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

SC70-07 : MICHAEL TAYLOR vs HEATHER MARGARET TAYLOR
Ruled By: CHEDA JA, ZIYAMBI JA and GARWE JA

The issue of unjust enrichment was not before the court a quo, and, indeed, no submissions in that regard were made by either party. The issue before the court was whether the respondent could revoke the donation, and, if so, whether it was necessary to prove ingratitude on the part of the respondent. At no stage ...

Appealed
SC20-16 : ZIMBABWE POSTS (PRIVATE) LIMITED vs COMMUNICATION AND ALLIED SERVICES UNION
Ruled By: MALABA DCJ, GOWORA JA and HLATSHWAYO JA

The court a quo overlooked the dicta in ZESA v Maposa 1999 (2) ZLR 452 (S) wherein GUBBAY CJ stated….:“Certainly, for some reason not easy to comprehend, the application purported to be in the nature of a review to the High Court rather than one brought pursuant to Article 34(2)(b)(ii)of ...

HH27-18 : SAMSON MEKI vs AIR ZIMBABWE (PVT) LTD and AIR ZIMBABWE HOLDINGS (PVT) LTD and COMMERCIAL BANK OF ZIMBABWE LTD
Ruled By: HUNGWE J

Despite his referring the application as having been brought under Order 32, I approach the matter on the basis that the applicant has brought it in terms of Rule 377 as it is clear that was his intention.

HH102-15 : ZIMBABWE ELECTRICITY TRANSMISSION AND DISTRIBUTION COMPANY (PVT) LTD vs BINDURA RURAL DISTRICT COUNCIL and FIFTY NINE OTHERS
Ruled By: DUBE J

I am unable to accede to the request to bar the respondents from levying any other charge or levy which was not the subject of this judicial determination.

View Appeal
CC10-19 : THE STATE vs WILLARD CHOKURAMBA (JUSTICE FOR CHILDREN'S TRUST INTERVENING AS AMICUS CURIAE and ZIMBABWE LAWYERS FOR HUMAN RIGHTS INTERVENING AS AMICUS CURIAE)
Ruled By: CHIDYAUSIKU CJ, MALABA DCJ, ZIYAMBI JCC, GWAUNZA JCC, HLATSHWAYO JCC, MAVANGIRA JCC, BHUNU JCC, UCHENA JCC and MAKONI AJCC

Submissions made on the correctness or otherwise of the decision of the court a quo on matters that were not for its determination are not relevant to the determination of the issues before the Constitutional Court….,. It is trite that courts are generally loathe to determine issues not brought before them.

HH114-15 : THEMPSON MUZVAGWANDOGA and DZOKAI MUZVAGWANDOGA vs MAI-KAI REAL ESTATE DEVELOPMENT TRUST and BERNARD MUTANGA and MOLLY DINGANI and THE REGISTRAR OF DEEDS
Ruled By: MAFUSIRE J

But other than the last paragraph in the closing submissions by the plaintiffs' counsel, in which costs were claimed for the first time…, and on a legal practitioner and client scale for that matter, nowhere else did the plaintiffs claim costs.

View Appeal
SC18-18 : SHORAI NZARA and AAROLA IDEHEN and AMOSOGE IDEHEN and OSARETIN IDEHEN vs CECILIA KASHUMBA N.O. and REGISTRAR OF DEEDS and MASTER OF THE HIGH COURT and TAFIRENYIKA KAMBARAMI
Ruled By: GARWE JA, GUVAVA JA and UCHENA JA

There is no doubt that the court a quo exceeded its mandate which was to determine the issues placed before it by the parties through pleadings and proved by the evidence led. The function of a court is to determine disputes placed before it by the parties. It cannot go on a frolic of its own. Where a ...

There is no doubt that the court a quo exceeded its mandate which was to determine the issues placed before it by the parties through pleadings and proved by the evidence led.

The function of a court is to determine disputes placed before it by the parties. It cannot go on a frolic of its own. Where a point of law or a factual issue exercises the court's mind but has not been raised by the parties or addressed by them either in their pleadings, in evidence, or in submissions from the bar, the court is at liberty to put the question to the parties and ask them to make submissions on the matter.

In Welkom Municipality v Masureik and Herman T/A Lotus Corp 1997 (3) SA 363…, MARAIS JA, commenting on what the court should base its decision on, said:

“I should add that whether or not South Africa did or did not fail to do so is a question of fact upon which there was no evidence before the court a quo, and for reasons too obvious to require enumeration, the learned Judge was not entitled to enquire into this issue of fact after reserving judgment and without any reference to the parties, and then to decide it. Compare Kauesa v Minister of Home Affairs and Others 1996 (4) SA 965 (NmS) at 973H–974C.”…,.

In the Namibian case of Kauesa v Minister of Home Affairs and Others 1996 (4) 965 (NmS) DUMBUTSHENA AJA…, said:

“The above matters are not crucial to the determination of this appeal. They are, however, important because a frequent departure from counsel's, more correctly, the litigant's case, may be wrongly interpreted by those who seek justice in our courts of law. It is the litigants who must be heard and not a judicial officer.

It would be wrong for judicial officers to rely for their decisions on matters not put before them by litigants either in evidence or in oral or written submissions. Now and again a Judge comes across a point not argued before him by counsel but which he thinks material to the resolution of the case. It is his duty, in such a circumstance, to inform counsel on both sides and invite them to submit arguments either for or against the Judge's point. It is undesirable for a court to deliver a judgment with a substantial portion containing issues never canvassed or relied on by counsel.

To produce a wide–ranging judgment dealing with matters not only extraneous and unnecessary to the decision but which have not been argued is an exercise full of potential pitfalls and the judgment of the court a quo has placed this court in a difficult position.

Are we to consider every opinion expressed in the judgment, however unnecessary it was to the decision and say whether it accords with our own? Or can we leave such matters well alone until such time as they become necessary to decide and are fully argued?

In our view, the latter course is the proper one to take and in doing so we emphasize that it must not be thought that this Court in any way approves or endorses the many obiter opinions expressed in the judgment of the court a quo.”…,.

BHAGWATI J…, in M.M. Pathak v Union (1978) 3 SCR 334, in relation to the practice of the Supreme Court of India, said:

“It is the settled practice of this Court to decide no more than what is absolutely necessary for the decision of a case.”…,.

In Groenewald NO and Anor v Swanepoel 2002 (6) SA 724…, PICKERING J, commenting on what a judicial officer should do if he wants to take into consideration issues not covered in pleadings, evidence, and submissions of the parties said:

“It was therefore the duty of the learned Judge to have informed plaintiff's counsel of the relevant point, more especially where that point was, in her view, conclusive of the matter, and to have invited him to submit argument to her. Had she done so counsel would no doubt have been in a position to address her concerns and the necessity for this appeal may well have been obviated.

Secondly, the remark made by the learned Judge concerning the alleged arrest of the defendants was not based on any averment made in either the pleadings or the evidence adduced before her at the hearing or in the course of argument by Mr Pretorius. It would appear that she must have gleaned this information from some outside source. It hardly needs stating that a judge may only have regard to the evidence placed before him or her during the course of the hearing and that a reliance on facts not averred in the pleadings or raised in court constitutes a serious mis-direction.”…,.

The function of a court is to determine the dispute placed before it by the parties through their pleadings, evidence and submissions. The pleadings include the prayers of the parties through which they seek specified orders from the court.

This position has become settled in our law….,.

The court must always be seen to be impartial and applying the law to facts presented to it by the parties in determining the parties' issues. It is only when the issues or the facts are not clear that the court can seek their clarification to enable it to correctly apply the law to those facts in determining the issues placed before it by the parties….,.

Where a court is of the view that an order not sought by the parties may meet the justice of the case, it must put that possible relief to the parties and allow them an opportunity to address it on such an order.

In Proton Bakery (Pvt) Ltd v Takaendesa 2005 (1) ZLR 60 (S)…, GWAUNZA JA said:

“The appellant argues, in the light of all this, that the action of the court a quo, in reaching a material decision on its own, amounted to gross irregularity justifying interference by this court on the principles that have now become trite.

I am, for the reasons outlined below, persuaded by this argument…,.

The misdirection on the part of the court a quo is left in no doubt. It is my view, so serious as to leave this Court with no option but to interfere with the determination of the lower court.”

The determination by the court a quo, of matters not placed before it, goes against a litigant's right to be heard and this view is supported in the fourth edition of Judicial Review of Administrative Action by J. M. EVANS…, where it was highlighted that the principle that “no man is to be judged unheard” is an age-old view adopted from the ancient Greeks. This principle has been adopted in our system under the audi alteram partem rule….,.

A court is not entitled to determine a dispute placed before it, wholly based on its own discretion, which is not supported by the issues and facts of the case. It is required to apply the law to the facts and issues placed before it by the parties.

HB235-16 : ESTATE LATE MOSES KANHUKAMWE (represented by Winnie Mudzinganyama curator bonis) vs CBZ BANK LTD and I.Q. MARKETING (PVT) LTD and THE ADDITIONAL SHERIFF – BULAWAYO
Ruled By: TAKUVA J

In casu, the applicant has not applied for costs.

HB01-15 : MARIA RABEKA vs LARISSA STOCKIL and ASSISTANT MASTER OF THE HIGH COURT and REGISTRAR OF DEEDS N.O.
Ruled By: MAKONESE J

The applicant has filed an application for maintenance in terms of the Wills Act [Chapter 6:06]. In particular, reliance was placed on the provisions of section 18 of the Wills Act. The relief sought by the applicant in the Draft Order is as follows:

“IT IS ORDERED THAT:

The estate of the late Manuel Arthur Da Silva shall be distributed in terms of section 18 of the Wills Act [Chapter 6:06].”

The applicant claims that she was married to the late Manuel Arthur Da Silva in terms of an unregistered customary law union in 1990, with whom she had five children, three of them being minors. Manuel Arthur Da Silva, having died on the 28th August 2006, the applicant claims that her children are entitled to inherit from the deceased in their capacity as legitimate children.

The application is opposed by the first respondent who denies that the applicant was married to the late Manuel Arthur Da Silva in terms of customary law.

Further, the first respondent denies that the applicant's children are entitled to inherit from the deceased as legitimate children.

It is not in dispute that the deceased and the first respondent's mother were divorced in 1978. In 1979, the deceased then proceeded to write a Will bequeathing his entire estate to his daughter, the first respondent. The estate of the late Manuel Arthur Da Silva was registered with this court under DRB No. 855/06. The first respondent was appointed Executrix Dative on the 27th August 2006.

The estate has since been wound up.

Preliminary Issue

Before I deal with the matter on the merits, I propose to dispose of the preliminary issue that has been raised by the first respondent.

It has been argued, by the first respondent, that, the application is defective and should be struck out as it is irregular. The contention by the first respondent is that the application states on the face of it that it is a “Court Application For Maintenance in terms of the Wills Act [Chapter 6:06]”, but does not reflect in the founding affidavit that an application is being made for maintenance in terms of the Wills Act.

In any event, it is argued, the relief sought in terms of the Draft Order annexed to that application does not make any reference to any amount of maintenance being claimed by the applicant.

The first respondent correctly points out, in my view, that the form of the application is guided by the provisions of Rule 227(2)(a) of the High Court Rules, 1971 which provides as follows:

“Every written application and notice of opposition shall –

(a) State the title of the matter and a description of the document concerned.”

The first respondent avers that the form and content of the application before the court is irregular and must be struck out as being fatally defective.

I do not agree that the irregularity complained of goes to the root of the substance and form of the application. The applicant is entitled to be heard on the merits and there is no prejudice to the first respondent.

I would accordingly dismiss the point in limine.

HMA06-18 : PHILEMON MUTANGIRI and NYIKADZINO MUTATI and LYTON KAUNDA vs LEONARD MUTEMA t/a LEONARD TRADING and F. NAGO N.O. PROVINCIAL MAGISTRATE
Ruled By: MAFUSIRE J

Judgment was reserved. But before it was delivered, and through an advocate, one Mr T Mpofu, Mutangiri filed some supplementary heads of argument. In them, it was first argued that a litigant had a right to bring up any point of law at any time before judgment is passed.

CC04-16 : SISTER BERRY (NEE NCUBE) and JESSE AARON BERRY vs THE CHIEF IMMIGRATION OFFICER and THE MINISTER OF HOME AFFAIRS
Ruled By: CHIDYAUSIKU CJ, MALABA DCJ, ZIYAMBI JCC, GWAUNZA JCC, GOWORA JCC, HLATSHWAYO JCC, PATEL JCC, GUVAVA JCC and MAVANGIRA AJCC

This is an application in terms of subsections 85(1)(a) and 85(1)(b) of the Constitution of Zimbabwe Amendment (No.20/2013) (“the Constitution”). The first applicant is acting in both her own interest and that of her husband who is the second applicant.

In their heads of argument, the applicants submit that they have abandoned paragraphs 2, 3 and 4 of the relief originally sought in their draft order. They indicate that the application is now 'fundamentally focused' on an infringement of the first applicant's constitutional right to freedom of movement, which is protected under section 66 of the Constitution.

The applicants accordingly seek the following relief:

1. A declaratur to the effect that the first applicant's fundamental right to freedom of movement and residence, guaranteed under the Constitution, has been violated by virtue of the respondents refusal to grant the second applicant entry into and residence in Zimbabwe; and

2. An order compelling the respondents to:

(i) Permit the second applicant entry into Zimbabwe; and

(ii) Grant the second applicant a 'spousal' residence permit.

The background to the matter is as follows:

The first applicant is a Zimbabwean citizen by birth whereas the second applicant holds the citizenship of the United States of America. The latter, sometime in August 2011, entered into Zimbabwe without any impediments. He was issued with a temporary employment permit for the period of 28 September 2012 to 27 July 2013. The application was made on his behalf by a religious group called Cornerstone Fellowship International. During the second applicant's stay in Zimbabwe, he met and fell in love with the first applicant. After the expiry of his employment permit, the second applicant returned to his home country for a short period. He then returned to Zimbabwe on a holiday visa to spend time with the first applicant.

During this period, the two applicants solemnized their marriage in terms of the Marriage Act [Chapter 5:11] and made a decision to settle, and start their own family, in Zimbabwe.

This decision prompted the second applicant to take the necessary legal steps to attain the status of a lawful resident of Zimbabwe. He applied for a residence permit on the basis of his marriage to a Zimbabwean citizen. He was granted a thirty day extension on his holiday visa whilst his application for a residence permit was being considered.

On or about 2 June 2014, the second applicant was invited for a meeting with immigration officers under the control of the respondents. He was told to leave the country as he was deemed to be a “prohibited” person in terms of section 14(1)(e)(i) of the Immigration Act [Chapter 4:02] (“the Act”). He was then given two options, that is, to leave the country immediately or to be deported. This was pursuant to section 17 of the Immigration Act.

The second applicant chose the former option, and, on 2 June 2014, left for South Africa together with his wife.

Before leaving Zimbabwe, the applicants instructed their legal practitioners to appeal against the Prohibition Notice, which appeal was duly noted in the Magistrates Court, in terms of section 8 of the Immigration Act.

The Court, on 20 June 2014, ruled in favour of the second applicant and set aside the Prohibition Notice in question. The applicants were informed by their legal practitioners of this development, and, on 30 June 2014, left South Africa for Zimbabwe, believing that they would finally settle down in Zimbabwe.

Their joy was however short lived as the second applicant was denied entrance into Zimbabwe at the Beitbridge Border Post by the first respondent's officers, on the basis that he was still a prohibited person - despite the setting aside of the Prohibition Order.

The first applicant proceeded with the journey without her husband who was left in the hands of the first respondent's officers. She proceeded, on 18 July 2014, to file an application before this Court, challenging the respondent's decision to declare the second applicant a prohibited person, and denying him entry into this country.

Before the matter was heard, on 18 February 2015, the first applicant successfully applied for interim relief, in chambers before the Chief Justice, allowing the second applicant entry into the country pending the determination of this application.

I consider it pertinent, at this juncture, to address the parties submissions regarding the effect of the order of the Magistrates Court setting aside the first Prohibition Notice issued against the second applicant.

As already stated, the second applicant chose the option to leave the country, and did so, on the basis of the Prohibition Notice dated 2 June 2014.

A look at this Notice, which cites two provisions falling under section 14 of the Immigration Act, shows that the first respondent's officers were required to delete whichever of the two provisions did not apply in any particular case.

This was not done.

While clearly the second provision cited would not have been applicable to the circumstances of the second applicant, the first provision is not fully legible and seems to refer to a paragraph (i.e. paragraph (1) of subsection (1) of section 4 of the Immigration Act) that simply does not exist as part of the various paragraphs and subsections of section 14 of the Immigration Act.

The applicants challenged the Notice primarily on this point, stating as follows in their grounds of appeal in the lower court:

“The order of prohibition is invalid at law as it is not supported by the cited provisions of the Immigration Act (Chapter 4:02).”

The applicants accordingly sought an order setting aside the Prohibition Notice.

This ground of appeal had merit in view of section 8(4)(a) of the Immigration Act which reads as follows:

“When —

(a) Leave to enter Zimbabwe is refused or any person is informed, for the first time, that he is a prohibited person in terms of this Act, notice in writing specifying the provision of this Act under which leave to enter Zimbabwe is refused or the person is a prohibited person, as the case may be, shall be given to the person concerned:

Provided that…,.”…,.

The Magistrate's full reasons for the order he made, setting aside the impugned Notice, were not part of the record before this Court. Only the actual order of the Court has been provided, and it simply reads:

“The immigration appeal is upheld and the prohibition be and is hereby set aside.”

Despite the lack of reasons for this order, its correctness cannot be doubted. This is because the Notice in question, as already mentioned, did not correctly cite the section of the Immigration Act by virtue of which the second applicant was a prohibited person. The Notice, therefore, did not comply with section 8(4)(a) of the Immigration Act.

As indicated above, the applicants understood the order setting aside the Prohibition Notice to mean that there were no longer any legal impediments to the second applicant's return to Zimbabwe.

The respondents took a different view of the matter.

They contend, that, the Magistrate's Court's decision was based on a technicality rather than on the merits. This, in their view, meant that the lower Court did not make a determination to the effect that the second applicant was not a prohibited person, nor that such status be set aside.

The respondents attached to their opposing papers another Prohibition Notice dated the same day, 30 June 2014, declaring that the second applicant was a prohibited person in terms of section 14(1)(e)(i) of the Immigration Act.

This notice fully complied with section 8(4)(a) of the Immigration Act.

I find the respondents submissions, on the import of the Magistrates Court's order setting aside the Prohibition Order, to have merit.

The applicants challenged the Prohibition Notice, of 2 June 2014, largely on technical grounds. There can be no disputing the fact that the Notice in question was fatally defective, that is, a nullity. However, it appears that the applicants laboured under the misconception, that, the setting aside of the Prohibition Notice had the effect of opening the way to the second applicant to re-enter Zimbabwe.

Section 8(4(a) of the Immigration Act makes it clear, that, the Notice does not confer the status of prohibited person on the recipient. All that it does is formerly inform the person of the section of the Immigration Act under which he was a prohibited person, that is, a person not eligible to enter Zimbabwe.

This is to be contrasted with the situation referred to in section 14(2) of the Immigration Act which reads as follows;

“A person shall be declared to be a prohibited person in terms of subparagraph (iii) of paragraph (e) of subsection (1) by notice in writing served on him, or, if his whereabouts are unknown or he has departed from Zimbabwe, by notice in the Gazette.”

The second applicant's prohibited person status derived from the law, that is, section 14(1)(e)(i) of the Immigration Act, which I have cited below (sic).

The respondents are therefore correct in the assertion, that, the second applicant maintained the status of prohibited person despite the setting aside of the Prohibition Notice. That being the case, the respondents were properly within their rights to issue another Notice clearly setting out the basis for such a status.

The applicants, albeit challenging it in casu, did not appeal to the Magistrates Court (this would be in terms of section 21(1) of the Immigration Act) against the allegation in the second Notice, that he was a prohibited person.

CC20-17 : MORGAN TSVANGIRAI vs ROBERT MUGABE and ZIMBABWE ELECTORAL COMMISSION and RITA MAKARAU, N.O. and CHIEF ELECTIONS OFFICER
Ruled By: CHIDYAUSIKU CJ, MALABA DCJ, ZIYAMBI JA, GWAUNZA JA, GARWE JA, GOWORA JA, HLATSHWAYO JA, CHIWESHE AJA and MAVANGIRA AJA

Seven days after the declaration, on 3 August 2013, of the results of the Presidential election (hereinafter referred to as “the election”) held on 31 July 2013, showing Robert Gabriel Mugabe (hereinafter referred to as “the first respondent”) as the winner of the election, Morgan Tsvangirai (hereinafter referred to as “the petitioner”), who was one of the candidates contesting the election, lodged with the Constitutional Court (hereinafter referred to as “the Court”) a petition challenging the validity of the election under section 93(1) of the Constitution of Zimbabwe Amendment (No.20) Act 2013 (hereinafter referred to as “the Constitution”).

The petitioner used fourteen grounds for challenging the validity of the election which he alleged constituted corrupt practices committed by the first respondent through his agents or by third parties with his knowledge.

He also alleged irregularities which he said were committed by the second and fourth respondents, who were responsible for conducting the election.

It was the petitioner's averment, that, the said acts, which were allegedly committed in violation of the provisions of the Electoral Act [Chapter 2:13] (hereinafter referred to as “the Electoral Law”), had materially affected the validity of the election.

He prayed for an order declaring the election invalid and setting it aside and for a fresh Presidential election to be held within sixty days after the determination.

The respondents opposed the petition on the ground, that, the petitioner had lodged it when he had no evidence to prove the allegations of commission of corrupt practices and irregularities in the conduct alleged against them. They prayed for dismissal of the petition with costs.

The petition was set down for hearing at 10am on 17 August 2013.

At 17:25 hours, on 16 August 2013, the petitioner filed, with the Constitutional Court, a document titled “Notice of Withdrawal of the Petition” (hereinafter referred to as “the notice of withdrawal”). The notice of withdrawal was accompanied by an affidavit in which the petitioner gave reasons for wanting to withdraw the petition.

The reasons confirmed the accusations, by the respondents, that, the petitioner had lodged the petition and made the allegations of commission by them of corrupt practices and irregularities in the election when there was no evidence to support them.

The relevant parts of the affidavit of the purported withdrawal read as follows:

“1. It is with deep regret and sadness that I find myself having to depose to this affidavit which I present for purposes of explaining the reasons behind the withdrawal of the Election Petition just filed by my legal practitioners at my specific instance.

2. It is common cause that I filed a petition challenging the outcome of the Presidential Election in terms of its processes and outcome.

3. In the petition, various allegations regarding the conduct of the election by the second respondent were made, which allegations touch on the credibility and authenticity of the voting material which is currently under the control of the second and third respondents.

4. In order to gain access to voting material and other documents and information two urgent chamber applications were filed under case EC27/13 and EC28/13. Whilst arguments were advanced on the points in limine, judgment was indefinitely reserved in the matter. The merits have not been heard.

5.– 6…,. 7. As at the time of deposing to this affidavit (15:43 hours on Friday 16th August 2013), the judgment(s) in the applications for the materials had not been delivered. This, in my view, seriously handicaps my prosecution of the petition and it has rendered it impracticable for me to proceed with same.

8. I draw attention to the fact, that, I had specifically indicated, in my petition, that such material would be needed for the purposes of prosecuting the petition. The fact that I still do not have the material means that I cannot meaningfully prosecute my petition.

9.– 11…,. 12. I am also aware, that, the first respondent addressed crowds at the National Heroes Acre during the Heroes Day celebration on 12 August 2013. I am further aware, that, he made further unsavoury comments in which he criticised my decision to approach this Court. The fact that the CHIEF JUSTICE was in attendance on the day and the fact that he is expected to preside over my petition does very little to inspire my confidence in the possibility of my enjoyment of the constitutional right to a fair hearing.

In this regard, I make no imputation, gratuitous or otherwise, about the integrity of the honourable CHIEF JUSTICE. My concern is with the conduct of the first respondent.”

The question that arose from the proposed withdrawal of the petition was whether or not section 93 of the Constitution, which is a complete Code on matters relating to a petition or application challenging the validity of an election of a President lodged with the Constitutional Court, under subsection (1), provided for withdrawal of the petition or application as a right.

In the notice of withdrawal, and the affidavit accompanying it, the petitioner made no reference to a provision of the Constitution under which a right to withdraw a petition or application lodged with the Constitutional Court under sub-section (1) of section 93 of the Constitution is conferred.

The parties were directed to appear before the Court at 10am on 19 August 2013 to argue the question whether section 93 of the Constitution provides for withdrawal of a petition or application lodged with the Constitutional Court under sub section (1).

Appealed
SC08-19 : AUGUR INVESTMENTS OU vs FAIRCLOT INVESTMENTS (PVT) LTD t/a T & C CONSTRUCTION and D.L. CRUTTENDEN
Ruled By: GWAUNZA JA, MAVANGIRA JA and BHUNU JA

It is accepted that an arbitrator, unlike a court of law, is not allowed to venture outside their terms of reference when making a determination, as highlighted as follows by FOURIE J, in Bidoli v Bidoli [2010] ZAWCHC 39...,: “An arbitrator, unlike a court, has no inherent power to decide issues or make orders that go beyond ...

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HB102-17 : TURFWALL MINING (PVT) LTD t/a BEENSET INVESTMENTS vs SIPHIWE DUBE and OTHERS
Ruled By: TAKUVA J

The first point in limine was that the founding affidavit does not use the word “urgent” anywhere in its body. Counsel for the applicant conceded that there might have been an inadvertent omission of that word and applied that the court condones this departure in terms of Rule 4C of the Court's rules. In my view, ...

SC13-19 : ZIMBABWE REVENUE AUTHORITY vs STANBIC BANK ZIMBABWE LIMITED
Ruled By: GUVAVA JA, MAVANGIRA JA and ZIYAMBI AJA

The respondent..., submitted that in the court a quo the respondent argued that the software was of a revenue nature, and, that, alternatively, if it was found to be of a capital nature, special initial allowance ought to be allowed for it....,.. The respondent did not raise the issue of a special initial allowance in the letter ...

The respondent did not raise the issue of a special initial allowance in the letter of objection or in its case and heads of argument in the Special Court for Income Tax Appeals.

It was only in oral submissions that, for the first time, the respondent's counsel in the court a quo made the following submission in which some kind of “claim” is made to a special initial allowance:

“The second question that can be put, Mr President, to demonstrate the fallacy of the approach of ZIMRA is this; if it is a capital asset of 2(.) (w)hatever it is million, where has ZIMRA allowed the SIA on that. If you have a capital asset you are entitled to pay SIA; where has ZIMRA allowed that. ZIMRA has not approached this rationally. I will be making the same point in respect of the fourth issue. It is simply latched on to this, in our submission incorrect approach that what is in your public financial statement must be what you pay tax on.”

This submission was not made, and, cannot be viewed as a prayer for a special initial allowance. It was in fact a question posed to demonstrate a point in counsel's argument. In any event, he could not make such a prayer as it had no factual background in the matter presented to the court a quo. The submission could not therefore be the basis for the court a quo's judgment....,.

It is not proper for a court to determine a matter which is not raised or argued before it or to determine a matter on the basis of a point that was not raised before it. See Proton Bakery (Pvt) Ltd v Takaendesa 2005 (1) ZLR 60 (S)...,.

The specific issue of special initial allowance was not argued or ventilated by the parties before the court a quo....,.

The further difficulty with the respondent's approach is that in its case before the court a quo it did not make a claim in the alternative for special initial allowance in the event that it was wrong in classifying computer software expenditure as being of a revenue nature. The election was obliquely made, or more accurately, referred to, in a contentious statement by counsel for the respondent whilst making submissions in the court a quo.

Appealed
SC21-19 : RONALD BAKARI vs TOTAL ZIMBABWE (PRIVATE) LIMITED
Ruled By: GARWE JA, GUVAVA JA and BHUNU JA

In any event, as evidenced in the judgment of the court a quo, the issue of novation did not arise before the court a quo. The appellant sought to raise it for the first time on appeal. In respect to raising issues for the first time on appeal, CHIDYAUSIKU CJ, in Austerlands (Pvt) Ltd v Trade and Investment Bank ...

In any event, as evidenced in the judgment of the court a quo, the issue of novation did not arise before the court a quo. The appellant sought to raise it for the first time on appeal.

In respect to raising issues for the first time on appeal, CHIDYAUSIKU CJ, in Austerlands (Pvt) Ltd v Trade and Investment Bank Ltd and Ors SC80-06, stated as follows:

“The general rule, as I understand it, is that a question of law may be advanced for the first time on appeal if its consideration then involves no unfairness to the party at whom it is directed. See Estate Lala v Mohamed 1994 AD 324. The principles applicable to the raising of a point of law for the first time on appeal were succinctly set out by KRIEGLER in the case of Donelly v Barclays National Bank Ltd 1990 (1) SA 375 at 380H-381B, where the learned judge had this to say:

'…, generally speaking, a Court of Appeal will not entertain a point not raised in the court below and especially one raised on the pleadings in the court below. In this regard, I need do no more than refer to Herbstein and Van Winsen, The Civil Practice of the Superior Courts in South Africa, 3ed, at 736-737. In principle, a Court of Appeal is dis-inclined to allow a point to be raised for the first time before it. Generally, it will decline to do so unless;

1. The point is covered by the pleadings;

2. There would be no unfairness on the other party;

3. The facts are common cause or well-nigh incontrovertible; and

4. There is no ground for thinking that other or further evidence would have been produced that could have affected the point.'”

The issue of novation was never raised in the pleadings filed a quo nor was the issue argued during trial. In my view, it is clearly unfair and prejudicial to the respondent for it to be raised for the first time on appeal especially in circumstances where the facts are in dispute….,.

The Supreme Court, as an Appellate Court, save in exceptional circumstances, only deals with matters that have been dealt with by the court a quo. Its appellate powers do not stretch to dealing with matters as a court of first instance.

Appealed
SC21-19 : RONALD BAKARI vs TOTAL ZIMBABWE (PRIVATE) LIMITED
Ruled By: GARWE JA, GUVAVA JA and BHUNU JA

With regards to costs. The respondent did not seek for costs in the heads of argument or during the hearing. Accordingly, no costs will be awarded although the respondent has been successful in defending the appeal.

HB123-17 : SERGEANT MAZUNGUNYE F048394B vs THE TRIAL OFFICER (SUPERINTENDENT MUTEMA) and COMMISSIONER GENERAL OF POLICE
Ruled By: MATHONSI J

As I have said, an appeal is a remedy provided for in the Police Act [Chapter 11:10]. The applicant did not provide any explanation in both affidavits that he filed which could have shown good and sufficient cause for making an early approach. He could not attempt to do so in heads of argument filed by ...

View Appeal
HH311-18 : SERGEANT KHAUYEZA (F048677J) vs THE TRIAL OFFICER (Superintendent J. Mandizha) and THE COMMISSIONER GENERAL OF POLICE
Ruled By: CHIWESHE JP and CHAREWA J

The court notes that some of the issues for determination do not flow from the facts, and, ordinarily, would not have been subject of this judgment. However, for the reason that counsel for the applicant and the Attorney General's office are the legal counsel primarily responsible for bringing before the High Court and arguing ...

HH174-13 : ALOIS MATONGO vs MIDLANDS STATE UNIVERSITY
Ruled By: MATHONSI J

At the commencement of the trial in this matter, I mero motu raised the issue of whether or not the jurisdiction of this court has not been ousted by the provisions of section 89(6) of the Labour Act [Chapter 28:01] (“the Act”) in matters brought before me for determination….,. This court cannot exercise jurisdiction where such jurisdiction ...

SC26-19 : MWAMI MULIZI SIAMSIPA N.O. vs KUNGANDA FARM (PRIVATE) LIMITED
Ruled By: PATEL JA, BHUNU JA and BERE JA

The third and only remaining ground of appeal impugns the reliance placed by the court a quo on the provisions of section 276(2) of the Companies Act [Chapter 24:03]. It is contended that the facts which might have justified such reliance were never placed before the court. Furthermore, the court made its determination in this regard without ...

View Appeal
HH273-16 : KINGDOM BANK LIMITED vs THE RIGHT INVESTMENTS (PVT) LTD and OPIUM INVESTMENTS (PVT) LTD and PHILLIPA COUMBIS
Ruled By: CHAREWA J

It is trite that points of law can be raised at any stage of the proceedings, provided that they go to the root of the matter and were not required to be specifically pleaded. See Muchakata v Netherburn Mine 1996 (1) ZLR 153 (S)…,; Muskwe v Nyajina Ors SC17-12; and Gold Driven Investments ...

HH410-17 : RONALD JOHN COUMBIS vs KINGDOM BANK LIMITED
Ruled By: CHIWESHE JP

The point in limine raised by the respondent with regards section 213 of the Companies Act is not raised in the opposing affidavit but only in its heads of argument. It is not properly before the court and I am unable to relate to it in the present application.

SC17-12 : PHARAOH B MUSKWE vs DOUGLAS NYAJINA and MUNHUWEI G T and MINISTER OF LOCAL GOVERNMENT NATIONAL HOUSING AND URBAN DEVELOPMENT
Ruled By: ZIYAMBI JA, GARWE JA, and OMERJEE AJA

The hearing of this matter was postponed in order to determine a point in limine belatedly taken by counsel for the respondent at the onset of the hearing….,. Undoubtedly, a point of law can be raised at any time even though not pleaded. However, this is subject to certain considerations one of which is that the court ...

Appealed
HH457-14 : PHILIPPA ANN COUMBIS vs RONALD JOHN COUMBIS
Ruled By: MAWADZE J

While in her claim she had not claimed property known as No.13 Bates Street, Milton Park in Harare, which is owned by Opium Investments (Pvt) Ltd, the defendant, despite his evidence on the shareholding of Opium Investments (Pvt) Ltd, has now conceded, in the final submissions, that he has within his power the procurement of ...

SSC71-19 : PRISCAH MUPFUMIRA vs THE STATE
Ruled By: GOWORA JA

For purposes of completeness, I must comment on the decision of the court a quo to declare section 32(3b) and (3c) of the Criminal Procedure and Evidence Act [Chapter 9:07] unconstitutional. This was an issue that was not brought before the court a quo for determination. An attempt to seek a declaration as to the constitutionality of ...

HH353-14 : ZIMBABWE LAWYERS FOR HUMAN RIGHTS vs MINISTER OF TRANSPORT N.O. and ZIMBABWE NATIONAL ROAD ADMINISTRATION and ATTORNEY – GENERAL OF ZIMBABWE N.O.
Ruled By: MAFUSIRE J

To quash the respondents' second leg of their second point in limine, counsel for the applicant sprung an argument that neither formed part of its grounds of impeachment in the founding affidavit nor about which any notice had been given. He argued that it was a point of law which he could raise for the first time ...

HB02-12 : MUNICIPALITY OF VICTORIA FALLS vs LOIDA NYATHI and 11 OTHERS
Ruled By: NDOU J

These are twelve cases, which were consolidated into two matters, which were heard at the same time.

For easy reference, the one matter involved what may be called the ZimSun houses (five (5) defendants under HC2224/08). The five defendants being Alice Ndlovu, Sivumo Ndlovu, Kambarachi Zex Raura, Freda Khumalo and Simolita Maseko.

The other matter involved what may be called the National Housing Fund (“NHF”) houses ((seven (7) defendants under HC2225/08). The seven defendants being Loida Nyathi, Everson Ndebele, Collen Ndebele, Phindile Ncube, Sihlobo Sibanda, Shadreck Ndlovu and Stephen Ndlovu.

The trial lasted twelve days, which is understandable, considering that there were two witnesses for the plaintiff and twelve (12) witnesses for the defendants i.e. all the defendants.

Two of the defendants had died by the time the trial commenced, and they were substituted by the executrix of their estates.

There was a bundle of documents with slightly over four hundred (400) pages as well as some more documents which were later introduced during the course of the trial. However, a closer analysis will show that the issues are fairly simple, and are similar in the seven National Housing Fund (NHF) houses and the five ZimSun houses.

Basically, it boils down to this:

(a) Is the plaintiff the owner of the twelve houses in question, or are the defendants the owners?

(b) If the plaintiff is the owner, then the plaintiff is entitled to an order for:-

(i) Evicting the defendants.

(ii) Damages.

(iii) Costs of suit.

(c) If the defendants are the owners, then they are entitled to transfer of these houses into their names with an order for costs against the plaintiff.

In essence, the defendants have to prove that there were valid contracts of purchase in respect of each of the houses in dispute. The houses concerned are the following:

Loida Nyathi - House 4251
Everson Ndebele - House 4255
Collen Ndebele - House 4247
Phindile Ncube - House 4242
Sihlobo Sibanda - House 4246
Shadreck Ndlovu - House 4241
Stephen Mpofu - House 4244
Alice Ndlovu - House 4403
Sivumo Ndlovu - House 4401
Smolita Maseko - House 4408
Kambashu Zex Raura - House 4407
Fred Khumalo - House 4400

All these properties are at Chinotimba, Victoria Falls.

Cut to the bone, in all instances, the plaintiff claims that these are pool houses for use by plaintiff employees. The plaintiff contends that the defendants were given these pool houses by virtue of their employment with the plaintiff. It further being contended that upon termination of such employment, each individual defendant will cease to occupy the property in issue.

This position does not apply to one of the defendants, Stephen Mpofu, who was never employed by the plaintiff. His case is different but the bottom line is that he was granted occupation through a lease.

Of the twelve defendants, only two, namely, Sihlobo Sibanda and Smolita Maseko are still in the employ of the plaintiff.

As alluded to above, the defendants' counter claim is for an order directing the plaintiff to take all necessary steps to transfer the various stands to each defendant on the basis that the defendants purchased the Stands on a rent-to-buy scheme.

This is denied by the plaintiff.

It is beyond dispute that these properties in issue are registered in the name of the plaintiff. The plaintiff is the registered owner of these twelve Stands. This point is admitted in paragraph 2.3 of each of the defendants' plea under HC2225/08 and paragraph 2.5 in each defendants' plea under HC2224/08.

There are documents from the Ministry of Local Government (“Ministry”) dated 20 July 2000 (pages 45 and 55 of the bundle of documents) which evince the transfer from the Ministry to the plaintiff.

This creates a problem for the defendants who contend the Stands still belong to the Ministry.

They, however, did not take any legal action against the Ministry to prevent the transfer of the Stands from the Ministry to the plaintiff. Be that as it may, I propose to consider the evidence adduced by the parties in turn.

Phillip Ndlovu

He testified on behalf of the plaintiff. He evinced that he has been the Chamber Secretary of the plaintiff since 2006. Whilst he was not employed by the plaintiff in the 1980s or 1990–1992, when most of the events occurred, from the official records available to him, and from his own investigations, the plaintiff was the legitimate owner of the houses in dispute.

He said that the defendants obtained the houses in question from the plaintiff, because of their employment with the plaintiff or because they were quasi-employees of the plaintiff such as Government teachers working at the plaintiff's schools.

In the case of Stephen Mpofu, he obtained the house because the plaintiff had previously made available accommodation to him. It is his testimony that there was a shortage of houses in Victoria Falls during the 1980s, 1990s and to date. This is evinced by documents like the minute from the parent Ministry dated 15 September 1997 produced as evidence. There are various Council deliberations and resolutions captured in the minutes filed of record which confirm the shortage. Such deliberations and resolutions centered around the necessity to provide the plaintiff's employees with accommodation.

There is a memorandum which goes further to explain that some employees were living in toilets on account of the shortage of houses. The National Housing Policy Frameworks for Zimbabwe: A Review of the Policies and Strategies, confirms the shortage.

The defendants also confirm the shortage and concede that they had to wait for some years before they were allocated the houses.

He said there must have been a connection between the defendants' employment with the plaintiff and the allocation of the houses.

This is an independent witness who spoke of matters which related to his professional responsibilities. He was expounding to the court what he knew and observed from the official records. He has no personal interest to pursue and no hidden agenda.

This is in stark contrast to the defendants who had an obvious massive financial interest in the outcome of this case, namely, to retain the houses which they had been informed, as early as 1993, were not theirs, but were in fact pool houses of the plaintiff.

This witness confirmed that all these disputed houses were registered in the name of the plaintiff. This is important as such registration is matter of substance and not form.

He explained that there were attempts to assist the plaintiff employees to acquire houses through CABS finance. These initiatives came to naught because they required the plaintiff to pay cash deposits on behalf of its employees. As the plaintiff is a creature of the Urban Councils Act, section 148 of the Act made such initiatives impossible.

The plaintiff could only act as a guarantor to the employees and not pay cash deposits on their behalf. In such an event, the plaintiff would still require ministerial approval. There is no record of such approval.

He also significantly testified that none of the defendants has written agreement evincing that they have become owners of these houses.

According to the plaintiff's record, there is nothing that shows that ownership of the houses was passed to the defendants. The defendants paid security deposits and monthly rentals and allied charges but not purchase prices for the houses.

The records clearly show that these are pool houses for use by those in the plaintiff's employ.

All the defendants were given notice to vacate these pool houses after they were allocated residential Stands of their own and they refused to do so. They have defiantly remained in occupation of the plaintiff's houses even when most of them have left the plaintiff's employ save for the two defendants still in the plaintiff's employ. They have not exhibited any contract of sale to the plaintiff.

In brief, they have not shown the legal basis upon which they claim the plaintiff sold them the houses. There is no record produced by the defendants that they acquired the houses on rent-to-buy contracts.

He also indicated that other plaintiff employees did not claim these pool houses and moved out.

This witness was subjected to lengthy, tactful, and determined cross-examination. At the end of the day I find that he is a credible witness. He made several concessions favourable to the defendants' case. He is a truthful witness.

Thembinkosi Khumalo

He has been employed by the plaintiff for nineteen (19) years. He is the acting Town Treasurer for the plaintiff. He started in the plaintiff's employ as a Senior Accounting Officer in the Treasury Department.

He mainly corroborated what the first witness said in a material way.

As far as the ZimSun houses are concerned, he said, in 1992, ZimSun had built 160 houses for its staff. These houses were built at the time when the plaintiff was facing acute shortage of accommodation for its staff. The plaintiff approached ZimSun who offered them twelve (12) houses including the five (5) subject of these proceedings as stated above. The plaintiff paid for these houses using Stands on which ZimSun built their staff houses plus an additional amount of Z$68,000.

After acquiring these ZimSun houses, they put in the plaintiff staff and quasi-plaintiff staff.

He confirmed that there were initiatives to sell these houses to staff through CABS, but, as stated by the previous witness, all these came to naught on account of the low salaries of staff and statutory limitations as the plaintiff is a local government.

He said some of the defendants stopped paying rentals in 2007 whereas two, who are still plaintiff employees, have continued paying. These two defendants, who are still plaintiff employees, are Smolita Maseko and Sihlobo Sibanda.

He evinced that if council property is being sold, Treasury Department would be served with an Agreement of Sale. The Agreement of Sale must state the tenure of the loan (if it is not a cash sale), the instalment payable by the beneficiary, and the interest on the loan amount.

He categorically stated that none of the defendants had any Agreement of Sale with the plaintiff.

He said that the Z$500 paid by each defendant was Z$250 for rent and Z$250 for security deposit (good tenancy deposit). He also said when the plaintiff's employees wanted to carry out repairs in these houses, such repairs must first be certified as necessary by the Town Engineer. This is a pre-condition of reimbursement of the tenant by the plaintiff.

As far as defendant Steven Mpofu is concerned, he was not employed by the plaintiff. He was employed by ZimSun. He was renting the plaintiff's guest house. They decided to accommodate him in one of the pool houses on a lease basis.

He was adamant that the plaintiff made a decision to allocate these houses to its employees to attract and retain them. The houses were, however, to remain as pool houses.

He further stated that when houses were allocated by the plaintiff to individuals, whether employees or not, the plaintiff ensured that there were documents which showed the various costs centres such as for the sewer, education levy, etc. This is reflected in receipts such as on pages 250, 251 and 356 of the bundle of documents. This was because the houses in question were being rented.

The defendants had rent cards where credits were entered when payments were made and the payments credited to the appropriate costs centres.

He said Treasury had agreements of sale (rent-to-buy) for other properties allocated to the defendants, but did not have that in respect of the twelve (12) houses in issue. What the defendants had, even on their own admissions, were rent cards. He said a rent card is self-evident and cannot be stretched to mean rent-to-buy.

As far as the letter written by a Mr Lucas M M Sibanda, the former Chief Executive Officer of the plaintiff, he said this individual was dismissed by the plaintiff on account of documented acts of misconduct. He said his letter of support of the defendants is untrustworthy and devious.

On the question of damages, he said rentals for the houses in question were US$150 per month at the lowest rate to US$200 per month for the more expensive ones. He said damages in the sum of US$150 per month in respect of each of the defendants would be appropriate.

This witness was extensively cross-examined by the defendants' counsel. I am satisfied that he gave his evidence well. I find that he is a credible witness. He is very familiar with the financial operations of the plaintiff, and, in particular, he is very familiar with the acquisition of the houses in issue and how the defendants ended up in occupation.

Coming to the defendants' case, I also propose to consider the evidence adduced in turn.

Phindile Ncube

He was employed by the plaintiff between 11 May 1987 and February 2009. He had joined the plaintiff as Revenue Clerk responsible for housing. In 1988 he was elevated to the position of Senior Housing Clerk responsible for the supervision of housing clerks and the computation of the home ownership scheme. He gave a detailed account of the Government Housing policy.

Most of the evidence is not relevant for the determination of the legal issues before me. I will only focus on the relevant part of the testimony.

In relation to the house in dispute, between him and the plaintiff, he says he placed his name on the Housing Waiting List as he was staying with his parents at the time at 3133 Chinotimba. He was allocated the disputed Stand number 4242 Chinotimba. After the allocation, he made improvements on the property as evidence that he considered that the plaintiff allocated the property to him on a rent-to-buy basis. Such improvements comprise of installing burglar bars, fencing of the property, and sharing of the walling costs with the neighbour.

He conceded that he has another property, being Stand 4222 Chinotimba allocated to him by the plaintiff. He said that he, like the other defendants, was sold Stand 4242 because he was on the waiting list. He, however, did not have a single document to prove the purported sale.

Despite the fact that he alleged that he was virtually running the Housing Department of the plaintiff at the relevant time, he could not produce any document to prove his claim. All he had is a rent card.

It is quite clear that the rent card is a tenant's card, not a card to prove ownership. Even his erstwhile legal practitioners conceded this fact on pages 94-95 of the bundle of documents.

He could not explain why he and the other defendants did not sue the Minister responsible for National Housing to transfer the houses in dispute to them, but adopted an attitude of supine indifference, when the said Minister transferred the said houses into the plaintiff's name.

He tried to suggest that during the early 1990s there were no rent-to-buy agreements, and that is why he and other defendants had no documents to support their version of events.

Unfortunately for him, the documents from pages 279 to 415 on the bundle of documents proved otherwise.

In pages 279–285 is a rent-to-buy entered into in 1994 in respect of Stand 5053 Chinotimba. On page 299, the sale agreement was entered into in 1997. His own Agreement of Sale, in respect of Stand 4222, supra, was entered into around 1994. He said that the document by Mr Sibindi, on page 76 of the bundle of documents, was the source of all the defendants' problems.

This is patently untrue because the document was authored in 2007 and yet, at least 14 years earlier, the plaintiff had already said that the houses in question were pool houses and belonged to it.

The plaintiff even has the support of the Workers' Committee in this regard.

This witness held himself out as an expert and the spokesperson for all the twelve defendants. He confidently described himself as a “local government practitioner”. He did this to try to speak with an authoritative voice that brooked no contradiction.

Regrettably, he failed dismally in this endeavour. He was an extremely poor witness. He was not credible as alluded to above. Further, he was a witness with an interest, not only in retaining Stand 4242 Chinotimba, but also because he had obviously misled the other defendants and given them the impression that he was the authoritative voice in respect of the twelve houses in question.

There was the difficulty in that as early as 1991, 1992 and 1993 onwards, the plaintiff had made it clear that the twelve in question belonged to the plaintiff and the plaintiff wanted them back. This is clear in the letters from legal practitioners and also minutes of the seven National Housing Fund houses.

He tried to assert that Central Government gave directives to Councils, such as the plaintiff and thus the plaintiff was obliged to obey these directives which had the force of law. In other words, the local authorities were only agents, or implementing arms of the Central Government.

This assertion was clearly flawed.

The witness was unable to point to any such legislation which made suggestions by Central Government law binding upon Council.

It is clear that the National Housing policies were guidelines. In fact, on page 208 of the bundle of documents, it is made clear that these were guidelines. In any event, the Central Government transferred these houses into the plaintiff's name.

The defendants did not challenge the said transfer before the court.

When he was cross-examined, and asked how it was that all twelve defendants had other Stands in breach of the Central Government policy which he appeared to champion so enthusiastically because it was convenient to him, he made a volte face and said that this policy on the prohibition against multiple ownership of houses in the high density suburbs, was relaxed by the plaintiff.

However, he was unable to provide documentary evidence of such relaxation of the policy. He was unable to do so because he was misleading this court.

Further, he was unable to give the agreed purchase price for the house in dispute. The purchase price is an essential element of the agreement of sale.

He tried to get around by stating that he expected to pay rentals for the house over thirty (30) years and after that the house would be his. He then changed and said that he had fully paid for the house in issue because of inflation.

He ran into great difficulty when he referred to the ZimSun houses, where, again, he tried in vain to hold himself out as an authority on these houses.

He said the purchase price of these houses was $35,000. This figure is not supported by any documentation.

He went on to say that these houses were supposed to be paid for over twenty-five (25) years. But, $35,000 divided by 25 years, then by twelve months to arrive at the monthly payments, gives a figure of $116,67 which is nowhere near the $25,977 purchase price referred to on page 9 of the bundle of documents.

To compound his already difficult situation, he then changed and said that initially the ZimSun houses were paid for by way of a deposit of $250, the monthly rentals of $250 for 25 years.

Simple mathematics shows that the purchase price at $250x12 months x 25 years =$75,000. This figure had no relation to what he was talking about.

He then said that the plaintiff decided to reduce the purchase price to $180.

Still $180x12 months x 25 years = $54,000. This is so because he said the deduction from employees' salaries to pay for the house should not exceed 27% of the employee's salary.

This again was not supported by any documentation.

He further explained that of the $180, $20 would be utilized for service charges and $160 towards the purchase price, still the figure would be almost double the purchase price stated above.

There was no explanation forthcoming from him when the policy to reduce the price from $250 to $180 monthly was effected.

All along, it was the defendants' case that in respect of the ZimSun houses, they had paid a deposit of $250 and monthly instalments of $250. They had paid the full purchase price for the houses in question.

This was their case in their pleadings and synopsis of evidence.

There is no mention in the pleadings of the change to $180 per months or $160 plus $20 service charges per month.

It is highly improbable that if the defendants' erstwhile legal practitioners had been given instructions, they would not have mentioned it in both the pleas and synopsis of evidence.

This was something which was crucial to their case, as it relates to the alleged purchase price.

The fact that this was never mentioned in the pleadings shows that this witness made it up.

These contradictions and changes simply demonstrate a desperate witness who could not tell the truth.

In any event, the issue of the alleged change in the monthly instalments was never put in cross-examination to Mr Khumalo. This shows that it is an after-thought by the witness.

The only inference to be drawn is that the witness was untruthful, and so to the other defendants who supported him in making this assertion.

HH14-09 : TENDAI MUZA vs CHRISTINA MUWIRIMI and FATIMA MURWISI and MUNICIPALITY OF CHITUNGWIZA
Ruled By: MTSHIYA J

The issue of a top-up amount is not mentioned anywhere in the pleadings. It was only raised during the hearing in court.

HH504-16 : GODFREY CHIPARAUSHE and 60 OTHERS vs TRIANGLE LIMITED and TRIANGLE SENIOR STAFF PENSION FUND and MR S MTSAMBIWA
Ruled By: MATANDA-MOYO J

This is an opposed application where the applicant seeks that the first respondent be declared to be in contempt of High Court order in HC10776/13. The applicant also seeks that should the first respondent fail to comply with paragraphs(e) and (f) of the judgment in HC10776/13 within seven days of the granting of this order, ...

In terms of paragraphs(e) and (f) of HC10776/13 this court ordered the following;

“(e) IT IS HEREBY DECLARED THAT TRIANGLE LIMITED has an obligation to cause the determination of the applicants' basic annual salary for purposes of the calculation of applicants pensionable emoluments, from the date of this judgment onwards, in accordance with the TSSPF Rules, and that, this obligation shall be discharged, in full, within (90) ninety days of the date of this order.

(f) CONSEQUENT TO THE ABOVE DECLARATION TO THE ABOVE DECLARATIONS, TRIANGLE is hereby directed, within (90) ninety days of this order, to recommence making its contributions, and to deduct the applicants' contribution for onward transmission to the TSSPF, towards the costs of providing benefits towards the applicants in terms of the TSSPF's rules as determined by the TSSPF's actuary, and approved by the TSSPF Trustees, EXCLUDING any arrears which arose between January 2009 and the date of this order until such time as the TSSPF has been terminated in accordance with the TSSPF Fund Rules.”

Counsel for the first and third respondents raised points in limine.

(i) Firstly, he attacked the validity of the founding affidavit.

It was his submission that such affidavit was the same affidavit filed in HC11975/15, and, as such, cannot be admitted before these proceedings.

Such point was raised for the first time in the first and third respondents' heads of argument. The applicant took issue with that. It is the applicant's contention that such challenges should have been initially taken in the opposing affidavits. This, the applicant's counsel argued should have been done so as to accord the applicants an opportunity to deal with the issue in their answering affidavits.

The question of validity of a founding affidavit is a legal point and not a factual one. Factually the affidavit speaks for itself. The court can simply look at the founding affidavit and ascertain the facts. Its validity becomes a legal point.

It is trite that legal points can be raised at any time during the proceedings.

The issue of the validity of the founding affidavit was raised in the first and third respondents' heads of argument affording the applicant to deal with the issue in their own heads. See Barkhuizen v Napier (CCT 72105) (2007) ZACC 5 or 2007 (5) SA 323 (CC).

SC57-19 : THE COLD CHAIN (PRIVATE) LIMITED t/a SEA HARVEST vs ROBSON MAKONI
Ruled By: GOWORA JA, HLATSHWAYO JA and MAVANGIRA JA

On 21 December 1999 at the 12km peg along the Rusape to Nyanga road a horrific collision involving the respondent and an employee of the appellant occurred. The former sustained frightful injuries. Sadly, the appellant's employee succumbed to injuries occasioned from the collision. The following facts are common cause. The respondent sued for and was awarded damages by the ...

The following facts are common cause.

The respondent sued for and was awarded damages by the High Court on 23 January 2008. The damages so awarded were the following:

(i) BP (Botswana Pula) 63,750 for the cost of replacement of a vehicle;

(ii) BP83,717=90 in respect of medical expenses.

(iii) BP1,800,000 for loss of income.

(iv) Z$3,500 towing charges.

(v) BP12,000,000 car hire charges.

(vi) Z$2,000,000 shock, pain and suffering.

(vii) Z$850,000 disability damages.

(viii) Z$1,000,000 future medical expenses.

The appellant was dissatisfied with the judgment and appealed to this Court against the finding of vicarious liability as well as the amounts awarded in Botswana Pula (BP). There was no appeal against the amounts denominated in the Zimbabwe dollar. On 28 February 2012 this Court, in the case of The Cold Chain (Pvt) Ltd v Robson Makoni SC09-12, issued an order in the following terms:

“IT IS ORDERED THAT:

1. The application to adduce further evidence is dismissed with costs.

2. The appeal against the finding of vicarious liability is dismissed.

3. The appeals in respect of the value of the replacement motor vehicle, vehicle hire charges, and lost income are allowed and the order of the court a quo is altered in the following respects:

(i) In paragraph (a), Botswana Pula 40,000 is substituted for BP63,000;

(ii) In paragraph (c), Botswana Pula 616,200 is substituted for BP1,800,000;

(iii) In paragraph (e), Botswana Pula 6,000 is substituted for BP12,000,000.

4. There will be no order as to costs of appeal.

It is common cause that the appellant paid the amounts denominated in Botswana Pula. In respect of the other sums it tendered payment in Zimbabwe dollar. The respondent rejected the tender. He contended that due to the erosion of the currency it had become moribund due to disuse, and, as such, he had no use for it. He could not tender the same for payment to anyone.

An impasse ensued which resulted in the respondent filing an application with the High Court for the conversion to United States Dollars of the sums awarded to him in the local currency.

The High Court found that it had no jurisdiction to convert the amounts thus awarded to United States dollars. It said:

“In conclusion, this Court's opinion on the issue of currency nominalism, in the circumstances of this case, is that, while on the whole this Court has inherent jurisdiction to ensure that the process of execution is neither abused nor unfair, it does not have jurisdiction to rewrite an order in the manner sought by the applicant. I hold the considered view that this Court cannot revalue an order for purpose of execution.”

In short, it declined jurisdiction.

The respondent was aggrieved and appealed to this Court and was successful. In Robson Makoni v The Cold Chain t/a Sea Harvest SC55-16, this Court said the following:

“The principles enunciated in the case of Dube (supra) demonstrate that the once and for all rule is not applicable to the facts of this case because the applicant is not seeking further damages for the injuries he sustained in the accident. He is seeking the conversion of the damages he was awarded by the High Court in 2008 in Zimbabwean dollars to United States dollars. The appellant's application is intended to facilitate the enforcement of the order of damages in Zimbabwean dollars. The once and for all rule prevents a plaintiff from seeking further damages from a cause of action previously sued on. It does not prevent him from seeking the currency adjustment of an order already granted by the court.

Courts have authority to adjust their orders but under prescribed circumstances. Those circumstances depend mainly on whether or not the court will be functus officio.

The court a quo erred by relying on the once and for all rule to hold that it had no jurisdiction to hear the appellant's application. The application was for the conversion of already granted Zimbabwean dollar awards to United States dollars, which both parties agree have not yet been paid as there is a dispute as to how payment should be made. It was thus premised on a subsequent dispute over how damages awarded by the High Court in 2008 should be enforced.

The court's awards had been made uncertain by the dollarization of the Zimbabwean economy.

The appellant could not have reasonably foreseen that the Zimbabwe currency was going to be rendered moribund by the introduction of the United States dollar as usable currency in Zimbabwe.”

The court therefore allowed the appeal and issued an order in the following terms:

“Accordingly, it is ordered as follows;

1. The appeal is allowed with costs.

2. The decision of the court a quo is set aside.

3. The matter is remitted back to the court a quo for a hearing and determination on the merits.”

There were three issues for determination before the court a quo. These were the following:

(i) The amount in local currency to be converted into foreign currency;

(ii) The date of the prevailing rate of exchange to be applied for purposes of conversion.

(iii) The rate of exchange applicable for such conversion.

On the first issue, the court a quo found that the total amount to be converted into United States dollars was ZW$3,937,217=09. The learned judge concluded, on the second issue, that the date of rate of exchange to be applied was that rate which was prevailing on the date of judgment, being 23 January 2008.

It is this conclusion that the appellant disputes.

The appellant was aggrieved by that decision and noted this present appeal. The appellant moved an amendment to its grounds of appeal. The respondent did not object and the amendment was allowed by consent. The grounds of appeal, as amended, are framed as follows:

1. The court a quo erred at law in not finding that the ZW$ award made in favour of the respondent had, by operation of law, completely been decimated, and that, consequently, there was no ZW$ to convert to US dollars.

2. The court a quo erred in using the 23^rdofJanuary 2008 as the date of payment, and, therefore, the conversion date instead of using 24 October 2012 as the conversion date, it being the date on which the respondent demanded payment.

3. In any event, the court a quo erred in finding, as common cause, that the rate of conversion from Zimbabwean dollars to United States dollars, as at 23^rd January 2008, was USD$1: ZWD$30 contrary to the conversion rate of USD$1: ZWD$30,000= pleaded by the respondent and accepted by the appellant.

4. The court a quo erred in finding that, on the facts pleaded, the appellant was liable to the respondent in the amount of USD$131,240=56....,.

The first two grounds are being raised for the first time in this appeal.

Counsel for the appellant submitted that the issues being raised in those grounds were not before the court a quo. Critically, therefore, in its amended notice of appeal, the appellant seeks to introduce an issue that the court a quo erred in failing to note that the award made in favour of the respondent in 2008 was completely decimated and therefore there was nothing to convert.

The appellant argues that the amount awarded as damages had been ravaged by inflation, and, as a consequence, there was nothing to convert into foreign currency. In addition, it was contended that the currency was devalued in terms of S.I.109 of 2008, the effect of which was to render the local currency moribund.

It is common cause that the award of damages was appealed to this Court immediately after the judgment was rendered. The appeal itself was heard on 5 October 2010 and there is no indication that during the hearing the appellant made any effort to suggest that the amount being appealed was no longer capable of being paid and that the judgment could not in fact be given effect to. In addition to the above, the appellant did not, at any stage, attempt to have the order rectified following the promulgation of S.I.109/08. The appellant did not, in this Court, provide any authority that would support its contention that an order of court can be altered merely by the promulgation of a legal instrument without a formal request to a court for such alteration. In the premises, it is my view that the amount awarded as damages in local currency was what should have been used as a basis for the calculation of the foreign currency equivalent.

The further contention made on behalf of the appellant is that there was no jurisdictional basis for the court to exercise its original jurisdiction to convert the award to foreign currency on the basis that there was nothing to convert.

In Robson Makoni v The Cold Chain t/a Sea Harvest SC55-16 which was an appeal against a decision of the High Court in which that court had declined jurisdiction to grant an application for the conversion of the original award into foreign currency, this Court said:

“I am aware that the correction of judgments in terms of the court's jurisdiction to protect and regulate its processes in the interest of justice must be done within a reasonable time after the delivery of the judgment to be corrected. In this case, the judgment to be 'corrected' was taken on appeal. It thus had to await the decision of the Supreme Court after which the appellant sought payment. When the respondent refused to pay the appellant made the application which is the subject of this appeal. I am therefore satisfied that the appellant applied for conversion within a reasonable time. He, in other words, was not a sluggard.

Accordingly, this case should not be seen as opening the gates to all cases where judgments were denominated in Zimbabwean dollars and the affected parties failed or neglected to timeously do what the appellant in this case did, namely, seek the court's assistance to convert the awards to usable currency. A court order which is clear and enforceable at the time of delivery cannot be rendered nugatory and unenforceable by unforeseeable subsequent events which affect its clarity and render it unenforceable in its present form. The court a quo is entitled to protect and regulate its orders so that they remain enforceable.

I therefore hold that in terms of section 176 of the constitution, the court a quo has jurisdiction to hear and determine the appellant's application.”

What is evident in that passage is the absence of any suggestion from the appellant that the amount awarded as damages could not be converted by reason of the application to the award of the provisions of S.I.109 of 2008.

Had the court been addressed on this critical issue it would have made a determination as to whether, in addition to the question of jurisdiction relating to the conversion, the High Court enjoyed a jurisdictional base related to the existence or otherwise of an amount capable of conversion. The contention by the appellant that there was nothing for it to convert to foreign currency therefore raises two critical issues for determination.

(a) The first is that the court a quo is being criticised for failing to determine an issue that was never placed before it for adjudication.

It is evident that the appellant chose to have the matter decided without alerting the court of its views on the provisions of the statutory instrument in question. After counsel for the appellant's admission that this was an issue being placed before the court for the first time, it stands to reason that for that reason the ground cannot succeed....,.

Court orders must address the dispute before the court for to do otherwise would result in a patent miscarriage of justice.

View Appeal
SC29-13 : BETTY KANYUCHI vs DRAWING SERVICES (PVT) LTD
Ruled By: MALABA DCJ, GARWE JA and GOWORA JA

Counsel for the appellant, having noticed the difficulty the appellant's case was meeting on appeal, argued that the parties entered into an oral agreement. With respect, this was never alleged before the court a quo when the parties actually gave evidence and it is not alleged as a ground of appeal.

HH128-14 : EARTHMOVING & CONSTRUCTION COMPANY PL vs ASSWELL GURUPIRA and JEAN GURUPIRA and SANDRA MUIR REGISTRAR OF DEEDS and THE DEPUTY SHERIFF
Ruled By: MAFUSIRE J

At the commencement of the trial counsel for Mr and Mrs Gurupira took an objection in limine. He submitted that the trial should not proceed. He said it was a novel procedure to seek rescission by way of a trial action. By law and by practice, rescission of judgment was always via the application procedure. ...

Appealed
HH307-16 : ASSWELL GURUPIRA and JEAN GURUPIRA vs EARTHMOVING & CONSTRUCTION COMPANY PL and SANDRA MUIR and THE REGISTRAR OF DEEDS and THE SHERIFF and THE DEPUTY SHERIFF and JOHN LEGGATTE
Ruled By: MAKONI J

The present application was filed on 7 March 2008 and has raged on with various twists and turns, culminating in the hearing before me. The background facts are that, on 25 May 2007, the applicants (the Gurupiras) and the second respondent (Muir) entered into an agreement whereby Muir sold to the Gurupiras two (2) issued shares ...

The present application was filed on 7 March 2008 and has raged on with various twists and turns, culminating in the hearing before me.

The background facts are that, on 25 May 2007, the applicants (the Gurupiras) and the second respondent (Muir) entered into an agreement whereby Muir sold to the Gurupiras two (2) issued shares in the first respondent (the company). The company is the registered owner of a certain piece of land situate in the District of Salisbury Town measuring 3,066 square metres commonly known as 98 Churchill Ave, Gunhill, Harare held under Deed of Transfer Number 39/76 (the property). The shares entitled the holder to an exclusive right of occupation and use of the property.

The applicants aver that they paid the purchase price in instalments. They then encountered problems when they intended to make the final payment as Muir became evasive. The Gurupiras then filed a court application, in HC6660/07, seeking to compel Muir to furnish them with her banking details to enable them to make payment of the balance of the purchase price. They finally paid the balance on 13 February 2008 by cheque.

On 11 December 2007 Muir and the sixth respondent (Leggatte) signed a Shareholders Agreement in terms of which 98 shares in the company were issued and allotted to Leggatte. The Gurupiras got wind of the agreement and they instituted the present proceedings on 7 March 2008 against the company and Muir seeking the following relief;

“Whereupon, after reading documents filed of record and hearing counsel it is hereby ordered that:-

IT IS ORDERED THAT:-

1. The 3^rd respondent is hereby interdicted from transferring the property known as No. 98 Churchill Avenue, Gunhill, Harare also known as a certain piece of land situate in District of Salisbury Town Lands measuring 3,066 square metres under Deed of Transfer dated 7 January 1976 (Registration Number 39/76).

2. The sale of the property to any unknown third party be and is hereby set aside.

3. The property in paragraph 1 above be transferred to Asswell Africa Gurupira and Jean Jane Gurupira and the 2^nd respondent is directed to sign all the necessary documents to transfer.

4. Should the 2^nd respondent fail or refuse to sign the necessary documents to effect transfer the 4^th of 5^th respondent is hereby directed to sign all the necessary documents to effect the transfer by 3^rd respondent to 1^st and 2^nd applicants.

5. The 1^st and 2^nd respondents shall bear all the costs of this application on an attorney client scale.”

The application was served by the Deputy Sheriff on both respondents by placing in a letter box. None of the respondents responded, and, on 21 May 2008, the Gurupiras obtained default judgement. On 16 June 2008, the Gurupiras took transfer of the property into their names. On 23 July 2008, they made an ex parte application, in the Magistrates' Court, for the eviction of the company and Muir and it was granted. On 24 July 2008 the company and Muir and all those claiming occupation through her were evicted.

That is when the company, as represented by Leggatte, became aware of the default judgment, and, on 22 August 2008, it applied for rescission of the default judgement in Case No. 4211/08. The matter was referred to trial after material disputes of fact became apparent. The trial was held before MAFUSIRE J, and, on 19 March, judgment was handed down. The court made the following order;

“DISPOSITION

In the circumstances, this matter is disposed of as follows:

1. The default judgment granted by this court on 21 May 2008, in HC1393/08, is hereby set aside.

2. The Registrar of Deeds is hereby ordered and directed to cancel Deed of Transfer No. 4778/08 over certain piece of land situate in the district of Salisbury, called Stand 12896 Salisbury Township of Salisbury Township Lands, measuring 3,066square metres, dated 16 June 2008 in the name of Asswell Africa Gurupira and Jean Jane Rudo Gurupira and to restore the prior Deed of Transfer No. 39/76.

3. The following residual issues shall be determined in the main application in HC1393/08:

3.1 Whether or not the agreement of sale between the first and second defendants, namely, Asswell Africa Gurupira, of the one part, and the third defendant, namely, Sandra Maureen Muir, of the other part, was duly performed.

3.2. Whether or not the first and second defendants should vacate the premises situate on the property more fully described in paragraph 2 above and which is also known as 98 Churchill Avenue, Gunhill, Harare.

3.3 Whether or not the transfer of shares in the plaintiff company, namely, Earthmoving & Construction Company (Private) Limited, by the third defendant to one John Leggatte, should be set aside.

4. The plaintiff shall file its notice of opposition or other such papers in HC1393/08 within ten (10) days of the date of this order, and, thereafter, the filing of any further documents shall be in accordance with the Rules.

5. The costs of the application and of the trial in HC4211/08, and the costs of the application in HC6660/07 shall all be borne by the first and second defendants jointly and severally, the one paying the other to be absolved.”

The company, in terms of paragraph 4 above, then filed its opposing papers to the present proceedings on 2 April 2014. It took the point in limine, that, the order sought by the Gurupiras was incompetent in that they sought transfer of the property and yet they only bought shares in the company. On the same date, the company filed a counter application for the eviction of the Gurupiras. Again, on the same date, Mr Stevenson filed a Notice of Opposition for Muir. The parties filed further papers up to Heads of Argument.

On 22 January 2015, the Gurupiras filed an application for joinder of Leggatte which he opposed. On 25 February 2016 an order granting joinder of Leggatte was granted. Further pleadings were filed pursuant to the order of joinder. Leggatte also adopted the point as raised by the company. The Gurupiras filed a supplementary affidavit wherein, inter alia, they sought an amendment to the draft order.

The matter was set down for hearing on 21 May 2015. A day before the hearing Mr Stevenson filed a document titled “Take notice that the 2^nd respondent hereby files of record a mandate given to her legal practitioners of record.”

A supporting affidavit by Mr Moyo, Leggatte's legal practitioner, is attached. To the affidavit, Mr Moyo attached a letter allegedly written by Muir and delivered to him by Leggatte who had allegedly received it from Muir's son.

On the day of hearing, Mr Mpofu moved for the amendment of the Draft Order. Both Mr De Bourbon and Mr Stevenson did not oppose the amendment. It was therefore granted. The amended Draft Order seeks the following relief;

“WHEREUPON, after reading the documents filed of record and hearing counsel:

IT IS ORDERED THAT:

1. An order declaring the 1^st and 2^nd applicant to be the lawful shareholders of the entire shares in the 1^st respondent (the company) and that any purported transfer or appointment of directors by the 1^st respondent to the 6^th respondent be deemed null and void.

2. An order declaring the 1^st and 2^nd applicants to be the lawful owners of the 1^st respondent (the company's) sole immovable property being Stand 12896 Salisbury Township situate in the district of Salisbury measuring 3,066 square metres known as No.98 Churchill Avenue, Gunhill, Harare and that the above property be transferred in favour of 1^st and 2^nd applicants.

3. An order that the 2^nd respondent be directed to sign all necessary documents to effect transfer of both the shares and the property.

4. Should the 2^nd respondent fail to sign the necessary documents to effect transfer of the shares and the property, the 4^th respondent is hereby directed to sign all necessary documents for 3^rd respondent to effect the transfer to 1^st and 2^nd applicants.

5. The 1^st, 2^nd and 6^th respondents shall bear all the costs of this application on an attorney and client scale jointly and severally each causing another to be absolved.”

The granting of the application to amend the Draft Order disposed of the point taken by the company and Leggatte regarding the competency of the order sought by the Gurupiras.

Mr Mpofu took the point, in limine, that the second respondent was not properly before the court. He submitted that the default judgment was taken against all respondents. The company applied for rescission of the judgment. In the order by MAFUSIRE J, only the company was given leave to defend the matter. Muir was in default and never applied for condonation.

He further submitted that Mr Stevenson deposed to the affidavit opposing the matter. He avers that after the granting of the default judgement he renounced agency after being instructed to hand over Muir's files to another legal practitioner. He was then prevailed upon by interested parties to act on behalf of Muir. Since the company was directed to file its opposing papers within 10 days of the order, he felt compelled to do the same for Muir.

Mr Mpofu further contended that Mr Stevenson did not have instructions to deal with this matter.

He tells some falsehoods on page 136 paragraph 12 when he said Muir's husband signed the agreement with Legatte on 27 May 2008 and yet, by then, Mr Muir had transferred his one share to his wife and had passed on.

The supplementary affidavit by Mr Moyo, in paragraph 2, is at variance with what appears in Mr Stevenson's affidavit in paragraphs 4 and 5. The position put forward by Mr Moyo is a false position.

In response, Mr De Bourbon submitted that the entire judgment was set aside for both the second and sixth respondents. The judgment dealt with the issue of service of the application on Muir and the company. All the issues that the court opined might be determined in the matter, in paragraph 3.2 of the order also involve Muir. She was therefore properly before the court.

Mr Stevenson submitted that at the time default judgment was taken the issue was transfer of the property and not of shares. He contended that in an emergency one acts to protect his or her neighbour. If the Gurupiras had been successful, it would reflect on his client as she is the one who sold the shares. He submitted that a legal practitioner is allowed to give evidence. He had sought authority from his client's relative and the letters had just been found by Mr Moyo. The fact that he had handed over file HC66660/08 to another legal practitioner did not prevent him to act in an emergency on behalf of his client. He was the one best placed to know the position.

In reply, Mr Mpofu submitted that the fact MAFUSIRE J opined that the issue of service might need determination does not make Muir a party. In any event, service was effected on the domicilium citandi in terms of the agreement. If Muir is not happy then she is the one who must attack it. A Notice of Opposition is filed by the respondent. The legal practitioner can file a supporting affidavit as witness. Mr Stevenson purports to act as an agent when he has no authority. When notice is given that the issue will be taken up, an attempt is made to validate the authority. Mr Stevenson does not do the affidavit himself. Instead, Mr Moyo, the sixth respondent's legal practitioners, deposes to the affidavit. Mr Stevenson filed an affidavit in his own name without purporting to represent Muir.

The issue for determination is whether the second respondent, Muir, is properly before me. I will examine the issue from two angles;

(i) Firstly, whether the judgment by MAFUSIRE J gave Muir leave to defend the matter....,.

In dealing with the first point, it is important to determine whether Muir was served with the court application. There is a Return of Service which was rendered by the Deputy Sheriff which reflects that the court application was served at No. 98 Churchill Avenue, Gunhill, Harare. It was served by placing in a letter-box. The service was on behalf of the first respondent, the company and the second respondent - Muir. In terms of clause 9 of the agreement between Muir and the Gurupiras, Muir chose that address as her domicilium citandi.

It is trite that the return of service of an officer of the court, whether he be the Sheriff, the Deputy Sheriff or the Messenger, has to be accepted as prima facie proof of what was stated therein, capable of being rebutted by clear and satisfactory evidence. See Gundani v Kanyemba 1988 (10) ZLR 226 (SC).

In casu, Muir has not placed any facts before this court, either in the application for rescission on in the present matter, that she was not served with the application. None of the witnesses, in the application for rescission, could testify on her behalf on that aspect. All that Mr Stevenson could say was that he wondered why the application was not served on his law firm. The answer is to be found in clause 9 of the agreement. Service of the process other than as stipulated in the agreement would have fallen foul of that clause.

Having been served, and after the expiry of 10 days, Muir was therefore barred. This is provided for in Rule 233(2) of the High Court Rules, 1971. She did not approach the court to seek upliftment of the bar.

The fact that the company successfully sought rescission of the judgment does not assist her.

MAFUSIRE J was clear in his order. He gave the company leave to file its opposing papers. He did not relate to the position of Muir as she had not made an application for the order to be set aside. She cannot therefore cling to the judgment made in favour of the company and allege that it paved the way for her to file her papers in opposition.

MAFUSIRE J could not grant what had not been prayed for.

View Appeal
SC85-20 : JOHN LEGGETT and EARTHMOVING AND CONSTRUCTION COMPANY PL vs ASSWEL GURUPIRA and JEAN GURUPIRA and SANDRA MUIR and THE REGISTRAR OF DEEDS and THE SHERIFF and THE DEPUTY SHERIFF
Ruled By: GWAUNZA DCJ, GOWORA JA and PATEL JA

Absent a prayer by a party claiming specific relief from the court, a court cannot be criticized for not having given an order in favour of such party.

HH05-03 : U-FREIGHT EUROMAR (PRIVATE) LIMITED vs EMMANUEL MUTEBUKA
Ruled By: MAKARAU J

I believe the year 1989 is a good starting point for the story of one John Chidyiwa, the Managing Director of the plaintiff, and the defendant. Then, the two knew each other as work-mates in the Department of Customs and Excise (as it was then known). In or about 1993, the two became quite close friends. ...

In or about 1993, the two became quite close friends. The friendship grew so close that members of John Chidyiwa's family knew members of the defendant's family and vice versa. The defendant could visit John Chidyiwa's home in Chivhu in the absence of John Chidyiwa and the reverse would also happen. As of May 1997, the friendship between them could be described as excellent. They then went into business together.

In or about May 1997, two Italian nationals approached John Chidyiwa (alone or in the company of the defendant), and encouraged him to start a freighting company. Urgent Services (Private) Limited came into existence. The directors of this company were one Marinella Cernuschi (one of the Italians), John Chidyiwa, and the defendant.

A dispute arose between the parties as to when and how the defendant became a director of Urgent Services (Private) Limited. For the purposes of determining the real dispute between the parties, it is not important that I make a finding in respect of this dispute. In my view, it is sufficient to note that as of May 1997, when Urgent Services (Private) Limited submitted its register of directors and secretaries to the Registrar of Companies, the defendant was listed as a director of the company.

In due course, Urgent Services (Private) Limited became the plaintiff through a change of name in accordance with the provisions of the Companies Act [Chapter 24.03]. John Chidyiwa assumed the position of Managing Director of the company while the defendant became the Operations Manager.

In or about September 1998, six haulage trucks and six trailers were purchased. Three of each were registered in the name of John Chidyiwa with the remainder registered in the name of the defendant. A few days after each registration, the registration of some of the trucks and trailers were amended to add, at the end of each name, the words “trading as U-Freight”.

The circumstances of the purchase and registration of these trucks and trailers form the centrepiece of the legal dispute before me…,.

In or about April 2001, the defendant and the plaintiff parted company. The defendant tendered a letter of resignation, and, upon leaving the plaintiff, indicated, by word and by deed, that he regarded three of the trucks and three of the trailers as his personal property. As a result of this indication by the defendant, few skirmishes occurred on the highways during which trucks were “hi- jacked” by one party from the other, resulting in a number of applications in this and the Magistrates Court, culminating in this action.

The plaintiff has, throughout these applications, maintained that the entire fleet of six trucks and six trailers are its sole and absolute property.

Before I proceed to deal with the matter on its merits, let me get out of the way one procedural issue. This relates to whether or not there is a counterclaim by the defendant in the matter before me.

Counsel for the plaintiff made much about the absence of a counter-claim in the action between the parties under case no HC4250/01. This he raised not necessary as a procedural issue, but as tending to prove that the defendant has never asserted any legal right to the three trucks and trailers registered in his name and some of which are in the possession of the plaintiff.

In my view, the absence of a counter-claim in this matter is an academic issue.

Firstly, the plaintiff is praying for an order declaring it to be the legal owner of the six trailers and the six trucks. A declarator, by its nature, is binding on both parties to the litigation as it merely defines the legal position within which the parties exercise their rights. A finding that the trucks and trailers are the properties of the plaintiff necessarily means that the defendant has no right to them. The reverse also holds true.

Secondly, and more importantly in my view, this matter was referred to trial after the parties attended before a judge in chambers at a pre-trial conference. The issue of the incomplete nature of the proceedings was not raised at the pre-trial conference stage.

Issues for trial were framed using the affidavits filed by the defendant as an outline of his defence. In my view, this is the appropriate stage at which the incomplete nature of the pleadings should have been raised and rectified. To settle the pleadings between the parties is one of the main functions of a judge at a pre-trial conference.

In an effort not to delay justice between the parties, and with the consent of the plaintiff, I condoned the departure from the rules by the defendant. His opposing affidavits are to be regarded as his plea.

HH352-18 : N.R BARBER (PRIVATE) LIMITED vs ZAMBEZI GAS ZIMBABWE (PRIVATE) LIMITED
Ruled By: MUZENDA J

The plaintiff, N.R Barber (Private) Limited (hereinafter referred to as “plaintiff”) is a company duly registered in terms of the laws of Zimbabwe, whose registered office is 114 Seke Road, Graniteside, Harare. The plaintiff specialises in mining operations, underground, open cast, mining plans, transport logistics for ferrying the ore from one place to the supplier and related business.

The first letters of the plaintiff stand for Nolan Robert whose surname is Barber. Incidentally, he is the Managing Director and alter ego of the plaintiff.

The defendant, Zambezi Gas Zimbabwe (Private) Limited (hereinafter referred to as the “defendant”) is equally a duly registered company in terms of the law of Zimbabwe whose offices are situated at Number 28 Transtobac Complex, Hillside Road Extension, Msasa, Harare.

Mr Francis Chirimuuta, the Managing Partner of Chirimuuta and Associates, is the Board Chairman of the defendant; Mr E. Raradza is the Managing Director; Mr Thomas Nherera is the Executive Director for Finance and Administration; Mr M. Raradza is the Executive Director for Operations and Marketing; Mrs R.M Kajese being the fifth Director.

The defendant is a proprietor and hence holder of a coal mine situated in Hwange under a special Grant Number 4084 in respect of coal reserves which comprise of approximately 20,000,000 (twenty million) tonnes mineable and extractable in situ tons of coal. The defendant then formed a Special Purpose Vehicle under the name of Entuba Coal Fields of Zimbabwe (Private) Limited whose registered office address is given as 28 Hillside Road Extension Transtobac Complex, Msasa, Harare whose directors are Dr C. Msipa, Mr Hlongwani, Mr E. Raradza, Mr T. Nherera and Mr M. Raradza.

Dr C. Msipa and Mr Hlongwani are directors of another entity called Coal Brick which company is known to the plaintiff. Hence, Mr E. Raradza and Mr T. Nherera are both directors of the defendant and Entuba Coal Fields of Zimbabwe (Private) Limited.

On 28 August 2017, the plaintiff issued summons against the defendant for the following relief;

(a) Payment of the amount of USD3,885,000, being payment of money due and owed to the plaintiff by the defendant in terms of an acknowledgment of debt which was executed by the defendant in favour of the plaintiff on the 15th of February 2017;

(b) Interest on the amount at the prescribed rate of 5% per annum calculated from the date of summons to the date of payment in full; and

(c) Costs of suit on attorney client scale.

In paragraph 3 of the plaintiff's declaration it summarises the plaintiff's cause of action as follows:

“3. On the 15th of February 2017 the defendant executed an acknowledgement of debt in favour of the plaintiff wherein it admitted that the amount of $3,885,000 (three million eight hundred and eighty five thousand United States dollars) was due and owed to the plaintiff as a debt arising from the work done by the plaintiff at Entuba Mine at the instance and request of the defendant.”

In paragraph 5 of its declaration the plaintiff adds:

“The defendant failed to pay the monthly instalments as per the acknowledgement of debt and the amount of US$3,885,000 is now due and owed to the plaintiff.”

The defendant entered appearance and filed its plea and the gravamen of its plea is contained in paragraph 3 which states the following:

“3: Ad Paragraph 3 Defendant denies;

(a) The existence of any privity of contract between plaintiff and itself and denies that any work was allegedly performed on its behalf.

(b) That plaintiff performed work on its behalf or for whomsoever at its special instance and request. It puts plaintiff to the proof thereof.

Defendant, consequently, denies that there was any legal cause for the alleged acknowledgement of debt.”

On the strength of this plea, the defendant prays that the plaintiff's claim be dismissed with costs.

On 29 January 2018 the parties signed a joint pre-trial conference minute which streamlined issues for trial as follows:

“1. Whether there was legal cause for the acknowledgement of debt.

2. Whether the debt acknowledged by the defendant arises from work done by the plaintiff at the instance and request of the defendant.

3. What amount is due by the defendant to the plaintiff?”

On 13 June 2018 the matter proceeded to trial.

Mr N R Barber, the plaintiff's Managing Director, gave evidence. He stated that between 2013 and 2014 he was tasked to do work at Hwange by Entuba Mine, a company owned by the defendant company. The total amount due from Entuba was $3,012,493=46, and, on 12 May 2016, the defendant's Chief Executive Officer, Mr Thomas Nherera, wrote to the plaintiff acknowledging its indebtedness to the plaintiff for that amount.

The first acknowledgement of debt, authored and signed by the defendant's Directors, was produced by the plaintiff in court and accepted as exhibit number 1.

In the contents of exhibit 1, the witness pointed out that the defendant thought it acknowledged its indebtedness to the plaintiff in the sum of $3,012,493=46, a reconciliation of the total capital owed was going to be carried out and factor in any amount towards fuel expense issued to the plaintiff during the operations, thereafter, interest was going to be added to the capital.

On 15 February 2017, Mr N.R. Barber told the court that indeed a second acknowledgement of debt showing a deduction in capital and a figure of interest was signed by the defendant. The second acknowledgement of debt, exhibit 2, was produced in court.

Mr NR Barber further clarified and confirmed that although all the invoices were reflecting Entuba Coal Mine, those were subsequently accepted by the defendant and the defendant acknowledged its indebtedness to the plaintiff and what was more crucial to the plaintiff were the acknowledgements of debt specifically created, authored, and signed, by the defendants which formed the plaintiff's cause of action.

He clearly testified that Entuba Mine was a special purpose vehicle formed by the defendant and he was not surprised when the defendants delivered to him exhibit(s) 1 and 2. He believed the defendant when it told him that it was going to take over the debt.

In any case, according to the witness, the defendant was the beneficiary of the product the plaintiff produced.

He added that at all material times Mr T Nherera was aware of all the invoices issued to Entuba and Mr T. Nherera used the same invoices to prepare and reconcile figures which he ultimately used to compile the acknowledgement of debts.

Mr N.R. Barber was extensively cross examined by the defendant's counsel but he maintained his stance, and, further, added that although the defendant was joined by Linos Masimura, well after the signing of the acknowledgement of debt, the defendant did not challenge the authenticity of the acknowledgment.

Mr NR Barber was actually surprised when Mr E Raradza and Mr T Nherera refused to honour the defendant's indebtedness. The amount of $3,885,000 was calculated and reconciled by the defendant and it ought to be honoured he contended.

The plaintiff's second witness was Mr Antiock Kuraone who was appointed as agent by the plaintiff to recover the outstanding debt.

When the witness was appointed he engaged the Directors of the defendant, the Managing Director, Mr E Raradza, and Mr T. Nherera. The defendants unreservedly acknowledged owing the plaintiff an amount of $3,885,000 and they produced exhibit no. 2 where the defendant indicated the proposed date of payment with a cut-off date for last payment being February 2020.

The witness reiterated the fact that in as far as the legal cause of the acknowledgement of debt was concerned, the acknowledgements themselves, prepared by the defendant, succinctly disclosed the cause, that is, for payment of money for the work done for the defendants at Entuba Mine in Marange.

Exhibit 2 was signed by the Managing Director, Mr E Raradza, and Director Finance and Administration, Mr T Nherera.

The two were not forced and co-operated throughout the engagement, he said.

He also clarified that at no time did the defendant raise the issue of liability; the sticking issue that arose when he came into the matter was basically reconciliation, more particularly, of factoring in the fuel aspect. Otherwise, the parties were in agreement as to the amount.

During cross examination by the defendant's counsel, the witness remained adamant that the issue of legal causa did not arise during the engagement.

Mr T. Nherera was fully aware of all the verifications and he (Mr T Nherera) is the one who did the reconciliation.

Mr Kuraone rejected the amount of $896,884 as the correct amount and denied that Mr Masimura engaged him for a revisit on the alleged reconciliation of the figures contained on the acknowledgements.

After the acknowledgement, what Mr Kuraone and the plaintiff were waiting for was payment. When the defendant did not honour the payment he advised the plaintiff to take legal action, which the plaintiff did.

Mr Antiock Kuraone impressed the court as an honest witness, he did not exaggerate but remained forthright. He actually confirmed Mr N.R. Barber's testimony and both witnesses were credible. Their evidence tallies with the exhibits produced in court....,.

The defendant called Mr Edward Raradza, its Managing Director; to give evidence. I will deal with portions of his evidence relevant to the matter before me.

He told the court that sometime in September 2013 the defendant and Coal Producers and Processors Trust Zimbabwe entered into a joint venture agreement where the two parties formed a Special Purpose Vehicle, Entuba Coalfields (Private) Limited. The defendant was to avail its mining concession to the joint venture and Coal Producers Trust was to provide resources to mine the coal.

The plaintiff was brought on site to Entuba Coalfields to provide mining contractor services.

According to the witness, it was Coal Producers Trust which brought the plaintiff to Entuba and payment of work done by the plaintiff, per Entuba, was Coal Producers Trust's responsibility. He repeated what is contained in the defendant's plea, that there was no contractual arrangement between the plaintiff and the defendant.

In July 2015, the Special Purpose Vehicle, Entuba Coal Mine Company, became dysfunctional and the defendant repossessed its mining concession. The defendant was aware of the plaintiff's debt, and, according to Mr E Raradza, the defendant, without any legal obligation thereto, executed an acknowledgement of debt in favour of the plaintiff in the amount that the plaintiff had indicated was wrong subject to a reconciliation being conducted.

He added that the defendant could not pay because the income flows from the mining operations did not permit fulfilment of such undertakings that the defendant had made.

During cross-examinations by the plaintiff's legal practitioner, Mr Raradza unequivocally admitted that the Directors and the defendant company confirm that the plaintiff is owed but the only contentious issue was the amount. He accepted the authenticity of both exhibit 1 and 2, and, per exhibit 2, he accepted that he co-signed it but he was not familiar with issues relating to costing mining invoices. He admitted that efforts were made to reconcile the figures acknowledged but was not clear as to when such efforts were made before the drafting of exhibit 2 or after it was already signed.

Most of his evidence actually substantiated the plaintiff's case.

The defendant's second witness was Mr Thomas Nherera. In principle, the witness dwelt more on corporate divisibility, that, as long as there are two existing companies, the liability of one does not cross the demarcating line to the other side. Each company is accountable to its own liabilities. Hence, the defendant did not enter into any contractual relationship with the plaintiff, and, as such, there was no pretext for the writing of the acknowledgement of debt.

He however brought a very crucial revelation which greatly assisted this court. He admitted, under cross examination, that the Managing Director of the defendant and himself were both directors of Entuba. He was its Chief Executive Officer and he is the one who received all the invoices from the plaintiff. Using those invoices, he prepared exhibit 1 and 2. However, when exhibit 1 and 2 were prepared and signed, the real motive was to retain business relationship and rapport with Mr NR Barber but thus far.

He also admitted that Entuba had no assets at all and was fictitious in principle.

Mr T Nherera was evasive during cross-examination and had difficulties in answering simple questions. He contradicted Mr E Raradza especially on the aspect of liability of the defendant to the plaintiff.

Mr Linos Masimura was the defendant's third witness.

He holds a Masters in Business Leadership and is involved in mining operations in Zimbabwe and South Africa. He is the Deputy Managing Director of the defendant from June 2017. When he joined the defendant he was briefed about the defendant's status, its employees and liabilities. He was shown exhibit 1 and 2 and undertook to do a verification exercise. He visited the mine at Hwange with Mr E Raradza, the Mining Manager, and Mr Kurauone. He worked out a reconciliation thereafter and came out with a figure of $896,884 as being the “real” amount per the work done by the plaintiff. He also worked out the total sum of payments made to the plaintiff by Entuba or payments made to the plaintiff for work done.

He strengthened the defendant's plea that there was no legal causa between the plaintiff and the defendant.

During “conciliation” of figures, he worked with Mr Kurauone who was representing the plaintiff but when the witness engaged Mr Kurauone with the figure of $896,884 Mr Kurauone could not accept it.

The witness is not an accountant, he did not produce a comprehensive audit report based upon the acknowledgement figures and show the deductions of double invoicing. The document shown by the witness is but scanty. It does not show the reconciliation process for one to come up with the amount of $896,884.

The witness was cross-examined by the plaintiff's counsel and was at pains to explain how he arrived at that figure of $896,884....,.

Mr Linos Masimura came to join the defendant well after exhibits 1 and 2 had been prepared. The alleged reconciliation was post facto and could not affect exhibits 1 and 2.

Mr T Nherera is in charge of the defendant's finances and he is the one who initiated both exhibits 1 and 2; the only reasonable inference relating to exhibits 1 and 2, in this court's view, is that they reflect the actual amount owed to the plaintiff.

The amount of $896,884 does not appear in the defendant's plea.

It only emerges in exhibit No. 4; the defendant's legal practitioner's letter dated 24 August 2017 written in reply to the plaintiff's letter. It was never tendered to the plaintiff as being the amount due to the plaintiff. It was not even admitted by the defendant in its papers. There is no evidence to show that the figure came as a result of conciliating $3,012,493=46 contained in exhibit 1.

The court concludes that the amount of $3,885,000 acknowledged by the defendant, on 15 February 2017, is the capital debt inclusive of interest due to the plaintiff.

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

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

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

The background to the matter may be summarized as follows:

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

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

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

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

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

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

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

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

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

Wedzera Petroleum failed to honour its indebtedness as promised.

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

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

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

PROCEEDINGS BEFORE THE COURT A QUO

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

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

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

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

The trial proceeded against the appellant.

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

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

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

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

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

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

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

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

PROCEEDINGS ON APPEAL

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

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

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

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

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

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

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

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

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

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

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

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

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

I will proceed to deal with each of these issues.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The appellant produced sample guarantees which it alleged were lawfully facilitated for other parties. These sample guarantees were juxtaposed with the guarantees which Francis Mugwara had facilitated and affixed a single signature instead of two signatures as appeared on the sample guarantees. The appellant argued that the fact that the guarantees issued on behalf of Wedzera Petroleum were not counter-signed meant that the guarantees were fake and invalid.

Sample guarantees produced before the court a quo showed that Francis Mugwara would countersign a guarantee with other personnel of the Bank. It is of importance to note, however, that such other personnel would be junior personnel and Francis Mugwara would counter sign to give effect to the validity of the guarantee facilitated by his subordinates.

It thus could not have been extensively irregular that on the two guarantees made in favour of the respondent Francis Mugwara signed the guarantees with no other counter signature as he was the head of the Unit from which such guarantees originated.

The arguments raised by the appellant, that absence of a second signature rendered the guarantees ineffective, thus lacks merit.

The appellant did not adduce any evidence to show that the facilitation of the guarantee was not carried out in-house. The appellant's witnesses could have brought the register for credit facilities issued by the Bank to show that no entry was ever made in favour of Wedzera Petroleum to the respondent.

Francis Mugwara vehemently denied that he had not followed proper procedures in processing the guarantees and stated that records of the guarantees were with the appellant.

In examination in chief, Francis Mugwara admitted to having recorded the guarantees in the Bank's register. The court a quo, in assessing these facts, found that:

“The evidence on whether or not Mugwara could issue guarantees on his single signature was inconclusive. Mugwara said he could. The Bank said he could not. The onus was on the Bank to prove that he could not. It did not refute, satisfactorily, Mugwara's claim that it was only guarantees initiated by subordinates that required to be counter-signed for validity. I find that the Bank failed to discharge the onus on such a key aspect of defence.”

In finding that Francis Mugwara had authority to act on behalf of the appellant, the court a quo made reference to the incidental clause in his job description document. A reading of the clause shows that Francis Mugwara, as the Head of Short Term Loans, had to take due diligence and not make an error of judgment as such error in creating a bad loan portfolio would have catastrophic consequences which could lead the appellant to insolvency.

This clause, in itself, crystalizes the point that he had authority to act on behalf of the appellant in a manner which could extend to issuing guarantees. Only a senior officer of the Bank could possess authority to act on its behalf to an extent where an error of judgment would lead to catastrophic results.

It is a settled principle that this Court will not easily interfere with factual findings made by a lower court unless the findings are grossly unreasonable. See ZINWA v Mwoyounotsva 2015 (1) ZLR 935 (S); Hama v NRZ 1996 (1) ZLR 664 (S); Reserve Bank of Zimbabwe v Corrine Granger and Another SC34-01.

The lower court enjoys the opportunity to see the witnesses on the stand, assess their demeanour and credibility. Such findings of fact cannot easily be interfered with by an Appellate Court as it is limited to the record of proceedings. See Mtimukulu v Nkiwane and Another SC136-01.

It is my view that the court a quo's factual findings cannot be impugned.

Francis Mugwara was a senior employee who could carry out credit facilitation and represent the appellant.

All the above findings lead to the inescapable conclusion that the court a quo's factual findings were correct.

The next inquiry that arises from this finding is the extent of the authority Francis Mugwara had in issuing the guarantees to the respondent; that is, whether or not it was implied or express authority.

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

The court a quo found that the authority exercised by Francis Mugwara, in issuing the guarantees, was implied (apparent or ostensible) authority.

The respondent based its arguments for the claim of payment of the guarantees on the ostensible authority which had been exercised by Francis Mugwara. Counsel for the respondent submitted that it was on the basis of this apparent authority exercised in the issuing of the guarantees that the respondent agreed to issue Wedzera Petroleum fuel.

It was the appellant's argument that no such implied authority existed and that on the basis of Francis Mugwara's job description such authority was not given to him.

The appellant also argued that in terms of the Bank's Lending Policy, Francis Mugwara did not have authority to single-handedly facilitate a credit facility, sign it, and issue it without proper procedure being followed.

Ostensible authority, or apparent authority, exists where an agent's words or conduct lead a reasonable person in a third party's position to believe that the agent is authorized to act, even if the principal and the purported agent have never discussed such a relationship.

The effect and meaning of ostensible authority was discussed in Makate v Vodacom Ltd 2016 (4) SA 121 (CC)…, in which the case of Hely-Hutchinson CA v Brayhead Ltd and Another [1968] 1 QB 549 (CA)…, was referred to with approval. The court stated the following:

“Actual authority and ostensible or apparent authority are the opposite sides of the same coin. If an agent wishes to perform a juristic act on behalf of the principal, the agent requires authority to do so, for the act to bind its principal. If the principal had conferred the necessary authority, either expressly or impliedly, the agent is taken to have actual authority. But, if the principal were to deny that she had conferred authority, the third party who concluded the juristic act with the agent may plead estoppel in replication.

In this context, estoppel is not a form of authority but a rule to the effect that if the principal had conducted herself in a manner that misled the third party into believing that the agent has authority, the principal is precluded from denying that the agent had authority.”

The court went on to state the importance of ostensible authority and made the following remarks..,.:

“The concept of apparent authority, as it appears from the statement by, Lord Denning, was introduced into law for purposes of achieving justice in circumstances where a principal had created an impression that its agent has authority to act on its behalf.

If this appears to be the position to others, and an agreement that accords with that appearance is concluded with the agent, then justice demands that the principal must be held liable in terms of the agreement.

It cannot be gainsaid that, on present facts, there is a yearning for justice and equity.”

In Rama Corporation Ltd v Proved Tin and General Investments Ltd [1952] 2 QB 147, SLADE J noted as follows:

“Ostensible or apparent authority which negatives the existence of actual authority is merely a form of estoppel; indeed, it has been termed agency by estoppel, and you cannot call in aid an estoppel unless you have three ingredients:

(i) A representation;

(ii) A reliance on the representation; and

(iii) An alteration of your position resulting from such reliance.”

See also Freeman and Lockyer v Buckhurst Park Properties (Mangal) Ltd [1964] 2 QB 480.

Ostensible authority thus binds a principal over actions done by its agent with relation to third parties. Such principal can thus be estopped from denying liability of the actions of the agent.

In casu, Francis Mugwara was an agent of the appellant; he was the head of the Short-Term Loans Unit and had subordinates under him. His key duties included a mandate to approach companies and commercial institutions in a bid to facilitate that these companies and institutions acquired loan facilities from the appellant.

It was not in dispute that at the time the two guarantees were issued to the respondent on behalf of Wedzera Petroleum, the appellant was running off-balance sheet facilities due to the economic situation which was prevailing in the country at that time. On the basis of such off balance sheet facilities the appellant would issue credit facilities to finance different business ventures.

It is important to note that the first encounter under which Francis Mugwara and the respondent met was not on the issuance of the guarantees. Francis Mugwara had previously made presentations before Mr Mudzengerere, who was the respondent's Managing Director. Francis Mugwara approached the respondent to issue the guarantees on fuel procurement and disbursement. The intended business venture between Francis Mugwara and the respondent did not materialise at that time but a relationship had been formed.

It thus cannot be taken as being irregular that, upon being presented with the guarantees in favour of Wedzera Petroleum, for fuel allocation, Mr Mudzengerere, on behalf of the respondent, accepted these guarantees.

The respondent duly accepted the guarantees on the basis of the conduct and representations which had been made by Francis Mugwara - even before Wedzera Petroleum sought a credit facility from the appellant.

The respondent's cause of action against the appellant, for payment, was on the basis of ostensible authority which had been exercised by Francis Mugwara.

The court a quo duly made factual findings on the exercise of this authority. Clearly, there is nothing illogical or unreasonable from the court a quo's findings.

Francis Mugwara confirmed that he had authority to carry out his duties and the respondent could not be faulted for honouring the guarantees which were issued on behalf of the appellant by its Head of Short Term Loans.

The court a quo found Francis Mugwara to be a reliable witness.

On the basis of the above finding it is therefore my view that the appellant is liable to pay the respondent the sums of money arising from the guarantees.

In view of the 7th and 8th grounds of appeal, the Court has been called upon to determine the applicability of the Turquand Rule vis-a-vis the provisions of the Infrastructure Development Bank of Zimbabwe Act [Chapter 24:14] and the effect of such on the present appeal.

I therefore, for the sake of completeness, propose to deal with this issue.

Whether or not the appellant was liable to pay the respondent on the basis of the Turquand Rule

The appellant, in its closing submissions, sought to plead that the Turquand Rule did not apply as the Infrastructure Development Bank of Zimbabwe Act [Chapter 24:14] specifically ousted it under section 30.

The court a quo, in dealing with the submission made by counsel, noted the following:

“In his closing submissions, Mr Moyo sprang a new argument. It had not been pleaded. It had never referred to it before. It was that the Bank was a statutory corporation the powers of which were set out in the enabling Act.

In summary, Mr Moyo's new argument was that anyone could check what the Bank could or could not do…,. Mugwara's conduct had been in contravention of the law.”

The court a quo held that regardless of the provisions of the Infrastructure Development Bank of Zimbabwe Act, and in spite of section 30 of the Infrastructure Development Bank of Zimbabwe Act, which makes the appellant immune to the provisions of the Companies Act, the actions of Francis Mugwara fell squarely within the scope of the presumptions of ostensible authority as depicted in section 12 of the Companies Act....,.

It was counsel for the appellant's argument that as the Bank is a statutory corporation founded under an enabling Act it cannot be subjected to the provisions of the Companies Act. Counsel made reference to section 30(2) of the Infrastructure Development Bank of Zimbabwe Act [Chapter 24:14] (IDBZ Act) which provides that the provisions of the Companies Act, or any other law, do not apply to the Bank.

The appellant, however, did not plead this defence at the beginning of the proceedings before the court a quo but sought to introduce it in closing submissions. The appellant did not make an application for amendment of its plea.

The court a quo, after acknowledging that the point had not been pleaded by the appellant, went on to make a determination on it.

It seems to me that the argument raised by the appellant amounted to an amendment of its plea to include a defence on a point of law, that, on the basis of section 30 of the Infrastructure Development Bank of Zimbabwe Act [Chapter 24:14] (IDBZ Act) the implied authority exercised by Francis Mugwara could not be a basis on which the respondent could make its claim.

It is trite that a court ought to be guided and to determine issues which are raised by the parties in the pleadings.

In Imprefed (Pty) Ltd v National Transport Commission 1993 (3) SA 94 (A), 108, the court cited with approval the case of Robinson v Randfontein Estates GM Co. Ltd 1925 AD 173 where…, the court emphasised the importance of pleadings. The court stated as follows:

“The object of pleading is to define the issues; and parties will be kept strictly to their pleas where any departure would cause prejudice or would prevent full enquiry. But, within those limits, the court has a wide discretion. For pleadings are made for the court, not the court for pleadings.

And, where a party has had every facility to place all the facts before the trial court and the investigation into all the circumstances has been as thorough and as patient as in this instance, there is no justification for interference by an Appellate tribunal, merely because the pleading of the opponent has not been as explicit as it might have been.”

See also Jowell v Bramwell-Jones 1998 (1) SA 836…,.; Farrell v Secretary of State for Defence (1980) 1 All ER 166…,.

Where a party seeks to have the court determine an issue or defence which was never pleaded, that party may only do so by way of application before the court. In terms of Order 20 of the High Court Rules, 1964 such application will be for an amendment of the pleadings.

The appellant sought to introduce a new defence in closing submissions. This was irregular.

The appellant ought to have made an application to re-open its case and thereafter applied to amend its plea and introduce the defence. The respondent would then have had an opportunity to address the defence raised.

It was thus improper for the appellant to raise a new point of law at the eleventh hour - which point the respondent had not been privy to, and which would obviously prejudice it.

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

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

Most of the material facts were common cause.

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

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

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

Engen called two witnesses.

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

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

For the Bank, there were also two witnesses.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

There was no issue about the wording of the guarantees.

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

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

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

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

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

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

To the Bank, Francis Mugwara was just a rogue.

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

According to counsel for the Bank, Francis Mugwara had neither the actual nor the ostensible authority to issue those guarantees. Engen had been negligent in accepting them without verification. It should have checked with the Bank for their authenticity. On this particular point, Desmond Matete claimed, in his evidence, that it was the practice and custom in the capital markets that a third party who is given a guarantee, such as the type Francis Mugwara had issued, would run them past its own bankers. The bankers would know how to go about verifying them for authenticity.

Counsel for the Bank discredited Engen's credit rating process of Wedzera. He pointed out that on the credit facility application form, the Standard Chartered Bank, not IDBZ, had been listed as Wedzera's bankers. If Engen had been diligent or prudent enough, it should have been suspicious to be receiving from Wedzera guarantees from IDBZ instead of the Standard Chartered Bank.

In his closing submissions counsel for the Bank sprang a new argument. It had not been pleaded. It had never been referred to before.

It was that the Bank was a statutory corporation the powers of which were set out in its enabling Act. In summary, counsel for the Bank's new argument was that anyone could check what the Bank could or could not do. Among other things, only the Bank's Board and its Chief Executive Officer had the sole mandate to represent the Bank. Francis Mugwara's conduct had been in contravention of the law.

Counsel for the Bank quoted section 21 of the Infrastructure Development Bank of Zimbabwe Act [Chapter 24:14] (IDBZ Act) in extenso. It sets out the procedures and requirements for financing by the Bank. Among other things, there can be no financing for any project without the Bank's Board having first considered it. An elaborate procedure is then set out on how the Board may go about considering a proposal for funding; what sort of things it must look for, and what conditions it may prescribe if the proposal is approved. It was argued that Francis Mugwara, not having followed, or caused to be followed, the statutory procedures, his guarantees were ultra vires the Infrastructure Development Bank of Zimbabwe Act, manifestly void, and, therefore, unenforceable.

Inevitably, reference was made to LORD DENNING'S seminal statement in McFoy v United Africa Co. Ltd [1961] 3 All ER 1169 [PC]…,; If an act is void, then it is a legal nullity. Such an act is not only bad, but also incurably so. There is no need for an order of court to set it aside. Every proceeding founded on it is also incurably bad:

“You cannot put something on nothing and expect it to stay there. It will collapse.”

Counsel for the Bank also referred to section 30 of the Infrastructure Development Bank of Zimbabwe Act (IDBZ Act). By this provision, the Bank is made immune from the provisions of the Companies Act [Chapter 24:04], or of any other law relating to companies.

This has huge significance.

Section 12 of the Companies Act codifies the common law rule of Company Law, also known as the Turquand Rule, after the 19th century English case of Royal British Bank v Turquand (1856) 6 E & B 327; (1843-60) 119 ER 886 in which the rule was first succinctly expounded.

This rule says that any person dealing with a company is entitled to make certain assumptions, such as that the company's internal regulations have been duly complied with. The company is estopped from denying the truth of such assumptions. Anyone is entitled to assume that every person whom the company represents to be its officer or agent has been duly appointed and has authority to exercise the functions customarily exercised by him: see Mills v Tanganda Tea Company Ltd 2013 [1] ZLR 38 [H]…,.

In terms of section 13 of the Companies Act, a company shall be bound in terms of section 12 notwithstanding that the person held out to be the officer or agent for it might have acted fraudulently or forged a document purporting to be sealed or signed on behalf of the company.

Plainly, but for section 30 of the Infrastructure Development Bank of Zimbabwe Act [Chapter 24:14] (IDBZ Act), the Bank could never have mounted the kind of defence that it did herein, for Francis Mugwara's actions fell squarely within the scope of the presumptions of regularity prescribed by section 12 of the Companies Act.

However, in spite of the ousting by section 30 of the Infrastructure Development Bank of Zimbabwe Act (IDBZ Act) of the provisions of the Companies Act and any other law relating to companies; in spite of such further provisions of the Infrastructure Development Bank of Zimbabwe Act as may repose in the Bank's Board the sole power to represent it and to consider all funding proposals, and, furthermore, notwithstanding the Bank's argument that Francis Mugwara's powers might have been limited, I find that, as between himself and the Bank, Francis Mugwara had actual or implied authority to issue those guarantees. I find that as between Engen and the Bank, Francis Mugwara had ostensible authority to issue the guarantees and to bind the Bank to third party recipients....,.

The court considers the façade of regularity of the employee's actions purporting to act on behalf of the employer, given all the trappings of his appointment as set in a context....,.

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

Expressly, he was tasked with ensuring that his unit achieved its set business volumes, and, significantly, he was also tasked with the “disbursements of funds on approved facilities.”…,.

Among Francis Mugwara's key decision making authority aspects was the approval of departmental expenses and the budgets for the Unit and the Regional Offices.

There was one further subtle detail on Francis Mugwara's job description.

Listed as one of the consequences of an error of judgment on his part in relation to, for example, financial/material loss, etc., i.e. what could happen to the organization if he made a wrong decision or failed to perform his job, was this:

“Catastrophic, as bad decisions can lead to the insolvency of the Bank through the creation of a bad Loan portfolio;” and:

“Reputation of the Bank can be on the line if prompt and correct decisions are not made”…,.

During trial, the Bank tried desperately to downgrade Francis Mugwara's position. It tried to strip him of all manner of authority.

I totally disagree.

The evidence on whether or not Francis Mugwara could issue guarantees on his single signature was inconclusive.

Francis Mugwara said he could. The Bank said he could not.

It did not refute, satisfactorily, Francis Mugwara's claim that it was only guarantees initiated by subordinates that required to be counter signed for validity. I find that the Bank failed to discharge the onus on such a key aspect of its defence.

Francis Mugwara was by no means a junior employee. I have found nothing from his contract of employment, or his job description, that precluded him from issuing those guarantees on his single signature.

Admittedly, these documents did not expressly say he could. But, equally, they did not expressly say he could not.

There was simply nothing in them that was specific to any type of product the Bank was offering at the time. But, when one considers, objectively, the overall job description and the trappings of his appointment; when one considers that an error of judgment on his part could lead to the Bank going bankrupt or putting its reputation at risk, I find that the issuing of the guarantees in the manner Francis Mugwara did, fell squarely within the scope of the risk the Bank had assumed when it appointed him to that position.

That, in my view, was implied authority for what Francis Mugwara did.

With respect, it was disingenuous for the Bank to try and seek refuge from the provisions of the Infrastructure Development Bank of Zimbabwe Act (IDBZ Act) that, as argued by counsel for the Bank, reposed in its Board of Directors or the Chief Executive Officer the mandate to represent it or to consider funding for new projects.

The argument was flawed because in terms of sections 4 and 4A of the Infrastructure Development Bank of Zimbabwe Act [Chapter 24:14] (IDBZ Act), the Board is in charge of the policy and administrative affairs of the Bank - not its operations. It can supervise all the activities of the Bank. But, section 7 of the Infrastructure Development Bank of Zimbabwe Act empowers the Board to establish committees and vest them with the requisite authority for the better exercise of functions. Persons appointed to such committees need not be members of the Board.

I believe the Private Sector Projects Committee (PSPC) was one such committee.

As said before, Francis Mugwara was a member.

Furthermore, and at any rate, the Board can delegate its powers to the Chief Executive Officer, who may, in terms of section 9 of the Infrastructure Development Bank of Zimbabwe Act, employ staff necessary for the conduct of the Bank's business.

Nobody said that the Bank's innovative strategy, in offering non-traditional products in the post dollarization period, was not sanctioned by the Board.

Francis Mugwara was expressly authorised to market that vision. This was consistent with his job description. The Bank held him out to the world as one authorised to do so. It provided him with the necessary stationery to issue out the guarantees. He could incept them....,.

Francis Mugwara's position, as Head of Corporate Banking, who had business cards issued to him by the Bank confirming such status, was not a “nude appointment”. It was an appointment that had to be considered with “all its trappings”: see NBS Bank Ltd v Cape Produce Co [Pty] Ltd & Ors 2002 [1] SA 396 [SCA]; [2002] 2 All SA 262 [SCA].

SC37-20 : ROSEMARY BASTIN vs KUFA MADZIMA (IN HIS CAPACITY AS THE EXECUTOR OF THE ESTATE LATE MARIMO MADZIMA)
Ruled By: MAKARAU JA, MAKONI JA and MATHONSI JA

This is an appeal against the whole judgment of the High Court handed down on 20 February 2019 which granted summary judgment in favour of the respondent for the eviction of the appellant, and all those claiming occupation through her, from Stand No.3437 Highfield Township, Harare (“the property”) after dismissing the appellant's application for condonation of the late filing of heads of arguments in opposition to the summary judgment application.

The facts of the matter are these;

The respondent's father, Marimo Masawi Madzima, died at Marondera in 1985. He was the registered owner of the property. Following his death, the respondent was appointed heir to, as well as executor of, the estate. In 2001 the respondent engaged the law firm of Karuwa and Associates with instructions to dispose of the property. In due course, and entirely without the authority and consent of the respondent, that law firm sold the property to the appellant.

The appellant took transfer of the property and held title by Deed of Transfer No.1948/2007.

The respondent was aggrieved. He instituted an action in the court a quo against the appellant and others under case number HC2120/07, inter alia, for the cancellation of the sale and the return of the property to its rightful owner.

Although the action was contested, the respondent was successful.

By judgment delivered on 23 May 2012, being HH221-12, the court a quo found that the transfer to the appellant had been fraudulent and that the owner of the property was entitled to vindicate his title against any other person in possession of the property. The order which was issued included an award of costs on the legal practitioner and client scale against the law practice of Karuwa and Associates.

As the appellant remained in occupation of the property notwithstanding the judgment of the court a quo referred to above, which was only appealed against by Karuwa and Associates in respect of the award of costs, the respondent instituted action proceedings for eviction under case number HC1025/18.

The action was opposed by the appellant whose only discernible defence was that the judgment of the court a quo, in terms of which her claim was dismissed, had been taken on appeal to this Court under case number SC211/18.

As it turned out, that was an appeal lodged by Karuwa and Associates against only a part of the judgment “that granted costs” against the law firm and nothing else.

The respondent was understandably un-impressed, and, believing that the appellant did not have a bona fide defence, and that appearance to defend had been entered for dilatory purposes only, made an application for summary judgment.

Although the appellant still opposed to the application, maintaining that no relief could be afforded the respondent by summary judgment, her legal practitioners failed to file heads of argument within the time allowed by the Rules of Court. She was therefore automatically barred in terms of Rule 238(2b) of the High Court Rules, 1971.

The appellant did not file a formal application for the upliftment of the bar.

Instead, counsel for the appellant still proceeded to file heads of argument out of time in which she sought to lead evidence from the Bar on the reasons for failure to timeously file the heads of argument.

At the hearing before the court a quo, an application for condonation of the late filing of the heads of argument was then made on behalf of the appellant - from the Bar.

The application was dismissed and the court a quo proceeded to determine the summary judgment application on the merits unopposed.

It granted the application.

The appellant was not happy with that turn of events. She has noted an appeal on the following grounds;

1. The court a quo erred in dismissing the application for condonation thereby unprocedurally hearing the matter unopposed.

2. The court a quo misdirected itself in finding that the appellant did not satisfy the requirements for condonation.

3. The court a quo erred in finding that the appellant did not have a bona fide defence to the application for vindication.

4. The court a quo erred in finding that the respondent had made a case for summary judgment.

While the appellant has listed four appeal grounds, they are clearly repetitive. Only two issues have to be determined in this appeal. They are:

(a) Whether the court a quo erred in dismissing the appellant's application for condonation and the upliftment of the bar; and

(b) Whether the court a quo erred in granting summary judgment.

At the hearing of the appeal, counsel for the appellant initially appeared to make an application, in terms of Rule 40 of the Supreme Court Rules, 2018, to lead further evidence on appeal. She submitted that the appellant had effected improvements on the property during the period of almost 13 years that she has been in occupation. In that regard she has an improvements lien over the property and cannot be evicted therefrom without compensation for those improvements.

It was further submitted that the appellant filed an action in the court a quo in November 2019 for compensation. She therefore desired to lead further evidence on appeal relating to the suit now pending in the court a quo which should be determined before the appeal is determined.

Counsel for the respondent opposed the application to lead evidence on appeal.

He submitted that the claim for compensation is a separate action pending before a court of competent jurisdiction. It had nothing to do with the present appeal which is only concerned with the rights of the parties as determined by the judgment of the court a quo delivered in 2012.

Upon this Court engaging counsel for the appellant further on the nature of her application to lead evidence on appeal, she changed gear and made an application for a postponement to enable the appellant to prepare a formal application to lead evidence on appeal.

Counsel submitted that the application could not be made earlier because;

(i) Firstly, she had not been involved in the preparation of the appeal, her instructing legal practitioner was.

(ii) Secondly, the idea of leading evidence on appeal only occurred to her when she was preparing for the appeal hearing.

It may have been an afterthought.

Clearly, there was no merit in whatever application the appellant sought to make from the Bar. An application to lead further evidence is governed by Rule 40 of this Court's rules which provides:

“An application to lead further evidence on appeal shall be accompanied by that evidence in the form of an affidavit and also by an affidavit, or statement from counsel, showing why the evidence was not led at the trial, together with a copy of the judgment appealed from and a statement indicating in what manner it is alleged the evidence sought to be adduced affects the matter at issue.”

The appellant's counsel could not make an oral application to adduce evidence on appeal from the Bar. It was simply incompetent to do so as such an application was not in the form, and did not meet the standard set by the Rules.

Perhaps it was upon a realization of that fact that the application quickly morphed to one for a postponement to allow for the preparation and filing of a proper application.

A postponement is not there for the asking.

The court has a discretion, which it exercises judiciously, to grant or refuse a postponement. Where the reason for a party's non preparedness to proceed with the hearing has been fully explained and the non-preparedness to proceed is not due to tardiness and some delaying tactics, the court will be very reluctant to refuse a postponement.

It is settled, however, that an application for a postponement must be made timeously and as soon as the circumstances justifying it become known. An application for a postponement, being used as a tactical manoeuvre to gain an unfair advantage, will not be granted for its lack of bona fides. The main consideration in determining whether to accede to an application for a postponement is whether prejudice will be suffered by the other party. See Myburgh Transport v Botha 1991 (3) SA 310 (NSC)…,.

In this matter, a postponement was sought in order to enable the appellant to create a case which was not placed before the court a quo whose judgment is on appeal.

In response to the respondent's claim for eviction, the appellant filed a plea which, as I have said, only raised the defence that the judgment of HUNGWE J…, had been appealed to the Supreme Court. The defence of an improvements lien was not raised.

Indeed, even in case number HC2120/07, which settled the rights of the parties, that defence was not raised.

The appellant wants to raise it for the first time on appeal.

It occurs to me that Rule 40 of this Court's Rules is not intended to be used for the purpose of building a new case altogether which was not before the court a quo.

More importantly, the evidence which the appellant intended to lead is certainly not necessary for the determination of the present appeal.

It is for that reason that, on the turn, this court dismissed the application for a postponement in order to make an application to adduce what was clearly extraneous evidence and proceeded to hear the matter on the merits.

HB84-18 : ROSINA NGIRAZI vs FUNGAI SAUROSI and KWEKWE CITY COUNCIL
Ruled By: MATHONSI J

This is essentially an application for condonation of the late noting of an appeal against the judgment of the Magistrates Court sitting at Kwekwe handed down on 9 January 2013 in terms of which it ordered the applicant, as the executrix of the estate of her husband, the late David Nyirenda, to transfer House Number 544/3 Mbizo, Kwekwe to the first respondent.

The court made a finding that the said house had been sold by the deceased to the first respondent before he passed away on 27 June 2008.

The applicant, who had earlier on in 2009 been issued with a certificate of authority by the Additional Master to transfer the same house, surprisingly valued at $1,000, to her own name, was understandably gutted. She purported to file an appeal, but, in the wrong court, namely, the Magistrates Court in Kwekwe, on 21 February 2013. She says that when she tried to file the appeal in this court she was stopped dead in her tracks - the time within which to appeal having expired.

The applicant says, as a lay person, she was vexed by that sudden turn of events and sought assistance from “the Zimbabwe Human Rights Association who kept (her) documents for months” without acting on them. They later returned the documents to her without an explanation. At that stage she decided to report the matter to the police alleging forgery of her deceased husband's signature on the agreement of sale purportedly entered into between the deceased and the first respondent. She does not say what became of the police case. She however places the blame for failure to act timeously on the Zimbabwe Human Rights Association completely oblivious of the fact that she was already out of time to launch an appeal when she tried to do so in February 2013 and does not even begin to proffer any explanation for that initial delay.

In addition, she does not take the court into confidence as to when exactly she consulted that organization, the name of the lawyer she dealt with, and when she eventually got her documents back. Needless to say there has been no supporting affidavit from whoever was consulted at that organization confirming the delay.

Whatever the case, this application for condonation was only filed on 29 December 2014 - almost 2 years after the impugned judgment was handed down.

Regarding her prospects of success on appeal, the applicant asserts that those are very bright because the Agreement of Sale relied upon by the first respondent “appear(s) to have been forged” and her late husband never sold the house....,.

On the prospects of success, the application is also very poor.

I say so because the applicant appears intent on appealing the decision of the court a quo merely on the basis of a suspicion. In her own words she seeks to challenge the sale agreement between her late husband and the applicant because it “appear(s) to have been forged.”

In my view, that is not enough.

If the applicant was unable to establish the forgery, not only at the trial, but also to the police where she reported it, surely she cannot establish it on appeal. This is so because it is trite that an appeal is determined on the four corners of the appeal record. If the evidence of forgery was not submitted to the court of first instance, it will still not be there on appeal.

In fact, Mr Siziba conceded that, without leading fresh evidence, the applicant cannot prove forgery.

View Appeal
HH339-18 : KUDAKWASHE MURAPE and MABLE MURAPE vs MUCHANETA CHATAMBUDZA
Ruled By: CHIKOWERO J

On the alternative relief claimed, it is correct that the plaintiffs neither pleaded nor proved the current value of the immovable property in question.They also neither pleaded nor proved the quantum of damages suffered by way of rentals lost from not using the property from February 26, 2006 to date ...

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SC47-20 : ROBSON MAKONI vs CBZ LIMITED
Ruled By: GWAUNZA DCJ, GUVAVA JA and MAKONI JA

This is an appeal against the whole judgment of the High Court sitting at Harare in which the court dismissed an application for rescission of a default judgment entered against the appellant on 23 July 2015.BACKGROUND FACTSOn 19 March 2015, the respondent issued summons against the appellant in the High ...

BACKGROUND FACTS

On 19 March 2015, the respondent issued summons against the appellant in the High Court under Case No. HC2525/15, wherein it claimed the sum of US$521,083=41 being the capital claim of US$258,019=29, interest adjusted by the in duplum rule in the sum of US$258,019=29 and bank charges in the sum of US$5,044=83. The respondent further claimed interest on the amounts at the rate of 28 percent per annum from the date of demand, being 24 February 2015, to the date of full and final payment.

The summons were served on the appellant on 30 April 2015. He filed a Notice of Appearance to Defend (the Notice) on 12 May 2015 through his legal practitioners, Messrs Nyikadzino, Simango & Associates. The Notice was duly served on the respondent's legal practitioners on 20 May 2015.

The Notice, so filed and served, had no reference of the legal practitioner handling the matter on behalf of the appellant.

Pursuant to this Notice, the respondent filed a Notice to Plead and Intention to Bar on 27 May 2015. It was served on Messrs Nyikadzino, Simango & Associates on 1 June 2015 with no reference of the legal practitioner handling the matter on behalf of the appellant, as it had not been provided on the Notice.

On receipt of the Notice to Plead, the appellant did not file any plea or other response. As a result, a bar was effected on 23 June 2015. A copy of that bar was served on Messrs Nyikadzino, Simango & Associates on 25 June 2015.

On 10 July 2015, the respondent filed a chamber application for default judgment. The default judgment was duly granted on 23 July 2015.

On 24 July 2015, a day after judgment had been granted against him, the appellant filed a chamber application for the upliftment of the bar in terms of Rule 84 of the High Court Rules, 1971 (the Rules). Subsequently, he filed the application for rescission of the judgment on 12 August 2015....,.

The appellant also challenged the interest rate of 28 per cent per annum. He averred that in terms of the agreement the interest rate was 12 per cent per annum. When it was pointed out to him, in the notice of opposition, that the interest rate was increased in terms of clause 7.1.2 he had no meaningful response....,.

On appeal..., counsel for the appellant…, made the following submissions;...,.

In respect of the interest charged, counsel for the appellant submitted that there was a dispute regarding the interest rate in that the rate that was agreed on was not the one used to calculate the amount claimed. The court a quo relied on clause 7.1.2 which requires that notice be issued before the adjustment of the interest rate. No such notice was ever given. A trial ought to have been conducted so that the question of the interest rate could have been resolved....,.

Regarding prospects of success, counsel for the respondent submitted that the..., Bank had the right to alter the rate of interest, on notice, in terms of section 7.1.2 of the credit facility agreement. The appellant does not mention clause 7.1.2 in his paragraph 4.

The issue of not being served with the requisite notice is not part of the appellant's case. There is no averment that the alteration of the interest rate was unilateral.

As a result, he was of the view that the appellant had no prospects of success in the main matter....,.

The appellant further alleged the violation of the in duplum rule in that the respondent charged interest in excess of the capital debt at a rate that was not agreed to by the parties.

In terms of clause 7.1.1 interest was to be payable at a rate of 12 percent per annum plus 4 percent facility fee to be charged upon acceptance of facilities offered. Clause 7.1.2 went on to provide;

“The Bank reserves the right to give notice, at any time, of any alteration in the rates of interest, and, thereafter, the Bank shall be entitled to charge such other rate as it may prescribe.

If the Borrower continues to avail of the facilities after receipt of the aforesaid notice by not fully repaying the amount due to the Bank, the Borrower shall be deemed to have agreed to the change in interest rate.”

Counsel for the appellant argued, at length, that for the respondent to alter the rate of interest from 12 percent to 28 percent per annum, it ought to have given prior notice to the appellant in terms of clause 7.1.2. As such, a unilateral variation in interest could not be permissible. The result would be a violation of the in duplum rule, in that the interest charged would be in excess of the principal debt of US198,000.

As was correctly pointed out by counsel for the respondent, this argument, regarding the unilateral variation of interest, was not pleaded by the appellant in his founding papers. It was not his case before the court a quo neither was it raised in the grounds of appeal.

It is trite that a new point may be advanced for the first time on appeal if its consideration then involves no unfairness to the party at whom it is directed.

AC CILLIERS, C LOOTS and HC NEL in HERBSTEIN and Van WINSEN, The Civil Practice of the High Courts, 5th ed, Juta & Co Ltd, Cape Town, 2009…, explains as follows;

“A question of law may be advanced for the first time on appeal if its consideration then involves no unfairness to the party against whom it is directed…,.

A second requirement for the raising of a new point on appeal is that the point must be covered by the pleadings. Where it is not clear that the point has been fully investigated (ie that all the evidence which might have been placed before the court if the point had been taken was in fact led), the court will not allow a new point to be raised for the first time on appeal.”

In Donelley v Barclays National Bank Ltd 1990 (1) SA 375…, the court held as follows;

“Secondly, it is clearly a wholly new line of defence now being taken. It was not mentioned in the summary judgment proceedings nor in the plea. It was never referred to in evidence or argument at the trial. Its mere novelty, of course, is no ground per se for rejecting it. However, generally speaking, a Court of Appeal will not entertain a point not raised in the court below and especially one not raised on the pleadings in the court below.”

Applying the above principles to the present matter, this would not be a proper case to allow the appellant to raise, for the first time on appeal, this new point.

The point was not raised in the pleadings and was not argued before the court a quo.

Accordingly, no basis has been laid out to attack the court a quo's finding that the sum claimed by the respondent was not in violation of the in duplum rule, and, consequently, that the appellant has no prospects of success in the main matter.

This ground of appeal must also fail.

Appealed
SC50-20 : ALASTAIR SMITH vs ABIGAIL SMITH
Ruled By: GARWE JA, BHUNU JA and MAKONI JA

This is an appeal against part of the judgment of the High Court. The appellant specifically appeals against paragraphs 2 and 3 of the operative part of the judgment which awarded the respondent maintenance at the rate of US$3,000 per month until she dies, remarries, or cohabits with another man ...

BACKGROUND FACTS

The appellant sued his wife, the respondent, seeking a decree of divorce and other ancillary relief. The respondent did not contest the appellant's claim for a decree of divorce. She however sought the distribution of the assets of the spouses and post-divorce maintenance.

The parties found each other regarding the distribution of their assets including the matrimonial home. They agreed to sell the matrimonial home and most of the proceeds were used to purchase an immovable property which was registered in the name of the respondent and the major, and only son, of the marriage. The appellant received the remainder of the proceeds.

PROCEEDINGS IN THE COURT A QUO

The court a quo captured the only outstanding issue before it as whether or not the defendant is entitled to post divorce maintenance and the quantum of such maintenance….,.

At the end of the trial, the court a quo found that the appellant was currently maintaining the respondent in the sum of US$3,000 per month and that from his income he could continue to maintain the respondent in that amount. It then concluded that, on the basis of the proven facts, the appellant was well able to maintain the respondent in the sum of US$3,000 per month. It also found that the defendant's health condition entitled her to maintenance until she dies, remarries, or cohabits with another man.

The appellant, aggrieved by the decision, filed the present appeal on the following grounds.

GROUNDS OF APPEAL

“1. The court a quo erred in awarding respondent post-divorce maintenance in the sum of USD3,000 per month on the basis that appellant had in the past afforded it and so erred in making that award against the background of appellant's dwindling income and increase in his financial obligation.

2. The court a quo misdirected itself in failing to take into account the fact that respondent had taken all the proceeds from the sale of the sole immovable property of the parties and that she has effectively been paid a lump sum payment by the appellant.

3. The court a quo misdirected itself in finding, without credible evidence, that respondent suffers from a medical condition rendering her permanently incapable of engaging in any income generating project.

4. The court a quo erred in failing to take into account the rental income derived by respondent from her Zvishavane properties and misdirected itself in putting any premium on the fact that respondent's late father's estate had not been wound up.

5. The court a quo erred in failing to grant an award which releases appellant from the control and influence of respondent and so erred in failing to take into account the fact that he is entitled to move on with his life.”

APPELLANT'S SUBMISSIONS BEFORE THIS COURT

Counsel for the appellant made the following submissions;

(a) The court a quo's findings were contrary to the evidence adduced and principles of law applicable in such matters.

(b) The exercise of the discretion by the court a quo was therefore improper and must therefore be vitiated.

(c) Contrary to evidence presented before it, the court a quo imposed an obligation upon the appellant to work for the respondent for life.

(d) The respondent has some free income in the sum of US$3,800 whilst the appellant's free income is under US$1,000.

(e) It is settled law that marriage is not a bread ticket for life.

(f) The court a quo further made a finding that the respondent was entitled to US$3,000 per month when no evidence had been placed before it showing the respondent's expenses to be in that amount. The court had no basis to come to the conclusion that her expenses were US$3,000 per month. The award did not take into account that she was earning $3,800 from her father's deceased estate through the properties she was leasing out in Zvishavane.

(g) The court further fell into error in finding that the respondent was unable to work, based on a report produced by a Dr Gunning. The appellant complained that he paid for the production of the report and yet it was only produced after he had testified and during the respondent's case. The finding that she cannot work does not mean she cannot generate income. She could employ people to do the running around for her.

(h) The respondent got a lump sum in sum of US$200,000 from the proceeds of the sale of the parties' matrimonial home which enabled her to buy another property. The appellant had to obtain a mortgage bond to acquire his own property. The US$200,000 should have set up the respondent and she should have used it in a profitable endeavour.

(i) The question of the respondent's adultery should have been taken into account in coming up with the quantum.

(j) Counsel for the appellant further submitted that the court a quo had erred in not considering the income due to the respondent from the Zvishavane properties on the basis that the estate has not been wound up. If ever it changes then she would approach the court for variation. Instead, the court turned principles of law on the head by asking the appellant to approach the court for variation if the respondent is awarded the properties.

(k) He prayed that the court interferes with the quantum and the period.

RESPONDENT'S SUBMISSIONS BEFORE THIS COURT

Per contra, counsel for the respondent made the following submissions;

(a) The court a quo did not act in a vacuum but in terms of facts it found to have been proven. He referred to the judgement where the court a quo deals with the facts that the court found to have been proven.

(b) The appellant, in his pleadings, did not put in issue the fact of entitlement to maintenance and the period. He offered to pay maintenance until such time as the respondent remarried or cohabited with another man. In the Notice of Appeal, he now prays that he pays the defendant the sum of US$1,500 per month for a period of five years reckoned from the date of this order until the respondent either remarries or commences to cohabit with another man. He now seeks to re-argue his case on appeal.

(c) The finding that the respondent had many ailments was based, inter alia, on the appellant's own admission. These are findings of fact. When the report by Dr Gunning was introduced there was no objection from the appellant. There was no insistence that Dr Gunning be called to testify. It would therefore be unfair to attack the court's reliance on the report.

(d) The issue of adultery was never raised as an issue to be considered regarding the respondent's entitlement to maintenance and the quantum.

(e) Again, the issue of the lump sum, realised from the disposal of the matrimonial home, was never raised as a factor in determining the amount of maintenance to be awarded to the respondent. The appellant should have given the respondent due notice that the lump sum would be taken into account in considering the issue of maintenance.

ISSUES

From the above submissions, and the pleadings by the parties, the issue for determination is the quantum of post divorce maintenance and the period.

In my view, this should have been the sole issue before the court a quo. It however proceeded to consider the question of entitlement to such maintenance. This was improper as the appellant, in paragraph 9 of his declaration, pleaded as follows:

“9 It is just and equitable that plaintiff (appellant) pay maintenance to defendant in the sum of US$750 per month for a period of one year commencing with effect from December 2009 or until such time as the defendant should remarry or live with another man as man and wife whichever should occur first.”…,.

Clearly, the appellant did not take issue with the respondent's entitlement to post divorce maintenance at that stage, and throughout the trial, but, rather, put in issue the quantum and the period.

The trial was long-drawn and judgment was only rendered on 22 September 2016. The appellant did not seek to amend the period indicated in paragraph 9 of his Declaration. The offer to pay maintenance for one year, from December 2009, was, consequently, overtaken by events.

THE LAW

The law is settled that an Appellate Court can interfere with factual findings of a lower court in very limited circumstances.

In Hama v National Railways of Zimbabwe 1996 (1) ZLR 664 (S)…, KORSAH JA remarked:

“The general rule of the law, as regards irrationality, is that an Appellate Court will not interfere with a decision of a trial court based purely on a finding of fact unless it is satisfied that, having regard to the evidence placed before the trial court, the finding complained of is so outrageous in its defiance of logic that no sensible person who had applied his mind to the question to be decided could have arrived at such a conclusion….,.”

In Reserve Bank of Zimbabwe v Granger and Anor SC34-01…, the court held that if an appeal is to be related to the facts “there must be an allegation that there has been a misdirection on the facts which is so unreasonable that no sensible person who had applied his mind to the facts would have arrived at such a decision. And a misdirection of fact is either a failure to appreciate a fact at all, or a finding of fact that is contrary to the evidence actually presented.”

As regards the quantum in maintenance matters, the approach to be adopted, on appeal, was laid out in Mentz v Simpson 1990 (4) SA 455 where HEFER JA held that the approach should be along the lines adopted in compensation cases as indicated in Sandler v Wholesale Coal Suppliers Ltd 1941 AD 194 where WATERMEYER JA stated…, that:

“…, a Court of Appeal should not interfere unless there is some striking disparity between its estimate of the damages and that of the trial court, and, further, unless there is some unusual degree of certainty in its mind that the estimate of the trial court is wrong.”

The position of the law, regarding post divorce maintenance, and the duration, is now well established in our law. In Chiomba v Chiomba 1992 2 ZLR 197 the following is captured in the headnote;

“Marriage can no longer be seen as providing a woman a bread ticket for life. A marriage certificate is not a guarantee of maintenance after the marriage has been dissolved. Elderly women who have been married for a long time and are too old to now go out and earn a living and are unlikely to re-marry will require permanent maintenance.”

APPLYING THE LAW TO THE FACTS

The starting point in such matters, where the lower court would have given a decision within its discretion, is to look at the power of this court on appeal. As clearly comes out from the above authorities, this Court cannot interfere with factual findings made by the trial Court except;

(a) On the basis of irrationality.

(b) Where the trial court reaches a decision which is not supported by the evidence.

(c) Where the finding is patently wrong.

The question, therefore, is whether the findings of fact made by the court a quo can be interfered with on any of the bases set out above.

The court a quo made the following factual findings;

“The facts found proved are;

1. The plaintiff is currently maintaining the defendant at US$3,000 per month.

2. He earned an average of US$12,923=81 per month in 2015 and an average of US$10,868 per month between January and March this year.

3. That salary is well able to maintain him and the defendant at US$3,000 each per month.

4. It leaves him a balance of between US$2,868 to US$4,913 per month from which he can save for the future.

5. His current means therefore enables him to continue maintaining the defendant at US$3,000 as he is currently doing. He has been able to do so, and more, since their separation.

6. The defendant is not the type of spouse who should be weaned off from her former husband on divorce. Her medical condition qualifies her for maintenance till death or when she remarries or cohabits with another man.

7. That the defendant's father's estate is still to be wound up. If the defendant's means improves from what she will get from it the plaintiff can seek variation.

8. The plaintiff's fear, that his means may come down and make him unable to maintain the defendant at US$3,000 per month, is not a bar to his maintaining her at that rate till the arrival of that eventuality, which would entitled him to seek variation of the Maintenance Order.

9. Their son has acquired his first degree and is currently staying with the defendant. This increases the defendant's expenses. The possibility of his going for further education does not presently dis-entitle the defendant from the maintenance she seeks. If those changes come they can only be relevant in an application. This also applies to the possibility of the plaintiff having to pay fees for their son's further studies.”

It then concluded as follows:-

“I am therefore satisfied that, on the present facts, the plaintiff is well able to maintain the defendant at US$3,000 per month. He has been doing so and his means enables him to do so.”

I turn to deal with the two issues that arise before this Court.

QUANTUM

Counsel for the appellant's argument was that the court a quo found, without a basis, that an award of US$3,000 was a reasonable monthly award. In doing that it committed many cardinal sins which he listed as set out below;

(a) It made an award in the absence of evidence showing her monthly requirements and how they answer to the US$3,000 awarded.

(b) It failed to factor in the respondent's income from Zvishavane.

(c) It did not consider the net effect of the award in that it left the respondent with an income of $3,800 as against that of the appellant in the sum of $700.

The court a quo reasoned that the appellant, in his evidence-in-chief, stated that he could probably afford US$3,000 per month although he could not say for how long he will be able to sustain that amount. He did not put in issue the aspect of the respondent's schedule of expenses despite the question being put to him by his counsel.

It is the figure of US$3,000 that he kept toying around with throughout the proceedings.

He also told the court that his own expenses were about US$3,000 per month.

It must be noted that due to the long drawn nature of the proceedings, the appellant successfully applied to re-open his case. This was to enable him to lead further evidence regarding his dwindling income.

Despite leading that evidence, he still confirmed, under cross-examination, that, at that moment, he could afford to pay the respondent the sum of US$3,000 per month and make provision for his own expenses in the same amount and still have an amount left over for savings.

In arriving at its decision, the court a quo looked at all the above and the appellant's average income of US$12,923=81 per month in 2012 and US$10,686 per month between January and March 2016. It went further to analyse the figures and concluded that, after paying US$3,000 to the respondent and to himself, he would remain with a balance of between US$2,686 and US$4,913 per month which he could save for the future.

I find no misdirection in the court's reasoning.

The appellant himself did not place emphasis on the absence of the schedule of expenses. His main concern was whether he could be able to pay the figure of US$3,000 per month in future in view of his dwindling income and whether he would remain with some savings for the future.

These factors were taken into account by the court a quo in arriving at the quantum it awarded.

THE ZVISHAVANE PROPERTIES

The court a quo had this say on the above issue;

“That the defendant's father's estate is still to be wound up. If the defendant's means improves from what she will get from it the plaintiff can seek variation.”

Counsel for the appellant submitted that the court asked itself the wrong question. It ought to have asked itself whether, as at the date of the trial, and subsequent thereto, the respondent was receiving income from the Zvishavane properties. He opined that what can happen in the future is immaterial. In ignoring the reality of that income from the estate, the court a quo hopelessly misdirected itself.

I am persuaded by the submission by counsel for the respondent that there was no misdirection by the court in finding that the estate of the respondent's father had not been wound up.

It would have been speculative on the part of the court to rely on the existence or otherwise of income from that estate at that stage.

In any event, the court made a finding that the evidence led from an investigator hired by the appellant was not conclusive. This was not challenged on appeal.

The court could not have been expected to take into account evidence from a report it had adjudged inconclusive.

ADULTERY

The court a quo was attacked on the basis that it failed to consider that the respondent had committed adultery which had not been condoned. Counsel for the appellant relied on section 10 of the Maintenance Act [Chapter 5:09] which provides as follows:-

“Where a spouse is proved to have committed adultery before or after the making of an order and such adultery has not been condoned, the Maintenance Court may refuse to make an order for maintenance in favour of such spouse or may discharge an order for maintenance made in favour of such spouse.”

I find merit in the submission, by counsel for the respondent, that, whilst the appellant expected the court a quo to deal with the issue, and, consequently, this court, he never pleaded that such alleged marital misconduct be used against her in his pleadings. Doing so would have been inconsistent with his prayer which offered post-divorce maintenance until the respondent remarried or cohabitated with another man.

LUMP SUM PAYMENT OF $200,000

Counsel for the appellant submitted that the judgment of the court a quo was irregular in that it ignored the lump sum payment made to the respondent in fixing the quantum of maintenance and its duration.

Again, as submitted by counsel for the respondent, this does not arise from the proceedings.

When the parties agreed on the distribution of the proceeds of the matrimonial home, they did not agree that that aspect was to be taken into account in the maintenance dispute.

DURATION

Counsel for the appellant attacked the court's findings that the respondent was incapacitated from working on the basis of her medical condition. He submitted that the court relied on a medical report prepared by a Dr Gunning which report was signed on 25 October 2015 - after the appellant had testified. It did not, at any rate, claim that the respondent could not work.

Per contra, counsel for the respondent submitted that the appellant's case, on appeal, is certainly different from his case in the court a quo.

In his declaration, he tendered maintenance until such time as the respondent cohabited with another man or remarried, whichever occurred sooner. The appellant, in his prayer before this court, now seeks an order for payment for a period of five (5) years reckoned from the date of the order of this Court. No amendment to the declaration was sought and granted.

The law is clear that parties are bound by their pleadings and they are not allowed to depart from them without leave.

The remarks by the authors JACOB and GOLDREIN in Pleadings: Principles and Practice (Sweet & Maxwell, London, 1990)…, which are cited with approval in the judgment in Jowel v Bramwell-Jones & Ors 1998 (1) SA 836,898 are apposite and to the following effect:

“As the parties are adversaries, it is left to each of them to formulate his case in his own way, subject to the basic rules of pleadings…; for the sake of certainty and finality, each party is bound by his own pleading and cannot be allowed to raise a different or fresh case without due amendment properly made.

Each party thus knows the case he has to meet and cannot be taken by surprise at the trial.

The Court itself is as much bound by the pleadings of the parties as they are themselves. It is no part of the duty or function of the court to enter upon an enquiry into the case before it other than to adjudicate upon the specific matters in dispute which the parties themselves have raised by their pleadings…,.

In the adversary system of litigation, therefore, it is the parties themselves who set the agenda of the trial by their pleadings and neither party can complain if the agenda is strictly adhered to…,.”

See also Dube v Bushman Safaris & Another HB112–13; Matambanadzo Bus Service (Pvt) Ltd v Magner 1971 (1) RLR 543…,.

The appellant is therefore bound by his pleadings wherein he offered to pay maintenance until such time as the respondent remarries or cohabites with another man.

This is the order that the court a quo granted.

View Appeal
HH302-19 : ELIAS MASHAVIRA vs MOVEMENT FOR DEMOCRATIC CHANGE (MDC) and NELSON CHAMISA and ELIAS MUDZURI and THOKOZANI KHUPE and DOUGLAS MWONZORA and MORGAN KOMICHI
Ruled By: MUSHORE J

The applicant is a member of the Movement for Democratic Change [hereinafter “MDC” or 'the party”) having joined the party in 2000. He is also currently the Organising Secretary for the Gokwe Sesame District of the party.

The respondents were cited by the applicant as follows;

(i) The first respondent is the Movement for Democratic Change Party.

(ii) The second respondent is Nelson Chamisa, who is cited in his capacity as the President of the party.

(iii) The third respondent is Elias Mudzuri, who is cited in his capacity as Deputy President of the party.

(iv) The fourth respondent is Thokozani Khupe, who is cited in her capacity as the Acting President of the party.

(v) The fifth respondent is Douglas Togaraseyi Mwonzora who is cited in his capacity as the Secretary General of the party.

(vi) The sixth respondent is Morgan Komichi, who is cited in his capacity as the Acting Chairman of the MDC.

This is an application for declaratory relief declaring;

(a) The second and third respondents appointments as Deputy Presidents of the MDC unconstitutional and thus null and void; and

(b) Declaring that the second respondent is not the Acting President/President of the party; and

(c) Declaring all appointments, re-assignments and actions done by the second respondent as the Acting President/President of the party null and void.

The applicant is also desirous of obtaining an order compelling the party to hold an Extra–Ordinary Congress.

It is a common cause that the late President of the party, Dr Morgan Richard Tsvangirai appointed the second and third respondents as Deputy Presidents in 2016. It is also common cause that Dr Morgan Richard Tsvangirai passed away on 14 February 2018. It is not in dispute that thereafter, on 15 February 2018, a day after the late President's passing, at a meeting of the Executive Committee and the National Council, the second respondent (who described himself in the minutes as being the Acting President), was, by a resolution of the meeting, appointed as the President of the party. It is also common cause that the fourth respondent was elected Deputy President at a National Congress which was held in 2014.

However, it is the manner by which the second respondent ascended to his position of President that has driven the applicant to make the present application challenging that present status quo of the leadership within the party, combined with a challenge to the manner by which the second and third respondents rose to their Deputy Presidential posts, sometime in 2016, without being elected into office.

The applicant has described his concerns as follows in his founding papers;

According to him, the late President, Dr Tsvangirai, did not have any powers conferred to him in terms of the MDC Constitution to appoint two Deputy Presidents as he did in 2016. He alleges that the late President acted ultra vires the Constitution. Thus, according to the applicant, any such appointments, by choice, were unconstitutional, and thus void for unconstitutionality. He produced the booklet version of the Constitution of the Party with his papers and referred to various provisions in the Party's Constitution in support of his contentions.

Insofar as the fourth respondent is concerned, it is the applicant's case that according to the Party's Constitution, she is the only person who is eligible to be the Acting President by virtue of her being elected Deputy President at a Congress in 2014; and by virtue of her has continued to hold that position up until the date of Dr Tsvangirai's demise.

Regarding the second respondent becoming President of the party, the applicant is alleging that the assumption, by the second respondent, to the position of President of the Party, was in defiance of the provisions of the Constitution of the Party. He alleges that that rise to the position of President, by the second respondent, is void for unconstitutionality.

Using the applicant's own words he describes the events leading to the second respondent assuming the Presidency of the Party as being a “well–choreographed move to usurp the throne.”

The applicant casts doubt on what he describes as being “second respondent's ascendancy to the title of President of the party” which he states was done in breach of the Constitution.

The applicant alleges that on 15 February 2018, the second respondent purported to call a meeting of the National Executive Committee and the National Council at which resolutions were made 'to ordain' the second respondent as President of the party. He attached minutes of the meeting convened by the second respondent at which he states that neither House made such a resolution and that both Houses, and I quote, “pretended to accept the second respondent as the President of the party.”

The applicant also stated that prior to launching the present application he took legal advice after reading a legal opinion on the issue of the legality of the Presidency. The legal advice he received encouraged him to file the present application. He also stated that he learned, from such legal advice, that the meeting which took place on 15 February 2018, a day after the death of Dr Tsvangirai, did not have constitutional powers to ordain either an acting or substantive President.

The applicant also complained that he had not been invited to the meeting of 15 February 2018 in circumstances where he should have been invited in his capacity of a delegate to that Congress. The applicant also pointed out that the meeting of 15 February 2018 was just an Ordinary Congress and that it is a meeting of an ExtraOrdinary Congress in which such party business pertaining to leadership should be discussed and not just an Ordinary Congress as was the case in the present matter.

The applicant stated that the hastily convened meeting, by the second respondent, of the party's Standing Committee; the National Executive Committee and the National Council, on 15 February 2018, was void for unconstitutionality because the second respondent had no such powers to convene such a meeting.

The application is opposed....,.

(ii) Whether or not the applicant has failed to exhaust his domestic remedies

The respondents are complaining about the applicant's eligibility to file the present application in this Court by submitting that if the applicant had a cause of complaint, then, he is bound by the first respondent's Constitution, and that, in terms of the party's Constitution, he is legally obliged to have followed the process for the exhaust of domestic remedies.

However, that having been suggested by the respondents, they were silent about the exact settlement procedures in the party's Constitution which they believed the applicant ought to have followed. The applicant has essentially been deprived the opportunity to make a specific reply to their suggestion when he deposed his replying affidavit because it was only through their heads of argument that they referred to Article 14 as being the domestic remedy which the applicant ought to have pursued in order to get remedy for his complaint.

SC62-20 : THANDO NCUBE vs FIDELITY PRINTERS AND REFINERIES (PRIVATE) LIMITED
Ruled By: MAKARAU JA

This is an application for leave to appeal against a decision of the Labour Court, handed down on 27 October 2014, dismissing with costs, an appeal to that court against a decision of the respondent dismissing the appellant from employment.

Leave to appeal was denied by the Labour Court on the premise that the intended appeal had no prospects of success.

The facts of this application are common cause.

The applicant was employed as a Senior Security Officer by the respondent. Prior to that, he was employed by the Reserve Bank of Zimbabwe which owed him money upon the termination of his employment. It was a condition of the Reserve Bank that for the applicant, and others similarly placed, to access the money owed, they had to make an application showing good cause. A death or illness in the family could constitute such good cause.

In an effort to access the owed amount, the applicant applied to the Reserve Bank for the amount of US$3,500 attaching a burial order of one Sidubi D Moyo, his grandfather. The burial order was fake. The Reserve Bank reported the matter to the respondent, a sister company, which, acting on the report, charged the applicant with an act of misconduct. The applicant was convicted and thereafter dismissed from employment. He appealed to the Labour Court which, as stated above, dismissed the appeal.

It is the applicant's intention to appeal against the decision of the Labour Court.

I cite here, in full, the grounds of the intended appeal. They are framed as follows:

1. The court a quo erred on a point of law by upholding the charge against the appellant when such a charge was founded on the requirement by the Reserve Bank that its former employee apply to it for payment of their arrear salaries and terminal benefits, which condition is unlawful and nullity. (sic).

2. The penalty imposed on the appellant was a nullity in that there was no compliance with the respondent's Code of Conduct requiring that the Worker's Committee be consulted before such a penalty is imposed.

3. Alternatively, the court a quo erred on a point of law in that it was at large to interfere with the penalty of dismissal because there was no compliance with the respondent's Code of Conduct requiring that the Workers' Committee be consulted before a penalty of dismissal is imposed.

4. Alternatively, the court a quo misdirected itself on a point of law in refusing to interfere with the penalty of dismissal upon a finding that the circumstances of the matter merited a less severe penalty.

The application for leave to appeal was opposed on the basis that the intended grounds of appeal did not disclose any basis upon which the refusal by the Labour Court to interfere with the penalty imposed by the employer could be challenged or could be regarded as an error at law. Accordingly, and in short, it was argued that the appeal had no prospects of success.

At the hearing of the application, without abandoning the other grounds, counsel for the applicant restricted his argument to the last ground of appeal as one that might enjoy some prospects of success on appeal.

I pause to note, in passing, that counsel for the applicant was wise in not expending his energies on the first three grounds of the intended appeal.

The first ground is ill-conceived as it seeks to challenge the validity of an administrative policy by the Reserve Bank of Zimbabwe to limit access to the arrear salaries and benefits of its former employees. This issue, even though raised before the Labour Court, was not an issue properly before that court in appeal proceedings in which the Reserve Bank of Zimbabwe not only lacked interest, but was not a party.

The second and third grounds of appeal are inter-related, not only because they are raised in the alternative but also because they seek to raise the same issue. This is in relation to the irregularity allegedly attendant upon the imposition of the penalty of dismissal.

It was alleged by the applicant, and denied by the respondent, that the Worker's Committee was not consulted before the penalty of dismissal was imposed.

For the purposes of this application, it is not necessary that I determine whether the Workers Committee was consulted or not before the applicant was dismissed. This is so because not only was this an issue that should have been properly brought in an application for review before the Labour Court, but, more importantly, it was never brought to the attention of the court, which, as a result, did not make any findings on it.

Therefore, the court could not have erred as alleged or at all in respect of an issue that was not before it and one that it did not determine.

HHH517-20 : INTRATREK ZIMBABWE PL and WICKNELL CHIVHAYO and STANLEY KAZHANJE vs PROSECUTOR GENERAL OF ZIMBABWE and P MATURURE N.O.
Ruled By: CHIKOWERO J and KWENDA J

I will refer to the parties as Intratrek, Chivhayo, Kazhanje, the PG, and the court a quo respectively. Where it is convenient to do so I will refer to the first three (3) parties as the applicants and the last two as the respondents or first and second respondent as may be appropriate.

Chivhayo is the Managing Director of Intratrek Zimbabwe (Pvt) Ltd. The latter is a company incorporated in terms of the laws of Zimbabwe. Kazhanje was, at the material time, the Board Chairman of the Zimbabwe Power Company (ZPC).

On 18 June 2019 they appeared before the court a quo at Harare Magistrates Court, sitting as an Anti-Corruption Court.

The applicants were facing a charge of bribery as defined in section 170(1)(b) of the Criminal Law (Codification and Reform) Act [Chapter 9:23].

In respect of Intratrek and Chivhayo, it was alleged that on 21 January 2016, at CBZ Bank, Kwame Nkrumah Branch, Harare the trio or one of them unlawfully gave or agreed to give or offered an agent, namely, Kazhanje then a director and Board Chairman of the Zimbabwe Power Company (Pvt) Ltd, a gift or consideration as an inducement or reward for doing or omitting to do or having done or omitted to do any act in relation to his principal's affairs or business or for showing or not showing or having shown or not shown any favour or disfavour to Intratrek and Chivhayo in relation to Kazhanje's principal's affairs or business.

In short, the charge was that Intratrek and/or Chivhayo bribed Kazhanje by transferring to him US$10,000 as an inducement or reward for facilitating or influencing the Zimbabwe Power Company (Pvt) Ltd (ZPC) Board of Directors to make decisions favourable to Chivhayo and Intratrek in relation to the contract for the Gwanda Solar Project.

As for Kazhanje, he was charged for being the receiver of the bribe.

The State Outline then set out how the offence was alleged to have been committed.

On 28 May 2019, the first and second applicants had filed a request for further particulars to the charge and the State Outline. On 11 July 2019 the Prosecutor General's representative filed a response thereto.

Section 177 of the Criminal Procedure and Evidence Act [Chapter 9:07] (the CPE Act) provides that the court may order delivery of particulars to any matter alleged in a charge, summons, or indictment. It does not provide for delivery of particulars to any matter set out in the State Outline.

That is the first problem, in my view, with the request for further particulars. It is unlike in civil procedure where a request for further particulars covers both the summons and declaration/particulars of claim.

In that request, the applicants attached various annexures and sought admissions from the first respondent relative thereto. The admissions were made. In some cases, the first respondent indicated that what was sought was evidence and inferences which it would ask the court a quo to make from the evidence.

A total of twenty-eight annexures were attached to the request for further particulars. Admissions were sought touching on the identity of those documents and their place in the matter. The annexures comprised, among others, letters, contracts, and judgments of this court one of which has been overturned on appeal and the other whose appeal is pending in the Supreme Court.

Dissatisfied with what it perceived to be a reluctance to comply with some of the particulars requested, the applicants made an oral application, before the court a quo, for an order to compel delivery of those particulars.

The third applicant associated himself with both the request and the application.

The application was opposed, and dismissed. The court a quo found that what was requested was in fact evidence and therefore improper.

Next, the applicants excepted to the charge.

The submissions were these;

The third applicant argued that the defect was that the charge did not specify whether the US$10,000 was an inducement or a reward. Further, all three applicants argued that the charge, as amplified by the further particulars, did not disclose an offence.

The exceptions were based on section 170(2) and 180(1) of the Criminal Procedure and Evidence Act [Chapter 9:07] respectively.

The court a quo dismissed the exceptions. It found no formal defect in the charge. It must have found, indeed it found, that the charge disclosed the offence of bribery. The reason is this. It found that what was requested constituted evidence. The charge, as it stood, disclosed the offence of bribery vis a vis the applicants.

The applicants are before us in an application to review the court a quo's decision.

The two grounds of review read as follows:

“1. The decision complained of is a grossly unreasonable abdication of judicial power in that the second respondent did not apply his mind to the substantive and procedural issues before him.

2. The decision complained of is patently contrary to law and determined the exception before the second respondent on an improper basis and is such that no reasonable judicial officer who had applied his mind to the facts would have reached the same decision.”

The first respondent opposed the application.

The parties filed heads of argument.

The first and second applicants made these submissions before us;

The second respondent's decision, dismissing the exception, was grossly unreasonable. The “common cause facts” show that there was no bribery. For example, it was admitted, by the first respondent, in replying to the further particulars, that the tender for the Gwanda Solar Project was awarded to Intratrek through Chivhayo by the State Procurement Board and not the Zimbabwe Power Company (Pvt) Ltd (ZPC) Board which Kazhanje chaired. The ZPC Board's mandate was to implement the contract. There was therefore no basis for the first respondent to lead other evidence at the trial speaking to bribery of third applicant because it had admitted that it was the State Procurement Board (SPB) which awarded to the applicant the tender for the Gwanda Solar Project. The offence of bribery was therefore not disclosed.

Counsel for the third applicant referred us to the South African Supreme Court of Appeal decision in Telematrix (Pty) Ltd t/a Matrix Vehicle Tracking and Advertising Standards Authority SA 459/04 where that court held it proper to have regard to documentary evidence attached to pleadings in determining an exception.

My view is our law is different.

Evidence is inadmissible in determining an exception. Evidence is adduced at trial.

Counsel for the first and second applicants argument, on common cause facts showing that the offence of bribery was not disclosed, finds no favour with me.

We rejected this argument in Mupfumira and Another v Mutevedzi and Another HH200-20.

Firstly, there are no facts to talk about at this stage. There is nothing from the applicants in the nature of facts. They have not pleaded to the charge, tendered a Defence Outline, nor has any evidence been led which would found the basis for common cause facts, if any. All there is, at this stage, are the charge and the State's allegations as set out in its Outline.

What happened a quo, in my view, is that the applicants sought to truncate the trial by resorting to a procedure foreign to our law. Under the guise of seeking particulars to the allegations in the charge they expanded the request to cover allegations set out in the State Outline. They went further to seek admissions disguised as further particulars. The State seemed not to have initially noticed, a quo, that the applicants had sought to jump the gun. Admission of facts is a procedure available at the trial, post plea, and tendering of a Defence Outline, before the State has opened its case.

The multitude of questions contained in what was called a request for further particulars, the annexures thereto and the answers solicited were correctly disregarded by the court a quo in determining the exception. The time will come when evidence will be led, with exhibits, if any, produced in accordance with the rules of evidence.

I also take the view that the charge does not become defective by dint of characterizing the US$10,000 as either an inducement or a reward. These are alternatives speaking to the same charge of bribery.

Looked at from another perspective, counsel for the applicants, while purporting to be seeking further particulars, were actually cross examining the Prosecutor General's (PG) representative. The latter was responding, again through what was called a reply to the further particulars.

There is no law in our jurisdiction sanctioning the PG's representative to be subjected to cross-examination either pre-trial or at the trial itself, either through papers filed of record or orally.

The net effect of what was done was to delay the trial.

The court a quo dismissed the exception because it was based on what was effectively evidence improperly put before it as well as evidence sought to be prematurely placed before it. We see no merit in the application for review. We are remitting the matter to the court a quo for trial.

From the record of proceedings put before us, the applicants first appeared before that court around 18 July 2019. It appears the matter was then ready for trial. What this means is that the applicants have managed to delay the commencement of the trial by a period of one year.

Counsel for the third applicant asked us to consider a court record which was not before the court a quo. The argument birthed by that record was also not placed before that court.

We were told that the third applicant has since been convicted of contravening section 173 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] (the Code) viz corruptly concealing from a principal a personal interest in a transaction. The facts and evidence were said to be the same as in the bribery charge. He submitted that there was therefore an improper splitting of charges as well as a basis for arguing that the third applicant was previously convicted of an offence arising from the same set of facts and evidence.

Section 180 of the Criminal Procedure and Evidence Act [Chapter 9:07] lists nine (9) pleas that can be pleaded to a charge. The usual ones are guilty or not guilty. But, section 180(2)(c) provides that a person can plead that he or she has already been convicted of the offence with which he is charged.

It is not necessary that I discuss whether that plea is available to the third applicant. What is important is that section 186 of the Criminal Procedure and Evidence Act provides that issues raised by a plea (except that of guilty or a plea to the jurisdiction of the court) shall be tried. The third applicant should therefore plead to the charge. The matter should be tried.

Further, whether there was a splitting of charges placing the third applicant in danger of a duplication of convictions on the same evidence is an issue which we cannot consider at this stage.

If he is convicted his remedy may be to raise that as one of his grounds of appeal.

Counsel for the third applicant referred us to a number of South African and Zimbabwean cases on this point. They include Zachariah v The State, Criminal Appeal number APP 331/01.

The application for review, in the circumstances, has no merit.

The present is not one of those rare cases where grave injustice might otherwise result or justice might not, by other means, be attained if we do not interfere in the un-terminated proceedings in the court a quo; see Prosecutor General of Zimbabwe v Intratrek Zimbabwe (Pvt) Ltd and 2 Ors SC59-19; Dombodzvuku and Anor v Sithole N.O. and Anor 2004 (2) ZLR 242 (H).

In the result, it is ordered that:

1. The application for review be and is dismissed.

2. The matter is remitted to the court a quo for the applicants to plead to the charge with the matter proceeding to trial.

HH86-12 : ELIJAH KASEZA vs LANGTON KASEZA and WINNIE MURAPE
Ruled By: MAVANGIRA J

This matter was initially set down for hearing on 11 June 2009 on which date it was postponed to 10 July 2009. It was again postponed a number of times and was finally heard on 3 February 2011 after which date the court called for supplementary heads of argument from both legal practitioners for reasons appearing later in this judgment.

The applicant seeks the following order:

“IT IS ORDERED THAT;

1. The second respondent be and is hereby compelled to uplift caveat she noted on Stand 7813 Fountainbleau Township of Fountainbleau Estate measuring 200 square metres. (sic).

2. The first respondent be and is hereby ordered to transfer Stand 7813 Fountainbleau Township of Fountainbleau Estate measuring 200 square metres (sic).

3. The first and second respondents and all those claiming possession through them be and are hereby ordered to vacate the above property within ten (10) days of this order failing which the Deputy Sheriff be and is hereby authorized to evict the respondent.

4. Or, alternatively, the first respondent be and is hereby authorized to pay the applicant the current market value of the property within (10) ten days of this order.

5. The first and second respondents be and are hereby ordered to pay costs of suit.”

The applicant's case is as follows;

On 19/09/07, and through Amazon Real Estate Agents, the applicant entered into an Agreement of Sale with the first respondent. In terms of the agreement, the applicant purchased from the respondent an immovable property, namely, Stand No.7813 Fountainbleau Township or Fountainbleau Estate, also known as House No.7813 Kuwadzana 4, Harare.

The purchase price for the property was $5 billion ($5,000,000,000).

In terms of clause 2 of the Agreement of Sale, payment for the property was to be made through the estate agents. It was also a term of the agreement that Mushuma Law Chambers, legal practitioners, were to transfer the property into the applicant's name.

The applicant alleges that despite the fact that he has paid the purchase price in full, the first respondent has not transferred the property into his name.

The applicant avers that sometime in January 2008 he approached Mushuma Law Chambers with a view to ascertaining the cause for the delay in effecting transfer of the property into his name. He avers that it was at that stage that he then learnt that the first and second respondent were formerly husband and wife and that their divorce order had awarded 30% of the market value of the immovable property to the second respondent.

He avers that he was also surprised to learn that Mushuma Law Chambers had also acted as the first respondent's legal practitioners in the divorce proceedings. He avers that Mushuma Law Chambers had not disclosed to him the circumstances in which the house was being sold to him.

The applicant also avers that before buying the property he had done or conducted a Deeds search and had verified that the first respondent was the registered owner of the property.

Mushuma Law Chambers then assured him that everything was under control and that the property would be transferred into his name within a short period of time.

Thereafter, Mushuma Law Chambers made an application to the Magistrates Court and obtained an order which, inter alia, barred the second respondent from denying him the right of occupation to four rooms of the house. The second respondent appealed against the order. The applicant, however, managed to occupy part of the house after applying for, and obtaining, leave to execute pending appeal.

The applicant contends that at the time of the sale he had no knowledge of the dispute between the first and second respondents. He further contends that the second respondent's recourse lies in a claim of personal rights against the first respondent and that this cannot take precedence over his rights as a bona fide purchaser. He further contends that the first respondent's appeal against the order obtained by the applicant in the Magistrate's Court, and referred to above, was filed after he had already purchased the property.

The first respondent has not filed any opposing papers in this matter.

The second respondent has opposed this application on the following grounds;

She avers that the house in question forms part of the matrimonial property of the former marriage between her and the first respondent. She avers that the property was fraudulently sold behind her back and that she was not party to the Agreement of Sale yet she has a substantial interest in the property as she contributed directly and indirectly in the purchase of the Stand and its construction or development. Furthermore, she never received any payment. She further avers that the applicant was aware of the dispute over this property when he purchased it. She avers that the property was never evaluated. She further avers that at the time that he became aware that there was a dispute, the applicant should have cancelled his agreement with the first respondent.

The second respondent avers that she is pursuing her appeal against the order granted by the Magistrates Court in favour of the applicant and the appeal is still pending.

Furthermore, that the applicant has not, contrary to his averment, taken occupation of part of the property.

The second respondent contends that the applicant should wait until all appeals filed by the parties are heard and that he has no clear right, until then, to justify the granting of the order that he seeks.

The second respondent contends that the applicant's claim has no basis at law and that his only remedy is a claim for damages against the first respondent and his legal practitioner.

The applicant, on the other hand, denies that the sale was fraudulent and denies that he was aware that it was part of the respondents' matrimonial property. He avers that when he inspected the title deed to the property, it reflected the first respondent's name only.

Attached to the applicant's answering affidavit is an affidavit by Oliver Mushuma, a legal practitioner of Mushuma Law Chambers.

He states that to his knowledge the first respondent is outside the country. He states that the first respondent obtained a default judgment in the Magistrate's Court on 24 August 2007 in terms of which he was awarded a 70% share in the immovable property and the second respondent was awarded a 30% share. Pursuant to this judgment, the first respondent sold the immovable property to the applicant through the estate agents, Amazon Real Estate Agents.

The first respondent appointed Mushuma Law Chambers as his conveyancers.

He states, in his affidavit, that as soon as the applicant and the first respondent signed the Agreement of Sale, the applicant paid the purchase price through the estate agents. Immediately thereafter the applicant and his sons reported at his office with the Agreement of Sale. At that stage the second respondent had filed an application for rescission of the default judgment referred to. He duly advised the applicant of this state of affairs so that the applicant could make a decision on the matter as he had already paid the purchase price and the values of properties were escalating on a daily basis.

The applicant (and his sons) then decided to stand by the agreement.

They also confirmed to him that at the time when they went to view the property they met the second respondent who denied them entry into the premises. He denies that he never mentioned to the applicant that Mushuma Law Chambers acted for the first respondent in the divorce matter.

Oliver Mushuma also states, in his affidavit, that the immovable property was evaluated at Z$5,000,000,000 and that the second respondent's share was only Z$1,117,826,373= 58 which amount the first respondent had confirmed to Oliver Mushuma that he had transferred into the second respondent's account in November 2007.

In her notice of opposition, the second respondent contended, amongst other things, that besides having received no payment, she never consented to the sale of the matrimonial property which she states was done behind her back. She contends that the sale was fraudulently done and that the applicant was party to the fraud and that, for that reason, the applicant's only remedy is a claim for damages against the first respondent and his legal practitioners.

A perusal of the record shows that on 28 August 2007 a default judgment was granted in favour of the first respondent, in terms of which judgment, inter alia, the first respondent was awarded a 70% share in the immovable property in issue and the second respondent a 30% share. A perusal of the record also shows that on 2 November 2007 the second respondent's application for rescission of the default judgment was dismissed.

A perusal of the record further shows that payment was made to the first respondent by way of RTGS or electronic transfer, on 8 November 2007, of an amount of Z$3,506,166 396=14. It also reflects a reconciliation done by Mushuma Law Chambers which, inter alia, shows that of the said amount paid into the first respondent's account, Z$1,117,826,373=58 constitutes the second respondent's 30% share.

The record bears no proof that any payment was made to the second respondent in respect of her award of a 30% share in the immovable property.

The second respondent denies having received any payment.

In such circumstances, it would appear to me that the effect of granting the order sought by the applicant would be to deprive the second respondent of her 30% share in the property. For that reason, this application must, in my view, fail, with costs following the cause.

If I am wrong in this respect, it seems to me that there is another dimension of this matter that needs to be addressed.

This arises from the fact that it appears to be an undisputed fact that the first and second respondents were customarily married. According to Oliver Mushuma's affidavit, they were divorced on 20 July 2005. It also appears from a perusal of the record that the first respondent approached the Magistrates' Court in 2007 seeking an order for the “sharing of property” between him and the second respondent; the property to be shared including the immovable property the subject of this application.

Thus, while the immovable property was allegedly registered in the name of the first respondent only, it was the first respondent himself who brought it before that court for distribution.

In default of the second respondent he then obtained an order awarding him a 70% share and the second respondent a 30% share of the immovable property. Presumably, those were the terms of the Order that he sought from the magistrate.

That, in itself, in my view, is an acknowledgment by the first respondent that the second respondent has a 30% interest or is entitled to a 30% share in the immovable property.

Subsequent to obtaining the default judgment, the first respondent then sold the immovable property to the applicant.

Oliver Mushuma then dispatched to the first respondent a “reconciliation” in terms of which the second respondent's share of the net proceeds of the sale was recorded. The impression created is that the second respondent dealt with the immovable property in terms of the distribution of it made by the magistrate. It was for these reasons that I requested the applicant's and the second respondent's legal practitioners to file supplementary heads of argument addressing the effect, if any, on this matter of the following cases: Feremba v Matika 2007 (1) ZLR 337 (H); Mandava v Chasweka 2008 (1) ZLR 300; and Nyaradzai Kazuva v Gilbert Dube HB119-10.

They both did.

It appears to me that whether or not the parties' so called “divorce” was by an order of the Magistrates Court or was customarily done, the fact remains that the subsequent and apparently consequent claim by the first respondent before the Magistrates Court was for “sharing of property” the property in issue, being that of the joint estate of the first and second respondents. The principles enunciated in Feremba v Matika 2007 (1) ZLR 337 (H) and Mandava v Chasweka 2008 (1) ZLR 300 would thus be applicable.

In Mandava v Chasweka 2008 (1) ZLR 300 MAKARAU JP…, stated…,:

“The issues that I have highlighted above are not new to this Appeal Court.

I have had occasion to discuss the same issues in Feremba v Matika HH33-07. I will take the risk of repeating myself again in this judgment and exhort all trial magistrates approached to distribute the joint estates of persons in an unregistered customary union to ensure that the parties before them have made the appropriate choice of law between Customary and General Law. Once a choice of law has been appropriately made, two further issues arise - but only if General Law is chosen. These are;

(i) The cause of action; and

(ii) The monetary jurisdiction of the trial magistrate.

In view of the fact that the trial magistrate failed to observe any of the above, his decision cannot stand.”

In Feremba v Matika 2007 (1) ZLR 337 (H) MAKARAU JP stated at 342:

“Finally, if the court is to entertain the matter on the basis of any of the above principles, then its general monetary jurisdiction limits apply. It therefore becomes imperative for the court to be aware of the value of the estate involved and to then ascertain whether it has the requisite jurisdiction in the matter.”

At 342D-E she further stated:

“Thirdly, as the trial magistrate was not applying customary law or proceeding in terms of section 11(b)(iv) of the Magistrates Court Act, he had to be satisfied that the value of the estate that he was distributing fell within his monetary jurisdiction. This he did not do.”

In casu, there would appear to be no cause of action that was properly pleaded before the magistrate by the first respondent. Neither does the magistrate appear to have been alive to the issue of his monetary jurisdictional limits let alone the choice of law in terms made by the first respondent in those proceedings.

The inevitable conclusion would thus be that the trial magistrate had no jurisdiction to deal with the first respondent's matter. If that be so, his order would be void.

The applicant's legal practitioner submitted, in her supplementary heads of argument, that this aspect ought not to be a concern of this court as none of the parties have raised it.

However, in Muchakata v Netherburn 1996 (1) ZLR 153 (SC) it was held:

“If the order was void ab initio it was void at all times and for all purposes. It does not matter when and by whom the issue of its validity is raised; nothing can depend on it.”

It appears therefore that insofar as the first respondent, in selling the immovable property to the applicant, purported to act on the basis of the default judgment that he had obtained, the said sale cannot be valid as it purports to be founded on an invalid judgment on which nothing can depend.

If I am correct on this, then the applicant's case ought therefore to fail on this basis too.

In the result the application is dismissed with costs.

SSC59-19 : PROSECUTOR-GENERAL OF ZIMBABWE vs INTRATREK ZIMBABWE PL and WICKNELL CHIVAYO and L. NCUBE N.O.
Ruled By: PATEL JA

This is an application for leave to appeal to the Supreme Court in terms of section 44(6) of the High Court Act [Chapter 7:06].

In particular, the applicant seeks leave to appeal against the decision of the High Court handed down on 20 March 2019 in Case No.11141/18 (as Judgment No. HH229-19).

The effect of that judgment was to quash the criminal charges against the respondents in Case No. CRB P 9114-5/18, and, consequently, to order their acquittal on those charges.

The Background

The applicant herein is the Prosecutor-General. The first respondent is a company styled Intratrek Zimbabwe (Pvt) Ltd (Intratrek), while the second respondent, Wicknell Munodaani Chivayo (Chivayo), is that company's Managing Director.

The respondents were charged with two counts of fraud and two counts of contravening local exchange control requirements. All four charges emanate from an Engineering, Procurement, and Construction Contract (the Contract) entered into between Intratrek, represented therein by Wicknell Munodaani Chivayo (Chivayo), and the Zimbabwe Power Company (Pvt) Ltd (the ZPC).

The Contract, which was concluded on 23 October 2015, was for the construction of a 100 megawatt solar power generation plant in Gwanda (the Project).

The first charge alleges fraud pursuant to misrepresentation by the respondents through the submission of invoices designed to fund a feasibility study for the Project. It is alleged that the Zimbabwe Power Company (Pvt) Ltd (ZPC) released a total of US$2,435,654 on the strength of those invoices and that the respondents converted those funds to their own use thereby causing actual prejudice in that amount.

The second charge also alleges fraud by misrepresentation through the presentation of invoices for pre-commencement works on the Project. Again, it is alleged that the Zimbabwe Power Company (Pvt) Ltd (ZPC) acted upon the misrepresentation and released funds to the respondents who converted those funds to their own use thereby causing actual prejudice in the sum of US$3,188,476=80.

The third and fourth charges pertain to alleged exchange control violations.

The third charge alleges that the respondents entered into an unlawful agreement with a company resident in the United States of America involving the payment of recurring fees amounting to US$849,479 without seeking prior approval from the Exchange Control Authority. The fourth charge alleges that the respondents were granted exchange control approval to load Wicknell Munodaani Chivayo's VISA cards with funds amounting to US$849,479 to import earthmoving equipment for civil construction purposes at the Project. It is alleged that the respondents failed to provide bills of entry to the CBZ Bank as proof of receipt of the imported goods for acquittal purposes within 90 days of effecting payment.

Magistrates Court and High Court Proceedings

In Case No. CRB P 9114-5/18, before the Magistrates Court, the respondents pleaded not guilty and excepted to all four charges in terms of section 171(2) of the Criminal Procedure and Evidence Act [Chapter 9:07].

The exception was premised on the assertion that the facts as alleged in the Charge Sheet and State Outline did not disclose any offence, whether as alleged or at all.

The learned magistrate found that the charges in question did capture the essentials expected of a charge to enable the accused persons to properly plead thereto. He accordingly dismissed the exception.

Aggrieved by that ruling, the respondents filed an application to the High Court for the review of the magistrate's decision on the ground that it was grossly unreasonable and patently contrary to law. The respondents also filed a separate application to the High Court for the stay of proceedings before the Magistrates Court pending the determination of the application for review.

The latter application was heard and determined in Case No. HC11205/18 (as Judgment No. 849-18 per MUSAKWA J) on 31 December 2018. The learned judge found that there were no formal defects in three of the four counts and that the applicants (the respondents herein) had no prospects of success on review in respect of those three counts. The third count was found to be defective. The court accordingly ordered that the criminal trial be suspended only in respect of the third count and that the trial could proceed in respect of the other three viable counts.

High Court Judgment on Review

In the judgment which the applicant seeks leave to appeal against, the High Court found that the learned magistrate had misdirected himself because he dealt with an issue that was not before him. In particular, he had been asked to adjudicate whether or not the facts alleged disclosed an offence, but, instead, decided that the charges against the respondents were properly framed and therefore disclosed an offence. The High Court held that this was a reviewable irregularity that went to the root of the matter. The court then proceeded to determine the question itself by way of considering, in great detail, the merits of the entire case against the respondents. I summarise its principal findings as follows:

(i) The payments made by the Zimbabwe Power Company (Pvt) Ltd (ZPC) were advance payments authorised by contract and this negated any intention to deceive or cause prejudice.

(ii) The Zimbabwe Power Company (Pvt) Ltd (ZPC) incurred its own loss by negligently paying the respondents before any performance bond or guarantee was put in place.

(iii) Where a contractual agreement provides effective redress, the dispute should be resolved contractually and liability should not be extended under the different remedial regime of Criminal Law.

(iv) The respondents did not commit any offence under the Exchange Control Regulations as the Guidelines in question were not made under the Exchange Control Act, and, in any event, the respondents could have sought exchange control approval after entering into the relevant contract.

(v) No criminal offence was established in relation to the non-acquittal of payments as the Authority in question was not promulgated under the Exchange Control Act and did not prescribe any offence.

(vi) Wicknell Munodaani Chivayo (Chivayo) merely represented Intratrek Zimbabwe (Pvt) Ltd (Intratrek) in his capacity as its Managing Director and was therefore wrongly charged in his personal capacity.

(vii) To the extent that section 277(5) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] (the Criminal Law Code) imputes vicarious liability to Wicknell Munodaani Chivayo in respect of an offence allegedly committed by Intratrek Zimbabwe (Pvt) Ltd, the charges in question breached the protective provisions of sections 49(1) and 56(1) of the Constitution and were therefore invalid.

(viii) On the totality of the facts and the merits, it was highly improbable that a criminal suit would succeed, and, therefore, its continuation would violate section 49(2) of the Constitution.

The learned judge concluded by reiterating that a Criminal Court does not have any jurisdiction to hear or determine any case of a civil nature as in casu. He then set aside the learned magistrate's ruling and substituted it with an order that the exception to the charges should succeed, resulting in all of the charges being quashed and both respondents being formally acquitted....,.

As already stated, the applicant seeks leave to appeal against the judgment of the High Court in terms of section 44(6) of the High Court Act.

His intended appeal is premised on points of law and on the averment that the court acquitted the respondents on a view of the facts which could not reasonably be entertained....,.

Grounds of Appeal

The intended grounds of appeal herein, as paraphrased, aver that the learned judge a quo misdirected himself and/or erred in the following respects:

1. In finding that the facts do not disclose an offence of fraud when it was apparent from the State Outline that the respondents had misrepresented to the Zimbabwe Power Company (Pvt) Ltd (ZPC) that a total of US$1,960,125 had been paid to subcontractors when such money had not been paid and was used by the respondents for their own benefit to the prejudice of the Zimbabwe Power Company (Pvt) Ltd.

2. In failing to consider the provisions of section 278(3) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] (Criminal Law Code) which impute that a person's conduct can constitute both criminal and civil liability and that the State could resort to criminal redress in a matter that was not purely contractual.

3. In finding that the facts do not disclose an offence of fraud as against the second respondent where he was chargeable in his personal capacity as a director of the first respondent and there was a paper trail to show that both respondents misrepresented facts to the Zimbabwe Power Company (Pvt) Ltd to its prejudice and that the funds were used by both respondents for their own benefit.

4. In making a finding that effectively interfered with un-terminated proceedings where there were no exceptional circumstances to warrant such interference and where trial had commenced and evidence was being led before the Magistrates Court.

5. In finding that the facts pertaining to the fourth count do not disclose an offence of entering into an agreement without seeking prior exchange control approval.

The relief sought by the applicant, on appeal, is that the appeal should succeed and that the judgment of the court a quo be set aside and substituted with an order dismissing the exception and continuing the trial under Case No. CRB P 9114-5/18....,.

Concurrence of Another Judge

Apart from the stated grounds of appeal, counsel for the applicant persists with a fresh point of law raised in her heads of argument, to wit, that the learned judge a quo did not obtain the concurrence of another judge, as required by section 29(5) of the High Court Act [Chapter 7:06], before acquitting the respondents.

Counsel for the respondents object to this point on the basis that it is not dealt with in the notice of motion or founding affidavit and has therefore been improperly raised.

Counsel for the applicant concedes this objection, but, submits that this Court is at large to exercise its statutory powers of review in terms of section 25 of the Supreme Court Act [Chapter 7:13]. She contends that the Court may act mero motu to review and set aside the judgment a quo on the ground that it lacked the concurrence of a second judge in terms of section 29(5) of the High Court Act.

As was accepted by all counsel present, the inevitable implication of this course being adopted is that the present application would be rendered redundant in its entirety because there would be nothing left to appeal against.

Having duly considered the matter, I do not think that it would be appropriate or in accordance with the justice of this case to exercise the powers of review conferred by section 25 of the Supreme Court Act in the present circumstances.

Quite clearly, as is conceded by counsel for the applicant, this new point of law has been unprocedurally raised.

Apart from the fact that it does not appear from the pleadings, it has been advanced at a very belated juncture, without the requisite notice, and to the obvious prejudice of the respondents. This is clearly contrary to the established principles governing the introduction and admissibility of a new point of law; see Cole v Union Government 1910 AD 263…, followed in Ngani v Mbanje & Anor 1987 (2) ZLR (SC) 111…,.

Moreover, from a purely practical standpoint, if the applicant's interpretation of the relevant statutory provisions were to be upheld and the decision a quo set aside as constituting a reviewable irregularity, this would not preclude the respondents from mounting a fresh application to the High Court to review the decision of the Magistrates Court dismissing their exception to the charges against them. In that event, the finalisation of the criminal proceedings in casu would be further prolonged and delayed, contrary to the interests of the proper administration of the criminal justice system.

For the foregoing reasons, I decline to entertain the new point of law advanced on behalf of the applicant.

SC86-20 : CONSTANTINE CHIWENGA vs MARRY MUBAIWA
Ruled By: GWAUNZA DCJ, GARWE JA and BHUNU JA

This is an appeal against the whole judgment of the High Court handed down on 24 January 2020. The appeal seeks to impugn the court a quo's order awarding custody of the parties' three minor children to the respondent upon the separation of the parties.

The appellant also challenges the jurisdiction of the court a quo, and the urgency and validity of the interdict granted against him in respect of the parties' disputed properties.

Although the parties were also quarrelling about the respondent's right to access the matrimonial home, that dispute has since been resolved by the court a quo in the appellant's favour. That issue consequently falls away.

The respondent has, in turn, abandoned her claim that the appellant be barred from being heard until he has purged his dirty hands. That issue has also fallen away for the reason that it has been abandoned by the respondent.

CHOICE OF LAW

Although the parties were married under Customary Law, they have both elected to have their matrimonial rights and obligations regulated and determined in terms of General Law; section 3(b) of the Customary Law and Local Courts Act [Chapter 7: 05].

It is convenient that their dispute be regulated and determined in terms of General Law because of their sophisticated way of life and ownership of immovable private property.

As the concept of private ownership of immovable property is unknown at Customary Law, it is virtually impossible to determine rights and obligations pertaining to privately owned immovable property in terms of any law other than General Law. Thus, the appropriate applicable law in this case is the General Law. See Mandava v Chasekwa 2008 (1) ZLR 300…,.

BRIEF SUMMARY OF THE CASE

The appellant is the Vice President of Zimbabwe whereas the respondent is his estranged wife. The two were married under an unregistered customary law marriage also known as a customary law union. The marriage was blessed with three minor children. The eldest, Tendai Dominique Chiwenga, is aged 9 years whilst Christian Tawanazororo Chiwenga is 8 years, and Michael Alexander Tadisiswa Chiwenga is 6 years old respectively.

During happier times, the parties resided at their matrimonial home situate at Number 614 Nick Price Drive, Borrowdale Brooke, Harare together with their three minor children. During the subsistence of the marriage, the parties acquired both movable and immovable property either jointly or in their personal capacities. The acquired property includes the matrimonial home, a fleet of cars, immovable business premises known as Orchid Gardens, along the Domboshava Road, personal effects, and other paraphernalia.

It however so happened that the marriage later fell on turbulent times resulting in the appellant initiating divorce procedures under customary law. In those proceedings he alleged that he had given her a divorce token known as 'gupuro'.

In her papers before this Court, and in paragraph 8.1 of her heads of argument, the respondent continues to hold herself out as the appellant's wife. The divorce issue therefore appears not to have been resolved.

The appellant has nevertheless now issued summons against her in the court a quo under case number HC9837/19 claiming custody of the three minor children in terms of section 4 of the Guardianship of Minors Act [Chapter 5:08] and division of the matrimonial property acquired during the subsistence of the marriage.

The current proceedings and the parties' relationship are severely strained, acrimonious, and discordant. This is mainly because of the respondent's arrest on multiple charges of attempted murder of the appellant, fraud, money laundering, and contravention of the Exchange Control Regulations.

Upon her arrest, the respondent was detained in custody for a period spanning three (3) weeks, from 14 December 2019 to 6 January 2020. She went to prison without making proper provision for the custody of their three minor children, possession, and administration of her personal property and effects.

At the time of her arrest and detention, the appellant had voluntarily moved out of the matrimonial home. He avers that he returned to the matrimonial home to fill in the void occasioned by the respondent's arrest and detention in custody. In the absence of the respondent, he then assumed de facto custody of their three minor children and possession of their matrimonial property including the fleet of cars, Orchid Gardens, personal effects, and other paraphernalia.

His conduct in this respect was perfectly lawful and undisputed at the material time.

On 6 January 2020, the court a quo granted the respondent bail and ordered her to reside at the matrimonial home at her specific instance and request. Upon her release from prison, on bail, she returned to the matrimonial home to assume residence as ordered by the court a quo. State security guards stationed at the home denied her access to the matrimonial home.

The same scenario played out when she sought access to Orchid Gardens which was also guarded by State security guards. They also denied her access to the premises.

She further alleges that she claimed custody of her three minor children without success, a fact denied by the appellant.

THE RESPONDENT'S CLAIM A QUO

Under the circumstances, the respondent submits that she had no option but to approach the appropriate court, on an urgent basis, for relief. To that end, she lodged an urgent application in the court a quo for a 'provisional spoliation order' directing the appellant to grant her the following interim relief on a prima facie basis pending the return date for a final order:

1. Access to the matrimonial home.

2. Access to and use of her personal motor vehicles.

3. Access to her clothing, personal goods and effects.

4. Return of her safes containing her personal property.

5. An order directing the appellant to return the three (3) minor children of the marriage to the respondent.

6. An order compelling the appellant to return to the respondent all furniture, goods and effects removed from the business premises at Orchid Gardens.

7. An order denying the appellant access to the court until he has purged his dirty hands.

8. An order directing the Sheriff, with the assistance of the police, to execute the court a quo's order forthwith.

In the final order, the respondent sought the following relief:

9. That the appellant be interdicted and restrained from interfering with the respondent's use and enjoyment of the matrimonial home and her business premises at Orchid Gardens pending the conclusion of the matrimonial proceedings under case number HC9837/19.

10. That the appellant be restrained from removing the three (3) minor children of the marriage from the applicant's custody.

11. That the appellant be ordered to pay costs at the punitive scale as between legal practitioner and client scale.

Though the terms of the provisional and final orders sought are somewhat worded differently, the import and effect of the two orders are materially the same. This is because they both seek to wrestle custody of the three minor children and possession of the disputed property from the appellant and confer them on the respondent.

Basically, the respondent's complaint was that the appellant had abused his office as Vice President of Zimbabwe using soldiers to despoil her of access to the matrimonial home, her children, and property.

THE APPELLANT'S DEFENCE A QUO

The appellant objected to the respondent's claim that the matter was urgent.

He further questioned the assumption of jurisdiction by the court a quo as usurping the function of the Children's Court which is specifically conferred with the jurisdiction in terms of section 5 of the Guardianship of Minors Act [Chapter 5:08] to determine the question of custody of minor children when spouses begin to live apart.

He vehemently denied abusing his office as alleged or at all. He denied that the respondent had custody of the minor children and possession of the disputed property when he assumed de facto custody of the children and possession of the disputed property while she was in prison.

The appellant denied having given the guards at the matrimonial home, and Orchid Gardens, any orders to deny the respondent access to the premises.

His submission, to the effect that he had no control over the guards, was not rebutted.

Placing reliance on the South African case of Fraser v Children's Court, Pretoria North 1997 (2) SA 261, the appellant argued that it was wrong to discriminate against fathers in matters pertaining to the custody of their minor children.

It was his further submission that throughout the whole episode, he acted lawfully as a diligent pater familias. At paragraph 3(c) of his opposing affidavit, in the court a quo, the appellant makes the valid point that, as a responsible parent, he was obliged and duty bound to move into his home and take care of his minor children and family property when the respondent was detained in prison. He averred, further, that, as the father of the children, he was best suited to have their custody because the respondent was a drug addict and a psychiatric patient.

THE COURT A QUO'S FINDINGS AND DETERMINATION

On the basis of the above summation of evidence and arguments, the court a quo found that:

(a) The matter was urgent mainly because of the welfare of the minor children. It also found that the matter was urgent because the respondent was arbitrarily evicted from the matrimonial home without a court order. It also found that spoliation matters are, by nature, urgent; and

(b) Notwithstanding that the respondent was in prison, she was unlawfully despoiled of the custody of her children and property.

The court a quo proceeded to make the following final order despite the fact that the respondent had asked for a provisional order on a prima facie basis:

“1. The respondent (Constantino) is hereby ordered to restore custody of the minor children, namely, Tendai Dominique Chiwenga (born 4 November 2011), Christian Tawanazororo Chiwenga (born 5 November 2012), and Michael Alexander Tadisiswa Chiwenga (born 13 February 2014) to the custody of the applicant (Marry) within 24 hours of this order.

2. The respondent (Constantino) is hereby interdicted and restrained from interfering with applicant's (Marry) access to, use and enjoyment of the property known as 614 Nick Price Drive, Borrowdale, Harare.

3. The respondent (Constantino) is hereby interdicted and restrained from interfering with applicant's (Marry) access to, use and enjoyment of the property known as Orchid Gardens, Domboshawa, Harare.

4. The respondent (Constantino) is hereby interdicted and restrained from interfering with applicant's (Marry) access to, use and enjoyment of the motor vehicles, namely, Toyota Lexus, Mercedes Benz S400, Mercedes Benz E350 (Black).

5. Respondent (Constantino) is interdicted and restrained from interfering with applicant's (Marry) access and/or possession of her clothing.

6. The respondent (Constantino) is ordered to pay applicant's (Marry) costs of suit.”

GROUNDS OF APPEAL AND ISSUES FOR DETERMINATION

Aggrieved by the above order, the appellant appealed to this Court on ten (10) grounds of appeal which in fact raise only three issues for determination by this Court on appeal. It is cumbersome to regurgitate all the ten (10) grounds of appeal. It is however convenient to dwell on the three issues raised by the grounds of appeal. These are;

1. Whether the court a quo correctly determined that the matter was urgent.

2. Whether or not it was competent for the court a quo to grant a final interdict when the respondent had asked for a 'provisional' spoliation order.

3. Whether the court a quo had jurisdiction to determine the question of custody of the three (3) minor children in light of the provisions of section 5 of the Guardianship of Minors Act [Chapter 5:08].

APPLICATION OF THE LAW TO THE FACTS...,.

The court now turns to determine the appeal on the remaining two issues.

WHETHER OR NOT IT WAS COMPETENT FOR THE COURT A QUO TO GRANT A FINAL ORDER IN THE FORM OF AN INTERDICT?

Despite the respondent having asked for a 'provisional' spoliation order based on a prima facie case, the learned judge in the court a quo went on to grant an interdict which neither party had asked for nor pleaded.

The two critical questions to be answered are:

1. Was it competent, at law, for the court a quo to grant the respondent a final order when her claim was for a 'provisional' spoliation order? In any case, was the provisional order sought a competent remedy?

2. What were the parties' rights of custody of their three minor children at the time of separation?

The court now proceeds to deal with the two questions in turn.

(a) Whether it was competent at law for the court a quo to grant the respondent an interdict when she had asked for a 'provisional' spoliation order?

In answering this question, it is necessary to set out the applicable law in some detail as it is apparent that both the court a quo and the respondent's legal practitioners were labouring under some serious mis-apprehension of the law in this regard.

THE APPLICABLE LAW

The answer to this question is a well beaten path at home, regionally, and abroad. In this judgment, the word 'injunction' is used interchangeably with the term 'interdict' with reference to English and Roman Dutch Law, respectively.

The respondent approached the court a quo seeking a 'provisional' spoliation order on a prima facie basis. It is however trite that a spoliation order, being final in effect, cannot be granted as an interim order on the evidence of a prima facie right, as happened in this case. See Blue Ranges Estates (Pvt) Ltd v Muduviri & Anor 2009 (1) ZLR 370…,.

On this basis, the respondent's quest for a 'provisional' spoliation order was misplaced and bad at law.

The court expects legal practitioners to place before it, cases that are founded on sound substantive and procedural law. The court cannot, and should not, be expected to make a case for the parties. Its role is to determine the dispute put before it, on the basis only of the applicable law and procedure.

The definition and purpose of a provisional order is diametrically different from that of a final order. C. B. PREST in his book, The Law and Practice of Interdicts, 9th ed Juta & Co (Pty) Ltd…, defines and explains the purpose of a provisional order as follows;

“A provisional order is a remedy by way of an interdict which is intended to prohibit all prima facie illegitimate activities. By its very nature, it is both temporary and provisional, providing (interim) relief which serves to guard the applicant against irreparable harm which may befall him, her, or it, should a full trial of the alleged grievance be carried out. As the name suggests, it is provisional in nature, as the parties anticipate certain relief to be made final on a certain future date upon which the applicant has to fully disclose his, her or its entitlement to a final order that the interim relief sought was ancillary to.”

In the South African case of Development Bank of Southern Africa (Ltd) v Van Rensburg NO and Ors [2002] 3 All SA 669 (SCA) the court clarified that its purpose is to preserve the status quo pending the return day.

Australia has intrinsically the same definition and purpose. In Re Brian Charles Gluestein; Exparte Anthony [2014] WASC 381 the court said:

“Relatively, the purpose of an interlocutory injunction is to preserve the position until the rights of the parties can be determined at the hearing of the suit. A plaintiff seeking an interlocutory injunction must be able to show a sufficiently arguable claim to a right to the final relief in aid of which the interlocutory relief is sought.”

Under English Law, the law remains virtually the same. In Attorney General v Punch Limited and Anor [2002] UKHL 50, the court held that:

“The purpose for which a court grants an interlocutory injunction can be stated quite simply. In American Cyanamid Co v Ethicon Ltd [1975] AC 396, 405D LORD DIPLOCK described it as a remedy which is both temporary and discretionary. Its purpose is to regulate, and, where possible, to preserve, the rights of the parties pending the final determination of the matter which is in issue by the court.”

The purpose of a provisional order is the same in our jurisdiction as in the other jurisdictions stated above.

The purpose of a final order is different from that of a provisional order in that a final order is conclusive and definitive of the dispute. It finally settles the issues and has no return date. Once a final order is given the court issuing the order becomes functus officio and it cannot revisit the same issues at a later date.

It is settled law that the standard of proof for a provisional order is different from that of a final order.

A provisional order is established on a prima facie basis because it is merely a caretaker, temporary order pending the final determination of the dispute on the return date. The parties have an opportunity to argue the matter again on the return date.

On the other hand, a final order is obtained on the higher test of a clear right because it is final and definitive as it has no return date.

It so happens that lawyers often seek a final order disguised as a provisional order as happened in the well-known case of Blue Ranges Estates (Pvt) Ltd v Muduviri & Anor 2009 (1) ZLR 368 and in this case.

That case lays down the test for distinguishing a provisional order from a final order despite the presentation of a final order disguised as a provisional order. In that case MALABA DCJ…, had this to say…,.:

“To determine the matter one has to look at the nature of the order and its effect on the issues or cause of action between the parties and not its form. An order is final and definitive because it has the effect of a final determination on the issues between the parties in respect of which relief is sought from the court…,.

For an order to have the effects of an interim relief it must be granted in aid of, and as ancillary to the main relief which may be available to the applicant on final determination of his or her rights in the proceeding.

…,. The test is whether the order made is of such a nature that it has the effect of finally determining the issue or cause of action between the parties such that it is not a subject of any subsequent confirmation or discharge.”

In the South African case of Pretoria Racing Club v Van Pietersen 1917 TS 687…, SMITH J had occasion to remark that:

“In order to decide whether such an order is final or not I think the test must be arrived at by considering what the object of the proceedings is as a matter of substance. See the Judgment of ROMER LG in RE Herbet Reeves & Co [1902] 1 Ch 29.”

The respondent's object and purpose in filing the urgent chamber application was to obtain custody of her minor children, access to the matrimonial home and repossession of the disputed property.

It is self-evident that the interim relief she sought was crafted in such a way that if granted she would get the primary relief sought. Through the interim relief, she would have obtained access to the matrimonial home, custody of her children, and disputed property.

Such an order does not fit the definition of an interim order. It is nothing other than a final order disguised as a provisional order.

The learned judge a quo, perhaps having realized that the interim order sought fitted the definition of a final order, apparently threw caution to the wind and granted a final order that had not been sought by the respondent.

By going on a frolic of his own and determining issues not placed before him, the learned judge fell into grave error and misdirected himself.

The net result was that the respondent was granted a final interdict when she had asked for a provisional order after pleading a prima facie right.

In Nzara & Ors v Kashumba NO & Ors SC18-18…, this Court held that:

“It is clear from the court a quo's orders that some of the orders it granted had not been sought by the other party. It is also clear that parties had not made any submissions for and against those orders. They were granted mero motu by the court a quo. It did so without seeking the parties' views on those orders. There is no doubt that the court a quo exceeded its mandate which was to determine the issues placed before it by the parties through pleadings and proved by the evidence lead.

The function of the court is to determine the disputes placed before it by the parties. It cannot go on a frolic of its own. Where a point of law or a factual issue exercises the court's mind but has not been raised by the parties or addressed by them either in their pleadings, in evidence, or in submissions from the bar, the court is at liberty to put the question to the parties and ask them to make submissions on the matter.”

It is therefore settled law that a judicial officer is strictly bound by the issues pleaded by the parties. Going on a frolic of his/her own and determining issues not pleaded or raised by the parties constitutes a fatal procedural irregularity.

When this is taken together with the fact that the respondent sought relief that was incompetent at law, in respect of her claims to property and custody of the children, there can be no doubt that the entire proceedings before the court a quo were a nullity ab initio.

The appropriate remedy would, therefore, have been to strike out the entire chamber application without any further ado....,.

In granting the respondent a final interdict which she had not asked for in respect of her claims, the learned judge a quo fell into grave error and misdirected himself;

(i) Firstly, because he had neither the jurisdiction nor the discretion to award the respondent relief that she had not asked for.

A judicial officer who acts without jurisdiction acts without authority, and, to that extent, illegally.

The court was at fault in that it determined a matter that was not before it; and without hearing argument on the question of whether or not to grant a final interdict. The matter that was before it was whether or not to grant the 'provisional' spoliation order. The question of the final interdict was supposed to be argued and determined on the return day, which, however, never saw the light of day....,.

In determining the issue mero motu, without hearing argument from both parties, the court a quo was in fundamental breach of the audi alteram partem rule which forms the backbone of our adversarial legal system.

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Law Portal Zimbabwe

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

SC70-07 : MICHAEL TAYLOR vs HEATHER MARGARET TAYLOR Ruled By: CHEDA JA, ZIYAMBI JA and GARWE JA

Appealed SC20-16 : ZIMBABWE POSTS (PRIVATE) LIMITED vs COMMUNICATION AND ALLIED SERVICES UNION Ruled By: MALABA DCJ, GOWORA JA and HLATSHWAYO JA

HH27-18 : SAMSON MEKI vs AIR ZIMBABWE (PVT) LTD and AIR ZIMBABWE HOLDINGS (PVT) LTD and COMMERCIAL BANK OF ZIMBABWE LTD Ruled By: HUNGWE J

HH102-15 : ZIMBABWE ELECTRICITY TRANSMISSION AND DISTRIBUTION COMPANY (PVT) LTD vs BINDURA RURAL DISTRICT COUNCIL and FIFTY NINE OTHERS Ruled By: DUBE J

HH114-15 : THEMPSON MUZVAGWANDOGA and DZOKAI MUZVAGWANDOGA vs MAI-KAI REAL ESTATE DEVELOPMENT TRUST and BERNARD MUTANGA and MOLLY DINGANI and THE REGISTRAR OF DEEDS Ruled By: MAFUSIRE J

View Appeal SC18-18 : SHORAI NZARA and AAROLA IDEHEN and AMOSOGE IDEHEN and OSARETIN IDEHEN vs CECILIA KASHUMBA N.O. and REGISTRAR OF DEEDS and MASTER OF THE HIGH COURT and TAFIRENYIKA KAMBARAMI Ruled By: GARWE JA, GUVAVA JA and UCHENA JA

HB235-16 : ESTATE LATE MOSES KANHUKAMWE (represented by Winnie Mudzinganyama curator bonis) vs CBZ BANK LTD and I.Q. MARKETING (PVT) LTD and THE ADDITIONAL SHERIFF – BULAWAYO Ruled By: TAKUVA J

HB01-15 : MARIA RABEKA vs LARISSA STOCKIL and ASSISTANT MASTER OF THE HIGH COURT and REGISTRAR OF DEEDS N.O. Ruled By: MAKONESE J

HMA06-18 : PHILEMON MUTANGIRI and NYIKADZINO MUTATI and LYTON KAUNDA vs LEONARD MUTEMA t/a LEONARD TRADING and F. NAGO N.O. PROVINCIAL MAGISTRATE Ruled By: MAFUSIRE J

CC04-16 : SISTER BERRY (NEE NCUBE) and JESSE AARON BERRY vs THE CHIEF IMMIGRATION OFFICER and THE MINISTER OF HOME AFFAIRS Ruled By: CHIDYAUSIKU CJ, MALABA DCJ, ZIYAMBI JCC, GWAUNZA JCC, GOWORA JCC, HLATSHWAYO JCC, PATEL JCC, GUVAVA JCC and MAVANGIRA AJCC

CC20-17 : MORGAN TSVANGIRAI vs ROBERT MUGABE and ZIMBABWE ELECTORAL COMMISSION and RITA MAKARAU, N.O. and CHIEF ELECTIONS OFFICER Ruled By: CHIDYAUSIKU CJ, MALABA DCJ, ZIYAMBI JA, GWAUNZA JA, GARWE JA, GOWORA JA, HLATSHWAYO JA, CHIWESHE AJA and MAVANGIRA AJA

Appealed SC08-19 : AUGUR INVESTMENTS OU vs FAIRCLOT INVESTMENTS (PVT) LTD t/a T & C CONSTRUCTION and D.L. CRUTTENDEN Ruled By: GWAUNZA JA, MAVANGIRA JA and BHUNU JA

View Appeal HB102-17 : TURFWALL MINING (PVT) LTD t/a BEENSET INVESTMENTS vs SIPHIWE DUBE and OTHERS Ruled By: TAKUVA J

SC13-19 : ZIMBABWE REVENUE AUTHORITY vs STANBIC BANK ZIMBABWE LIMITED Ruled By: GUVAVA JA, MAVANGIRA JA and ZIYAMBI AJA

Appealed SC21-19 : RONALD BAKARI vs TOTAL ZIMBABWE (PRIVATE) LIMITED Ruled By: GARWE JA, GUVAVA JA and BHUNU JA

Appealed SC21-19 : RONALD BAKARI vs TOTAL ZIMBABWE (PRIVATE) LIMITED Ruled By: GARWE JA, GUVAVA JA and BHUNU JA

HB123-17 : SERGEANT MAZUNGUNYE F048394B vs THE TRIAL OFFICER (SUPERINTENDENT MUTEMA) and COMMISSIONER GENERAL OF POLICE Ruled By: MATHONSI J

View Appeal HH311-18 : SERGEANT KHAUYEZA (F048677J) vs THE TRIAL OFFICER (Superintendent J. Mandizha) and THE COMMISSIONER GENERAL OF POLICE Ruled By: CHIWESHE JP and CHAREWA J

HH174-13 : ALOIS MATONGO vs MIDLANDS STATE UNIVERSITY Ruled By: MATHONSI J

SC26-19 : MWAMI MULIZI SIAMSIPA N.O. vs KUNGANDA FARM (PRIVATE) LIMITED Ruled By: PATEL JA, BHUNU JA and BERE JA

View Appeal HH273-16 : KINGDOM BANK LIMITED vs THE RIGHT INVESTMENTS (PVT) LTD and OPIUM INVESTMENTS (PVT) LTD and PHILLIPA COUMBIS Ruled By: CHAREWA J

HH410-17 : RONALD JOHN COUMBIS vs KINGDOM BANK LIMITED Ruled By: CHIWESHE JP

SC17-12 : PHARAOH B MUSKWE vs DOUGLAS NYAJINA and MUNHUWEI G T and MINISTER OF LOCAL GOVERNMENT NATIONAL HOUSING AND URBAN DEVELOPMENT Ruled By: ZIYAMBI JA, GARWE JA, and OMERJEE AJA

Appealed HH457-14 : PHILIPPA ANN COUMBIS vs RONALD JOHN COUMBIS Ruled By: MAWADZE J

SSC71-19 : PRISCAH MUPFUMIRA vs THE STATE Ruled By: GOWORA JA

HH353-14 : ZIMBABWE LAWYERS FOR HUMAN RIGHTS vs MINISTER OF TRANSPORT N.O. and ZIMBABWE NATIONAL ROAD ADMINISTRATION and ATTORNEY – GENERAL OF ZIMBABWE N.O. Ruled By: MAFUSIRE J

HB02-12 : MUNICIPALITY OF VICTORIA FALLS vs LOIDA NYATHI and 11 OTHERS Ruled By: NDOU J

HH14-09 : TENDAI MUZA vs CHRISTINA MUWIRIMI and FATIMA MURWISI and MUNICIPALITY OF CHITUNGWIZA Ruled By: MTSHIYA J

HH504-16 : GODFREY CHIPARAUSHE and 60 OTHERS vs TRIANGLE LIMITED and TRIANGLE SENIOR STAFF PENSION FUND and MR S MTSAMBIWA Ruled By: MATANDA-MOYO J

SC57-19 : THE COLD CHAIN (PRIVATE) LIMITED t/a SEA HARVEST vs ROBSON MAKONI Ruled By: GOWORA JA, HLATSHWAYO JA and MAVANGIRA JA

View Appeal SC29-13 : BETTY KANYUCHI vs DRAWING SERVICES (PVT) LTD Ruled By: MALABA DCJ, GARWE JA and GOWORA JA

HH128-14 : EARTHMOVING & CONSTRUCTION COMPANY PL vs ASSWELL GURUPIRA and JEAN GURUPIRA and SANDRA MUIR REGISTRAR OF DEEDS and THE DEPUTY SHERIFF Ruled By: MAFUSIRE J

Appealed HH307-16 : ASSWELL GURUPIRA and JEAN GURUPIRA vs EARTHMOVING & CONSTRUCTION COMPANY PL and SANDRA MUIR and THE REGISTRAR OF DEEDS and THE SHERIFF and THE DEPUTY SHERIFF and JOHN LEGGATTE Ruled By: MAKONI J

View Appeal SC85-20 : JOHN LEGGETT and EARTHMOVING AND CONSTRUCTION COMPANY PL vs ASSWEL GURUPIRA and JEAN GURUPIRA and SANDRA MUIR and THE REGISTRAR OF DEEDS and THE SHERIFF and THE DEPUTY SHERIFF Ruled By: GWAUNZA DCJ, GOWORA JA and PATEL JA

HH05-03 : U-FREIGHT EUROMAR (PRIVATE) LIMITED vs EMMANUEL MUTEBUKA Ruled By: MAKARAU J

HH352-18 : N.R BARBER (PRIVATE) LIMITED vs ZAMBEZI GAS ZIMBABWE (PRIVATE) LIMITED Ruled By: MUZENDA J

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

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

SC37-20 : ROSEMARY BASTIN vs KUFA MADZIMA (IN HIS CAPACITY AS THE EXECUTOR OF THE ESTATE LATE MARIMO MADZIMA) Ruled By: MAKARAU JA, MAKONI JA and MATHONSI JA

HB84-18 : ROSINA NGIRAZI vs FUNGAI SAUROSI and KWEKWE CITY COUNCIL Ruled By: MATHONSI J

View Appeal HH339-18 : KUDAKWASHE MURAPE and MABLE MURAPE vs MUCHANETA CHATAMBUDZA Ruled By: CHIKOWERO J

View Appeal SC47-20 : ROBSON MAKONI vs CBZ LIMITED Ruled By: GWAUNZA DCJ, GUVAVA JA and MAKONI JA

Appealed SC50-20 : ALASTAIR SMITH vs ABIGAIL SMITH Ruled By: GARWE JA, BHUNU JA and MAKONI JA

View Appeal HH302-19 : ELIAS MASHAVIRA vs MOVEMENT FOR DEMOCRATIC CHANGE (MDC) and NELSON CHAMISA and ELIAS MUDZURI and THOKOZANI KHUPE and DOUGLAS MWONZORA and MORGAN KOMICHI Ruled By: MUSHORE J

SC62-20 : THANDO NCUBE vs FIDELITY PRINTERS AND REFINERIES (PRIVATE) LIMITED Ruled By: MAKARAU JA

HHH517-20 : INTRATREK ZIMBABWE PL and WICKNELL CHIVHAYO and STANLEY KAZHANJE vs PROSECUTOR GENERAL OF ZIMBABWE and P MATURURE N.O. Ruled By: CHIKOWERO J and KWENDA J

HH86-12 : ELIJAH KASEZA vs LANGTON KASEZA and WINNIE MURAPE Ruled By: MAVANGIRA J

SSC59-19 : PROSECUTOR-GENERAL OF ZIMBABWE vs INTRATREK ZIMBABWE PL and WICKNELL CHIVAYO and L. NCUBE N.O. Ruled By: PATEL JA

SC86-20 : CONSTANTINE CHIWENGA vs MARRY MUBAIWA Ruled By: GWAUNZA DCJ, GARWE JA and BHUNU JA

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Zimbabwe

SC70-07 : MICHAEL TAYLOR vs HEATHER MARGARET TAYLOR
Ruled By: CHEDA JA, ZIYAMBI JA and GARWE JA

Appealed
SC20-16 : ZIMBABWE POSTS (PRIVATE) LIMITED vs COMMUNICATION AND ALLIED SERVICES UNION
Ruled By: MALABA DCJ, GOWORA JA and HLATSHWAYO JA

HH27-18 : SAMSON MEKI vs AIR ZIMBABWE (PVT) LTD and AIR ZIMBABWE HOLDINGS (PVT) LTD and COMMERCIAL BANK OF ZIMBABWE LTD
Ruled By: HUNGWE J

HH102-15 : ZIMBABWE ELECTRICITY TRANSMISSION AND DISTRIBUTION COMPANY (PVT) LTD vs BINDURA RURAL DISTRICT COUNCIL and FIFTY NINE OTHERS
Ruled By: DUBE J

HH114-15 : THEMPSON MUZVAGWANDOGA and DZOKAI MUZVAGWANDOGA vs MAI-KAI REAL ESTATE DEVELOPMENT TRUST and BERNARD MUTANGA and MOLLY DINGANI and THE REGISTRAR OF DEEDS
Ruled By: MAFUSIRE J

View Appeal
SC18-18 : SHORAI NZARA and AAROLA IDEHEN and AMOSOGE IDEHEN and OSARETIN IDEHEN vs CECILIA KASHUMBA N.O. and REGISTRAR OF DEEDS and MASTER OF THE HIGH COURT and TAFIRENYIKA KAMBARAMI
Ruled By: GARWE JA, GUVAVA JA and UCHENA JA

HB235-16 : ESTATE LATE MOSES KANHUKAMWE (represented by Winnie Mudzinganyama curator bonis) vs CBZ BANK LTD and I.Q. MARKETING (PVT) LTD and THE ADDITIONAL SHERIFF – BULAWAYO
Ruled By: TAKUVA J

HB01-15 : MARIA RABEKA vs LARISSA STOCKIL and ASSISTANT MASTER OF THE HIGH COURT and REGISTRAR OF DEEDS N.O.
Ruled By: MAKONESE J

HMA06-18 : PHILEMON MUTANGIRI and NYIKADZINO MUTATI and LYTON KAUNDA vs LEONARD MUTEMA t/a LEONARD TRADING and F. NAGO N.O. PROVINCIAL MAGISTRATE
Ruled By: MAFUSIRE J

CC04-16 : SISTER BERRY (NEE NCUBE) and JESSE AARON BERRY vs THE CHIEF IMMIGRATION OFFICER and THE MINISTER OF HOME AFFAIRS
Ruled By: CHIDYAUSIKU CJ, MALABA DCJ, ZIYAMBI JCC, GWAUNZA JCC, GOWORA JCC, HLATSHWAYO JCC, PATEL JCC, GUVAVA JCC and MAVANGIRA AJCC

CC20-17 : MORGAN TSVANGIRAI vs ROBERT MUGABE and ZIMBABWE ELECTORAL COMMISSION and RITA MAKARAU, N.O. and CHIEF ELECTIONS OFFICER
Ruled By: CHIDYAUSIKU CJ, MALABA DCJ, ZIYAMBI JA, GWAUNZA JA, GARWE JA, GOWORA JA, HLATSHWAYO JA, CHIWESHE AJA and MAVANGIRA AJA

Appealed
SC08-19 : AUGUR INVESTMENTS OU vs FAIRCLOT INVESTMENTS (PVT) LTD t/a T & C CONSTRUCTION and D.L. CRUTTENDEN
Ruled By: GWAUNZA JA, MAVANGIRA JA and BHUNU JA

View Appeal
HB102-17 : TURFWALL MINING (PVT) LTD t/a BEENSET INVESTMENTS vs SIPHIWE DUBE and OTHERS
Ruled By: TAKUVA J

SC13-19 : ZIMBABWE REVENUE AUTHORITY vs STANBIC BANK ZIMBABWE LIMITED
Ruled By: GUVAVA JA, MAVANGIRA JA and ZIYAMBI AJA

Appealed
SC21-19 : RONALD BAKARI vs TOTAL ZIMBABWE (PRIVATE) LIMITED
Ruled By: GARWE JA, GUVAVA JA and BHUNU JA

Appealed
SC21-19 : RONALD BAKARI vs TOTAL ZIMBABWE (PRIVATE) LIMITED
Ruled By: GARWE JA, GUVAVA JA and BHUNU JA

HB123-17 : SERGEANT MAZUNGUNYE F048394B vs THE TRIAL OFFICER (SUPERINTENDENT MUTEMA) and COMMISSIONER GENERAL OF POLICE
Ruled By: MATHONSI J

View Appeal
HH311-18 : SERGEANT KHAUYEZA (F048677J) vs THE TRIAL OFFICER (Superintendent J. Mandizha) and THE COMMISSIONER GENERAL OF POLICE
Ruled By: CHIWESHE JP and CHAREWA J

HH174-13 : ALOIS MATONGO vs MIDLANDS STATE UNIVERSITY
Ruled By: MATHONSI J

SC26-19 : MWAMI MULIZI SIAMSIPA N.O. vs KUNGANDA FARM (PRIVATE) LIMITED
Ruled By: PATEL JA, BHUNU JA and BERE JA

View Appeal
HH273-16 : KINGDOM BANK LIMITED vs THE RIGHT INVESTMENTS (PVT) LTD and OPIUM INVESTMENTS (PVT) LTD and PHILLIPA COUMBIS
Ruled By: CHAREWA J

HH410-17 : RONALD JOHN COUMBIS vs KINGDOM BANK LIMITED
Ruled By: CHIWESHE JP

SC17-12 : PHARAOH B MUSKWE vs DOUGLAS NYAJINA and MUNHUWEI G T and MINISTER OF LOCAL GOVERNMENT NATIONAL HOUSING AND URBAN DEVELOPMENT
Ruled By: ZIYAMBI JA, GARWE JA, and OMERJEE AJA

Appealed
HH457-14 : PHILIPPA ANN COUMBIS vs RONALD JOHN COUMBIS
Ruled By: MAWADZE J

SSC71-19 : PRISCAH MUPFUMIRA vs THE STATE
Ruled By: GOWORA JA

HH353-14 : ZIMBABWE LAWYERS FOR HUMAN RIGHTS vs MINISTER OF TRANSPORT N.O. and ZIMBABWE NATIONAL ROAD ADMINISTRATION and ATTORNEY – GENERAL OF ZIMBABWE N.O.
Ruled By: MAFUSIRE J

HB02-12 : MUNICIPALITY OF VICTORIA FALLS vs LOIDA NYATHI and 11 OTHERS
Ruled By: NDOU J

HH14-09 : TENDAI MUZA vs CHRISTINA MUWIRIMI and FATIMA MURWISI and MUNICIPALITY OF CHITUNGWIZA
Ruled By: MTSHIYA J

HH504-16 : GODFREY CHIPARAUSHE and 60 OTHERS vs TRIANGLE LIMITED and TRIANGLE SENIOR STAFF PENSION FUND and MR S MTSAMBIWA
Ruled By: MATANDA-MOYO J

SC57-19 : THE COLD CHAIN (PRIVATE) LIMITED t/a SEA HARVEST vs ROBSON MAKONI
Ruled By: GOWORA JA, HLATSHWAYO JA and MAVANGIRA JA

View Appeal
SC29-13 : BETTY KANYUCHI vs DRAWING SERVICES (PVT) LTD
Ruled By: MALABA DCJ, GARWE JA and GOWORA JA

HH128-14 : EARTHMOVING & CONSTRUCTION COMPANY PL vs ASSWELL GURUPIRA and JEAN GURUPIRA and SANDRA MUIR REGISTRAR OF DEEDS and THE DEPUTY SHERIFF
Ruled By: MAFUSIRE J

Appealed
HH307-16 : ASSWELL GURUPIRA and JEAN GURUPIRA vs EARTHMOVING & CONSTRUCTION COMPANY PL and SANDRA MUIR and THE REGISTRAR OF DEEDS and THE SHERIFF and THE DEPUTY SHERIFF and JOHN LEGGATTE
Ruled By: MAKONI J

View Appeal
SC85-20 : JOHN LEGGETT and EARTHMOVING AND CONSTRUCTION COMPANY PL vs ASSWEL GURUPIRA and JEAN GURUPIRA and SANDRA MUIR and THE REGISTRAR OF DEEDS and THE SHERIFF and THE DEPUTY SHERIFF
Ruled By: GWAUNZA DCJ, GOWORA JA and PATEL JA

HH05-03 : U-FREIGHT EUROMAR (PRIVATE) LIMITED vs EMMANUEL MUTEBUKA
Ruled By: MAKARAU J

HH352-18 : N.R BARBER (PRIVATE) LIMITED vs ZAMBEZI GAS ZIMBABWE (PRIVATE) LIMITED
Ruled By: MUZENDA J

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

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

SC37-20 : ROSEMARY BASTIN vs KUFA MADZIMA (IN HIS CAPACITY AS THE EXECUTOR OF THE ESTATE LATE MARIMO MADZIMA)
Ruled By: MAKARAU JA, MAKONI JA and MATHONSI JA

HB84-18 : ROSINA NGIRAZI vs FUNGAI SAUROSI and KWEKWE CITY COUNCIL
Ruled By: MATHONSI J

View Appeal
HH339-18 : KUDAKWASHE MURAPE and MABLE MURAPE vs MUCHANETA CHATAMBUDZA
Ruled By: CHIKOWERO J

View Appeal
SC47-20 : ROBSON MAKONI vs CBZ LIMITED
Ruled By: GWAUNZA DCJ, GUVAVA JA and MAKONI JA

Appealed
SC50-20 : ALASTAIR SMITH vs ABIGAIL SMITH
Ruled By: GARWE JA, BHUNU JA and MAKONI JA

View Appeal
HH302-19 : ELIAS MASHAVIRA vs MOVEMENT FOR DEMOCRATIC CHANGE (MDC) and NELSON CHAMISA and ELIAS MUDZURI and THOKOZANI KHUPE and DOUGLAS MWONZORA and MORGAN KOMICHI
Ruled By: MUSHORE J

SC62-20 : THANDO NCUBE vs FIDELITY PRINTERS AND REFINERIES (PRIVATE) LIMITED
Ruled By: MAKARAU JA

HHH517-20 : INTRATREK ZIMBABWE PL and WICKNELL CHIVHAYO and STANLEY KAZHANJE vs PROSECUTOR GENERAL OF ZIMBABWE and P MATURURE N.O.
Ruled By: CHIKOWERO J and KWENDA J

HH86-12 : ELIJAH KASEZA vs LANGTON KASEZA and WINNIE MURAPE
Ruled By: MAVANGIRA J

SSC59-19 : PROSECUTOR-GENERAL OF ZIMBABWE vs INTRATREK ZIMBABWE PL and WICKNELL CHIVAYO and L. NCUBE N.O.
Ruled By: PATEL JA

SC86-20 : CONSTANTINE CHIWENGA vs MARRY MUBAIWA
Ruled By: GWAUNZA DCJ, GARWE JA and BHUNU JA