credit limit and status of the agro-dealer before authorizing the sale.

Lastly, it found that even though the electronic warning system was down, he ignored the verbal warning given to him by the Credit Controller, one Thomas Mavhurumutse, on 22 October 2010 and on 28 October 2010, that, the agro-dealer had exceeded its credit limit. He, therefore, failed to stop any further deliveries to the prejudice of the respondent.

He was thus convicted of misconduct and duly dismissed from employment.

Aggrieved by the determination of the disciplinary authority, he filed an appeal and an application for review in the court a quo, raising 15 grounds of appeal against conviction, an additional 5 grounds against the penalty, and, a further, 4 grounds of review.

The Contentions a quo

In the court a quo, counsel for the appellant impugned the disciplinary authority's factual findings on the basis, that, they constituted a gross misdirection, which amounted to a misdirection of law to which no sensible court applying its mind to the facts would have made.

He contended, that, the disciplinary authority incorrectly found that the appellant had mero motu authorized the dispatch of seed maize to the agro-dealer. He argued, that, the appellant had acted, as he was wont to do, on the verbal instruction of his immediate supervisor.

He contended, that, the contrary finding of the disciplinary authority ignored the testimony of Thomas Mavhurumutse and the contents of the input credit application forms submitted by the agro-dealer for its respective winter wheat and summer maize programs.

He argued, that, Thomas Mavhurumutse and the agro-dealer's representatives confirmed, that, Ivan Craig had verbally authorized the appellant to sell seed maize on credit.

He further argued, that, Ivan Craig's signature, for and on behalf of the respondent, on the summer maize application form signified two things:

(i) Firstly, the execution of a binding contract between the agro-dealer and the respondent.

(ii) Secondly, the written authorization by Ivan Craig to sell maize seed to the agro-dealer on credit.

He also contended, that, Bramwell Bushu, who replaced Ivan Craig as his immediate supervisor, had prior knowledge of the agro-dealer's credit transaction. This, so he argued, was demonstrated by the letter written to the agro-dealer by Bramwell Bushu on 6 October 2010. In the letter, Bramwell Bushu affirmed the respondent's ability to supply the agro dealer's seed maize requirements, specified in its letter dated 5 October 2010.

Counsel further argued, that, the failure by the respondent's electronic sales management system to block the excessive credit sales led the appellant to believe, that, it had an extant credit limit that had not yet been reached.

The appellant did not motivate any of his grounds of review in his main written heads of argument a quo. He was prompted to do so in his supplementary heads, which he filed in response to the respondent's heads.

He, therein, strenuously argued, that, his references to the conduct of Bramwell Bushu, which only came to his attention after the disciplinary proceedings, established his four grounds for review.

The only relevant ground for review was that Bramwell Bushu was an interested and biased party, who, for that reason, could not have represented the respondent as the complainant in the disciplinary proceedings. This was because he had concealed his letter of 6 October 2010 from the disciplinary authority.

The other three grounds for review related to the subsequent fraud charges levelled against Bramwell Bushu after the hearing, and the recovery efforts the appellant purportedly initiated and negotiated with the agro-dealer, after the misconduct came to light.

Per contra, the respondent made the following contentions in its written heads of argument a quo.

The application for review was fatally defective in that it sought to introduce new evidence which was not before the disciplinary authority.

This evidence, comprised the arrest of Bramwell Bushu for fraud, arising from the same transactions, subsequent to the disciplinary proceedings, and his letter of 6 October 2010.

The letter did not constitute a credit guarantee letter but was a supply guarantee letter.

In any event, the new evidence was not only irrelevant to the resolution of the dispute before the disciplinary authority but also negated the hallowed principle of finality to litigation.

It was improper for the appellant to seek to try out new issues on fresh facts simply because the first set of facts had proved inadequate.

The remaining grounds of review did not impugn the manner in which the disciplinary proceedings were conducted. They raised mitigatory factors, which rightly fall into the ambit of an appeal against sentence rather than the legality, procedural propriety, and rationality of the hearing.

Regarding the appeal, it argued that the determination was rationally linked to the facts and evidence and could not be interfered with on appeal. It submitted, that, the appellant was correctly convicted and rightly dismissed, because, the offence went to the substratum of and destroyed the employment relationship between the parties.

The findings of the court a quo

The court a quo reduced 15 grounds of appeal to a single issue of whether the hearing officer grossly misdirected himself by convicting the appellant on the evidence that was placed before him. Likewise, the issue raised against sentence was whether or not the sentence of dismissal was appropriate.

It held, that, the review grounds did not constitute proper grounds of review.

It however regarded them as abandoned as they had not been motivated, but, did not make a determination on the application.

Regarding the appeal, the court a quo held, that, the appellant authorized credit sales above the agro-dealer's US$20,000 limit. He did so without adhering to the prevailing manual procedures - which were known to him. He was required to follow them before authorizing the sale. The electronic credit sales management system would only be activated subsequent to the mandatory manual pre-credit checks. The malfunctioning of the electronic system did not, therefore, absolve him from making the manual pre-credit checks.

It also upheld the factual findings of the disciplinary authority, that, Ivan Craig did not authorize any sales in excess of the agro-dealer's credit limit. The findings were supported by the oral and written testimonies of Ivan Craig, Thomas Mavhurumutse, Melody, Locadia Marongwe and Muzadzi who all interacted with the appellant at all material times.

They were also confirmed by the documentary evidence and the probabilities.

It further found, that, the agro-dealer could not have concluded a summer seed maize credit sale contract with the respondent, as suggested for the first time on appeal by the appellant, without submitting the required credit insurance cover.

The court a quo further found, that, the probabilities demonstrated that the appellant's conversation with Ivan Craig, over the Zimbabwe Farmers Union (ZFU) seed maize voucher program, could not reasonably be construed as constituting the disputed verbal authorization. The court a quo, therefore, held that the appellant had disingenuously authorized the credit sale for the benefit of the agro-dealer in lieu of the ZFU voucher program.

By consent, the parties called, on appeal, the evidence of Ivan Craig and Bramwell Bushu and produced the letter written by the agro-dealer on 5 October 2010 and Bramwell Bushu's 6 October 2010 reply.

SC48-23 : WONDER DUBE vs KEITH MATSEKA
Ruled By: BHUNU JA

This is an opposed chamber application for reinstatement of an appeal under case number SC166/22. The application is brought consequent to the applicant's failure to file his heads of argument within the prescribed time limits.THE LAWThe legal requirements for the application to succeed are well known. In Apostolic Faith Mission ...

THE LAW

The legal requirements for the application to succeed are well known. In Apostolic Faith Mission & Two Ors v Murefu SC28–03, the court held that the applicant must satisfy the court that:

(a) He has a reasonable explanation for the delay.

(b) He has reasonable prospects of success on appeal.

A Judge sitting in chambers is duty bound to interrogate the application and be satisfied, that, one or other of the essential requirements stipulated by law have been met before the application can succeed.

I now proceed to determine whether the two requirements for the application to succeed have been met....,.

WHETHER THE APPLICANT HAS REASONABLE PROSPECTS OF SUCCESS ON APPEAL

In disposing of the above issue, it is necessary to give a brief resume of the facts so as to gain an insight into the applicant's prospects of success on appeal.

The brief facts, as outlined in the court a quo's judgment, are, by and large common cause.

The respondent issued summons in the Magistrates Court for the eviction of the applicant and all those claiming occupation through him from Stand Number 1, Village 5, Central Estates, Mvuma. The respondent's case was that he had been allocated the Stand in 2000 and was later granted an offer letter on 20 February 2004.

He claimed that the applicant unlawfully occupied part of his Stand in 2002.

The applicant opposed the claim on the basis, that, he was not occupying any portion of Stand Number 1, but, was actually occupying Stand Number 2 of which he is the owner. The respondent could not, therefore, evict him from his own Stand.

Upon consideration of the evidence before him, the magistrate made a factual finding, that, Stand number 1 was allocated to the respondent whereas Stand number 2 was allocated to the applicant. The applicant had, however, encroached onto the respondent's land thereby triggering the dispute. On the basis of such finding, he granted the respondent's claim and ordered the applicant's eviction from the disputed piece of land adjudged to be part of Stand number 1.

The magistrate's judgment was premised on a map adduced in evidence and an inspection in loco the court carried out.

Upon consideration of the totality of the evidence before him, the magistrate concluded, that, the applicant was occupying Stand Number 1, not Stand Number 2 that was allocated to him. He found, that, the applicant was occupying a piece of land that is between waterways when Stand Number 2 is beyond the second water-way.

The court observed, that, the District Administrator, who had testified in favour of the applicant, was not a credible witness.

Aggrieved, the applicant appealed to the High Court (the court a quo) without success.

On appeal, he challenged the authenticity of the map produced by the respondent in evidence. He contended, that, the provisions of the Land Survey Act [Chapter 20:12] should have been followed. He stated, that, the undisputed facts are that the land in question was surveyed and beacons installed; the beacons should, therefore, have been located to resolve the dispute. He argued, that, the beacons had to be located by a land surveyor.

He further challenged the jurisdiction of the presiding magistrate to hear and determine the matter on the basis, that, the dispute ought to have been resolved by the Land Commission since it involved the extent of boundaries. He further challenged the Magistrates Court jurisdiction on the basis, that, the amount involved exceeded the Magistrates Court jurisdiction.

In the court a quo, he accordingly sought an order setting aside the judgment of the Magistrates Court and that the matter be referred for a fresh trial in the Magistrates Court.

His quest, in this respect, found no favour with the court a quo.

On the other hand, counsel for the respondent countered, that, the applicant had failed to place before the court a quo evidence tending to show, on a balance of probabilities, that, the right of occupation in issue exceeded $2,000 so as to oust the trial magistrate's jurisdiction. He further submitted, that, both the trial magistrate and the court a quo had the necessary jurisdiction to hear and determine the matter. It was contended on his behalf, that, both courts properly assessed the evidence before them and came up with the correct decision.

On the question of jurisdiction, the court a quo found, that, the issue of jurisdiction had never been raised before the trial magistrate. It thus held, that, it was improper for the applicant to raise the issue of jurisdiction for the first time on appeal.

The court, however, went on to hold that the Magistrates Court had jurisdiction to preside over the dispute as it was not being called upon to determine boundaries between the two pieces of land in dispute.

It further found, that, the issue of the map was not relevant for the resolution of the dispute.
Consequently, the Land Survey Act was not relevant. The court a quo also found, that, the argument that the District Administrator was not aware of the inspection in loco was unmeritorious since the court does not need permission from anyone to carry out an inspection in loco.

The applicant was dissatisfied by the decision of the court a quo.

He noted an appeal to this Court. He however failed to file heads of argument timeously. As a result, the appeal was deemed abandoned and was accordingly dismissed.

The applicant therefore turned to this Court, in chambers, for the reinstatement of the appeal.

ANALYSIS AND DETERMINATION

It is trite, that, the issue of jurisdiction remains alive between the parties at every stage of the proceedings. It may therefore be raised at any stage of the matter, including at the appeal stage, though, in appropriate cases, a litigant may be held to have abandoned, acquiesced in, or submitted to the court's jurisdiction.

In any proceedings, it is convenient that the issue of jurisdiction be raised right at the commencement of proceedings to avoid wasting time and money. It is pointless to proceed with a trial in which the court has no jurisdiction.

In Commercial Union Assurance Co. Ltd v Waymark N.O. 1995 (2) SA 73 (TR)…, it was held that:

“An objection to the jurisdiction of the court should be taken in limine; a party who fails to object to the jurisdiction of the court before litis contestation may be assumed to have acquiesced to the court's jurisdiction.”

It is, however, up to the Appeal Court to finally determine the issue of jurisdiction.

View Appeal
HH533-21 : PETROMOC EXOR (PVT) LD and KUDZANAI CHIMEDZA vs KUDZANAI CHIMEDZA and PETROMOC EXOR (PVT) LTD and OTHERS
Ruled By: MANGOTA J

I heard this application on 1 July 2021. I struck it off the roll with costs. On 1 July 2021, the applicant's legal practitioners wrote to the Registrar of this court. They requested written reasons for my decision.

These are they:

The applicant (Petromoc Exor (Pvt) Ltd) premised its application on a lease which it claimed it signed with the third respondent (Ministry of Lands, Agriculture, Water Climate and Rural Resettlement).

The lease, it alleged, was to endure from 17 July 2019 to 31 June 2024. It stated, that, it leased Duncombe Fuel Filling Station (“the property”) from the third respondent. The lease excluded the Bulk Fuel Reservoir, according to it. It moved me to:

(i) Declare it to be the lawful lessee and occupier of the property;

(ii) Interdict the first and second respondents (Kudzanai Chimedza and Cranrid Petroleum (Pvt) Ltd) from occupying the property; and

(iii) Evict the mentioned respondents from the property.

The first respondent opposed the application.

He placed reliance on his Annexure 'A' in terms of which the Provincial Lands Officer for Mashonaland Central Province recommended that he be allowed to rent the property.

He alleged, that, he concluded a lease of the property with Mazowe Rural District Council, which, according to him, derived its mandate to lease the property to him from the third respondent.

He challenged the authenticity of the lease Annexure 'B' which the applicant allegedly concluded with the third respondent on 17 July 2019.

He moved me to dismiss the application with costs.

The property which is the subject of this application is situated a Duncombe Farm which is in the district of Mazowe. The farm was acquired by Government on 18 January 2002. It was acquired in terms of Government Gazette Extraordinary Vol. LXXX No.5.

It follows from the stated fact, that, any person who occupies the whole, or any portion of the farm can only do so with the lawful authority of the Government of Zimbabwe. He should, in other words, be in possession of any of the documents which are mentioned in section 2 of the Gazetted Land (Consequential Provisions) Act [Chapter 20:28] (“the Act”). These comprise:

(a) An offer letter; or

(b) A permit; and/or

(c) A land settlement lease.

The question which begs the answer is: which authority in Zimbabwe has the power to issue any of the abovementioned documents to natural persons or legal entities who or which intend to possess or occupy the whole, or a portion, of State land?

The interpretation section of the Gazetted Land (Consequential Provisions) Act provides a partial answer to the same.

It defines the phrase 'acquiring authority' to mean the Minister responsible for land or any other Minister to whom the President may, from time to time, assign the administration of the Gazetted Land (Consequential Provisions) Act. It defines the phrase 'offer letter' to refer to the offer letter which is issued by the acquiring authority to any person that offers to allocate to that person any gazetted land or a portion of gazetted land described in that letter.

A land settlement lease is provided for in the Agricultural Land Settlement Act [Chapter 20:01]. Section 8 of the same confers power on the Minister to issue leases to interested applicants. It reads:

“8. The Minister may, subject to this Act, issue leases to applicants in respect of holdings of land.”

It defines the word 'Minister' to mean the Minister of Lands and Water Resources or any other Minister to whom the President may, from time-to-time, assign the administration of the Agricultural Land Settlement Act.

It is clear from a reading of section 2 of the Gazetted Land (Consequential Provisions) Act as read with section 8 of the Agricultural Land Settlement Act, that, the power to issue offer letters and/or leases is confined to no one else but the Minister.

The legislature spoke clearly and loudly on this matter.

It did not allow the Minister, to whom it conferred the authority to issue offer letters or leases to applicants, to delegate his authority of issuing offer letters and/or leases to officials who work under his supervision in a Ministry in which he is the Minister.

Perhaps, the legislature intended to avoid such situations as the first respondent is portraying when it restricted the issuance of offer letters and land settlement leases to no one else but the Minister whom the President appoints for purposes of dealing with land matters.

Judicial notice is taken of the fact, that, land is a very emotive issue. It caused, and still causes, many people to perish in wars which have or are aimed at asserting their rights in this very valuable but also very finite God-given resource.

It occurs to me, that, when the legislature conferred the power to issue offer letters and land settlement leases to the Minister who is responsible for land, or to any other Minister whom the President appoints for the purposes of dealing with land matters, its clear intention was to ensure consistency as well as to avoid unnecessary wars, disputes, and/or litigation.

Because the legislature spoke in a clear and unambiguous language, on the point which relates to the authority which has the power to issue offer letters and land settlement leases, its language cannot be misconstrued at all. It should, in other words, be taken as it appears in the statute books which I have already referred to.

It rides on the known and accepted principle which states, that, the mention in a statute of one thing excludes the other or other things.

Annexure “B” which the applicant attached to its application, shows, that, it applied to lease the property for fuel distribution. Reference is made in the mentioned regard to p42 of the record. The following officers, it is observed, supported the application:

(i) The district land officer;

(ii) The provincial estate management officer; and

(iii) The chief land officer.

The lease, Annexure 15, which the applicant attached to its founding papers, appears at pages 11 to 18 of the record. It states, at p11, that, the Minister of Lands, Agriculture, Water and Rural Resettlement entered into an agreement of lease with the applicant.

The lease, it is pertinent, constitutes the applicant's cause of action against the first and second respondents.

It was not, however, signed by the Minister as per the provision of the law. It was signed by the Under-Secretary for Rural State Land. He signed it for and/or on behalf of the Minister.

The long and short of the observed matter suggests, that, the Minister issued the lease to the applicant through the Under Secretary, presumably of the Ministry which the Minister supervises.

The question which begs answer is; does the Minister have the power, at law, to issue an offer letter or a land resettlement lease through an official who works in his Ministry? Does he, the question goes, have the power to delegate to the Under-Secretary his authority to issue the land resettlement lease to such persons as the applicant?

The answer is definitely in the negative.

The same question, viewed from a different perspective, is: does the Under Secretary have the power, at law, to sign the lease for and on behalf of the Minister?

The answer is that he does not have such power.

It is pertinent to note, that, when the legislature enacted the sections which confer power or authority on the Minister to issue offer letters and leases, it made a clear distinction between the Minister, on the one hand, and officers who work under his supervision, on the other. It also made a clear division of labour between them. It realized, that, the Minister, as a natural person, cannot work alone. It remained alive to the fact, that, officers who work under the supervision of the Minister come in handy to do the ground work for the Minister's attention.

The recommendations which the District Lands Officer, the Provincial Estate Management Officer, and the Chief Lands Officer, for instance, made, in regard to the application of the applicant, should have assisted the Minister in his decision to offer, or not to offer, the land settlement lease to the applicant.

The work of the officers, therefore, terminates at the recommendation stage.

It leaves the Minister to read their recommendation, as well as to place reliance upon it, and to issue the lease to the applicant.

The decision and action of issuing the lease rest with no one else but him.

The act of issuing offer letters and/or leases to prospective applicants for land excludes officers of the Ministry. The law does not confer any power on them to issue those documents.

It goes without saying, that, the lease which the Under-Secretary issued is not valid. It has no legal force or effect. It violates clear provisions of the law.

The Under Secretary cannot issue any lease to anyone, let alone to the applicant. He has neither the power nor the authority to do so. The Minister has neither the power nor the authority to allow the Under-Secretary to issue the lease to the applicant. He cannot delegate the responsibility which is reposed in him to the Under Secretary.

The mandate to issue the offer letter or the lease lies with no one else but the Minister.

SC67-23 : HWANGE COLLIERY COMPANY LIMITED and DALE SIBANDA N.O. vs PALEHOUSE INVESTMENTS (PRIVATE) LIMITED
Ruled By: MAVANGIRA JA, BHUNU JA and CHIWESHE JA

This is an appeal against the whole judgment of the High Court (the court a quo) sitting at Harare, dated 1 March 2022, setting aside the second appellant's decision to deny the respondent leave to sue the first appellant and granting the respondent leave, in terms of section 6(b) of the Reconstruction of State Indebted Insolvent Companies Act [Chapter 24:27] (the Act), to institute proceedings against the first appellant for damages for breach of contract.

Aggrieved by the decision of the court a quo, the appellants have noted the present appeal for relief.

THE PARTIES

The first appellant is a company under administration pursuant to the provisions of the Reconstruction of State-Indebted Insolvent Companies Act. The second appellant is the administrator to the first appellant.

In terms of the State Indebted Insolvent Companies Act, a company under reconstruction, such as the appellant, cannot be sued without leave granted by its administrator.

The third respondent is a company duly registered in terms of the laws of Zimbabwe.

FACTUAL BACKGROUND

On 17 August 2017, the first appellant and the respondent entered into an agreement in terms of which the respondent was to hire out to the first appellant certain equipment for use at its mining operations. It was a term of the agreement, that, the first appellant would pay the respondent the sum of US$220,000 as mobilisation and demobilisation fees for the equipment. It was a further term of the agreement, that, in the event of termination by either party, fourteen (14) days written notice shall be given to the defaulting party, calling upon it to remedy its breach within those fourteen (14) days failing which the agreement would be cancelled by the aggrieved party.

On 31 January 2018, the first appellant addressed to the respondent a letter headed “Notice to terminate - equipment hire agreement” wherein it notified the respondent, that, it intended to terminate the agreement with effect from 15 February 2018. The first appellant alleged, that, the respondent had breached the agreement in a material way in that “since their commissioning to date, none of the hired excavators has been able to achieve the agreed monthly production target and none has been able to achieve 85% availability.”

The respondent's view was that the first appellant's letter of termination did not comply with the provisions of the termination clause of the agreement. It therefore considered such termination to be unlawful.

The respondent contended, that, as a result, it suffered damages in the sum of US$4,000,000 representing the full contract price it would have realized had the contract run its full course.

It also contended, that, the first appellant owed it the sum of US$220,000 being the mobilisation fees.

By the time of this fall out, the first appellant had been placed under reconstruction in terms of the State Indebted Insolvent Companies Act and the second appellant was appointed as its administrator.

The respondent wrote to the second appellant seeking leave to sue the first appellant.

Leave to sue was denied for the reason, inter alia, that, the respondent's case had no merit and that, instead, it was the first appellant who should be suing the respondent whom it had overpaid.

Aggrieved by the stance taken by the second appellant, to deny it leave to sue the first appellant, the respondent approached the court a quo seeking review of the second appellant's decision. It listed grounds for review as follows:

“(a) Gross unreasonableness of the decision arrived at.

(b) Unfair withholding of leave to sue.

(c) Bias or interest in the cause.”

After a full hearing, the court a quo granted the application for review and issued the following order:

“1. The second respondent's decision of 29 March 2021, denying the applicant leave to sue the first respondent be and is hereby set aside.

2. The applicant is granted leave, in terms of section 6(b) of the Reconstruction of State Indebted Insolvent Companies Act [Chapter 24:27], to institute proceedings against the first respondent for damages for breach of contract and unpaid mobilisation costs.

3. Each party shall bear its own costs.”

It is that order that is the subject of this appeal.

GROUNDS OF APPEAL

The grounds of appeal are as follows:

“1. The court a quo erred in granting the respondent 'leave to sue' when such relief cannot be granted by a court acting in accordance with section 4 of the Administrative Justice Act [Chapter 10:28].

2. Furthermore, the court a quo misdirected itself setting aside second appellant's administrative decision in circumstances where the said court makes no finding of illegality, gross impropriety, manifest irrationality, arbitrariness, or a failure by the administrative authority to apply his mind to the facts of the matter.

3. The court a quo also erred in enquiring into the merit of the disputation inter parties instead of evaluating whether, in the circumstances, the respondent was entitled to negation of the moratorium enjoyable by the first appellant under section 6(b) of the Reconstruction of State Indebted Insolvent Companies Act [Chapter 24:27].

4. Concomitant to the aforementioned ground, the court a quo further erred in granting the respondent unconditional leave to institute proceedings against the first appellant in circumstances where the putative claim was not cognizable at law.”

RELIEF SOUGHT

The appellants seek the following relief:

“1. That, the instant appeal succeeds with costs.

2. That, the order of the court a quo be set aside and substituted with the following:

(i) The application is dismissed.

(ii) The applicant shall pay the respondent's costs.”...,.

Counsel for the respondent submitted, that, the appellants fourth ground of appeal, raised belatedly, has no merit.

Counsel for the appellants sought to argue, that, the respondent's putative claim was not cognizable at law, and, for that reason, the second appellant could not have granted leave to sue on such a defective claim.

We agree with counsel for the respondent, that, the respondent's suit for breach of contract is clearly recognized at law. To argue otherwise is an attempt to turn the law of contract upside down.

The appellants further argued, that, the respondent's intended claim is in United States dollars contrary to the provisions of Statutory Instrument 33 of 2019 which require that the transaction which arose in January 2018 be denominated in RTGS dollars at the rate of 1:1 with the United States dollar.

In support of this contention, the appellants relied on the decision in the case of Zambezi Gas Zimbabwe (Pvt) Ltd v N.R. Barber (Pvt) Ltd and Anor SC03-20 wherein MALABA CJ had this to say:

“..,. The Presidential Powers (Temporary Measures) Amendments of Reserve Bank of Zimbabwe Act and issue of Real Time Gross Settlement Electronic Dollars (RTGS Dollars) (SI33/19) expressly provides that assets and liabilities, including judgment debts, denominated in United States dollars immediately before the effective date of 22 February 2019 shall, on or after, the aforementioned date be valued in RTGS dollars on a one to one rate.”

Further reliance was placed on the remarks of DUBE J…, in Manica Zimbabwe (Pvt) Ltd HH705-20 where she correctly held that:

“…, the effect of the Zambezi Gas case is that these provisions affect those assets and liabilities that existed prior to the effective date, were valued and expressed in United States dollars, and were still so valued and expressed on the effective date, other than those referred to in section 44C(2) of the principal Act, which shall be deemed to be values in RTGS dollars at a rate of one to one to the United States dollar. These legislative provisions prevent a court from awarding a judgment sounding in foreign currency unless in the case of the exceptions listed.”

The respondent has submitted, that, its putative claim is one for damages.

A claim for breach of contract is an un-liquidated claim, and, as such, cannot be affected by the provisions, of SI33 of 2019.

We agree with those submissions.

The value of the claim is still to be assessed by a competent court.

In Zambezi Gas Zimbabwe (Pvt) Ltd v N.R. Barber (Pvt) Ltd and Anor SC03-20, MALABA CJ clarified the positions as follows:

“If, for the example, the value of the assets and liabilities was, immediately before the effective date, still to be assessed by application of an agreed formula, section 4(1)(d) of SI 33/19 would not apply to such a transaction even if the payment would thereafter be in United States dollars. It is the assessment and expression of the value of the assets and liability in United States dollars that matters.”

In any event, section 3(1) of SI 33/2019 amended the Reserve Bank Act by the insertion, after section 44B thereof, of section 44C which it provides for the issuance and legal tender of RTGS dollars. Section 44C(2) provides as follows:

“(2) The issuance of any electronic currency shall not affect or apply in respect of -

(a) Funds held in foreign currency designated accounts, otherwise known as 'Nostro FCA account' which shall continue to be designated in such foreign currencies; and

(b) Foreign loans and obligations denominated in any foreign currency, which shall continue to be payable in such foreign currency.”

Thus, the above provisions provide exceptions to the general rule, that, all assets and liabilities denominated in United States dollars, on or before the effective date, shall be deemed to be payable in RTGS at the rate of 1:1.

The payment of foreign obligations in foreign currency is thus permissible.

As long as these exceptions exist, the respondent cannot be denied leave to sue in United States dollar terms. The onus will be on the respondent to convince the trial court, that, his case is covered by either of those exceptions.

The second appellant cannot take it upon himself to make that determination.

SC68-23 : MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS and ATTORNEY GENERAL OF ZIMBABWE vs NYASHA CHIRAMBA
Ruled By: GWAUNZA DCJ, MATHONSI JA and KUDYA JA

By order dated 8 June 2022, the High Court [“the court a quo”] issued a mandamus in terms of which the appellants were compelled to submit a Bill necessary to give effect to section 106(3) of the Constitution of Zimbabwe [“the Constitution”] for consideration by Cabinet by no later than forty-five days from the date of the order.

Section 106(3) of the Constitution requires an Act of Parliament prescribing a code of conduct for Vice-Presidents, Ministers, and Deputy Ministers to be promulgated.

Given that no such Act of Parliament is currently in existence, the respondent filed an application a quo contending that it was the responsibility of the appellants to introduce the Bill necessary to give effect to section 106(3) of the Constitution.

The application was strenuously opposed by the appellants, but, despite such opposition, the court a quo granted it aforesaid.

Aggrieved, the appellants appealed to this Court.

On 6 June 2023, this court heard submissions from counsel, on appeal, after which the court issued the following order:

“IT IS ORDERED THAT:

1. The appeal be and hereby allowed with costs.

2. The judgment of the court a quo, in its entirety, be set aside and substituted as follows:

'The application for a mandamus order be and is hereby dismissed with costs.'”

The court indicated that the reasons for judgment would be furnished in due course. What follows hereunder are those reasons.

THE FACTS

The first appellant is the Minister of Justice, Legal and Parliamentary Affairs, while the second appellant is the Attorney General. The respondent, Nyasha Chiramba, is a law student who introduces himself as a firm believer in human rights.

The respondent filed a constitutional application in the court a quo for a mandamus compelling the appellants to comply with section 106(3) of the Constitution of Zimbabwe 2013 [“the Constitution”] by initiating the process of enacting the Act contemplated in the subsection.

The respondent asserted locus standi to bring the application on the basis, that, he has an interest in enforcing compliance with the supreme law of the land.

Section 106(3) of the Constitution provides:

“106 Conduct of Vice-Presidents, Ministers and Deputy Ministers

(1)…,.

(2)…,.

(3) An Act of Parliament must prescribe a code of conduct for Vice-Presidents, Ministers and Deputy Ministers.”

In the court quo, the respondent averred that the first appellant is the Minister responsible for overseeing the Constitution, Bills, and other legal matters on behalf of the Government. He also averred, that, the second appellant is responsible for drafting legislation on behalf of the Government of Zimbabwe.

The respondent asserted, that, even though more than seven years had passed after the promulgation of the Constitution, the appellants have not enacted the Act of Parliament envisaged in section 106(3) of the Constitution.

In his view, Parliament could only exercise its prerogative of enacting the Act of Parliament after the introduction of a Bill to it through publication in the Government Gazette. Thus, so the respondent stated, the failure to enact the Act of Parliament envisaged by section 106(3) was a breach of the Constitution falling squarely on the shoulders of the appellants.

The respondent strongly advanced the claim, that, it was the first appellant's obligation to introduce and promote a Bill designed to give effect to section 106(3) of the Constitution.

To justify his claim that the Act of Parliament contemplated in section 106(3) was overdue, the respondent made reference to incidents involving Vice-Presidents and Ministers which he considered to have involved questionable conduct, which conduct could have been dealt with in terms of the envisaged Act of Parliament - had it been in place.

PROCEEDINGS BEFORE THE COURT A QUO

In motivating the application, the respondent averred that he had established a right in terms of section 106(3) of the Constitution. To him, the continued delay in the initiation of the process to enact the Act of Parliament potentially leaves public officials un-accountable to the people.

Finally, he averred that there was no other remedy available to him which could move the appellant to give effect to section 106(3) of the Constitution other than approaching the court a quo, as he did.

As already stated, the appellants opposed the application for a mandamus.

The first appellant denied that the President of Zimbabwe assigned to him the specific function of enforcement and harmonisation of the Constitution. He also denied, that, he has a duty to prepare and initiate legislation, which duty, to him, lies with Cabinet and Parliament. He specifically denied that he has an obligation to initiate the enactment of the Act of Parliament contemplated in section 106 of the Constitution.

The first appellant also denied that section 106(3) of the Constitution bestows a right on the appellant and accordingly urged the court to dismiss the application.

For his part, in his own opposing affidavit, the second appellant cited a portion of the respondent's founding affidavit to make the point, that, no relief whatsoever was sought against him, which assertion was, however, controverted by the respondent.

The second appellant also noted, that, in several paragraphs of the founding affidavit, and in the first two paragraphs of the draft order, the respondent had sought relief against him even though from his reading of the founding affidavit, the respondent had said he would not seek relief against him.

The second appellant denied that he was under a constitutional obligation to enact the law in question.

I have said that the court a quo issued an order on 8 June 2022. It subsequently furnished reasons for judgment to the parties, in which it found that the respondent had the requisite locus standi to file the application. The respondent's locus standi had been put in issue.

On the preliminary point taken by the appellants, that there was a non-joinder of the Parliament of Zimbabwe or Cabinet, the court a quo held that the non-joinder of the Parliament of Zimbabwe or Cabinet had no adverse effect on the matter that was before it. In making that conclusion, the court a quo relied on the provisions of Rule 32(11) of the High Court Rules 2021.

On the merits of the application, the court a quo found, that, the Act contemplated by section 106(3) of the Constitution can only be introduced by a “Public Bill”. It found it inconceivable that a Member of Parliament, who is not a Cabinet member, can introduce a Bill in the National Assembly which deals with, as well as defines, the conduct of public office holders such as Vice-Presidents, Ministers, and Deputy Ministers. The court a quo also made a finding, that, the first appellant did not deny that the responsibility to introduce the Bill in question was one of his functions.

In respect of the second appellant, the court a quo held that he could not be treated differently from the first appellant by virtue of his advisory role to the Government.

It reasoned, that, he should have picked upon section 106(3) of the Constitution and rendered the necessary advice to the Government on its remit.

Accordingly, the court a quo stated that both appellants “stood convicted of serious dereliction of duty in so far as the actualisation of [section 106(3) of the Constitution] is concerned.”

It concluded, that, the appellants had turned a blind eye to their constitutional obligations and had no defence to the application.

The application was thus granted and the court a quo issued an order in the following terms:

“IT IS ORDERED THAT:

1. The respondents be and are hereby ordered to submit to the Cabinet, for consideration, the Bill envisaged by section 106(3) of the Constitution of Zimbabwe within forty-five days from the date of this order; and

2. No order as to the costs.”

PROCEEDINGS BEFORE THIS COURT

Aggrieved by the judgment of the court a quo, the appellant noted this appeal on the following sole ground of appeal:

“The court a quo misdirected itself and erred in law in finding that the Appellants, either individually or collectively, have an obligation to initiate a Bill of Parliament for submission to Cabinet which will give effect to section 106(3) of the Constitution of Zimbabwe, in circumstances where the Constitution itself does not place such a duty on the appellants, either individually or collectively.”

The sole issue arising for determination is whether or not the appellants have an obligation of initiating the enactment of the Act of Parliament envisaged in section 106(3) of the Constitution, either individually or collectively.

This issue stems from a consideration of the first requirement of a mandamus, being, whether or not the respondent established a clear right.

Counsel, for the appellants submitted, that, section 106(3) of the Constitution does not, in any way, make it the duty of the appellants to initiate the law contemplated by it.

She contended, that, the decision of the Constitutional Court, in the case of Chironga and Anor v Minister of Justice, Legal and Parliamentary Affairs and Others CC14–20, relied upon by the respondent, did not support the proposition that it was the responsibility of the two appellants to initiate the law in question.

In her view, Chironga and Anor v Minister of Justice, Legal and Parliamentary Affairs and Others CC14–20 simply outlined the process of law-making and the point that it is Cabinet that makes a policy that a certain law is to be made. Counsel submitted, that, the references to the “relevant minister” in the law making process arise when Cabinet has come up with a decision to make a law and the principles are referred to the Minister responsible for the administration of the particular legislation.

More importantly, counsel, for the appellants noted that Statutory Instrument 108 of 2018, being the Assignment of Functions [Minister of Justice, Legal and Parliamentary Affairs] Notice 2018, on which the respondent placed reliance to impute an obligation on the appellants, was repealed.

She noted, that, the subsequent Statutory Instrument, that is, Statutory Instrument 226 of 2018, does not assign the administration of the Constitution to the Minister of Justice. Instead, so it was argued, the obligation to come up with the Bill to be enacted is on Parliament.

Regarding the question of whether the second appellant has a duty to initiate the Bill in question, counsel for the appellants referred to section 114 of the Constitution, which provides for the duties of the Attorney General. She submitted, that, the Attorney-General has not been assigned the duty sought to be imputed on him in any legislation.

Accordingly, counsel for the appellants prayed that the appeal be allowed.

In response, counsel for the respondent conceded the point, that, the Assignment of Functions [Minister of Justice, Legal and Parliamentary Affairs] Notice 2018 [Statutory Instrument 226 of 2018] did not include the Constitution of Zimbabwe as an Act of Parliament assigned to the first appellant for administration.

He conceded, that, section 106(3) of the Constitution does not place an obligation on the appellants to come up with the legislation in question, suggesting, instead, that the obligation is given to Cabinet.

Counsel for the respondent sought, however, to argue that there is an Inter-Ministerial Task Force for Legislation, which the first appellant's Ministry is responsible for. He submitted, that, the second appellant, as Attorney General, was the leader of the Inter Ministerial Task Force. He added that the first appellant's Ministry is also in charge of constitutional affairs.

On this basis, counsel was of the view that the removal of the Constitution from the list of Acts of Parliament under the administration of the first respondent did not remove the responsibilities pertaining to constitutional affairs from him.

In respect of the second appellant, counsel for the respondent submitted that he retains the duty of legal drafting.

Although counsel for the respondent could not point out the second appellant's obligation, if any, in respect of the Act of Parliament contemplated by section 106(3) of the Constitution, he surprisingly did not concede the appeal but stuck to his guns - even though they had long stopped blazing.

THE LAW

It is not in dispute that the application placed before the court a quo was essentially for a mandamus.

The principles governing the issuance of mandatory interdicts in constitutional matters were discussed by Du PLESSIS, PENFOLD and BRICKHILL in Constitutional Litigation, 2013…,. I recite the observations by the authors:

“In constitutional cases, a court may grant a final interdict (either prohibitory or mandatory) whenever it is just and equitable to either compel a person to do something or to refrain from doing something. Although they are not bound by the common-law test for final interdicts, our courts generally apply the common law test in constitutional matters.”

The position outlined above was followed by our Constitutional Court in the case of Chironga & Anor v Minister of Justice, Legal & Parliamentary Affairs & Others CC14–20. HLATSHWAYO JCC…, held that:

“A mandamus is a judicial remedy available to enforce the performance of a specific statutory duty or remedy the effect of an unlawful action already taken….,. The requirements the applicants must prove for a mandamus are that:

(1) A clear or defin[ite] right — this is a matter of substantive law.

(2) An injury actually committed or [reasonably] apprehended — an infringement of the right established and resultant prejudice.

(3) The absence of a similar protection by any other ordinary remedy.”

In respect of the first requirement for the grant of a mandatory interdict itemised above, the learned Judge of the Constitutional Court instructively discussed the law as follows:

“With regard to the first requirement, according to Herbstein & Van Winsen, The Civil Practice of the High Courts of South Africa, 5th Edition, at p1457, whether the applicant has a right is a matter of substantive law. The authors state, that, one has to prove a clear and definite right in terms of substantive law, a right which can be protected, a right existing at common law or statutory law.

The applicants right is derived from Constitutional Law.

Section 167(5) of the Constitution gives the applicants a right to enforce compliance with section 210 to ensure that the Act contemplated by the section is enacted. The applicant's rights also arise automatically in law, through section 210.

According to the authors, it is unnecessary for the applicant to allege any facts in order to establish the rights, when a right arises automatically at law, moreso in the case of constitutional rights. In that regard, the first requirement for a constitutional mandamus has been established.”

Where the requirements of a mandamus are satisfied in a constitutional matter, a court is bestowed with the power to make any order that is just and equitable in terms of section 175(6)(b) of the Constitution. The section reads:

“(6) When deciding a constitutional matter within its jurisdiction, a court may —

(a)…,.;

(b) Make any order that is just and equitable, including an order limiting the retrospective effect of the declaration of invalidity and an order suspending, conditionally or unconditionally, the declaration of invalidity for any period to allow the competent authority to correct the defect.”…,.

In constitutional matters, in which a mandamus has been sought, what is just and equitable ultimately depends on the circumstances of the entire case, including the constitutional duty that must be performed as well as the reasonable means by which it may be performed.

Quite recently, HLATSHWAYO JCC, writing for a unanimous court in Gonese v President of the Senate and Others CC02–23…, stated:

“The progressive implementation of the rule of law would be greatly undermined without section 175(6) of the Constitution. When one considers the endless list of circumstances over which declarations of unconstitutionality could possibly be passed, the potentially disruptive effects of such declarations can become overwhelming. Acts that were believed to be legal today would suddenly be illegal and invalidated. People who had legitimately enjoyed certain rights could suddenly lose them. Those who were in credit before a declaration of invalidity could suddenly become debtors. Couples who were legally married to each other for years would suddenly be deemed to be living 'in sin'.

Thus, section 175(6) is inserted into our constitution to ensure just and orderly enforcement of the Constitution. It prevents the winding back of hands of time beyond our capacity to cope with the retrospective effects of declarations of unconstitutionality.”….,.

Therefore, what all this means is that any person seeking a mandamus in a constitutional matter must prove that his or her case satisfies its requirements. Thereupon, the Court is enjoined to consider the relief that would be just and equitable in the circumstances of the case.

EXAMINATION

The first enquiry to be made is whether or not the respondent established a clear right.

As was stated in Chironga & Anor v Minister of Justice, Legal & Parliamentary Affairs & Others CC14–20, the determination of whether or not a clear right exists is a matter of substantive law. It is, therefore, apt to make reference to the case of Oil Blending Enterprises (Pvt) Ltd v Minister of Labour 2001 (2) ZLR 446 (H)…, where it was held, per CHINHENGO J, that:

“A mandamus or mandatory interdict is a judicial remedy recognised under our law: see Tribac (Pvt) Ltd v Tobacco Marketing Board 1996 (2) ZLR 52 (S). It is applied against public authorities. It is an order which requires a public authority to comply with a statutory duty which requires a public authority to perform some act which remedies a state of affairs brought about by its own unlawful administrative action (L. Baxter on Administrative Law at p687).

It is, therefore, a judicial remedy available to enforce the performance of a specific statutory duty or to remedy the effects of an unlawful action already taken.

In this application, I am concerned with the former — to order or not to order the respondent to perform a specific statutory duty placed upon him. The remedy will be granted where the public authority is under a clear duty to perform the act ordered.

In Moll v Civil Commissioner of Paarl (1897) 14 SC 463 at 468, it was stated that:

'But, it is obvious that relief (mandatory interdict) will not be given where such rights are of a doubtful nature or where the public officer has acted in exercise of a discretion left to him, but, only where the existence and continued infringement of an absolute right have been clearly established.'”…,.

The remedy of a mandamus against a public authority necessarily demands the existence of a clear duty imposed on the public authority. This much is evident from the dicta of this Court in Chavunduka and Anor v Commissioner of Police and Anor 2000 (1) ZLR 418 (S)…,.:

“What then is the appropriate remedy where it has been shown that the police have not done something which obviously it is their duty to do — where there has been a dereliction of duty owed to the public? The answer is that in such a clear case, the court will grant an order of mandamus. But, where the police have arrived at the decision not to take any action in good faith, and on the basis of a proper appreciation of the applicable law, they will not then incur the risk of judicial intervention….,.

In this matter, I am satisfied that the requirements for a mandamus are satisfied: see Tribac (Pvt) Ltd v Tobacco Marketing Board 1996 (2) ZLR 52 (S) at 56B-D.

There is no other judicial remedy which is equally or more appropriate. But, it is not for this court to instruct the Commissioner of Police as to the manner in which he is to perform his duty. It is only necessary to direct him to do so.”

From the above, one can safely say that where a public official has no duty to give effect to a right sought to be enforced, then, the remedy of a mandamus cannot be relied upon. The existence of a duty on the part of a public official to give effect to the right in question is an inherent pre-condition embedded in the requirement for a clear right.

The question that thus arises is: do the appellants have an obligation to initiate a Bill designed to give effect to section 106(3) of the Constitution?

To obtain the answer to this question, one must interpret section 106(3)of the Constitution.

It is settled law, that, in constitutional interpretation, the ordinary meaning of the words employed in a statute should be strictly adhered to unless that would lead to an absurd result: see Mavedzenge v Minister of Justice, Legal & Parliamentary Affairs and Others CC05–18…, and Shumba and Others v Minister of Justice, Legal and Parliamentary Affairs and Others CC04–18.

Turning to section 106(3) of the Constitution, one notes that there is nothing in that provision suggesting that either of the appellants has an obligation to initiate the contemplated Bill.

The provision simply states, that, there must be an Act of Parliament that must prescribe a code of conduct for Vice-Presidents, Ministers, and Deputy Ministers. Apart from this, there is hardly any other provision in the Constitution suggesting that the appellants have an obligation to initiate a Bill necessary to give effect to section 106(3) of the Constitution.

In attempting to establish a basis upon which he could impute the obligation to initiate the Bill in question on the appellants, and notwithstanding that he had not pleaded this in his application, the respondent belatedly sought to argue before this court, that, the administration of the Constitution of Zimbabwe was assigned to the first appellant by the Assignment of Functions (Minister of Justice, Legal and Parliamentary Affairs Notice, 2018 [Statutory Instrument 108 of 2018].

SC81-23 : DISCENT BAJILA and FRANK MHLANGA and ADELAIDE MHLANGA and SANPOULOS MAPLANKA and OTHERS vs TATENDA MADZIRASHE and RAMSON CHINGWARA and LINDA MPOFU and OTHERS
Ruled By: UCHENA JA, CHITAKUNYE JA and MWAYERA JA

The four appeals are against parts of the High Court's Judgment HB157-23 (“the court a quo”) which was handed down on 27 July 2023.

The appeals are against the decision of the court a quo setting aside the thirteenth respondent's decision to accept the appellants nomination papers as candidates for the impending harmonised general elections.

The four appeals SCB59/23, SCB60/23, SCB61/23 and SCB62/23 were consolidated and heard by this Court on 2 August 2023.

On 3 August 2023, we issued the following order:

1. The appeals be and are hereby allowed with costs.

2. The judgment of the court a quo be and is hereby set aside and substituted as follows:

'The applications be and are hereby dismissed with costs.'

3. The reasons for the court's decision will follow in due course.”

We undertook to furnish reasons for our disposition. These are they.

FACTUAL BACKGROUND

On 21 June 2023, the fourteenth respondent constituted a Nomination Court to receive submissions for the nominations of candidates for the election of constituency members to the National Assembly for the Bulawayo Metropolitan Province. This was in accordance with Proclamation 4 of 2023, gazetted under S.I. 85 of 2023 by the President.

The determinant facts of this appeal emanate from the events that transpired on 21 June 2023 at the Nomination Court.

The appellants appeared before the Nomination Court for their nominations as candidates for elections scheduled for 23 August 2023. The nomination officer accepted their nominations and registered them as candidates.

The respondents, except for the thirteenth to fifteenth respondents, applied to the court a quo for the setting aside of the appellants (respondents a quo) nominations. They alleged, that, their nomination papers were in disarray. They further alleged that when the appellants lodged their papers, before 4pm, they were advised to correct them. The respondents further alleged, that, the appellants thereafter filed their corrected papers out of time, after 4pm, in violation of the Electoral Act [Chapter 2:13] (“the Act”). They further alleged that, by 4pm, the appellants were outside the courtroom frantically trying to rectify their nomination papers. They further asserted, that, such nominations were null and void.

In response, some of the appellants asserted that their papers were in order and that they lodged them with the nomination officer who accepted them before 4pm. The other appellants stated, that, their papers had errors which were pointed out by the Nomination Court and were corrected and filed with the nomination officer before 4pm. Some of the appellants maintained, that, they were in court with their corrected papers which were accepted before 4pm.

In his opposing affidavit, the 13th respondent, Innocent Ncube, in his official capacity as the Provincial Elections Officer, and, for and on behalf of the Zimbabwe Electoral Commission (“ZEC”) and the Chairperson of ZEC, indicated that the nomination papers were procedurally and timeously lodged between 10am and 4pm. He also pointed out that the designated courtroom could only accommodate 12 to 15 people at any time. During the proceedings, at 3:55pm, he announced that all prospective candidates who were queuing outside because of his administrative decision (to allow 12 to 15 people at any time) should hand over their nomination papers to the police officer as the court was due to close at 4pm. The police officer collected all the nomination papers and handed them over to the thirteenth respondent before 4pm. Thereafter, the nomination officer would call in those whose papers he would be processing.

In respect of the form, Annexure “B” relied upon by the applicants a quo, he pointed out that it was a register in which the secretary captured the times when the nomination forms were inputted into the Zimbabwe Electoral Commission's (ZEC) records. In other words, he stated that the form was for the purpose of data capture into ZEC's system and not a record reflective of the time when the nomination papers were lodged with the nomination officer.

On the basis of the above facts, the court a quo found for the applicants a quo (now respondents). It held that the appellants nominations had been lodged after the stipulated cut-off time of 4pm. It, therefore, declared the nominations of the appellants as null and void.

PROCEEDINGS BEFORE THE COURT A QUO

The parties made submissions on both the preliminary points and the merits before the court a quo, after which the court a quo rendered a composite judgment for all the applications, which had been consolidated by consent.

Counsel for the thirteenth, fourteenth, and fifteenth respondents raised a preliminary point, that, the court a quo had no jurisdiction. He submitted that all the applications ought to have been filed in the Electoral Court.

Counsel for the first to the sixth appellants associated himself with the submissions made by counsel for the thirteenth, fourteenth, and fifteenth respondents on jurisdiction.

He further submitted, that, there was no application before the court because the first to twelfth respondents had irregularly truncated the dies induciae. Counsel also argued that the respondents had no locus standi and that the applications were based on hearsay evidence. He submitted that the first to twelfth respondents had not attended the Nomination Court but sought to rely on social media reports and a document, Annexure “B” which was differently interpreted by the Electoral Commission.

He also argued in limine, that, there were material disputes of fact that could not be resolved on paper.

He further submitted, that, there was a material non-joinder of Citizens Coalition for Change party (CCC) which had sponsored some of the appellants. In support of this assertion, he contended that the party would be prejudiced in obtaining proportional representation seats.

Finally, on preliminary points, counsel submitted that the applications were an abuse of the court process.

Counsel for the seventh to twelfth appellants in SCB59/23 associated himself with the preliminary points raised by counsel for the thirteenth, fourteenth, and fifteenth respondents and counsel for the first to the sixth appellants. He emphasised that the applications were based on hearsay evidence and that only the Electoral Court had exclusive jurisdiction to hear the applications.

Counsel for the first to fourth appellants in SCB61/23 associated himself with submissions made by counsel who addressed the court before him.

Counsel for the appellants in SCB60/23 also associated himself with submissions that had been made by counsel before him.

Per contra, counsel for the first to twelfth respondents opposed all the preliminary points raised, characterising them as meritless.

He relied on the case of Kambarami v 1893 Mthwakazi Restoration Movement Trust and Others SC66-21 for the proposition, that, the court had jurisdiction. Regarding the validity of the applications, he submitted that the parties had attended a case management meeting and agreed on truncating the dies induciae.

On locus standi, he submitted that the respondents had a legitimate interest in the nomination proceedings because they had a direct and substantial interest in the outcome of the process. In relation to the applications being based on hearsay evidence, he contended, that, the respondents relied on public information and that there was Annexure “B” which supported their position. He further submitted that there were no material disputes of fact. A robust approach would resolve the matter.

Counsel for the first to twelfth respondents further submitted, that, the applications a quo were not an abuse of the court process given the substantial interests which the respondents had in the nomination of candidates for the constituencies where they were registered voters.

Finally, in relation to the non-joinder of Citizens Coalition for Change party (CCC) he argued that the party had no direct and substantial interest in the acceptance of the nomination papers.

The court a quo deferred the determination of the preliminary points to the end of the hearing and sought to be addressed on the merits.

Counsel for the first to twelfth respondents submitted, in support of the applications, that, the nominations ought to be nullified since they were accepted after 4pm in defiance of section 46 of the Electoral Act [Chapter 2:13]. He further submitted that the nomination officer unlawfully opened the court to specifically allow the affected candidates to present their papers out of time. He argued that the police officer who collected the papers was not a nomination officer. Annexure “B” confirmed that the nomination papers were filed out of time.

Counsel for the thirteenth to fifteenth respondents submitted that Annexure “B” was not a document reflective of the times when the nomination papers were lodged with the nominations officer. Further, he submitted, that, the nomination papers were submitted and received before the cut-off time of 4pm on the day in question. He emphasised that the officers of the Zimbabwe Electoral Commission (ZEC) who placed evidence before the court, through their supporting affidavits, spelt out that no nomination papers were submitted after 4pm. Finally, he submitted that there was no breach of section 46 of the Electoral Act.

Counsel for the first to the sixth appellants in SCB59/23 submitted, that, the respondents were relying on hearsay evidence that the social media was awash with; information that the appellants nomination papers were in disarray and filed out of time. He pointed out that the appellants filed their papers in compliance with section 46 of the Electoral Act before 1600 hours. Further, in opposing the allegations, he relied on the Zimbabwe Electoral Commission (ZEC) and the nomination officer's evidence that Annexure “B” was not a document indicative of the lodgement of nomination papers, but, that the time reflected on it related to the time of data capture.

Counsel for the seventh to twelfth appellants in SCB59/23 was also critical of Annexure “B” and he agreed with submissions by counsel for the first to the sixth appellants in SCB59/23 on it. He submitted that the respondents were relying on hearsay evidence and that they failed to discharge the onus and to prove the factual basis of their allegations. Their evidence was speculative as they relied on social media assertions.

Counsel for the appellants in SCB60/23 associated himself with submissions made by counsel who addressed the court before him. He emphasised, that, his clients submitted their nomination papers on time. He further added that the collection of nomination papers by the police officer, at the instruction of the nomination officer, did not amount to contravening section 46 of the Electoral Act.

Counsel for the first to fourth appellants in SCB61/23 associated themselves with counsel for the other appellants submissions.

DETERMINATION OF THE COURT A QUO

The court a quo gave a composite judgment. It dismissed all the preliminary points and made a finding that Annexure “B” was a document prepared by a Zimbabwe Electoral Commission (ZEC) official and that it spoke for itself, that, the nomination papers were submitted after 4pm. It found that the submission of papers from the appellants, through the police officer, was unlawful. It thus declared the nominations as null and void and issued the following order:

“IT IS DECLARED THAT:

1. That, the decision of the 1st Respondent, sitting as a nomination court at Bulawayo on 21 and/or 22 June 2023 to accept the following Respondents nomination papers and candidature in the elections scheduled to be conducted on 23 August 2023 was in contravention of section 46(7) & (8) of the Electoral Act [Chapter 2:13].

2. That, the decision of the 1st Respondent, sitting as a Nomination Court at Bulawayo on 21 and/or 22 June 2023, to accept the following Respondents nomination papers and candidature in the elections scheduled to be conducted on 23 August 2023 is declared null and void and is hereby set aside.

ACCORDINGLY, IT IS ORDERED THAT:

3. 1st Respondent is prohibited from including the names of the following Respondents in the preparation of ballot papers to be used in the general elections scheduled to be conducted on 23 August 2023.

4. Respondents shall jointly and severally pay the costs of suit.

OBERT MANDUNA; ERECK GONO; DOUGLAS NCUBE; GIFT SIZIVA; SANPOULUS MAPLANKA; PRINCE DUBE; NQOBIZITHA NDLOVU; DESMOND MAKAZA; BAJILA COLLINS DESCENT; SICHELESILE MAHLANGU; DESIRE MOYO; ALELAIDE MHLANGA; NOMPILO BHEBHE; SURRENDER KAPOIKILU; RAPHAEL PASHOR SIBANDA; NTANDOYENKOSI MINENHLE GUMEDE; FRANK MHLANGA.

5. The application against Zvikwete Innocent Mbano be and is hereby dismissed with costs.

6. The application against ADMORE GOMBA, NIGEL NDLOVU, SONENI MOYO, DINGILIZWE TSHUMA, STRIKE MKANDLA & ALBERT MHLANGA be and is hereby withdrawn.”...,.

SUBMISSIONS BEFORE THIS COURT

(a) Preliminary Issues

Counsel for the first to the twelfth respondents raised three preliminary issues.

The first point related to the status of the fifth appellant in SCB59/23 (Jane Nicola Watson). He noted, that, the order of the court a quo did not list her as one of the respondents, which omission was accepted by the fifth appellant.

Counsel accordingly sought an order deeming the judgment of the court a quo as being applicable to the fifth appellant as such a course would prevent the appeal by the fifth appellant from being struck off the roll.

The second point raised was that the appeals were fatally defective because the appellants appealed against the whole judgment instead of the parts that affected them.

He further pointed out that some of the appeals did not cite some of his clients who were applicants before the court a quo. This was particularly argued to be the case with SCB60/23. In his view, such an omission denied parties who were before the High Court the right of audience. It was contended, that, the appeals could not be valid appeals if they left out interested parties....,.

In respect of the points in limine, counsel for the first to sixth appellants argued that the points that were taken by counsel for the respondents were not procedurally raised because no notice had been given in compliance with Rule 51 of the Supreme Court Rules 2018....,.

Eventually, all parties agreed that in light of the decision of the Constitutional Court in the case of Chamisa v Mnangagwa CC21-19 it was not necessary to dwell on the preliminary issues. Moreso considering the role of the court in matters of public importance as set out in the cited case.

Counsel for the first to twelfth respondents abandoned the preliminary points and accepted that the appeal be determined on the merits.

SSC89-23 : FUNNY MACHIPISA vs NGONI NDUNA N.O. and THE NATIONAL PROSECUTING AUTHORITY
Ruled By: UCHENA JA, MATHONSI JA and CHATUKUTA JA

This is an appeal against the whole judgment of the High Court Harare, dated 6 July 2022, dismissing the appellant's application for the review of the first respondent's refusal to find the appellant not guilty in spite of his having upheld the appellant's exception, taken together with the plea, in ...

BACKGROUND FACTS

The facts giving rise to this appeal are as follows:

The appellant is employed by the City of Harare (“the City Council”) as Deputy Director of Housing and Community Services, and was, at the time of the alleged commission of the offence, the Acting Director of Housing and Community Services when the incumbent was attending a week-long workshop in Kadoma.

In June 2021, he was arraigned before the first respondent, facing a charge of “criminal abuse of duty as a public officer, in contravention of section 174 of the Criminal Law (Codification and Reform) Act [Chapter 9:23]” (the Criminal Law Code).

The allegations levelled against him are that he irregularly and fraudulently allocated non-existent Stands to various persons who had applied for Stands to the City Council but were not yet due for allocation of Stands and some who were not on the City Council's waiting list.

The first objection, taken by way of exception, was taken with the consent of the parties in terms of section 170(2) of the Criminal Procedure and Evidence Act. At that stage, the appellant only objected and did not plead to the charge.

It enabled the first respondent to order the second respondent to amend the charge in terms of section 170(3) of the Criminal Procedure and Evidence Act to which it added an alternative charge of fraud.

The amended charges were read to the appellant, who pleaded and excepted to them, in terms of section 180(4) of the Criminal Procedure and Evidence Act.

In his exception, the appellant pointed out certain irregularities in the amended charges, such as, the failure to specify how he showed favour to the persons he allocated the non-existent Stands to.

The first respondent upheld the exception.

It ordered, that, the trial should proceed on the basis of the charge he ordered the prosecution to amend and prefer against the appellant in terms of section 170(3) of the Criminal Procedure and Evidence Act.

The appellant demanded a verdict of not guilty and an acquittal.

His counsel contended, that, after his exception was upheld, he was entitled to a verdict of not guilty and an acquittal as his plea remained hanging in the air pending the charge the first respondent had ordered the second respondent to amend.

In his submissions on the appellant's demand to be found not guilty and acquitted, the State's counsel conceded, that, the appellant was indeed entitled to a verdict of not guilty.

In his ruling, the first respondent refused to return a verdict of not guilty, as demanded by the appellant, notwithstanding the concession made by the prosecution. He, ruled that:

“Section 170(3) of the Code provides what happens where an exception has been made it (sic) is stated that:

'(3) Any court before which any objection is taken in terms of subsection (1) or (2) may, if it is thought necessary and the accused is not prejudiced as to his defence, cause the indictment, summons or charge to be forthwith amended in the requisite particular by some officer of the court or other person, and thereupon the trial shall proceed as if no such defect had appeared.'

In the event of an exception being upheld, the indictment shall be amended and the trial shall proceed as if no such defect had appeared.”…,.

Aggrieved by the first respondent's refusal to return a verdict of not guilty, the appellant filed an application for review in the court a quo.

The basis of his application is stated in his notice of application, which partly reads as follows:

“Illegality: The decision by the first respondent [in State v Funny Machipisa ACC158/20] not to return a verdict of 'Not Guilty' after upholding the applicant's exception, which exception had been taken in terms of section 180(4) of the Criminal Procedure and Evidence Act [Chapter: 9:07], is illegal as a contravention of section 180(6) of the Criminal Procedure and Evidence Act [Chapter 9:07]. The applicant was entitled, as of right, to a 'Not Guilty' verdict once an exception which he had taken after pleading 'Not Guilty' had been upheld.”

SUBMISSIONS MADE IN THE COURT A QUO

Submissions made by the appellant

In moving for a not-guilty verdict..., counsel for the applicant argued that the first respondent's decision was tainted by either 'gross irregularity' or by being 'clearly wrong.' He contended, that, the not-guilty plea which he tendered inevitably ought to have been followed by a not-guilty verdict. It could not “hang in the air waiting for an amended charge.”

He submitted, that, section 180(6) of the Criminal Procedure and Evidence Act provides that any person who has pleaded is entitled to a verdict. He therefore submitted, that, the first respondent's decision violated that provision and, as such, constituted a gross irregularity.

The applicant's counsel further contended, that, section 180(6) of the Criminal Procedure and Evidence Act should be read together with section 8(b) of the Criminal Procedure and Evidence Act, which makes an acquittal mandatory whenever charges are withdrawn after a plea.

The second respondent's submissions

In countering the appellant's averments, counsel for the second respondent contended, that, there was no irregularity in the first respondent's decision. He submitted, that, the first respondent acted in accordance with the law. He further submitted, that, the first respondent has the discretion to direct the prosecution to amend the charge, among other options.

Counsel for the second respondent further contended, that, an order to amend a charge is an interlocutory ruling.

It is a ruling made in the course of ongoing, uncompleted proceedings, which superior courts do not interfere with except in exceptional circumstances where it would have been established that the lower court committed a gross irregularity or was clearly wrong. He further argued, that, no gross irregularity had been proven in respect of the manner in which the trial court conducted the proceedings, warranting interference by the court a quo.

In spite of his earlier resistance to the application for review, counsel for the second respondent subsequently changed course and conceded, that, the first respondent erred and his decision should be set aside on review.

DETERMINATION OF THE COURT A QUO

After hearing counsel, the court a quo held that it could not interfere with un-terminated proceedings, as there was no justification for such intervention. It did not agree with the submissions of the applicant's and second respondent's counsel, that, the first respondent erred in refusing to find the appellant not guilty.

In arriving at its decision, that the trial court had correctly applied the law, the court a quo said:

“In casu, the pertinent question is, does the first respondent's decision fall into the exceptional category reflecting gross irregularity?

We think not.

An examination of the first respondent's ruling shows, that, he took guidance from the applicable law. To begin with, he exercised the discretion provided for in section 171 of the Criminal Procedure and Evidence Act, where an accused person decides to both plead and except to the charge. Section 171 reads:

'(1) When the accused excepts only and does not plead any plea, the court shall proceed to hear and determine the matter forthwith, and, if the exception is over-ruled, he shall be called upon to plead to the indictment, summons or charge.

(2) When the accused pleads and excepts, together, it shall be in the discretion of the court whether the plea or exception shall be first disposed of.'

…,.

The first respondent exercised his discretion in terms of subsection (2) and dealt with the exception first.

What was he then going to do with the plea of not guilty, which had been tendered together with the exception?

The first respondent was guided by section 170(3), which allows amendment of the indictment summons or charge provided such amendment does not prejudice the accused in his defence.

This section provides as follows:

'(3) Any court before which any objection is taken in terms of subsection (1) or (2) may, if it is thought necessary, and the accused is not prejudiced as to his defence, cause the indictment, summons or charge to be forthwith amended in the requisite particular by some officer of the court or other person, and, thereupon, the trial shall proceed as if no such defect had appeared.'

A significant aspect of the first respondent's ruling is the distinction he draws between the upholding of an exception and the quashing of the charge. These are different courses of action provided for in section 170(1). The accused either excepts to the charge, or…,.”

It further dealt with situations where a superior court can interfere with unterminated proceedings. It stated, that, the test for intervening in un-terminated proceedings is high, as repeatedly emphasized by case law. It found no gross irregularity in the first respondent's ruling, and dismissed the application before it.

Aggrieved, the appellant noted the present appeal on the following grounds:

GROUNDS OF APPEAL

The appellant's grounds of appeal read as follows:

“1. The court a quo improperly exercised its discretion and misdirected itself in finding, that, there was no gross irregularity in the first respondent's refusal to return a verdict of 'Not Guilty' after upholding the appellant's exception to the charge, which exception had been taken in terms of section 180(4) of the Criminal Procedure and Evidence Act [Chapter 9:07].

2. The court a quo erred in law and misdirected itself in not finding, that, the first respondent's refusal to return a verdict of 'Not Guilty' after upholding the appellant's exception to the charge, which exception had been taken in terms of section 180(4) of the Criminal Procedure and Evidence Act [Chapter 9:07], was so clearly wrong as to warrant its review before the termination of proceedings.”

SUBMISSIONS MADE BEFORE THIS COURT

Appellant's submissions

Counsel for the appellant submitted, that, both parties agreed, before the trial court, that, the appellant was entitled to a verdict of not guilty after the exception was upheld. It was further submitted that the first respondent refused to return a verdict of not guilty, notwithstanding the concession made by the second respondent, resulting in the appellant's application for review before the court a quo.

He submitted, that, in terms of section 180(6) of the Criminal Procedure and Evidence Act, any person who has pleaded to a charge is entitled to a verdict, and that, after upholding the exception, the trial court ought to have returned a verdict of 'Not Guilty' as had been pleaded.

He further submitted, that, the court a quo was not clear in its approach to reviewing un-terminated proceedings in that it should have first asked itself whether the appellant established the grounds of review.

He also argued, that, if review grounds exist, it ought to have questioned the degree to which the grounds of review had been established. He submitted that the court a quo did not render a decision on this issue.

He further submitted, that, if one pleads 'Not Guilty' and the charge is thrown out, one remains not guilty and proceedings should come to an end at that stage.

He argued, that, the trial court had no authority to amend the charge, in view of the fact, that, the exception was taken, together with the plea, in terms of section 180(4) of the Criminal Procedure and Evidence Act.

Counsel for the appellant also contended, that, section 171(2) of the Criminal Procedure and Evidence Act gives the court discretion on what it can dispose of first when an accused person pleads and excepts at the same time.

He submitted that the court a quo has jurisdiction to review unterminated proceedings, and the court ought to take a two-staged approach in such circumstances, which are:

1. It must ask itself, has the appellant established the grounds of review?

2. If the grounds for review exist, it should ask itself a second question, have the grounds been established to the required degree?

In respect of the above questions, counsel for the appellant argued, that, the court a quo erred when it held that there was no irregularity in the proceedings before the first respondent.

He further emphasised, that, if one pleads not guilty and the charge is thrown out, one remains not guilty at that stage. He argued that proceedings should come to an end at that stage and that the State should start a fresh action.

He argued, that, the first respondent had no authority to order an amendment after the exception had been taken together with the plea. He argued that a plea of 'Not Guilty' cannot hang in the air.

He contended that the discretion must be exercised in a way that disposes of the matter.

Submissions by the second respondent

Conversely, counsel for the second respondent submitted, that, there was no gross misdirection as the court a quo exercised its discretion judiciously.

She submitted, that, since the appellant pleaded and excepted to the charges at the same time, section 171(2) of the Criminal Procedure and Evidence Act allows the court discretion on which to dispose of first, between the plea and the exception.

She further submitted, that, the discretion was properly exercised in moving for an amendment of the charge in terms of section 170(3) of the Criminal Procedure and Evidence Act - after upholding the exception.

STAY OF PROCEEDINGS IN THE TRIAL COURT

At the end of their submissions, the parties applied for the stay of proceedings in the Magistrates Court until judgment in this case is handed down.

We agreed with the parties and ordered that the proceedings before the trial court be stayed pending the determination of this appeal.

SUPPLEMENTARY HEADS

During the preparation of this judgment, it became apparent to the court that there was need to give the parties an opportunity to make submissions on the interpretation of section 170(2) and (3) of the Criminal Procedure and Evidence Act, on the issue of whether or not it was competent for the first respondent to order the amendment of the charge when the appellant had pleaded and excepted in terms of section 180(4) of the Criminal Procedure and Evidence Act.

The need arose as this Court has to determine whether or not the first respondent could lawfully invoke the provisions of section 170(3) of the Criminal Procedure and Evidence Act, after upholding the appellant's exception, taken together with the plea of 'Not Guilty' in terms of section 180(4) of the Criminal Procedure and Evidence Act.

That issue had not been adequately covered by the parties at the hearing of the appeal.

SC91-23 : OLD MUTUAL SHARED SERVICES (PRIVATE) LIMITED vs CHRISTMAS MAZARIRE and RETRENCHMENT BOARD
Ruled By: BHUNU JA, CHATUKUTA JA and MUSAKWA JA

This is an appeal, coupled with a cross-appeal, against the whole judgment of the Labour Court of Zimbabwe (the court a quo) in which it granted an application for review of the determination by the Retrenchment Board (the second respondent) dated 13 October 2015.

After hearing submissions from the appellant and the first respondent, the court issued the following order:

“1. The appeal be and is hereby allowed.

2. The judgment of the court a quo be and is hereby set aside and substituted with:

'The application for review is dismissed with costs.'

3. The first respondent's cross appeal be and is hereby struck off the roll.”

The court indicated that reasons for the order would follow. The reasons now appear hereunder.

FACTUAL BACKGROUND

The appellant initiated a retrenchment process against the first respondent before the second respondent. The second respondent made recommendations to the Minister of Labour and Social Services (the Minister) in terms of the Labour Relations Retrenchment Regulations, 2003 (SI 186/2003) (the Regulations).

By notice dated 2 March 2015, the Minister approved the retrenchment of the first respondent with effect from 23 February 2015. The approval included the terms for the retrenchment, and, more particularly, that the first respondent was entitled to payment of a gratuity equivalent to one month's salary for every year worked, a stabilisation allowance equivalent to two months salary, and a severance payment equivalent to 13.5 months salary.

The first respondent was to be paid all statutory benefits and any other agreed items.

The appellant, thereafter, paid the first respondent the amount of US$171,397=51. The amount was computed using the first respondent's pensionable salary.

The first respondent was, however, of the view that he was entitled to an amount of US$258,522=22 computed using what he described as the “total guaranteed remuneration package”.

The total guaranteed remuneration package was alleged to include the “basic pensionable pay, allowances (non-pensionable), cafeteria benefits, and annual travel allowance (non-pensionable).”

He engaged the appellant for a re-calculation of the package. The parties failed to agree.

The first respondent approached the second respondent seeking re-quantification of the retrenchment package and that the appellant be compelled to pay the revalued retrenchment package.

The issue placed before the second respondent was whether, in computing the retrenchment package due to the first respondent, the second respondent was required to use the pensionable salary or the total guaranteed remuneration package.

The request for re-quantification of the retrenchment package was resisted by the appellant, arguing that the second respondent was now functus officio and did not have jurisdiction to re-hear and re-determine the matter.

In a decision dated 12 October 2015, the second respondent declined jurisdiction over disputes arising from terms and conditions of employment. It, instead, referred the parties to a Labour Officer in terms of section 93 of the Labour Act [Chapter 28:01] (the Act).

Aggrieved, the first respondent filed an application in the court a quo for the review of the determination of the second respondent.

SUBMISSIONS IN THE COURT A QUO

The first respondent argued as follows:

The second respondent acted irregularly by declining jurisdiction. It effectively abdicated its statutory duty to determine and finalize a retrenchment process. It further acted irregularly by directing that the matter be referred to a Labour Officer, when a Labour Officer has no statutory powers to quantify a retrenchment package. The referral was ultra vires the provisions of the Labour Act, and, as such, unlawful.

In response, the appellant argued as follows:

The second respondent did not abdicate its statutory duties. The statutory duties were exercised and exhausted when the second respondent made recommendations to the Minister, which recommendations were accepted by the Minister.

Further, the Labour Act did not empower the second respondent to deal with a matter that had already been determined by the Minister. The second respondent lacked the power to make determinations on the quantum of the retrenchment packages awarded by the Minister. The first respondent ought to have appealed against the decision of the Minister or subjected the same for review. The appellant averred, that, the payment of the package was done with the agreement of the first respondent.

DETERMINATION BY THE COURT A QUO

The court a quo found, that, section 12C(2) and (3) of the Labour Act gives the Retrenchment Board the power to regulate the retrenchment package. It found, that, contrary to what the second respondent stated in its letter dated 12 October 2015, the dispute in question was about the quantification of the retrenchment package and not about the conditions of employment. The court a quo also found that Labour Officers have no jurisdiction over retrenchment issues, and the second respondent erred in referring the matter to the Labour Officer.

It granted the application.

Aggrieved, the appellant filed the present appeal on the following grounds:

GROUNDS OF APPEAL

“1. The court a quo erred at law in relying on section 12(2) of the Labour Act [Chapter 28:01], as currently worded, notwithstanding that this was not the law at the time the retrenchment process between the parties was carried out.

2. The court a quo erred in holding that section 12C of the Labour Act, as currently worded, gave the second respondent jurisdiction to deal with the issues referred to it by the first respondent.

3. The court a quo grossly erred in failing to determine issues that were placed before it, viz:

(i) Whether the process that culminated in the payment of the disputed retrenchment package could bar the first respondent from challenging the retrenchment exercise.

(ii) Whether the Retrenchment Board had exhausted its powers after making recommendations during the initial proceedings.

4. The court a quo erred at law in finding as it did, that, the powers of a Labour Officer, under section 93(1) of the Labour Act [Chapter 28:01], excluded the power to preside over matters which have a retrenchment background.

5. The court a quo erred at law in holding as it did, that, the Retrenchment Board was empowered to determine the issue referred to it by the first respondent after the Minister had exercised his powers in terms of the then section 12C(9) of the Labour Act [Chapter 28:01] to make a determination of the matter and set the terms of the retrenchment.

6. The court a quo erred at law in failing to hold, that, after the Minister had exercised his powers in terms of the then section 12C(9) of the Labour Act [Chapter 28:01], the Retrenchment Board could no longer exercise any jurisdiction on a retrenchment matter, and, more specifically, quantify the retrenchment package as was requested of it by the First Respondent.

7. The court a quo erred and misdirected itself at law in failing to hold, that, the determination by the Minister had resolved the issue that the first respondent requested the second respondent to deal with, having determined that the retrenchment package was to be paid on the basis of the first respondent's salary.”

SUBMISSIONS MADE BEFORE THIS COURT

Counsel for the appellant addressed the Court on the merits.

He argued, that, the first respondent erred in citing the second respondent as the substantive respondent a quo when the second respondent is not a legal persona. The application was therefore void. He ought to have cited the Chairperson of the Board.

This point was being raised for the first time without notice, it not having been raised in the court a quo.

Counsel conceded, that, he was aware of this Court's judgment in Mapondera and 55 Ors v Freda Rebecca Gold Mine Holdings Limited SC81-22 to the effect, that, the question of the proper citation of the name of a party is a technical issue which does not vitiate proceedings.

Secondly, he argued that the court a quo did not determine issues that were placed before it, and, these issues were:

(i) That, the first respondent waived its right to challenge the quantification of the retrenchment package after having accepted and received the package, which included a vehicle issued to him by the appellant during the subsistence of the contract of employment;

(ii) There was a fatal non-joinder of the Minister who had approved the recommendations of the second respondent and stipulated the retrenchment package; and

(iii) The fact that the second respondent was functus officio after it had made its recommendations to the Minister.

Thirdly, it was argued that the court a quo, in remitting the matter to the second respondent for quantification of the retrenchment package, misdirected itself in relying on section 12C(2) of the Labour Act as presently worded.

It was submitted, that, the section was promulgated on 26 August 2015, after the cause of action had arisen in September 2014 and after the Minister had, on 2 March 2015, already approved the recommendations of the second respondent and communicated the approval to the parties.

The section does not have retrospective effect.

It was argued, that, the old section 12C, which was applicable when the Minister made his decision, did not give the second respondent jurisdiction to quantify retrenchment packages. It was contended, that, the court a quo grossly misdirected itself in relying on the wrong law.

It was submitted that the court a quo ought to have dismissed the application with costs.

Regarding the cross appeal, counsel submitted that there was no proper appeal before the Court because the first respondent had not obtained leave to appeal from the court a quo, as required by the Labour Act. As such, he prayed for the cross-appeal to be struck off the roll.

In response, the first respondent argued that the second respondent was a statutory body, and, as such, had the capacity to sue and be sued in its own right. It was therefore properly cited as a party in the court a quo.

He submitted, that, his retrenchment was a nullity on the basis that the appellant did not give notice to retrench him as is required in terms of section 6 of the Labour Relations Retrenchment Regulations, 2003 (S.I.186/2003) (Regulations). He contended that the notice by the Minister retrenching him was addressed to Old Mutual Limited. It did not relate to him because his employer was the appellant, Old Mutual Shared Services (Private) Limited and not Old Mutual Limited.

He further argued, that, there was no evidence on record to show that the second respondent made any recommendation on his retrenchment to the Minister. In the absence of such proof, the decision by the Minister was a nullity.

The first respondent submitted, that, the court a quo correctly held that Labour Officers do not have jurisdiction over retrenchment disputes.

He further submitted, that, the process leading to the retrenchment was irregular for failure to comply with the peremptory provisions of section 12C of the Labour Act which require the second respondent to appoint an authority to superintend over the dispute between the parties. He argued that section 12C, as promulgated on 26 August 2015, has retrospective effect to 15 July 2015 and was applicable to the dispute between the parties. The second respondent made its decision on 6 August 2015. The decision therefore properly fell within the period after 15 July 2015.

The first respondent disputed waiving his rights to challenge his retrenchment.

He submitted that he has consistently argued that his contract of employment was unlawfully terminated without notice.

He conceded, that, he received the retrenchment package and vehicle. He however argued that he did so on a without prejudice basis as he was entitled to his contractual rights until lawful termination of his contract of employment.

He further argued, that, he was still an employee of the appellant, that his contract of employment had not been terminated, and, further, that he had not agreed to any terms of retrenchment.

Regarding the validity of the cross appeal, the first respondent submitted that he was entitled to file a cross-appeal in terms of Rule 45 of the Supreme Court Rules 2018 once the appellant noted its appeal. He submitted that the Supreme Court Rules are derived from section 34 of the Supreme Court Act and are therefore on the same footing as an Act of Parliament. He argued that section 92F(2) of the Labour Act does not therefore apply to a cross appeal.

ISSUES FOR DETERMINATION

The following issues fall for determination:

1. Whether or not there was a cross-appeal before the court.

2. Whether or not the second respondent was properly cited, and, if not, whether there was a valid application before the court a quo.

3. Whether or not the second respondent erred in declining jurisdiction.

4. Whether or not the court a quo erred in relying on section 12C(2) of the Labour Act [Chapter 28:01].

5. Whether or not the first respondent waived his right to challenge his retrenchment.

6. Whether or not the court a quo erred by failing to determine issues placed before it.

APPLICATION OF THE LAW TO THE FACTS

2. WHETHER OR NOT THE SECOND RESPONDENT IS A LEGAL PERSON

Counsel for the appellant argued, that, the first respondent erred in citing the second respondent when the second respondent does not have legal personality to be sued or to sue.

As noted earlier, this point was not raised before the court a quo. It is being introduced for the first time on appeal.

However, this is a point of law, and, it is trite that a point of law can be raised for the first time on appeal: see ZIMASCO (Pvt) Ltd v Marikano 2014 (1) ZLR 1…,.

SC109-23 : MTHOKOZISI NDIWENI vs LINDA MAGWARO
Ruled By: GWAUNZA DCJ, MATHONSI JA and CHIWESHE JA

This is an appeal against the whole judgment of the High Court (the court a quo) sitting at Bulawayo, dated 21 April 2022, in terms of which the court a quo granted the application by the respondent for the variation of clause 2(e)(i) of the parties consent paper and paragraph 4 of the divorce order granted by the court a quo on 27 March 2014 under HC125/14, providing for the post-divorce maintenance of the parties two minor children.

The order of the court a quo reads:

“It is ordered that:

1. Clause 2(d)(e)(i) and paragraph 4 of the consent order be and are hereby amended by;

(a) The plaintiff shall pay the sum of US$400 for each of the two minor children, per month, payable in cash or into the applicant's nostro account or the RTGS equivalent thereof at the bank rate prevailing on the date that payment is made until the children attain the age of 18 years or become self-supporting, whichever comes first.

2. This order shall be effective from March 2021.”

Aggrieved by the decision of the court a quo, the appellant has noted the present appeal.

At the close of submissions in this matter, this Court made the following order:

“The respondent having conceded, that, there is merit in grounds of appeal number 5 and 6:

It is ordered as follows:

1. The appeal succeeds in part.

2. The judgment of the court a quo is amended by the deletion of paragraph 2 thereof.

2. Each party shall bear its own costs.”

We indicated that our reasons for doing so would follow. They are as follows:

THE FACTS

The parties were married on 5 July 2005 in terms of the Marriages Act [Chapter 5:11]. The marriage was blessed with two children.

Nine years into the marriage, the appellant instituted divorce proceedings in the court a quo on the grounds, that, the marriage had irretrievably broken down. He did so under case number HC125/14.

To curtail the divorce proceedings, the parties negotiated, and agreed, the terms of the consent paper that would govern their affairs after divorce. It was on the basis of that consent paper that divorce was granted by the court a quo.

Paragraph 2(e) of the consent paper provided for the maintenance of the parties two minor children. It reads as follows:

“(e) Maintenance of the Minor Children

(i) The parties have agreed, that, by way of maintenance, the plaintiff (the present appellant) shall pay US$500 for each of the minor children, per month, as monthly maintenance until they attain the age of 18 years or become self-supporting, whichever occurs first….,.

(ii) Plaintiff shall pay all school fees, inclusive of levies and other related ancillary education costs, purchase school uniforms, stationery, and all other school requirements until they finish tertiary education.”

The above quoted paragraph 2(e) of the consent paper was incorporated into the divorce order dated 27 March 2014 as paragraphs 4 and 5.

The appellant “religiously” paid the sum of US$500 per month, per each child, making a total of US$1,000 maintenance per month. He did so from 2014 until 2019 when Statutory Instrument No. 33/19 was promulgated.

This instrument decreed that all assets and liabilities, including judgment debts, denominated in United States dollars on or before 19 February 2019 (the effective date) shall be deemed to be values in RTGS dollars at the rate of one to one to the United States dollar.

The appellant, whose liability for maintenance was now deemed to be in RTGS dollars at the rate of 1 to 1 to the United States dollar, would now be liable to pay a total of RTGS $1,000 per month for both children.

However, realizing that this amount would fall short of the children's needs, the appellant, at his own volition, and unilaterally, decided to pay RTGS$1,500 per month for both children. The respondent found that amount awfully inadequate and proposed that the appellant pays the sum of US$320 per month per child.

The appellant refused to budge and persisted with his offer of RTGS$1,500 per month for both children.

At one stage and, again, unilaterally, the appellant decided to pay the sum of US$50 per month per child.

However, the respondent avers that between January 2021 and May 2021 the appellant did not pay any maintenance at all.

Dissatisfied with that state of affairs, the respondent approached the court a quo armed with an application for variation of the maintenance clause embodied in the divorce order granted under HC125/14. She asked the court a quo to set the rate of maintenance at US$500 per month per child in conformity with the order of the court a quo of 27 March 2014.

In opposing the application in the court a quo, the appellant submitted that the respondent wished to live a lavish life out of moneys paid out as maintenance for the children, and that her claim was based on figures plucked from the air. He also submitted that his financial circumstances had changed since 2014 in such a way that he was unable to pay US$500 per month per child.

Despite these submissions by the appellant, the court a quo granted the application and issued the order captured on the first page of this judgment.

Although this order is inelegantly drafted, its import is clear – that with effect from March 2021, the appellant was obliged to pay maintenance at the rate of US$400 per month per child or its equivalent in local currency determined at the prevailing bank rate.

It is this order that the appellant appeals against on the following grounds:

“GROUNDS OF APPEAL

1. The court a quo erred in varying the maintenance payable towards the minor children whilst disregarding the circumstances of the appellant.

2. The court a quo, in varying the maintenance order, misdirected itself on the meaning of good cause for variation.

3. A fortiori, the court a quo erred in rejecting that appellant's finances had been drastically changed negatively, due to lack of employment and the subsequent re-marriage.

4. The court a quo erred and fell into error in not considering the US$100 appellant had been paying consistently as maintenance towards the minor children.

5. The court a quo misdirected itself in granting a retrospective order when none of the parties prayed for such an order.

6. The court a quo misdirected itself in granting an order that was retrospective when the circumstances did not warrant such.”...,.

ISSUES FOR DETERMINATION

The grounds of appeal only raise four issues, namely;

1. Whether the court a quo erred in varying the maintenance payable towards the minor children.

2. Whether the quantum of the variation is justifiable.

3. Whether the appellant has the financial capacity to fund the variation.

4. Whether the court a quo erred in granting a retrospective order....,.

The court a quo backdated the variation to March 2021.

The appellant is up in arms against this. He argues that the court a quo misdirected itself in granting a relief which neither of the parties had asked for.

At the hearing of this appeal, the respondent conceded that the variation should not have been backdated, and that, accordingly, grounds of appeal number 5 and 6 had merit....,.

On the whole, the appellant has failed to prove any misdirection on the part of the court a quo, save for the order backdating the variation, which the respondent conceded was not warranted.

For that reason, paragraph 2 of the order of the court a quo, backdating the variation to March 2021, must be set aside....,.

1. The appeal succeeds in part.

2. The judgment of the court a quo is amended by the deletion of paragraph 2 thereof.

3. Each party shall bear its own costs.

SC110-23 : CHINHOYI MUNICIPALITY vs TENDAI MUSONZA
Ruled By: MAVANGIRA JA, CHIWESHE JA and MUSAKWA JA

This is an appeal against the whole judgment of the High Court (the court a quo) sitting at Harare, handed down on 16 June 2021, dismissing the appellant's claim for an order ejecting the respondent and all those claiming occupation through him from Plot 16340, Chinhoyi (the Plot), payment of holding over damages in the sum of $300 per month for illegal occupation of the appellant's Plot from 13 December 2013 to date of ejectment or vacation and interest at the prescribed rate and costs of suit.

Aggrieved by the decision of the court a quo, the appellant has noted this appeal to this court.

THE PARTIES

The appellant is a local authority established in terms of the Urban Councils Act [Chapter 29:15].

The respondent resides within the area under the jurisdiction of the appellant. He is a former councillor of the appellant.

THE FACTS

Between 2008 and 2013, the respondent was a councillor of the appellant. The appellant alleges that, at some point during his tenure as councillor, the respondent created a false rates account in his name, with the help of an unknown council employee, and took occupation of the Plot.

It further alleges, that, the respondent never acquired the Plot in question as it was reserved for a motor cross course which could not be reduced to a residential Stand.

The appellant states, that, the respondent had occupied the Plot in the name of Leengate Investments (Pvt) Ltd and that the respondent never purchased the Plot.

On the other hand, the respondent argues that he was entitled to the plot as he had purchased it from the appellant.

After a full trial, the court a quo dismissed the appellant's claim with costs. The appellant appeals against that decision on the following grounds:

“GROUNDS OF APPEAL

1. The court a quo erred in concluding that there existed an agreement of sale between the defendant and Mr Maregere, verbally, and that such agreement was binding on the plaintiff contrary to the clear provisions of section 152 of the Urban Councils Act [Chapter 29:15].

2. The court a quo erred by ignoring a claim of rei vindication, and, instead, placed onus on the plaintiff where onus was to be on the defendant to prove acquisition.

3. The court a quo erred, grossly, in requiring the plaintiff to prove the narrative that the defendant had no valid agreement of sale and that he did not pay for the land.

4. The court a quo erred by ruling that the plaintiff ought to have pleaded the law on sale of public land owned by plaintiff, which sales are all governed by section 152 of the Urban Councils Act [Chapter 29:15].

5. The court a quo exhibited bias by believing the defendant and holding him to be a credible witness, contrary to the evidence placed on record.

6. The court a quo erred grossly by relying on plan approval process to authenticate an alleged sale where there existed no single evidence of the sale itself or the proper allocation and agreement of sale of public land.

7. The learned Judge grossly erred in arriving at a conclusion which was not in any manner supported by the facts or evidence and law that were placed before her.”

RELIEF SOUGHT

The appellant seeks the following relief:

“1. That the appeal succeeds with costs.

2. That the judgment of the court a quo be and is hereby set aside and in its place the following is substituted:

'(a) Judgment be and is hereby entered for the plaintiff.

(b) The defendant be and is hereby ordered to vacate Plot 16340, Chinhoyi within 7 days of this order, failing which the Sheriff be and is hereby ordered to evict him and all those claiming occupation through him from the said property.

(c) The defendant is ordered to pay holding over damages to the plaintiff in the sum of US$300 per month for illegal occupation with effect from the 13th December to the date of ejectment or vacation of the property by the respondent.

(d) The defendant shall pay interest thereon at the prescribed rate.

(e) The defendant shall pay the appellant's costs of suit.'”

THE ISSUES

The grounds of appeal raise three issues:

(a) Whether the respondent purchased the Plot in question.

(b) Whether the appellant is entitled to evict the respondent.

(c) Whether the respondent should pay holding over damages.

PROCEEDINGS IN THE COURT A QUO

The matter was referred to trial on two issues, vis:

“(i) Whether the defendant lawfully acquired the property called Plot 16340, Chinhoyi.

(ii) Whether the defendant is liable to pay holding over damages for the unlawful occupation of plaintiff's land.”

During the trial, each party called only one witness.

The appellant called one Marshal Johanne who was employed by it as a Revenue Accountant. He told the court, that, he had been in the appellant's employ for 4 years; 2 years of which he was employed as a Credit Controller.

His evidence was that the Plot was owned by the appellant and that it was used for motorbike sports until 2009. The Plot was then offered to a Mr Chayne. He did not take the Plot citing lack of title.

In June 2010, an entity called Leengate Investments applied to lease or acquire the Plot.

An offer to lease was extended to that company, but, nothing materialised as the company failed to meet the conditions stipulated by the appellant.

The witness accused the respondent of having been in cahoots with Leengate Investments.

He averred that the respondent sat in the Committee that had recommended leasing the Plot to Leengate Investments, without declaring his interest.

The witness stated, that, no Agreement of Sale was ever entered into between the respondent and the appellant concerning this Plot. In fact, according to this witness, there are no Council records confirming the alleged sale of the Plot to the respondent or any other purchaser.

He explained, that, whenever the appellant intended to sell land to anyone, a resolution to that effect must first be made.

When the offer is not being made to an individual, an advertisement is placed in the newspaper inviting prospective buyers to apply. Thereafter, an offer is made to the successful applicant. This is then followed by an Agreement of Sale or lease agreement.

He denied that the respondent paid the sum of $36,080 as there are no records to that effect.

He explained that estate accounts have a unique serial number and same is created from an Agreement of Sale. Thus, when payment is made, it goes into that estate account.

The witness conceded that the respondent's plans had been approved, but, he was unable to identify the persons who did so.

He insisted that the respondent had neither the Agreement of Sale nor lease, despite the approval of his building plans.

The witness maintained, that, all other payments or subsequent approvals by various departments cannot stand in the absence of the source documents, that is, the Agreement of Sale or lease.

The witness stated, that, his department was the custodian of all Council records and his search did not yield any source documents in favour of the respondent.

The court a quo found this witness evasive in that he denied, for example, a document clearly marked “arrear rentals” as being what it is - a paper outlining arrear rentals. The same was observed with a document showing payment of rates. He kept referring to the relationship between Leengate Investments and the respondent until it was pointed out to him, that, in its papers, the appellant had indicated that it later found out that there was no link between the respondent and Leengate Investments.

The court a quo assessed the credibility of this witness as follows:

“Rather than give his evidence in a truthful manner, acknowledging where necessary, that he had no knowledge of the facts, the witness struck the court as a hired gun who was bent on ensuring that the plaintiff wins at all costs.”

ANALYSIS

1. Whether the respondent purchased the Plot in question

It appears that the court a quo based its assessment of the credibility of this witness on peripheral matters. It however lost sight of the crux of the witness evidence, namely, that, his department is the custodian of the appellant's records and that he had established that there was no record of any Agreement of Sale or lease of the Plot to the respondent. For that reason, the Plot remained the property of the appellant.

In this regard, the witness was not shaken nor did the respondent adduce evidence to contradict that position.

The respondent has not produced any documents purporting to be the Agreement of Sale entered into by the parties.

What he relies on are various inputs to do with the respondent's departments, for example, the assessment of rates and the approval of building plans pertaining to the Plot.

However, it is common cause that all these processes and activities could only be embarked upon once there was a Council resolution and an Agreement of Sale.

In devoting its assessment of the witness's credibility on peripheral issues, some of which occurred before the witness was employed by the respondent, the court a quo lost the essence of the inquiry that it should have embarked upon.

The respondent has alleged a verbal agreement of sale entered into between him and the appellant's employee, namely, the Director of Housing.

That is confirmation of the witness's evidence that there are no records of the sale.

The appellant's position is unassailable. It did not sell the property to the respondent - there are no records to that effect.

The respondent's argument is that the Plot was allocated to him, verbally, by the appellant's Director of Housing.

It is trite that immovable property of a municipal authority cannot be disposed of verbally without any documents.

The appellant further contended, that, if indeed it had sold this Plot to the respondent, it would have been required to comply with the mandatory provisions of section 152(1) and (2) of the Urban Councils Act [Chapter 29:15] (the Act).

The court a quo ruled that the above section did not apply because it had not been pleaded, and, as such, the appellant was raising it as an afterthought!

(i) Firstly, litigants are generally not required to plead the law.

(ii) Secondly, the contention is not an afterthought. It is the law!

In any event, it is trite that a point of law can be raised at any stage of the proceedings....,.

The court a quo grossly misdirected itself by ignoring the clear provisions of section 152 of the Urban Councils Act. These provisions are mandatory. Failure to comply with these provisions nullifies the alleged sale of the Plot.

SC119-23 : QUICKLINK INVESTMENTS (PRIVATE) LIMITED vs CMAL (PRIVATE) LIMITED and THE SHERIFF OF ZIMBABWE
Ruled By: BHUNU JA, CHIWESHE JA and MUSAKWA JA

This is an appeal against the whole judgment of the High Court (the court a quo) wherein it granted a spoliation order sought by the first respondent against the appellant.FACTSThe appellant and the first respondent are companies incorporated in terms of the laws of Zimbabwe. The first respondent is the ...

This is an appeal against the whole judgment of the High Court (the court a quo) wherein it granted a spoliation order sought by the first respondent against the appellant.

FACTS

The appellant and the first respondent are companies incorporated in terms of the laws of Zimbabwe. The first respondent is the owner of a certain piece of land, being two thirds shares of the Remaining extent of Teviotdale (hereinafter referred to as 'part of the farm') held under Deed of Transfer 8935/90. The appellant is the registered holder of a mining block consisting of ten gold reef claims named Forest K of Forest View (hereinafter referred to as 'Forest K claims') which block is situated on the respondent's farm.

The first respondent filed an urgent chamber application for a spoliation order in which it sought that the appellant and one Kumbirai Kangai be ordered to return peaceful, quiet, undisturbed possession, occupation, and use of two thirds shares of the remaining extent of Teviotdale.

In the application, the first respondent averred that sometime in April 2021 the appellant invaded part of its farm.

In resisting the application, Kumbirai Kangai deposed to an opposing affidavit in which he claimed to be the director of the appellant. He further averred that the appellant was the registered holder of ten gold reef claims situated on the first respondent's farm.

A provisional order was granted, only against Kumbirai Kangai, on 21 April 2021, and, subsequently confirmed on 26 January 2022 under case number HC1604/21.

It is not clear how the order was only granted against Kumbirai Kangai.

On 9 February 2022, the second respondent executed the order granted under HC1604/21 by serving a notice of eviction on Kumbirai Kangai's employee, one Tongesai Maregere.

On 14 February 2022, the second respondent evicted Kumbirai Kangai and all those claiming occupation through him and restored possession to the first respondent.

On 14 February 2022, at around 5:00pm, the first respondent instructed its guards to clear off a squatter camp, which clearance was carried out and the squatter camp was burnt down. On 15 February 2022, the first respondent further deployed a bulldozer and grader to restore the degraded land by filling holes that had been dug and knocking off stone and mortar structures that had been erected.

At around 3:00pm, the bulldozer operator was informed, by the appellant's employees, that he could not enter the site as they were already fencing the site off.

The first respondent engaged legal counsel regarding the spoliation by the appellant.

It turned out, that, on 14 February 2022, an application for an injunction against the first respondent had been filed by the appellant with the Provincial Mining Director for Mashonaland Central Province and served on the first respondent's legal practitioners.

The first respondent further averred, that, the appellant failed to await the outcome of the application for injunction and resorted to self-help and despoiled it of its property.

The first respondent thus prayed that it be restored occupation and use of part of the farm and that the appellant be evicted therefrom.

The appellant and Kumbirai Kangai opposed the first respondent's application.

The first respondent, however, amended its draft order at the hearing and deleted the name of Kumbirai Kangai. As such, only the appellant opposed the application.

In its opposing affidavit, the appellant raised a preliminary point to the effect that the matter was not urgent as the first respondent had been aware of the mining claims since 2013. Reference was made to its opposition to the application under HC1604/21, stating that it had claims over the same land belonging to the first respondent.

The appellant further averred, that, it possessed a certificate of registration of a mine situated on part of the farm and that the first respondent had not done anything to challenge the appellant's possession of part of the farm.

It also averred, that, the eviction order granted under HC1604/21 was made against Kumbirai Kangai and not against it. The appellant thus averred that it was not evicted from the property as the first respondent did not institute any action for its eviction.

On the merits, the appellant averred that the first respondent was seeking to evict it through the back door, and by way of an urgent chamber application.

The appellant further averred, that, the first respondent was never in peaceful, quiet, and undisturbed possession and occupation of part of the farm.

In addition, it contended that it had issued a notice of application for an injunction, in terms of section 354(1) of the Mines and Minerals Act [Chapter 21:05], on the first respondent, on 10 February 2022.

The appellant further averred, that, its certificate of registration of the mining claims was still valid, and, as such, it had a right to carry out mining activities on the farm.

The appellant also averred, that, the provisional order granted in favour of the first respondent had been granted by the consent of the parties in the hope of reaching a settlement.

Further, the appellant contended that it was not before the court when the order evicting Kumbirai Kangai was granted, and, as such, it could not be evicted on the basis of such eviction order as it was a separate legal persona from its director, Kumbirai Kangai.

The appellant maintained, that, its structures and equipment, situated on part of the farm, had not been demolished by the first respondent and that such action showed that the first respondent was never in possession of the piece of land where the appellant carried out its mining activities.

In addition, it contended that the first respondent could not seek to enter the appellant's site to evict it after the second respondent had left.

The appellant thus prayed for the dismissal of the first respondent's application as it averred that the application was simply one of eviction made under the guise of a spoliation application.

DETERMINATION BY THE COURT A QUO

The court a quo found that the matter was urgent. It reasoned that the appellant had not established that it was in occupation of the farm since 2013, whereas, the first respondent had established that it had obtained an extant order under HC1604/21 over the same portion of land and from which the application for spoliation arose.

The court a quo found, that, the first respondent acted expeditiously in seeking the spoliation order as the eviction by the second respondent had been carried out on 14 February 2022 and the appellant had started the process of fencing off the area in dispute on 15 February 2023, prompting the first respondent to seek the spoliation order on 17 February 2023 - three days later.

The court a quo thus dismissed the preliminary point raised by the appellant.

On the merits, the court a quo found that following the execution of the order granted under HC1062/22 the first respondent was left in peaceful and undisturbed possession of that part of the farm.

The court a quo further found, that, when the appellant proceeded to occupy the land, and fenced it, and barred the first respondent from accessing part of the farm, it was forcibly depriving the first respondent of part of the farm.

The court a quo noted that the fact, that, the appellant may have been in occupation of part of the farm and was a holder of a certificate of registration of mining blocks was a different issue altogether as the certificate of registration related to a different farm and not the farm at the centre of the dispute.

The court a quo further noted, that, the appellant's certificate of registration was for a mine called Forest K situated on Forest View and not two thirds share of the remaining extent of Teviotdale.

The court a quo noted, that, having realised that its director, Kumbirai Kangai, had been lawfully evicted, the appellant decided to occupy part of the farm in dispute as the order made under HC1604/21 had not been made against it.

In the result, the court a quo found that the first respondent had established that it was despoiled of part of its farm by the appellant. The court ordered the appellant to restore the first respondent's status quo ante prior to the spoliation and authorized the second respondent to eject, demolish any structures, and raze down fencing erected by the appellant and all those claiming occupation through it and that the appellant pay costs of the application.

Aggrieved by this decision, the appellant noted the present appeal on the following grounds of appeal:

“GROUNDS OF APPEAL

1. The court a quo grossly misdirected itself in finding that the execution of the order under HC1604/21 left 1st respondent in peaceful possession of the disputed mining location, yet, appellant was not a party to that cause and considering that appellant's employees, accommodation, and mining equipment remained on the registered mining location.

2. The court a quo grossly misdirected itself in finding that appellant was not in occupation and possession of the mining location in the face of evidence that it had been in occupation of the disputed land since 2013.

(a) A fortiori, the court a quo erred in finding that the issue of the appellant's occupation of the mining location, pursuant to a certificate of registration, was inconsequential to the spoliation cause.

3. The court a quo erred in affording first respondent final ejectment relief in an urgent spoliation cause in circumstances where such relief was neither justified nor motivated in the first respondent's founding papers.

4. As an alternative to ground number 3 above, and in granting the eviction order, the court a quo erred;

(a) In finding, without rational or legal justification, that appellant's registered mining location was not located within first respondent farm; and

(b) In ordering appellant's eviction without regard to the pending proceedings in terms of section 354(1) of Mines and Minerals Act [Chapter 21:05].

WHEREFORE appellant prays for the following relief;

(i) That the appeal succeeds with costs.

(ii) That the judgment of the court a quo be and is hereby set aside and substituted with following:

'The application be and is hereby dismissed with costs.'”

ISSUE FOR DETERMINATION

One issue arises from the grounds of appeal and submissions made by counsel before this Court. The issue for determination is as follows:

Whether or not the first respondent was in peaceful and undisturbed possession of part of the farm and whether the appellant despoiled the first respondent of such possession.

THE APPELLANT'S SUBMISSIONS ON APPEAL

Counsel for the appellant submitted, that, when the order under HC1604/21 was executed by the second respondent, Kumbirai Kangai and his employees were evicted as evidenced by the Sherriff's return.

Counsel argued that after the eviction, the appellant's employees remained on the first respondent's part of the farm and hence decided to fence off the portion of the farm which they were occupying.

Counsel thus maintained, that, the appellant was already in possession of part of the farm, and, as such, could not have despoiled the first respondent of any peaceful possession which it never had.

Counsel for the appellant also argued, that, the eviction order in HC1604/21 did not relate to the appellant, but to Kumbirai Kangai and others acting through him.

Counsel further argued, that, since the appellant was not a party to the proceedings in HC1604/21, the court a quo erred when it granted the eviction order against it.

He further argued, that, the court a quo failed to establish a link between the appellant and Kumbirai Kangai and that it made an error by making a determination that when eviction was carried out on Kumbirai Kangai, the appellant was also evicted.

With that, counsel maintained that the appellant did not despoil the first respondent of peaceful possession of part of the farm.

As regards the effect of the orders in HC1604/21, counsel submitted that the appellant had no problem with removing the fence it erected as the relief it sought on appeal was that there be co-possession of the farm between it and the first respondent.

Counsel further submitted, that, the demolition of its structures pre-supposes that the rights of the parties have been effectively resolved.

At the end of his submissions counsel, however, conceded that the first respondent had peaceful possession of part of the farm.

FIRST RESPONDENT'S SUBMISSIONS ON APPEAL

Counsel for the first respondent argued, that, the question of whether or not it was in peaceful possession of part of the farm, prior to 14 February 2022, could not be disputed as the appellant had made a concession that the first respondent had possession of part of the farm.

Counsel submitted that the act of erecting a fence by the appellant, on 15 February 2022, amounted to an act of spoliation which warranted an order of eviction as granted by the court a quo.

Counsel argued, that, the issue of joint possession was never pleaded by the appellant, and that, in any event, the appellant ought to have proved before the court a quo, that, there was joint possession between it and the first respondent in respect of part of the farm in dispute but it failed to do so.

Counsel further argued, that, spoliation orders, by their very nature, are final and aimed at restoring the status quo ante, and, as such, the court a quo could not be faulted for ordering that the appellant vacate the property in dispute together with all those claiming occupation through it.

It was also counsel's argument, that, when the second respondent enforced the order granted in HC1604/21 the first respondent was given possession of part of the farm. Counsel maintained, that, by erecting a fence and taking occupation of the land, on 15 February 2021, the appellant despoiled the first respondent of part of the farm.

Counsel thus submitted, that, the judgment of the court a quo was unassailable and prayed that the appeal be dismissed with costs.

ANALYSIS

The first respondent approached the court a quo seeking a spoliation order against the appellant. The court a quo granted the order sought by the first respondent. The court a quo restored possession of part of the farm to the first respondent by ordering the second respondent to demolish structures and raze down the fence erected by the appellant and all those claiming occupation through it from part of the farm.

The question to be determined by this Court relates to whether or not the first respondent was in peaceful possession of part of the farm and was despoiled by the appellant when it fenced part of the farm on 15 February 2021.

The law on spoliation is well settled.

Spoliation is the wrongful deprivation of another's right of possession. The purpose of a spoliation order is to prevent self help. The remedy entitles a wronged party to approach a court of law to obtain an order that he/she/it be returned to the status quo ante.

In Zondiwa Nyamande v Isaac Tamuka & Ors SC445-23…, the court discussed the effect of a mandament van spolie as follows:

“Spoliation proceedings hail from the common law remedy which is meant to discourage members of the public from taking the law into their hands: see Mswelangubo Farm (Pvt) Ltd & Ors v Kershelmar Farms (Pvt) Ltd & Ors SC69-21; Chiwenga v Mubaiwa SC86-20. The remedy encourages members of society to follow due process in obtaining or acquiring any res he believes belongs to him.

The mandament van spolie is therefore a possessory remedy aimed at the restoration of possession where a party is unlawfully deprived of its prior peaceful and undisturbed possession of property.

The facts of each matter determine whether or not spoliation or unlawful disposition has occurred.

It is trite, that, in spoliation proceedings, the lawfulness or otherwise of the possession challenged is not an issue. Spoliation simply requires the restoration of the status quo ante pending the determination of the dispute between the parties: see Augustine Banga & Anor v Solomon Zawe & Ors SC54-14.”

The learned authors SILBERBERG and SCHOEMAN in The Law of Property, second edition…, state the following with regards to this principle:

“…, the applicant in spoliation proceedings need not even allege that he has a ius possidendi: spoliatus ante omnia restituendus est…,. All that the applicant must prove is that he was in peaceful and undisturbed possession at the time of the alleged spoliation and that he was illicitly ousted from such possession….,. It is not sufficient to make out only a prima facie case….,.”

In the celebrated case of Botha & Anor v Barrett 1996 (2) ZLR 73 (S) GUBBAY CJ stated as follows…,.:

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

(i) That, the applicant was in peaceful and undisturbed possession of the property; and
(ii) That, the respondent deprived him of the possession forcibly or wrongfully against his consent.”

In Minister of Mines and Mining Development & Others v Grandwell Holdings (Pvt) Ltd SC34-18…, the court held that:

“It has been stated in a number of cases, that, issues of rights are irrelevant in spoliation proceedings. In Yeko v Oana 1973 (4) SA 735 (AD) at 739G it was stated that:

'The fundamental principle of the remedy is that no one is allowed to take the law into his own hands. All that the spoliata has to prove is possession of a kind which warrants the protection accorded by the remedy, and that he was unlawfully ousted.'”

In the case of Chisveto v Minister of Local Government and Town Planning 1984 (1) ZLR 248 (H) the court remarked:

“Lawfulness of possession does not enter into it. The purpose of the mandamus van spolie is to preserve law and order and to discourage persons from taking the law into their own hands. To give effect to these principles, it is necessary for the status quo ante to be restored until such time as a competent court of law assess the relative merits of the claims by each party.”

And, in Streamsleigh Investments (Pvt) Ltd v Autoband (Pvt) Ltd SC43-14…, GOWORA JA…, held as follows:

“It has been stated in numerous authorities, that, before an order for mandament van spolie may be issued, an applicant must establish that he was in peaceful and undisturbed possession, and was deprived illicitly.

In Scoop Industries (Pty) Ltd v Longlaagte Estate & GM Co. Ltd (In Vol Liq) 1948 (1) SA 91 (W) LUCAS AJ said at pp98-99:

'Two factors are requisite to found a claim for an order for restitution on allegation of spoliation. The first is that the applicant was in possession, and, the second that he has been wrongfully deprived of that possession against his wish.

It has been laid down, that, there must be clear proof of possession and illicit deprivation before the order is granted….,. It must be shown that the applicant had free and undisturbed possession….,.'”

See also H J Voster (Pvt) Ltd and Anor v Save Safaris (Pvt) Ltd and Ors SC41-22.

The above authorities are instructive, that, in spoliation proceedings, the determining factor is not the lawfulness or otherwise of the possession but whether the applicant was in peaceful and undisturbed possession, and, that he/she/it was wrongfully deprived of that possession against his/her/its consent.

In case number HC1604/21, the first respondent obtained a provisional order against Kumbirai Kangai and all those claiming occupation of part of the farm belonging to the first respondent. The order granted in HC1604/21 was enforced by the second respondent on 14 February 2021 whereupon Kumbirai Kangai and his employees were evicted from the mining site.

On the same day, the first respondent took occupation of the site and proceeded to clear off Kumbirai Kangai's squatter camp by burning all the temporary grass structures.

It is also common cause, that, on 15 February 2021, when the first respondent's workers sought to fill in holes and knock off stone and mortar structures, they were denied access by the appellant's employees who were already in the process of fencing off the site.

The court finds, that, the facts of the matter clearly show that the appellant despoiled the first respondent of its undisturbed possession of part of the farm. This finding is made on the basis of the following points:

(i) Firstly, the order granted in HC1604/21 gave the first respondent vacant possession of its part of the farm. The eviction of Kumbirai Kangai, and his employees, resulted in the first respondent possessing part of the farm, which possession it held peacefully.

(ii) Secondly, the first respondent proceeded to clear the site as a mark of establishing its peaceful possession of part of the farm.

(iii) Lastly, on 15 February 2021, the appellant, with no consent of the first respondent, entered part of the farm and proceeded to erect a fence over the area upon which the first respondent had been given vacant possession by the court under HC1604/21.

The appellant clearly despoiled the first respondent of its peaceful possession of part of the farm.

Counsel for the appellant conceded at the hearing of this appeal, that, the first respondent was in possession of part of the farm, but, however, sought to make the argument that such possession ought to be viewed as co-possession between the appellant and the first respondent.

This argument was never pleaded by the appellant before the court a quo, as correctly noted by counsel for the first respondent.

The authors A.C. CILLIERS, C. LOOTS and H.C. NEL in The Civil Practice of the High Courts of South Africa (5th ed, J)…, quoting Halsbury's Laws of England, 4th ed (Reissue) Vol 36 (1) para 1, state the following in relation to a pleading:

“The term 'pleading' is used in civil cases to denote a document in which a party to proceedings in a court of first instance is required, by law, to formulate in writing his case in preparation for the hearing.”

In Imprefed (Pty) Ltd v National Transport Commission 1993 (3) SA 94 (A)…, the court cited with approval the case of Robinson v Randfontein Estates GM Co. Ltd 1925 AD 173 where…, the following was stated:

“The object of pleading is to define the issues; and parties will be kept strictly to their pleas where any departure would cause prejudice or would prevent full enquiry. But, within those limits, the court has a wide discretion. For pleadings are made for the court, not the court for pleadings. And, where a party has had every facility to place all the facts before the trial court, and the investigation into all the circumstances has been as thorough and as patient as in this instance, there is no justification for interference by an appellate tribunal, merely because the pleading of the opponent has not been as explicit as it might have been.”

Pleadings are meant to mark out the parameters of the case sought to be advanced and define the issues between litigants.

In this regard, it is a basic principle that an issue should be clearly stated in pleadings at the initial stages when a matter is filed. This enables the opposing party to answer to such issues and also ensures that the court determines all issues raised before it.

The Court finds merit in the submission by counsel for the first respondent, that, the issue of co-possession was never related to or pleaded by the appellant in its opposing affidavit before the court a quo.

SC120-23 : COLLINS MANGENJE and GODWIN MANGENJE vs ISAAC TICHARWA (executor, estate Kennedy Mangenje) and MANGENJE BROTHERS (PVT) LTD (In liquidation) and CECIL MADONDO (liquidator, Mangenje Brothers)
Ruled By: BHUNU JA, CHIWESHE JA and CHATUKUTA JA

This is an appeal against the whole judgment of the High Court (the court a quo) wherein it confirmed a provisional order against the appellants.THE PARTIESBoth appellants are directors and shareholders of the second respondent, a company under liquidation, duly registered in terms of the laws of Zimbabwe. The first ...

This is an appeal against the whole judgment of the High Court (the court a quo) wherein it confirmed a provisional order against the appellants.

THE PARTIES

Both appellants are directors and shareholders of the second respondent, a company under liquidation, duly registered in terms of the laws of Zimbabwe. The first respondent is the executor dative of the estate of the late Kennedy Mangenje who was a founder and director of the second respondent company. The third respondent is cited in his official capacity as the liquidator of the second respondent, whereas the fourth respondent is the Sheriff of the High Court of Zimbabwe cited in his official capacity as well.

FACTUAL BACKGROUND

The first respondent brought an application in the court a quo for the provisional liquidation of the second respondent in terms of section 5(1)(b)(iii) of the Insolvency Act [Chapter 6:07] (the Act). The section authorizes one or more members of a company to apply for an order to wind up a company in circumstances where it is just and equitable that the company be liquidated.

Section 4(1) of the Insolvency Act clothes the first respondent, in his capacity as executor, with the authority to apply for the liquidation of the second respondent as a debtor of the deceased estate.

The first respondent brought the application in a bid to protect the interests and rights of the deceased estate for the benefit of its beneficiaries. The appellants, in turn, countered by seeking to prove the quantum of damages they suffered, placing reliance on section 8 of the Insolvency Act [Chapter 6:04] (the Act).

The court a quo granted the provisional order on May 2022. A final liquidation order was granted on 28 September 2022 in the following terms:

“IT BE AND IS HEREBY ORDERED THAT:

1. The first respondent, MANGENJE BROTHERS (PRIVATE) LIMITED be and is hereby finally wound up.

2. Subject to section 41 of the Insolvency Act [Chapter 6:07], CECIL MADONDO is hereby appointed as the final liquidator of the first respondent company with the powers set out in Part X of the Insolvency Act.

3. The first respondent shall meet the costs of this application and the liquidation proceedings.”

The court a quo found that the appellants, as interested parties, could not claim for damages in terms of section 8 of the Insolvency Act. Consequently, it ruled that the provision exclusively permits a debtor to claim the relief sought by the appellants. It therefore ruled, that, the express mention of debtor excludes all other parties to claim damages with the exception of a debtor.

The outcome of the confirmation proceedings did not go down well with the appellants, hence this appeal. They accordingly mounted the appeal on the following nine grounds:

GROUNDS OF APPEAL

“1....,.

2....,.

3....,.

4....,.

5....,.

6. The court a quo erred and grossly misdirected itself in finding, that, the minutes of proceedings of the first meeting of the creditors of the 2nd respondent was the Master's report thereby proceeding without the requisite Master's report as required in terms of the law.

7....,.

8....,.

9....,.”...,.

As regards the issue of the Master's report, it is germane to note that the appellants are raising the issue for the first time on appeal.

This they cannot do as it is a point of fact not law: see Austerlands (Pvt) Ltd v Trade & Investment Bank Ltd & Anor SC92-05.

That case puts paid to the appellant's attempt to rely on a point of fact on appeal not previously raised in the court a quo.

SC123-23 : ARISTON MANAGEMENT SERVICES vs ECONET WIRELESS ZIMBABWE LIMITED
Ruled By: GUVAVA JA, MAKONI JA and MATHONSI JA

This is the unanimous judgment of this Court.

This is an appeal against the judgement of the High Court handed down on 20 July 2023 dismissing the appellant's application to set aside an arbitral award and registering that award.

On 2 October 2023, the respondent filed a notice of objection in terms of Rule 51 of the Supreme Court Rules 2018, that, the appellant's founding affidavit filed in support of the application seeking to set aside the arbitral award in the court a quo was defective in that it was undated. The respondent submitted, that, for that reason, there was no valid application before the court a quo.

The respondent urged the court to dismiss the appeal with costs on that basis.

At the commencement of the hearing, counsel for the respondent, relying on the authority of Mandishaya v Sithole HH798-15, which is a judgment of two Judges of the High Court, submitted that the founding affidavit of the appellant, in the court a quo, was invalid as it was un-dated.

Per contra, counsel for the appellant submitted that the Mandishaya v Sithole HH798-15 judgment is wrong. He argued, that, section 8 of the Justices of the Peace and Commissioners of Oath Act [Chapter 7:09], which governs the administering of an oath, does not require the insertion of a date on an affidavit. Counsel further referred to section 2 of SI 183/98, which prohibits a Commissioner of Oaths from administering an oath in a matter in which he or she has an interest.

Counsel for the appellant also referred to the case of Firstel Cellular (Pvt) Ltd v Net One Cellular (Pvt) Ltd 2015 (1) ZLR 94 (S) which dealt with a matter where a wrong stamp had been appended by the Commissioner of Oaths.

In our view, that case is not useful for present purposes.

In Mandishaya v Sithole HH798-15, the court remarked that the deponent of an affidavit must take the oath in the presence of the Commissioner. Equally, the Commissioner must append his or her signature on the statement in the presence of the deponent. The court went on to say, that, the Commissioner must also endorse the date on which the oath was administered and that those acts must occur contemporaneously.

The reason behind that requirement is for the court to be satisfied, that, the oath was administered at a given date, in the presence of both the deponent and the Commissioner. Without the date, the court may never be able to ascertain if the oath was properly administered in accordance with the law.

The court a quo was bound by the Mandishaya v Sithole HH798-15 judgment, being a judgement of the two Judges.

Even though the issue was not argued a quo, it could be raised for the first time on appeal as it is a point of law.

We do not agree with counsel for the appellant, with his argument that the judgment was wrongly decided.

There is merit in the preliminary objection. It ought to be upheld. It renders the application for setting aside the award a nullity.

SC124-23 : CLEVER NJOVANA vs KUDAKWASHE KARAGA and COSMAS MASAWO and MINISTER OF LANDS, AGRICULTURE, WATER, FISHERIES AND RURAL RESETTLEMENT and P. MAPARA
Ruled By: GWAUNZA DCJ, CHIWESHE JA and MUSAKWA JA

This is an appeal against the whole judgment of the High Court, Harare, handed down on 4 August 2022. The judgment granted an interim spoliation order and other relief against the appellant and in favour of the first and second respondents.

At the conclusion of the hearing in this matter, the court issued an order in these terms:

1. The appeal be and is hereby allowed with costs;

2. The judgment of the court a quo be and is hereby set aside;

3. The matter is remitted to the court a quo for it to determine the case that was before it; and

4. The matter is to be placed before a different judge for determination.

The first and second respondents have requested full reasons for this order, and these are they.

FACTUAL BACKGROUND

The first, second and fourth respondents are holders of an offer letter in respect of Subdivision 2 of Lot 1 of Avalon, Hurungwe District, Mashonaland West Province (the 'farm'). In addition to the offer letter, there are various judgments and orders of the High Court which confirm the first respondent's right of occupation.

The farm was repossessed from the appellant by the third respondent following a national land audit and was jointly allocated to the first, second, and fourth respondents in 2013.

In 2018, the first respondent successfully instituted eviction proceedings against the appellant in judgment number HH707-20. Aggrieved by this judgment, the appellant appealed to this Court under case number SC39/21 but the appeal was dismissed.

The appellant, thereafter, filed an application for review under HC7124/21 which was dismissed. Undaunted, he further filed another case, under HC7057/21, which was also dismissed. He was thereafter evicted from the farm, with the result that the first respondent was granted vacant possession thereof.

In June 2021, the appellant filed an application for the review of the decision of the third respondent in withdrawing his offer letter. Despite the first and second respondents being correctly cited as interested parties to the review application, they were however not served with the notice of set down. As a result, an order against the third respondent was subsequently granted, in default, on 12 July 2022.

The order reads as follows, in the relevant part:

“IT IS ORDERED THAT:

1. The decision to withdraw a letter of withdrawal of applicant's offer letter, dated 18 November 2013, be and is hereby declared a nullity and set aside.

2….,.

3. In the result, it is hereby declared that the applicant is lawfully authorized and entitled to be in occupation of Subdivision 2 Lot 1 of Avalon Farm in Hurungwe measuring 115 hectares in terms of the offer letter issued to him by the respondent on 1 December 2006.

4….,.”

Following the granting of the review application, the appellant proceeded to invade the farm and eject the first and second respondents - without a court order or writ of eviction backing his actions.

In response to these actions, the first and second respondents filed an application seeking to have the order granted under case number HC3129/21 rescinded. In addition, the two filed an urgent chamber application for stay of execution pending the determination of the application for rescission of judgment that had already been filed. Both applications were premised on the fact that the judgment in HC3129/21 was granted in error.

In dealing with the urgent chamber application, the court a quo held that the requirements for a spoliation order were clear and that the first respondent was in peaceful and undisturbed possession of his part of the farm and was therefore dispossessed unlawfully (even though the court a quo, in its judgment, refers only to the first respondent as the one who was despoiled of the farm in question, it is pertinent to note that the second respondent, in his supporting affidavit a quo, asserts that he too was a victim of the alleged dispossession, and associated himself with the relief sought a quo).

The court a quo held that it was proper that the first respondent be restored to the farm.

The court further held, that, the appellant was not in possession of a court order for the eviction of the first respondent from the farm. Further, that he had invaded the farm and sought to dispossess the first respondent who was occupying the farm peacefully.

The court held, on this basis, that, this circumstance justified a spoliation order 'as pleaded' and prayed for.

The court a quo further held, that, even though no warrant of eviction had been issued against the first respondent, given that the order granted in HC3129/21 was declaratory in nature, the appellant had made it clear that he had come back to the disputed farm on the strength of that order.

The court then granted the order sought by the first and second respondents.

Disgruntled at that decision, the appellant filed this appeal on a number of grounds, but, only one of them is relevant for the determination of the matter at hand. The ground reads as follows:

1. Having been approached for an order for stay of execution, the court a quo erred at law and grossly misdirected itself in granting, on a prima facie basis, and in the form of a provisional order; interdictory relief, spoliatory relief, and eviction relief - which causes of action had not been pleaded or established by the first and second respondents and which is final in nature and effect.

ISSUE FOR DETERMINATION

The ground of appeal cited above raised the only issue that, in the event, was determined by the court and disposed of the appeal. This was:

Whether or not the court a quo erred in determining a matter that was not properly before it

The appellant, in his first ground of appeal, avers that the court a quo erred at law and grossly misdirected itself in granting, on a prima facie basis, and in the form of a provisional order, a spoliation order, an order of eviction, and an interdict. He avers that the relief was also granted in circumstances where the requirements for it were neither pleaded nor established by the first and second respondents.

In short, it is the appellant's submission that the court went on a frolic of its own and determined a matter not properly before it.

THE LAW AND APPLICATION THEREOF TO THE FACTS

It is common cause, that, the first and second respondents approached the court a quo on an urgent basis seeking a suspension or stay of execution of the order granted by the court in HC3129/21 pending determination of their application for rescission of judgment under case number HC4928/22.

Based on that application, the respondents sought the following interim relief, which the court a quo granted without any alteration:

“TERMS OF FINAL ORDER SOUGHT

That you show cause to the Honourable Court why a final order should not be made in the following terms:

1. The judgment of this Honourable Court granted under HC3129/21 on the 12 July 2022 be and is hereby suspended pending the determination of (the) Court Application filed by the Applicants under HC4928/21.

2. The first respondent shall pay the costs of suit on the higher scale of attorney and client.

INTERIM RELIEF GRANTED

Pending determination of this matter, the applicant is granted the following relief:

3. Pending the determination of the application for rescission of default judgment, filed under case number 4928/22, the execution and operation of the court order granted under HC3129/21 on 12 July 2022 be and is hereby suspended.

4. The first respondent, and all those acting through him, be and are hereby ordered to vacate Subdivision 2 of Lot 1 of Avlon Farm forthwith.

5. The first respondent, and all those acting through him, be and are hereby ordered to forthwith return and give vacant possession of Subdivision 2 of Lot 1 Avlon Farm forthwith to the applicants.

6. First respondent is ordered not to interfere with applicant's exercise of rights in Subdivision 2 of Lot 1 of Avlon Farm.

7. First respondent be and is hereby ordered to pay costs of suit on a legal practitioner and client sale.”

Whatever the merits or demerits of the main relief that the respondents sought to secure from the court a quo, it is evident from a reading of the order granted by the court, that, pending the return date, the court granted a spoliation order simultaneously with an order for the eviction of the appellant from the disputed premises.

Whether or not the court could competently grant a spoliation order as interim, rather than final relief, is however not what is at issue in casu.

The issue, rather, is whether or not the court a quo reached its determination on spoliation on the basis of the matter having been fully pleaded, argued, and established.

In other words, was the matter properly before it?

A look at relevant excerpts from the court a quo's judgment is instructive in this respect. At pages 5 and 6 of the cyclostyled judgment of the court a quo, the learned judge opined as follows:

“I ruled that the matter is urgent given that the applicant was accosted at the farm on 22 July 2022. He filed this application on 25 July 2022, that is, three days after the incident….,. As for this application, it is the invasion and unlawful eviction which prompted him to seek the court's intervention on an urgent basis.

Equally, the point raised that there is no cause of action is without basis.

The applicant's farm was invaded. The first respondent was taking the law into his own hands. In as much as he had a court order declaring that the withdrawal of his offer letter is null and void, he had to properly seek the applicant's eviction.

The point that no writ has been issued, therefore, the relief is incompetent, does not hold. This is because the applicant seeks spoliatory relief and this is apparent from the averments. He also seeks the suspension of the order pending the hearing of the application for rescission of judgment.

The requirements of a spoliation order are clear and are that the applicant must have been in peaceful and undisturbed possession and has been disposed unlawfully.

This obtains herein, hence, it is justified that the applicant be restored to the farm.

The first respondent had no order for the eviction of the applicant, he invaded the farm and sought to remove the applicant who was occupying the farm peacefully. That justifies a spoliation order as pleaded and as prayed for.”…,.

The excerpts cited above, while showing that the court a quo was alive to the main relief that the first and second respondents papers and draft relief suggested they were seeking before it (whatever its merits or demerits), also demonstrate the fact that the court was pre-occupied, even in relation to the determination on the urgency or otherwise of the matter, more with the issue of spoliation than the matter that was substantively before it.

It is also evident, that, the ratio decidendi of the court's judgment was spoliation related, that is, that the appellant unlawfully raided the first respondent's farm and dispossessed him of his peaceful possession thereof.

This, notwithstanding the fact, that, according to the order sought and granted, the spoliation order was, improperly, in the form of interim rather than final relief.

In Gateway Primary School & Ors v Marinda Fenesey SC63-21, the court stated as follows:

“The leading case on this settled point of law is Blue Rangers Estates (Pvt) Ltd v Muduvuri & Anor 2009 (1) ZLR 368. That case is authority for the proposition, that, a spoliation order, being a final and definitive order, cannot be granted as a provisional order. That being the case, it follows that the respondent erred and strayed into the realm of illegality when it sought a spoliation order in the form of a provisional order.”

Notably, this Court finds that this ratio decidendi is not what would have properly founded any relief pertaining to whether or not execution of the court a quo's own earlier judgment, in HC3129/21, could be suspended or stayed.

On the basis of an application titled 'URGENT APPLICATION FOR STAY OF EXECUTION' the first and second respondents approached the court a quo seeking an order for stay of execution.

This is the matter that was properly before the court.

That this is the case is borne out by the final order sought by the respondents a quo, as well as paragraph 9 of the first respondent's founding affidavit, which reads as follows:

“This is an urgent chamber application filed to suspend or stay the operation of an order granted by KATIYO J on the 12 July 2022 in HC3129 pending the determination of an application for rescission of judgment by myself under HC4928/22.”

Settled law, supported by an abundance of authorities, sets out clearly what an applicant has to establish in order to secure an order staying or suspending the execution of a judgment of the court: see, among others, Humbe v Muchina & Ors SC81-21; Mupini v Makoni 1993 (1) ZLR 80 (S)…,.

Spoliation proceedings are determinable on completely different legal principles.

To the extent that the court did not advert to the relevant law in order to determine the real matter before it, but, instead, determined spoliation and other unrelated related claims, it went on a 'frolic' of its own.

It is important to note, that, courts should refrain from granting relief neither sought by the parties, nor based on a case properly argued and proved.

In other words, a court should not craft a case for any of the parties before it - no matter how badly the real case may have been pleaded and argued.

These principles are aptly captured in the matter of Nzara and Others v Kashumba NO and Others 2018 (1) ZLR 194 (S) where UCHENA JA…, held as follows:

“…,. In its judgment, a court must decide no more than what is absolutely necessary for the decision on the case. The decision of the court must always be based on the pleadings of the parties, the evidence placed before the court, and the submissions made by the legal practitioners representing the parties. The granting of relief which is not sought, and in respect of which no argument was heard, amounts to a violation of the right to a fair hearing. A court's judgment must be founded on legal principles and not equity.”

In casu, while the first and second respondents might have, in reality, craved spoliatory relief, they did not file, as they might have done, a substantive application for spoliation.

They, instead, filed an application for the stay or suspension of an earlier order of the court pending determination of their application for the rescission of the same order.

The spoliation case, as evidenced by the excerpts from its judgment, cited above, was, instead, crafted for them by the court a quo.

On the basis of Nzara and Others v Kashumba N.O. and Others 2018 (1) ZLR 194 (S), the court misdirected itself in so doing.

In light of the foregoing, this Court found, accordingly, that, the court a quo misdirected itself in granting defective relief that was neither premised on a sound legal basis, nor properly pleaded, argued, or proved. In the process, the court a quo determined a matter not properly before it.

The court thus found, that, the appellant's first ground of appeal had merit, and, to that extent, that the appeal ought to succeed, and the matter remitted to the court a quo for a proper determination of the matter that was before it. Costs follow the cause.

DISPOSITION

Having found that the court a quo erred, by not determining the real issue before it, the court granted the order cited at the beginning of this judgment.

SC127-23 : ZIMBABWE POWER COMPANY vs INTRATREK ZIMBABWE
Ruled By: MAKONI JA, CHIWESHE JA and MUSAKWA JA

This is an appeal against the whole judgement of the High Court (the court a quo) sitting at Harare, dated 11 January 2023, wherein it declared that the procurement contract entered into between the appellant and the respondent was valid and binding between them. The court a quo proceeded, consequently, to grant an order of specific performance of the contract.

It also dismissed the appellant's counter claim and ordered that the appellant pays the respondent's costs in the claim in reconvention.

Aggrieved by the decision of the court a quo, the appellant has noted the present appeal.

THE FACTS

On 23 October 2015, the parties entered into a Public Procurement Engineering, Procurement and Construction Contract (the contract). In terms of that contract, the respondent was required to construct one solar Photovoltaic Power Station to the capacity of 100MV in Gwanda (the project).

A dispute arose during the implementation of the project.

The respondent issued summons in the court a quo seeking the following relief:

“1. An order declaring that the procurement contract for the Engineering, Procurement and Construction (EPC) of the 100 MV Gwanda Solar Project (ZPC 304/2015) between the parties, as amended, is valid and binding between the parties.

2. Consequent to the declaration of the validity of the EPC contract, an order for specific performance.

Alternatively:

Damages in the sum of US$25,000,000 (twenty five million United States dollars) for repudiatory breach of the EPC contract by the defendant.

3. Costs of suit at the attorney and client scale.”

In its declaration, the respondent amplified its claim as follows:

The agreed contract price for the project was US$172,848,597=60 exclusive of taxes. The respondent was to secure and facilitate the funding of the project as well as bear most of the risks associated with the construction of the plant up to the point of commissioning.

The contractual terms were derived from the FIDIC Silver Book (General Conditions of Contract for EPC/Turnkey Project) 1999, First Edition. The General Conditions were applicable to the extent that they were amended by the Particular Conditions of contract agreed to by the parties.

The appellant was to borrow the funds sourced by the respondent in its name, superintend over both the construction works, and facilitate payments due to the respondent.

The appellant would only take over the risk and liability in the power infrastructure upon successful completion of the solar plant, that is, at the “turn of the key”.

The commencement of the contract was subject to certain suspensive conditions which were to be satisfied or achieved by both parties within a period of 24 months reckoned from 23 October 2015, the date of signature of the contract. The period within which the suspensive conditions were to be satisfied (the Conditions Precedent Satisfaction Period”) could be extended by a period of 6 months through an amendment to the contract. Such extension was to be done before the expiry of the tenure of the conditions precedent satisfaction period.

Beyond the conditions precedent satisfaction period, either party became entitled to terminate the contract, provided that the party seeking to terminate the contract was not responsible for the delays in the fulfilment of the conditions precedent.

Before the expiry of the conditions precedent satisfaction period, on 23 October 2017, the parties agreed to enter into an addendum to the contract, the terms of which would allow the appellant to pay some of the respondent's subcontractors directly in order to carry out the pre-commencement works at the project site.

The arrangement was in anticipation of the commencement of the contract.

The addendum was executed on 21 September 2017, prior to the expiry of the conditions precedent satisfaction period set for 23 October 2017.

The addendum set different timelines for the conclusion of the pre-commencement works. The appellant undertook to pay for that work.

The appellant, however, failed to pay for such works, and, as a result, these were not executed at all or were not executed timeously.

The appellant sought to extend the conditions satisfaction period by a period of six months, on 29 November 2017. The extension was to be reckoned from 23 October 2017.

The respondent objected to the extension, which it regarded as a breach of the contract, given the new terms of the addendum to the contract and the appellant's failure to perform its obligations under the addendum.

According to the respondent, the appellant unilaterally demanded that the suspensive conditions be completed on or before 23 April 2018, a demand that the respondent viewed as a material breach of the express provisions of the contract.

By way of notices dated 10 April 2018, 6 July 2018, and 31 July 2018, the appellant informed the respondent that the contract had expired by operation of law.

All contractual obligations between the parties were, in terms of these notices, terminated.

The appellant insisted on such termination despite its admission that it had failed to perform its obligations to pay the respondent's sub-contractors.

The respondent further contended, that, the termination was also unlawful in view of the appellant's direct liability in causing delays in the fulfilment of the conditions precedent within the agreed time frames.

It was thereafter that the respondent approached the court a quo, by way of application, seeking a declaration of validity of the contract and an order for specific performance.

The application was granted on 13 December 2018 under HC8159/18.

The appellant appealed that determination to this Court under SC39/21.

In the meantime, the respondent applied for leave to execute judgment pending appeal.

The court a quo granted that application on 19 June 2019 under HC2425/19.

The respondent claims, that, during the two year period in which the parties awaited the outcome of the appeal at the Supreme Court, the parties implemented the contract, as amended, and engaged in a series of meetings that culminated in the drafting of an amended and restated contract.

On 13 May 2021, this court upheld the appellant's appeal and set aside the judgment of the court a quo. This Court determined, that, the matter was replete with material disputes of fact which could not have been resolved on the papers before the court a quo.

It was for that reason that the respondent returned to the court a quo and instituted action procedure, seeking the same relief.

In its plea in the court a quo, the appellant raised two points:

(i) Firstly, it contended that the contract never took off because the conditions precedent were not fulfilled. There was thus no basis at law for the respondent to seek the declaration of validity.

(ii) Secondly, it averred that this court had dismissed the respondent's claim. It therefore pleaded res judicata.

The appellant also filed a counter-claim seeking an order in the following terms:

“(a) An order that the EPC contract, and the Addendum entered into by the parties, did not commence due to the plaintiff's failure to meet the prescribed conditions precedent.

(b) Damages for breach of contract and misrepresentation in the sum of US$96,673,236=30 (ninety-six million six hundred and seventy-three thousand two hundred and thirty-six United States dollars thirty cents.”

The matter was referred to trial on the following agreed issues:

In respect of the main claim:

“(a) Is the procurement contract entered into by and between the plaintiff and the defendant, dated 23 October 2015, valid and binding on the parties?

(b) Depending on the conclusion reached on the above question, did the plaintiff suffer damages, and what is the quantum thereof?

In respect of the claim in reconvention:

(a) Was the agreement entered into by and between the parties induced by misrepresentation on the part of the plaintiff?

(b) If the plaintiff breached the agreement, then, did the defendant suffer damages as pleaded by it or at all and what is the quantum?”

At the commencement of the trial in the court a quo, the appellant abandoned the claim in paragraph (b) of its prayer, that is, the claim for damages for breach of contract and misrepresentation action in the sum of US$96,673,236.

The appellant, however, persisted with the claim for US$3,330,736=30, being the advance payment made to the respondent in respect of the pre-commencement works.

PROCEEDINGS BEFORE THE COURT A QUO

The Respondent's Evidence

The respondent's sole witness was its Managing Director, Wicknell Munodaani Chivhayo. His evidence was summarized by the court a quo as follows:

He told the court, that, when the tender for the project was flighted, the appellant had no funds for the project. For that reason, the appellant was looking for a contractor that would also assist it in raising funds for the project.

The respondent's partner, CHINT, was roped into the project to bring in the required funds. He told the court, that, CHINT had the required financial and technical capacity to execute the project.

The contract price was US$172,848,597=60.

Mr Chivhayo said, that, the commencement of the contract was subject to the satisfaction of the conditions precedent set out in clause 5 of the contract. These included the sourcing of the funds for the project and the completion of the feasibility studies. The appellant was responsible for funding the pre-commencement works and the respondent was required to assist with the fundraising.

To that end, the respondent had engaged financial consultants and financial partners such as the China Exim Bank and the Ministry of Finance and Economic Development. These engagements were done before the commencement of the project.

The witness blamed the appellant for the collapse of the engagements that were intended to birth the necessary financial agreements.

China Exim Bank required that the Government of Zimbabwe guarantees the loan facility.

The witness approached the Ministry of Finance on behalf of the appellant. The Ministry indicated its interest to support the project and had agreed, at the witness's suggestion, that the project be given national status.

The Ministry of Finance undertook to provide the Government guarantees required by China Exim Bank and had written a letter, dated 10 March 2016, addressed to the Export-Import Bank of China, undertaking to issue a sovereign guarantee for the project in the sum of US$147,000,000.

However, the Government of Zimbabwe had been blacklisted for defaulting on a loan of US$400 million. For that reason, the China Export and Credit Insurance Corporation (China Sinosure), a state funded insurance company established to support China's foreign and trade development co-operation, refused to secure the loan.

Thereafter, the parties mooted other sources from which to raise capital.

One of these was the proposed raising of energy bond through the CBZ Bank. This proposal had the full support of the SPB (State Procurement Board). However, the appellant was not interested, even after its own Ministry directed it to pursue that route.

The witness further told the court, that, the appellant frustrated the signing of the financial arrangements, contrary to the spirit of clause 5(a) of the contract.

The witness had this to say about the advance payment demand guarantee:

During meetings with the appellant's officials, feasibility studies had been carried out and the appellant owed the respondent funds for the work done. There was no need for such guarantee once work had been completed and payment now due to the plaintiff. The advance payment received was therefore in respect of the feasibility studies that had been performed.

With regards the performance security, the witness said it was not provided for, partly because the appellant still had some outstanding amounts still to be paid, and that, at any rate, it had not been asked for.

He also confirmed, that, the appellant had carried out its due diligence in terms of clause 5(f) of the contract.

Both parties representatives travelled to China for the purpose of evaluating the respondent's partner, CHINT. Both parties were aware that CHINT had successfully carried out some projects in Zimbabwe.

The witness stated, that, the production of the Environmental Impact Assessment was the responsibility of the appellant. It was only produced through his intervention, when he directly engaged the responsible Ministry.

The land for the project was also acquired through his efforts when he approached the Ministry of Lands.

He confirmed that both parties had secured the necessary authorizations as required by clause 5(f) of the contract.

Only one condition remained outstanding, that is, the financing agreements.

He said that the amendments of the contract, through the addendum, were occasioned by the loss of time.

In terms of the agreement, as re-affirmed by the addendum, the total cost of the pre-commencement works was US$5,111,224=50. The respondent was supposed to contribute to that amount in the sum of US$1,000,000 with the appellant contributing the remainder.

The respondent did not pay its contribution as it was only required to perform work of an equivalent value.

He said that after the payment of the feasibility studies, and part of the fee for the pre-commencement works, the appellant still had an outstanding liability in the sum of US$1,232,322=87 for part of the pre-commencement works carried out.

The respondent's sub-contractors were to be paid from that outstanding amount.

He stated that the appellant caused his arrest by ZACC officials for non-performance of the contract. He wrote to the appellant's Managing Director complaining about the unfounded allegations of corruption. His arrest negatively affected the execution of some of the works by the respondent's subcontractors.

He insisted that the conditions precedent satisfaction period was extended by the parties, and yet, the appellant went on to raise a criminal complaint for non-performance.

He made reference to clause 5(i) of the contract which provided, that, if the conditions precedent were not satisfied on or before 24 months after the date of signature of the contract, the parties should meet, and, if need be, the appellant could, in its sole discretion on or at any time before the lapse of the 24 month period, elect to extend the conditions precedent satisfaction period by a further six months.

He referred to a letter from the appellant to the respondent, dated 29 November 2017, in terms of which the period was extended by a further 6 months from 23 October 2017 to 23 April 2018.

The witness made reference to various correspondences between the parties, and other stakeholders, tending to show that the appellant was responsible for the failure to sign financial agreements during the extended period.

He averred, that, in terms of clause 5(i) of the contract, the appellant was estopped from relying on its own breach to cancel the contract.

He said that the respondent declared a dispute between the parties in terms of the contract. The dispute was declared through a letter dated 15 January 2018. In terms of the contract, the dispute was to be adjudicated by the Dispute Adjudication Board, which was duly constituted.

The appellant's attitude was that there was no need for the constitution of the Board as the parties could meet and resolve the dispute.

The respondent then sought to refer the matter to arbitration, but, the appellant objected saying that it was not an arbitration matter. It was then that the respondent approached the court a quo for an order of specific performance, alternatively, damages.

It succeeded in its quest for specific performance. The appellant appealed that decision to this Court.

Pending the hearing of the appeal, the respondent applied in the court a quo for an order to execute the judgment of that court pending appeal. That application was granted, but, the appellant did not comply with it.

In the meantime, according to the witness, the Ministry of Energy directed that the parties further engage in order to give effect to the contract. The directive was contained in a letter dated 15 June 2020.

As a result, the parties prepared an amended contract which they are yet to sign.

That development was seen by the witness as dispelling the notion that specific performance was no longer possible.

Thereafter, various engagements were initiated by the Ministry of Energy to iron out the problems bedeviling the implementation of the contract. On 6 July 2020, the Minister of Energy wrote to the Executive Chair of ZESA Holdings intimating to the Chair that his office was required “to urgently conclude the drafting of all the pertinent agreements and financial instructions necessary for the available financier to avail the funds required to implement the project.”

This letter was copied to the witness.

The witness asserts, that, the Government of Zimbabwe, through the Ministry of Energy, as the shareholder in the appellant, wanted the project to be implemented without delay. It was for that reason, that, the Ministry had intervened calling on both parties to implement the project.

However, the appellant remained defiant.

The witness indicated, that, in July 2020, the parties arranged a joint visit to the site. The purpose of the visit was to assess the work done and that which remained to be done, since both parties were negotiating a revised contract.

Thereafter, the parties prepared a report, comprising pictures and video evidence, demonstrating their findings on the ground. The report was jointly signed by the parties representatives. The appellant was represented by its project manager, Mr Mugwagwa, and its officials Mr Fambi and Mr Chinho. On the other hand, the respondent was represented by the witness, its project manager, Mr Magweza, and an official called Mr Mubviri. The witness participated in both the joint visit and in the compilation of the joint report.

The witness opined, that, the exercise was an indication that the contract was temporarily on hold.

The witness stated, that, the appellant's counter claim for the sum of US$3,310,736=30 was devoid of merit if considered in the context of the joint report. It was made on the premise that the pre-commencement works were not carried out, yet, the report showed otherwise. The report confirmed that the appellant owed the respondent some money for work done at the conclusion of the pre-commencement works. It also confirmed that the advance payment guarantee was no longer necessary.

He was adamant that the objective of the pre-commencement activities, as set out in the contract, were satisfied. In that regard, he was of the view that the appellant was being malicious in suggesting that the contract was not implemented at all.

The witness justified the respondent's alternative claim for damages as follows:

The respondent had incurred expenses to do with the tendering process as well as the due diligence exercise when the parties had to travel to countries such as China and India. That included the cost of air fares of the appellant's personnel that had to be covered by the respondent. The respondent also claimed risk, occupational damages, and damages for reputational loss occasioned by the negative publicity caused by the appellant. The witness also stated, that, the respondent's security guards were kicked off the project site by the appellant at a time the respondent was prepared to carry on with the project.

Under cross examination, he insisted that discussions for a new contract started in earnest in 2020 after the new Minister of Energy had assumed office.

He said the Minister was unhappy over the delays in implementing the project. The Minister was displeased with the appellant's failure to comply with CHITAPI J's order granting the respondent leave to execute the High Court judgment pending appeal.

The parties met again to discuss the way forward - with no positive results.

He insisted that there were financiers ready to fund the project, but, for the obstinacy of the appellant; a fact he communicated to the Minister. He said that the execution of the Amended and Restated Contract Agreement was not an admission that the respondent had failed to perform. The idea was simply to kick start the project, with the respondent required to source funds for the initial phase of 10MW with the rest of the MW coming later as provided in the contract.

He said it was the EPC contract that is sought to be enforced and not the Amended Restated Contract.

The respondent had even offered to reduce the price to demonstrate its commitment to the implementation of the contract.

Asked whether a guarantee was provided by the respondent, as required by the contract, the witness stated that CHINT wrote to the appellant advising that they had the guarantee in place, but the appellant dithered. The offer was not accepted by the appellant because it had no money.

However, the appellant did make payments for the feasibility and pre-commencement works without an advancement payment guarantee.

This was justifiably so because the respondent had delivered those activities.

He insisted that the appellant's letters of 7 and 10 April 2018 and 6 July 2018, which confirmed the non-extension of the condition satisfactions period beyond 23 April 2018, prevented the respondent from fulfilling the conditions precedent as set out in clause 5a. This was because the appellant failed to pay the respondent's sub-contractors, and, as a result, the pre-commencement works could not be completed.

He further stated, that, although the actual project had not yet commenced, save for the pre-commencement works, the respondent needed only 6 months to complete the first 10MW once it secured the necessary funding.

He accepted that the respondent had revised the project costs downwards in the Amended and Restated Contract because the costs of solar products had generally gone down on the international market.

He dismissed the ADB integrity report on the debarment of CHINT on the basis, that, the respondent was not seeking funding from ADB. In any case, the debarment was lifted as CHINT was never found guilty of any fraudulent conduct.

Asked how the project could be implemented since the appellant did not have financial resources, he responded as follows:

The respondent had presented to the appellant China Exim Bank as a willing financier in 2015. The respondent could not access the funding set aside by China Exim Bank because the appellant's shareholder owed the bank's export credit insurance adviser, Sinosure, and its account was in arrears; China Exim Bank said it could still lend the money using other insurers. There were alternative funders that did not even require underwriters. The respondent introduced other local financiers, such as CBZ and the African Transmission Cooperation (ATC), as prospective funders. The Ministry of Energy even approved the funding proposal by ATC in June 2020.

The appellant was mandated to amend and restate the terms of the contract to give effect to the new funding model but it failed to do so.

The witness said he had also approached NSSA, on behalf of the appellant, requesting assistance in raising US$25,927,289.

The offer was also not taken up by the appellant.

The witness stated, that, the annexure to the joint report prepared during the joint visit to the site, dated 13 July 2020, was part of the main report prepared by the parties representatives. He said that the report, together with the annexure, was actually sent to the respondent by the appellant after the joint visit.

The Appellant's Evidence

The appellant called one witness, Cleopas Fambi, its Assistant Project Manager.

During the period 2015-2017, his duties included the management of the project between the appellant and the respondent. He was involved in the tendering stage, contract negotiations, and the pre-commencement works. His evidence was to the following effect:

Sometime in 2013, the appellant, through the State Procurement Board (SPB), floated a tender for the construction of 3 x 100MW photovoltaic solar plants at Gwanda, Insukamini and Munyati.

The respondent was awarded the tender to construct the solar plant at Gwanda.

The parties concluded the contract on 23 October 2015. The contract was to commence in full force and effect after the satisfaction of the conditions precedent stipulated in the contract.

The respondent failed to fulfil the conditions precedent under clause 5 of the contract and the conditions remain unfulfilled to this date. As a result, the contract did not commence because of the respondent's failure to fulfil those conditions.

He stated that the addendum to the contract dealt with the pre-commencement works listed in schedule 11 of the contract. The appellant paid for the pre-commencement works in advance. The respondent, however, failed to provide the bank guarantee for the advance payments. It also failed to provide its portion that it was meant to contribute to the pre-commencement works. The respondent also misrepresented its capacity to perform the contract.

The witness said, that, he was part of the joint team that visited the project site on 13 July 2020. The visit took place in the context of a proposal to implement the project in phases. The works had been partially completed on the ground. No maintenance or repairs had been carried out since July 2020.

With regards the documentation attached to the joint report showing the various activities of the pre-commencement works undertaken on site and the bill of quantity amounts, the witness said that he was seeing these papers for the first time in court.

He said that the amount of US$2,031,230 representing the value of the ground site clearing was overstated since there was still need to carry out ripping of the top soil, clearing, and site levelling.

He dismissed the allegation that the appellant did not wish to implement the project, saying that the appellant's conduct was consistent with a desire to see the project completed. It was for that reason that the appellant had paid for the pre-commencement works.

Under cross-examination, the witness admitted that the appellant was a State commercial entity and therefore subject to the law governing procurement by State entities.

He agreed that according to the law, the appellant's accounting officer was its Managing Director who was wholly responsible for the administration of the project.

He conceded that he could not account for the project within the contemplation of the law as he was not the appellant's accounting officer. The accounting officer was the person with the complete records of all the transactions.

Asked whether he could provide insight on the issue of financing agreements, he stated that his insight was limited. He could not comment as to why there was no financial closure because he did not have the required information. He could also not comment on whether the appellant deliberately frustrated the financial closure as alleged by the respondent. He could not deny that CHINT had procured funding from China since he was not the accounting officer. Neither could he deny that the respondent had, as an alternative, engaged domestic funders to finance the project and that its efforts had been frustrated by the appellant's ambivalence. He could also not deny that CHINT had offered a US$52 million guarantee but the appellant had not embraced it because it did not have the required funds.

He said the best person to comment would be the accounting officer since all correspondence was directed to him.

The witness admitted, that, the parties did not refer their dispute to a consultant or engineer because there was no disagreement on the value of the pre-commencement works carried out.

The witness was also part of the team that carried out a site visit in July 2020. The parties agreed that the fence was erected and completed. He agreed that the appellant therefore received value at the conclusion of that part of the project. He also agreed that the feasibility study had been done and completed. Repairs and maintenance works had also been carried out.

Although he denied the value delivered, ascribed to the pre-commencement works, in the sum of US$3,382,697 as recorded in the bill of quantities report, he conceded that he could not tell the value that had been delivered to date.

Further, he could not comment on how the sum of US$3,310,736=30 representing the appellant's counterclaim was arrived at. It would require the accounting officer, his team, and the contractor to confirm how the figure was arrived at.

He also admitted that, at some point, the appellant had ordered the respondent's workmen off the site.

The witness could not comment on the Ministry's directive that the project be completed.

His attention was drawn to the fact, that, on 6 July 2020, the minister had, by letter of that date, communicated Government's position to the chairperson of ZESA Holdings. Another letter, dated 15 June 2020, had been written to the ZESA chairperson by the minister. In it, the minister had reiterated Government's desire for the parties to move with speed to implement the project without delay.

The witness could not deny that the contract was still capable of performance and that the respondent could still secure funding to achieve financial closure. He also admitted, that, the appellant was desirous of addressing power shortages. That desire is what had given impetus for the project.

SUBMISSIONS IN THE COURT A QUO

At the end of the trial, the parties filed written closing submissions.

The respondent submitted, that, the only issue that remained for determination was whether or not the contract remained valid and capable of performance. As to the counter claim, it submitted that the issue to be determined was whether the respondent was liable for the advance payment made for the pre-commencement works. The respondent submitted, that, no evidence had been adduced to support the counter-claim. The respondent submitted that it was ready to perform the contract and that it had the capacity to perform the contract.

It also submitted that it was able to provide the required finances. It relied on the case of His Holiness Acharya Swami Dasji (1996) 4 SC 526 for that contention.

The respondent argued, that, the onus rested on the appellant to show that performance was no longer possible.

It contended, that, at law, where one party to a contract repudiated the agreement, the innocent party could elect to claim specific performance of the contract or damages in lieu of specific performance.

It submitted that specific performance was in the court's discretion and that its case had to be determined on its own merits.

The respondent cited the case of Benson v SA Mutual Life Assurance Society 1986 (1) SA 776 (A) where it was held, that, the plaintiff had the right to elect whether to hold a defendant to his contract and claim performance by him of what he bound himself to do or claim damages for the breach. On the other hand, the defendant did not have that right of election.

According to the respondent, the appellant did not lead any evidence to show that specific performance was impossible. It contended that the appellant could not rely on evidence in prior litigation because it had not led that evidence in the present matter.

The respondent submitted, that, the evidence showed that it had done enough to secure the finances required for the project but the appellant failed to come to the party. It further blamed the conduct of the respondent's shareholder, the Government of Zimbabwe, as being partly to blame for the appellant's failure to perform.

The respondent dismissed the evidence given by the appellant's sole witness as ineffectual because the witness admitted that he was not competent to testify on matters which only the appellant`s CEO could shed light on. This witness was, according to the respondent, unable to give evidence proving the value of the pre-commencement work done, nor could he dispute the contention that it was the appellant that actually owed the respondent.

The respondent insisted, that, the addendum to the contract was not a separate document running parallel to the main agreement as contended by the appellant. Rather, the addendum should be interpreted as an integral part of the main agreement.

Further, the respondent contended that the appellant had frustrated the financing agreements, and, for that reason, the court should deem the condition precedent to have been fulfilled in line with the doctrine of fictional fulfilment.

Reliance was placed on the case of Scott & Anor v Poupard & Anor 1971 (2) SA 373 (A) wherein the factors to be established in order to invoke the doctrine of fictional fulfilment were set out as follows:

(i) Non fulfilment of the condition;

(ii) The defendant's breach of his duty with intent to frustrate the fulfilment; and

(iii) A causal link between the non-fulfilment and the defendant's intentional frustration of the fulfilment of the condition.

The respondent averred, that, generally, the court does not have a discretion to refuse to enforce a term contained in a lawfully concluded agreement. In determining whether or not to enforce such a term, the court will be guided by the dictates of public policy.

It submitted, that, the evidence adduced showed that the appellant had frustrated the conclusion of financial agreements. The appellant, argued the respondent, should not be allowed to benefit from its own wrongdoing.

The appellant had not placed before the court the FIDIC document, despite its plea that the agreement should be read in light of the provisions thereof. For this reason, the respondent contends that the FIDIC cannot be a factor in the interpretation of the agreement.

The appellant's closing remarks were to the following effect:

It submitted that Mr Chivhayo's evidence was unreliable and thus the respondent had failed to discharge the onus on it to prove its claim. It accused this witness of changing his evidence when it suited him. It said that his evidence was inconsistent with contemporaneous documents, and that he referred to non-existent documents.

The appellant also made reference to the proceedings in case number SC 39/21 and submitted, that, in that case, this Court made a finding that the respondent had failed to meet the conditions precedent set out in clause 5 of the contract.

This Court, according to the appellant, had established that the respondent had conveniently avoided the action procedure in a bid to stay away from the truth and hoodwink the court.

The appellant also argued that in its evidence, the respondent based its claim on contentious issues raised by the appellant in its replication and not based on its own declaration. The appellant argued, that, the respondent ought to have amended its declaration to incorporate the claims that were never pleaded in the declaration.

The areas of evidence of concern included the China-Exim Bank financing issue, the CBZ and ATC funding and the allegation that the appellant filed fictitious and malicious charges of fraud and corruption against Mr Chivhayo.

The appellant also submitted that the letters of 10 April, 6 July and 31 July 2018 which were alleged to constitute a breach of the contract in the respondent's declaration were never referred to in the examination in chief of the respondent's witness.

The court a quo observed that the matters complained against in this regard are matters of evidence which would not ordinarily be set out in the pleadings but in the evidence.

The appellant further submitted, that, it was common cause that the conditions precedent satisfaction period expired on 23 October 2017 and that the purported extension of that period, by six months, after that date, though not in accordance with the contract, was not a nullity as the respondent could have accepted it.

It averred, that, although its notice to terminate was not delivered in a letter headed “Notice of Termination” it remained a valid notice.

It contended that the issue is not about the absence of notice, but, rather, whether the appellant had the right to terminate the contract, it being alleged that it (the appellant) was responsible for the delay in the satisfaction of the conditions precedent.

The appellant submitted, that, the respondent alleged a breach of Addendum 1, which breach would only affect Schedule 11 of the contract but not clause 5 of the contract.

It submitted that the respondent had failed to indicate when these breaches had occurred.

It further contended, that, Addendum 1 was only executed one month before the expiry of the conditions precedent satisfaction period, or 23 months after signature of the contract. An alleged breach of Addendum 1, it is contended, could not explain the failure to complete the conditions precedent in the preceding 23 months.

The appellant argued, that, this was not a proper case in which the court could exercise its discretion in granting specific performance because the present position was at odds with the parties original position.

The original intention was that the project would take four years. It is contended that the construction and hand over of the solar plant would thus have been completed by October 2019.

The appellant argued, that, if specific performance were to be granted, as requested, the project would be implemented between March 2029 to 2034 - 10 to 15 years later than originally projected.

In any event, argued the appellant, the project was no longer viable because the cost of constructing the plant had decreased due to advances in solar technology. As a result, the respondent stands to make an additional USD33 million profit should specific performance be granted.

The appellant further argued, that, the fact that the parties negotiated a new contract after the judgment of the court a quo, in case number HC8159/18, was testimony to the fact that the parties had realized that the present contract was no longer viable.

It was for that reason that the parties carried out a joint visit to the project site on 13 July 2020.

The Minister of Energy had urged the parties to implement this amended contract. The appellant averred that the Ministerial report related to the amended contract and not the original contract.

Another reason for negotiating the new contract was that the African Development Bank had debarred CHINT for fraudulent practices.

Further, the appellant averred that the introduction of a new currency regime, in February 2019, had implications on the funding of the project as all transactions in USD terms done before February 2019 were now valued in RTGS dollars at the rate of one to one with the USD.

It was also the appellant's argument, that, the respondent had failed to plead relief relating to fictional fulfilment and the factual basis upon which the court could grant the relief of fictional fulfilment.

The appellant further argued, that, fictional fulfilment would not make sense because the project needed to be funded, and that, in any event, the appellant would not be able to pay the contractual amount.

It was submitted by the appellant, that, its Board could not authorise the commencement of the project knowing fully well that it was not going to be funded.

The appellant also argued, that, if fictional fulfilment were granted, there would be implications on third parties in line with the definition of “financial agreements.”

It was, for example, a requirement that the Government of Zimbabwe be a co-signatory to the financial agreements. That requires that the Government be a fictional party to the fictional finance agreement. It was submitted, that, there was no basis upon which the court could exercise jurisdiction over Government when it was not cited as a party to the present proceedings.

The appellant denied that it intended to frustrate the project, citing its actions in paying the sum of USD5.6 million to the respondent and in extending, through its letter dated 29 November 2017, the conditions precedent satisfying period.

It argued, that, it was the one that took steps to secure funding for the project by communicating with key stakeholders such as Ministry of Finance, the Procurement Board and NSSA. It had also carried out all the conditions precedent which required its attention, such as the feasibility studies, due diligence, getting the Environmental Impact Assessment Certificate, and acquiring land for the project.

On the contrary, the appellant submitted that the respondent had failed to provide an Advance Payment Guarantee and the performance security as required in terms of the contract. The appellant also blamed the respondent for the collapse of the China Exim Bank funding stating, that, if the respondent had done its due diligence, it would have known, from the beginning, that, the financial institution would not be in a position to assist in view of the Government of Zimbabwe's arrears with the financial institution.

With regards the respondent's claim for the sum of US$3 million for expenses incurred, the appellant submitted that no evidence had been led to prove that it was responsible for causing the damages complained of. It argued, that, it cannot be held liable for the expenses incurred by the respondent during the tendering process. Such expenses could be recovered through performance of the contract when profit is then earned.

The appellant also denied liability for the respondent's loss of profit arguing, that, such a claim is only tenable where the appellant had terminated the contract. In casu, the respondent avers that the contract was not terminated. There is therefore no basis upon which it could raise such a claim.

Concerning its claim in reconvention, the appellant submitted that it provided the respondent with an advance of US$5.6 million. Of this amount, the sum of US$2.3 million went towards the feasibility studies. Its claim is for the balance in the sum of US$3,310,736=30.

The respondent was required to contribute the sum of US$1 million towards pre-commencement works. The contribution was to be done through the carrying out of works, with no cash payments. However, the appellant avers that the pre-commencement works were not completed, as indicated in the joint site visit report, hence the claim for US$3,310,736=30.

Alternatively, the appellant was willing to be compensated in terms of the respondent's own computation which puts the figure at US$2,299,563=13.

It was on that basis, that, the appellant moved for dismissal of the respondent's claim. It also prayed that its claim in reconvention be granted with costs.

FINDINGS OF THE COURT A QUO

The court a quo found in favour of the respondent and dismissed what remained of the appellant's counterclaim. Its specific findings on the issues before it were as follows:

1. The Supreme Court judgment in SC39/21

The appellant had raised the defence of res judicata premised on the decision of this Court in SC39/21. That proved untenable as the papers clearly showed, that, the appeal was determined on a technicality, namely, that, the application in the court a quo had been replete with material disputes of fact which could not be determined without hearing viva voce evidence. The court a quo held, that, this Court had not delved into the merits of the matter as alleged by the appellant. No decision on the merits had been made, and, therefore, the appellant's claim to the contrary was rejected.

2. Whether the EPC contract remained valid and binding on the parties

The court a quo noted, that, the appellant had abandoned its claim to the effect that the contract had been induced by fraudulent misrepresentation on the part of the respondent. That being the case, the court a quo noted, that, in the absence of the appellant's assertion to the contrary, it must be presumed that the validity of the contract is no longer in contention.

That being the case, the court a quo took the view that the only issue left for determination was the status of that contract. It observed, that, the status of the contract was the central issue upon which the consequential reliefs sought by the respective parties would be determined.

The respondent's contention was that the amended contract remained valid and binding, hence its claim for consequential relief in the form of specific performance. On the other hand, noted the court a quo, the appellant sought a declaratur to the effect that the contract never commenced as a result of the respondent's failure to meet the prescribed conditions precedent.

The appellant also averred, that, it had cancelled the contract as a result of that breach on the part of the respondent.

It further claimed (falsely in the opinion of the court a quo) that the cancellation had been confirmed by this Court under SC39/21.

The court a quo reiterated its earlier findings, namely, that, this Court had merely upheld the appellant's preliminary point to the effect that the court a quo should have proceeded not by application, but by action, as there were material disputes of fact which could not be resolved on the papers. It did not determine the merits of the matter, let alone confirm the appellant's cancellation of the contract.

The court a quo proceeded to consider the clauses of the contract which the respondent alleged had been breached.

Clause 5 provided that the contract would commence in full force when the conditions listed in paragraphs (a) to (i) were satisfied. These conditions precedent were to be satisfied within a period of 24 months after signature of the contract.

It was common cause that this period would expire on 23 October 2017.

The appellant could, at its sole discretion, on or at any time prior to that date, elect to extend the conditions precedent satisfaction period by a further 6 months by giving notice to the respondent.

More importantly, clause 5 of the contract provided as follows:

“If the conditions precedent are not satisfied on or before the expiry of the CP satisfaction period (as may have been extended), either party may elect to terminate the contract by notice to the other provided that if a party is causing a delay to the satisfaction of any of the conditions precedent, as at the date on which it seeks to terminate, such party shall not be entitled to exercise such right of termination while such cause of delay subsists.”

The court a quo noted the implications of the above provisions, particularly with regards the right of termination.

Clause 5 of the contract also provided for the waiver of conditions precedent as follows:

“Each party shall use its reasonable endeavours to ensure the satisfaction of the conditions precedent set out above, provided that:

(a) The employer may waive the contractor conditions precedent and such waived contractor condition(s) precedent will be deemed satisfied for the purposes of this Agreement;

(b) The contractor may waive the employer conditions precedent and such waived employer conditions precedent will be deemed satisfied for the purposes of this Agreement; and

(c) Except where a party has failed to use its Reasonable Endeavours to ensure the satisfaction of such conditions precedent, neither party shall be liable in any damages to the other in respect of any failure to satisfy any of its conditions precedent.”

The court a quo analysed and took note of these provisions.

Of significance to the status of the contract, the parties signed Addendum 1 to the contract. The court a quo noted, that, in paragraph 2 of the preamble to the Addendum 1, the parties expressed their wish “to amend the contract through this addendum.”

More importantly, clause 4 of the Addendum provided that “the parties agree and acknowledge, that, with effect from the effective date of this Addendum, that the contract shall be amended in accordance with this Addendum and that the provisions of the contract, except as amended by this Addendum, will remain in full force and effect.”

The court a quo concluded, that, the Addendum amended the contract and that the two documents must be read together.

The court a quo analysed the nature and scope of the amendments to the original contract brought about by the provisions of Addendum 1. It observed as follows:

At the time that the parties signed the Addendum, on 21 September 2017, they were aware that, in terms of the original contract, the period during which the conditions precedent were to be fulfilled was to lapse on 23 October 2017, a month after the date of signature of the Addendum.

However, the addendum gave lead times of the various pre-commencement works well beyond 23 October 2017.

In other words, the new lead times exceeded the effective date of 23 October 2017, when all conditions precedent should have been met, and, hopefully, the main works would have commenced.

From the above facts, the court a quo concluded, that, by their conduct, the parties waived not only the commencement date of the contract, but, by the same token, the date of the accomplishment of the conditions precedent upon which the commencement date was predicated.

It was for this reason that the court a quo held, that, it would defy logic for the appellant to insist on the termination of the contract on the grounds that the respondent had failed to satisfy the conditions precedent when, only a month before the expiry date, the parties had agreed to certain contractual obligations that further tied them.

The court a quo concluded, in the circumstances, that, the conditions precedent satisfying period did not lapse on 23 October 2017 as submitted by the appellant.

The parties must be regarded as having waived their right to enforce that date as previously provided in the original contract before the Addendum 1 was signed, amending it.

The parties had set their eyes beyond 23 October 2017 concluded the court a quo.

Indeed, the appellant had written to the respondent, on 29 November 2017, purporting to extend the conditions precedent satisfying period by a further six months in terms of clause 5 of the main contract.

The court a quo noted that such correspondence confirmed that the appellant did not regard that this period ended on 23 October 2017, contrary to its assertions.

Secondly, the correspondence wrongly ignored the provisions of the Addendum 1, amending the contract thus disregarding the effective date, of 23 October 2017, the date originally set for the expiry of that period.

Thirdly, in terms of section 5 of the original contract, such election by the appellant, to extend such a period by a further six (6) months, was to be done in terms of clause 6 of the contract, which provides that the contract may only be amended by a written document duly executed by the parties.

In this case, the appellant acted unilaterally, there being no evidence of the parties agreement to such an amendment.

Further, any such election could only be effected on or before 23 October 2017. In casu, the appellant's election came on 29 November 2017 - well out of time.

The court a quo also noted, that, in terms of clause 5(i) of the contract, if the conditions precedent were not satisfied within twenty-four (24) months from the date of signature of the contract, the parties were to meet and review progress towards the satisfaction of those conditions.

Thus, the court a quo found that the election to extend the satisfaction period by a further six (6) months could only be exercised after the parties had reviewed their progress towards the satisfaction of those conditions precedent.

No such meeting was proved to have taken place, and, accordingly, no valid election to extend the period could have been exercised.

For these reasons, the court a quo found that the purported extension of the conditions precedent satisfying period, by the appellant, was inconsistent with the provisions of the contract, and, consequently, null and void.

Accordingly, the court a quo ruled that the contract remained valid and extant.

3. Fictional Fulfilment

Having determined that the contract was not terminated and remained extant, the court a quo considered the relief sought by the respondent, namely, whether there was fictional fulfilment of the contract, and, if so, whether it was appropriate to grant the remedy of specific performance.

It observed, that, the doctrine of fictional fulfilment was defined in case law. It relied on the definition in MacDuff & Company Limited v Johannesburg Consolidated Investments Company Limited 1924 AD 573 where the court stated as follows:

“I am therefore of the opinion, that, in our law, a condition is deemed to have been fulfilled as against a person who would, subject to its fulfilment, be bound by an obligation, and who had designedly prevented its fulfilment, unless the nature of the contract, or the circumstances, show an absence of dolus on his part.”

RH CHRISTIE in “Business Law in Zimbabwe”…, explains that dolus, in this context, does not allude to fraud or dishonesty, but, a deliberate intention to prevent the fulfilment of the condition, no matter how laudable the motive.

Based on both the documentary and viva voce evidence before it, the court a quo found that the appellant purposefully prevented, or frustrated, the fulfilment of the condition precedent pertaining to the signing of the financing agreements.

The court a quo also found the appellant's conduct to have been contrary to clause 5(i) of the contract, which required each party to use its “reasonable endeavours” to ensure the satisfaction of the conditions precedent.

The court a quo noted, that, the right to terminate the contract in terms of clause 5 was not absolute because the party responsible for frustrating the fulfilment of any of the conditions precedent was estopped from seeking the termination of the contract.

For that reason, having found that the appellant frustrated the fulfilment of the financing arrangements, the court a quo ruled that the appellant was precluded from asserting the right to terminate the contract on the grounds that the condition precedent concerned had not been met.

It was in that context that the court a quo held, that, the conditions precedent pertaining the financial arrangements had been fictionally fulfilled.

4. Specific Performance

In determining whether it could grant the relief of specific performance, as sought by the respondent, or, the alternative relief of damages, the court a quo relied, inter alia, on the decision in Grandwell Holdings (Pvt) Ltd v Zimbabwe Mining Development Corporation & 3 Ors SC05-20 where this Court had this to say:

“However, the right to claim specific performance is predicated on the concept that the party claiming it must first show that he or she has performed all his or her obligations under the contract or is ready, willing, and able to perform his or her side of the bargain. Even then, the court has a discretion, which should be exercised judicially, to grant or refuse a decree of specific performance. It follows, therefore, that, the court's discretion should not be exercised arbitrarily or capriciously.”

The court a quo also relied on the case of Minister of Public Construction and National Housing v Zescon (Pvt) Ltd 1989 (2) ZLR 311 (S) where…, this Court stated as follows:

“The law is clear. This is a remedy to which a party is entitled as of right. It cannot be withheld arbitrarily or capriciously.”

The court a quo noted, that, in exercising its discretion to grant an order for specific performance, it must look at the circumstances of this case, and, on that basis, map the way forward.

It observed, that, the appellant had not placed before it any evidence to show the measures it took in order to achieve financial closure. In other words, nothing had been put forward to show that specific performance was no longer achievable.

It noted, that, both parties had accepted that the question of funding was central to the implementation of the project.

The court a quo rejected the submission by the appellant, that, the project was no longer viable and that it would take years to complete. It referred to clause 1.1.3.3 of the contract which gave the time of completion to be 540 days.

It noted, that, it had ruled that the contract was still valid and not terminated, that Addendum 1 had amended the main contract and extended the conditions precedent satisfying period beyond the contemplated date. It further noted that clauses 5(ii) and 6 oblige the parties to meet and review progress on the project and effect such appropriate measures and amendments as may from time to time be required.

For that reason, the court a quo was of the view, that, any challenges arising from the effect of the changes to the currency regime can be similarly resolved by the parties in terms of clause 5(i) and clause 6.

In short, the court a quo dismissed the appellant's submissions against the grant of specific performance.

The court a quo noted, that, at some point, the parties could have agreed to implement the project in phases and that the respondent had obtained funds for the implementation of the initial phase. That position was captured in the draft Amended Restated Contract, which the parties are yet to sign.

It concluded its observations as follows:

“The point is that the question of the unavailability of funding is clearly not an excuse going by the evidence that was placed before the court.”

It was for these reasons that the court a quo ordered specific performance.

5. Whether the claim in reconvention had merit

The court a quo held, that, the counterclaim could only become relevant if it had held that the contract did not commence as a result of the respondent's failure to fulfil the conditions precedent.

In view of its finding that the contract remained valid and binding on the parties, the counter claim was no longer sustainable.

It noted that the amount paid towards the pre-commencement works was not entirely wasted and observed, that, this was an issue that the parties could discuss in terms of clause 5(i) of the contract. This clause provided for periodical performance reviews.

Consequently, the court a quo found in favour of the respondent and issued the following order:

“1. The procurement contract for the Engendering, Procurement and Construction (EPC Contract) of the 100 MW Gwanda Solar Project (ZPC 304/2015) between the plaintiff and the defendant, as amended, is valid and binding between them.

2. Consequent to the declaration of the validity of the EPC Contract, an order for specific performance of the said contract is hereby granted.

3. The defendant's claim in reconvention is hereby dismissed with costs.

4. The defendant shall pay the plaintiff's costs in the claim in convention.”

It is that order that the appellant appeals against on no less than 17 grounds as follows:

SC127-23 : ZIMBABWE POWER COMPANY vs INTRATREK ZIMBABWE
Ruled By: MAKONI JA, CHIWESHE JA and MUSAKWA JA

“GROUNDS OF APPEAL1. The court a quo erred in law in that it failed to consider the respondent's case as pleaded in its declaration and proceeded, instead, to determine the matter on the basis of issues not pleaded in the declaration.2. The court a quo erred in law by finding, ...

“GROUNDS OF APPEAL

1. The court a quo erred in law in that it failed to consider the respondent's case as pleaded in its declaration and proceeded, instead, to determine the matter on the basis of issues not pleaded in the declaration.

2. The court a quo erred in law by finding, that, the appellant had waived the conditions precedent satisfaction period and/or the requirements to fulfil the conditions precedent, when such a waiver was not pleaded by the respondent in its declaration.

3. The court a quo erred in fact by finding, that, the appellant had waived the conditions precedent satisfaction period and/or the requirements to fulfil the conditions precedent when the factual basis of such a waiver was not made out on the evidence.

4. The court a quo erred in law and fact by holding, that, the appellant had effectively waived the fulfilment of the conditions precedent by allowing some pre-commencement work to be carried out before the fulfilment of the conditions precedent.

5. The court a quo erred in law and fact by holding, that, when the parties entered into Addendum 1, they only had one month before the contract lapsed, in circumstances where the contract expressly provided that the parties could extend the conditions precedent satisfaction period.

6. The court a quo erred in law and fact by holding 'mero motu' that the activities set out in Addendum 1 “would certainly outlive the contract” in circumstances where neither party asserted this to be the case, nor introduced any evidence to that effect.

7. The court a quo erred in law and in fact by holding, that, the appellant had waived the application of the conditions precedent satisfaction period by attempting to extend that same satisfaction period.

8. The court a quo erred in law by relying on the appellant's purported extension as amounting to or evidencing a waiver, having found that the same purported extension was a nullity.

9. The court a quo, having correctly found that Addendum 1 obliged the respondent to provide an advance payment guarantee, erred in law and in fact by finding that the appellant had waived that condition precedent by entering into Addendum 1.

10. The court a quo erred in law by holding, that, the abandonment of the appellant's misrepresentation claim meant that the continued existence of the contract was no longer in issue, and, as a result, failed to consider the appellant's case relating to termination by notice.

11. The court a quo erred in law by finding, that, the conditions precedent (or some of them) were fictionally fulfilled, in circumstances where fictional fulfilment was not pleaded by the respondent in its declaration.

12. The court a quo erred in law by addressing only one particular condition precedent, relating to funding, and ignoring the other conditions precedent which the parties had expressly agreed.

13. The court a quo erred in law by finding, that, the conditions precedent, or some of them, were fictionally fulfilled, in circumstances where the respondent had admitted before the Supreme Court, that, the respondent had failed to meet the prescribed conditions precedent.

14. The court a quo erred in law by finding, that, the conditions precedent had first been waived and then subsequently fulfilled.

15. The court a quo erred in law by considering the actions and attitudes of third parties as relevant on the basis, that, those third parties were shareholders or ultimate shareholders of the appellant.

16. The court a quo erred in law and fact by granting specific performance of the contract in circumstances where the project had not been funded. Its performance would result in undue hardships and the respondent was not able of performing in accordance with the express terms of the contract.

17. The court a quo erred in law and fact by rejecting the appellant's claim in reconvention in circumstances where it received unchallenged evidence that the appellant had received no benefit from the pre-commencement works.”

RELIEF SOUGHT

The appellant seeks the following relief:

“1. The appeal succeeds with costs; and

2. The judgment of the court a quo be set aside and substituted with the following:

(a) The plaintiff's claim be and is hereby dismissed with costs.

(b) The defendant (read plaintiff) be and is hereby ordered to pay damages in the sum of USD3,310,736=30 with costs, being advance payment towards the pre-commencement works with costs.”…,.

Rule 44(1) of the Supreme Court Rules 2018, requires that an appellant's grounds of appeal be set out clearly, specifically, and concisely.

The grounds of appeal in casu appear not to have been drafted accordingly.

They are repetitive, inconcise, and seem to be aimed at every decision of fact or law made by the court a quo.

Counsel for the appellant, was, at the hearing of this appeal, asked to justify the state of the appellant's grounds of appeal, and explain why the appeal should not be struck off the roll for defective grounds of appeal.

Counsel for the respondent was not keen to go that route, preferring, instead, to have the matter decided on the merits.

Indeed, he did not persist with the objection he had lodged in the respondent's papers.

He was of the view that the grounds of appeal may be distilled to only four issues, namely:

(1) Was the judgment predicated on the pleaded case.

(2) Were the findings of fictional fulfillment predicated on the facts and evidence.

(3) Were the findings of waiver of the conditions precedent founded on the evidence.

(4) Was the counterclaim properly dismissed.

On his part, counsel for the appellant summarized the import of the grounds of appeal to be as follows:

1. That the court a quo erred by making a finding that was contrary to the position of the respondent in SC39/21 where the respondent admitted that it had not met the conditions precedent.

3. The court a quo incorrectly found that the appellant had waived its right to cancel the contract on the basis of unfulfilled conditions precedent.

4. The court a quo wrongly found that there had been fictional fulfilment of the terms of the contract.

5. The court a quo erred when it ordered specific performance of the contract.

Although both parties perceived grounds of appeal are largely similar, it is noted that counsel for the appellant has not included, in his summary of the grounds of appeal, ground 1 as proposed by counsel for the respondent which relates to the question whether the judgment was predicated on the pleaded case.

Further, counsel for the appellant did not include, in that summary, ground 4 as proposed by counsel for the respondent, namely, whether the counter-claim was properly dismissed.

As it is not clear whether, by doing so, counsel for the appellant was abandoning the grounds in question, this Court shall assume, as appears on the papers, that the issues raised therein are alive, requiring determination on the part of this Court.

This Court identifies the following, arising from the parties submissions, to be the grounds of this appeal:

1. That the court a quo erred by making a finding that was contrary to the position of the respondent in SC39/21 where the respondent admitted that it had not met the conditions precedent.

2. The court a quo incorrectly found, that, the appellant had waived its right to cancel the contract on the basis of unfulfilled conditions precedent.

3. The court a quo wrongly found, that, there had been fictional fulfilment of the terms of the contract.

4. The court a quo erred when it ordered specific performance of the contract.

5. That, the judgment was not predicated on the pleaded case.

6. That, the counter claim should not have been dismissed.

The issues for determination arise from the above grounds of appeal.

ISSUES FOR DETERMINATION

The grounds of appeal raise six issues, namely;

(1) Whether the court a quo made a finding which was contrary to the position of the respondent in SC39/21.

(2) Whether the court a quo erred in finding that the conditions precedent had been waived.

(3) Whether the court a quo erred when it held that fictional fulfilment of the contract had occurred.

(4) Whether the court a quo erred in ordering specific performance of the contract.

(5) Whether the judgment of the court a quo was predicated on the pleaded case.

(6) Whether the counter-claim was properly dismissed.

SUBMISSIONS BEFORE THIS COURT

The parties submissions before this Court were largely similar to the submissions they made in the court a quo.

Submissions by the Appellant

Counsel for the appellant submitted, that, the court a quo erred when it failed to consider the respondent's case as was pleaded in its declaration, and, instead, proceeded to determine the matter on the basis of issues not pleaded in the declaration.

Counsel for the appellant also submitted, that, the court a quo erred in law by finding that the appellant had waived the conditions precedent satisfying period, or the requirement to fulfil the same, when such a waiver was not pleaded by the respondent in its declaration.

He further submitted, that, in any event, the actual basis of such waiver had not been made out in the evidence.

He also criticised the court a quo for concluding, that, by allowing some pre-commencement works to be carried out before the fulfilment of the conditions precedent, the appellant had waived the fulfilment of those conditions.

He submitted, that, this conclusion runs foul to the provisions of the contract wherein it is provided that pre-commencement works could be undertaken prior to the satisfaction of the conditions precedent. He cited clause 8 of the contract which provides that the respondent was to carry out pre-commencement works as set out in Schedule 11 of the contract.

He said that the parties had agreed that pre-commencement works could be carried out prior to the satisfaction of the conditions precedent satisfying period. This was meant to shorten the contract period. It cannot be the basis for the inference of waiver of the conditions precedent satisfying period.

Further, it was submitted that the fact that the Addendum 1 was signed a month before the anticipated date of completion of the conditions precedent did not have a bearing on the contract. This is so because the parties could extend the conditions satisfaction period by a further six months.

Counsel for the appellant also attacked the court a quo for holding, that, the abandonment of the appellant`s claim of misrepresentation meant that the continued existence of the contract was no longer in issue, and, as a result, failed to consider the appellant`s case relating to termination by notice. For that reason, he maintained that the contract was terminated by operation of law, thereby effectively terminating the contractual obligations between the parties.

It was further submitted, that, the court a quo's finding of fictional fulfilment of the conditions precedent was without legal or factual basis.

It was observed, that, in its declaration, the respondent had not sought any declaration as to fictional fulfilment of the conditions precedent. For that reason, counsel for the appellant argued that the court a quo ought not to have entertained the argument that there was fictional fulfilment of any of the conditions precedent.

Further, he argued that the respondent had failed to plead the relevant factual assertions to merit a finding of fictional fulfilment. In particular, he argued that the respondent did not plead that the appellant intended to frustrate the fulfilment of any of the conditions precedent. Counsel further submitted, that, no evidence was led to prove that the appellant had intentionally frustrated the fulfilment of any condition precedent.

Fictional fulfilment implies fictional funding.

The appellant did not have the funds to pay out the contractor, and, therefore, fictional fulfilment was an exercise in futility. Besides, fictional fulfilment would bind third parties, such as the Government of Zimbabwe, which, in terms of the contract, was to be a co-signatory to the financing agreements. In any event, the appellant never intended to frustrate the project and had wished to deliver in terms of the contract.

Counsel for the appellant also made reference to SC39/21 alleging that, in that case, the respondent made an admission with regards the non-fulfilment of the conditions precedent and that this Court noted that the respondent had failed to meet the prescribed conditions precedent under clause 5(a) of the contract. He argued, that, in light of that finding by this Court, the court a quo could not have found that the conditions precedent had been fictionally fulfilled.

It was further submitted, that, having ruled that the conditions precedent had been waived, the same court a quo could not have found that the conditions precedent had been fictionally fulfilled.

The appellant was of the view, that, the court a quo should not have considered the actions of third parties in determining the issues before it. It was argued, that, although Government is a shareholder of the appellant, its actions and attitude cannot be visited on the appellant because the appellant is a different legal persona, separate from its shareholder.

Counsel for the appellant submitted, that, specific performance of the contract should not have been granted.

He cited authorities, such as the case of Grandwell Holdings (Private) Limited v Zimbabwe Mining Development Corporation & 3 Ors SC05-20, which outline the factors to be considered in granting the remedy of specific performance.

Firstly, specific performance is a discretionary remedy, and, in determining its grant, the court must look at all the relevant facts. The remedy will not be granted if compliance with the order is impossible or would cause undue hardship or where the plaintiff is not ready to carry out its own obligation under the contract.

Counsel for the appellant submitted, that, the project had not been funded and that its performance would result in undue hardship to the appellant. Further, the respondent was not able to perform in terms of the contract. For these reasons, he submitted that specific performance should not have been granted.

RESPONDENT'S SUBMISSIONS

Counsel for the respondent, submitted that the appellant's case, as presented in its heads of argument, is based on general principles of law, which principles the appellant failed to connect to the facts and the evidence.

He further submitted, that, the assertion by the appellant that the respondent's case was predicated on matters not raised in its declaration, but on matters only raised in its replication, was ill informed. In making that assertion, the appellant had identified the following issues as arising only in the respondent`s replication; the China Exim Bank issue, the CBZ and ATC funding, and the question of the malicious allegations against the respondent`s Managing Director.

Counsel for the respondent submitted, that, in doing so, the appellant had failed to recognise the distinction between the cause of action, the facts giving rise to the cause of action, and the issues as joined in the pleadings.

In particular, he submitted that the law requires that a party pleads the facts giving rise to the cause of action, not the evidence by which the facts are to be proved. Thus, the evidence is not a matter for the summons and declaration but for discovery and trial. The court a quo did relate to the pleadings, the issues, and the evidence and made a determination.

Counsel for the respondent was adamant that such determination could not be faulted.

He also dismissed the submission by the appellant, that, the claim was expanded in the replication and that the expansion is immaterial without an amendment to the declaration. In that regard, counsel for the respondent relied, inter alia, on the case of Shah v Kingdom Merchant Bank SC04-17, wherein this Court held that parties can extend their issues and that once an issue was before the court, the court has the prerogative to consider it.

Counsel for the respondent also relied on the case of British Diesels Ltd v Jeram & Sons 1958 (3) SA 605 (N) where it was held, that, the importance of pleadings should not be unduly magnified for “if it should appear that any substantial issue was duly canvassed in the court below, then, in my opinion, we ought to regard it as an issue to be decided between the parties, whether it has been formally pleaded or not.”

Similar sentiments were also expressed in Sentrachem Bpk v Wenhold 1995 (4) SA 312 (A).

With regards the question of whether or not the appellant had waived its right to rely on the non-fulfilment of the conditions precedent as a basis for termination of the contract, counsel for the respondent submitted, that, waiver is a legal principle which can be derived from the facts of the case.

In the instant case, he argued that the court a quo based its decision on the facts as presented to it. That finding of fact cannot be lightly interfered with in the absence of gross misdirection or irrationality. There being no allegation of such irregularity, the finding of fact by the court a quo was unassailable. He relied in that regard on the case of Hama v National Railways of Zimbabwe 1996 (1) ZLR 250 (S).

Similarly, counsel for the respondent argued that the grounds of appeal lack merit as the appellant failed to appreciate that the “ratio decidendi” was predicated primarily on the issues and findings of fact. It was for that reason, that, the agreement was found to be extant and specific performance found to be possible.

With regards the evidence adduced in the court a quo, counsel for the respondent noted that the court a quo made a finding of credibility in favour of the respondent's sole witness, Mr Chivhayo. He submitted that the evidence adduced by Mr Fambi, on behalf of the appellant, left a lot to be desired.

He chronicled Mr Chivhayo's evidence and noted, that, it was upon the respondent to raise the necessary funding for the project. He submitted that the evidence given by Mr Chivhayo shows how the appellant had frustrated the respondent's efforts aimed at financial closure for the project. Mr Chivhayo also told the court a quo that the respondent wished to conclude the project. Counsel for the respondent submitted, that, it was not shown that it was not possible to do so. For that reason it was appropriate for the court a quo to grant the remedy of specific performance.

He further submitted that any evidence elicited from Mr Chivhayo, under cross-examination, as to the meaning of the contractual documents, does not bind the court.

As regards the relationship between the appellant and the Government of Zimbabwe, counsel for the respondent submitted, that, the distinction that the appellant sought to make between the two was not tenable at law, as the Government exercises control over the appellant as its shareholder. He said it is common cause that the appellant is a State commercial entity. He relied on the decision in Transnet Ltd v Goodman Brothers (Pty) Ltd 2001 (1) SA 853 (SCA)…, where SHULTZ JA said:

“I do not think that anything can be made of the fact that Transnet is now a limited company. The government still owns all the shares in it and thus has ultimate control.”

Reliance was also placed on Grandwell Holdings Limited & Ors v Minister of Mines & Ors HH193-16 (a judgment upheld by this Court on appeal) wherein MAFUSIRE J concluded that the Minister of Mines, the Zimbabwe Mining Development Company and companies in which the State had an economic interest, were a single economic unit.

Thus, the positive or negative control of the shareholder cannot be divorced from the company. In short, therefore, the appellant cannot escape the negative conduct of its shareholder.

Counsel for the respondent submitted, that, the appellant's sole witness admitted that he was not involved in the process of financial closure as this was the preserve of the appellant's Managing Director. He was thus not in a position to challenge the evidence proffered by the respondent and its witness.

Further, while disputing the value of the pre-commencement works, neither the witness nor the appellant placed evidence of the value of the works that were carried out. On the contrary, the witness conceded that there was value in the works done and that same had been completed. He also confirmed that the respondent had been barred from the site and thus could not do repair work. He could not dispute that the appellant in fact owed the respondent.

Counsel for the respondent said that notice of this computation had been given in the respondent's plea to the appellant's counterclaim. The appellant's replication did not address, specifically, this allegation. Not having addressed this allegation, the appellant must be presumed to have admitted it.

Counsel for the respondent submitted, that, the court a quo correctly entered judgment for the respondent.

Counsel for the respondent further argued, that, fictional fulfilment of the financial conditions precedent flowed from the conduct of the appellant in frustrating the financial closure. This condition was, for that reason, presumed fictionally fulfilled.

The following cases were cited in support of that assertion: Mia v Verimark Holdings (Pty) Ltd 2010 (1) ALL SA 280 (SCA) and Standard Chartered Bank Zimbabwe Ltd v Matsika 1997 (2) ZLR 389.

SC127-23 : ZIMBABWE POWER COMPANY vs INTRATREK ZIMBABWE
Ruled By: MAKONI JA, CHIWESHE JA and MUSAKWA JA

ANALYSISAPPLYING THE LAW TO THE FACTS5. Whether the judgment of the court a quo was based on the pleaded caseThe appellant's contention is that in its evidence, the respondent based its claim on matters canvassed in the replication to the appellant's plea instead of its own declaration. In order to ...

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Zimbabwe

Pleadings re: Belated Pleadings, Matters Raised Mero Motu by Court and Doctrine of Notice iro Approach

SC86-22 : CITY OF HARARE vs EVARISTO MUNGATE
Ruled By: GOWORA JA, MAKONI JA and BERE JA

SC94-19 : ZIMBABWE ANTI CORRUPTION COMMISSION vs GIBSON MANGWIRO and CHRISTOPHER CHISANGO
Ruled By: MAVANGIRA JA

SC148-21 : NESTLE ZIMBABWE (PVT) LTD vs ZIMBABWE REVENUE AUTHORITY
Ruled By: GUVAVA JA, MAVANGIRA JA and MAKONI JA

SC165-21 : SHARADKUMAH PATEL and MEADOWS (PVT) LTD vs THE COSMO TRUST and OTHERS
Ruled By: GARWE JA, GUVAVA JA and MATHONSI JA

SC04-13 : ALTEM ENTERPRISES (PVT) LTD T/A RUWA FURNISHERS vs JOHN SISK & SON (PVT) LTD
Ruled By: ZIYAMBI JA, GARWE JA and MAKARAU JA

HH301-17 : FIRST MUTUAL INVESTMENT (PVT) LTD vs ROUSSALAND ENTERPRISES (PVT) LTD t/a THIRD WORLD BAZZAR and SMITH OKONKWO and DADIRAI OKONKWO
Ruled By: MANGOTA J

HH707-15 : RICHARD MATTHEWS vs CRASTER INTERNATIONAL (PRIVATE) LIMITED
Ruled By: MAFUSIRE J

HB03-23 : LUKE DUBE vs SHERIFF OF ZIMBABWE N.O. and EXMIN SYNDICATE and PROVINCIAL MINING DIRECTOR MATABELELAND SOUTH N.O. and OTHERS
Ruled By: DUBE-BANDA J

SC13-24 : UNKI MINES (PRIVATE) LIMITED vs SHURUGWI TOWN COUNCIL and JUSTICE A. EBRAHIM N.O.
Ruled By: UCHENA JA

SC23-24 : EDWARD MUDYAVANHU vs CAIRNS FOODS LIMITED
Ruled By: MAKONI JA, MATHONSI JA and CHATUKUTA JA

SC37-23 : CFI HOLDINGS t/a FARM & CITY vs ANDREW MACHAYA
Ruled By: GUVAVA JA, CHATUKUTA JA and MWAYERA JA

SC41-23 : CASSIAN MANUHWA vs SEEDCO ZIMBABWE (PRIVATE) LIMITED
Ruled By: GWAUNZA DCJ, KUDYA JA and MWAYERA JA

SC48-23 : WONDER DUBE vs KEITH MATSEKA
Ruled By: BHUNU JA

View Appeal
HH533-21 : PETROMOC EXOR (PVT) LD and KUDZANAI CHIMEDZA vs KUDZANAI CHIMEDZA and PETROMOC EXOR (PVT) LTD and OTHERS
Ruled By: MANGOTA J

SC67-23 : HWANGE COLLIERY COMPANY LIMITED and DALE SIBANDA N.O. vs PALEHOUSE INVESTMENTS (PRIVATE) LIMITED
Ruled By: MAVANGIRA JA, BHUNU JA and CHIWESHE JA

SC68-23 : MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS and ATTORNEY GENERAL OF ZIMBABWE vs NYASHA CHIRAMBA
Ruled By: GWAUNZA DCJ, MATHONSI JA and KUDYA JA

SC81-23 : DISCENT BAJILA and FRANK MHLANGA and ADELAIDE MHLANGA and SANPOULOS MAPLANKA and OTHERS vs TATENDA MADZIRASHE and RAMSON CHINGWARA and LINDA MPOFU and OTHERS
Ruled By: UCHENA JA, CHITAKUNYE JA and MWAYERA JA

SSC89-23 : FUNNY MACHIPISA vs NGONI NDUNA N.O. and THE NATIONAL PROSECUTING AUTHORITY
Ruled By: UCHENA JA, MATHONSI JA and CHATUKUTA JA

SC91-23 : OLD MUTUAL SHARED SERVICES (PRIVATE) LIMITED vs CHRISTMAS MAZARIRE and RETRENCHMENT BOARD
Ruled By: BHUNU JA, CHATUKUTA JA and MUSAKWA JA

SC109-23 : MTHOKOZISI NDIWENI vs LINDA MAGWARO
Ruled By: GWAUNZA DCJ, MATHONSI JA and CHIWESHE JA

SC110-23 : CHINHOYI MUNICIPALITY vs TENDAI MUSONZA
Ruled By: MAVANGIRA JA, CHIWESHE JA and MUSAKWA JA

SC119-23 : QUICKLINK INVESTMENTS (PRIVATE) LIMITED vs CMAL (PRIVATE) LIMITED and THE SHERIFF OF ZIMBABWE
Ruled By: BHUNU JA, CHIWESHE JA and MUSAKWA JA

SC120-23 : COLLINS MANGENJE and GODWIN MANGENJE vs ISAAC TICHARWA (executor, estate Kennedy Mangenje) and MANGENJE BROTHERS (PVT) LTD (In liquidation) and CECIL MADONDO (liquidator, Mangenje Brothers)
Ruled By: BHUNU JA, CHIWESHE JA and CHATUKUTA JA

SC123-23 : ARISTON MANAGEMENT SERVICES vs ECONET WIRELESS ZIMBABWE LIMITED
Ruled By: GUVAVA JA, MAKONI JA and MATHONSI JA

SC124-23 : CLEVER NJOVANA vs KUDAKWASHE KARAGA and COSMAS MASAWO and MINISTER OF LANDS, AGRICULTURE, WATER, FISHERIES AND RURAL RESETTLEMENT and P. MAPARA
Ruled By: GWAUNZA DCJ, CHIWESHE JA and MUSAKWA JA

SC127-23 : ZIMBABWE POWER COMPANY vs INTRATREK ZIMBABWE
Ruled By: MAKONI JA, CHIWESHE JA and MUSAKWA JA

SC127-23 : ZIMBABWE POWER COMPANY vs INTRATREK ZIMBABWE
Ruled By: MAKONI JA, CHIWESHE JA and MUSAKWA JA

SC127-23 : ZIMBABWE POWER COMPANY vs INTRATREK ZIMBABWE
Ruled By: MAKONI JA, CHIWESHE JA and MUSAKWA JA

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Law Portal Zimbabwe

Pleadings re: Belated Pleadings, Matters Raised Mero Motu by Court and Doctrine of Notice iro Approach

SC86-22 : CITY OF HARARE vs EVARISTO MUNGATE Ruled By: GOWORA JA, MAKONI JA and BERE JA

SC94-19 : ZIMBABWE ANTI CORRUPTION COMMISSION vs GIBSON MANGWIRO and CHRISTOPHER CHISANGO Ruled By: MAVANGIRA JA

SC148-21 : NESTLE ZIMBABWE (PVT) LTD vs ZIMBABWE REVENUE AUTHORITY Ruled By: GUVAVA JA, MAVANGIRA JA and MAKONI JA

SC165-21 : SHARADKUMAH PATEL and MEADOWS (PVT) LTD vs THE COSMO TRUST and OTHERS Ruled By: GARWE JA, GUVAVA JA and MATHONSI JA

SC04-13 : ALTEM ENTERPRISES (PVT) LTD T/A RUWA FURNISHERS vs JOHN SISK & SON (PVT) LTD Ruled By: ZIYAMBI JA, GARWE JA and MAKARAU JA

HH301-17 : FIRST MUTUAL INVESTMENT (PVT) LTD vs ROUSSALAND ENTERPRISES (PVT) LTD t/a THIRD WORLD BAZZAR and SMITH OKONKWO and DADIRAI OKONKWO Ruled By: MANGOTA J

HH707-15 : RICHARD MATTHEWS vs CRASTER INTERNATIONAL (PRIVATE) LIMITED Ruled By: MAFUSIRE J

HB03-23 : LUKE DUBE vs SHERIFF OF ZIMBABWE N.O. and EXMIN SYNDICATE and PROVINCIAL MINING DIRECTOR MATABELELAND SOUTH N.O. and OTHERS Ruled By: DUBE-BANDA J

SC13-24 : UNKI MINES (PRIVATE) LIMITED vs SHURUGWI TOWN COUNCIL and JUSTICE A. EBRAHIM N.O. Ruled By: UCHENA JA

SC23-24 : EDWARD MUDYAVANHU vs CAIRNS FOODS LIMITED Ruled By: MAKONI JA, MATHONSI JA and CHATUKUTA JA

SC37-23 : CFI HOLDINGS t/a FARM & CITY vs ANDREW MACHAYA Ruled By: GUVAVA JA, CHATUKUTA JA and MWAYERA JA

SC41-23 : CASSIAN MANUHWA vs SEEDCO ZIMBABWE (PRIVATE) LIMITED Ruled By: GWAUNZA DCJ, KUDYA JA and MWAYERA JA

SC48-23 : WONDER DUBE vs KEITH MATSEKA Ruled By: BHUNU JA

View Appeal HH533-21 : PETROMOC EXOR (PVT) LD and KUDZANAI CHIMEDZA vs KUDZANAI CHIMEDZA and PETROMOC EXOR (PVT) LTD and OTHERS Ruled By: MANGOTA J

SC67-23 : HWANGE COLLIERY COMPANY LIMITED and DALE SIBANDA N.O. vs PALEHOUSE INVESTMENTS (PRIVATE) LIMITED Ruled By: MAVANGIRA JA, BHUNU JA and CHIWESHE JA

SC68-23 : MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS and ATTORNEY GENERAL OF ZIMBABWE vs NYASHA CHIRAMBA Ruled By: GWAUNZA DCJ, MATHONSI JA and KUDYA JA

SC81-23 : DISCENT BAJILA and FRANK MHLANGA and ADELAIDE MHLANGA and SANPOULOS MAPLANKA and OTHERS vs TATENDA MADZIRASHE and RAMSON CHINGWARA and LINDA MPOFU and OTHERS Ruled By: UCHENA JA, CHITAKUNYE JA and MWAYERA JA

SSC89-23 : FUNNY MACHIPISA vs NGONI NDUNA N.O. and THE NATIONAL PROSECUTING AUTHORITY Ruled By: UCHENA JA, MATHONSI JA and CHATUKUTA JA

SC91-23 : OLD MUTUAL SHARED SERVICES (PRIVATE) LIMITED vs CHRISTMAS MAZARIRE and RETRENCHMENT BOARD Ruled By: BHUNU JA, CHATUKUTA JA and MUSAKWA JA

SC109-23 : MTHOKOZISI NDIWENI vs LINDA MAGWARO Ruled By: GWAUNZA DCJ, MATHONSI JA and CHIWESHE JA

SC110-23 : CHINHOYI MUNICIPALITY vs TENDAI MUSONZA Ruled By: MAVANGIRA JA, CHIWESHE JA and MUSAKWA JA

SC119-23 : QUICKLINK INVESTMENTS (PRIVATE) LIMITED vs CMAL (PRIVATE) LIMITED and THE SHERIFF OF ZIMBABWE Ruled By: BHUNU JA, CHIWESHE JA and MUSAKWA JA

SC120-23 : COLLINS MANGENJE and GODWIN MANGENJE vs ISAAC TICHARWA (executor, estate Kennedy Mangenje) and MANGENJE BROTHERS (PVT) LTD (In liquidation) and CECIL MADONDO (liquidator, Mangenje Brothers) Ruled By: BHUNU JA, CHIWESHE JA and CHATUKUTA JA

SC123-23 : ARISTON MANAGEMENT SERVICES vs ECONET WIRELESS ZIMBABWE LIMITED Ruled By: GUVAVA JA, MAKONI JA and MATHONSI JA

SC124-23 : CLEVER NJOVANA vs KUDAKWASHE KARAGA and COSMAS MASAWO and MINISTER OF LANDS, AGRICULTURE, WATER, FISHERIES AND RURAL RESETTLEMENT and P. MAPARA Ruled By: GWAUNZA DCJ, CHIWESHE JA and MUSAKWA JA

SC127-23 : ZIMBABWE POWER COMPANY vs INTRATREK ZIMBABWE Ruled By: MAKONI JA, CHIWESHE JA and MUSAKWA JA

SC127-23 : ZIMBABWE POWER COMPANY vs INTRATREK ZIMBABWE Ruled By: MAKONI JA, CHIWESHE JA and MUSAKWA JA

SC127-23 : ZIMBABWE POWER COMPANY vs INTRATREK ZIMBABWE Ruled By: MAKONI JA, CHIWESHE JA and MUSAKWA JA

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Zimbabwe

SC86-22 : CITY OF HARARE vs EVARISTO MUNGATE
Ruled By: GOWORA JA, MAKONI JA and BERE JA

SC94-19 : ZIMBABWE ANTI CORRUPTION COMMISSION vs GIBSON MANGWIRO and CHRISTOPHER CHISANGO
Ruled By: MAVANGIRA JA

SC148-21 : NESTLE ZIMBABWE (PVT) LTD vs ZIMBABWE REVENUE AUTHORITY
Ruled By: GUVAVA JA, MAVANGIRA JA and MAKONI JA

SC165-21 : SHARADKUMAH PATEL and MEADOWS (PVT) LTD vs THE COSMO TRUST and OTHERS
Ruled By: GARWE JA, GUVAVA JA and MATHONSI JA

SC04-13 : ALTEM ENTERPRISES (PVT) LTD T/A RUWA FURNISHERS vs JOHN SISK & SON (PVT) LTD
Ruled By: ZIYAMBI JA, GARWE JA and MAKARAU JA

HH301-17 : FIRST MUTUAL INVESTMENT (PVT) LTD vs ROUSSALAND ENTERPRISES (PVT) LTD t/a THIRD WORLD BAZZAR and SMITH OKONKWO and DADIRAI OKONKWO
Ruled By: MANGOTA J

HH707-15 : RICHARD MATTHEWS vs CRASTER INTERNATIONAL (PRIVATE) LIMITED
Ruled By: MAFUSIRE J

HB03-23 : LUKE DUBE vs SHERIFF OF ZIMBABWE N.O. and EXMIN SYNDICATE and PROVINCIAL MINING DIRECTOR MATABELELAND SOUTH N.O. and OTHERS
Ruled By: DUBE-BANDA J

SC13-24 : UNKI MINES (PRIVATE) LIMITED vs SHURUGWI TOWN COUNCIL and JUSTICE A. EBRAHIM N.O.
Ruled By: UCHENA JA

SC23-24 : EDWARD MUDYAVANHU vs CAIRNS FOODS LIMITED
Ruled By: MAKONI JA, MATHONSI JA and CHATUKUTA JA

SC37-23 : CFI HOLDINGS t/a FARM & CITY vs ANDREW MACHAYA
Ruled By: GUVAVA JA, CHATUKUTA JA and MWAYERA JA

SC41-23 : CASSIAN MANUHWA vs SEEDCO ZIMBABWE (PRIVATE) LIMITED
Ruled By: GWAUNZA DCJ, KUDYA JA and MWAYERA JA

SC48-23 : WONDER DUBE vs KEITH MATSEKA
Ruled By: BHUNU JA

View Appeal
HH533-21 : PETROMOC EXOR (PVT) LD and KUDZANAI CHIMEDZA vs KUDZANAI CHIMEDZA and PETROMOC EXOR (PVT) LTD and OTHERS
Ruled By: MANGOTA J

SC67-23 : HWANGE COLLIERY COMPANY LIMITED and DALE SIBANDA N.O. vs PALEHOUSE INVESTMENTS (PRIVATE) LIMITED
Ruled By: MAVANGIRA JA, BHUNU JA and CHIWESHE JA

SC68-23 : MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS and ATTORNEY GENERAL OF ZIMBABWE vs NYASHA CHIRAMBA
Ruled By: GWAUNZA DCJ, MATHONSI JA and KUDYA JA

SC81-23 : DISCENT BAJILA and FRANK MHLANGA and ADELAIDE MHLANGA and SANPOULOS MAPLANKA and OTHERS vs TATENDA MADZIRASHE and RAMSON CHINGWARA and LINDA MPOFU and OTHERS
Ruled By: UCHENA JA, CHITAKUNYE JA and MWAYERA JA

SSC89-23 : FUNNY MACHIPISA vs NGONI NDUNA N.O. and THE NATIONAL PROSECUTING AUTHORITY
Ruled By: UCHENA JA, MATHONSI JA and CHATUKUTA JA

SC91-23 : OLD MUTUAL SHARED SERVICES (PRIVATE) LIMITED vs CHRISTMAS MAZARIRE and RETRENCHMENT BOARD
Ruled By: BHUNU JA, CHATUKUTA JA and MUSAKWA JA

SC109-23 : MTHOKOZISI NDIWENI vs LINDA MAGWARO
Ruled By: GWAUNZA DCJ, MATHONSI JA and CHIWESHE JA

SC110-23 : CHINHOYI MUNICIPALITY vs TENDAI MUSONZA
Ruled By: MAVANGIRA JA, CHIWESHE JA and MUSAKWA JA

SC119-23 : QUICKLINK INVESTMENTS (PRIVATE) LIMITED vs CMAL (PRIVATE) LIMITED and THE SHERIFF OF ZIMBABWE
Ruled By: BHUNU JA, CHIWESHE JA and MUSAKWA JA

SC120-23 : COLLINS MANGENJE and GODWIN MANGENJE vs ISAAC TICHARWA (executor, estate Kennedy Mangenje) and MANGENJE BROTHERS (PVT) LTD (In liquidation) and CECIL MADONDO (liquidator, Mangenje Brothers)
Ruled By: BHUNU JA, CHIWESHE JA and CHATUKUTA JA

SC123-23 : ARISTON MANAGEMENT SERVICES vs ECONET WIRELESS ZIMBABWE LIMITED
Ruled By: GUVAVA JA, MAKONI JA and MATHONSI JA

SC124-23 : CLEVER NJOVANA vs KUDAKWASHE KARAGA and COSMAS MASAWO and MINISTER OF LANDS, AGRICULTURE, WATER, FISHERIES AND RURAL RESETTLEMENT and P. MAPARA
Ruled By: GWAUNZA DCJ, CHIWESHE JA and MUSAKWA JA

SC127-23 : ZIMBABWE POWER COMPANY vs INTRATREK ZIMBABWE
Ruled By: MAKONI JA, CHIWESHE JA and MUSAKWA JA

SC127-23 : ZIMBABWE POWER COMPANY vs INTRATREK ZIMBABWE
Ruled By: MAKONI JA, CHIWESHE JA and MUSAKWA JA

SC127-23 : ZIMBABWE POWER COMPANY vs INTRATREK ZIMBABWE
Ruled By: MAKONI JA, CHIWESHE JA and MUSAKWA JA