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

HH52-09 : NEIL BRUCE vs ECONET WIRELESS (PVT) LTD and CITY OF HARARE
Ruled By: OMERJEE J

The plaintiff is a private person, residing at Stand 64 of Lot 7A Colne Valley, commonly known as No.5 Wellburn Drive, Ballantyne Park, Harare. The first defendant, is Econet Wireless (Pvt) Ltd, a company duly incorporated in accordance with the laws of Zimbabwe and the second defendant is the authority ...

On 8 January 2008, the plaintiff issued summons and a declaration against both defendants seeking an order -

(a) Declaring the lease agreement entered into, on or about 27 February 2007, between the first and second defendants to be of no force or effect.

(b) Requiring the first defendant, on the basis that its cell phone base station encroaches on his land and constitutes a nuisance, to:

(i) Vacate stand 648 Ballantyne Park.

(ii) Remove its cell phone base station.

(iii) Restore stand 648 to the condition it was in prior to erecting the base station.

ALTERNATIVELY:

Requiring the first and second defendants to comply with the requirements of Part V of the Regional, Town and Country Planning Act [Chapter 29:12] (“the Planning Act”).

(b) Costs of suit.

The facts bringing rise to this suit can conveniently be summarised as follows:

1. Sometime in January 2006, the first defendant approached the second defendant with a view to leasing from the latter, a certain piece of land measuring 140 square metres, known as Stand No.648 Ballantyne Park, Colne Valley, Harare ("the Stand").

2. The first defendant wished to lease the Stand for purposes of erecting and subsequently operating a Cellular Base Station ("Mast") thereon.

3. In compliance with the provisions of section 152(2) of the Urban Councils Act [Chapter 29:15] the second defendant caused to be published notices of its intention to lease the Stand to the first defendant, in both the Business Herald and the Herald newspapers of 13 and 20 October 2006 respectively.

4. The twenty-one day limit for lodging objections, as required by section 152(2)(b), having elapsed without receipt of any objections, the first and second defendants, on or about 27 February 2007, proceeded to conclude a lease agreement pertaining to the Stand.

5. Of significance, clause 5 of the lease agreement stipulated that the Stand was to be used for the installation and operation of a Cellular Base Station.

6. On the basis of this lease agreement, the first defendant commenced to construct or erect a Mast on the Stand.

7. When the plaintiff, whose premises is directly adjacent to the Stand, noticed what was transpiring, he addressed letters of protest, dated 24 April 2007, to, amongst others, the second defendant, and, in particular, for the attention of the Acting Town Planner, a Mr. A. Kasiwamhura. This letter read -

"Re: Cellphone Mast in Ballantyne Park

I note with concern that a cellphone mast is being erected in Ballantyne Park adjacent to my boundary wall. I have not had any notification of this at all and I have checked with the two neighbours directly opposite who say they have not been notified either.

I would like work on this structure stopped with immediate effect as correct procedures have obviously not been followed. This structure also extends within the building line on my boundary wall.

Further to this, there are severe health hazards caused by E.M.R. [electromagnetic radiation] associated with cellphone masts and they should not be erected in such close proximity to residential properties, especially if these house children.

I should be grateful if you would give this matter your urgent attention."

8. Neither defendant was moved by these protestations, as both held the view that adherence to and compliance with all the necessary legal formalities had been met, and, therefore, under the circumstances, halting the erection of the mast was not warranted.

Faced with this scenario, the plaintiff, on 8 June 2007, filed with this court, what he purported to be an urgent chamber application seeking interim relief compelling the removal of the mast and restoration of the Stand to its original condition, by the first defendant.

The matter was placed before my brother HLATSHWAYO J, who, in declining to hear it on an urgent basis, ruled that -

"The matter is not urgent because of the delay in instituting legal proceedings after the encroachment was noticed and because of the final nature of the interim relief sought. The matter should be set down on the normal opposed roll."

This prompted the plaintiff to enrol it on the opposed roll of 31 October 2007 using the same set of papers as originally filed.

In his initial papers, the plaintiff had predicated his case on an alleged non-compliance with the provisions of section 152 of the Urban Councils Act, but, subsequently, in his answering affidavit, he introduced the matter of non-compliance with the requirements of the Regional, Town and Country Planning Act [Chapter 29:12].

My brother, CHITAKUNYE J, who presided over the opposed application, ruled that this latter aspect be "struck out" on the basis that it introduced a new cause of action.

Appealed
SC27-08 : JOSHUA KADENGU and LAMECK KADENGU and ROSA KADENGU vs OLGA KADENGU and RICHARD CHIMBARI and MASTER OF THE HIGH COURT
Ruled By: SANDURA JA, ZIYAMBI JA and GARWE JA

The late Job Bruno Kadengu died testate on 25 March 1990. His Will contained the following clauses:

“2. The expression 'Executors' or 'Executor' wherever used in this Will mean either Executors or Administrators or Trustees or any two or all of these offices as may be appropriate in the circumstances and in the context thereof and the term 'Executors' includes the singular and the term 'Executor' includes the plural.

5. My Executor shall take possession of all my property, whether movable or immovable, of whatsoever nature and sort, and wheresoever situate, and whether the same be in possession, reversion, remainder or expectancy, and, after paying thereout all my just debts and taxes payable by reason of my death, and the expenses of the administration of my Estate, then he shall pay and apply the same as hereinafter directed.

6. I hereby direct that my Executor shall purchase a house in the northern suburbs of Harare and I desire that such house be large enough and commodious enough, in the discretion of my Executor, to comfortably accommodate my wife, OLGA, and any dependent children born of me and my said wife who may survive me. I hereby give and bequeath to my said wife the said house as a special legacy. I further give and bequeath to my said wife, as a special legacy (or special legacies), all the household furniture and effects of which I may die possessed and effects of which may, at the time of my death, be situate in the residential property where my said wife and I may be living as at the date of my death. The legacies referred to in this paragraph shall be conditional upon my said wife, OLGA, surviving me for a period in excess of thirty (30) days.

7. I record that I own a certain farming property situate near Rusape. Provided that my mother shall survive me for a period in excess of (30) thirty days and provided that I still own the said farming property as at the date of my death, I hereby give as special legacies to my mother all the farming implements, livestock and other movables which may belong to me at my death and which may be situate on the said farm as at the date of my death. I further hereby give and bequeath to my said mother a life usufruct in respect of the said immovable farming property but subject to the provisions contained in the immediately subsequent paragraph hereof pertaining to my sister, ROSA CHIMAMBO. I direct that the dominium in the said farming property shall be assumed and taken by my Trustee appointed hereunder who shall deal with the same as directed hereunder.

9. After discharging my debts and taxes, and paying the legacies and providing for the aforesaid usufruct, and, generally dealing with my directives detailed hereinabove, my Executor shall sell and liquidate and turn into cash the entire balance of my Estate and my Executor shall hold the resultant monies in his own name as Trustee of a Trust Fund and he shall apply the income and capital thereof as hereinafter directed. The successor in office as Trustee of my Trust Fund shall be the Senior Partner for the time being of the said Messrs Gollop & Blank.

10. My Executor, as Trustee, in such manner as he shall, in his absolute discretion, from time to time think fit, pay and apply the income of my Trust fund to or for or towards, the benefit, maintenance, education, and advancement of my said wife, OLGA, my said mother and any and every child born of my union with my previous wife and any and every child born of my union with my said wife, OLGA, and, without derogating from the generality of the aforegoing, the following persons; viz.”

The appellants were among the persons listed under paragraph 10.

It is common cause that Gregory Slater who was appointed executor of the Will failed to complete the administration thereof before he fled the country on allegations of misappropriation of funds and that Messrs Gollop and Blank renounced their appointment as executors and trustees of the estate on 5 September 1997.

The assets of the estate were given as 4,000 shares in Paradise Park Motel (Pvt) Ltd and a certain piece of land in the district of Makoni called Alloa Farm.

The Master, in an attempt to speed up the administration of the estate, on 2 July 1999, appointed the second respondent as executor dative of the estate.

It seems that the second respondent was unable to remedy the problems left unresolved by Gregory Slater, and, on 28 September 2000, the first and the second appellants wrote to the Master complaining of the second respondent's inaction and his failure to wind up the estate in accordance with the wishes of the testator.

The letter did not achieve the desired result, and, on 24 March 2003, the appellants made an application to the High Court seeking the following order:

“IT IS ORDERED THAT:

1. The Trust which was to be set up in terms of Clause 9 of the Will be and is hereby abandoned.

2. The deceased's 4,000 shares in Paradise Park Motel (Pvt) Ltd shall be sold to the best advantage of the beneficiaries.

3. A large enough and commodious enough house shall be purchased for the first Respondent and her minor children from the proceeds of the sale of Paradise Park Motel (Pvt) Ltd. The Master of the High Court (the third respondent) shall determine whether the house which the estate shall be purchasing for the first respondent and her children is 'large enough and commodious enough'.

4. After purchasing the house described above for the first respondent and her children, the residue shall be equally distributed among the surviving beneficiaries. The shares of the beneficiaries who are outside the country or who are not part (sic) to these proceedings shall be…,. (illegible).

5. The immovable property, situate in Makoni District, namely, Alloa Farm, held under Deed of Transfer 7689/81 shall not be sold. It shall be retained as the family home to be registered in all beneficiaries names or to be registered in the name of the nominated beneficiary in trust for the rest of the beneficiaries.”

It was their contention that the intention of the testator, as expressed in clause 9 of the Will, could no longer be implemented because of the abdication of Gregory Slater and the renunciation by Gollop & Blank. They alleged that they could not agree on a suitable substitute, and, in any event, some of the beneficiaries could not be located while others were resident outside Zimbabwe.

On 23 July 2003 the appellants obtained a default judgment in the terms set out above. This order was, however, rescinded, by consent, and the matter was argued before the court a quo.

The second respondent, the executor dative, alleged that the estate was illiquid making it impossible for him to discharge his mandate. It was his view that the ownership of the 4,000 shares should be determined before the estate could be wound up.

The three issues argued by the parties before the court a quo were as follows:

1. Whether or not the estate can no longer be wound up in terms of the Will because some clauses have become irrelevant;

2. Whether or not the 4,000 shares in Paradise Park Motel (Pvt) Ltd form part of the deceased's estate; and

3. Whether or not Alloa Farm can still be dealt with in terms of the Will.

The application was dismissed by the court a quo primarily on the grounds that the appellants had no locus standi to bring such an application. In this regard, the learned Judge said:

“It seems to me, however, that a more fundamental point, which unfortunately was not addressed, arises. It is whether or not the applicants have locus standi, that is, a direct and substantial interest, in seeking variation or rectification of the Will.”

And later, at p6 of his judgment:

“It seems to me, therefore, that the applicants in casu are obliged to show the direct and substantial interest that they have in the subject matter before me of seeking the variation of certain clauses of the Will. In terms of the Will they are residuary heirs. They will only be able to benefit from the Will after Clause 9 thereof has been fulfilled.”

The court a quo, though alive to the fact that neither party had been given the opportunity to make submissions on this issue, yet proceeded to decide the matter on an issue not raised during the hearing and addressed by the parties.

In so doing, the learned Judge misdirected himself. It was imperative that the issue was fully canvassed and investigated.

As it was said in Middleton v Carr 1949 (2) SA 374 (AD)…,:

“…, as has often been pointed out, where there has been full investigation of a matter, that is, where there is no reasonable ground for thinking that further examination of the facts might lead to a different conclusion, the court is entitled to, and generally should, treat the issue as if it had been expressly and timeously raised. But, unless the Court is satisfied that the investigation has been full, in the above sense, injustice may easily be done if the issue is treated as being before the Court.”

The issue was not before the court a quo, and, in the absence of a full investigation thereof, the court erred in treating the issue as one which was before it.

Clearly, there was a real chance of an injustice being done to the appellants against whom the finding was made.

HH14-12 : JOEL MATONGO vs FLORA MATONGO (NEE JOE)
Ruled By: CHITAKUNYE J

The plaintiff and the defendant were joined in holy matrimony on 13 June 1997, in terms of the Marriages Act [Chapter 5:11]. The marriage still subsists. They had, however, commenced living together as husband and wife, in terms of customary law, in August 1985. Their marriage was blessed with two children, one born on 31 March 1989 and the other born on 17 August 1994.

After several years of apparently happy marriage some unhappy differences arose culminating in the plaintiff issuing summons for divorce and other ancillary relief on 6 July 2010. The plaintiff alleged that the marriage has irretrievably broken down to such an extent that there are no reasonable prospects of restoration to a normal marriage relationship. He outlined the grounds for the breakdown as that:

(a) The defendant has been seeing other men;

(b) The parties are currently on separation; and

(c) Consequently, the parties have lost love and affection for each other.

In the circumstances, the plaintiff sought a decree of divorce.

During the subsistence of the marriage, the parties acquired an immovable property, namely, Stand No.7865 Budiriro 5B, Harare and various movable property. The plaintiff offered the defendant a 25% share in the immovable property with him retaining 75%.

On the movable property, he offered most of the property to the defendant.

He also asked to be given custody of the minor child born on 17 August 1994.

The defendant, in her plea, denied that she was seeing other men. She however did not deny that the marriage has irretrievably broken down as the parties have lost love and affection for each other. She made a counter claim for:

(a) A decree of divorce.

(b) 50% share in the immovable property.

(c) Custody of the minor child born on 17 August 1994.

(d) An order for maintenance in respect of herself in the sum of USD300 per month.

(e) Sharing of the movable property in terms of her counter-proposal in paragraph 6 of her counter claim.

At a pre-trial conference held on 9 March 2011 the parties agreed that:

1. The marriage has irretrievably broken down.

2. Custody of the minor child, born on 17 August 1994, be given to the defendant with the plaintiff enjoying reasonable rights of access.

3. The plaintiff pays maintenance in the sum of USD50 for the minor child.

4. The defendant shall get all the movable property except the following -

(i) Carpet;

(ii) Radio (with amplifier, turner, cassette player and 2 speakers);

(iii) 1 DSTV decoder;

(iv) DVD;

which shall be retained by the plaintiff as his sole and exclusive property.

The issues referred to trial pertained to –

1. The fair and equitable distribution of the immovable property, namely, Stand No.7865 Budiriro 5B, Harare;

2. The quantum of maintenance to be paid by the plaintiff to the defendant for the defendant's upkeep; and

3. Who should pay the costs of suit?...,.

2. Quantum of maintenance for Defendant

Section 7(1)(b) of the Matrimonial Causes Act [Chapter 5:13] provides that:-

“Subject to this section, in granting a decree of divorce, judicial separation, or nullity of marriage, or, at any time thereafter, an appropriate court may make an order with regard to - the payment of maintenance, whether by way of a lump sum or by way of periodical payments, in favour of one or other of the spouses or child of the marriage.”

The defendant claimed a sum of USD300 per month till she remarries or dies whichever is the earlier.

She however did not indicate how she arrived at that figure. In her evidence in chief, and under cross examination, she maintained the same figure - albeit without explaining how she arrived at the figure.

All she said was it was because the plaintiff can afford it.

It was only in answer to my specific question that she indicated that in arriving at USD300 she looked at rentals which she will have to pay, groceries, her health needs, electricity, and water.

This was without quantification at all.

It was only in the closing submissions that the defendant's counsel provided specific sums for each of the items the defendant said she needed the money for.

Unfortunately, closing submissions are not the proper forum to tender new evidence.

The plaintiff fell into the same pitfall in objecting to the sum of USD300.

He disclosed his income as USD1,030 per month plus other benefits like a company motor vehicle and school fees assistance. He however did not go on to show specific expenditure patterns for him to confirm his inability to pay the sum claimed. Thus, apart from a mortgage deduction of about USD405 per month he did not provide any other expenditure figures.

It was only in the closing submissions that the plaintiff's counsel provided further expenditure figures. Unfortunately, such evidence could not be accepted at such a stage.

HH43-12 : SHELTER MAVATA vs JAMES CHIBANDE
Ruled By: OMERJEE J and HLATSHWAYO J

This is an appeal against the decision of the Chitungwiza magistrate handed down on 25 March 2009, awarding the appellant 15% of the value of the immovable property acquired by the parties during the subsistence of their four year unregistered customary law marriage.

The plaintiff listed her grounds of appeal as follows:

“The learned Magistrate erred in awarding the Appellant only 15% of the value of the property with regard to the following factors:

1. The appellant's contribution to the acquisition of the immovable property, and subsequent construction of the house, whether financially, directly or indirectly, have been undermined, including -

1.1 Appellant's supervision of builders, during the construction period throughout, whilst the Respondent was away from home.

1.2 Appellant's total commitment where she would go on foot to buy most of the building material from Makoni Home Industry and the Builders Market using a push cart.

1.3 Appellant foregoing her social life during the period of construction of the property.

1.4 Appellant's contribution in selling goods brought home by Respondent for resale to raise capital for the construction of the house.

1.5 The parties lived together during which period the Appellant gave the Respondent social well being, companionship, peace of mind, and confidence much that while in his absence the Appellant would be trusted to commit herself to the construction of the property.

2. The learned Magistrate erred in finding that after consideration of the factors outlined in paragraphs 1.1 – 1.5 above, the Appellant deserved a paltry 15% of the value of the property.”

The appellant then prays for a “substantially higher percentage which is both fair and reasonable and commensurate with her contributions” and costs.

In a notice of amendment of grounds of appeal, the appellant submitted the following additional grounds of appeal:

“3. The court a quo erred in failing to make an analysis of the choice of law in order to provide for the application of General Law.

3.1 As a result, the court a quo erred in failing to apply the principle of tacit universal partnership which was the only legal regime available in order to do justice to the parties.

4. The court a quo erred in failing to be guided by the provisions of the Matrimonial Causes Act (Chapter 5:13) in coming to its conclusion.

5. The court a quo erred in dismissing the Appellant's evidence that her brother assisted the parties financially on the basis that the brother can claim his money from the Respondent.”

The appellant also amended her prayer by deleting the original one and substituting it with one calling for the setting aside of the order of the court a quo and awarding her 50% of the value of the immovable property and costs of suit.

Regarding the choice of law submission, the court a quo appears to have exercised its mind over it and made the decision to proceed in terms of General Law, as shown by the following exchange in the record of proceedings…,:

“CROSS EXAMINATION (Appellant being cross examined by respondent's legal practitioner)

Q: Would you have any problems if the sharing of property is done under Customary Law and not General Law?

A: No.

Q: You confirm you don't have an antenuptial contract in your marriage?

A: Yes.

Q: Are you aware that you should have advanced reasons why you have opted this court to proceed in terms of General Law at the expense of Customary Law?

LEGAL PRACTITIONER FOR PLAINTIFF (Objects): These points were raised as points in limine which he later waived. It is also filed of record that after that the matter was referred to Pre Trial Conference for matter to proceed to trial.

LEGAL PRACTITIONER FOR DEFENDANT: I am not referring to points in limine. This court is a Civil and Customary Law Court, and, even if plaintiff has chosen Customary Law, this court was still going to have this procedure. In Mashingaidze's case 1995 (1) ZLR 219, that was stated and I will hand over to court.

COURT: Objection sustained.”

Therefore, the ground of appeal raised by the appellant, in paragraph 3 above, falls away.

Regarding the direct applicability of section 7 of the Matrimonial Causes Act, the respondent is correct in pointing out that the marriage regime in casu is not recognized in that provision, but, the provision can be used as a useful guidance when all the other pre-requisites are met.

However, in seeking to raise the choice of law issue again in heads of argument, the respondent is in error.

Had he intended to challenge the basis upon which the court a quo had proceeded, the respondent should have raised the point by way of a cross-appeal, which, in this case, he has not.

HH120-12 : JOHN MAUCHAZA vs SARAH NOTA
Ruled By: GOWORA J and PATEL J

On 10 July 2006, the respondent herein, whom I shall refer to as the plaintiff, issued summons in the Magistrates Court, Harare against the appellant, the defendant, claiming “sharing of property.”

Particulars of claim attached to the summons made reference to a customary union which resulted in the establishment of a universal partnership. It was accordingly prayed that it would be just and equitable for the court to order that a house shared by the parties during the partnership be sold and the proceeds jointly shared between the parties.

The defendant pleaded to the claim in a manner which both denied and accepted the existence of the customary union, the existence of the universal partnership, and the acquisition of the immovable property over which the plaintiff was claiming a right to a share.

I find that the defendant's legal practitioners filed a plea which was not only vague and embarrassing but which did not clearly set out the facts upon which the defence was based.

The errors I have referred to above notwithstanding, the matter went before a magistrate for trial, and, on 19 April 2007, the magistrate rendered a judgment in terms of which the plaintiff was awarded a fifty percent share in the immovable property.

The defendant then noted an appeal against the judgment.

The evidence adduced at the trial, in the court below, established that the parties had an unregistered customary union which resulted in the birth of one child. The parties stayed together from 1982 to 1986 when the plaintiff left the matrimonial home. During the period in question, despite the absence of a formal relationship, the parties conducted themselves and treated each other as husband and wife. Evidence was led to the effect that a customary marriage ceremony took place where the defendant paid part of the bride price (lobola). According to the plaintiff the defendant had not finished paying all of it when they separated. The defendant accepts that the parties had such a union.

There are a number of issues on which the parties differ insofar as the evidence adduced at the trial is concerned.

The case for the plaintiff is that she had failed to return home after an excursion with the defendant. As a result, she and the defendant decided to get married. The defendant's case is that he and the plaintiff had not returned home. The next day, the plaintiff was told, by her relatives, she was not acceptable at home. She moved in with him. He was then forced to live with her, and decided to pay damages for having made her pregnant.

What is not in dispute is that the parties lived together from 1982 to some time in 1986. During that period, an immovable property, known as 82 Caledon Avenue, Hatfield, was purchased through a mortgage bond secured in the name of the defendant. The defendant was responsible for settlement of the mortgage payments whilst the plaintiff took care of the other household expenses. The deposit for the house was paid by the defendant even though the plaintiff indicated, in her evidence, that she had contributed towards half of the deposit paid by the defendant.

From the evidence adduced before him, it is my view that the magistrate correctly concluded that the defendant had paid lobola for the plaintiff and the parties were married in terms of custom. The union was however never solemnised.

Although the defendant did not plead lack of jurisdiction in his plea, when closing submissions were filed on his behalf, at the close of the trial, it was argued on his behalf, that if the plaintiff's claim was premised on a tacit universal partnership then the trial court lacked the jurisdiction to entertain the matter as the value of the property in dispute was in excess of Z$5 million.

It was conceded by the defendant's legal practitioner that no evidence had been adduced on the value of the property, but, the court was urged to take judicial notice of the fact that a half share in an immovable property in Hatfield could not possibly, at the time, be valued at less that Z$5 million. It was accordingly argued that the claim should be dismissed on that basis.

The trial court was addressed on the question of the lack of jurisdiction of the court given the monetary value of the items in dispute, but, it does not appear as if the magistrate addressed his mind to this....,.

In the exercise of its appellate jurisdiction, the High Court, being a superior court with inherent jurisdiction, is empowered to exercise review powers.

HH13-09 : BORDER TIMBERS LIMITED vs ZIMBABWE REVENUE AUTHORITY
Ruled By: MAKARAU JP

The plaintiff filed a delictual claim against the defendant, seeking damages in the sum of US$709,948.It was specifically alleged in the plaintiff's declaration that the defendant wrongfully and unlawfully sought to levy import duty on certain resin imported by the plaintiff for its manufacturing processes using an incorrect tariff, causing ...

The plaintiff filed a delictual claim against the defendant, seeking damages in the sum of US$709,948.

It was specifically alleged in the plaintiff's declaration that the defendant wrongfully and unlawfully sought to levy import duty on certain resin imported by the plaintiff for its manufacturing processes using an incorrect tariff, causing the plaintiff to litigate on the matter. By the time the litigation was resolved, in favour of the plaintiff, the imported resin, which remained uncleared for customs purposes, had become moribund and useless to the importer, thereby causing the total loss that was claimed in the summons under various heads…,.

The claim was defended primarily on the basis, that, in seeking to levy duty on a higher tariff than previously levied, the defendant was not acting with malice and that its actions were not wrongful and unlawful to ground an action in delict. Further, it was denied that the containers of the imported resin were presented to the defendant for the purposes of customs clearance.

The facts giving rise to the suit between the parties are largely common cause.

The plaintiff is an established public company, specializing in the production and manufacture of timber and timber products. It is listed on the local bourse. As part of its manufacturing processes, it uses a certain resin (hereinafter referred to as “the chemical”), that is imported into the country and import duty paid.

Over a period of about ten years, the plaintiff imported this resin at a steady 5% duty payable to the defendant.

In or about February 2005, the plaintiff received four containers of the imported chemical. When it presented the chemicals to the defendant for clearance, duty was levied not on the usual and expected 5% but at 25%.

The plaintiff approached this court for adjudication on the correct level of duty payable and its contentions were upheld. The defendant immediately noted an appeal against the decision of this court. In the meanwhile, the parties reached an agreement that the four containers be released upon the plaintiff paying a deposit against the required duty.

Again, in the meanwhile, in May 2005, the plaintiff imported into the country ten other containers of the chemical while the legal wrangle was still on. There is a dispute as to whether these ten containers were presented for customs clearance or not….,.

On 7 April 2006, the Supreme Court handed down its judgment, upholding the High Court judgment and vindicating the plaintiff's stance.

In June 2006, the ten containers of the chemical were cleared by the defendant at 5% duty. It was then discovered that the chemical had become moribund and valueless to the importer.

On 27 September 2006, the plaintiff issued summons against the defendant as detailed above.

In the summons, the plaintiff claimed the sum of US$285,123=76 as the replacement value of the chemical that went moribund; US$20,016=44 as the value of orders that were lost as a result of the plaintiff's failure to use the moribund chemical; and the sum of US$404,807=80 as damages for lost business.

At the trial of the matter, three issues had to be resolved by evidence. These were;

(i) Firstly, whether the order issued by this court also covered the ten containers, the subject of this dispute; and

(ii) Secondly, whether the ten containers were presented to the defendant for duty purposes;

(iii) Thirdly, in issue was the quantum of damages that the plaintiff would be entitled to in the event that the defendant was found liable.

In support of its case, the plaintiff led evidence, firstly, from one Joseph Chikwana. He was the plaintiff's Purchasing Manager at the time the dispute arose.

His testimony was largely to reiterate the facts that are common cause in this dispute concerning the first four containers of the chemical. Regarding the ten containers forming the subject of this suit, he testified as follows:

These were imported about six months after the first four and in respect of which the parties were before this court, locked in litigation over the correct tariff to be used for calculating duty. The ten containers came through Beira, and, when they arrived in Mutare, the plaintiff sought to have them cleared. The plaintiff did not submit any documents to the defendant as there was a pending case between the parties. The containers were placed in a bonded warehouse.

When the customs clearance agent came back with the news of the stalemate between the parties, the witness personally visited the defendant's office and was attended to by a Mr Chamboko and a lady officer who was assisting Mr Chamboko. The discussions referred to the pending case and the parties felt that they could not move from that position due to the pending litigation. The defendant demanded duty at the higher rate which the plaintiff was not in a position to pay at the time.

The witness was involved in the formulation of the claims that the plaintiff finally brought against the defendant.

He explained that the claim for $22 billion was the fees that the plaintiff paid to the agent to have the containers released.

During the period of the dispute, the plaintiff had pending orders from its overseas customers. Because of the time it took to resolve the issue, the plaintiff was unable to meet the orders, resulting in the orders being cancelled. The value of the lost orders was captured in a spread sheet that the plaintiff's Finance Department generated. The spread sheet was adduced into evidence. The value of the lost orders was in the sum of US$74,134=97.

Using a profit margin of 27%, the plaintiff claimed damages in the sum of US$20,016=44 under this head.

The chemicals expired whilst they were in the containers and awaiting clearance. The value of replacing the chemical was in the sum of US$285,123=76.

During the time that the parties were locked in the dispute, the plaintiff could not produce most of its products and thus lost business due to the unavailability of its products. It calculated this loss at US$404,807=80. Another spread sheet was adduced into evidence, through the witness, showing the plaintiff's calculation of the lost business.

The plaintiff tried to mitigate its damages by borrowing glue from other timber processing companies.

When the judgment of the High Court became available, in November 2005, the witness took the judgment to the defendant, seeking release of the ten containers. He was informed that the defendant would appeal against the judgment - which they did.

Pending determination of the appeal, the plaintiff again approached the defendant for the release of the containers. The approach was not successful leading the plaintiff to approach this court on a certificate of urgency. No judgment was handed down in the matter which was heard on 8 December 2005.

In my view, the witness is an articulate and confident man who fared well under cross examination. He was forthright in his answers to questions put to him under cross-examination and readily admitted to some of the shortcomings in the assumptions that had been used in calculating the damages claimed by the plaintiff. While I found the witness unnecessarily verbose in his responses, I have no reason to disbelieve his evidence.

The second witness to testify on the plaintiff's behalf was one Prince Nyemba. At the time, he was the plaintiff's Finance Director. He joined the plaintiff's employment in August 2006 and was not yet with the plaintiff in May 2005 when the events forming the subject of this trial were unfolding. The plaintiff naturally keeps records of its transactions and the witness had access to these.

The witness then testified as to what the plaintiff's records revealed its loss to be as a result of the delay in having the glue released to it by the defendant.

Under cross-examination, the witness admitted that the claims by the plaintiff had been calculated without taking into account certain exigencies and variables such as changing exchange rates and fluctuating costs of production.

Due to the fact that the witness was not an employee of the plaintiff at the relevant time, and also due to the concessions that he made under cross examination, that the plaintiff's claim was aggressively if not inaccurately calculated, I shall place marginal probative value on his testimony and will only rely on it where it is corroborated by other reliable evidence.

After the testimony of this witness, the plaintiff closed its case.

The defendant opened its case by calling one Clements Kwenda. He is employed by the defendant as a team Leader at Forbes Border Post, having joined the then Department of Customs and Excise in 1990.

The witness detailed the procedures that an importer of goods into the country has to observe before his or her goods can be cleared. Regarding the claim before the court, he testified as follows:

The plaintiff imported two separate lots of chemicals. Firstly, it imported four containers of the chemicals. An entry for the four was submitted to the defendant. A dispute arose as the defendant called for duty at a rate higher than the plaintiff was offering. The matter was then referred to the courts. At a later stage, and while the matter was pending before the court, the plaintiff paid a deposit for the release of the four containers.

As at 25 February 2005, the plaintiff was aware that it could have the ten containers released upon payment of a deposit.

In respect of the ten containers, Bills of Entry for the ten were submitted to the defendant on 29 June 2006. The containers were all cleared on the same date. Prior to this, he was unaware of any letter that the plaintiff had written to the defendant seeking the release of the ten containers. He was aware that a letter had been addressed to the defendant's Harare office though he had not seen it.

Under cross-examination, the witness could not dispute, that, for the previous eleven years the plaintiff had imported the chemical at 5% duty. In his opinion, the officer who inspected the goods and asked for duty at a higher rate was simply doing his work and did not err. He did not agree that the departure from the classification that had been used for the past eleven years had been done with an improper motive.

The witness gave his evidence well. I find that most of his testimony was on facts that are common cause. He was clear as to what transpired between the parties although his attempt to draw a distinction between the Harare and the Mutare offices of the defendant was without basis. On the main, I will rely on the testimony of this witness.

The defendant called the testimony of one Clifford Mubaiwa Chamboko next. He is the man in charge of the defendant's offices in Mutare.

On 17 February 2005, a meeting was held in his office pertaining to the clearance of the four containers. The plaintiff's first witness and the clearing agent were in attendance. The tariff dispute between the parties was discussed.

At no stage did the defendant refuse to accept the entry relating to the ten containers. There was no meeting between the parties regarding the ten containers.

Under cross-examination, the witness maintained that the defendant was justified in re-classifying the imported chemicals. He pointed out that the classification of imports is a complex matter and that for that matter, errors would occur.

The witness gave his evidence in a very measured way; so measured was he, that, at times, he appeared slow. Despite this, I have no reason to disbelieve his evidence as, in my view, there are few material disputes of facts in this matter.

After the testimony of this witness, the defendant closed its case.

At the pre–trial conference of the matter, eight issues were identified for trial as follows:

1. Whether the declarator issued by the Honourable Justice Hungwe, under case no HC838/05, covered the four containers or the ten containers, which are the subject matter of this dispute;

2. Whether the containers were declared for duty purposes;

3. What is the procedure to be followed by an importer of goods in circumstances where there is a dispute in relation to a consignment that has been declared for duty purposes;

4. Whether, in the absence of compliance with such procedure, any liability attaches to the defendant;

5. Whether the defendant is liable to the plaintiff in respect of contents (that) became moribund as well as the customs clearance, storage charges and demurrage charges associated with the containers;

6. Whether the defendant is liable to the plaintiff for special damages in respect of cancelled orders and lost business;

7. In respect of all damages, the quantum of damages that may be awarded to the plaintiff, if any; and

8. What order is to be made as regards costs.

In my view, the issue that falls for determination in this trial, in the main, is whether or not the defendant's conduct was culpable under the lex Aquilia. If so, what damages did the plaintiff suffer?

I narrow down the issues in this manner as, in my view, resolution of issues one to four, as settled at the pre-trial conference, will not resolve the dispute between the parties.

Having listened to the evidence of the parties, it appears clear to me that while the declarator by HUNGWE J specifically dealt with the four containers in respect of which a dispute had been formally declared, his ruling, and that of the Supreme Court on the matter would bind the parties in the importation of similar chemicals and would thus have a direct bearing on the importation of the ten containers.

I also note that while the ten containers may not have been formally presented to the defendant for clearance, the parties were locked in a dispute over the four containers in respect of the duty payable, and, on a practical note, the defendant was most unlikely to accept duty at the lower tariff pending determination of the litigation that was then unfolding between the parties.

The parties are all familiar with the procedures that have to be observed in relation to the importation of products and an answer to this question will, in my view, not bring us nearer to the resolution of the matter than we were when we started off.

I further form the view that the plaintiff has not approached this court because the defendant allegedly did not clear the ten containers of the chemical. The dispute between the parties relates to the defendant's insistence on the incorrect rate of duty after the High Court ruling, and, the issue that arises, in my view, is whether such insistence, including the unsuccessful approach to the Supreme Court on the issue is culpable and renders the defendant liable to the plaintiff in delict.

I now return to the issues as I see them.

In my view, the plaintiff's claim could have been pleaded with greater clarity to reveal the plaintiff's cause of action against the defendant. I must confess, that, I am at a loss as to the cause of action that the plaintiff is raising against the defendant. I had hoped that the cause of action would become clear with the leading of evidence and the final submissions by counsel in the matter.

Unfortunately, it has not, as I shall show below.

The plaintiff has pleaded, in its declaration, that the defendant acted wrongfully against the plaintiff, leading to the plaintiff incurring certain losses.

Reading through the plaintiff's declaration, I discern three possible actions by the defendant that the plaintiff appears to be terming “wrongful”:

(i) Firstly, the plaintiff alleges, in paragraph 4 of the declaration, that the defendant acted wrongfully and unlawfully when it demanded duty for the first four containers at 25%.

(ii) Secondly, it is alleged, in paragraph 6, that the defendant acted wrongfully and unlawfully and with malice when it noted an appeal against the decision of this court.

(iii) Finally, the plaintiff alleges, in paragraph 7, that the defendant acted wrongfully by refusing to clear the ten containers on duty other than the erroneously calculated 25%.

As pleaded above, the plaintiff alleges wrongful action leading to an economic loss without grounding its claim in the lex Aquilia that requires a mental element in the form of negligence or dolus before liability can be founded.

It is my understanding of our law of delict that actions under the lex Aquilia are meant to compensate the plaintiff for the damages occasioned to him or her by the wrongful act attributable to the defendant's fault. Thus, for a successful prosecution of a claim under the action, a plaintiff must prove a wrongful act by the defendant, patrimonial or economic loss, and fault on the part of the defendant.

It is common cause that the plaintiff has not pleaded that the defendant acted negligently in the circumstances of this matter. No particulars of the negligence are pleaded. The plaintiff has not specifically pleaded that the defendant acted intentionally and that it intended to cause loss to the plaintiff by its actions.

It is trite, in my view, that in an action founded on the lex Aquilia, the mental element status of the defendant must be specifically pleaded so that the defendant knows the case that it has to meet. Lack of such particularity, in my view, is fatal to the plaintiff's claim as it does not disclose the plaintiff's cause of action.

On this basis alone, I would absolve the defendant from the instance.

However, I am somewhat handicapped by two events that did not occur in this matter:

(i) Firstly, the defendant did not except to the plaintiff's pleadings for the cause of action to be crystallized before the defendant pleaded thereto.

(ii) Secondly, the matter proceeded through a pre-trial conference where the parties appeared to have been agreed that what was being pleaded was the lex Aquilia and the real issue for determination was whether the defendant was liable to the plaintiff for the pure economic loss that resulted from the defendant's actions.

It is true, in practice, that evidence led at the trial to prove culpa under the lex Aquilia invariably proves the wrongfulness of the conduct: see Van Der Eeecken v Salvation Army Property Co and Another 2008 (4) SA 28 (T)…,.

However, the correct legal position, in my view, is that culpa, in the form of negligence or dolus, like wrongfulness, is an essential requirement for liability under the Aquilian action. While culpable conduct causing harm is not actionable unless it is also wrongful, conduct that is not negligently or intentionally caused but that results in harm is equally not actionable unless there was a duty to prevent the occurrence of harm to the plaintiff. Where the defendant owes the plaintiff no legal duty, there is no wrongfulness. This means that despite the existence of blameworthy conduct on his or her part, the defendant enjoys immunity against liability for damages resulting from such conduct.

I will therefore proceed to examine the evidence that was led at the trial to assess whether the evidence establishes both the culpa and the wrongfulness.

As indicated above, the plaintiff did not plead negligence. Similarly, the tenor of the evidence led at the trial was not suggestive of any negligent conduct on the part of the defendant.

The essence of Joseph Chikwana's evidence was to the effect that the defendant simply refused to release all the containers of chemicals on duty other than at the wrongly calculated 25%. He did not proceed to suggest that such conduct by the defendant in this regard was negligent in any respect.

In his evidence in chief, the plaintiff's main witness did not at all testify as to the defendant's state of mind in refusing to release the containers of the chemicals at 5% duty. It was only in answer to a question put to him in cross-examination that the witness was drawn into testifying that the actions by the defendant were malicious and deliberate although the plaintiff had no complaints to make against the employees of the defendant.

One clearly discerns a contradiction in the evidence so elicited from the witness.

It is common cause that the defendant acts though the agency of its employees. and, if the plaintiff had no complaints about the manner in which the defendant's employees had handled the matters, it is difficult to envisage in what way the defendant acted maliciously and intentionally against the plaintiff.

On the basis of the above, I would find that the plaintiff did not lead any evidence to show that the defendant's conduct, even if found wrongful, was accompanied by such a mental element as to find liability under the lex Aquilia.

In his written submissions, the plaintiff's counsel makes a sweeping statement to the effect that the conduct by the defendant was in breach of a clear statutory provision and that such breach was without just cause. Counsel proceeds to submit, that, at the very least, this constituted gross negligence.

With respect, I find myself unable to agree.

Firstly, I am not convinced that setting the tariff using an incorrect classification was breach of the duty imposed upon the defendant by statute. Secondly, I am not persuaded that making an error in calculating duty is per se gross negligence.

In any event, as discussed above, the plaintiff did not plead negligence and did not lead any evidence to reveal any negligent behaviour on the part of the defendant. It is therefore idle of counsel to make such a submission in the circumstances.

Again, on the basis that the plaintiff failed to lead any evidence upon which I can find that the defendant behaved towards the plaintiff with the requisite mental element to found liability under the lex Aquilia, I would absolve the defendant from the instance on this basis alone.

It appears to me that the plaintiff may have proceeded under the incorrect belief that wrongfulness is similar to and the same as culpa and that pleading wrongfulness on its own suffices to satisfy the requirements of the Aquilian action.

It is not.

The two are separate requirements that have to be satisfied in each suit although the evidence led to prove one may be used to prove the other. I can do no better than associate myself with the observations of SCOTT JA in Gouda Boerdery Bk v Transnet Ltd 2005 (5) SA 490 (SCA) when he had the following to say…,:

“It is now well established that wrongfulness is a requirement for liability under the modern Aquilian action.

Negligent conduct giving rise to loss, unless also wrongful, is therefore not actionable.

But, the issue of wrongfulness is more often than not uncontentious as the plaintiff's action will be founded upon conduct which, if held to be culpable, would be prima facie wrongful.

Typically, this is so where the negligent conduct takes the form of a positive act which causes physical harm. Where the element of wrongfulness gains importance is in relation to liability for omissions and pure economic loss. The inquiry as to wrongfulness will then involve a determination of the existence or otherwise of a legal duty owed by the defendant to the plaintiff to act without negligence: in other words to avoid negligently causing the plaintiff harm. This will be a matter for judicial judgment involving criteria of reasonableness, policy, and, where appropriate, constitutional norms.

If a legal duty is found to have existed, the next inquiry will be whether the defendant was negligent.

The test to be applied will be that formulated in Kruger v Coetzee, involving as it does;

(a) First, a determination of the issue of foreseeability; and

(b) Second, a comparison between what steps a reasonable person would have taken and what steps, if any, the defendant actually took.

While conceptually the inquiry as to wrongfulness might be anterior to the enquiry as to negligence, it is equally so that without negligence the issue of wrongfulness does not arise; for conduct will not be wrongful if there is no negligence.

Depending on the circumstances, therefore, it may be convenient to assume the existence of a legal duty and consider first the issue of negligence. It may also be convenient, for that matter, when the issue of wrongfulness is considered first, to assume for that purpose the existence of negligence.

The courts have, in the past, sometimes determined the issue of foreseeability as part of the inquiry into wrongfulness, and, after finding that there was a legal duty to act reasonably, proceeded to determine the second leg of the negligence inquiry, the first (being foreseeability) having already been decided.

If this approach is adopted, it is important not to overlook the distinction between negligence and wrongfulness.”…,.

Assuming that I have erred in finding that the plaintiff fatally failed to plead and prove culpability on the part of the defendant, I now turn to consider whether the conduct by the defendant was wrongful.

In my view, the issue of wrongfulness in this matter takes centre stage as the loss that the plaintiff seeks to be redressed is pure economic loss. There is thus no physical damage to the property of the defendant giving rise to the loss, which, historically, would have led to the conclusion that the action of the defendant was prima facie wrongful if it was culpably caused: see Gouda Boerdery Bk v Transnet Ltd 2005 (5) SA 490 (SCA).

The inquiry as to wrongfulness in situations where the plaintiff has suffered pure economic loss as occurred in this matter involves a determination of the existence or otherwise of a legal duty owed by the defendant to the plaintiff to act without culpa.

It has been held in a number of authorities, that, the inquiry into whether or not the defendant owed the plaintiff a legal duty will be a matter for judicial judgment involving criteria of reasonableness, policy, and, where appropriate, constitutional norms.

This has been a part of our law since the courts in this jurisdiction accepted that the Aquilian action was wide enough to apply to claims for pure economic loss.

Thus, in Zimbabwe Banking Corporation v Pyramid Motor Corp 1985 (4) SA 553 (ZSC)…, GUBBAY JA…, had this to say:

“There is no general principle of delictual liability for economic loss negligently caused. It must have been caused wrongfully as well as culpably. There must have been an infringement of a legally protected right, the determination of which requires the exercise of a judicial value judgment embracing all relevant facts, including matters of policy: see Administateur, Natal v Trust Bank van Afrika Bpk 1979 (3) SA 824 (A) at 833D-H. For whereas physical injury to person or corporeal property is prima facie unlawful, causing economic loss is not.”

In casu, it is my view that the plaintiff approached this matter without realizing that its claim called for more than evidence of what transpired between the parties.

Having approached the court for an order redressing pure economic losses, it fell upon the plaintiff to persuade the court to make a value judgment to the effect that the defendant owed the plaintiff a duty not to cause it loss through the incorrect calculation of duty.

This is a novel duty to which the Aquilian action has not yet been extended by our courts.

As such, great care had to be taken in leading evidence that would persuade the court to hold that the extension of the action to cover such incidences is proper and is in accordance with policy.

No evidence was led before me as to what a reasonable collector of revenue would have done in the circumstances and whether to hold the defendant liable in the circumstances of the matter will be promotive of any social or economic norm that is consistent with current policies on revenue collection.

Speaking for myself, I am reluctant to extend the action to hold liable a public body, like the defendant, for an error that occurs during the discharge of its statutory functions.

I am also reluctant to hold liable a defendant for pursuing a constitutional right in unsuccessfully noting an appeal to the Supreme Court as to do so might be to stifle, and, in some cases, completely negate such right.

But, these are just my views arrived at without the aid of argument from counsel.

In reaching this conclusion, I have been influenced by the remarks by GUBBAY JA…, in Zimbabwe Banking Corporation v Pyramid Motor Corp 1985 (4) SA 553 (ZSC)…, when he had this to say:

“Mr Chaskalson is, of course, correct in cautioning that, in determining whether any norm of behaviour causing economic loss should be characterised as wrongful, the adoption of a conservative approach is required: see the Lillicrap case supra at 500D-E and the authorities there-cited.

Certainly, there is need for 'care and circumspection' in the ascertainment of whether a particular type of action is one which will be confined within reasonable and manageable bounds and is not fraught with what aptly has been described as 'overwhelming potential liability'.

Each case must be assessed pragmatically on its own facts and merits, with primary weight being laid upon the policy of the law.

The Court must ask itself whether, paying due and proper regard to the notion of justice and the interests of the litigants balanced against the community as a whole, it is socially desirable to impose liability in the particular circumstances: see Tobacco Finance (Pvt) Ltd v Zimnat Insurance Co Ltd 1982 (3) SA 55 (ZH) at 61F-H.”

On the basis of the above, I would hold that the conduct complained of was not wrongful in the circumstances even if it was committed with the requisite culpability, which I have already found above not to have been proved.

In view of the finding that I make on the liability of the defendant, I do not think it is necessary that I make a finding on the quantum of damages sought by the plaintiff in this matter. However, in keeping with the practice of this court, I shall proceed to do so for the benefit of the Supreme Court in the event that my decision is appealed against.

It has been my finding above that the evidence of the plaintiff's two witnesses, in respect of the alleged loss, was inconclusive in that, under cross-examination, the witnesses admitted that the claims by the plaintiff had been calculated without taking into account certain exigencies and variables such as changing exchange rates and fluctuating costs of production. As such, it is my view that the amounts claimed by the plaintiff in its declaration are somewhat exaggerated and are not a correct reflection of the loss actually suffered by the plaintiff.

In the result, I make the following order:

1. The defendant is absolved from the instance.

2. The plaintiff shall meet the costs of the defendant.

HH71-09 : AGRO CHEM DEALERS (PVT) LTD vs STANLEY GOMO and CITY OF HARARE and RONALD AJARA and THE REGISTRAR OF DEEDS
Ruled By: GOWORA J

I do not have before me the issue of the cancellation of the agreement between the City of Harare and Agro Chem and I am mindful that it is therefore incumbent upon me to tread very carefully in this enquiry lest I compromise any future proceedings in connection with this matter….,. A court cannot resolve a dispute that ...

HH47-10 : MUNYARADZI CHIKUMBU vs VIOLET NHAMO
Ruled By: BERE J

It is important to note that before this matter was set down for trial the parties had filed a joint pre-trial conference minute to try and guide the court at the trial itself, and the three issues agreed for determination were basically the following - “(a) Whether or not the said motor vehicle was indeed ...

HH24-12 : REDAN PETROLEUM (PRIVATE) LIMITED vs GERALD ASHLEY MUZVIDZWA
Ruled By: MTSHIYA J

I note that in its submissions the plaintiff sought to have the property executable. That request is not in line with plaintiff's claim in the summons. The amendment cannot be accepted at this stage. The request cannot, therefore, be granted.

Appealed
SC36-12 : RESERVE BANK OF ZIMBABWE vs CAFCA LTD
Ruled By: MALABA DCJ, ZIYAMBI JA and OMERJEE AJA

This is an appeal against the judgment of the High Court granting with costs a claim by the respondent for:

(i) Payment of the sum of US$750,000.

(ii) Interest tempore morae at the London Interbank rate for United States dollars, at 3.5% per annum, from 1 September 2005 to the date of payment.

(iii) Costs of suit.

The factual background to this dispute, which is largely common cause, may be summarised as follows:

The appellant is a financial institution. The respondent is a manufacturer and supplier of an exclusive range of cables for the transmission of communication and distribution of energy used by such entities like the Zimbabwe Electricity Supply Authority, the Rural Electrification Agency, and Tel One.

The respondent's business caters for both domestic and export markets. As at end of 2003, 50% of its sales volumes were largely in exports.

In 2004, the respondent's business experienced slow growth due to inflation and the scarcity of foreign currency. During that year, the respondent's representatives met with the appellant's Governor, Dr. Gideon Gono, with a view of securing foreign currency to purchase imported inputs in order to sustain its business.

Dr Gono gave an oral undertaking to avail US$150.000 per week, to the respondent, from the foreign currency auction system.

In January 2005, the respondent began to receive the said sums of foreign currency against payment of a Zimbabwean dollar equivalent to the appellant via a commercial bank.

The special arrangement was extended to thirty-five (35) other companies selected as the recipients of foreign currency.

This allocation of US$150,000 was, with effect from 16 June 2005, increased to US$250,000.

Weekly allocations, at that new level, were made to the respondent until the end of July 2005.

In August 2005, the respondent made three transfers of money, in Zimbabwe dollars, to the appellant, for the equivalent of the amount of US$750,000. The payments were accompanied by details of external creditors to be paid by the defendant.

The appellant did not pay the foreign currency.

Its position, at the trial, was that foreign currency could not be paid because it was not available.

The respondent's witness, Mr. Turina, confirmed, in evidence, that, the appellant indicated that it did not have foreign currency for disbursement.

On 2, 11 and 19 August, respectively, the respondent made payments, in Zimbabwe dollars, equivalent to US$750,000.

In respect of these three payments, the respondent would receive a phone call from the appellant before making payment.

On 1 August, it received a call from the appellant before depositing a sum of Z$4,438,294,052=45 with the appellant the following day.

With regard to the second transaction, the respondent received a phone call on 5 August. In response thereto, it deposited the sum of Z$4,511,254,261=47 with the appellant on 11 August.

On the third occasion, the telephone call was made on 17 August. The respondent deposited an amount of Z$4,587,562,920=90 with the appellant on 19 August.

Bigboy Masoso, who was the Division Chief Treasury Officer testified on behalf of the appellant to the effect, that, the disbursement of foreign currency could only be made if the front office of the appellant made the funds available. He also stated that the telephone calls made to the respondent, and other companies, were meant to provide quotations to secure constance of the exchange rate.

In the affidavit filed of record, Dr Gono stated as follows at paragraph four thereof as follows:

“I advised them that the Bank would endeavour to source foreign currency for the plaintiff to the tune of USD$150,000 per week in recognition of the plaintiff company's strategic role in the national economy. No formal binding agreement was concluded in this regard and it was never the common understanding of the parties that we were concluding a formal agreement.”

At paragraph six of the affidavit, he stated as follows:

“As a result of further representations made by the plaintiff, the defendant increased the weekly allocation of foreign currency to the plaintiff to USD250,000 from or about the 8th June 2005. Again, it was never the common understanding and contemplation of the parties that they were entering into a formal binding transaction, hence no formal contractual documentation was executed.”

Again, at paragraph seven of his affidavit, he stated as follows:

“I am advised, that, during the month of August 2005, plaintiff made payments totalling Z$13,535,110 being the quoted equivalent at the auction rate of USD750,000 which the defendant had hoped to pay to the plaintiff. Due to many other competing and pressing national requirements, the defendant was unable to avail the foreign currency, not only to plaintiff but to many other companies in a similar situation who then accepted an offer for immediate refund. Plaintiff declined the refund.”

Following a trial, the learned Judge found as follows at p8 of the judgment:

“However, the main issue, in my view, is whether, by allocating to the plaintiff US$150,000 and later US$250,000 from the auction system, the defendant then became obligated to release the money to the plaintiff upon payment by the plaintiff, within twenty-four hours, of the Zimbabwe dollar equivalent at the defendant's instruction.”

At p9 of the judgement, the court a quo stated as follows:

“It becomes crucial for the defendant to explain the reasons for Patience Aisam to set in motion the process, if foreign currency was unavailable. My view is simply that the allocation was only made against funds that were already available from the auction.

It is important to note that Patience Aisam spoke of 'an approved allocation and not successful bid.'

This was so because the plaintiff was on a special list that was not required to bid.

There could, in my view, be no approval or allocation of what was not already available.

Given the condition that the completion of each transaction was totally dependant upon the availability of foreign currency, the possibility of Aisam confirming allocation and asking for payment of the Zimbabwe dollar equivalent, within 24 hours, when there was no foreign currency already earmarked for the plaintiff is, in my view, very remote.”

The learned Judge, at p9, made the following finding:

“I am therefore unable to accept that the above scenario did not create binding obligations on the part of the defendant.

To that end, I am of the view, that, upon compliance by the plaintiff, a binding contract was concluded and what remained was the release of the foreign currency purchased by the plaintiff.

The case of F.C. Hume (Pvt) Ltd v Minister of Natural Resources & Tourism 1989 (3) ZLR 55 indeed supports this view.

With the plaintiff having complied with all the requirements, the contract was already in place and the defendant was obliged to meet its obligation.”

The gist of the court a quo's reasoning was that, at the time the phone calls were made to the respondent, the foreign currency to which the call related was available and the call was an offer which the respondent accepted by depositing the money, in Zimbabwean dollars, with the appellant thereby giving rise to a binding contract.

The court a quo gave judgment in favour of the respondent as sought in the summons. It is against this judgment that the appellant now appealed to this Court.

In the grounds of appeal, the appellant contends that:

1. The court a quo erred in law and fact in not making a finding that the payment by the respondent of the Zimbabwe dollars, as directed by the appellant, did not create a binding contract which was an end itself but that performance was always subject to foreign currency being available.

2. The court a quo erred in law and fact in making a finding that the communications made by Patience Aisam, on behalf of the appellant, calling upon the defendant to pay the Zimbabwe dollars, meant or was evidence that the foreign currency being allocated was available for disbursement to the respondent.

3. The court a quo erred in fact and law in not making a finding that non-availability of foreign currency made performance impossible and that the appellant was entitled to refund the respondent the money it had paid as the suspensive condition, viz, the availability of foreign currency had failed to be met.

4. The court erred in law in allowing the claim for interest and in ordering the interest to run from 1 September 2005.

The primary question to be decided by this Court is: whether or not there existed a binding contract for the disbursement of a sum of foreign currency to the respondent's creditors upon payment by the respondent of an equivalent sum in Zimbabwean currency.

The following are undisputed facts:

As a result of an approach to the appellant's Governor, Dr Gono, on 27 October 2004, for assistance in obtaining foreign currency, the respondent was granted the status of a successful bidder at the weekly foreign currency auction.

Several other companies were on this special list.

The respondent was not required to place bids at the auction but was merely telephonically advised of the agreed weekly allocations.

The practice had been successfully operational from January 2005 to July 2005.

Payment requirements were availed to the respondent who complied by effecting payment of the equivalent amount of the foreign currency in Zimbabwe dollars.

There was no formal contract between the appellant and the respondent.

The respondent was amongst a list of thirty five (35) companies on this special list who had been identified as preferential recipients of foreign currency under the arrangement.

The court a quo correctly found, that, the arrangement between the parties was premised on the availability of foreign currency. As such, no allocation could be made without the availability of foreign currency.

Indeed, both parties were aware that the arrangement for the disbursement of foreign currency was subject always to a condition that foreign currency had to be available in the first instance.

Mr Turina stated, that, due to the scarcity of foreign currency, the respondent had reached an agreement with the appellant whereby bids from the respondent would be given preferential treatment.

He confirmed that the information on the allocations was done telephonically and that once an allocation (i.e. the initial US$150,000 rising to US$250,000) was made, the respondent was required to pay the equivalent in Zimbabwean dollars.

The arrangement had worked well from January 2005 until July 2005.

In August 2005, the appellant failed to disburse US$750,000 to the respondent's customers and suppliers after the respondent had deposited with the appellant an equivalent sum, in Zimbabwe dollars, in three separate tranches.

In this regard, the import of the affidavit of Patience Aisam was that a telephone call would be made to advise of an approved application and not allocation. In effect, the approval and the actual allocation of foreign currency were distinct processes - premised on the availability of foreign currency.

It was the evidence of Patience Aisam's superior, Bigboy Masoso that payments in foreign currency would only occur if the front office availed such funds.

This testimony accords with logic and probability.

Patience Aisam was not employed in the Front Office which was responsible for the allocation of foreign currency.

The court a quo found that there existed a binding contract between the parties.

When regard is had to Dr Gono's affidavit, it is clear that he advised the respondent that the appellant would “endeavour” to source foreign currency for the respondent.

Such assertion does not suggest that the appellant was binding itself to provide the respondent with foreign currency on an ongoing or permanent basis.

It is not in dispute that no allocation of foreign currency was made in August 2005. According to Bigboy Masoso, the system was discontinued because there was no foreign currency.

The 24 hours notice of payment of Zimbabwe dollars was not in fact adhered to by the respondent in August 2005.

The finding by the court a quo, that, upon payment by the respondent, a binding contract was concluded, is not borne out by the evidence with regard to the payments made following telephone calls of 5 and 17 August 2005.

It is to be noted, that, there was no formal contract between the parties.

Dr Gono offered to prioritise the respondent, and other companies, in the allocation and disbursement of foreign currency.

The Court finds that when Dr Gono put in place the special arrangement, there was no intention to create a binding contract to avail foreign currency to the respondent and the other companies on the special list.

The facility was put in place, at the time, because of the acute shortage of foreign currency.

It is highly unlikely, that, given that state of affairs, Dr Gono would seek to bind the appellant to avail foreign currency to the respondent, upon payment of the local currency, when the volume of inflows of foreign currency were unpredictable.

In the circumstances, it would not be logical for Dr Gono to enter into a binding contract to supply foreign currency to the respondent on the terms suggested.

It is not without significance that 35 other companies on the special list subsequently accepted refunds of Zimbabwe dollars deposited with the appellant in August 2005.

This fact is consistent with the position that the allocation of foreign currency was conditional upon its availability at any given time.

The effect of the evidence is that the agreement for the disbursement of foreign currency was predicated upon availability of foreign currency.

It was the respondent's testimony, that, the condition that foreign currency would be availed to the respondent, subject to availability, was expressed orally by the appellant's Governor when he entertained the respondent's request to be allocated foreign currency.

The agreement to accord the respondent preferential treatment, in the disbursement of foreign currency, together with 35 other companies, did not create a binding and enforceable contract between the parties.

The performance of the appellant's obligation, to provide foreign currency, was always qualified or conditional upon its availability.

Reliance by the respondent on previous dealings did not, in the circumstances, give rise to binding contractual obligations between the parties.

The parties understood, that, in the absence of foreign currency, there was no contract between them.

The Court is satisfied, that, the evidence does not establish that a binding contract existed between the parties regarding the disbursement of foreign currency, either formally or on past practice, upon payment by the respondent of the local currency equivalent.

It was found, by the court a quo, that, the Deputy Governor, Mr Ncube, gave an undertaking to make available the US$750,000 to the respondent as and when foreign currency became available.

The Deputy Governor's position was not part of the respondent's case on the pleadings in the court a quo.

The finding by the trial court that Mr Ncube's testimony, that he had promised the respondent that it would be paid the sum of US$750,000, was binding upon the appellant is a misdirection.

HH165-12 : MINING INDUSTYRY PENSION FUND vs FARTINGALE DESIGN (PVT) LTD AND LETINA UNDENGE
Ruled By: KUDYA J

I have grappled with the issue of whether I should determine the case on the basis of defences raised in evidence but which were not pleaded.The parties are bound by their pleadings. In.it was stated: "The object of pleadings is to define the issues; and parties will be kept strictly to their pleas where any departure would cause ...

I have grappled with the issue of whether I should determine the case on the basis of defences raised in evidence but which were not pleaded.The parties are bound by their pleadings.

In.it was stated:

"The object of pleadings 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 these limits the court has wide discretion."

In.NEWTON-THOMPSON J stated that:

"That the court is not bound by the strict pleadings when the parties themselves have enlarged the issues is beyond argument."

Further in.SCHREINER JA stated:

"Where there has been full investigation of a matter, that is, where there is no reasonable ground for thinking that further examination of the facts might lead to a different conclusion, the Court is entitled to, and generally should, treat the issue as if it had been expressly and timeously raised. But, unless the Court is satisfied that the investigation has been full, in the above sense, injustice may easily be done if the issue is treated as being before the Court. Generally speaking, the issues in civil cases should be raised on the pleadings and if an issue arises which does not appear from the pleadings in their original form an appropriate amendment should be sought."

Lastly, in., where all the above cases are cited, GARWE J stated:

"Although there is no specific claim in the plaintiff's declaration for payments of the sum representing her contribution during the subsistence of the union, this was identified during the pre-trial conference as one of the issues for determination at the trial. The extent to which the plaintiff, and the defendant for that matter, contributed was fully canvassed during the trial. In these circumstances, it is permissible for a court to determine such an issue."

In the present matter, the defendants did not specifically plead set-off of the debt as at the date of cancellation.The only document in which set-off was implied was in the letter of 16 October 2010 written to Gomba by the second defendant in response to the letter of 13 July 2010 that cancelled the lease. She wrote:

"I am a woman who has been paying rentals after sweating hard in these harsh economic conditions. I have already suffered about $30,000.00 in rental payments to MIPF before operating. After putting the premises in good order to conduct business, I am facing threats of eviction."

In their respective testimonies, both the second defendant and Munetsi stated that Gomba agreed, on behalf of the plaintiff, to either reimburse the first defendant for the renovations or credit the cost to the rent account. It was their uncontroverted evidence that they held discussions with both Gomba and the Chief Executive Officer of the plaintiff.on the reimbursement.The issue was fully ventilated in evidence by the defendants.

It was conceded that the plaintiff did not hand over the leased property in good order.The concession confirmed the truthfulness of the evidence of the second defendant that Gomba authorized the first defendant to renovate the property in lieu of either reimbursements or set-off with future rent obligations.

I am satisfied that even though the issue of set-off was not specifically pleaded, it was fully ventilated at the trial. I am at liberty to employ it in the resolution of the issues referred to trial.

HH12-09 : BGM TRAFFIC CONTROL SYSTEMS vs THE MINISTER FOR TRANSPORT AND ZIMBABWE NATIONAL ROADS ADMINISTRATION AND THE CITY OF HARARE
Ruled By: MAKARAU JP

In application proceedings between the parties, the respondent., was served with the applicant's heads of arguments...,.. In terms of the Rules of this Court the respondent had to file its heads within ten days of being served with the applicant's heads. No heads were filed on behalf of the first respondent until the morning ...

HB04-12 : TREZIAH NDLOVU vs SARAH MLANGENI
Ruled By: KAMOCHA J

On 14 May 2008 Sarah Mlangeni applied for and was granted an order in the following terms: “It is ordered that:- 1. The defendant's plea be and is hereby struck off. 2. Plaintiff be and is hereby granted leave to set this matter down on the unopposed roll. 3. Defendant be and is hereby ordered to pay today's costs.” The order was granted ...

On 14 May 2008 Sarah Mlangeni applied for and was granted an order in the following terms:

“It is ordered that:-

1. The defendant's plea be and is hereby struck off.

2. Plaintiff be and is hereby granted leave to set this matter down on the unopposed roll.

3. Defendant be and is hereby ordered to pay today's costs.”

The order was granted after Treziah Ndlovu, the applicant in this case, who was the defendant in the main case, and her legal practitioners had failed to attend a pre-trial conference after proper service of the notice to attend the pretrial conference was effected on them.

Following the above order, Sarah Mlangeni (herein referred to as “Sarah”), on 26 June 2008, sought and was granted a default judgment in these terms:

“It is ordered that:-

Judgment be and is hereby entered in favour of the plaintiff in the following terms;

1. Defendant be and is hereby ordered to deliver to applicant 27 heads (sic) of cattle together with their progeny failing which the Deputy Sheriff, Bulawayo be and is hereby authorized and directed to seize same and deliver to plaintiff.

2. Defendant to pay the costs.

Alternatively

3. Judgment be and is hereby granted to plaintiff against defendant in the sum of $54 trillion together with costs and interest thereon from the date of judgment.”

The genesis of this matter is briefly the following.

On 2 August 2006, Sarah Mlangeni issued summons out of this court claiming delivery of 27 heads of cattle together with its progeny which the defendant, Treziah Ndlovu (“Treziah”) had allegedly registered in her name fraudulently and still had them in her possession.

Alternatively, she claimed payment of the sum of $1,620,000,000 Zimbabwe dollars being the value of the plaintiff's cattle unlawfully appropriated by the defendant plus interest thereon from January 1999 at the prescribed rate.

The defendant had to meet the costs of suit.

In her declaration, the plaintiff alleged that sometime in the 1940s she had inherited a number of cattle from her grandmother, Hubayi Gumbo. She, at some stage, entered into an agreement of loan with Juqu Ndlovu of the said cattle under the customs and usages of the Ndebele people known in Sindebele as “amasiso”. She and the late Juqu Ndlovu enjoyed a cordial relationship and she would from time to time receive proceeds of sale of cattle from Juqu after instructions to sell by her. Juqu Ndlovu was the husband of the defendant. She averred that she kept on visiting Jugu Ndlovu's homestead in order to see him and her cattle and sold some of them from time to time and gave him some money thanking him for keeping the cattle for her. The defendant had always known about the arrangement.

Trouble started after the death of Juqu Ndlovu in 1987. The plaintiff made several visits to the defendant's homestead with a view to make new arrangements about the “amasiso” cattle but got no joy.

In the 1990s she went to the defendant's homestead to claim the “amasiso” cattle without success. Initially, the defendant told her that her children were not available, she therefore could not release the cattle in their absence. She would give the plaintiff a new date on which to return but each time she returned the defendant would have one excuse after the other for not releasing the cattle.

While that was happening the defendant registered the cattle into her own name in the year 1996. The plaintiff claimed that her cattle were 27 in number when she instituted proceedings in the Customary Law Court in 1999. The matter has been in the courts ever since and has ended up in this court.

In her plea the defendant had this to say.

She denied that the plaintiff inherited any cattle from Hubayi Gumbo in the 1940s. She went on to deny that her late husband had entered into the “amasiso” agreement with the plaintiff. She further denied that the plaintiff used to go to sell some cattle from time to time and thanking her husband by giving him money as a sign of gratitude for keeping the cattle. She in fact denied being aware of such an arrangement and averred that the arrangement never existed at any stage.

She flatly denied ever fraudulently registering the plaintiff's cattle into her name and averred that the cattle transferred from her husband's stock card into her name were hers. She accordingly denied ever possessing the plaintiff's cattle.

It was her story that if the cattle were brought to her late husband in the 1940s that was long before she got married to him in 1959. She was not yet a daughter-in-law of the Juqu Ndlovu family. She therefore could not be called to account for the cattle which she never had possession of.

In her plea, she merely claimed ownership of cattle that were transferred from her late husband's stock card into her name without stating how she had acquired them. It was only in her summary of evidence that she mentioned that the cattle she currently had were acquired through the sale of grain. This was a material point in her case as the plaintiff was alleging that those were “amasiso” cattle.

The defendant should have raised that point in her plea. Mentioning that material point belatedly seems to suggest that it was an after thought.

SC10-09 : FARAI NIGEL CHITSINDE vs NYASHA AMANDA CHITSINDE AND STANNY MUSA
Ruled By: GARWE JA

The court a quo is also criticized for mero motu raising the issue of illegality. Our law is clear that a court can do so. On this issue, the applicant has no prospects of success on appeal.

HH71-10 : FELISTAS MUTSETA vs ELLIOT ENOCK MUTSETA
Ruled By: MAVANGIRA J

The defendant's demeanour before the court was also pervaded with an aura of self-righteousness, and a lack of any acknowledgement on his part that his conduct was incompatible with the tenets of a civil marriage. He rather sought to hit back at the plaintiff by calling her a drunk yet this was neither pleaded ...

HB01-09 : JOHN MLILO vs TSEPO MOLISA
Ruled By: KAMOCHA J and NDOU J

It is contended that the trial magistrate erred in failing to address the issue of the $2,400,000.00 (old currency) refunded by the appellant to the respondent. It is also contended that the judgment of the trial magistrate is fundamentally flawed as it seeks to give the respondent both the four herd of cattle and ...

HH37-08 : MOVEMENT FOR DEMOCRATIC CHANGE and MORGAN TSVANGIRAI vs CHAIRPERSON, ZIMBABWE ELECTORAL COMMISSION and CHIEF ELECTIONS OFFICER, ZIMBABWE ELECTORAL COMMISSION
Ruled By: UCHENA J

In response to counsel for the applicants submissions on the merits, counsel for the respondents raised several procedural issues which he should have raised as preliminary issues.

HH47-08 : TSITSI MUZENDA vs PATRICK KOMBAYI and ZIMBABWE ELECTORAL COMMISSION
Ruled By: KUDYA J

At the management meeting held on 21 May 2005, four preliminary issues were referred to trial. These were; (i) Whether or not the petition was served on time;(ii) Whether there was proper service on the second respondent;(iii) Whether security for costs was provided; and(iv) Whether or not the second respondent ...

HH45-08 : HILLARY SIMBARASHE vs ZIMBABWE ELECTORAL COMMISSION and MABEL CHINOMONA
Ruled By: KUDYA J

At the management meeting that was held on 21 May 2008, three preliminary issues were referred to trial. They were framed as follows:1. Whether the petition is out of time, and, if so, whether this is fatal to the petition.2. Whether the failure to file security for costs timeously renders ...

At the management meeting that was held on 21 May 2008, three preliminary issues were referred to trial. They were framed as follows:

1. Whether the petition is out of time, and, if so, whether this is fatal to the petition.

2. Whether the failure to file security for costs timeously renders the petition void.

3. Whether the first respondent was properly joined as a party.

THE FACTS

The brief facts in this matter are as follows:

On 29 March 2008, the harmonized Presidential, Parliamentary and Council elections were held in Zimbabwe. Hillary Simbarashe, the petitioner, stood as an independent candidate for the House of Assembly seat in the Mutoko North constituency. The elections were run and conducted by the Zimbabwe Electoral Commission, the first respondent. Mabel Chinomona, the second respondent, of the Zimbabwe African National Union (Patriotic Front) ZANU (PF) was one of the candidates who battled it out with the petitioner. On 31 March 2008, she was declared the winner.

The petitioner was unhappy with the pre-election and post-election environment as well as the manner in which the election was conducted. Accordingly, he lodged the present petition with the Registrar on 16 April 2008.

The date of service was not disclosed, but, the second respondent filed her opposing papers on 15 May 2008. She, amongst other things, raised the first two preliminary issues referred for trial.

The first respondent opposed the petition on the basis of misjoinder, hence the third issue.

When I set down the matter for hearing, I directed the parties to furnish me, at the hearing, with information from the Zimbabwe Electoral Commission indicating the date on which the result in the last constituency for election to the House of Assembly was announced by the Constituency Election Officer for that constituency.

This was not done.

I, however, proceeded to hear the matter on the understanding that I would deliver this judgment after that information had been availed. It was only provided by counsel for the first respondent in the morning of 6 June 2008.

He produced a document which has three columns. The first column indicates the province in which the House of Assembly seat is found, the second indicates the constituency, and the last the date on which the V23 Form was signed by the Constituency Elections Officer. The signature is appended on the date on which the Constituency Elections Officer declares the winning candidate. The last V23 Form was signed on 4 April 2008 for the Kariba constituency.

The parties were therefore agreed that the declaration of the result in the last constituency was made on 4 April 2008....,.

Counsel for the second respondent submitted that the petitioner is non-suited for lodging the petition outside the 14-day period. He computed the period from 31 March 2008, the date on which the second respondent was declared the winner.

Counsel for the petitioner, on the other hand, contended that the petition was not filed out of time.

He contended, in his heads of argument, that the second respondent had not shown that the result of the election had been notified in terms of the Electoral Act [Chapter 2:13] hereinafter referred to as the Act. He based this argument on the provisions of section 67 and 68 of the Electoral Act.

In his view, the effect of these provisions is to establish the date on which the winner is officially declared as such in an election of this kind.

This argument was made despite the petitioner's averment, in his founding affidavit, that the second respondent was duly declared the winner on 31 March 2008.

Clearly, on the basis of this averment, his line of argument was unsustainable.

HH01-09 : CONSTANTINOS BAKARIS vs GEORGE KATTAVENOS
Ruled By: KUDYA J

The plaintiff's son accepted that the claims that he sought in his evidence in chief on improvements, rentals, and on the missing movables that he alleged had either been sold, or misappropriated, by the defendant, had not been pleaded.

HH01-09 : CONSTANTINOS BAKARIS vs GEORGE KATTAVENOS
Ruled By: KUDYA J

Counsel for the plaintiff contended that in arriving at an equitable partition of the joint property, I was obliged to consider the expenses incurred, and the profits, benefits, and other advantages missed by the plaintiff in the joint property, notwithstanding that these had not been specifically pleaded. Counsel for the defendant disagreed. She urged me ...

Counsel for the defendant disagreed. She urged me to disregard them on the ground that these had not been pleaded, and as a result were prejudicial to the defendant.

Counsel for the plaintiff relied on the sentiments expressed by KLEYN and BORAINE in Silderberg and Schoeman's The Law of Property..., in the last two sentences of the quotation cited above and The Laws of South Africa (LAWSA)..., which are both to the effect that the actio communi dividundo may be used to claim for adjustments for profits enjoyed and expenses incurred.

It is axiomatic that pleadings must set out the cause of action in clear and concise language. In his declaration, the plaintiff sought termination of joint ownership only. He did not seek ancillary relief for the four properties in question. He was the one who dragged the defendant to court. He was aware of what it is that he wanted from the defendant. He was aware, as shown by his initial summons, that he had to set out separate claims for rentals and any other ancillary claims he may have sought. In the original summons, he did just that in respect of his claims on Lot 3A of York, Goromonzi District, which were settled out of court...,.

By his failure to plead the ancillary relief that he now seeks, he misled the defendant as to the nature and extent of his claim.

After all, in our practice, a claim is set out in the declaration, and not in evidence. This is done to notify the defendant of the nature of the claim against him so that he can respond to it appropriately. The defendant did not prepare his defence with the ancillary claims in mind. He was, therefore, prejudiced in the conduct of his defence. In any event, I understood the textbook writers, referred to by counsel for the plaintiff, to say that a joint owner may use the actio communi dividundo to seek partition and/or adjustments. In my view, the use of the word “claim” by the authors underscores the need for the plaintiff to specifically plead ancillary claims that he set out in evidence.

Amler's Precedents of Pleadings, 5^th Ed..., on the authority of Robson v Theron 1978 (1) SA 841 and Rademeyer v Rademeyer 1968 (3) SA 1 (C) underscored the need to claim for the ancillary relief that the plaintiff sought.

Accordingly, I agree with counsel for the defendant that, as those claims are improperly before me, I cannot take them into account in the partitioning of the four properties in question...,. The plaintiff proved to be his own worst enemy by failing to plead this adjustment.

HH99-09 : ALSPITE INVESTMENTS (PRIVATE) LIMITED vs TENDAYI WESTERHOFF
Ruled By: MAKARAU JP

The defendant was married to one Clemens Westerhoff in terms of the marriages Act [Chapter 5.11]. The marriage was dissolved by this court on a date that is not readily ascertainable, and is, any event, immaterial for the purposes of this trial. During the subsistence of the marriage, the parties had acquired an immovable property called Stand ...

During the subsistence of the marriage, the parties had acquired an immovable property called Stand 491 Mount Pleasant Township 13 of Lot 33 of Mount Pleasant. This they set up as the matrimonial home. Title in the property was held freehold by a company called Westerhoff Investments (Private) Limited. It is common cause that the parties regarded the company as their joint alter ego, set up primarily for the purposes of holding title in the property.

Prior to divorce, and with the assistance of the judge who presided over a pre-trial conference in their matter, the parties settled as between themselves, a consent paper, which disposed of the issues of paternity and maintenance for the minor child of the marriage and the distribution of the joint estate. The consent paper was, at the time of the divorce, incorporated into and became part of the divorce order.

Regarding the fate of the matrimonial home, the court ordered as follows, following the wording of clause 5 of the consent paper:

“5. After the results of the paternity tests, the following scenario will obtain:

(a) The property known as No.29 Morningside Drive, Mount Pleasant, Harare, shall be valued for commercial purposes and the value shall be divided in such a manner that:

(i) If the plaintiff is the natural father of the minor child, plaintiff gets a 40% share, the defendant a 40% and the minor child 20% share, and the defendant shall pay to the plaintiff such amount as may be the difference between the plaintiff's 40% share and the sum of $110 million which is the lump sum payment for the maintenance of the minor child in full and final settlement as provided for in clause 2 hereof; and

(ii) If the plaintiff is found by results of the tests not to be (the) natural father, then the ratio shall be 60% for the plaintiff and 40% for defendant.

(b) The valuation provided for in clause 5(a) hereof shall be conducted by an independent valuer appointed by the Master of the High Court from his list and such valuation shall be conducted and concluded within 7 days of receipt by plaintiff (who shall serve the results on the defendant's legal practitioner within 7 days of receipt of them) of the results of the valuation.

(c) The costs of the valuation shall be borne by plaintiff and defendant in the ratio of 50% plaintiff and 50% defendant. The valuation costs shall be paid for in full by plaintiff to facilitate the process and he shall be refunded his share by defendant at the time that defendant pays what is due to plaintiff either in terms of clause 5(a)(i) or clause 6.

(d) Should the defendant fail to pay the amount payable to plaintiff within 12 months of the date of valuation, then, and in that event, and without notice to defendant, the plaintiff shall be entitled to sell the immovable property, and from the proceeds pay $110 million as provided for in clause 2, to defendant for the minor child and 40% of the proceeds to the defendant as her share. In a sale in terms of this clause, the defendant herein irrevocably appoints her legal practitioner, failing him the Sheriff or his lawful deputy to sign all documents necessary to effect the sale and resultant transfer, and the rates duties and other taxes payable by reason of the transfer including transfer fees shall be paid from the proceeds of sale.

6….,.

7….,.

8….,.”

It is common cause that in January 2006, the property was evaluated for the purposes of clause 5(a) of the divorce order. This was to set the value of the property at which the plaintiff before me, then defendant, could “buy off” her former husband's share in the property to enable her to acquire joint title with the minor child in the property, to the exclusion of her former husband. The defendant had a year in which to do this and the clock started ticking against her in January 2006.

It is further common cause that the defendant failed to raise the requisite funding necessary to bring into effect the provisions of clause 5(a)(i) of the order. She could not buy out her former husband and her failure to raise the necessary funding triggered the provisions of clause 5(d) of the divorce order. In terms of this clause, the property had to be sold and the proceeds parceled out in a pre-determined ratio.

Again, it is not in dispute that in the course of time, the property was sold to the plaintiff. Transfer of title was conveyed to the plaintiff, and, in due course, the plaintiff sought the eviction of the defendant from the property.

The defendant resisted the plaintiff's claim for eviction and this is the suit that came before me.

In defending the eviction summons at the instance of the plaintiff, the defendant pleaded that the agreement of sale to the plaintiff was defective, transfer to the plaintiff was fraudulently procured and was to the prejudice of the defendant and the minor child of the marriage. In the plea, the defendant prays for the sale and subsequent transfer of the property to be set aside.

At the pre-trial conference of the matter, where, in terms of our procedures, all legal issues ought to have been crystallized, the matter was referred to trial on the following issues:

1. Whether or not the agreement of sale entered into by and between the plaintiff and Westerhoff Investments (Private) Limited in respect of the property known as No.29 Morningside Drive, Mt Pleasant, Harare, and its subsequent transfer by the latter to the former, is valid at law.

2. Whether or not the plaintiff is entitled to an order for the eviction of the defendant from the premises.

3. Who between the parties should bear the costs of suit?

In my view, the matter could have been handled differently at the pre-trial conference. Firstly, it does not appear clear to me what defect the defendant alleged was attendant upon the sale of the property and how this defect would, at law, have the effect of vitiating the contract. No further particulars were sought or given regarding this alleged defect. Secondly, the details of the alleged fraudulent transfer were not fully disclosed in the pleadings and in the summary of evidence filed on behalf of the defendant. Again, no further particulars were sought or given on this issue.

It would appear that in terms of the defendant's summary of evidence, and indeed according to the evidence led at the trial, the defendant took issue with the fact that she was not consulted on the ultimate price at which the house was sold to the plaintiff. She is of the view that the property was sold at an unreasonably low price to her prejudice as she then could not buy another property from her share of the proceeds.

I raise these issues at this stage as the issues that were pleaded and the issue upon which evidence was led differed. Had the judge presiding over the pre-trial conference been more robust and probed the defendant's defence, he or she may have assisted the parties to realize the correct issue that falls for determination in this trial. The parties may then have been more focused in the presentation of their cases. As it turned out, no fraud was proved or relied upon and the alleged defect in the agreement of sale, as pleaded, was not advanced further than the plea.

The trial of the matter was thus on an issue that had not been pleaded. However, in view of the fact that such issue was fully ventilated during the trial, I will proceed to treat it as the sole issue in the trial.

HH134-09 : PUWAYI CHIUTSI vs CLARA CHIUTSI
Ruled By: MUSAKWA J

As regards the motor vehicle at the centre of the dispute, the plaintiff testified that in her plea the defendant was claiming an Opel Astra and a Mitsubishi Pajero. The claim in respect of the Chrysler only arose at the pre-trial conference and there was no amendment to the plea. ...

HH74-10 : CHARLES MAKANI vs GERTRUDE MAKANI (NEE ZIMONDI)
Ruled By: GUVAVA J

The plaintiff sought for costs on a higher scale against the defendant in his closing submissions - these had not been claimed.

HH141-09 : OLIVER CHIBAGE vs KUDZAI SIBUSISO NDAWANA
Ruled By: MAKARAU JP

The plaintiff is a Commissioner in the Zimbabwe Republic Police. The defendant, a duly qualified dental surgeon, was, at the material time, also a member of the Zimbabwe Republic Police. She practiced her dentistry at the Police Camp Hospital and also at her surgery in town. In June 2007, the plaintiff consulted the defendant complaining of sensitivity to ...

In June 2007, the plaintiff consulted the defendant complaining of sensitivity to his teeth. She examined him at the police hospital and later invited him to her surgery where she carried out some work on him. The work entailed extracting a tooth that was embedded in his gum. The extraction was not successful and she referred him to Professor Chidzonga, a specialist in the field, who finally extracted the tooth and also found out that, in the process, the plaintiff had suffered a fractured jaw. When the plaintiff's superiors visited him at his house, a decision was made that he be flown to South Africa for further management and treatment. He was duly attended to in South Africa and the fracture was reduced.

On 24 January 2008 the plaintiff issued summons out of this court against the defendant. He alleged that she had been negligent and had caused the fracture in his jaw. He claimed against her the sums of R10,000= for pain and suffering, R10,000= for loss of comfort and R78,000= as special damages.

The suit was defended.

In her plea, the defendant denied that she was negligent as alleged or at all. She further denied knowledge of the injury sustained by the plaintiff, and, in particular, that she fractured his jaw and suggested that this occurred at Professor Chidzonga's surgery where the tooth was extracted.

At the pre-trial conference of this matter, the parties settled the issues for trial as follows:

1. Whether or not the defendant undertook to perform surgery on the plaintiff with such professional skill as is reasonable for a qualified dentist?

2. Whether or not the defendant carried out the surgery on the plaintiff negligently as alleged by the plaintiff?

3. Whether or not the plaintiff suffered damages as a result of the defendant's negligence, and, if so, the quantum thereof.

At the trial of the matter, the plaintiff gave evidence. His evidence was as follows.

In early 2007, he visited the Police Camp Hospital. He was complaining of sensitivity in his teeth. He sought professional assistance from the defendant. She advised him that he required a dental cleaning session and that she needed to examine the exposed roots of his teeth. On the first visit, she applied some medication to his gums. She did not have adequate equipment at the hospital and could offer him treatment at her surgery. He accepted the offer. A week later he visited her surgery and she requested him to have an x-ray. A week later she called him and advised him that she had discovered a buried molar on the right side of his mouth. The tooth had to be extracted. On 26 June, he attended at her surgery for the tooth to be extracted. After taking him through the process, the defendant attempted to extract the tooth using a variety of tools. After some time he grew tired and was also in pain. She advised him that she had almost exposed the tooth. He then felt a sharp pain and told her to stop. He had been on her chair for two and a half hours. She advised him that he now required theater and she would refer him to Professor Chidzonga. She telephoned Professor Chidzonga's surgery and explained to them what she had already done. She wrote him a letter of referral and he left her surgery. He could feel that his jaw was heavy. It was painful.

At Professor Chidzonga's place he was taken into the consulting room, and, by that time, he could not talk. Professor Chidzonga took a small x-ray of the area. He then extracted the tooth in about 20 minutes. He suspected that the plaintiff had fractured his jaw. He could not develop the xray at that time and allowed the plaintiff to go home on a prescription for a mouth wash, a pain killer, and some antibiotics.

As he was driving home, he sent a message on his mobile phone advising the defendant that he was in terrible pain and was suspected of having fractured his jaw. His mouth was now quite heavy and he had to keep on holding his lower jaw. He was also bleeding profusely.

When he reported back to Professor Chidzonga's rooms the following day, the fracture was confirmed. Professor Chidzonga cleaned his mouth and immobilized the jaw. He placed him on a special diet and prescribed more medication.

The Commissioner-General of police visited him at home. At this time his entire face was swollen. He was incoherent. Arrangements were made for him to be flown to South Africa where he was accompanied by his wife.

In South Africa, the wires that had been used by Professor Chidzonga to immobilize his lower jaw were removed and replaced by bracelets. He was placed on a liquidized diet. On 29 July, he returned to the clinic in South Africa where a few of the bands holding his jaw together were removed. He could open his mouth by a fraction and could now use a spoon to eat porridge and yoghurt. In August, all the bands were removed and he was referred for physiotherapy. Around September, he returned to have all the bracelets removed. He was still on physiotherapy. He had to return for reviews in September and December 2007. In January 2008, he attended the final physiotherapy session here in Zimbabwe.

At the time of testifying, he could not chew hard things with his right hand side. He still felt some numbness in the side which he hoped would go away after some time.

The witness then applied to have affidavits by the three medical practitioners who attended to him in South Africa adduced into evidence. Also adduced were various documents, including air tickets from Harare to Johannesburg and invoices for the services rendered him in South Africa.

The witness gave his evidence well. He is fairly articulate. His responses to questions put to him under cross-examination were forthright. He did not seek to exaggerate. It is my finding that the witness was honest and truthful.

The plaintiff called Professor Median Chidzonga. He holds qualifications in dentistry and is a professor in maxillo-facial, oral and dental surgery. He has specialized in facial surgery and has thirty years experience under his belt. His evidence was as follows.

The plaintiff was referred to him by the defendant who wrote a note to him explaining that he should continue with the removal of a wisdom tooth that she had started working on as the plaintiff was now in severe pain.

After sitting the plaintiff in the chair, he took a radiograph of the site and then proceeded to examine him. He saw a socket where an incision had been made. He attempted to remove the tooth and it was during this process that he noticed that the jaw was not moving in unison. He requested the plaintiff to go for an x ray of the jaw. The following day the plaintiff brought back the x-ray and it showed that there was a fracture passing through the socket where he had removed the tooth. He reduced the fracture by wiring. He also obtained the results of the first radiograph he had taken when the plaintiff first visited him. It also showed that there was a fracture. Based on that radiography, he was of the view that the jaw was fractured before he started working on the plaintiff.

He further testified that it is not normal for jaws to be broken during tooth extractions. It is however possible. The possibility of this happening can be assessed through x-rays of the area taken before the extraction.

He was aware that the plaintiff later sought medical attention in South Africa. He was also aware that what was done in South Africa is similar to what he did on the plaintiff in reducing the fracture. The equipment used in South Africa is not available in this country but the expertise is.

Under cross-examination, the witness testified that the breaking of a jaw during a tooth extraction does not, in itself, denote negligence. Each case must depend on its facts. Even where a practitioner exercised all due care, at times, a jaw could still break.

Regarding the plaintiff's subsequent visit to South Africa to seek medical attention, he was of the view that this was not necessary as he could have attended to the plaintiff himself had the deteriorating condition of the plaintiff been brought to his attention.

The evidence of this witness was of great benefit to the court and great reliance shall be placed upon it in the resolution of the matter. He is an expert in his field and I would have been unable to form some of the conclusions I formed in this matter without his expert opinions.

After the evidence of this witness, the plaintiff closed his case.

The defendant testified. She narrated most of the facts that are common cause in this trial as to how the plaintiff approached her for assistance and what she did up to the time she referred the plaintiff to Professor Chidzonga. Regarding the allegation that she was negligent, her evidence was as follows;

The plaintiff's tooth was a difficult one. She did the best that she could to extract it without resorting to surgery. During the process, the plaintiff did not bleed profusely as he alleges. She however was putting water into his mouth during the process.

She was not aware that she had fractured the plaintiff's jaw during the extraction. Had she known, she would have put it in her referral letter to Professor Chidzonga. She only received a report from Professor Chidzonga who stated that, during the time he was extracting the tooth, he felt an abnormal movement to the jaw. She personally did not feel such movement.

The witness also gave her evidence well. Her evidence was, in the main, common cause with that of the plaintiff up to the time the plaintiff left her surgery. I have no reason to disbelieve her.

The defendant also called one Lewis Chidzambwa. He is a Dentist, holding a degree from a university in Finland. He has ten years experience.

The testimony of this witness was of a very general nature. He gave the court his views on what can cause pain to a patient undergoing tooth extraction, how each case is unique, and how fractures can occur in patients.

I found the evidence of this witness to be educative in a very general way.

After this witness was stood down, the defendant closed her case....,.

The plaintiff alleges that the defendant fractured his jaw during a tooth extraction. He further alleges that the fracturing of the jaw was as a result of negligence on the part of the defendant. Finally, the plaintiff alleges that, as a result of the fracture to his jaw, he suffered the various damages whose heads appear in his summons.

The factual issues that fall for determination in this matter present themselves to me as;

(i) Firstly, whether it was the defendant who fractured the plaintiff's jaw; and

(ii) If so, whether such fracturing was as a result of negligence on her part; and, again

(iii) If so, what damages did the plaintiff suffer?

I now turn to the first issue. It is to determine whether the fracture in the plaintiff's jaw was caused by the defendant.

I do not have any direct evidence in answer to this issue. The x-ray that was taken of the tooth area, after the defendant had referred the plaintiff to Professor Chidzonga, was not produced to show whether or not the jaw was fractured before Professor Chidzonga started working on the plaintiff. What was adduced into evidence was a photocopy of the x-ray which did not show anything. The copy of the x–ray was not accompanied by any report explaining the picture, and, as was correctly stated by Professor Chidzonga in his evidence in chief, the photocopy was not useful at all.

The plaintiff was of the firm belief that he suffered the fracture whilst receiving attention from the defendant. He is of this belief because he felt a sharp pain after an hour of drilling and wedging and he stopped the defendant from further proceeding. When he left the defendant's place, he was now holding his lower jaw. He urges me to infer that the sharp pain marked the point when his jaw fractured.

This is a reasonable belief on the part of the plaintiff but it is not the only reasonable inference that one can draw from the facts.

It is common cause that the plaintiff was under a local anesthetic that was now wearing off. The tooth extraction was causing him a lot of pain. The sharp pain could have been pain from the process which would have otherwise been masked by the anesthetic had it been working.

Professor Chidzonga testified that it was during the process of extracting the tooth that he noticed that the jaw was not moving in unison. He did not notice this during the examination of the plaintiff before he commenced the extraction. He then informed the plaintiff that he suspected a fractured jaw. The fracture was only confirmed the following day from xrays.

As indicated above, it would have made my task easier had the plaintiff produced the original x-ray that was taken prior to Dr Chidzonga commencing work on him. The absence of the x- ray and the evidence by Dr Chidzonga that he only noticed the irregular movement of the jaw during the extraction places me in a position where I cannot confidently hold that the jaw was broken at the defendant's surgery. This is compounded by the fact that neither Professor Chidzonga nor the plaintiff asked for leave to and opportunity to replace the useless photocopy with the original x-ray and no explanation was tendered for this omission.

Further, it was Professor Chidzonga's evidence that the x–ray that he took would only show the tooth and nothing much. He was not asked whether it would show the jaw and the fact that he referred the plaintiff to another facility for a bigger picture that would show the jaw seems to suggest to me that the radiograph that he took did not. In any event, neither the plaintiff nor Professor Chidzonga asked for time and opportunity to have the original radiograph adduced into evidence and no explanation was tendered for this omission.

I am unable to come to a conclusion as to where and when the fracture occurred from the evidence adduced before me. It could have occurred at the defendant's surgery. It could have occurred at Professor's Chidzonga's.

On the one hand, I have the testimony of the plaintiff feeling the sharp pain and the testimony of Professor Chidzonga that when he looked at the radiograph that he had taken in his surgery, he observed a fracture. This evidence seems to suggest that the fracture may have occurred at the defendant's. On the other hand, I have the missing radiography and the testimony of the defendant that she did not notice the irregular movement of the plaintiff's jaw when she was working on his tooth or else she would have included that in her written report to Professor Chidzonga.

Further, I have the testimony of Professor Chidzonga that he only noticed the irregular movement of the plaintiff's jaw when he was in the process of extracting the tooth. I also have his evidence that the x-ray he took in his surgery is of a localized nature, showing the tooth area, hence his request to the plaintiff for him to attend the Avenues Clinic for a bigger picture showing the jaw area as well. The learned professor was not asked on whether the localized x-ray he took would show the jaw area as well and to what extent. In my view, the fact that he referred the plaintiff for a bigger picture tends to suggest his one would not show the fracture to the jaw.

I have no crystal ball to gaze into for an answer to this issue. In my view, the balance of probabilities tilts in favour of no party and remains even to the detriment of the plaintiff who bears an onus to establish the facts that he relies on for his claim.

Assuming that I have erred and there is ample evidence upon which a superior court will find that the defendant did indeed fracture the plaintiff's jaw, I will proceed to give my opinion on the next issue which arises. This is to determine whether the defendant was negligent, as alleged, or at all, assuming she did fracture the plaintiff's jaw.

In his declaration, the plaintiff alleged that the defendant was negligent in that she failed to remove the tooth with such skill as is reasonable for a qualified dentist; that she tried to remove the tooth in a way that caused the plaintiff to suffer severe bleeding and unbearable pain; and that she fractured the plaintiff's lower jaw.

In his testimony, the plaintiff confined himself, and correctly so in my view, to narrating the events leading to his visit to Professor Chidzonga's surgery, and, thereafter, to him seeking treatment in South Africa. When asked how the defendant had been negligent, he simply gave his opinion that she must have been unprofessional by failing to extract the tooth in two (2) hours when Professor Chidzonga managed to do so in about 20 minutes.

The difficulty that the plaintiff had in articulating the particulars of the defendant's alleged negligence is, in my view, understandable. He is not a dental surgeon. I understand the plaintiff to have taken the simple approach to this whole matter that because an accident occurred whilst the defendant was in charge, she must have been negligent.

In my view, the particulars of negligence alleged against the defendant can only be validating by making reference to the standard operating procedures of dentists. This is so because to test the negligence of a professional, one has to first establish what an average reasonable professional in the shoes of the defendant would have done. See S v McGowan 1995 (1) ZLR 4 (HC).

The average reasonable professional is not one who is an ace or an expert in his or her field. Thus, the skills exhibited by Professor Chidzonga cannot be used to measure whether or not the defendant was negligent. She may not have been as adept at extracting teeth as the professor was. This, however, does not automatically translate into negligence on her part. An average professional is not one who is so careful that he or she will weigh each and every risk attendant upon the task at hand and advise the client of all such risks before proceeding. He or she will weigh the obvious risks and advise the client of the same.

In casu, it was Professor Chidzonga's testimony that the likelihood of a fracture during a tooth extraction can sometimes show in an x-ray taken before the extraction. It is not in dispute that the defendant caused an x ray of the plaintiff's mouth to be taken before she started working on him. It was not suggested that this x-ray showed that possibility of the plaintiff fracturing his jaw, and, notwithstanding clear evidence of this likelihood, the defendant proceeded with the extraction without taking any steps to guard against the occurrence.

It further appears to me that the reasonable professional is one who will bring their training to bear on the task at hand to assess the attendant risks and proceed with alertness. He or she has a certain degree of confidence in their capacity and skill that allows them to proceed without undue timidity and is, to a large extent, a practical person who wishes to achieve a specified result.

As I have indicated above, to establish what a reasonable dentist would have done in the circumstances of this matter, the evidence of the plaintiff was not material. It would only have been material in showing what the defendant actually did. The evidence of another dentist was imperative to set the standards that are average in the profession and against which the conduct of the defendant would have been measured to show the deviation relied upon to form a cause of action in delict.

The evidence of Professor Chidzonga, called by the plaintiff, did not sufficiently set out the average professional standards expected of a dentist extracting a tooth. His evidence was also largely narrative of the steps he took to extract the tooth after the defendant referred the plaintiff to him. He did not testify that what the defendant had done prior to her referring the plaintiff to his surgery was negligent. He was not examined on this aspect of the matter. The only portion of his evidence-in-chief that I regard as relevant on this issue is when the professor testified that it is not normal that a jaw will fracture during a tooth extraction. He qualified that by testifying that the possibility of a fracture can be assessed by taking an x- ray before the extraction. As stated above, the defendant did cause an x-ray to be taken before she discovered the embedded tooth. The x-ray so taken was not adduced into evidence.

The issue that may have exercised my mind is whether the defendant was negligent in not noticing, from this x–ray, that the plaintiff's jaw was likely to fracture during the extraction had the plaintiff so pleaded.

He did not.

HH142-09 : JOVITA SANYANGOWE vs ELVIS CHALIMBA
Ruled By: MUSAKWA J

The applicant is seeking an order that she be appointed the legal guardian of Tinashe Esther Chalimba, born on 17 August 1996 and Anesu Esther Chalimba, born on 29 July 1999, plus costs of suit.

In her founding affidavit, the applicant states that she cohabited with the respondent from 1995. As a result of such cohabitation, she gave birth to Tinashe Constance Chalimba on 17 August 1996 and Anesu Esther Chalimba on 29 July 1999. Due to the violent nature of the respondent the two separated. The applicant obtained an order for the custody of the minor children in the Magistrates Court. She also sought a binding over order against the respondent in the Magistrates Court. In addition, she filed two applications for maintenance for the minor children.

In 2003, the applicant secured employment in New Zealand. With her mother having passed away she had no alternative but to leave the children with the respondent. She intended to collect the children later.

In 2005, she informed the respondent on the need for the children to join her but he refused.

Later, she learnt that the respondent had taken the children to South Africa. She subsequently visited them and she was allowed limited access to them.

In 2007, she established that the children were back in Zimbabwe and attending school in Rusape where she visited them. She concludes by stating that since she was never married to the respondent she is the legal guardian of the children. She then prays for an order in terms of the draft.

In his opposing affidavit, the respondent states that the South African High Court ruled that the children should stay with him, with the applicant having access. He contends that the applicant applied for custody of the children in the local courts but she did not prosecute the matter to finality. He also contends that he never agreed that the children would return to the applicant. He was never told that the applicant intended to leave the country. There was no communication from the applicant between January 2003 and June 2005. The applicant is said to have filed an application for custody of the children in the South African High Court and the matter had not yet been determined at the time of filing of the opposing affidavit.

Counsel for the applicant submitted that it is trite that an unregistered customary law union does not bestow guardianship on the father. He prayed for the order sought despite the issue taken up by counsel for the respondent regarding the propriety of such an order. It was further his submission that nothing turns on the criticism aimed at the draft order as it seeks to confirm the legal position that the applicant is the legal guardian of the children. He also urged the court to dispose of the matter notwithstanding that there is pending litigation between the parties in the South African courts.

On the other hand, counsel for the respondent submitted that the present proceedings are substantially similar to the matter that was pending before the South African courts. He thus urged this court to exercise its discretion by declining to determine the present matter as the applicant has not finalized the matter that is before the South African courts. It was his submission, that, as a matter of public policy, a litigant should not hop from one court to the other without good cause. In truth and substance, the present application is said to be exactly the same as the one pending before the South African courts, so counsel for the respondent further argued....,.

The defense of lis alibi pendens was raised for the first time in the respondent's heads of argument as it had not been raised as a point in limine.

HH144-09 : NEGOWAC SERVICES (PRIVATE) LIMITED vs 3D HOLDINGS (PRIVATE) LIMITED AND GIFTCARE ELECTRICAL (PVT) LTD t/a REG ELECTRICAL WHOLESALERS
Ruled By: MTSHIYA J

I must point out at this stage that apart from confirming the rentals dispute, Mr. Regis Jamba's evidence also touched on evidence that did not form part of the pleadings. Such evidence, for the purposes of this judgment, will remain ignored.

HH152-09 : PATRONELLA CHARUMBIRA In her capacity as the executrix dative of the estate of the late Adben Benjamin vs HUDSON MUSASA and REGISTRAR OF DEEDS and ASSISTANT MASTER
Ruled By: MUSAKWA J

The third issue raised by counsel for the first respondent was not raised in the opposing affidavit. This arose at the time of the hearing and I allowed the parties to address it as it is a point of law. This relates to the applicant's locus standi.

HH156-09 : FREDDY CHINYAVANHU vs LETWIN CHINYAVANHU
Ruled By: GUVAVA J

The plaintiff and the defendant are husband and wife. They married each other on 8 January 1993 in terms of the Marriage Act [Chapter 5:11]. The marriage was blessed with three children, Frank (born 6 March 1993), Margret (born 23 September 1997), and Emmanuel (born 24 June 2005). During the subsistence of the marriage, the parties acquired both movable and an immovable property known as Stand 2209 Prospect Township of Stand 2899 Prospect Township measuring 860 square meters commonly known as Stand 2209 Mainway Meadows, Waterfalls Harare (the property).

On 20 January 2007, the plaintiff issued summons seeking a decree of divorce on the basis of irretrievable breakdown, custody of two of the minor children, and division of the parties' matrimonial assets.

The defendant, whilst conceding that the marriage had broken down, disputed the reasons given by the plaintiff and counterclaimed for custody and maintenance of the minor children. She also disputed the suggested distribution by the plaintiff of their assets.

At pre-trial conference, the parties agreed on the distribution of their movable assets and decided to refer seven issues to trial. At the hearing, the parties abandoned three of the issues and only the following issues were referred for determination:

1. Which of the parties should be awarded custody of the minor children?

2. Which party is to be responsible for the maintenance of the minor children and related matters?

3. Whether the Hyundai Excel motor vehicle, registration number AAG 3526, constitutes matrimonial property which is subject to distribution, and, if it constitutes matrimonial property, how is it to be distributed?

4. What is the best way of distributing the matrimonial home between the parties?...,.

The plaintiff offered to pay maintenance for the youngest child in the sum of $18 per month....,.

With respect to maintenance, it was clear from the evidence that the plaintiff is already paying for the children's school fees, medical aid, and buying their uniforms. The plaintiff stated that he was prepared to continue to do so.

The defendant has stated that she can cater for their daily expenses, that is, paying the maid and buying their food and clothes.

Although the defendant had claimed a sum of money in her summons the amount claimed is no longer in use and she did not amend her claim so that it becomes a claim in foreign currency.

The claim for a monthly maintenance in foreign currency cannot thus be upheld.

HH163-09 : MTOMBENI REGINALD vs TAPFUMANEYI MUPFURAREHWE
Ruled By: GOWORA J

The first respondent is the registered owner of a motor vehicle Isuzu KB 250, registration number 524-884G. The applicant prays for an order that the vehicle be released to him on the basis of an Agreement of Sale he alleges was concluded in respect of the vehicle on 29 August 2008. The background to the dispute is ...

The background to the dispute is as follows:

On 29 August 2008, the applicant visited the second respondent's showroom and observed an Isuzu KB250 on display. It was apparently on sale. Since he liked the vehicle he made enquiries regarding the purchase price and other conditions attaching to the agreement. The applicant avers that he dealt with Harris Kufunga and Shadreck Dzapasi. The applicant avers in the founding affidavit that they are directors of the second respondent. The price was agreed and settled at $112,000= which had to be paid by RTGS. The applicant avers further that he was informed by Harris Kufunga that he would have the registration book and the number plates once payment had been effected. An Agreement of Sale was then concluded. The applicant then paid the purchase price and subsequently took delivery of the vehicle.

On 14 November 2008 police officers from the Vehicle Theft Section attended on him and advised him that the vehicle had been reported stolen. He surrendered the vehicle to the police. Thereafter, attempts to follow up the vehicle with the police raised his suspicions as the vehicle was not parked at the police station as would be expected. It was subsequently returned to the police station after the intervention of his legal practitioners. He avers that he is a bona fide purchaser and should not be inconvenienced by a dispute between the first and second respondents.

I find that the vehicle was indeed displayed in the second respondent's showroom.

The circumstances under which the vehicle came to be displayed in the showroom, viewed from the explanation by the first respondent, raises question marks. The first respondent's explanation is that one Dzapasi had come to his residence on the evening of 29 August 2008 and had begged that the first respondent give him his vehicle as he had a client who required an Isuzu. The first respondent avers that he had been reluctant, initially, to surrender the vehicle to him; firstly, because of the manner in which Dzapasi's uncle Shadreck and Harris had treated him in the past. He did not elaborate on what this treatment related to. Secondly, he averred that he had pointed out to Dzapasi that it was night time and it would have been proper if the transaction were conducted during the day. He states that had had relented when Dzapasi gave him an assurance that the client seeking the vehicle was Dzapasi's, and, further, that the second respondent was not going to play a part in the sale. The first respondent had been assured by Dzapasi that if the client was satisfied with the vehicle, then the former would arrange for a meeting to discuss the purchase price. He had therefore retained the registration book and number plates on the understanding that the purchase price and payment arrangements would be negotiated by himself. They had not agreed on a purchase price with Dzapasi.

The first respondent denied that he had authorized Harris Kufunga or Shadreck Dzapasi to sell his vehicle. He further denied that Dzapasi had authority to sell the vehicle. He stated that if he had authorized the second respondent to sell the vehicle, he would have been given a mandate form to sign signifying the agreement between himself and the company for the disposal of the vehicle. This is the procedure they had adopted when they sold a Toyota Hilux on his behalf. He stated that the second respondent had defrauded him in respect of the sale of the Hilux and he would not have been so naïve as to take another vehicle to the second respondent to sell on his behalf.

Whilst he does not dispute the contention by the applicant that he may have seen the vehicle in the second respondent's showroom he, the first respondent, contends that if the applicant saw the vehicle on 29 August 2009 it must have been after 20:30 hours when he gave the vehicle to Dzapasi. The first respondent states that the vehicle must have been given to the applicant that night because when he visited the second respondent's showroom the following day, the vehicle was not there. He was not unduly worried by its absence because Dzapasi had told him that he would not involve the second respondent or its directors in the deal. He subsequently met Dzapasi and asked about the whereabouts of the vehicle, which is/when Dzapasi asked if Harris or Shadreck had not phoned him. That is when he heard about the alleged sale.

He reported the matter to the police, and, as a result, charges of theft of motor vehicle were preferred against Harris and Shadreck on 14 November 2008. They persuaded him to drop the charges. When the applicant refused to surrender the vehicle, he then made a report at the vehicle theft in Southerton. He said he used to see the applicant at the showroom when he was following up the issue of his vehicle but the latter never let on that he had purchased the vehicle until the first respondent had caused the arrest of Harris and Shadreck and it then came to light that the applicant was the purported buyer of the vehicle....,.

In the heads of argument filed on behalf of the applicant it is alleged, for the first time, that the second respondent was acting as an agent for the first respondent.

It is argued, in the heads of argument, that he entered into the agreement 'on the basis of agency'.

I have not been educated on the precise meaning of that cryptic phrase. I assume, however, that it is meant to convey that the second respondent was the first respondent's agent in the sale of the vehicle. If that was the basis of the claim by the applicant it should have been pleaded from the outset and been averred in the founding affidavit.

It is trite that an applicant must make his case in the founding affidavit and not in subsequent pleadings. This averment is not even in an affidavit but in heads of argument.

Whether or not the second respondent acted as an agent of the first respondent would be a factual issue which can then be subjected to scrutiny in accordance with established principles.

In the instant case no factual basis was laid to allege that there was in existence an agency relationship between the first and second respondents. Thus, the contract that the applicant argues that he entered into with the first respondent through the agency of the second respondent has not been established. If the applicant's case had been that he had entered into an agreement with the first respondent, my view is that in the draft order he would have sought a declaration as to the validity and enforceability of the alleged agreement. Instead, in the draft order he seeks an order declaring him to be the owner of the vehicle.

The allegations of agency contained in the heads of argument appear to be an after thought when it must have dawned on the applicant and his legal practitioners that the only basis upon which an agreement could be alleged against the first respondent was through agency.

HH164-09 : ZIMRE PROPERTY INVESTMENT (PVT) LTD vs CITY CALVARY CHURCH
Ruled By: GOWORA J

Again, in his oral address, counsel for the respondent submitted that the permit provided that building work connected with the plan had to be implemented on, or before, 11 June 2007, or such later date as may be approved by the local authority on good cause shown. The applicant was not afforded an opportunity to respond ...

HH169-09 : GRAMARA (PRIVATE) LIMITED and COLIN CLOETE vs GOVERNMENT OF THE REPUBLIC OF ZIMBABWE and ATTORNEY-GENERAL OF ZIMBABWE and NORMAN KAPANGA (INTERVENER)
Ruled By: PATEL J

The two applicants herein were parties, together with 77 others, in a matter that was adjudicated by the Southern African Development Community Tribunal (the Tribunal) in the case of Mike Campbell (Pvt) Ltd Others v The Republic of Zimbabwe Case No. SADC(T) 2/2007.The Tribunal gave its judgment in ...

HB09-09 : TERENCE ALAN BLAKE and EDWARD GRAHAM BURROUGHS vs TABS-AVOIN LIGHTING (PVT) LTD and ASMARA COMPANY (PVT) LTD and JONATHAN TAFADZWA JERE and JAIROS MTHONISI MOYO
Ruled By: CHEDA J

I should point out that the defendants have not raised the issue of illegality, and it was not pleaded, or relied upon, in this court. However, the court has a duty, in the interest of justice, to take the point mero motu at any time during the hearing. See Stanford v City Bioscope 1917 CPD ...

HH103-09 : U-TOW TRAILERS (PRIVATE) LTD vs CITY OF HARARE and SUPERLUX (PRIVATE) LIMITED
Ruled By: MAKARAU JP

The brief background facts to this matter are largely common cause. I set them out as follows:

In 1994, the applicant entered into a lease agreement with the first respondent in respect of certain premises situate at Number 9 Market Street, Eastlea, Harare (“the premises”).

The lease agreement was constantly renewed over the years with the last renewal being agreed upon on 20 June 2007 for a further three years. Thus, the lease agreement between the parties is due to expire by effluxion of time on 31 March 2010.

It was a specific term of the agreement between the applicant and the first respondent that the applicant would not sublet the premises without the written consent of the lessor.

In 2008, the applicant and the second respondent reached an understanding in terms of which the second respondent moved onto and took occupation of part of the premises….,.

In January 2009, the first respondent wrote to the applicant, summarily terminating the lease agreement and seeking the ejectment of the applicant from the premises. This was on the allegation that the applicant was subletting the premises to the second respondent without the prior written consent of the lessor and in breach of the specific term of the lease agreement against sub-letting.

When the applicant tendered rentals for the month of February 2009, these were rejected on the basis that the lease agreement had been cancelled.

This, in turn, prompted the applicant to approach this court seeking;

(i) Firstly, an order holding the first respondent to the lease agreement on the basis that it was not sub letting to the second respondent as alleged; and

(ii) Secondly, an order ejecting the second respondent from the premises.

The application was opposed by both respondents.

In opposing the application, the first respondent contended that it had proceeded in terms of the lease agreement to summarily cancel the lease agreement as the applicant was in breach. It justified its action by relying on clause 21 of the lease agreement which provides that:

“If the lessees shall fail to pay the rent on the due date or at the latest within ten days thereafter or if the lessees shall commit any other breach of the terms or conditions of this lease then the Municipality shall have the right, in its discretion, summarily to terminate this lease and retake possession of the Stand without payment of any compensation whatsoever and without prejudice to any claim which it may have against the lessees for rent already due or for any damages which it may suffer by reason of such breach or termination.”

The second respondent's opposition to the application is, in my view, somewhat curious.

The second respondent is the alleged sub-lessee and it objects to the continuation of the lease agreement between the applicant and the first respondent. While admitting, as contended by the applicant, that it took occupation of the premises in anticipation of a joint venture between itself and the applicant, the second respondent does not proffer any defence as to why it should not be evicted from the premises at the instance of the applicant.

Instead, and curiously so as I have observed above, it adopts and pleads the case of the first respondent that the applicant was in breach of the lease agreement, indeed, epitomizing the proverbial stranger who mourns louder than the bereaved.

It further avers, that, in February 2009, when the applicant's rentals were turned down, this was because it had paid these in respect of the property. It however falls short of alleging that it is now the tenant in respect of the property.

In its opposing affidavit, the first respondent does not admit any formal relationship with the second respondent. It simply maintains that the applicant's rentals for February 2009 were not accepted as its lease had been cancelled.

I believe it is pertinent, at this stage, that I dispose of the issue between the applicant and the second respondent.

As observed above, the applicant is seeking the eviction of the second defendant from the premises on the basis that the proposed joint venture between the parties has failed.

This is not disputed by the second respondent which then proceeds to aver, that, after the joint venture had failed to materialize, the applicant demanded rentals from it, thereby creating the sublease.

The totality of the averments made by the second respondent, even if proved, do not constitute a defence to an order for eviction at the instance of the applicant. Thus, in the event that I find for the applicant and hold the first respondent to the agreement, I must perforce order the eviction of the second respondent from the premises on the basis that the second respondent has failed to proffer a defence to the applicant's claim.

The issue that remains for my determination is between the applicant and the first respondent: it is whether the first respondent was justified in summarily cancelling the lease agreement without first affording the applicant a chance to respond to the allegations that it was sub-letting the premises to the second respondent.

It is trite that even where a lease agreement grants the lessor the right to cancel the lease on account of breach and to re-take possession of the leased premises, as was the position between the applicant and the first respondent, such cancellation is always subject to the control of and confirmation by the court.

The lessor has to approach court for the confirmation of its cancellation of the agreement and for the eviction of the tenant. The right to summary termination of the lease agreement, no matter how clearly worded, does not oust the jurisdiction of the court to grant the eviction order.

The existence of the grounds for and the validity of the cancellation of the lease agreement are always subject to validation and confirmation by the court which alone can order the eviction of the defaulting tenant.

The lessor cannot exercise self-help and retake possession of the property without a court order - even where the agreement specifically provides so: see Livingstone v Solomon 1924 SR 117; Joubert v Bester 1977 (2) SA 641 (T); Towers v Chipata 1996 (2) ZLR 261 (HC): and Bater and Another v Muchengeti 1995 (1) ZLR 80 (SC)…,.

In casu, the first respondent did not independently approach the court for the eviction of the applicant after it became aware of the alleged breach in the form of subletting.

After being served by this application, it did not seek to counter apply for the confirmation of its cancellation of the lease agreement and the eviction of the applicant.

The validity of its actions, in cancelling the lease agreement and its threat to re-take possession of the premises, have been brought before the court by the applicant, not for its confirmation but for it to be set aside on the basis that the first respondent did not give the applicant an opportunity to respond to the allegations before it acted summarily.

Thus, it appears to me that even if I were to find that the purported cancellation of the lease agreement by the first respondent was justified in the circumstances, that finding would not automatically translate into an order evicting the applicant from the premises as there is no prayer before me for the eviction of the applicant from the property.

In my view, such a finding, if I were to make it, would simply lay the foundation for the issuance of an eviction order against the applicant at the instance of the first respondent whenever it is moved to seek such an order.

It is on the basis of the above, that, in my view, it is not necessary that I make a finding as to whether or not the applicant was subletting to the second respondent and was therefore in breach of the lease agreement.

In my view, to do so would be to tie down the court that may be approached by the first respondent for an order evicting the applicant from the property.

In my view, the legal issue that must be resolved in this matter is whether, in light of the promulgation of the Administrative Justice Act [Chapter 10.28] (“the Act”), the powers of the first respondent, as a local authority, to act summarily as it did, has been modified.

Hence, at the hearing of the matter, I directed the parties to make reference to the provisions of the Administrative Justice Act which came into operation on 3 September 2004.

My anxiety not to overlook the provisions of the Administrative Justice Act was prompted by the admitted fact that the first respondent acted strictly in terms of the lease agreement between the parties and did not afford the applicant a chance to be heard before it summarily cancelled the lease agreement on the allegation that the applicant was sub-letting the premises to the second respondent.

I have now received extensive heads of argument from both counsel in this matter and I appreciate the assistance rendered me in this regard....,.

Before I dispose of this matter, I need to deal with a point in limine taken by the first respondent in this matter and arising out of adjectival law.

The first respondent contends that the applicant did not approach this court for relief under the Administrative Justice Act and thus I cannot apply the provisions of the Administrative Justice Act to its advantage.

Section 4 of the Administrative Justice Act provides that any person who is aggrieved by the failure of an administrative authority to comply with section three may apply to the High Court for relief.

It is common cause that the applicant filed this application challenging the decision of the first respondent to summarily cancel the lease agreement. It filed a court application in terms of the Rules.

While the application does not make any reference to the provisions of the Administrative Justice Act, in my view it makes allegations that fall squarely within the provisions of the Act.

I was satisfied, before I referred the question to the parties for further argument, that the allegations and contentions made by the applicant in its court application fell within the purview of the Administrative Justice Act even if the Act was not specifically invoked.

In my view, generally, it is not necessary for an applicant to specifically plead the law that it seeks to rely on as long as the necessary averments are made therein to sustain a cause of action under the applicable law unless the law under which he or she is proceeding requires that certain averments be specifically pleaded.

The court is not a slave to the form of the law. It is always a slave to justice whom it must always serve.

For the avoidance of doubt, if I have erred in allowing the applicant to bring a deformed application before the court and the correct position is that it was necessary for the applicant to specifically invoke the provisions of the Administrative Justice Act, I will condone that oversight in terms of section 4(c) of High Court Rules, 1971.

As correctly pointed out by the first respondent, this is not an application for review. It is an application for the setting aside of an administrative decision on the basis that it was not arrived at fairly and thus, at law, contravenes the Administrative Justice Act.

HH35-10 : RUTH MUSONZA (nee MTANAUKWA) vs ESHMAEL MUSONZA
Ruled By: GUVAVA J

I have also been asked by the plaintiff's counsel, in his closing submissions, to take into account the fact that there was gross marital misconduct on the part of the defendant which led to the breakdown of the marriage.

He submitted that the defendant was in an adulterous relationship for the greater part of the marriage to the plaintiff. The defendant called Yolanda Madondo as his witness and she testified that they had been together since 1993 and have two children.

The power of the court to take into account the conduct of the parties, in making an award of property, is set out in section 7(4) of the Matrimonial Causes Act [Chapter 5:13] which provides as follows:

"The court is enjoined to endeavour as far as is reasonably and practically possible, and, having regard to their conduct, is just to do so, to place the spouses…, in the position they would have been had a normal marriage relationship continued…,."

In deciding when a court should apply this principle it should be mindful that it is not merely allowing the re-introduction of the fault principle, which was removed by the Matrimonial Causes Act, through the back door.

In Marimba v Marimba 1999 (1) ZLR 87 (H) GILLESPIE J said…,;

"…,. The related principle is more difficult to formulate when it is suggested that the conduct of a party is such that it should have a bearing on a property distribution order. Mindful of the move away from the fault system of divorce, judges in this jurisdiction have set their faces against any invitation to delve into the 'minutiae of ancient domestic grievances.' They have declined to permit counsel to 'resurrect the old spectre of guilt and innocence and drag the judge to hear their mutual recriminations and go into their petty squabbles of days on end.'”

It seems to me, therefore, that a court should not easily permit the use of marital misconduct when making an award of division of property upon divorce. The difficulty appears to be in defining when it would be just to permit misconduct to influence the award of property. Thus, judges in this jurisdiction, while emphasizing the reserve and caution that must affect any decision to permit the misconduct of a spouse to affect any apportionment on the grounds of misconduct, have merely been bound to acknowledge the possibility of doing so in a proper case.

GILLESPIE J goes on to say the following at page 93F–94C of his judgment:

"It seems to me that just such a principle emerges. The relevant legislation entrusts to the court a wide discretion to achieve a just result in the division of the assets of the spouses and the maintenance of a spouse or a child. That discretion is a judicial discretion to be exercised upon a proper consideration of all relevant factors. The aim is expressly to place the parties in the position they would have been in had a normal marriage relationship persisted. This aim is qualified by considerations of reasonableness, practicality, and justice. The overall desideratum of justice, however, is itself expressly related by the clear words of the Act to the conduct of the parties.

The principle may thus be stated: in its overall effort to order a fair division of assets or of maintenance, the court may permit considerations of the conduct of the parties to affect the final order to the extent to which that would be just. What is just in any case is left to the judicial discretion of the court. It may generally be said, however, that it is never just to penalise a person for an unhappy marriage. Only serious cases of predominantly one-sided misbehaviour will be permitted to influence the order that would otherwise have been made based on considerations excluding the question of misconduct."

The question which arises is whether this is a proper case upon which the court may exercise its discretion and permit the evidence of misconduct to influence the division of assets?

While, in my view, it is clearly wrong for a man to marry a woman under a law which obliges him to have only one wife and to thereafter proceed to marry another under customary law and proceed to live with both of them in a polygamous setting the plaintiff in this case did nothing about it for almost 14 years. The law allows parties to a marriage to make an election with regards the type of marriage they wish to enter into. Once one has elected to marry under the Marriages Act [Chapter 5:11] one cannot thereafter marry another in terms of customary law as the defendant did.

However, the plaintiff seemed to have condoned the affair as her only complaint during her testimony was that Yolanda Madondo had moved into the matrimonial home after she left. She does not allege in her pleadings, nor in her evidence, that the defendants conduct with Yolanda Madondo was the major cause of the breakdown. She merely refers to the defendant having “committed acts of adultery and is now staying with another woman which plaintiff regards as incompatible with the continuation of a normal marriage relationship."

In my view, where a plaintiff wishes to rely on marital misconduct, for the purpose of influencing a decision of the assets, this must be specifically pleaded in the declaration so that it is apparent that it is an issue at trial.

In this case, the submission that the court should take into account gross marital misconduct was merely made in the plaintiff's closing submissions and in response to the fact that the defendant had called Yolanda Madondo as a witness before the court.

HH43-10 : KUDAKWASHE MAVINDIDZE and NYARADZO MAVINDIDZE vs MURISI MUKONOWESHURO
Ruled By: PATEL J

As to whether the alternative obligation to transfer immovable property also constitutes a liquid claim, it seems to me that this obligation is not entirely satisfactorily formulated. Nevertheless, it is not necessary for me to decide this point as the summons is based solely on the monetary debt due and does not make any claim ...

HH45-10 : CHRISTMAS MUSONI vs NABOTH JOKONOKO and SHURUGWI TOWN COUNCIL
Ruled By: CHITAKUNYE J

The plaintiff sued the two defendants claiming basically for his restoration as the registered buyer of House Number 360 Makusha Township, Shurugwi.In his summons and declaration, the plaintiff alleged, that, on 20 August 1981 he entered into a written agreement of sale with Dickson Katerere (“D. Katerere”) in respect of ...

The plaintiff sued the two defendants claiming basically for his restoration as the registered buyer of House Number 360 Makusha Township, Shurugwi.

In his summons and declaration, the plaintiff alleged, that, on 20 August 1981 he entered into a written agreement of sale with Dickson Katerere (“D. Katerere”) in respect of House Number 360 Makusha Township, Shurugwi.

The plaintiff was the purchaser and D. Katerere was the seller.

In pursuance of that agreement, D. Katerere and himself attended at the offices of the second defendant and caused all rights, title and interest D. Katerere had in the property in dispute to be formally transferred and registered in the plaintiff's name. Thereafter, the plaintiff took occupation of the house as the new holder of such rights and interests in the house.

In 1986 he vacated the house to take occupation of a plot he had just bought in the same town. He left some people in occupation of the house. The proprietor of Popular Bakery, Mr Gokwe, who was his brother in-law, requested him to let some of his employees occupy the house. He acquiesced to this request.

Amongst the Popular Bakery employees who took occupation was Raphias Jokonoko, the first defendant's elder brother. They took occupation in 1986 when the plaintiff left. When, later on, the first defendant was employed by Popular Bakery, he also took occupation in the house together with his elder brother.

It was only in about January to June 2000 that the plaintiff said he discovered that the second defendant had formally transferred and registered his rights and interest in the property in the name of the first defendant.

Upon this discovery, he demanded that such transfer be reversed and that the house be transferred back into his names as the lawful holder of rights, title and interest in the house.

Both the first and second defendants did not accede to this demand hence this suit filed on 15 May 2002.

In this suit, the plaintiff's claim is for an order:

(a) Declaring him to be the lawful holder of all the rights, title, and interest in House Number 360 Makusha Township;

(b) Directing the second defendant to formally transfer and register all the rights, title, and interests in House Number 360 Makusha Township, Shurugwi in the name of the plaintiff; and

(c) Costs of suit jointly and severally against the first and second defendant with one paying the other to be absolved.

The first and second defendants filed a joint plea in which they disputed the plaintiff's claim and entitlement to have the house transferred and registered in his name.

In their plea, the defendants denied that:

1. Dickson Katerere's rights, title, and interest in the property were ceded or transferred to and registered in the plaintiff's name.

2. The property in dispute was ceded by the second defendant to the first defendant.

3. The house in question is or ever was on home ownership scheme contending that Dickson Katerere was a mere tenant of the second defendant just like the first defendant.

4. That the plaintiff acquired any title to the house in question.

The issues for determination were identified as:

1. Whether or not Dickson Katerere was the owner or a mere tenant of the house in dispute;

2. Whether or not Dickson Katerere's rights, title, and interest in the house were transferred or ceded to and registered in the plaintiff's name; and

3. Whether or not the plaintiff is entitled, at law, to the relief that he seeks.

The plaintiff gave evidence and called two witnesses, namely, Gertrude Nhendereko and Thomas Mandiamba. He also tendered into evidence a bundle of documents he relied on in his evidence.

The first defendant, thereafter, gave evidence. He also tendered a bundle of documents in support of his case.

From the evidence adduced in court, it was apparent that the house in question was, at one time, registered in the name of Dickson Katerere. It was also apparent that the nature of the lease that the plaintiff alleged D. Katerere had was not an outright purchase.

The plaintiff's evidence was to the effect that D. Katerere had a lease to buy agreement and it is this agreement that he took over.

On taking over, he filled in cession forms and lease to buy agreement forms at the second defendant's office. This was in 1981. The lease to buy forms he filled in were similar to the lease to buy agreement that the first defendant had as part of his bundle of documents titled “purchase/sale agreement conversion of rental accommodation into homeownership.” This form has three parties to it, being Shurugwi Town Council, as owner of the house, the Government, as the owner of the land onto which the house is built, and the purchaser.

In Hundah v Murauro 1993 (2) ZLR 403 (S)…, the court alluded to the fact that:

“Land in the high density suburbs belonged to the local authorities, or, occasionally, to central government. Occupants of the houses built in these suburbs fall into three categories (ignoring the 4th category of lodgers or dependants). They are:

1. Simple tenants under a lease agreement with the local authority or central government;

2. Tenants to buy under an agreement which permitted them to take title once the property was surveyed and the full price paid; and

3. Owners who graduated from category two in the fullness of time.”

In casu the plaintiff claimed that the house in question was under Category Two whilst the first defendant contended that it was under Category One.

It is pertinent to point out, at this stage, that, at the time the two defendants filed their joint plea up to the close of pleadings, they were represented by the same law firm.

On 6 October 2008, that law firm renounced agency in respect of both defendants. On 20 April 2009, a new law firm assumed agency on behalf of the first defendant.

This was after the defendants had both been served with the notice of set down for a pre-trial conference, and, in fact, this pretrial conference had been held on 31 March 2009. Only the first defendant was present at the pre-trial conference. The second defendant defaulted, or, at least, was not present. Equally, at trial, the second defendant was not represented.

Counsel for the plaintiff indicated, that, the second defendant indeed defaulted at the pre-trial conference and has not appeared to contest the plaintiff's claim since then.

The record before me is however silent on what happened when the second defendant defaulted at the pre-trial conference despite having been served with the notice of set down.

I now turn to the issues at hand.

1. Whether or not Dickson Katerere was the owner or a mere tenant of the house in dispute

The plaintiff's evidence on the issue was to the effect, that, on 20 August 1981 he entered into an agreement of sale with Dickson Katerere in respect of House Number 360 Makusha Township, Shurugwi. The house was in D. Katerere's name and it was in a homeownership scheme. In that regard he referred to p2 of the bundle of documents, as the agreement of sale. The document is an uncertified photocopy. It reflects the parties to the agreement as CG Musoni and Dickson Katerere. It is dated 29 August 1981.

The main body of the document states that:

“C Musoni Matambo has paid Mr D. Katerere the sum of four hundred and forty eight dollars for house number 360 in Makusha, up easy Stereo Radiogram, two speakers $360. Total paid for the lot $808.”

The plaintiff confirmed that it was only him who appended his signature to the document.

As proof that the house in question was on the second defendant's homeownership scheme, the plaintiff referred to p1 of his bundle of document exh 5. This is a document containing a list of houses he contended were on the second defendant's home-ownership scheme. The house in question is number 6 on that list.

Apart from the house number, other details pertaining to this house included;

(i) Type - Up easy;

(ii) Purchaser - Dickson Katerere;

(iii) Date - 1 April 1980;

(iv) Purchase price - $980=25;

(v) Period of purchase - 5 years;

(vi) Monthly rent - $18=68;

(vii) Land value - $125=00; and

(viii) Monthly rent, service electricity - $33=06.

The heading/title of the list is hardly legible.

It was the plaintiff's evidence, that, after paying D. Katerere a total of $448 the two of them approached the second defendant with the intention of effecting cession. They indicated to the second defendant's officials that he had bought D. Katerere's rights and interests in the house so can the house now be registered in the plaintiff's name.

The second defendant's officials did not deny that the house was in D. Katerere's name. Their only query was that they should have approached the second defendant before entering into the purchase agreement so that D. Katerere's lease is cancelled first and the plaintiff would then enter into a fresh lease to buy agreement with the second defendant. The plaintiff said the second defendant's official he dealt with was one named Mr Nhubu. At no time was it ever said that D. Katerere was a mere tenant with no rights or interest to sell in the house.

Gertrude Nhendereko gave evidence next on this issue.

She indicated, that, as a resident of Shurugwi, she knew that the house in dispute was amongst houses that were for home ownership. She confirmed that exhibit 1(a) is indeed from the second defendant and it does confirm that the house in question was on the home-ownership scheme. She knew this as a resident of Shurugwi, and, later, as a councillor.

It was her evidence that she had known the plaintiff for a long time as a fellow resident of Shurugwi. At one time they lived in the same neighbourhood before the plaintiff moved into the house in question in 1981.

Apart from the above, most of this witness's evidence was based on reports she received from the plaintiff which is of no probative value.

The first time she came to know that there was now a problem with the house in question was in 2000 when the plaintiff came to the second defendant complaining about the manner in which the house in question had been registered in the first defendant's name when he had infact bought it from D. Katerere and had had it ceded to him at the second defendant's offices in 1981.

Gertrude Nhendereko said she got to know this as she was now a councillor with the second defendant and she was in the committee that was tasked with looking into such complaints and cases of double allocations.

As far as the nature of lease D. Katerere had, Gertrude Nhendereko could not be of much use as she had not seen the lease agreement between D. Katerere and the second defendant. The most she could do was to confirm, that, to her knowledge, the houses in question were for homeownership from inception. She also confirmed that most of the documents tendered by the first defendant were in the file pertaining to the house in question when this dispute came to light.

Further support of the nature of lease D. Katerere had, is gannered from the first defendant's documents.

For instance, on p15 of the first defendant's bundle of documents is a letter dated 7 June 1982. The letter is addressed to Dickson Katerere and was authored by JMN Nhubu. This JMN Nhubu was the second respondent's Township Superintendent. The letter reads in part:

“RE: HOUSE NUMBER 360 MAKUSHA BREACH OF CONTRACT

It came to the notice of council, late 1981, that you are no longer staying at the above house and that you have allocated the house to someone without council authority. Any efforts to get in touch with you have failed as we gather you had gone to Malawi.

I now say that you have breached the contract you entered into on 8 April 1980 to purchase the above house for homeownership purposes for over a period of five years. In pursuing my explanations, therefore, I quote para nine of the home ownership forms:

'Until title to the property has been granted to the lessee by government, the lesser shall not, without written consent of the council, let property or any portion thereof to any person nor without such consent shall any person other than the lease or his dependants occupy the same or any portion thereof.'”

Mr Nhubu made it clear the contract D. Katerera had entered with the second defendant, on 8 April 1980, was for the purchase of the property in question over a period of five years. The scheme was for home ownership and not mere tenancy.

Further correspondence between the second defendant and the Ministry of Local Government over this house and others further confirm that this was a lease to buy agreement on what is termed home-ownership scheme.

I am satisfied, beyond reasonable doubt, that, Dickson Katerere occupied this house on a lease to buy agreement. Such agreements, by their very nature, do not confer title or ownership to the lessee till the lessee has complied with all the terms of the contract or in the fullness of time.

In casu, there is no denying that D. Katerere had not met all the requirements.

The rentals towards the purchase price had not been paid in full.

The plaintiff confirmed, that, as at the time he bought the property, D. Katerere had not paid in full. The plaintiff was to take over payment of the rentals.

Title had therefore not passed to D. Katerere.

By virtue of entering into the lease to buy agreement D. Katerere had acquired certain personal rights and interests in the property but not title or ownership.

The concept of ownership entails that one has full title to the property. This was not so with D. Katerere.

It may also be noted, that, the evidence adduced, and the documents tendered into evidence, show that D. Katerere was not a mere tenant. As already alluded to, he had entered into a lease to buy agreement with the second defendant. That agreement gave him certain rights and interests that he purported to sell to the plaintiff.

He had no title to pass to the plaintiff.

One would say the sale was conditional on the second defendant granting its consent and accepting the plaintiff to step into the shoes of D. Katerere.

This brings me to the second issue, namely:

2. Whether or not Dickson Katerere's rights, title, and interest in the house were transferred to and registered in the plaintiff's name

The plaintiff's evidence was to the effect, that, pursuant to the agreement of sale, D. Katerere and himself attended at the second defendant's offices with the intention of having D. Katerere's rights and interests ceded to him.

On their first visit, they met resistance from Mr Nhubu who indicated that they should have come to the second defendant before entering into the agreement. The second defendant would then have cancelled D. Katerere's lease before entering into a new lease with the plaintiff.

They left without filling in the necessary forms for cession.

He sought ministerial guidance as he believed Mr Nhubu's point of view was incorrect. Later, D. Katerere and himself were called back to the second defendant's offices. On this occasion, he was made to fill in and sign cession forms together with lease to buy agreement forms. He was given a copy of the cession forms. On the lease, he was told, that, those forms would be sent to the Ministry of Local Government for execution by ministry officials on behalf of the Government.

He was further advised that the process would take three to four years for the forms to be executed and returned.

He thus waited to no avail.

He nevertheless took occupation and continued paying the lease to buy rentals as per the agreement.

When asked to produce a copy of the cession forms, the plaintiff said he could not produce this copy as it was being kept by his late wife. Efforts to locate the forms since his wife's death have yielded nothing.

As regards payments towards the lease to buy agreement, the plaintiff produced some receipts showing some payments he made to the second defendant in respect of this house. He could not produce a lot of such receipts due to lapse of time and the fact “that the receipts were being kept by his late wife.” As with the cession form, he could not locate more of the receipts. Those that he produced do show that he indeed made some payment.

It was his further evidence that he continued making the payments till the five years period was up. He also remained in occupation of the house till 1986 when he moved to a plot he had bought within the same town. At the time he moved out he had made the full payment for the house.

Though the plaintiff could not produce most of the receipts and the cession forms due to the reasons he advanced, his evidence that he signed the cession form and the second defendant thus consented to him taking over from D. Katerere was largely unchallenged.

The second defendant, as the other party to the cession and lease to buy agreement, could easily have rebutted that evidence had it not been true. Equally, if the plaintiff had not paid the sums of money he claimed, the second defendant was better placed to rebut that.

The second defendant's default meant that the plaintiff's evidence in that regard went unchallenged.

The first defendant could not sustainably challenge the plaintiff's evidence or assertion as he was not privy to the agreement and was not even in the picture during the period in question.

The first defendant's contention, that the plaintiff's failure to assert his rights over the property for a long time while the first defendant occupied it casts doubts to the credibility of the plaintiff's version, is without merit.

If the first defendant seriously believed the plaintiff's version was not the truth, he could easily have called witnesses from the second defendant who were alleged to have dealt with the plaintiff during the period in question. These would have been better placed to rebut the plaintiff's evidence.

The first defendant also attempted to rebut the plaintiff's evidence by referring to events that occurred after the date of the agreement of sale and cession. In this regard, he referred to the second defendant's purported cancellation of D. Katerera's lease in 1982.

As already alluded to, that letter, of 7 June 1982, contradicts the defendants plea in which they contended that D. Katerere was a mere tenant and the house in question was never on a home ownership scheme. That letter confirms to the contrary.

In any case, by 7 June 1982, the plaintiff said he had already signed cession forms and the agreement of lease to buy at the second defendant's offices.

So, for all intents and purposes, at the time that letter was written, the house had been ceded to the plaintiff and no longer in D. Katerere's name. The second defendant did not avail itself to rebut the plaintiff's evidence in that regard.

I am of the view that the probabilities are that D. Katerera's rights and interest were transferred to and registered in the plaintiff's name.

The third issue is:

3. Whether or not the plaintiff is entitled to the relief that he seeks?

The plaintiff's claim was for an order:

(a) Declaring him to be the lawful holder of all rights, title, and interest in House Number 360 Makusha Township, Shurugwi;

(b) Directing the second defendant to formally transfer and register all the rights, title, and interest in House Number 360 Makusha Township, Shurugwi; and

(c) Costs of suit.

The plaintiff's evidence was to the effect, that, he discovered that the property had been unlawfully registered in the first defendant's name in the year 2000 when he went to the second defendant's offices to inquire about the price for the land as he had long paid up for the house.

From his own words, therefore, he had not paid for the land, or, at least, he was not certain that he had paid for the land hence the inquiry.

The standard lease to buy agreement, which he said is similar to the one he signed, states the parties to the agreements as three: Shurugwi Town Council, as the first part and owner of the dwelling; the Government of Zimbabwe, as the second part and owner of the land on which the dwelling is built. The dwelling and the State land together are referred to as the “property”: the third part is the purchaser.

The first defendant contended that the non-joinder of the State, through the Minister responsible for Local Government and National Housing, in this suit is fatal to the plaintiff's relief.

The plaintiff only cited two parties with a contractual interest in the property but left out the owner of the property who has real rights. The relief seeking a transfer of the rights, title and interests to the property is not competent if it does not compel the owner of the property. In support of this posture, the first defendant's counsel cited the case of Rose v Arnold & Ors 1995 (2) ZLR 17 (H).

The plaintiff, on the other hand, argued, that, failure to cite the Minister responsible for Local Government and National Housing was not fatal to the plaintiff's claim.

The plaintiff's counsel argued that the second defendant is a form of decentralized government which was established under the Rural Districts Councils Act [Chapter 29:13] with powers to sue and be sued in its own name: see section 12 of the Rural Districts Councils Act.

Section 71(2) of the Rural Districts Councils Act provides for the derogation of administrative functions.

In this regard, counsel cited the case of Reddy v Town Council for the Borough of Kloof 1964 (3) SA 280 wherein the court held, that, once authority has been delegated, it is a misjoinder to cite the superior controlling body as the delegated officer is responsible for the exercise of the delegated authority on its own.

The plaintiff's counsel argued that, in casu, the second defendant was endowed with delegated authority by the Minister of Local Government and National Housing to handle the allocations, leases, sales and transfers of the houses and stands within its area.

Further, the second defendant is the authority that is actually responsible for the transfer and registration of rights, title, and interest in the houses within its area.

The relief being sought is therefore capable of being granted and effectively enforced as against the second defendant alone.

Whilst the plaintiff's argument was forceful, counsel could not cite any authority or piece of legislation where the Minister granted the second defendant authority to pass title on the land.

A reading of the Standard lease to buy agreement that was tendered by the first defendant shows that the second defendant owned the dwelling whereas Government owned the land on which the dwelling was built.

In its administration of its area, the second defendant took upon itself certain responsibilities when entering into the lease to buy agreement. The second defendant can be ordered to fulfil those responsibilities.

Whilst the lease agreement cites three (3) parties, the second defendant and Government are, in fact, joint sellers in as far as the second defendant owns the house whilst Government owns the land.

The second defendant was given overall responsibility in the leasing out and selling of the house and the land on which the house is built. The house is leased/sold on the second defendant's own behalf whilst the land is sold on Government's behalf. It is the second defendant that must account to Government for the State land. The Government's side seems to be a mere formality of granting title when Council has fulfilled its part and made such a request in favour of its lessee or purchaser.

This is apparent from the fact that the consent required for one to obtain.cession or to deal with the property in any other way is that of the second defendant. No where does the standard agreement refer to the need for consent by Government.

For instance, clauses 11 and 20 make it clear that the consent is that of the second defendant.

Clause 11 states that:-

“Until title to the property has been granted to the purchaser by the government the purchaser shall not, without the prior written consent of the council, let the property or any portion thereof to any person nor without such consent shall any person other than the purchaser or his dependants occupy the same or any portion thereof.”

Clause 20 states that:-

“The purchaser shall not part with the possession of the property or any part thereof nor cede nor assign nor hypothecate this Agreement or any rights hereunder to any person without the previous consent in writing of the council.”

In terms of the agreement, the term property is used to mean the dwelling owned by Council and stand (land) owned by Government.

It is apparent, therefore, that, in granting consent over the property, Council will be granting consent over State land as well. That is as Council was empowered by Government.

The Government's role, as reflected in clause 18, is that it 'agreed to grant title in accordance with the provisions of clauses 16 and 17.'

These two clauses deal with the purchaser paying agreed sums to Council or satisfying Council that payment has been guaranteed.

Clause 16 states that:-

“The purchaser may, on payment of any principal outstanding and any other charges payable in terms of this agreement to the Council, including the charges referred to in clause 18 hereof, which charges may be paid in instalments in such amounts as maybe agreed to be Council, and, on payment by the Council to the government of the sum of…, due to it for the land and the sums due in terms of clause 18 hereof receive title to the land.”

Clause 17 states that:-

“Notwithstanding the provisions of Clause 16 hereof title to the property may be granted to the purchaser in terms of this clause provided the purchaser satisfies Council that:-

(i) He has been granted a loan to be secured by mortgage bond over the property; and

(ii) The principal and interest outstanding, and any other charges payable in terms of this agreement, have been paid or guaranteed to the satisfaction of the Council against issue of the title.”

Clearly, though two parties are cited as sellers, it is Council that is saddled or clothed with all the administrative functions. Council virtually exercises all the functions of the seller after which Government grants title as a formality. It is Council that passes the purchaser as deserving of title and Government merely caps the purchaser.

The first defendant also contended, that, the plaintiff did not obtain prior written consent of the second defendant before entering into a sale agreement with D. Katerere and so such agreement is void ab initio.

The issue of absence of written consent at the time parties enter agreement of sale has been a subject of a number of court decisions. The point is now settled.

In Mukarati v Mkumbu 1996 (1) ZLR 212 (S), when faced with such a scenario, the court held that:-

“…, the agreement between the parties was not exactly void. The seller could validly contract to sell but could not pass title without the Council's approval. This made the contract a conditional one with an implied term that the sale was subject to the consent of the Council.

This cast an enforceable duty on the seller to seek the Council's approval. If the approval were given, transfer could take place. If it were refused, the contract would be unenforceable until such time as the seller was in a position to pass title. The buyer would then have to elect either to seek restitution or to wait until the property was no longer encumbered and transfer could be effected without the Council's consent.”

In David Tobaiwa v Clemence Kaseke and 2 Ors HH74-06 MAKARAU JP…, after quoting EBRAHIM JA in Mukarati v Mkumbu 1996 (1) ZLR 212 (S)…, went on to say that:

“I would venture to suggest, at this stage, and following the remarks of EBRAHIM JA, that, it appears to me legally possible for a person in the position of the first respondent to enter into a contract of sale not only of the property itself as suggested by EBRAHIM JA, but, of the rights, title and interest that he has under the suspensive agreement of sale and which rights will, in due course, mature into real rights in respect of the property. Thus, it is my view that those personal rights that are conferred by the suspensive agreement of sale are capable of being sold and bought without the prior consent of the local authority concerned.“

In casu, D. Katerere could validly sell his rights and interests in the property to the plaintiff conditional on obtaining Council's consent.

The plaintiff's evidence was to the effect, that, such consent was later obtained as Council approved of the cession of the property and had it registered in his name and he was made to sign the lease to buy agreement forms that he was made to believe would be sent to the Ministry of Local Government.

This occurrence was not challenged by the second defendant.

If that took place, albeit after initial resistance by Mr Nhubu, it means the property was ceded to the plaintiff and the plaintiff acquired all the rights and interests that D. Katerere had in the property in 1981.

The first defendant's challenge of this evidence was without foundation.

The plaintiff's claim, and basis thereof, were brought to the attention of the second defendant as the other party to the cession documents. Despite filing a joint plea with the first defendant, the second defendant defaulted and has not sought to further challenge the plaintiff's claim.

The plaintiff's evidence was thus unchallenged.

The first defendant sought to rely very much on the absence of documents in the file pertaining to this house on the agreement between D. Katerere and Council and also the absence of documents showing that the second defendant approved cession to the plaintiff.

Unfortunately for the first defendant, the keeper of those documents who would have testified to the existence or non-existence of such documents at any time in the past, decided not to come to testify against the plaintiff.

The plaintiff clearly indicated that he completed and signed all the necessary documents at the second defendant's offices.

Gertrude Nhendereko also alluded to the absence of such documents in the file but proceeded to say that there were a lot of double allocations of houses, and, in some instances, documents were missing from the files. She attributed the double allocation and the missing documents to corruption within the second defendant.

It may also be noted, that, from the first defendant's own evidence, there was something amiss on this house. It was the first defendant's evidence that his elder brother and himself moved into this house in about March 1987. They found the house vacant. It is also evident, from a letter dated 7 June 1982…, that, as of June 1982, Mr D. Katerere was no longer in that house. D. Katerere, had, instead, put someone else whom Council wanted moved out.

There is an unexplained vacuum in the occupation and registration of this house in the period from when D. Katerere moved out to 1987 when the first defendant said he took occupation with his brother.

The vacuum is in the file pertaining to this house and kept by Council. No explanation was offered by the first and the second defendants for the vacuum.

The plaintiff, on the other hand, testified that there was never a vacuum as he took occupation from D. Katerere in 1981 soon after obtaining cession. He remained in occupation of the house till 1986. In 1986 he moved to a plot he had bought in the same town. On moving out, he left some people who included the first defendant's elder brother Raphius Jokonoko. Raphius Jokonoko was, at the time, employed by Popular Bakery.

The proprietor of Popular Bakery, Mr Gogwe, who was the plaintiff's brother in law, had requested the plaintiff to allow his employees to occupy the house.

Being related to Mr Gogwe, and since he had paid in full, the plaintiff said he did not demand rent from Mr Gogwe or his employees but that they pay service charges.

It was whilst Raphius Jokonoko, and another employee of Popular Bakery, were in occupation of the house that the first defendant joined them when he started working for Popular Bakery.

As far as the plaintiff was concerned, the house was occupied by employees of Popular Bakery at the request of Mr Gogwe.

Mr Thomas Mandiamba gave evidence on this aspect.

He was, at the time, employed by Popular Bakery. He confirmed the plaintiff's version on how Raphius Jokonoko and other employees of Popular Bakery came to occupy the house in question. Mr Mandiamba indicated that he was the one sent by Mr Gogwe to the plaintiff with a request for accommodation for Popular Bakery employees.

As a result of the discussion between Mr Gogwe and the plaintiff, two bakery employees, who included Raphius Jokonoko, were given occupation of the house with Popular Bakery paying service charges.

That version was, as with the plaintiff's evidence, virtually unchallenged.

If, therefore, the plaintiff acquired rights and interests in the property from D. Katerere and thereafter had the house ceded to him, it is clear the plaintiff has a claim against the second defendant.

Council, as owner of the dwelling, can be ordered and directed to register the dwelling in the name of the plaintiff as the lawful holder of rights and interests in the dwelling.

Council, as administrator of State land, can be ordered and directed to do/take such steps as are provided for in the lease to buy agreement to ensure that Government is appraised of the plaintiff's status as the holder of rights and interests in the dwelling built on Stand 360 Makusha Township and thus entitled to be granted title per Government's undertaking in terms of clause 18 of the lease to buy agreement. It will then be up to Government to grant title.

In a bid to stave off the plaintiff's claim, the first defendant contended that he has better title to the property and so the plaintiff should not succeed.

In that regard, he referred to a lease to buy agreement that he entered into on 17 December 2002. He also referred to several payments he made in furtherance of that agreement.

That agreement is titled “PURCHASE/SALE AGREEMENT CONVERSION OF RENTED ACCOMMODATION INTO HOME OWNERSHIP: MEMORANDUM OF AGREEMENT.”

It is common cause, that, as at the time the plaintiff's summons were issued, the first defendant claimed he occupied the house as a mere tenant.

In paragraphs 1-3 and 1-4 of their plea, the defendants denied that the house was ever on home-ownership scheme and challenged the plaintiff's to prove that:

“1.3 That the house in question is or ever was on home ownership scheme. Dickson Katerere was a mere tenant of the second defendant just like the first defendant.

1.4 That the plaintiff acquired any title to the house in question from Dickson Katerere who was a mere tenant.”

After having pleaded in that manner, the first defendant said he was offered the property for home ownership in November 2002 and the lease to buy agreement was entered into on 17 December 2002.

The first defendant's attempt to raise a new defence of better title acquired after summons has its own hurdles to overcome.

Order 20 Rule 135(3) of the High Court rules states that:

“Where any ground of defence arises after the defendant has delivered a plea, the defendant may, within twelve days after such ground of defence has arisen, or at any subsequent time, by leave of the court, file a further plea setting forth the same.”

When the further ground of defence arose, the first defendant should have amended his plea to encompass the new ground.

In Chiviya v Chiviya 1995 (1) ZLR 201 (H)…, ROBINSON J had this to say about such failure to amend:-

“Accordingly, before setting down his application for a decree of divorce, the applicant should have attended to amend his declaration in this respect since it is not competent to lead evidence on a material matter which has not been pleaded.”…,.

The plaintiff's counsel properly submitted, that, with the closure of pleadings and joinder of issues, on 17 June 2002, the matter became litis contestatio.

Litis contestatio occurs when pleadings in a matter are closed: see Government of South Africa v Ngubane 1972 (2) SA 601 (A)…, and Jankowiak & Anor v Parity Insurance Co. Ltd 1963 (2) SA 286 (W)…,.

When litis contestatio is reached, the property in dispute becomes res litigiosa, and cannot be alienated: see Exparte Deputy Sheriff, Salisbury; Inre Doyle v Salgo 1957 R & N 530 (SR Scholtens (1958) 75 SALJ…,.

In casu, it is clear, that, although the second defendant, had, in their joint pleas, said that the first defendant was a mere tenant in respect of the property in dispute, the second defendant went on to execute a Purchase/Sale Agreement with the first defendant on 17 December 2002 in respect of the same property.

When the defendants entered into the agreement they were fully aware these proceedings had reached litis contestatio and the property had become res litigiosa.

Accordingly, the defence of better title based on non-pleaded defence and events after the closure of pleadings cannot avail the first defendant.

The first defendant's contention that the matter was not litis contestatio because the lease to buy was entered with the State is no saviour.

It is the second defendant, that, according to the first defendant, invited him to enter into the agreement. Clearly, in my view, both defendants intended to defeat the plaintiff's case.

They cannot be allowed to succeed in this regard.

The issue as to who had better title must be decided as at the time summons were issued and pleadings were closed.

HH54-10 : ANDREW BRUFORD vs ATTORNEY GENERAL and MAGISTRATE JARABINI
Ruled By: BHUNU J

The applicant is standing trial in the Magistrates Court on charges he has not specified in his founding affidavit. The nature of the charges that the applicant is facing is however immaterial to the determination of this application.

What is material is that on the 15th of February 2010 the applicant made an application for discharge at the close of the State case. The application did not find favour with the trial magistrate who has now been cited as the second respondent. The trial magistrate having found no merit in the application dismissed the application and ordered that the trial must proceed at 2:15pm on the 4th of March 2010. That date was subsequently extended to today the 12th of March 2010 at 12noon.

I have further extended the time to 3pm this afternoon.

In dismissing the application for discharge at the close of the State case, the trial magistrate did not give his reasons for his determination. Aggrieved by the trial magistrate's interim determination, the applicant's lawyers wrote to the Clerk of Court on the 22nd February 2010 in the following vain:

“We refer to the above matter in an application for discharge of the Accused at the close of the State Case which was dismissed on the 15th March 2010.

We confirm that our Miss Maphosa requested for reasons for judgment for the purpose of an appeal to the High Court against the decision of his worship, Magistrate Jarabini, on the same day.

Kindly place this letter before his worship as a reminder.”

In paragraph 5(c) of his founding affidavit, the applicant had this to say:

“(c) My legal practitioner indicated that the said reasons were required for an appeal the defence intended to file with the High Court on my behalf.”

(d) The 2nd Respondent advised that the said reasons would be furnished and directed my legal practitioner to check with the court before the end of the following week.

(e) On the 22nd February 2010, the beginning of the following week, Miss Maphosa wrote a letter to the Clerk of Court which was received on 24th February 2010 as a reminder to the 2nd Respondent's commitment…,.

(f)…,.

(g)…,.

(h)…,.

(i) The 2nd respondent stated that he had not seen the letters but that he had written on the record, that, despite the request by the defence, he would only give his reasons in the main judgment.”

Aggrieved by the trial magistrate's refusal or failure to give reasons for his interim determination the applicant lodged this urgent application to this Court seeking a provisional order staying the criminal proceedings pending receipt of the trial magistrate's reasons for dismissing the application for discharge at the close of the State case.

Finally, the applicant seeks an order compelling the second respondent to furnish him with the reasons for the interim determination.

During the course of argument, counsel for the applicant made the valid concession that it would be premature and incompetent to appeal against the trial magistrate's interim determination at this stage as intimated in her letter and confirmed in the applicant's founding affidavit.

The defence having realized the folly of its written word, counsel has now made an about turn and has submitted that the defence in fact meant that it intended to seek a review of the of the trial magistrate's interim determination.

That may very well be so, but, applications are determined on the record with affidavits constituting the evidence.

While counsel may seek to amend her own letter, it is virtually impossible to amend her client's affidavit.

Appealed
HH58-10 : DRAWING SERVICES (PVT) LTD vs BETTY KANYUCHI
Ruled By: BERE J

The point has been made by the defendant's counsel that the defendant is a bona fide possessor, and, as such, has a lien or ius retentionis to enforce her right to compensation for the improvement she made on the property in issue….,. It does seem to me that the issue of a lien, not having been ...

HH64-10 : STATIONERY BOX (PVT) LTD vs NATCON (PVT) LTD and FARAI NDEMERA
Ruled By: MAKARAU JP

I have also considered whether the alleged subsequent agreement between the parties, that the defendants would proceed to sell the chalk and remit periodic payments to the plaintiff, would constitute a defence to a claim for the purchase price of the chalk. In this regard, I have considered whether this subsequent arrangement, if proved, would constitute ...

HH69-10 : COTTON COMPANY OF ZIMBABWE LIMITED vs MOBIL OIL ZIMBABWE (PVT) LTD AND TOTAL ZIMBABWE (PVT) LTD
Ruled By: MAKARAU JP

Prescription The first issue that arises in this matter is whether or not the plaintiff's claim against the second defendant has prescribed. The first defendant did not raise the issue at all. In resisting the plea, the plaintiff has sought to rely on the provisions of section 16(3) of the Prescription Act [Chapter 8:11] which reads - “(3) A debt ...

HH90-10 : LOCAL AUTHORITIES PENSION FUND vs F & R TRAVEL TOURS AND CAR SALES (PVT) LTD and FREEJOY CHIGWIDA and RAPHAEL MAKWARA
Ruled By: MAKARAU JP

The applicant and the first respondent are landlord and tenant respectively. Their relationship commenced when they concluded a written agreement in respect of certain commercial premises situate at Throgmorton House, Samora Machel Avenue, in Harare. The agreement was for a period of one year, commencing on 1 July 2006 and terminating on 30 June 2007.

The second and third defendants, as directors of the first respondent, bound themselves as co–principal debtors under the lease agreement.

In July 2009, the applicant filed this application seeking an order evicting the respondents from the rented premises. In its founding affidavit, it averred that the respondents had breached the written lease agreement by failing to pay rentals and operating costs for the premises since January 2009. The amount of arrear rentals and outstanding operating costs was also prayed for in the order.

It is pertinent, in my view, that, at this stage, before I detail the opposition that was filed by the respondents, I comment on the manner in which the applicant proceeded to frame its cause of action against the respondents.

The applicant has alleged that the respondents are in breach of the written lease agreement of 2006.

It is common cause that the written lease agreement between the parties terminated by the effluxion of time in June 2007. As at the time of the filing of the application, it was no longer binding upon the parties and could thus not found a cause of action for the applicant.

Its terms and conditions may have continued to afford the respondents protection against eviction under the operation of the provisions of the Commercial Rent Regulations S.I. 276/83(“the Regulations”), under what is commonly referred to as statutory tenancy.

This is however not part of the averments made by the applicant in its founding affidavit.

In my view, statutory tenancy is not an issue that the court should take judicial notice of mero motu. It must be specifically pleaded as it brings into play different considerations regarding the respective rights of the parties. It is a separate cause of action, apart from the terminated lease agreement.

I shall avert to the provisions of the Commercial Rent Regulations S.I.276 of 1983 (“the Regulations”) in detail below.

At this stage, the point I am making is that the applicant could not validly seek to rely on an agreement that had terminated without first laying a legal basis for its revival so to say. As I shall show later, this may have fatally compromised the applicant's quest to recover its property from the tenant.

In opposing the application, the respondents argued, that, the written agreement between the parties provided for payment of rent in local currency, and, when that currency lost favour with traders and generally, the applicant sought to impose a rental in United States currency with the parties failing to reach agreement on the amount payable.

Again, I pause to make the point, that, the respondents were clearly relying on the protection against eviction afforded them by the Commercial Rent Regulations but did not specifically raise that defence in their papers....,.

The applicant has not pleaded statutory tenancy as its cause of action. It has instead alleged breach of a specific written agreement and I have disposed of the matter on that basis.

HH95-10 : TIISO HOLDINGS (PTY) LIMITED vs ZIMBABWE IRON & STEEL COMPANY LIMITED
Ruled By: PATEL J

The plaintiff in this matter has issued summons for payment of the sum of EUR6,640,295=94 together with interest and costs of suit.

The claim arises pursuant to a default judgment of the Regional Court of Frankfurt entered in favour of Kreditanstalt fur Wiederaufbau (KFW) as against the defendant on 25 July 2006.

On 20 May 2008, KFW assigned its rights in the judgment to the plaintiff.

The latter then obtained judgment on the Frankfurt award for an equivalent sum in the High Court of Botswana on 5 June 2009.

The defendant has not satisfied either the Frankfurt or the Botswana judgment.

The plaintiff's claim in this Court is founded on the Frankfurt judgment.

The defendant has filed a Plea in Abatement challenging the enforceability of that judgment on various grounds.

At the hearing of this matter, counsel for the defendant abandoned several of these grounds relating to, inter alia, the impact of the in duplum rule on the interest claim, the non-payment of security for costs by the plaintiff as a peregrine suitor, and the non-enforceability of the Botswana judgment. The last aspect was not pursued in light of the concession by counsel for the plaintiff that its claim was premised solely on the Frankfurt award and not on the Botswana judgment.

Following these concessions, the issues for determination in casu are as follows:

(a)...,.

(b) Whether the plaintiff has locus standi to claim any interest beyond the assigned capital amount....,.

Claim for Interest

In terms of clause 1.1 of the Deed of Assignment, KFW transferred to the plaintiff, by way of assignment, “the claim for payment of the Assignor under the loan agreements Nos. F2971 and F3040…, up to an amount not exceeding EUR6,640,295.94 against Zimbabwe Iron & Steel Company…, as awarded by the judgment of the District Court in Frankfurt am Main dated July 25, 2006.”

In the instant case, the plaintiff claims the entirety of the Frankfurt award, i.e. the capital sum of EUR6,640,295=94 as well as interest at varying rates on diverse amounts from 30 December 1999.

It is axiomatic that a litigant is only entitled to claim that in which he has a legal right or interest.

The plaintiff herein clearly has no locus standi whatsoever to claim anything more than the assigned amount of EUR6,640,295=94.

Counsel for the plaintiff quite correctly conceded this point and abandoned the plaintiff's claim for interest as set out in the Summons and Declaration.

However, he then sought to substitute a claim for interest at the prescribed rate of 5% per annum, calculated from 25 July 2006, being the date of the Frankfurt ruling.

Counsel for the defendant did not appear to raise any objection to the proposed amendment.

Despite this apparent consensus between counsel, I perceive one particular difficulty with the revised claim for interest.

What is essentially sought in casu is the recognition and enforcement of a foreign judgment, as embodied in a private treaty, in the form of a Deed of Assignment. Any such recognition and enforcement may only be granted on the face of the judgment as translated into the Deed of Assignment.

Accepting the original un-amended claim for interest, as I have already stated, involves granting to the plaintiff more than what it owns. Acceding to the amended claim for interest entails having to modify the express terms of the foreign judgment sought to be recognised and enforced.

In my view, neither of these avenues is available to the plaintiff. It must be confined to the amount awarded by the Frankfurt court as recast and transferred to it through the Deed of Assignment.

For the sake of completeness, I should add that I might have been prepared to accede to a revised claim for interest at the prescribed rate, either from the date of issuance of the summons or from the date of judgment in casu.

However, that is not what was specifically sought before me and I am not at liberty to entertain any such claim mero motu.

HH112-10 : CENTRAL AFRICAN BUILDING CONSTRUCTION COMPANY (PVT) LIMITED vs CONSTRUCTION RESOURCES AFRICA (PVT) LIMITED
Ruled By: GOWORA J

Counsel for the plaintiff submitted that at the pre trial conference the defendant had belatedly raised, for the first time, the issued that the plaintiff's representatives, namely Viera Senior and Viera Junior, were no longer Directors.

HH116-10 : DEBORAH GLORIA KOUMIDES vs PAUL KOUMIDES
Ruled By: MAVANGIRA J

The issue was never pleaded. I do not think that there is any need for me to make any further pronouncements on this issue in these circumstances.

HH121-10 : POWER COACH EXPRESS (PVT) LIMITED vs MARTIN MILLERS AND ENGINEERS
Ruled By: BERE J

The thrust in insisting on adherence to pleadings is that a party must not be prejudiced in the conduct of its case by having to deal with issues which would not have been pleaded. In the instant case, it is true that the plaintiff did not specifically plead its claim for $72,473= in its papers but ...

The thrust in insisting on adherence to pleadings is that a party must not be prejudiced in the conduct of its case by having to deal with issues which would not have been pleaded.

In the instant case, it is true that the plaintiff did not specifically plead its claim for $72,473= in its papers but made a general claim for damages in its declaration. In my view, the gap in pleadings was sufficiently canvassed during the plaintiff's representative's evidence-in–chief. Documentary evidence, in the form of a quotation, from D.C.de Sousa (Pvt) Ltd, was produced, and the defendant given a chance to examine and cross-examine on that exhibit. The defendant made certain observations on the exhibit and bemoaned the plaintiff's failure to produce more exhibits to give credence to the amount of the claim. More importantly, the issue of the plaintiff's entitlement to damages, and quantum thereof, was one of the issues jointly adopted by both parties at the pre-trial conference. I strongly believe that in such a situation there can be no question of the defendant having been prejudiced by the plaintiff's conduct. The defendant had the opportunity to rebut the plaintiff's quantified damages by bringing to the fore for consideration its own quotations. In the court's view, this is a clear scenario where the court can safely rely on the provisions of Order 1 Rule 4C(a) of the High Court Rules, 1971. For clarity's sake, the Rule is couched as follows –

“4C The court or judge may, in relation to any particular case before it or him, as the case may be –

(a) Direct, authorize, or condone departure from any provision of these rules..., where it...., is satisfied that the departure is required in the interests of justice;

(b) ...,.”

What is clear from the above-cited Rule is that this Court has greater latitude, in appropriate cases, to depart from blind adherence to the Rules in the interest of justice. In this regard, NEWTON THOMPSON J remarked as follows in the case of Vos v Cronje and Duminy 1947 (4) SA 873 (C)..., -

“That the court is not bound by the strict pleadings when the parties themselves have enlarged the issues is beyond argument (Still v Milner 1937 AD at p105). In Robinson v Randfontein Estate GM Co. Ltd 1925 AD at p198 it was said:

'The object of pleadings is to define the issues; and the parties will be kept strictly to their pleas where any departure would cause prejudice or would prevent full enquiry. But within these limits the court has wide discretion. It seems to me, in this case, there was a full enquiry with the result that the court was placed in possession of all the facts which would have enabled it to make an award of damages if such had been asked for.'”...,.

Similar sentiments were echoed in other subsequent decisions. Thus, in Collen v Rietifontein Engineering Works 1948 (1) SA 413 (A)..., CENTLIVRES JA remarked –

“This court, therefore, has before it all the materials on which it is able to form an opinion; and this being the position, it would be idle for it not to determine the real issue which emerged during the course of the trial. See Still v Milner (1937, A.D. 101, at p105) and the authorities there cited.”

Back home, and in the case of Mtuda v Ndudzo 2000 (1) ZLR 710 (H)..., the learned judge GARWE J..., remarked as follows –

“These sentiments have been approved in various other decisions since then. Even where no amendments have been applied for, both trial courts and courts of appeal have, in appropriate cases, adjudicated on issues not raised on the pleadings but fully canvassed at the trial.”

In light of the evidence led in this court on how the amount of the claim was computed, coupled with the various authorities cited, I am satisfied beyond any shadow of doubt that, contrary to the position held by the defendant, the plaintiff's claim, though not having been specifically pleaded, is properly before the court and screams for consideration.

Appealed
SC14-14 : CRESSY MAGUMISE vs ALPHEUS MAGUMISE
Ruled By: ZIYAMBI JA, GWAUNZA JA and GUVAVA JA

This is an appeal against the judgment of the High Court handed down on 11 April 2013 in which a decree of divorce as well as certain ancillary relief was granted.The appellant raised two (2) grounds of appeal;(i) That the court a quo erred in dismissing her claim to maintenance in the reduced sum of $150= ...

HH157-10 : ISAU MUGUGU vs POLICE SERVICE COMMISSION and COMMISSIONER OF POLICE
Ruled By: GOWORA J

As to the first respondent raising an issue for the first time which was not in the record, the first respondent has stated in the opposing affidavit that it was never the intention of the first respondent to discharge the applicant from the service and that the recommendation was an apparent error. A reading of ...

HH163-10 : BISSY BEE (PVT) LTD vs GRAIN MARKETING BOARD and BRUKMARK MICROFINANCE (PVT) LTD and DEPUTY SHERIFF-CHITUNGWIZA
Ruled By: MUSAKWA J

At the hearing of this matter the third respondent wanted to submit additional evidence not canvassed in his affidavit.

HH164-10 : KENNETH PATRICK McCOSH vs PIONEER CORPORATION AFRICA LIMITED
Ruled By: KUDYA J

The plaintiff, a former financial director of the defendant company, filed summons on 8 July 2009 seeking payment of the capital sum of US$72,334 and interest at the rate of 10% per annum from the date when the amount fell due to the date of the issue of summons in the sum of US$12,658, payment of interest on the capital amount at the rate of 10% from the date of the issue of summons to the date of payment in full and costs of suit.

The defendant contested the matter.

The plaintiff's cause of action was disclosed in paragraphs 3, 4 and 5 of its declaration in these terms:

“3. The defendant became indebted to the plaintiff in respect of arrear salaries and other benefits arising from a contract of employment concluded between the parties on or about 21 September 2004 that was terminated by the plaintiff's resignation from employment on 7 March 2007.

4. During the month of April 2007, the defendant partly liquidated the amount claimed by the plaintiff by delivering to the plaintiff a motor vehicle and a laptop computer whose agreed values totalled US$30,000.

5. On or about 18 July 2007, the Group Chief Executive Officer of the defendant, Mr Hamish Rudland acknowledged liability for the sum as at that date of US$70,000 which would attract interest at the rate of 10% per annum.”

The defendant raised a plea in bar based on two grounds before pleading over to the merits. Its plea reads as follows:

“1. As appears from the plaintiff's declaration:-

1.1 The cause of action is predicated on a contract of employment concluded by the parties on 21 September 2004.

1.2 The claim is for payment of alleged arrear salaries and benefits consequent upon resignation.

1.3 The payment of salaries and benefits during and upon termination of a contract of employment is governed by the provisions of the Labour Act [Cap 28:01].

1.4 Accordingly, and in terms of section 89(6) of the Labour Act, this Honourable Court has no jurisdiction to hear and determine this claim.

2. Additionally, but without prejudice to the above, the defendant avers that:

2.1 The contract of employment between the parties provided for payment of salaries and benefits in Zimbabwe dollars, being the lawful legal tender.

2.2 The plaintiff's claim is denominated in foreign currency, namely, the United States dollars.

2.3 At the material time, the payment of salaries and benefits in foreign currency, without exchange control approval, was illegal and unenforceable by virtue of:

2.3 1. The Exchange Control Act [Cap 27:05].

2.3.2. Exchange Control Regulations, 1996, SI 110/1996.

2.3.3. The Labour Act [Cap 28:01].

2.4. In the premises, the plaintiff's claim is bad and unsustainable at law and ought therefore to be dismissed with costs.”

In pleading over to paragraphs 3, 4 and 5 of the plaintiff's declaration, the defendant denied these averments and put the plaintiff to the proof thereof and reiterated that the mode of payment sought was unlawful.

In his replication, the plaintiff averred that his cause of action was premised on an acknowledgment of debt signed by a representative of the defendant and not on the terms of employment.

He also averred that the defendant was obliged to obtain the necessary foreign currency exchange approvals to pay him in foreign currency using its free funds.

At the pre-trial conference that was held on 8 April 2010, the following four issues were referred to trial:

(a) Whether or not this Honourable Court, and in the light of section 89(6) of the Labour Act [Chapter 28:01], has jurisdiction to adjudicate over the dispute between the parties;

(b) Whether the contract of employment between the parties provided for payment to the plaintiff in United States dollars and the amount thereof;

(c) Whether the plaintiff's claim was lawful at the material time; and

(d) What amount, if any, is due to the plaintiff.

The trial in this matter was held on 14 June 2010. The plaintiff called the evidence of two witnesses and produced a 40-paged bundle of documents as exhibit 1.

After the close of the plaintiff's case, the defendant elected to open and close its case without calling any evidence.

My findings of fact are based on those aspects of the evidence called by the plaintiff that survived cross examination.

The plaintiff holds a Bachelor of Law (Honours) degree from the University of Zimbabwe (1983) and is a Chartered Accountant (1988). He was the Group Financial Director of the defendant from 1 June 2004 until his resignation on 7 March 2007. His contract of employment with the defendant is covered in pages 2 to 6 of exhibit 1. The relevant sections fall under the headings Remuneration and Benefits. I set them out below:

“3. REMUNERATION

As remuneration for services rendered, the Contractor shall pay the contracted person, during the subsistence of this agreement, the sum of $21 million per month, payable monthly in arrears. The salary will be subject to taxation in line with the rules and regulations of the Zimbabwe Revenue Authority. As you are on a fixed term contract, the company is not liable to pay any further sums of money which may be required of you by operation of law. This shall be reviewed every quarter.

4. BENEFITS

In addition to the salary stated above, you will be entitled to the following:

4.1 Cimas Medexec Medical Aid for you and your family.

4.2 Use of a company vehicle and 200 liters per month. Such allowance is for monthly usage and shall not accrue.

4.3 School fees for two children, but any change in school requires the authority of the CEO.

4.4 Cafeteria/entertainment allowance to be agreed annually by CEO.

4.5 Any other amounts will be deducted from the cafeteria allowance.”

The plaintiff indicated that his claim was based on the contents of pp7 and 8 of exhibit 1. It is an e-mail dated 13 July 2006 which the plaintiff dispatched to himself and copied to his website. It was signed and dated at the bottom of each page by Hamish Rudland, the acting Chief Executive Officer of the defendant at the time. The purported acknowledgment of debt was sandwiched between a set of seven action plans on the first page and another set of seven action plans on the second page. The acknowledgments read:

“HR acknowledges outstanding balance to KPM of US70K subject to update of figures.

HR acknowledges 10% interest per annum calculated monthly.

HR acknowledges salary US6K per month inclusive of local salary.”

The plaintiff stated that HR referred to Hamish Rudland while KPM referred to the plaintiff.

He stated that the defendant was to promote a company in Mauritius which would be used as the vehicle to pay top management in Zimbabwe in foreign currency and pay his outstanding debt.

It was common cause that the vehicle and laptop were sold to the plaintiff as indicated in the letter by Hamish Rudland (HR) of 10 September 2007 on p18 of exhibit 1. He averred that the two items were valued at US$30,000 and abated the outstanding capital sum and interest.

On pages 19 and 20 are the purported minutes that he wrote on 15 January 2008 of a meeting he held with Hamish Rudland (HR) and the plaintiff's wife in which he recorded, inter alia, his demand for payment of the outstanding debt by Pioneer Corporation Africa (PCA) and the reluctance to pay by Hamish Rudland (HR) until he had received a return on his investment and an undertaking that payment would be made at a later date.

He was the only one who signed those minutes.

He also relied on the minutes he authored on 18 March 2009 between Hamish Rudland (HR), EM Warhurst (EMW) and himself on pp 29-30 of exhibit 1. They were signed by EM Warhurst (EMW) and the plaintiff only.

They indicate that Pioneer Corporation Africa (PCA) owed EM Warhurst (EMW) US$15,000 and the plaintiff just over US$80,000.

While they show that Hamish Rudland (HR) was unwilling to pay the debt, they record that he had signed the plaintiff's contract of employment and acknowledgment of debt in July 2006.

Pages 38-39 show that, from October 2003 to February 2007, the plaintiff was entitled to receive from the defendant US$215,000 in salary. He was paid a total of US$157,251 between October 2003 and March 2007. The capital outstanding in salary arrears was US$57,749. The amount due as interest, from December 2005 to June 2009 was in the sum of US$26,462.

He was cross-examined.

He based his claim on an acknowledgement of debt of 17 July 2006. The acknowledgment arose from the failure to pay salaries during the period extending from October 2003 to February 2007.

He stated that he did not sue the defendant for arrear salaries that were incurred between October 2003 and July 2006 because during that period he was a member of the plaintiff's management team.

He accepted that, at that time, legal tender in Zimbabwe was the local dollar.

He was referred to section 12A of the Labour Act.

He was evasive on whether his claim was founded on a contract of employment or not. He was evasive on whether payment in United States dollars was payment in kind or not. He stated that in 2006 there were no exchange control prohibitions against the payment of salaries in foreign currency but conceded that during the period of his employment with the defendant he was never paid in United States dollars. He further acknowledged that at that time the defendant did not pay any of its employees in foreign currency.

He said the United States dollar was used to index the payment in kind in the form of air tickets that he received for holidays outside Zimbabwe.

He admitted that he could not claim in United States dollars before February 2009.

He accepted that the email of 18 July 2006 was made when Hamish Rudland (HR) had taken over as the Acting Chief Executive Officer of the defendant but denied that it was a mere update of the company's affairs and hand over/take over summary sheet. He said it was not an exchange of information document but a contract between the plaintiff and the defendant.

He accepted that it was not in the usual mode of an acknowledgement of debt that is drawn up by legal practitioners.

He averred, that, at the time, the defendant was obliged to pay him in the Zimbabwe dollar equivalent of US$70,000 at the prevailing parallel market rate of exchange.

He called Edward Mark Warhurst, a practicing legal practitioner, who, at the time, was the Group Company Secretary and Managing Director of Clan Transport (Pvt) Ltd, one of the subsidiaries of the defendant.

Edward Mark Warhurst confirmed the accuracy of the minutes written by the plaintiff at the meeting of 18 March 2009 found in exhibit 1. He said Hamish Rudland (HR) sought to refute indebtedness on the basis that the plaintiff had given poor service to the defendant but he accepted that the defendant owed the plaintiff arrear salaries in foreign currency for which it was unable to pay.

He was cross examined.

He was a workmate of the plaintiff during the period 2003 to 2006 when he worked for the defendant. He was owed arrear salaries in foreign currency for the period September 2005 to August 2006. He was invited by the plaintiff to the meeting of 18 March 2009 because both were creditors to the defendant.

He confirmed that his salary was paid in local currency.

It is on the basis of the evidence led that I proceed to determine the issues referred to trial.

(a) Whether or not this Honourable Court, and in the light of section 89(6) of the Labour Act [Chapter 28:01] has jurisdiction to adjudicate over the dispute between the parties

Counsel for the defendant submitted that this court did not have the jurisdiction to deal with this matter as it is a labour dispute. The plaintiff conceded, in his replication, that, were the present matter a labour dispute, he would have had to file it out of the Labour Court.

It seems to me, notwithstanding that this court is a superior court imbued with inherent jurisdiction, that all labour disputes must be dealt with in terms of the relevant provisions of the Labour Act.

It was common cause that section 89(6) of the Labour Act ousts the inherent jurisdiction of this court to hear labour disputes in the first instance. Put in other words, the High Court cannot be the first port of call to any party in a labour dispute.

The dispute, being one of right and not interest, would perforce be dealt with in terms of section 93 of the Labour Act by a labour officer who could refer it to arbitration from whence it would find its way to the Labour Court.

Counsel for the plaintiff submitted that this court had the jurisdiction to determine this matter because the plaintiff's case was found on an acknowledgment of debt and not on a contract of employment.

It is correct that, in our law, an acknowledgment of debt can found a cause of action: see Chimutanda Motor Spares (Pvt) Ltd v Musare & Anor 1994 (1) ZLR 310 (H)…,; Gondwe v Bangajena 1988 (1) ZLR 1 (H)…,; and Salisbury Municipality v Partington & Anor 1961 (3) SA 218 (SR)…,.

Counsel for the defendant contended that the plaintiff pleaded his cause of action as the contract of employment. He argued that reference to an acknowledgment of liability by the defendant's acting Chief Executive Officer in the declaration did not shift the cause of action to that of an acknowledgment of debt. He further contended that the document purported by the plaintiff to be an acknowledgment of debt was merely an update of the company's affairs and a hand over/take over sheet.

Counsel for the plaintiff contended that the statements sandwiched between other unrelated action plans constitute an acknowledgment of debt.

His contention appears to be borne out by the sentiments expressed by McNALLY J in S v Manyere 1984 (1) ZLR 104 (H)…, to the effect that an “I owe you” left in a cash box would constitute an acknowledgment of debt.

It is correct that the defendant did not call evidence to dispute the facts set out by the plaintiff and his witness or offer an alternative version of events.

It is also correct, that, subsequent to the acknowledgement of debt, two sets of minutes were written by the plaintiff, that the defendant's acting Chief Executive Officer refused to sign, which show that he acknowledged the defendant's indebtedness to the plaintiff in the amount claimed.

Again, the plaintiff's version was supported by Edward Mark Warhurst who was a forthright and credible witness.

It seems to me, notwithstanding the failure by the defendant to lead evidence, that counsel for the defendant's contention that the plaintiff's cause of action was predicated on a contract of employment is correct.

In my view, paragraphs 4 and 5 of the plaintiff's declaration are explanatory averments of how he arrived at the capital sum and interest claimed. The legal foundation of the claim lies in the contract of employment. Paragraph 3 of the declaration is the basis of the plaintiff's claim.

I understand him to be averring that the debt for which he seeks redress arose from unpaid salary arrears.

This is confirmed in the further particulars supplied by the plaintiff as read with the information supplied to the defendant's chairman on pages 31 to 39 of exhibit 1 in which he collated the outstanding salaries from October 2003 to February 2007 and outstanding interest due from December 2005 to June 2009.

The failure by the plaintiff to plead that his claim was based on an acknowledgment of debt executed on 18 July 2006 further confirms that he found his claim on unpaid arrear salaries.

Accordingly, I uphold the exception raised by the defendant and dismiss the plaintiff's claim on the basis that this court lacks the jurisdiction to determine the matter by virtue of the provisions of section 89(6) of the Labour Act [Chapter 28:01].

However, in the event that I am wrong, and the cause of action was properly pleaded in terms of paragraph 5 of the declaration, I proceed to deal with the other issues that were referred to trial.

prev 1 2 3 4 5 6 next

Back Main menu

Law Portal Zimbabwe

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

HH52-09 : NEIL BRUCE vs ECONET WIRELESS (PVT) LTD and CITY OF HARARE Ruled By: OMERJEE J

Appealed SC27-08 : JOSHUA KADENGU and LAMECK KADENGU and ROSA KADENGU vs OLGA KADENGU and RICHARD CHIMBARI and MASTER OF THE HIGH COURT Ruled By: SANDURA JA, ZIYAMBI JA and GARWE JA

HH14-12 : JOEL MATONGO vs FLORA MATONGO (NEE JOE) Ruled By: CHITAKUNYE J

HH43-12 : SHELTER MAVATA vs JAMES CHIBANDE Ruled By: OMERJEE J and HLATSHWAYO J

HH120-12 : JOHN MAUCHAZA vs SARAH NOTA Ruled By: GOWORA J and PATEL J

HH13-09 : BORDER TIMBERS LIMITED vs ZIMBABWE REVENUE AUTHORITY Ruled By: MAKARAU JP

HH71-09 : AGRO CHEM DEALERS (PVT) LTD vs STANLEY GOMO and CITY OF HARARE and RONALD AJARA and THE REGISTRAR OF DEEDS Ruled By: GOWORA J

HH47-10 : MUNYARADZI CHIKUMBU vs VIOLET NHAMO Ruled By: BERE J

HH24-12 : REDAN PETROLEUM (PRIVATE) LIMITED vs GERALD ASHLEY MUZVIDZWA Ruled By: MTSHIYA J

Appealed SC36-12 : RESERVE BANK OF ZIMBABWE vs CAFCA LTD Ruled By: MALABA DCJ, ZIYAMBI JA and OMERJEE AJA

HH165-12 : MINING INDUSTYRY PENSION FUND vs FARTINGALE DESIGN (PVT) LTD AND LETINA UNDENGE Ruled By: KUDYA J

HH12-09 : BGM TRAFFIC CONTROL SYSTEMS vs THE MINISTER FOR TRANSPORT AND ZIMBABWE NATIONAL ROADS ADMINISTRATION AND THE CITY OF HARARE Ruled By: MAKARAU JP

HB04-12 : TREZIAH NDLOVU vs SARAH MLANGENI Ruled By: KAMOCHA J

SC10-09 : FARAI NIGEL CHITSINDE vs NYASHA AMANDA CHITSINDE AND STANNY MUSA Ruled By: GARWE JA

HH71-10 : FELISTAS MUTSETA vs ELLIOT ENOCK MUTSETA Ruled By: MAVANGIRA J

HB01-09 : JOHN MLILO vs TSEPO MOLISA Ruled By: KAMOCHA J and NDOU J

HH37-08 : MOVEMENT FOR DEMOCRATIC CHANGE and MORGAN TSVANGIRAI vs CHAIRPERSON, ZIMBABWE ELECTORAL COMMISSION and CHIEF ELECTIONS OFFICER, ZIMBABWE ELECTORAL COMMISSION Ruled By: UCHENA J

HH47-08 : TSITSI MUZENDA vs PATRICK KOMBAYI and ZIMBABWE ELECTORAL COMMISSION Ruled By: KUDYA J

HH45-08 : HILLARY SIMBARASHE vs ZIMBABWE ELECTORAL COMMISSION and MABEL CHINOMONA Ruled By: KUDYA J

HH01-09 : CONSTANTINOS BAKARIS vs GEORGE KATTAVENOS Ruled By: KUDYA J

HH01-09 : CONSTANTINOS BAKARIS vs GEORGE KATTAVENOS Ruled By: KUDYA J

HH99-09 : ALSPITE INVESTMENTS (PRIVATE) LIMITED vs TENDAYI WESTERHOFF Ruled By: MAKARAU JP

HH134-09 : PUWAYI CHIUTSI vs CLARA CHIUTSI Ruled By: MUSAKWA J

HH74-10 : CHARLES MAKANI vs GERTRUDE MAKANI (NEE ZIMONDI) Ruled By: GUVAVA J

HH141-09 : OLIVER CHIBAGE vs KUDZAI SIBUSISO NDAWANA Ruled By: MAKARAU JP

HH142-09 : JOVITA SANYANGOWE vs ELVIS CHALIMBA Ruled By: MUSAKWA J

HH144-09 : NEGOWAC SERVICES (PRIVATE) LIMITED vs 3D HOLDINGS (PRIVATE) LIMITED AND GIFTCARE ELECTRICAL (PVT) LTD t/a REG ELECTRICAL WHOLESALERS Ruled By: MTSHIYA J

HH152-09 : PATRONELLA CHARUMBIRA In her capacity as the executrix dative of the estate of the late Adben Benjamin vs HUDSON MUSASA and REGISTRAR OF DEEDS and ASSISTANT MASTER Ruled By: MUSAKWA J

HH156-09 : FREDDY CHINYAVANHU vs LETWIN CHINYAVANHU Ruled By: GUVAVA J

HH163-09 : MTOMBENI REGINALD vs TAPFUMANEYI MUPFURAREHWE Ruled By: GOWORA J

HH164-09 : ZIMRE PROPERTY INVESTMENT (PVT) LTD vs CITY CALVARY CHURCH Ruled By: GOWORA J

HH169-09 : GRAMARA (PRIVATE) LIMITED and COLIN CLOETE vs GOVERNMENT OF THE REPUBLIC OF ZIMBABWE and ATTORNEY-GENERAL OF ZIMBABWE and NORMAN KAPANGA (INTERVENER) Ruled By: PATEL J

HB09-09 : TERENCE ALAN BLAKE and EDWARD GRAHAM BURROUGHS vs TABS-AVOIN LIGHTING (PVT) LTD and ASMARA COMPANY (PVT) LTD and JONATHAN TAFADZWA JERE and JAIROS MTHONISI MOYO Ruled By: CHEDA J

HH103-09 : U-TOW TRAILERS (PRIVATE) LTD vs CITY OF HARARE and SUPERLUX (PRIVATE) LIMITED Ruled By: MAKARAU JP

HH35-10 : RUTH MUSONZA (nee MTANAUKWA) vs ESHMAEL MUSONZA Ruled By: GUVAVA J

HH43-10 : KUDAKWASHE MAVINDIDZE and NYARADZO MAVINDIDZE vs MURISI MUKONOWESHURO Ruled By: PATEL J

HH45-10 : CHRISTMAS MUSONI vs NABOTH JOKONOKO and SHURUGWI TOWN COUNCIL Ruled By: CHITAKUNYE J

HH54-10 : ANDREW BRUFORD vs ATTORNEY GENERAL and MAGISTRATE JARABINI Ruled By: BHUNU J

Appealed HH58-10 : DRAWING SERVICES (PVT) LTD vs BETTY KANYUCHI Ruled By: BERE J

HH64-10 : STATIONERY BOX (PVT) LTD vs NATCON (PVT) LTD and FARAI NDEMERA Ruled By: MAKARAU JP

HH69-10 : COTTON COMPANY OF ZIMBABWE LIMITED vs MOBIL OIL ZIMBABWE (PVT) LTD AND TOTAL ZIMBABWE (PVT) LTD Ruled By: MAKARAU JP

HH90-10 : LOCAL AUTHORITIES PENSION FUND vs F & R TRAVEL TOURS AND CAR SALES (PVT) LTD and FREEJOY CHIGWIDA and RAPHAEL MAKWARA Ruled By: MAKARAU JP

HH95-10 : TIISO HOLDINGS (PTY) LIMITED vs ZIMBABWE IRON & STEEL COMPANY LIMITED Ruled By: PATEL J

HH112-10 : CENTRAL AFRICAN BUILDING CONSTRUCTION COMPANY (PVT) LIMITED vs CONSTRUCTION RESOURCES AFRICA (PVT) LIMITED Ruled By: GOWORA J

HH116-10 : DEBORAH GLORIA KOUMIDES vs PAUL KOUMIDES Ruled By: MAVANGIRA J

HH121-10 : POWER COACH EXPRESS (PVT) LIMITED vs MARTIN MILLERS AND ENGINEERS Ruled By: BERE J

Appealed SC14-14 : CRESSY MAGUMISE vs ALPHEUS MAGUMISE Ruled By: ZIYAMBI JA, GWAUNZA JA and GUVAVA JA

HH157-10 : ISAU MUGUGU vs POLICE SERVICE COMMISSION and COMMISSIONER OF POLICE Ruled By: GOWORA J

HH163-10 : BISSY BEE (PVT) LTD vs GRAIN MARKETING BOARD and BRUKMARK MICROFINANCE (PVT) LTD and DEPUTY SHERIFF-CHITUNGWIZA Ruled By: MUSAKWA J

HH164-10 : KENNETH PATRICK McCOSH vs PIONEER CORPORATION AFRICA LIMITED Ruled By: KUDYA J

Categories

Your Donation.

Law Portal
Zimbabwe

HH52-09 : NEIL BRUCE vs ECONET WIRELESS (PVT) LTD and CITY OF HARARE
Ruled By: OMERJEE J

Appealed
SC27-08 : JOSHUA KADENGU and LAMECK KADENGU and ROSA KADENGU vs OLGA KADENGU and RICHARD CHIMBARI and MASTER OF THE HIGH COURT
Ruled By: SANDURA JA, ZIYAMBI JA and GARWE JA

HH14-12 : JOEL MATONGO vs FLORA MATONGO (NEE JOE)
Ruled By: CHITAKUNYE J

HH43-12 : SHELTER MAVATA vs JAMES CHIBANDE
Ruled By: OMERJEE J and HLATSHWAYO J

HH120-12 : JOHN MAUCHAZA vs SARAH NOTA
Ruled By: GOWORA J and PATEL J

HH13-09 : BORDER TIMBERS LIMITED vs ZIMBABWE REVENUE AUTHORITY
Ruled By: MAKARAU JP

HH71-09 : AGRO CHEM DEALERS (PVT) LTD vs STANLEY GOMO and CITY OF HARARE and RONALD AJARA and THE REGISTRAR OF DEEDS
Ruled By: GOWORA J

HH47-10 : MUNYARADZI CHIKUMBU vs VIOLET NHAMO
Ruled By: BERE J

HH24-12 : REDAN PETROLEUM (PRIVATE) LIMITED vs GERALD ASHLEY MUZVIDZWA
Ruled By: MTSHIYA J

Appealed
SC36-12 : RESERVE BANK OF ZIMBABWE vs CAFCA LTD
Ruled By: MALABA DCJ, ZIYAMBI JA and OMERJEE AJA

HH165-12 : MINING INDUSTYRY PENSION FUND vs FARTINGALE DESIGN (PVT) LTD AND LETINA UNDENGE
Ruled By: KUDYA J

HH12-09 : BGM TRAFFIC CONTROL SYSTEMS vs THE MINISTER FOR TRANSPORT AND ZIMBABWE NATIONAL ROADS ADMINISTRATION AND THE CITY OF HARARE
Ruled By: MAKARAU JP

HB04-12 : TREZIAH NDLOVU vs SARAH MLANGENI
Ruled By: KAMOCHA J

SC10-09 : FARAI NIGEL CHITSINDE vs NYASHA AMANDA CHITSINDE AND STANNY MUSA
Ruled By: GARWE JA

HH71-10 : FELISTAS MUTSETA vs ELLIOT ENOCK MUTSETA
Ruled By: MAVANGIRA J

HB01-09 : JOHN MLILO vs TSEPO MOLISA
Ruled By: KAMOCHA J and NDOU J

HH37-08 : MOVEMENT FOR DEMOCRATIC CHANGE and MORGAN TSVANGIRAI vs CHAIRPERSON, ZIMBABWE ELECTORAL COMMISSION and CHIEF ELECTIONS OFFICER, ZIMBABWE ELECTORAL COMMISSION
Ruled By: UCHENA J

HH47-08 : TSITSI MUZENDA vs PATRICK KOMBAYI and ZIMBABWE ELECTORAL COMMISSION
Ruled By: KUDYA J

HH45-08 : HILLARY SIMBARASHE vs ZIMBABWE ELECTORAL COMMISSION and MABEL CHINOMONA
Ruled By: KUDYA J

HH01-09 : CONSTANTINOS BAKARIS vs GEORGE KATTAVENOS
Ruled By: KUDYA J

HH01-09 : CONSTANTINOS BAKARIS vs GEORGE KATTAVENOS
Ruled By: KUDYA J

HH99-09 : ALSPITE INVESTMENTS (PRIVATE) LIMITED vs TENDAYI WESTERHOFF
Ruled By: MAKARAU JP

HH134-09 : PUWAYI CHIUTSI vs CLARA CHIUTSI
Ruled By: MUSAKWA J

HH74-10 : CHARLES MAKANI vs GERTRUDE MAKANI (NEE ZIMONDI)
Ruled By: GUVAVA J

HH141-09 : OLIVER CHIBAGE vs KUDZAI SIBUSISO NDAWANA
Ruled By: MAKARAU JP

HH142-09 : JOVITA SANYANGOWE vs ELVIS CHALIMBA
Ruled By: MUSAKWA J

HH144-09 : NEGOWAC SERVICES (PRIVATE) LIMITED vs 3D HOLDINGS (PRIVATE) LIMITED AND GIFTCARE ELECTRICAL (PVT) LTD t/a REG ELECTRICAL WHOLESALERS
Ruled By: MTSHIYA J

HH152-09 : PATRONELLA CHARUMBIRA In her capacity as the executrix dative of the estate of the late Adben Benjamin vs HUDSON MUSASA and REGISTRAR OF DEEDS and ASSISTANT MASTER
Ruled By: MUSAKWA J

HH156-09 : FREDDY CHINYAVANHU vs LETWIN CHINYAVANHU
Ruled By: GUVAVA J

HH163-09 : MTOMBENI REGINALD vs TAPFUMANEYI MUPFURAREHWE
Ruled By: GOWORA J

HH164-09 : ZIMRE PROPERTY INVESTMENT (PVT) LTD vs CITY CALVARY CHURCH
Ruled By: GOWORA J

HH169-09 : GRAMARA (PRIVATE) LIMITED and COLIN CLOETE vs GOVERNMENT OF THE REPUBLIC OF ZIMBABWE and ATTORNEY-GENERAL OF ZIMBABWE and NORMAN KAPANGA (INTERVENER)
Ruled By: PATEL J

HB09-09 : TERENCE ALAN BLAKE and EDWARD GRAHAM BURROUGHS vs TABS-AVOIN LIGHTING (PVT) LTD and ASMARA COMPANY (PVT) LTD and JONATHAN TAFADZWA JERE and JAIROS MTHONISI MOYO
Ruled By: CHEDA J

HH103-09 : U-TOW TRAILERS (PRIVATE) LTD vs CITY OF HARARE and SUPERLUX (PRIVATE) LIMITED
Ruled By: MAKARAU JP

HH35-10 : RUTH MUSONZA (nee MTANAUKWA) vs ESHMAEL MUSONZA
Ruled By: GUVAVA J

HH43-10 : KUDAKWASHE MAVINDIDZE and NYARADZO MAVINDIDZE vs MURISI MUKONOWESHURO
Ruled By: PATEL J

HH45-10 : CHRISTMAS MUSONI vs NABOTH JOKONOKO and SHURUGWI TOWN COUNCIL
Ruled By: CHITAKUNYE J

HH54-10 : ANDREW BRUFORD vs ATTORNEY GENERAL and MAGISTRATE JARABINI
Ruled By: BHUNU J

Appealed
HH58-10 : DRAWING SERVICES (PVT) LTD vs BETTY KANYUCHI
Ruled By: BERE J

HH64-10 : STATIONERY BOX (PVT) LTD vs NATCON (PVT) LTD and FARAI NDEMERA
Ruled By: MAKARAU JP

HH69-10 : COTTON COMPANY OF ZIMBABWE LIMITED vs MOBIL OIL ZIMBABWE (PVT) LTD AND TOTAL ZIMBABWE (PVT) LTD
Ruled By: MAKARAU JP

HH90-10 : LOCAL AUTHORITIES PENSION FUND vs F & R TRAVEL TOURS AND CAR SALES (PVT) LTD and FREEJOY CHIGWIDA and RAPHAEL MAKWARA
Ruled By: MAKARAU JP

HH95-10 : TIISO HOLDINGS (PTY) LIMITED vs ZIMBABWE IRON & STEEL COMPANY LIMITED
Ruled By: PATEL J

HH112-10 : CENTRAL AFRICAN BUILDING CONSTRUCTION COMPANY (PVT) LIMITED vs CONSTRUCTION RESOURCES AFRICA (PVT) LIMITED
Ruled By: GOWORA J

HH116-10 : DEBORAH GLORIA KOUMIDES vs PAUL KOUMIDES
Ruled By: MAVANGIRA J

HH121-10 : POWER COACH EXPRESS (PVT) LIMITED vs MARTIN MILLERS AND ENGINEERS
Ruled By: BERE J

Appealed
SC14-14 : CRESSY MAGUMISE vs ALPHEUS MAGUMISE
Ruled By: ZIYAMBI JA, GWAUNZA JA and GUVAVA JA

HH157-10 : ISAU MUGUGU vs POLICE SERVICE COMMISSION and COMMISSIONER OF POLICE
Ruled By: GOWORA J

HH163-10 : BISSY BEE (PVT) LTD vs GRAIN MARKETING BOARD and BRUKMARK MICROFINANCE (PVT) LTD and DEPUTY SHERIFF-CHITUNGWIZA
Ruled By: MUSAKWA J

HH164-10 : KENNETH PATRICK McCOSH vs PIONEER CORPORATION AFRICA LIMITED
Ruled By: KUDYA J