Appeal re: Findings of Fact or Exercise of Discretion iro Jurisdictional Considerations and Technical Objections

SC35-23 : NELISIWE MLAMBO vs AROSUME PROPERTY DEVELOPMENT (PVT) LTD and MWANA WEVHU HOUSING CO-OPERATIVE and KUDZANAI CHIKUTU and MINISTER OF LOCAL GOVERNMENT AND PUBLIC WORKS N.O.
Ruled By: MUSAKWA JA

This is a chamber application for condonation of non-compliance with the Supreme Court Rules 2018 and for extension of time in which to appeal made in terms of Rule 43.

The intended appeal is against a judgment of the High Court which was handed down on 30 July 2021. In that judgment, the applicant's application for a declaratur was dismissed. The applicant seeks an order in the following terms:

“1. The application for condonation for non-compliance with Rule 38(1) of the Supreme Court Rules 2018 be and is hereby granted.

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

3. The applicant shall file and serve the notice of appeal against the judgment of the High Court in HC6650/19 within five days from the date of this order.

4. There shall be no order as to costs.”

FACTUAL BACKGROUND

The first respondent is a property development company. The second respondent is a duly registered housing co-operative of which the applicant was a member. The third respondent is the subsequent purchaser of the property in dispute, Number 294 Carrick Creagh, Borrowdale which property had initially been leased to the applicant on a rent to buy basis. The fourth respondent is the Minister responsible for State land and properties.

It is common cause, that, on 13 October 2011, the applicant was allocated Stand Number 294 Carrick Creagh, Borrowdale by the fourth respondent on a lease-to-buy basis.

The allocation was made pursuant to a partnership agreement entered between the first and second respondents wherein the first respondent was appointed to develop the land on which the property is situated. Members of the second respondent were required to pay a development fee to the first respondent before being issued with a lease agreement by the fourth respondent.

The applicant avers, that, she was exempted from paying development fees, through a letter dated 3 November 2008, as she was part of the executive committee of the second respondent.

On 6 August 2019, the applicant visited the fourth respondent's offices to check on the status of the Stand. She then found in the relevant file a letter dated 18 December 2018 demanding payment of $404,999=04 being the outstanding development fees. The fees were to be paid by 31 January 2019 failing which the offer of the Stand would be withdrawn. The letter also stated, that, the applicant had breached the lease agreement by not paying the development fees.

The applicant averred, that, although the letter was dated 18 December 2018, there was no valid cancellation as the same was not served on her at her domicilium citandi as reflected in the lease agreement. She only became aware of the letter well after the due date.

During the course of the inquiries as to the withdrawal of the offer of the Stand, the applicant further discovered, that, the property had been allocated to the third respondent.

Consequently, the applicant filed an application for a declaratur in the court a quo under case number HC6650/19. She averred, that, she held a valid lease agreement and never declined to pay the development fees. She contended, that, there was no basis for the repossession as she was not notified that she owed the development fees.

She sought to be declared the true and legal owner of Stand Number 294 Carrick Creagh, Borrowdale.

She also sought that the sale agreement concluded between the first and third respondents be declared null and void and for the same to be set aside.

The first to third respondents opposed the application whilst the fourth respondent did not file any opposition.

The first respondent contended, that, the applicant had no real rights accruing to her. It further contended, that, the applicant's exemption from paying development fees was not absolute.

The second respondent contended, that, the applicant could not seek a declaratur on ownership on the strength of a lease. This is because ownership vested in the fourth respondent. It also contended, that, the exemption from paying development fees was a privilege that was subsequently withdrawn.

The third respondent argued, that, she was properly allocated the Stand and paid the requisite development costs. She further argued, that, the requirements for a declaratur had not been met.

The court a quo found, that, the applicant did not satisfy the requirements for the granting of a declaratory order.

The court found, that, it was not in dispute that the letter of cancellation of the lease agreement was not served on the applicant. As such, it ruled that no valid cancellation was effected.

The court a quo further found, that, if the letter was a notice of cancellation, then, in terms of the parties agreement, the fourth respondent was supposed to confirm cancellation - which he did not do.

All the respondents failed to put a date on which the lease was cancelled.

However, notwithstanding that it had found that there had been no proper cancellation of the lease agreement, the court a quo refused to grant the declaratory order sought by the applicant. It ruled, that, the applicant had not fulfilled the obligations set out in the lease agreement.

Resultantly, the application was dismissed.

Aggrieved by the decision of the court a quo, the applicant lodged an appeal to this Court under SC308/21. The appeal was filed within the 15 days stipulated in Rule 38(1)(a) of the Supreme Court Rules 2018.

However, the notice of appeal was defective in that the relief sought was inexact.

On the day of the hearing of the appeal, that is, 11 January 2022, the issue of the defective notice of appeal was brought to the attention of the applicant's counsel. The matter was duly struck off the roll by consent of all the parties.

The applicant intends to file a fresh appeal, but, she is out of time; hence the present application.

APPLICANT'S SUBMISSIONS

Counsel for the applicant submitted, that, the delay was not inordinate and the reason for the delay is attributed to the legal practitioner who drafted a defective notice of appeal.

On the issue of prospects of success, counsel for the applicant argued, that, the intended appeal enjoyed good prospects.

Counsel submitted, that, the court a quo correctly made a finding, that, the termination of the lease agreement was invalid due to the failure by the fourth respondent to serve the required notices at the applicant's domicilium citandi. It was further argued, that, by refusing to declare that the contract between the applicant and the fourth respondent as valid, the court a quo made a decision that was contrary to the evidence placed before it. Finally, counsel for the applicant submitted, that, as the application before the court a quo related to a declaratory order, and not for specific performance, the application ought to be granted.

THE FIRST RESPONDENT'S SUBMISSIONS

Counsel for the first respondent submitted, that, although the delay in noting of the application for condonation is not inordinate, the explanation for the delay is unacceptable since the applicant was legally represented.

Concerning prospects of success on appeal, counsel for the first respondent argued, that, the applicant has no prospects of success because the reason for the applicant's failure to pay developmental fees could not suffice as the exemption regarding payment was clearly outlined as a privilege subject to revocation.

Further, it was counsel for the first respondent's contention, that, the applicant failed to establish the reasons why she did not adhere to the obligations which were set out in the lease agreement.

Moreover, he argued, that, without the applicant first seeking the cancellation of an agreement between the third and fourth respondent, the relief sought by the applicant was incompetent in an application for a declaratur.

Finally, counsel for the first respondent prayed, that, the application be dismissed with costs on a legal practitioner-client scale.

THE SECOND RESPONDENT'S SUBMISSIONS

Counsel for the second respondent raised a point in limine to the effect, that, the applicant had approached the court with dirty hands as she had neglected to pay costs which the court a quo had ordered her to pay.

On the merits, counsel for the second respondent argued, that, the appeal has no prospects of success as the applicant was equally in breach of her own obligations in respect of the same lease agreement which she intended to have enforced. Counsel submitted, that, the applicant sought to be declared the owner of the Stand despite the fact that she had no agreement of sale but was merely a beneficiary of a lease agreement. Ownership of the Stand continued to vest in the State as represented by the fourth respondent.

THE THIRD RESPONDENT'S SUBMISSIONS

Counsel for the third respondent submitted, that, the applicant did not disclose that she was required to pay development fees and to erect buildings worth USD$200,000 in her founding affidavit.

Counsel submitted, that, the applicant has no prospects of success due to the fact that she failed to perform all her obligations under the contract she sought to enforce.

Counsel further submitted, that, the applicant's lease-to-purchase agreement with the fourth respondent has two distinct cancellation for breach clauses; clause 15 requires the lessor forthwith to declare the agreement terminated, and, clause 22 has a forfeiture clause in terms of which there is no contemplation of any need to declare and communicate the termination of agreement.

Additionally, it was submitted, that, the termination of the applicant's lease and ejectment was effected by means of the subsequent letting for eventual purchase to the third respondent.

The third respondent had made improvements to the immovable property.

Counsel further submitted, that, the double sale argument raised by the applicant is an error of law since there was never any sale and purchase of land in the scheme of the lease-to-buy arrangement.

The third respondent argued, that, the applicant's failure to fulfil the conditions of the lease-to-buy agreement militate against the application.

THE LAW

Applications for condonation of late filing of appeal and extension of time within which to appeal are regulated by Rule 43 of the Supreme Court Rules 2018 which states that:

“(1) An application for leave to appeal or for condonation of non-compliance with the rules and for extension of time in which to appeal shall be signed by the applicant or his or her legal practitioner and shall be accompanied by a copy of the judgment against which it is sought to appeal.

(2) An application for leave to appeal shall set out the date on which the High Court refused leave to appeal and shall have attached to it —

(a) A notice of appeal containing the matters required in terms of paragraphs (a) to (f) of subrule (1) of Rule 37;

(b) A copy of the proceedings before the High Court when leave to appeal was refused, together with the judgment, if any;

(c) An affidavit setting out any facts which are relied upon as affecting the granting of leave to appeal.

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

It is a common principle of law that has been practiced over time, that, a party who fails to comply with the rules of this Court must apply for condonation and give adequate reasons for failure to comply with the rules.

This was expressed in Zimslate Quartize (Pvt) Ltd & Ors v Central African Building Society SC34-17 where the court held that:

“An applicant, who has infringed the rules of the court before which he appears must apply for condonation, and, in that application, explain the reasons for the infraction. He must take the court into his confidence and give an honest account of his default in order to enable the court to arrive at a decision as to whether to grant the indulgence sought. An applicant who takes the attitude that indulgences, including that of condonation, are there for the asking does himself a dis-service as he takes the risk of having his application dismissed.”…,.

The factors to be considered in an application of this nature were outlined in Mzite v Damafalls Investment (Pvt) Ltd & Anor SC21-18 where the court stated that:

“The requirements for the application of this nature to succeed are well known, as outlined in the case of Kombayi v Berkout 1988 (1) ZLR 53 (S). These are:

1. The extent of the delay;

2. The reasonableness of the explanation for the delay; and

3. The prospects of success on appeal.”

APPLICATION OF THE LAW TO THE FACTS

The extent of the delay and reasonableness of explanation

In casu, the judgment in which the applicant intends to appeal against was handed down on 30 July 2021. The applicant filed a defective notice of appeal on time and the matter was struck off the roll on 11 January 2022. She then filed the present application on 18 January 2022, some seven (7) days after the matter was struck off the roll.

The overall delay, of six months, is inordinate.

The explanation given by the applicant, for failing to note a valid appeal, is that the applicant's legal practitioners believed that they had filed a valid notice of appeal. It was only on the day for the hearing of the appeal that her legal practitioner realized the defect in the notice.

The applicant's legal practitioner, deposed to a supporting affidavit in which he explained the issue of the defective notice of appeal.

According to him, in crafting the substituting order, he omitted to state the substantive relief. He had not seen anything wrong until this was brought to his attention by counsel for the third respondent on the date of hearing.

A client may suffer for the negligence of his legal practitioner: see S v McNab 1986 (2) ZLR 280 (SC).

This is because a legal practitioner is expected to execute his or her duties diligently and to follow the rules of court. In this respect, see Nguruve v Secretary of The Commission of Inquiry 1988 (1) ZLR 244 (SC).

Counsel for the applicant was certainly expected to get things right.

It follows, that, the application fails both on the length of delay and the reasonableness of the explanation for the delay.

Despite the applicant having failed to meet the first two requirements for such an application, I will proceed to determine whether there are prospects of success in the intended appeal as it is a requirement to consider all the elements cumulatively.

PROSPECTS OF SUCCESS

Prospects of success refer to the question of whether the applicants have an arguable case on appeal or whether the case cannot be categorised as hopeless.

In the case of Essop v S [2016] ZASCA 114, the Court, in defining prospects of success, held that;

“What the test for reasonable prospects of success postulates is a dispassionate decision, based on the facts and the law, that a court of appeal could reasonably arrive at a conclusion different to that of the trial court.

In order to succeed, therefore, the appellant must convince this court, on proper grounds, that, he has prospects of success on appeal and that those prospects are not remote, but have a realistic chance of succeeding.

More is required to be established than that there is a mere possibility of success, that the case is arguable on appeal, or that the case cannot be categorised as hopeless. There must, in other words, be a sound, rational basis for the conclusion that there are prospects of success on appeal.”…,.

In her draft notice of appeal, the applicant has raised four grounds of appeal, and, the main issue is whether or not the court a quo erred in dismissing the application for a declaratur.

In the court a quo, the applicant sought for an order declaring her to be the true owner of the Stand in question.

Clause 2 of the lease agreement entered between the applicant and the fourth respondent shows, that, it was valid for four years. The lease agreement was entered into on 11 October 2011. It means that the lease expired sometime in 2015.

The applicant filed the application for a declaratur on 9 August 2019 - some four (4) years after the lease had lapsed.

The lease agreement which the applicant sought to be declared valid and binding had lapsed by the time she approached the High Court for a declaratur.

I am satisfied, that, the relief or order she sought in the court a quo was incompetent as the lease agreement was terminated by effluxion of time and was never renewed. She could not have sought to be declared the owner of a property she had not purchased.

DISPOSITION

The court a quo was correct not to grant a declaratur in favour of the applicant as the applicant had not purchased the property and had not fulfilled the conditions relating to developing the property.

In addition, the lease on the property had lapsed and had not been renewed.

Consequently, there are no prospects on appeal.

As the applicant has failed to satisfy the requirements for the grant of this application, the application cannot succeed. As is the norm, costs will follow the event.

Accordingly, it is ordered that the application be and is hereby dismissed with costs.

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

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

The Facts

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

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

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

He was legally represented at the hearing.

He raised two defences:

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

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

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

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

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

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

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

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

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

The Contentions a quo

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The findings of the court a quo

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

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

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

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

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

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

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

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

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

It found, that, Bramwell Bushu's reply did not constitute the requisite authority to open a credit sales trading account; its absence at the disciplinary hearing did not prejudice the appellant and its production thereat would have served no useful purpose.

The court a quo, consequently, dismissed the appeal with no order as to costs. It, however, did not pronounce itself on the application for review.

The grounds of appeal

Irked by the decision of the court a quo, the appellant appeals to this court on the following grounds of appeal:

“1. The court a quo erred at law in confirming the appellant's dismissal when there was no evidence that the appellant acted in a manner inconsistent with the fulfillment of the express or implied conditions of his contract of employment.

2. The court a quo erred at law in confirming the appellant's dismissal contrary to the evidence of Ivan Craig and Bramwell Bushu which exonerated the appellant of any wrongdoing.

3. The court a quo erred at law in confirming the appellant's dismissal for misconduct, yet the record clearly shows that appellant sought authorization before dispatching seed to Nelmah.”

He seeks the success of the appeal with costs, the vacation of the court a quo's judgment, and its substitution with an order granting both the appeal and the application for review with costs, his reinstatement with salary and other benefits, alternatively, damages, which may be computed by the Labour Court, if the parties fail to agree thereon within 30 days of the substituted order.

At the commencement of the hearing, counsel for the appellant moved for the addition of two other grounds of appeal. After some initial opposition, counsel for the respondent conceded to the addition thereof.

Consequently, the following two grounds of appeal were, by consent, added to the notice of appeal as numbers:

(4) The court a quo erred in finding, that, the appellant's first ground of review, alleging interest in the cause, did not raise a review ground, and, a fortiori, having heard new evidence on review, in failing to record the full evidence given by the parties and to determine the effect of the new evidence on that review ground; and

(5) The court a quo erred in groundlessly commenting, that, the review application had been abandoned and in leaving the same hanging and undetermined.

The contentions before this Court

The preliminary applications

At the commencement of the hearing before this Court, counsel for the appellant took two preliminary applications:

(i) Firstly, he sought the vacation of the judgment of the court a quo and the remittal of the matter before a different judge.

This was because of the common cause fact, that, the transcript of the proceedings and notes of the presiding judge a quo could not be located after diligent search. The transcript and the notes could also not be reconstructed due to the 5-year time lapse between the dates on which judgment was handed down and the request for reconstruction was made.

(ii) Secondly, he sought the amendment of the notice of appeal by the addition of the two grounds that are set out in paragraph (18), above.

After interacting with the Court, counsel for the appellant abandoned the first application. He conceded, that, it was in the interests of the due administration of justice that there be finality to this matter, which has been raging between the parties for the past decade. It was therefore dismissed.

The second application was, however, granted by consent.

The substantive contentions on the merits

On the merits, counsel for the appellant contended, that, the conviction was not established by the evidence called at the disciplinary hearing.

He argued, that, Ivan Craig and Bramwell Bushu exonerated the appellant of any wrongdoing.

He strenuously argued, that, the court a quo did not properly assess the common cause evidence of the telephonic conversation between Ivan Craig and the appellant, which took place when the appellant was in the company of Nyathi and the agro-dealer's Mahupete.

He submitted, that, a proper consideration of the evidence would have led to the inevitable conclusion, that, Ivan Craig had verbally authorized the sales transaction and resulted in the appellant's acquittal.

He also argued, that, an acquittal would also have followed from the correct appreciation of the minutes of the meeting held at Wild Geese Lodge on 15 December 2010 between the top management of the respondent and the agro-dealer.

Regarding the two additional grounds of appeal, counsel for the appellant argued, that, they raise the issue of whether or not the review application was dealt with and the manner of its disposal.

The review grounds concerned the alleged interest and bias of Bramwell Bushu, who acted as the complainant at the hearing. Counsel argued, that, the non-disclosure of Bramwell Bushu's letter of 6 October 2010, and of his arrest for fraud ex post facto the hearing, constituted a gross misdirection by the disciplinary authority.

He, however, failed to articulate how the disciplinary authority's failure to consider evidence that was never placed before it could ever amount to a misdirection.

He also argued, that, the failure to make a substantive order on the application for review was a misdirection which would be subject to correction by this Court.

Counsel for the respondent made the following contrary submissions.

The evidence on record confirmed, that, the appellant was guilty of the misconduct for which he was charged with. The evidence of Ivan Craig, Bramwell Bushu, Muzadzi and Locadia Marongwe implicated him of wrong doing. The tele conversation between Ivan Craig and the appellant, on 19 October 2010, which preceded the first dispatch of seed maize, and the minutes of the meeting at the Wild Geese Lodge, did not exonerate him of any wrong-doing. His assertion that he did not have access to the credit limit modules was controverted by Melody and Thomas Mavhurumutse. In any event, it was common cause, that, he never conducted the pre-creditworthiness checks required of him before authorizing the dispatch of the seed maize.

He further submitted, that, the two additional grounds of appeal could not properly be related to by this Court in view of the finding a quo, that, the appellant had abandoned the application for review.

He submitted, that, the court a quo dealt with the application for review and concluded that it had been abandoned.

He argued, that, the court a quo only assessed the evidence of the two witnesses that were called before it in the context of an appeal and not of an application for review.

He further contended, that, the appellant's failure to assail the finding on abandonment is fatal to his case.

He therefore implored the Court to dismiss the appeal in its entirety.

The Issues

The two issues that arise from the grounds of appeal are;

(i) Firstly, whether the court a quo correctly upheld the conviction of the appellant, which resulted in his dismissal from employment; and

(ii) Secondly, whether the application for review was abandoned and a substantive order pronounced a quo.

Analysis

Whether the application for review was abandoned and whether the court a quo pronounced a substantive order thereon

Counsel for the appellant's submission, that, the application for review was not abandoned runs contrary to the findings of the court a quo. It remarked thus in its judgment, at p143 of the appeal record:

“It will be noted, that, the application for review appeared to have lost its way and was not heard of in the addresses. The issues that were clearly pursued were those of the appeal. In fact, these are not review issues except for the first one, if it can be proved. If it can be proved it would fall under the appeal grounds as facts which can show that the hearing officer grossly misdirected himself on the facts proved. Therefore, there was no review case at all. None was genuinely pursued. There was no need to have a separate case for review.”

In our view, the correctness of this finding is affirmed by the fact, that, the appellant did not assail these findings in its written heads of argument, or even in the additional grounds of appeal. This was in spite of the categoric assertion advanced by the respondent in paragraph 2.5 of its written heads of argument that:

“The court a quo found, that, the same was not pursued at the hearing as the appellant only pursued the appeal. See page 143 of the record, last paragraph. This finding by the court a quo has not been challenged in the present appeal and the issue of the review is, therefore, resolved.”…,.

We also agree with counsel for the respondent's submission, that, the appellant's failure to impugn the finding was fatal to the appeal.

In our view, the appellant could not properly appeal against a review that it had abandoned. In the circumstances, we would dismiss the fourth ground of appeal.

SC46-23 : GAYNOR CHITSAKA and OTHERS vs LORRAINE HEYNS and OTHERS
Ruled By: MAKONI JA, CHIWESHE JA and CHATUKUTA JA

This is an appeal against the entire judgment of the High Court (“the court a quo”) wherein it dismissed the appellants point in limine, that, the respondents application before it was a nullity for non-compliance with Rule 59 of the High Court Rules 2021 (“the Rules”).

At the hearing of the appeal, counsel for the first and second respondents (Lorraine Elizabeth Heyns and Kurt Louis Heyns) raised a point in limine to the effect, that, the present appeal was fatally defective for the reason, that, it had been noted without the leave of the court a quo, as the appeal is against an interlocutory order.

This judgment will thus be confined to the determination of this point in limine.

FACTUAL BACKGROUND

The parties are embroiled in a dispute over ownership of an immovable property known as a Certain Piece of Land Situate in the District of Hartley, called the Remainder of Westhey of Sabonabon Estate measuring 97,0653 hectares and held under Deed of Transfer Number 4110/92 (“the property”).

The first and second respondents approached the court a quo by way of an urgent court application for an order declaring certain court applications, instituted under the various case numbers, stated in their draft order, to be null and void ab initio; a declaration, that, the company known as Balwearie Holdings (Private) Limited, registered under Company Number 45/77, is the legitimate owner of the property; and, an order that the first, second and twelfth respondents have no enforceable rights or interests in the property.

They also sought a declaration, that, the first to eighteenth respondents have acted in common purpose to illegally acquire title in the above-described immovable property.

Further, there was consequential relief which was being sought as detailed in the draft order.

The application was opposed by the appellants as well as the third to the eighteenth respondents.

Following indications from some of the parties that they had preliminary objections to raise, the court a quo directed that the parties file their opposing papers.

The appellants (Gaynor Chitsaka, Herbert Mawema, Bherebende Law Chamber and W.O.M. Simango and Associates) in their opposing papers, raised two preliminary points, namely;

(a) Whether the application was fatally defective and therefore invalid for non-compliance with Rule 59 of the High Court Rules 2021; and

(b) Whether the matter was urgent.

PROCEEDINGS BEFORE THE COURT A QUO

The appellants submitted, that, the court application was fatally defective for non-compliance with Rule 59 of the High Court Rules 2021, in that it was not in the prescribed form.

They further submitted, that, the form used did not contain the mandatory plethora of procedural rights which are designed to inform them of their rights and obligations in relation to the application.

In response, the respondents submitted, that, the form used substantially complied with the requirements of Rule 59 of the High Court Rules 2021.

In the alternative, they argued, that, the court could invoke its inherent powers to deal with the application notwithstanding the failure to comply with the exact form required by the Rules.

The appellants further challenged the hearing of the application on an urgent basis mainly on two grounds:

(i) Firstly, they contended that the certificate of urgency did not show that the certifying legal practitioner applied an independent mind to the matter.

(ii) Secondly, they argued that the circumstances of the matter did not reveal any form of urgency.

FINDINGS OF THE COURT A QUO

The court a quo found, that, the current Form 23 is what used to be Form 29 of the now repealed High Court Rules 1971.

It does not contain the dies induciae. This is provided for in Rule 59(6) of the High Court Rules 2021.

Contrary to the submission made on behalf of the appellants, the period of ten days is not a mandatory requirement. The Rules refer to a dies induciae of “not less than ten days”. It further found, that, the Rules allowed a court application to specify a shorter period of a dies induciae, if the court, on good cause shown, agrees to such a shorter period.

Whilst the court a quo agreed that the form used by the first and second respondents was defective because it did not inform the appellants of the nature and scope of the notice of opposition; the consequences of a failure to file opposing papers within the dies induciae specified in the court application; and the failure to specify the High Court station at which the opposing papers were to be filed, the court found that such defects were not fatal to the application and did not prejudice the respondents in any manner.

Consequently, it dismissed the point in limine challenging the validity of the application.

In relation to the issue of urgency, the court a quo held, that, there was no requirement for a certificate of urgency in an urgent court application. The court stated, that, the certificate of urgency was only required in urgent chamber applications, in line with the provisions of Rules 60(4)(b) and 60(6) of the High Court Rules 2021.

The court further made a finding, that, the application before it did not specify when the need to act arose and, on this point alone, it held that the matter before it was not urgent.

The court further held, that, the irreparable harm which the first and second respondents would suffer had not been established.

The court also ruled, that, the declaratory and consequential relief being sought by the first and second respondents did not qualify for an urgent hearing.

As a result, the court a quo ordered that the matter be struck off the roll of urgent matters. It also ordered, that, the respondents file opposing papers, on the merits of the matter, within ten days of the order.

THE APPEAL

Dissatisfied by the decision of the court a quo, the appellants noted the present appeal on the following single ground:

GROUND OF APPEAL

The proceedings in the court a quo were void ab initio for the reason, that, the purported application by the first and second respondents was a nullity for non-compliance with Rule 59(6) of the High Court Rules 2021, with the result that the court a quo erred in law in not so finding and in:

1.1 Striking off the matter from the roll of urgent matters as there is no such roll for urgent court applications; and

1.2 Ordering the appellants to file opposing papers to a nullity.

The appellants pray that the appeal be allowed with costs and that the judgment of the court a quo be set aside and substituted with an order upholding the point in limine regarding the invalidity of the application and that the application be struck off the roll.

SUBMISSIONS BEFORE THIS COURT

Counsel for the first and second respondents submitted, that, the appeal was invalid as a result of the appellants failure to seek leave to appeal. He argued, that, the judgment which was being appealed against was an interlocutory order; as such, in terms of section 43(2)(d)(i) of the High Court Act [Chapter 7:13] (the Act), the appellants ought to have obtained leave to appeal before lodging their appeal.

Counsel for the first and second respondents prayed for costs de-bonis propriis on the basis, that, the first and second respondents had written a letter to the appellants advising them of the need to seek leave before noting the appeal, which letter the appellants ignored.

He further added, that, the appellants failed to address the case authorities that the respondents had highlighted in their letter and in their heads of argument.

He further contended, that, amongst the appellants were legal practitioners who should know the law.

He further argued, that, the appellants counsel was not new to the issue of seeking leave in relation to interlocutory orders.

He submitted, that, counsel for the appellants argued the matter in Mogola Enterprises (Private) Limited v Old Mutual Property Investment (Private) Limited SC26-20 where the matter was struck off the roll on account of failure to seek leave.

In the event that the court was not inclined to award costs de bonis propriis, counsel sought costs on a higher scale for the reason, that, the appeal was lodged mainly to frustrate the proceedings a quo.

Per contra, counsel for the appellants, argued, that, the dismissal of the preliminary point which they had raised before the court a quo resulted in a decision which was final and definitive. He submitted, that, the preliminary point went to the root of the application that was before the court a quo, hence, the decision was not interlocutory.

Counsel contended, that, the dismissal of the preliminary point yielded an automatic appeal, thus, there was no need to seek leave to appeal.

Regarding costs, counsel for the appellants stated, that, both costs de bonis propriis and costs on a higher scale were unwarranted.

THE ISSUE

The present appeal can be disposed of by the determination of the question whether the order granted by the court a quo, dismissing the appellants preliminary point regarding the invalidity of the application before it, was an interlocutory order.

THE LAW

The question whether an order is interlocutory or not is a well-trodden path within and outside this jurisdiction.

In the locus classicus, South Cape Corp v Engineering Management Services 1977 (3) SA 534 (A)…, the court, in defining what an interlocutory order is, stated the following:

“(a) In a wide and general sense, the term 'interlocutory' refers to all orders pronounced by the court upon matters incidental to the main dispute, preparatory to, or during the progress of the litigation. But orders of this kind are divided into two classes:

1. Those which have a final and definitive effect on the main action; and

2. Those known as 'simple (or purely) interlocutory orders' or 'interlocutory orders proper' which do not: see, generally, Bell v Bell 1908 TS 887 at pp.890-1; Steytler N.O. v Fitzgerald supra at pp.303, 311, 325-6, 342; Globe and Phoenix Gold Mining Co. Ltd v Rhodesian Corporation Ltd 1932 AD 146 at pp.153, 157–8, 162-3; Pretoria Garrison Institutes v Danish Variety Products supra at pp.850, 867.

(b) Statutes relating to the appealability of judgments or orders (whether it be appeal ability with leave or appealability at all) which use the word 'interlocutory' or other words of similar import, are taken to refer to simple interlocutory orders.

In other words, it is only in the case of simple interlocutory orders that the statute is read as prohibiting an appeal or making it subject to the limitation of requiring leave, as the case may be.

Final orders, including interlocutory orders having a final and definitive effect are regarded as falling outside the purview of the prohibition or limitation: see, generally, Steytler's case supra at pp.304, 312,326, 345-6;

(c) The general test as to whether an order is a simple interlocutory one or not was stated by SCHREINER JA in the Pretoria Garrison Institutes case, supra, as follows (at p.870):

'…, a preparatory or procedural order is a simple interlocutory order, and, therefore, not appealable, unless it is such as to 'dispose of any issue, or any portion of the issue, in the main action or suit' or which amounts, I think, to the same thing, unless it 'irreparably anticipates or precludes some of the relief which would or might be given at the hearing.'"

The above position of the law has been followed in this jurisdiction as enounced in a number of cases: see Gillespies Monumental Works P/L v Zimbabwe Granite Quarries P/L 1977 (2) ZLR 436 (H); Mwatsaka v ICL Zimbabwe 1988 (1) ZLR 1 (H); Mogola Enterprises (Private) Limited v Old Mutual Property Investment (Private) Limited SC26-20; Al Shams Global BVI Limited v Deposit Protection Corporation & Ors SC52–22.

In Trust Merchant Bank Limited v Mako Properties (Pvt) Ltd t/a Musuna Safaris & Travel SC73–02 CHIDYAUSIKU CJ restated the applicable test on whether an order is interlocutory as follows:

“It is clear from its form and effect, that, the order made by the learned judge is an interlocutory order within the meaning of section 43(2)(d) of the Act. In Steytler N.O. v Fitzgerald 1911 AD 295, at 305, LORD de VILLIERS CJ said, that, the test whether or not an order was interlocutory was:

'Whether on the particular point in respect of which the order is made the final word has been spoken in the suit, or whether in the ordinary course of the same suit, the final word has still to be spoken.'”…,.

MALABA DCJ…, in the case of Blue Ranges Estates (Pvt) Ltd v Muduviri and Anor 2009 (1) ZLR 368 (S)…, further elaborated on the test as follows:

“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 to which relief is sought from the court.

An order for discovery or extension of time within which to appeal, for example, is final in form but interlocutory in nature. The reason is that it does not have the effect of determining the issues or cause of action between the parties.”…,.

The learned authors, HERBSTEIN and Van WINSEN, in their book Civil Practice of the High Courts of South Africa, 5th ed, Juta…, define an interlocutory order as:

“…, an order granted by a court at an intermediate stage in the course of litigation, settling or giving directions with regard to some preliminary or procedural question that has arisen in the dispute between the parties.”

The essential elements of an interlocutory order that are coming out of the above authorities can be summarized as follows:

(i) It is an order granted at an intermediate stage in the course of litigation of the dispute between the parties.

(ii) It could relate to a preliminary or procedural question that would have arisen in the course of dealing with the main dispute.

(iii) The final word still has to be spoken in the suit.

(iv) Its an order pronounced upon matters incidental to the main dispute, preparatory to, or during the progress of litigation.

(v) It can be final in form but interlocutory in nature, in that, it does not have the effect of determining the cause of action between the parties.

It is a settled principle of law, and is statutorily provided for, that, no appeal lies against an interlocutory order without the leave of the court which gave that order, or, where it is refused, without the leave of this Court.

This is laid out in section 43(2)(d) of the High Court Act [Chapter 7:06] in the following manner:

“43 Right of appeal from High Court in civil cases

(2) No appeal shall lie —

(d) From an interlocutory order or interlocutory judgment made or given by a judge of the High Court, without the leave of that judge, or, if that has been refused, without the leave of a judge of the Supreme Court….,.”

Nevertheless, there are three instances in which an appeal against an interlocutory order may be noted without the leave of court. These three exceptions are provided for in the aforementioned section as follows:

(i) Where the liberty of the subject or the custody of minors is concerned;

(ii) Where an interdict is granted or refused;

(iii) In the case of an order on a special case stated under any law relating to arbitration.

APPLICATION OF THE LAW TO THE FACTS

In their heads of argument, the first and second respondents contend, that, the court a quo's judgment was not a final and definitive judgment as it did not bring the dispute between the parties to finality.

The appellants, on the other hand, insist that the court a quo's failure to hold, that, the proceedings before it were void ab initio resulted in a judgment which was final and did not require leave to be appealed against.

The court a quo was called upon to determine, in limine, whether or not the application before it was a nullity.

It determined that the application was valid.

Such a judgment is appealable without leave for the simple reason, that, it is not covered by any of the three prohibitions in section 43(2) of the High Court Act [Chapter 7:06].

A judgment that refuses to find that proceedings before a court are void ab initio cannot be interlocutory as it goes to the root of the litigation and has far reaching consequences as to fall outside the contemplation of the word “interlocutory” as used in section 43(2) of the High Court Act [Chapter 7:06].

Such a judgment forces a respondent to participate in subsequent proceedings that may be a nullity. This creates an absurdity not contemplated by the legislature in enacting the prohibition relating to 'interlocutory' orders.

In the circumstances, leave to appeal was not required.

In my view, the order granted by the court a quo fits squarely into the essential elements of an interlocutory order such as I have alluded to above in paragraph 25.

The court a quo dismissed the point in limine raised by the appellants, regarding the validity of the application before it, and gave an order striking the application off the roll of urgent matters.

In so doing, the court did not make a determination on the merits of the dispute between the parties. At the time the court a quo made the order “the final word has still to be spoken” regarding the cause of action between the parties.

The decision did not bring the rights of the parties, in relation to the dispute between them, to a final and definitive determination.

This is fortified by the fact, that, the court a quo went further and directed the respondents, before it, to file notices of opposition to the application on the merits. The main dispute between the parties was referred to the roll of ordinary court applications for a resolution.

This part of the order undoubtedly indicates, that, the dispute between the parties had not been resolved. It was still awaiting final determination.

The decision of the court a quo, although final in form, is purely interlocutory in nature, and would certainly require the leave of the court a quo.

Whilst counsel for the appellants was correct, that, the order issued by the court a quo was final, it is only final in form, but, interlocutory in nature, and does not fall under any of the exceptions set out in paragraph (d) of section 43(2) of the High Court Act.

In my view, litigants need to understand, that, finality of the order is not the determinant factor. One needs to go further and examine the nature of the order. The question that one must ask oneself is whether the order, though final, disposes of the main dispute between the parties. If it does not, then, it is an interlocutory order.

No absurdity will be created by the main matter proceeding as the appellants can appeal the decision - with the leave of the court a quo.

This appeal, having been filed without the leave of the court a quo, is improperly before the court. Consequently, I uphold the point in limine raised by the first and second respondents.

There is one issue which has caused me some disquiet, which issue, in my view, might have taken this matter this far. It concerns the manner in which the court a quo handled the urgent court application before it.

When seized with an urgent court or chamber application, and points in limine are taken, including that the matter is not urgent, the first point to be determined is whether the matter meets the requirements of urgency. If the court determines that the matter is urgent it then goes on to deal with the other points in limine, starting with those that have the potential to terminate the proceedings.

If the court a quo had adopted the correct approach and found, as it did, that the matter was not urgent, it should have ended there. The issue whether the application before the court was valid or not would then have been properly dealt with on the ordinary roll.

One can understand the appellants confusion.

When the matter comes up on the ordinary roll for determination, they can no longer raise the issue, regarding the validity of the application, lest they are confronted with a special plea of res judicata.

That, however, in my view, does not change the character of the order. It remains interlocutory in that it determined a procedural issue....,.

DISPOSITION

In light of the foregoing analysis, the point in limine, that, leave to appeal should have been sought, must be upheld. The order granted by the court a quo has all the attributes of an interlocutory order.

Accordingly, it is ordered as follows:

1. The matter be and is hereby struck off the roll.

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

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

THE LAW

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

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

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

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

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

WHETHER THE APPLICANT HAS REASONABLE PROSPECTS OF SUCCESS ON APPEAL

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

ANALYSIS AND DETERMINATION

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

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

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

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

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

SC59-24 : CHANDRA GOYEL vs MYRAMMAR FARMING (PRIVATE) LIMITED t/a COTTONZIM and OTHERS
Ruled By: MWAYERA JA

This is a chamber application for condonation for the late noting of an appeal and extension of time within which to note an appeal made in terms of Rule 43(1) as read with Rule 43(2) of the Supreme Court Rules 2018 (“the Rules”).The application is opposed.The order sought by the ...

This is a chamber application for condonation for the late noting of an appeal and extension of time within which to note an appeal made in terms of Rule 43(1) as read with Rule 43(2) of the Supreme Court Rules 2018 (“the Rules”).

The application is opposed.

The order sought by the applicant in this application is as follows:

“RELIEF SOUGHT

WHEREUPON after reading documents filed of record and hearing counsel;

IT IS ORDERED THAT:

1. The applicant's non-compliance with Rule 38(1)(a), Rule 37(1)(e), Rule 37(2), Rule 55(5) of the Supreme Court Rules be and is hereby condoned.

2. The application for extension of time within which to note an appeal be and is hereby granted.

3. Within 5 days of this order, the applicant shall file and serve its notice of appeal.

4. There shall be no order as to costs.”

On 5 December 2023, in an ex tempore judgment, I struck the matter off the roll with costs. The applicant has requested for the written reasons for judgment. These are they.

FACTUAL BACKGROUND

The background to this application can be summarised as follows:

In December 2011, the applicant lent and advanced an amount of One Million United States Dollars (USD$1,000,000) (hereinafter referred to as the loan) to the first respondent to fund its cotton seed purchase for the 2012 buying season.

The second to the sixth respondents (Virendra Ranchod, Manojkumar Jivan, Jayprakash Patel, Vinodkumar Rama and Serish Ranchod) executed personal guarantees in respect of the transaction that bound them as guarantors of the loan.

They jointly and severally bound themselves in varying amounts in respect of the loan.

In addition, the respondents also bound themselves as sureties and co-principal debtors for a punctual re-payment of the loan.

The seventh respondent (Gloworm Investments (Pvt) Ltd) tendered Stand number 7489 of Salisbury Township held under Title Deed number 8677/97 as security for the loan.

The first respondent (Myrammar Farming (Pvt) Ltd) t/a Cottonzim), duly represented by the second and sixth respondents, undertook to pay this amount in full on or before December 2012.

Despite various letters demanding payment by the applicant, the respondents failed to pay the applicant back the full amount as had been agreed.

In November 2013, the first respondent signed an acknowledgment of debt in respect of the loan in the sum of one million United States dollars plus interest.

On 30 July 2014, the first respondent was placed under provisional judicial management.

On 8 June 2016, the applicant instituted proceedings against all the respondents in the High Court, under case number HC5762/16, wherein he sought, inter alia, the payment of the USD$1 million, which amount had been advanced to the first respondent.

PROCEEDINGS BEFORE THE COURT A QUO

On 10 May 2022, at the commencement of the trial, the third to the fifth respondents raised three points in limine:

(i) Firstly, that the matter had prescribed;

(ii) Secondly, that there was a violation of the provisions of the Exchange Control Regulations; and

(iii) Lastly, that leave of the court was required before suing the first respondent which was under provisional judicial management.

In arguing the third preliminary point, counsel for the applicant submitted, that, leave was only required in respect of already existing proceedings at the time the provisional order is granted and that no leave was required for new suits. In support of this argument, counsel cited the case of Zambezi Gas Zimbabwe (Pvt) Ltd & Anor v N.R. Barber (Pvt) Ltd & Anor SC03-20.

Per contra, counsel for the first respondent argued, that, leave to sue a company under judicial management was necessary, and, failure to do so was fatal. He further submitted, that, the rationale for judicial management is an endeavour to resuscitate a company and avoid liquidation hence the need for leave.

The court a quo dealt with the issue regarding leave to sue; it upheld, that, the first respondent, being a company under provisional judicial management, could not be sued without leave of the court.

Aggrieved by this decision, the applicant noted an appeal in the Supreme Court under case number SC146/23 wherein he sought the setting aside of the decision of the court a quo upholding the preliminary point.

The appeal was noted on the grounds, that, the court a quo erred in finding that the applicant was required to seek leave to sue the first respondent notwithstanding that the applicant instituted proceedings against the respondents after the provisional order placing the first respondent in judicial management was handed down.

Further, the applicant averred, that, the court a quo erred in overriding the position that leave to sue companies placed under provisional judicial management only applies to proceedings already in existence at the time the provisional judicial management order is granted.

Lastly, the applicant averred, that, the court erred in failing to find that the respondents were estopped from raising the point relating to leave to sue in light of the fact, that, the issue had already been dealt with by the High Court.

It is important to note, that, the appeal was timeously lodged on 15 March 2023. The applicant offered to pay security for the respondents costs, but, however, while such tender was made, the security for costs was not paid within one month from the date of filing the notice of appeal.

The appeal was then deemed to have been abandoned and dismissed by operation of the law.

On 18 October 2023, the applicant filed an application for reinstatement of the appeal that had been deemed abandoned and dismissed under case number SC579/23. However, the appeal that the applicant sought to reinstate was mistakenly set down for hearing on 31 October 2023.

In light of these events, the applicant wrote a letter to the Registrar of the Supreme Court seeking for the application for reinstatement to be heard prior to the set down date.

The applicant was advised by the respondent's legal practitioners, that, the correct application to be filed was an application for condonation and extension of time within which to note an appeal and not reinstatement since the appeal was regarded a nullity.

The Registrar sent the applicant a notice, that, the application for reinstatement was set down for hearing on 1 November 2023.

Consequently, on 31 October 2023, at the hearing of the appeal, the applicant sought for the removal from the roll of the appeal under SC146/23 for the reason, that, it had been deemed abandoned and dismissed by operation of the law.

By consent, the appeal was removed from the roll.

On 1 November 2023, the applicant withdrew the application for reinstatement with a view to filing an application for condonation and extension of time within which to note an appeal and ensuring that the appeal would be heard on the merits.

It is against this background, that, the applicant approached this Court with the present application seeking condonation for the failure to comply with Rule 38(1)(a), Rule 37(1)(e), Rule 37(2) and Rule 55(5) of the Supreme Court Rules 2018.

PROCEEDINGS BEFORE THIS COURT

At the hearing of the application, counsel for the applicant submitted, that, the application for condonation and extension of time within which to note an appeal had been necessitated by the apparent fact, that, there had been non-compliance with the rules of this Court.

She submitted, that, the failure to pay security for costs was not deliberate, but, actuated by a mis-interpretation and oversight on the import of Rule 55(1) and Rule 55(2) of the Supreme Court Rules.

She further submitted, that, the applicant, upon realising concerns raised by the respondents relating to the validity or otherwise of the appeal for non-compliance with the Rules, took steps to rectify the non-compliance.

She contended, that, the breach of the Rules was not deliberate and not caused by the applicant, but, borne out of a genuine oversight by his legal practitioners.

Further, she submitted, that, the respondents would not suffer any prejudice if condonation and extension of time is granted.

As regards prospects of success on appeal, counsel submitted, that, the applicant enjoyed prospects of success because leave to sue a company under judicial management only applies to actions or proceedings already in existence at the time that the provisional order is granted.

She argued, that, no leave is required to institute proceedings against a company under provisional judicial management after the provisional order has been granted.

She prayed, that, in view of the explanation for non-compliance and the delay which she described as “not inordinate” coupled with the fact, that, the applicant enjoyed prospects of success on appeal, the court ought to grant the indulgence.

Counsel thus sought that condonation and extension of time within which to note an appeal be granted.

Per contra, counsel for the third, fourth and fifth respondents opposed the application.

He submitted, that, the application was fatally defective for the reason that the earlier, albeit irregular appeal, remained hanging in the court's records as it was not struck off the roll at the instance of the applicant.

He further submitted, that, the applicant, despite being conscientised of the irregularities, persisted on a trajectory of filing defective processes. He argued, that, even the present application was improperly before the court as a Judge sitting alone in chambers could not strike off an appeal that has been filed, and, in casu, the appeal under SC146//23 remained on record.

He further submitted, that, the applicant did not proffer an explanation for the failure to pay security for costs and the reason for the filing of irregular process.

He also submitted, that, the applicant, instead of explaining the non-compliance with the Rules, merely alludes to the respondents having highlighted irregularities which they were quick to attend to.

He contended, that, the applicant did not tender an explanation for the delay and that there was no satisfactory explanation offered for the non-compliance and filing of a defective process.

He reiterated the point, that, the present application was improperly before the court as the appeal under SC146/23 was still before the court.

Regarding the merits of the appeal, counsel for the third, fourth and fifth respondents submitted, that, the application did not enjoy any prospects of success. He referred to the case of Allied Bank Limited v Dengu & Others SC52-16 which is authority for the requirement to seek leave to sue a company placed under judicial management.

Counsel submitted, that, the application, being improperly before the court, ought to be struck off the roll.

ISSUES FOR DETERMINATION

The issues that fall for determination in this case are as follows:

1. Whether or not the application is properly before the court.

2. Whether or not the requirements for granting condonation for late noting of an appeal and extension of time have been satisfied.

THE LAW

It is trite, that, when an application is improperly before the Court, there will be no application for the court to relate to. The matter which is improperly enrolled faces the fate of being struck off the roll.

In the case of Ahmed v Docking Station Safaris (Private) Limited t/a CC Sales SC70-18…, this Court made the following pertinent remarks:

“In view of the above, it is clear, that, the applicant has approached this court with a wrong application. The circumstances to make an application for condonation for non-compliance with the rules and extension of time within which to file and serve a notice of appeal. This, the applicant failed to do.

The net effect of bringing a wrong application before the court is that there will be virtually nothing placed before it, and, to that end, the application cannot stand.”..,.

The law applicable to applications for condonation and extension of time within which to comply with the Rules and file the relevant application or appeal is settled.

The requirements for this application were aptly captured by GUBBAY CJ…, in the case of Forestry Commission v Moyo 1997 (1) ZLR (S), and, they are as follows:

(a) That, the delay involved was not inordinate, having regard to the circumstances of the case;

(b) That, there is reasonable explanation for the delay;

(c) That, the prospects for success, should the application be granted, are good;

(d) The possible prejudice to the other party should the application be granted.

In addition to the above, in the case of Hove v Berea Mining Syndicate SC50-23…, it was aptly stated that:

“It is trite, that, for an application for condonation for non-compliance with the Rules and for extension of time within which to note an appeal to succeed, the applicant should satisfy the court, that, he or she has a reasonable explanation for the delay and non-compliance with the Rules, and also establish that there are prospects of success of the appeal.”

It is important to note, that, these factors are not individually decisive on whether the application for condonation for late noting of appeal and extension of time within which to appeal is granted. They are considered conjunctively.

In Kodzwa v Secretary for Health & Anor 1999 (1) ZLR 313 (S), SANDURA JA remarked as follows:

“Whilst the presence of reasonable prospects of success on appeal is an important consideration which is relevant to the granting of condonation, it is not necessarily decisive. Thus, in the case of a flagrant breach of the Rules, particularly where there is no acceptable explanation for it, the indulgence of condonation may be refused - whatever the merits of the appeal may be.”

APPLICATION OF THE LAW TO THE FACTS

After considering both the written and oral submissions by counsel, it is apparent, that, the appeal in case number SC146/23 which was deemed abandoned and dismissed by operation of law has a life line for reinstatement as provided for in Rule 70 of the Supreme Court Rules 2018.

It is an established principle, that, when a matter is deemed abandoned and dismissed because of operation of the law, it is removed from the roll.

In casu, it is worthwhile to refer to the orders of this Court in respect of the matter. The order in the record, issued on 31 October 2023, is pertinent. The order reads as follows:

“IT IS ORDERED THAT:

1. By consent, the matter be and is hereby removed from the roll for the reason, that, it has been deemed abandoned and dismissed in terms of Rule 55(6) of the Supreme Court Rules 2018.

2. The appellant shall bear the respondent's costs for today's appearance.”

In respect of the chamber application for condonation and reinstatement of the appeal, the application was removed from the roll for the reason, that, it had been withdrawn. On 1 November 2023, the court ordered as follows:

“IT IS ORDERED BY CONSENT THAT:

The matter is removed from the roll, with no order as to costs, for the reason, that, it has been withdrawn.”

The import of these orders is that the appeal in case SC146/23 therefore remains deemed abandoned and dismissed.

Counsel for the third, fourth and fifth respondents submission, that, the application in the present case is fatally defective, is confirmed by the sequence of earlier highlighted proceedings before this Court.

In my view, the appeal under SC146/23 stands in the way of seeking condonation and extension of time within which to note an appeal by operation of the law. The proper way to revive an appeal deemed abandoned and dismissed is by seeking reinstatement.

In the present case, the applicant's non-compliance with Rule 55 of the Supreme Court Rules 2018 resulted in the appeal being deemed abandoned and dismissed. Rule 55 is instructive. It provides as follows:

“55. Security

1. If the judgment appealed from is carried into execution by direction of the court appealed from, security for the costs of appeal shall be as determined by that court and shall not be required under this rule.

2. Where the execution of a judgment is suspended pending an appeal and the respondent has not waived his or her right to security, the appellant shall, before lodging copies of the record with a Registrar, enter into good and sufficient security for the respondent's costs of appeal:

Provided that where the parties are unable to agree on the amount or nature of the security to be furnished —

(i) The matter shall be determined by the Registrar upon application by the appellant; and

(ii) The Registrar shall specify the period within which the security shall be furnished.

3. A judge may, on application, at the cost of the appellant, and for good cause shown, exempt the appellant wholly, or in part, from the giving of security under subrule (2).

4. No security for costs in terms of subrule (2) need be furnished by the Government of Zimbabwe or by a municipal or city council or by a town management board.

5. Subject to the proviso to subrule (2), where an appellant is required by this Rule to furnish security for the respondent's costs of appeal, such security shall be furnished within one month of the date of filing of the notice of his or her appeal in terms of Rule 37, or, where applicable, within the period specified by the Registrar in terms of the proviso to subrule (2).

6. If an appellant who is required to furnish security for the respondent's costs of appeal fails to furnish such security with (in) the period specified in subrule (5), the appeal shall be regarded as abandoned and shall be deemed to have been dismissed.”…,.

The rules provide for reinstatement of such an appeal that has been deemed abandoned and dismissed. Rule 70 of the Supreme Court Rules is apposite. It provides that:

“(1) Where an appeal is —

(a) Deemed to have lapsed; or

(b) Regarded as abandoned; or

(c) Deemed to have been dismissed in terms of any provision of these rules;
the Registrar shall notify the parties accordingly.

(2) The appellant may, within 15 days of receiving any notification by the Registrar in terms of subrule (1), apply for the reinstatement of the appeal on good cause shown.”…,.

In casu, the appeal was removed from the roll because it was deemed abandoned and dismissed since the applicant had not paid security for costs within the prescribed time.

The redress to this infraction is as provided for in the Supreme Court Rules 2018.

The applicant in this case, while apportioning blame to the respondents for consenting to the orders granted, cannot be exculpated from lack of probity and diligence.

It is clear, that, the applicant has approached this Court with a wrong application for condonation and extension of time within which to note an appeal, when, in actual fact, the deemed abandoned and dismissed appeal can be resuscitated by seeking condonation for non-compliance with Rule 55(5) of the Supreme Court Rules 2018 and extension of time within which to pay security of costs.

Further, the applicant ought to file for condonation for late filing of the application for reinstatement and extension of time within which to file an application for reinstatement and reinstatement of the appeal.

In the case of Gazi v Mbababala Properties (Pvt) Ltd SC24-23, MAVANGIRA JA, sitting in chambers, stated that:

“It is my considered view, that, in such a situation, a litigant, on becoming aware, by itself, of the fate of its appeal by reason of operation of the law, per Rule 55 as read with Rule 70, may properly apply for condonation of non-compliance with the rules and for the extension of time within which to file an application for reinstatement.”

These remarks resonate well with the circumstances of the present case.

See also Ahmed v Docking Station Safaris (Private) Limited t/a CC Sales SC70-18, which emphasized the fact, that, bringing a wrong application before the court virtually places nothing for the court to relate to.

The circumstances presented require the applicant to make a composite application for condonation for non-compliance with the rules and extension of time within which to pay security of costs of court, condonation for the late filing of the application for reinstatement and the extension of time within which to file the application for reinstatement and reinstatement of the appeal, which is already in the system.

In view of the fact, that, the matter is improperly before the court, it ought to be struck off the roll.

SSC03-18 : CHRISTOPHER SAMBAZA vs AL SHAMS GLOBAL BVI LIMITED
Ruled By: GARWE JA, MAVANGIRA JA and UCHENA JA

The appellant is a Zimbabwean who resides in South Africa. He is a former director of Rodstreet Trading (Private) Limited (“Rodstreet”), a company registered in terms of the laws of Zimbabwe. The respondent is a company registered in the British Virgin Islands but operating from Dubai though engaging in financial ...

Factual Background

The common cause facts on which the dispute arose are as follows:

On 22 August 2011, Rodstreet Trading (Private) Limited (Rodstreet) drew and issued a Bankers Acceptance (hereinafter called “the BA”) in the sum of US$117,335=91 in favour of Interfin Bank. Interfin Bank accepted the BA. The Bankers Acceptance's due date was 21 November 2011, that is, 91 days after sight.

Interfin Bank subsequently sold the Bankers Acceptance to the respondent on a buyback basis.

By letter dated 7 March 2012, Interfin Bank advised Rodstreet Trading (Private) Limited that it had sold the Bankers Acceptance (BA) to the respondent on a buyback basis, but, the respondent was demanding immediate payment of the BA.

The respondent demanded payment of the Bankers Acceptance (BA) from both Interfin Bank and Rodstreet Trading (Private) Limited. They both failed to pay.

The respondent issued a letter of demand to Rodstreet Trading (Private) Limited demanding payment in the sum of US$117,335=91. Rodstreet was not able to make any payment.

On 27 April 2012, the respondent issued summons against Rodstreet Trading (Private) Limited in the High Court, under case No. HC4556/12. On 18 June 2012, a default judgment was granted against Rodstreet.

The respondent instructed the Deputy Sheriff to proceed to Rodstreet Trading (Private) Limited's place of business to execute a writ issued in terms of the order granted on 18 June 2012. On 3 August 2012, the Deputy Sheriff filed a return indicating that Rodstreet was no longer operating from its registered premises.

The respondent applied to the court a quo for an order, in terms of section 318 of the Companies Act [Chapter 24:05], declaring the appellant personally liable to pay the respondent the sum of US$117,335=91 plus interest at the rate of 30 per cent per annum from 21 November 2011 to the date of full payment plus costs of suit.

The respondent sought the order against the appellant in his capacity as a director of Rodstreet Trading (Private) Limited.

It alleged, that, at all material times, the appellant knew, or should have known, that Rodstreet Trading (Private) Limited would not be able to pay the amounts owed in terms of the Bankers Acceptance (BA) which it issued. The respondent argued, that, the appellant, being a director of the company, negligently and/or fraudulently misrepresented to Interfin Bank that Rodstreet would liquidate the amount owed on the Bankers Acceptance on its maturity date.

The respondent submitted, that, due to his gross negligence and reckless trading, the appellant must be held personally liable in terms of section 318 of the Companies Act for monies owed by Rodstreet Trading (Private) Limited to the respondent. In the respondent's view, the appellant owed a duty of care to all parties which conducted business with Rodstreet, including the respondent, to ensure Rodstreet would be able to meet its financial obligations.

The appellant opposed the respondent's application in the court a quo, arguing that he was no longer a director of Rodstreet Trading (Private) Limited, having resigned from its Board on 3 November 2011 when he sold his shareholding in the company.

He further stated that the Bankers Acceptance (BA), which forms the main issue in these proceedings, was issued entirely and signed by his two co-directors, Mr Herbert Rinashe and Phillip Jonasi, without his knowledge, and that, to the best of his knowledge, no Board resolution was ever made in his presence to issue the BA.

The court a quo found the appellant personally liable for the amount owed to the respondent by Rodstreet Trading (Private) Limited, holding that the directors of Rodstreet, including the appellant, had acted recklessly, negligently, if not fraudulently, in drawing up the Bankers Acceptance (BA) and accepting money, despite their knowledge of the company's precarious financial position.

Aggrieved by the court a quo's decision, the appellant appealed to this court.

He filed a 'Notice of Appeal' against which the respondent raised preliminary issues. The respondent filed a notice of objection in terms of Rule 41 of the Supreme Court Rules, RGN 380 of 1964, objecting to the appellant's Notice of Appeal on the basis that it was fatally defective.

On the date of hearing, we decided that the parties address us on the preliminary issues raised by the respondent as well as on the merits of the matter.

The Preliminary Issues

Counsel for the respondent contended, that, the document which was filed by the appellant, as its Notice of Appeal, does not comply with the Rules of this Court, particularly Rule 29(1)(a), (d) and (e), and Rule 32(1).

Rule 29 of the Supreme Court Rules provides as follows;

“29. Entry of Appeal

(1) Every civil appeal shall be instituted in the form of a notice of appeal signed by the appellant or his legal representative, which shall state —

(a) The date on which, and the court by which, the judgment appealed against was given;

(b) If leave to appeal was granted, the date of such grant;

(c) Whether the whole or part only of the judgment is appealed against;

(d) The grounds of appeal in accordance with the provisions of Rule 32;

(e) The exact nature of the relief which is sought;

(f) The address for service of the appellant or his attorney.”…,.

It is clear that Rule 29(1)(a) to (f) of the Supreme Court Rules provides the mandatory attributes of a compliant Notice of Appeal. A diligent legal practitioner is expected to use it as a check list in formulating a compliant Notice of Appeal. It clearly and succinctly lays out what must be stated in a Notice of Appeal.

The use of the words “which shall state” signifies the mandatory nature of Rule 29(1) of the Supreme Court Rules. It means if what the Rule says must be stated is not stated, the Notice of Appeal will be fatally defective.

In Freezewell Refrigeration Services (Private) Limited v Bard Real Estate (Private) Limited SC61-03, this Court, in explaining the effect of the mandatory provisions of Rule 29(1) of the Supreme Court Rules, quoted the case of Talbert v Yeoman Products (Private) Limited SC111-99 where MUCHECHETERE JA held, that, a Notice of Appeal which does not comply with the provisions of Rule 29(1) of the Supreme Court Rules was null and void.

Relying on the mandatory nature of Rule 29(1)(a)(d) and (e) and Rule 32(1) of the Supreme Court Rules, referred to above, counsel for the respondent submitted, that, the appellant's Notice of Appeal was fatally defective in three respects:

Counsel for the respondent submitted, that, the preamble incorrectly stated the court which handed down the judgment appealed against. The preamble reads;

“TAKE NOTICE THAT the appellant hereby appeals against the whole judgment by the Honourable Mr Justice TAGU of the High Court of Harare in Case Number HC4556/12 which was handed down on 22 June 2016.”…,.

He submitted, that, the appellant purports to appeal against the judgment of TAGU J of the High Court Harare. TAGU J is a judge and not a court. Rule 29(1)(a) of the Supreme Court Rules requires the appellant to state, in his Notice of Appeal, the court by which the judgment appealed against was given. Therefore, the appellant ought to have stated that he was appealing against the judgment of the High Court of Zimbabwe.

Counsel for the appellant submitted, that, Rule 29(1)(a) of the Supreme Court Rules requires an appellant to state the court whose judgment is appealed against. He submitted that the appellant stated that he was appealing against the judgment by TAGU J of the High Court. He submitted, that, in spite of the mentioning of the judge, the High Court was identified as the court against whose judgment the appeal was noted.

There is a distinction between a 'court' and a 'judge'.

Section 43(1) of the High Court Act [Chapter 7.06] provides as follows:

“(1) Subject to this section, an appeal in any civil case shall lie to the Supreme Court from any judgment of the High Court, whether in the exercise of its original or its appellate jurisdiction.”

It is therefore clear, that, an appeal from the High Court should be against a judgment of the High Court.

Order 1 Rule 3 of the High Court Rules 1971 defines the words 'court' and 'judge' as follows:

“'court' means the general division of the High Court;
'judge' means a judge of the court, sitting otherwise than in open court;”

The word 'judge' only applies when a judge is not sitting in open court. It only applies to a judge sitting in chambers.

Rule 29(1)(a) of the Supreme Court Rules requires an applicant to state “the date on which, and the court by which, the judgment appealed against was given. It specifies the court - not the judge.

Rule 29(1) of the Supreme Court Rules also specifies the format in which the appeal should be noted. It states:

“Every civil appeal shall be instituted in the form of a notice of appeal signed by the appellant or his legal representative, which shall state -
(a)…,.”

It is therefore mandatory in respect of the format and what must be stated.

Practice Direction No.1 of 2017, though issued after the hearing of this matter, requires an appellant to state the court against whose judgment the appeal is noted. It is informed by section 43(1) of the High Court Act, and the definitions of 'court' and 'judge' by the High Court Rules.

I therefore agree with counsel for the respondent, that, the appellant's Notice of Appeal does not comply with Rule 29(1)(a) of the Supreme Court Rules.

Counsel for the respondent also submitted, that, the relief sought by the appellant is fatally defective because the nature of the relief sought is not exact. It reads as follows:

“WHEREFORE the Appellant prays that the judgment of the court a quo be set aside and substituted with the following:

'(a) The appeal be and is hereby allowed with costs.

(b) The judgment of the court a quo is set aside and substituted with the following;

The application be and is hereby dismissed with costs on an attorney and client scale.'”

He submitted that the relief sought is fatally defective for two reasons:

Rule 29(1)(e) of the Supreme Court Rules is mandatory. It requires the appellant or his legal practitioner to state the 'exact nature of the relief sought'. It follows therefore, that, the exact nature of the relief sought must be stated to inform the court about the nature of the order sought. The appellant must not leave it to the court to think for him and draft the order for him.

Counsel for the respondent submitted, that, the nature of the substituting order sought is not exact because the court a quo cannot grant parts (a) and (b) of the relief sought, which respectively pray that the appeal be allowed and the judgment of the court a quo be set aside and be substituted.

The case before the court a quo was not an appeal but an application, therefore, the appellant ought to have prayed, in paragraph (a) of his relief sought, that the application a quo be granted. With regards paragraph (b), it goes without saying that the court a quo cannot set aside its own judgment.

The exact nature of the relief sought referred to in Rule 29(1)(e) of the Supreme Court Rules refers to the type or characteristics of the relief sought. This means the relief sought must be of the type relevant to the dispute between the parties.

Therefore, the nature of the relief sought was wrongly framed and is incompetent as it refers to allowing an appeal and setting aside of an order, remedies which could not have been granted by the court a quo in a court application.

The nature of the relief sought in substituted orders (a) and (b) does not, therefore, comply with the requirements of Rule 29(1)(e) of the Supreme Court Rules.

Counsel for the appellant conceded, that, the appellant's Notice of Appeal does not comply with Rule 29(1)(e) of the Supreme Court Rules. He however submitted that the defective prayer could be amended.

I do not agree.

A fatally defective prayer, which does not state the exact nature of the relief sought, cannot be amended. In Dabengwa & Anor v ZEC & Others SC32-16, this Court held that:

“The Rule (29) is mandatory in its terms and has been construed as such in numerous decisions of this Court. The principle emanating from these authorities is that a document which fails to comply with the requirements of the Rule is fatally defective and cannot be amended.”

In Matanhire v BP Shell Marketing SC113-04 this Court refused to amend a Notice of Appeal which was fatally defective. At page 1 of the cyclostyled judgment, MALABA JA…, highlighting the importance of complying with the Rules of Court said:

“It is not usual to write a judgment on a matter that has been struck off the roll: see S v Ncube 1990 (2) ZLR 303 (S). This judgment has been written for purposes of drawing the attention of legal practitioners to the fact, that, all the matters required by the Rules of Court to be stated in a valid Notice of Appeal are of equal importance so that failure to state one of them renders the Notice of Appeal invalid.”...,.

The authorities clearly state, that, Rule 29(1)(a) to (f) of the Supreme Court Rules is mandatory and must be complied with.

A Notice of Appeal which does not comply with this Rule is fatally defective and cannot be amended as there will be nothing to amend.

A nullity cannot be amended.

Counsel for the respondent further submitted, that, the appellant's grounds of appeal are not concise and are repetitive. They therefore do not comply with the provisions of Rule 32(1) of the Supreme Court Rules which require that grounds of appeal “be set forth concisely”.

Rule 32(1) of the Supreme Court Rules provides for grounds of appeal as follows:

“(1) The grounds of appeal shall be set forth concisely and in separate numbered paragraphs.

(2)…,.

(3) Application to amend the grounds of appeal may be made before the hearing of the appeal to a judge or at the hearing of the appeal.”…,.

It is apparent from a close reading of Rule 32(1) of the Supreme Court Rules, that, it is mandatory. Grounds of appeal must therefore comply with it.

Counsel for the appellant agreed that some of the grounds of appeal are not concise and are repetitive. He suggested that they could be amended.

Rule 32(3) of the Supreme Court Rules provides for the amendment of grounds of appeal by way of a chamber application or at the hearing of an appeal.

Counsel for the appellant did not say which grounds of appeal should be amended, and how they could be amended.

The court cannot amend un-identified grounds of appeal. It is the duty of the appellant, or his counsel, to apply for the amendment of specified grounds of appeal suggesting how they should be amended.

It is however common cause, that, the Notice of Appeal in this case contains some valid grounds of appeal. The court could have considered them if the Notice of Appeal was not fatally defective in other respects.

A clear and concise ground of appeal in an otherwise valid Notice of Appeal cannot be disregarded because there are other defective grounds of appeal in the same Notice of Appeal. It should be considered while the defective grounds of appeal should be struck out.

It is clear that the Notice of Appeal in this case does not comply with Rule 29(1(a)(e) and Rule 32(1) of the Supreme Court Rules. It is fatally defective. It is therefore not necessary to deal with the merits of a fatally defective Notice of Appeal.

In the result, the matter is struck off the roll with costs.

SC64-23 : DOVES FUNERAL ASSURANCE (PVT) LTD vs HARARE MOTORWAY (PVT) LTD and AFRICAN BANKING CORPORATION LTD and BLUE STAR LOGISTICS PL and SHERIFF OF ZIMBABWE and REGISTRAR OF DEEDS
Ruled By: MAKONI JA

This is an opposed chamber application for condonation for non-compliance with rules and reinstatement of an appeal in terms of Rule 70 of the Supreme Court Rules 2018 (the Rules).After hearing submissions from counsel, I dismissed the application, with costs on a legal practitioner-client scale, and indicated that reasons will ...

This is an opposed chamber application for condonation for non-compliance with rules and reinstatement of an appeal in terms of Rule 70 of the Supreme Court Rules 2018 (the Rules).

After hearing submissions from counsel, I dismissed the application, with costs on a legal practitioner-client scale, and indicated that reasons will be furnished in due course. These are they.

BACKGROUND FACTS

The facts relevant for the determination of this matter are that the applicant, after being aggrieved by the decision of the High Court (the court a quo), duly filed a notice of appeal to this Court on 19 October 2022 under case number SC529/22.

In its notice of appeal, the applicant tendered security for the respondents costs of appeal 'in an amount agreed between the parties, failing such agreement, in an amount determined by the registrar'.

The tender was made as a requirement under Rule 55(2) of the Supreme Court Rules.

Pursuant to the tender, and on 26 October 2022, the applicant's legal practitioner wrote to the respective legal practitioners of the respondents seeking an indication as to the amount of security they required respectively. The respondents were given seven days within which to respond.

The respondents legal practitioners responded to the letter.

Messrs Gill Godlonton and Gerrans demanded security in the sum of USD10,000; Messrs Danziger and Partners and Kantor and Immerman demanded security in the sum of ZWL5,500,000.

On 16 November 2022, the applicant's legal practitioner wrote to the respondents legal practitioners, in identical terms, proposing security for costs in the sum of ZWL3,000,000 in respect of each of the respondents.

The respondents legal practitioners rejected the applicant's proposed amount in respect of each of them. However, after further discussions, all parties agreed that the applicant was to pay ZWL5,500,000 in respect of security of costs for each respondent.

The security for costs were eventually paid on 9 November and 1 December 2022, and, by then, the payment was out of time as it was due on 19 October 2022.

The appeal, in SC529/22, was heard in court on 15 May 2022.

The respondents objected, that, the appeal was deemed to have been abandoned and dismissed in terms of Rule 55(6) of the Supreme Court Rules on account of the applicant's failure to pay security for costs within the prescribed time frame of one calendar month.

The objection was upheld, and, consequently, the appeal was struck off the roll resulting in the filing of the present application.

The applicant seeks the following relief;

“The application be and is hereby granted.

1. Applicant's appeal in SC529/22 is reinstated and the registrar of this Court is ordered to re-enrol the matter for hearing.

2. First, second, and third respondents shall pay the costs jointly and severally.”

At the hearing of the application, the respondents took several preliminary points in limine.

Counsel for the first respondent submitted, that, the application was incompetent as the applicant had not only failed, but refused, to address the court on the prospects of success of the appeal. He contended, that, this being an application for condonation and reinstatement of an appeal, the applicant ought to have satisfied the court that it has good prospects of success on appeal in order to establish that it had shown good cause for the application to be granted.

The second point taken is that there is no proper explanation tendered for failure to comply with the Rules. Counsel for the first respondent submitted, that, instead of the applicant tendering an explanation as required, it, instead, blames the court. It states that the application was “struck off in error”. It asks a judge sitting in chambers to review a decision made by a three-member panel.

Counsel for the first respondent prayed that the points in limine be upheld and the application be dismissed with costs on a higher scale.

Counsel for the second respondent associated himself with the submissions made by counsel for the first respondent. He however added, that, the applicant further deliberately continues to flout the rules by failing to attach the judgment under challenge and the Notice of Appeal to enable the judge seized with matter to assess prospects of success.

He also prayed for dismissal of the application with costs on a punitive scale.

Counsel for the third respondent also associated himself with the submissions made by counsel for the first respondent save to add, that, the relief sought was incompetent in that the applicant is seeking condonation, but, there is no such prayer in the draft order.

He also sought the same prayer as the other respondents.

Counsel for the applicant countered, that, the points taken in limine relate to the merits of the matter and cannot be dealt with in limine.

Regarding the issue of prospects of success, he maintained the stance adopted by the applicant, in the founding affidavit, that, it is not necessary to address the question of prospects of success.

Relying on the authority of Mhungu v Mtindi 1986 (2) ZLR 171 (SC) he submitted, that, I could have regard to the record in SC529/22, which is the main appeal, to assess whether there are prospects of success on appeal. He opined, that, examining prospects of success in the present application is tantamount to being asked to determine the outcome of the appeal. He concluded, on this point, that, the applicant would not appeal if it did not have prospects of success.

Regarding the question of the draft order, he conceded, that, it could have been better phrased. He sought that it be amended to make it clearer.

THE LAW

The appeal in SC529/22 was struck off the roll for the reason, that, it had been deemed abandoned and dismissed. The applicant has approached this Court with an application for reinstatement in terms of Rule 70 of the Supreme Court Rules.

Rule 70 of the Supreme Court Rules provides as follows:

“(1) Where an appeal is -

(a) Deemed to have lapsed; or

(b) Regarded as abandoned; or

(c) Deemed to have been dismissed in terms of any provision of these rules; the registrar shall notify the parties accordingly.

(2) The appellant may, within 15 days of receiving any notification by the registrar in terms of subrule (1), apply for the reinstatement of the appeal on good cause.”…,.

Good and sufficient cause, in the context of an application for reinstatement, has been defined by this court in a number of authorities.

Dealing with an application for reinstatement of an appeal in Tel-One (Pvt) Ltd v Communication and Allied Services Workers Union of Zimbabwe SC01-06, this Court stated the following;

“Essentially, in an application of this nature, the applicant must satisfy the court, firstly, that he has a reasonable explanation for the delay in question, and, secondly, that his prospects of success on appeal are good.”

In the case of Bessie Maheya v Independent Africa Church SC58-07…, MALABA JA…, stated the following as the requirements for an application for reinstatement:

“The question for determination is whether the applicant has shown a cause for the re-instatement of the appeal.

In considering applications for condonation of non-compliance with its Rules, the Court has a discretion, which it has to exercise judicially, in the sense that, it has to consider all the facts and apply established principles, bearing in mind that it has to do justice.

Some of the relevant factors that may be considered and weighed one against the other are: the degree of non-compliance, the explanation therefore, the prospects of success on appeal, the importance of the case, the respondent's interests in the finality of the judgment, the convenience to the Court, and the avoidance of unnecessary delays in the administration of justice.”

See also FBC Bank Ltd v Chiwanza SC31-17.

In Conju Incorporated (Pvt) Ltd v Registrar of the Supreme Court SC28-20…, the court, in explaining the import of Rule 70 of the Supreme Court Rules, reiterated that:

“Rule 70(2) allows an appellant whose appeal is deemed to have lapsed or is regarded as abandoned in terms of subrule (1) of Rule 70 to apply for its reinstatement within fifteen days of receiving notification from the registrar. The legal principle governing applications for reinstatement of appeals is now settled in this jurisdiction. It is, that, in an application for the reinstatement of an appeal that was regarded as abandoned and deemed to have lapsed, the applicant must show good cause for the default.

In doing so, the applicant is required to satisfy the court, firstly, that he or she has a reasonable explanation for the delay in question, and, secondly, that his or her prospects of success on appeal are good.”…,.

In my view, and basing on the aforementioned authorities, it is now trite that an applicant, in an application for reinstatement, ought to establish, inter alia, that it has good prospects of success on appeal as it is one of the elements that this Court considers in deciding whether or not the applicant has shown good cause.

As noted above, the applicant also seeks condonation for failure to comply with the Rules.

The law regarding condonation for non-compliance with the Rules is a well-trodden path in our jurisdiction. If authority is required for this settled position, for the benefit of the applicant, see Forestry Commission v Moyo 1997 (1) ZLR 254 (S); Kodzwa v Secretary for Health & Anor 1999 (1) ZLR 313 (S); Machaya v Munyambi SC04-05; Ester Mzite v Damafalls Investments (Pvt) Ltd SC21-18.

The factors to be considered in such an application are as follows:

(a) That, the delay involved was not inordinate, having regard to the circumstances of the case;

(b) That, there is a reasonable explanation for the delay;

(c) That, the prospects of success, should the application be granted, are good; and

(d) The possible prejudice to the other party should the application be granted.

Reasonable prospects of success on appeal features as one of the requirements for the grant of an application for condonation. It is an important consideration which is relevant to the granting of condonation - although not necessarily decisive.

ANALYSIS

The applicant, in paragraph 15 of its founding affidavit, avers that;

“Furthermore, it is respectively submitted that applicant has shown good cause for reinstatement which is the only requirement in the circumstances. For good reason, the question of a showing of reasonable prospects of success is not contemplated under rule 70(2) where rule 55(6) is applicable (sic). A fortiori the position is the same where a matter is struck off the roll by the court. To the extent that condonation is required it is submitted that a bona fide and reasonable explanation has been given. It is all the rules required. It is submitted that the requirement has been met in this instance.”…,.

It is this paragraph that triggered the respondents to take, as a point in limine, the question of the failure to address prospects of success rather than deal with it on the merits.

I entirely agree with the position taken by the respondents, that, the present application is incompetent.

The applicant flatly refuses to address the issue of prospects of success in its founding affidavit. It boldly asserts, that, the question of reasonable prospects of success 'is not contemplated under Rule 70(2) where Rule 55(6) is applicable.'

This is a novel submission to this Court. The assertion is made in the face of a plethora of authorities stating otherwise.

In oral submissions before me, counsel for the applicant made the astounding contention, that, if this court was to make a determination on the issue of prospects of success in this application, it will be pre-empting the decision of the three-member panel that will finally deal with the main appeal.

To me, this submission demonstrates a clear mis-apprehension of the concept of prospects of success.

Prospects of success refer to the question of whether a court of appeal could reasonably arrive at a conclusion different from that of the court or tribunal of first instance.

In Essop v S [2016] ZASCA 114, the court, in defining prospects of success, held that;

“What the test for reasonable prospects of success postulates is a dispassionate decision, based on the facts and the law, that, a court of appeal could reasonably arrive at a conclusion different to that of the trial court. In order to succeed, therefore, the appellant must convince this court, on proper grounds, that, he has prospects of success on appeal and that those prospects are not remote, but, have a realistic chance of succeeding. More is required to be established than that there is a mere possibility of success, that the case is arguable on appeal, or that the case cannot be categorised as hopeless. There must, in other words, be a sound, rational basis for the conclusion that there are prospects of success on appeal.”

After initially persisting with the submission, that, it was not necessary to address prospects of success, counsel for the applicant later on capitulated, and, based on the authority of Mhungu v Mtindi 1986 (2) ZLR 171 (SC), contended that for the prospects of success on appeal, I should have regard to the main appeal record.

The judgment appealed against and the Notice of Appeal are contained therein.

He expects me to sift through the main appeal file and extract what I may consider to be the prospects of success in the appeal.

Firstly, there is no such invitation by the applicant, in the founding affidavit, for me to have reference to that file.

Secondly, there is no such obligation on a judge dealing with such an application.

In John Chikura & Anor v Al Shams Global BVI Limited SC17-17 the following was stated in respect of prolix grounds of appeal;

“It is not for the court to sift through numerous grounds of appeal in search of a possible valid ground; or to page through several pages of 'grounds of appeal' in order to determine the real issues for determination by the court. The real issues for determination should be immediately ascertainable on perusal of the grounds of appeal.”

In my view, the same sentiments apply with equal force to the applicant's submission that I should go through the record of appeal to determine whether there are prospects of success on appeal. These should, however, be immediately ascertainable from the applicant's founding affidavit.

Thirdly, this flies in the face of the authorities referred to above.

The same reasoning applies to the applicant's failure to address prospects of success in respect of the issue of condonation. It, again, makes the baseless averment that shown a bona fide and reasonable explanation “it is all the rules required”.

It is actually worrying that the applicant is represented by legal practitioners, who, despite all the countless authorities developed over the years on this issue, still believe that there is only one requirement to be satisfied in an application of this nature.

In addressing the requirement of a reasonable explanation for the delay, the applicant, in paragraph 13 of its founding affidavit, states the following;

“I aver, therefore, that the rule had not been infringed at all. Respondents, being fully aware of the above, ought not to have joined hands and disingenuously raise the unnecessary objection that exercised the Honourable Court's mind ultimately leading to an order striking off the appeal and necessitating the present application on the basis that the rules of the court were infringed.”

Further down, in paragraph 16, the applicant averred that:

“In the circumstances, it is prayed that the Honourable Judge be pleased to grant the application so that the Registrar may re-enrol the matter on the bases that;

16.1 The matter was in fact struck off in error….,.”

One can understand the position taken by the respondents, that, the applicant does not tender a reasonable explanation for its failure to comply with the Rules.

Instead, it blames the respondents for taking the objection and the three-member Bench for upholding the objection and striking the matter off the roll.

This is despite the fact, that, the consequences of failure to pay security for costs timeously was decisively dealt with in Watermount Estates (Private) Limited v Registrar of the Supreme Court & Ors SC135-21.

In any event, the decision of the Supreme Court is correct because it is final: see Lytton Investments (Private) Limited v Standard Chartered Bank Zimbabwe Limited & Anor CC11-18.

The applicant ought to have set out that it has good prospects of success, in relation to both condonation and the reinstatement of appeal, in its founding affidavit. It is a common principle that an application stands or falls on the averments made in the founding affidavit.

This Court, in Unki Mines (Pvt) Ltd v Dohne Construction (Pvt) Ltd SC18-23 re-stated the position thus:

“It is trite law, that, an application stands or falls on the averments made in the founding affidavit. According to Herbstein & Van Winsen, the Civil Practice of the Superior Courts in South Africa, 3rd ed p80 the learned authors state as follows:

'The general rule, however, which has been laid down repeatedly, is that an applicant must stand or fall by his founding affidavit and the facts alleged therein, and that although sometimes it is permissible to supplement the allegations contained in that affidavit, still, the main foundation of the application is the allegation of facts stated therein, because, these are the facts which the respondent is called upon either to affirm or deny. If the applicant merely sets out a skeleton case in his supporting affidavits, any fortifying paragraphs in his replying affidavits will be struck out.'”

Whether or not an applicant has shown good cause for the granting of an application of this nature is in the discretion of the court.

However, for the court to be able to exercise its discretion judiciously, it places reliance on whether or not the applicant has tendered a reasonable explanation for the non-compliance and has also established the prospects of success thereof. The applicant, having refused to do so, it is my view that the respondents preliminary objections have merit and ought to be upheld.

The application, falling short of the requirements of an application such as the present one, ought to be dismissed. Allowing the matter to proceed to the merits would be a waste of valuable judicial resources which should be directed to worthy causes.

Regarding costs, all the respondents applied for costs on a punitive scale. They are warranted in this matter.

The defects in the application were pointed out to the applicant in the notices of opposition. The applicant took a deliberate decision not to seriously consider the points in limine raised by the respondents and take remedial action. It persisted, in oral submissions, to defend the indefensible, thereby unnecessarily putting the respondents out of pocket.

It is for the above reasons that I upheld the points in limine and dismissed the application with costs on a higher scale.

SC69-23 : ZESA HOLDINGS (PRIVATE) LIMITED vs CLOVEGATE ELEVATOR COMPANY (PRIVATE) LIMITED and JUSTICE L.G. SMITH N.O.
Ruled By: MATHONSI JA, KUDYA JA and MWAYERA JA

In our law, jurisdiction denotes the power or competence of a court to hear and determine an issue brought before it. HERBSTEIN and Van WINSEN: The Civil Practice of the High Courts of South Africa, 5th ed…, opine that:“A court of law will not entertain legal proceedings unless it is ...

SC93-23 : AUGUR INVESTMENTS and DOOREST PROPERTIES vs FAIRCLOT INVESTMENT and THE SHERIFF and THE REGISTRAR OF DEEDS
Ruled By: BHUNU JA, CHIWESHE JA and MWAYERA JA

This is an appeal against the whole judgment of the High Court (the court a quo) sitting at Harare, handed down on 9 May 2023, dismissing the first appellant's application for a declaration under case HC5989/19 and granting the first respondent's application to set aside the second respondent's decision to uplift judicial attachment on Stand 654 Pomona Township, under case HC10315/19.

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

The Facts

The first respondent obtained an arbitral award against the first appellant in the sum of US$4,800,000 excluding interest. The award was granted on 19 March 2015.

The first appellant appealed the arbitral award, which appeal was dismissed on 11 February 2019.

The award was ultimately registered as an order of the court a quo on 26 June 2019.

A writ of execution was issued by the first respondent leading to the attachment of Stand No.654 Pomona Township held under Deed of Grant No.2884/10 (“the property”).

Thereafter, the first appellant paid the sum of RTGS $4,800,000 as the judgment debt and RTGS $1,078,040=21 as interest thereon.

Following these payments, the second respondent advised the judgment creditors (ie the first respondent) that the debt had been discharged and he was thus proceeding to remove the property from judicial attachment.

He did so through letters to the first respondent dated 21 and 25 November 2019, respectively.

The first respondent protested this move, arguing that the property should not be removed from attachment as the judgment debt had not been extinguished because the amount should be paid at the prevailing inter-bank rate between the US$ and the RTGS, and not at the rate of 1US$ to 1RTGS$.

The second respondent did not heed that advice.

It was then that the first respondent approached the court a quo, under HC10315/19, for an order setting aside the second respondent's decision to remove the property from attachment. It also sought consequential relief.

At the close of submissions, the court a quo found in favour of the first respondent who had sued, under HC10315/19, for the setting aside of the second respondent's decision to remove the property from attachment.

Under HC5989/19 the court a quo dismissed the first appellant's application for a declaration that the judgment debt be extinguished at the rate of 1:1 between the US$ and the RTGS$.

For convenience, the two applications were heard together.

The appellants appeal the decisions of the court a quo on the following grounds:

“GROUNDS OF APPEAL

1. The court a quo erred in failing to hold that the Arbitral Award dated 19 August 2015, granted in favour of the first respondent, constituted a liability affected by the provisions of section 4(1)(d) of Statutory Instrument 33 of 2019 (subsequently section 22 of the Finance Act No.2 of 2019).

2. Concomitantly, the court a quo also erred in determining that the Arbitral Award issued on the 19th of March 2015 only became effectual upon its registration on the 26th of June 2019. At law, an arbitral award constitutes a binding obligation as at the date of its grant and not its registration.

3. With respect, the court a quo also grossly misdirected itself in holding that the first appellant's RTGS payments did not fully discharge its indebtedness to the first respondent in respect of the registered arbitral award dated 19th March 2015. Such payments fully discharged what was lawfully due.

4. The court a quo also erred in determining that the second respondent had acted unlawfully in uplifting the judicial attachment on Stand 654 Pomona held under Deed of Grant 2884/10. The voiding of such uplifting was anomalous at law given that the first appellant had discharged its indebtedness, thereby obviating the continuation of execution.

5. Additionally, the court a quo erred in cancelling 'any and all' transfers effected on Stand 654 Pomona Township in circumstances where the second appellant had received title by operation of an extant Deed of Settlement and court order handed down by the court a quo under HC4528/19.

6. The court a quo also erred in ordering the advertisement and sale in execution of Stand 652 Pomona Township held under Deed of Grant No.2884/10 after the cancellation of all subsequent transfers. Such determination is anomalous, in that, after the aforesaid cancellation of subsequent transfers, the land reverts to being State land, incapable of being sold in execution.”

The appellants seek the following relief:

“1. That, the instant appeal succeeds with costs.

2. That, the order of the court a quo be set aside and be substituted with:

Case No. HC5989/19

(i) The application for a declaration order be and is hereby granted.

(ii) The liability arising from the Arbitral Award dated 19th March 2015, in favour of the first respondent, be and is hereby declared executable in RTGS dollars at the rate of one to one to the United States dollars in accordance with section 4(1)(d) of Statutory Instrument 22 of 2019.

(iii) The first respondent to pay costs of suit.

Case No. HC10315/19

(i) The application is dismissed with costs.”

The grounds of appeal raise only one issue, that is, whether the arbitral award in issue, is subject to the provisions of SI 33 of 2019 in terms of which all assets and obligations denominated in United States dollars immediately before the effective date of 22 February 2019 shall be redeemed at the rate of 1US$ to 1RTGS$.

If that question is answered in the affirmative, then, the appeal should succeed. If not, then, the appeal stands to be dismissed.

PRELIMINARY OBJECTIONS

The first respondent raised a number of preliminary objections. The objections have no merit.

(i)...,.

(ii)...,.

(iii)...,.

(iv)...,.

(v)...,.

(vi) Sixthly, it is averred that the second appellant did not pay security for costs. In the same breath, it is conceded, that, the first appellant paid such costs on behalf of the second appellant.

Once that concession is made, the preliminary issue falls by the wayside for it matters not who actually deposits the required sums. It could be the party concerned, a fellow litigant, a friend, or even a well-wisher. Such costs would have been paid.

SC119-23 : QUICKLINK INVESTMENTS (PRIVATE) LIMITED vs CMAL (PRIVATE) LIMITED and THE SHERIFF OF ZIMBABWE
Ruled By: BHUNU JA, CHIWESHE JA and MUSAKWA JA

This is an appeal against the whole judgment of the High Court (the court a quo) wherein it granted a spoliation order sought by the first respondent against the appellant.FACTSThe appellant and the first respondent are companies incorporated in terms of the laws of Zimbabwe. The first respondent is the ...

This is an appeal against the whole judgment of the High Court (the court a quo) wherein it granted a spoliation order sought by the first respondent against the appellant.

FACTS

The appellant and the first respondent are companies incorporated in terms of the laws of Zimbabwe. The first respondent is the owner of a certain piece of land, being two thirds shares of the Remaining extent of Teviotdale (hereinafter referred to as 'part of the farm') held under Deed of Transfer 8935/90. The appellant is the registered holder of a mining block consisting of ten gold reef claims named Forest K of Forest View (hereinafter referred to as 'Forest K claims') which block is situated on the respondent's farm.

The first respondent filed an urgent chamber application for a spoliation order in which it sought that the appellant and one Kumbirai Kangai be ordered to return peaceful, quiet, undisturbed possession, occupation, and use of two thirds shares of the remaining extent of Teviotdale.

In the application, the first respondent averred that sometime in April 2021 the appellant invaded part of its farm.

In resisting the application, Kumbirai Kangai deposed to an opposing affidavit in which he claimed to be the director of the appellant. He further averred that the appellant was the registered holder of ten gold reef claims situated on the first respondent's farm.

A provisional order was granted, only against Kumbirai Kangai, on 21 April 2021, and, subsequently confirmed on 26 January 2022 under case number HC1604/21.

It is not clear how the order was only granted against Kumbirai Kangai.

On 9 February 2022, the second respondent executed the order granted under HC1604/21 by serving a notice of eviction on Kumbirai Kangai's employee, one Tongesai Maregere.

On 14 February 2022, the second respondent evicted Kumbirai Kangai and all those claiming occupation through him and restored possession to the first respondent.

On 14 February 2022, at around 5:00pm, the first respondent instructed its guards to clear off a squatter camp, which clearance was carried out and the squatter camp was burnt down. On 15 February 2022, the first respondent further deployed a bulldozer and grader to restore the degraded land by filling holes that had been dug and knocking off stone and mortar structures that had been erected.

At around 3:00pm, the bulldozer operator was informed, by the appellant's employees, that he could not enter the site as they were already fencing the site off.

The first respondent engaged legal counsel regarding the spoliation by the appellant.

It turned out, that, on 14 February 2022, an application for an injunction against the first respondent had been filed by the appellant with the Provincial Mining Director for Mashonaland Central Province and served on the first respondent's legal practitioners.

The first respondent further averred, that, the appellant failed to await the outcome of the application for injunction and resorted to self-help and despoiled it of its property.

The first respondent thus prayed that it be restored occupation and use of part of the farm and that the appellant be evicted therefrom.

The appellant and Kumbirai Kangai opposed the first respondent's application.

The first respondent, however, amended its draft order at the hearing and deleted the name of Kumbirai Kangai. As such, only the appellant opposed the application.

In its opposing affidavit, the appellant raised a preliminary point to the effect that the matter was not urgent as the first respondent had been aware of the mining claims since 2013. Reference was made to its opposition to the application under HC1604/21, stating that it had claims over the same land belonging to the first respondent.

The appellant further averred, that, it possessed a certificate of registration of a mine situated on part of the farm and that the first respondent had not done anything to challenge the appellant's possession of part of the farm.

It also averred, that, the eviction order granted under HC1604/21 was made against Kumbirai Kangai and not against it. The appellant thus averred that it was not evicted from the property as the first respondent did not institute any action for its eviction.

On the merits, the appellant averred that the first respondent was seeking to evict it through the back door, and by way of an urgent chamber application.

The appellant further averred, that, the first respondent was never in peaceful, quiet, and undisturbed possession and occupation of part of the farm.

In addition, it contended that it had issued a notice of application for an injunction, in terms of section 354(1) of the Mines and Minerals Act [Chapter 21:05], on the first respondent, on 10 February 2022.

The appellant further averred, that, its certificate of registration of the mining claims was still valid, and, as such, it had a right to carry out mining activities on the farm.

The appellant also averred, that, the provisional order granted in favour of the first respondent had been granted by the consent of the parties in the hope of reaching a settlement.

Further, the appellant contended that it was not before the court when the order evicting Kumbirai Kangai was granted, and, as such, it could not be evicted on the basis of such eviction order as it was a separate legal persona from its director, Kumbirai Kangai.

The appellant maintained, that, its structures and equipment, situated on part of the farm, had not been demolished by the first respondent and that such action showed that the first respondent was never in possession of the piece of land where the appellant carried out its mining activities.

In addition, it contended that the first respondent could not seek to enter the appellant's site to evict it after the second respondent had left.

The appellant thus prayed for the dismissal of the first respondent's application as it averred that the application was simply one of eviction made under the guise of a spoliation application.

DETERMINATION BY THE COURT A QUO

The court a quo found that the matter was urgent. It reasoned that the appellant had not established that it was in occupation of the farm since 2013, whereas, the first respondent had established that it had obtained an extant order under HC1604/21 over the same portion of land and from which the application for spoliation arose.

The court a quo found, that, the first respondent acted expeditiously in seeking the spoliation order as the eviction by the second respondent had been carried out on 14 February 2022 and the appellant had started the process of fencing off the area in dispute on 15 February 2023, prompting the first respondent to seek the spoliation order on 17 February 2023 - three days later.

The court a quo thus dismissed the preliminary point raised by the appellant.

On the merits, the court a quo found that following the execution of the order granted under HC1062/22 the first respondent was left in peaceful and undisturbed possession of that part of the farm.

The court a quo further found, that, when the appellant proceeded to occupy the land, and fenced it, and barred the first respondent from accessing part of the farm, it was forcibly depriving the first respondent of part of the farm.

The court a quo noted that the fact, that, the appellant may have been in occupation of part of the farm and was a holder of a certificate of registration of mining blocks was a different issue altogether as the certificate of registration related to a different farm and not the farm at the centre of the dispute.

The court a quo further noted, that, the appellant's certificate of registration was for a mine called Forest K situated on Forest View and not two thirds share of the remaining extent of Teviotdale.

The court a quo noted, that, having realised that its director, Kumbirai Kangai, had been lawfully evicted, the appellant decided to occupy part of the farm in dispute as the order made under HC1604/21 had not been made against it.

In the result, the court a quo found that the first respondent had established that it was despoiled of part of its farm by the appellant. The court ordered the appellant to restore the first respondent's status quo ante prior to the spoliation and authorized the second respondent to eject, demolish any structures, and raze down fencing erected by the appellant and all those claiming occupation through it and that the appellant pay costs of the application.

Aggrieved by this decision, the appellant noted the present appeal on the following grounds of appeal:

“GROUNDS OF APPEAL

1. The court a quo grossly misdirected itself in finding that the execution of the order under HC1604/21 left 1st respondent in peaceful possession of the disputed mining location, yet, appellant was not a party to that cause and considering that appellant's employees, accommodation, and mining equipment remained on the registered mining location.

2. The court a quo grossly misdirected itself in finding that appellant was not in occupation and possession of the mining location in the face of evidence that it had been in occupation of the disputed land since 2013.

(a) A fortiori, the court a quo erred in finding that the issue of the appellant's occupation of the mining location, pursuant to a certificate of registration, was inconsequential to the spoliation cause.

3. The court a quo erred in affording first respondent final ejectment relief in an urgent spoliation cause in circumstances where such relief was neither justified nor motivated in the first respondent's founding papers.

4. As an alternative to ground number 3 above, and in granting the eviction order, the court a quo erred;

(a) In finding, without rational or legal justification, that appellant's registered mining location was not located within first respondent farm; and

(b) In ordering appellant's eviction without regard to the pending proceedings in terms of section 354(1) of Mines and Minerals Act [Chapter 21:05].

WHEREFORE appellant prays for the following relief;

(i) That the appeal succeeds with costs.

(ii) That the judgment of the court a quo be and is hereby set aside and substituted with following:

'The application be and is hereby dismissed with costs.'”

ISSUE FOR DETERMINATION

One issue arises from the grounds of appeal and submissions made by counsel before this Court. The issue for determination is as follows:

Whether or not the first respondent was in peaceful and undisturbed possession of part of the farm and whether the appellant despoiled the first respondent of such possession.

THE APPELLANT'S SUBMISSIONS ON APPEAL

Counsel for the appellant submitted, that, when the order under HC1604/21 was executed by the second respondent, Kumbirai Kangai and his employees were evicted as evidenced by the Sherriff's return.

Counsel argued that after the eviction, the appellant's employees remained on the first respondent's part of the farm and hence decided to fence off the portion of the farm which they were occupying.

Counsel thus maintained, that, the appellant was already in possession of part of the farm, and, as such, could not have despoiled the first respondent of any peaceful possession which it never had.

Counsel for the appellant also argued, that, the eviction order in HC1604/21 did not relate to the appellant, but to Kumbirai Kangai and others acting through him.

Counsel further argued, that, since the appellant was not a party to the proceedings in HC1604/21, the court a quo erred when it granted the eviction order against it.

He further argued, that, the court a quo failed to establish a link between the appellant and Kumbirai Kangai and that it made an error by making a determination that when eviction was carried out on Kumbirai Kangai, the appellant was also evicted.

With that, counsel maintained that the appellant did not despoil the first respondent of peaceful possession of part of the farm.

As regards the effect of the orders in HC1604/21, counsel submitted that the appellant had no problem with removing the fence it erected as the relief it sought on appeal was that there be co-possession of the farm between it and the first respondent.

Counsel further submitted, that, the demolition of its structures pre-supposes that the rights of the parties have been effectively resolved.

At the end of his submissions counsel, however, conceded that the first respondent had peaceful possession of part of the farm.

FIRST RESPONDENT'S SUBMISSIONS ON APPEAL

Counsel for the first respondent argued, that, the question of whether or not it was in peaceful possession of part of the farm, prior to 14 February 2022, could not be disputed as the appellant had made a concession that the first respondent had possession of part of the farm.

Counsel submitted that the act of erecting a fence by the appellant, on 15 February 2022, amounted to an act of spoliation which warranted an order of eviction as granted by the court a quo.

Counsel argued, that, the issue of joint possession was never pleaded by the appellant, and that, in any event, the appellant ought to have proved before the court a quo, that, there was joint possession between it and the first respondent in respect of part of the farm in dispute but it failed to do so.

Counsel further argued, that, spoliation orders, by their very nature, are final and aimed at restoring the status quo ante, and, as such, the court a quo could not be faulted for ordering that the appellant vacate the property in dispute together with all those claiming occupation through it.

It was also counsel's argument, that, when the second respondent enforced the order granted in HC1604/21 the first respondent was given possession of part of the farm. Counsel maintained, that, by erecting a fence and taking occupation of the land, on 15 February 2021, the appellant despoiled the first respondent of part of the farm.

Counsel thus submitted, that, the judgment of the court a quo was unassailable and prayed that the appeal be dismissed with costs.

ANALYSIS

The first respondent approached the court a quo seeking a spoliation order against the appellant. The court a quo granted the order sought by the first respondent. The court a quo restored possession of part of the farm to the first respondent by ordering the second respondent to demolish structures and raze down the fence erected by the appellant and all those claiming occupation through it from part of the farm.

The question to be determined by this Court relates to whether or not the first respondent was in peaceful possession of part of the farm and was despoiled by the appellant when it fenced part of the farm on 15 February 2021.

The law on spoliation is well settled.

Spoliation is the wrongful deprivation of another's right of possession. The purpose of a spoliation order is to prevent self help. The remedy entitles a wronged party to approach a court of law to obtain an order that he/she/it be returned to the status quo ante.

In Zondiwa Nyamande v Isaac Tamuka & Ors SC445-23…, the court discussed the effect of a mandament van spolie as follows:

“Spoliation proceedings hail from the common law remedy which is meant to discourage members of the public from taking the law into their hands: see Mswelangubo Farm (Pvt) Ltd & Ors v Kershelmar Farms (Pvt) Ltd & Ors SC69-21; Chiwenga v Mubaiwa SC86-20. The remedy encourages members of society to follow due process in obtaining or acquiring any res he believes belongs to him.

The mandament van spolie is therefore a possessory remedy aimed at the restoration of possession where a party is unlawfully deprived of its prior peaceful and undisturbed possession of property.

The facts of each matter determine whether or not spoliation or unlawful disposition has occurred.

It is trite, that, in spoliation proceedings, the lawfulness or otherwise of the possession challenged is not an issue. Spoliation simply requires the restoration of the status quo ante pending the determination of the dispute between the parties: see Augustine Banga & Anor v Solomon Zawe & Ors SC54-14.”

The learned authors SILBERBERG and SCHOEMAN in The Law of Property, second edition…, state the following with regards to this principle:

“…, the applicant in spoliation proceedings need not even allege that he has a ius possidendi: spoliatus ante omnia restituendus est…,. All that the applicant must prove is that he was in peaceful and undisturbed possession at the time of the alleged spoliation and that he was illicitly ousted from such possession….,. It is not sufficient to make out only a prima facie case….,.”

In the celebrated case of Botha & Anor v Barrett 1996 (2) ZLR 73 (S) GUBBAY CJ stated as follows…,.:

“It is clear law, that, in order to obtain a spoliation order, two allegations must be made and proved. These are:

(i) That, the applicant was in peaceful and undisturbed possession of the property; and
(ii) That, the respondent deprived him of the possession forcibly or wrongfully against his consent.”

In Minister of Mines and Mining Development & Others v Grandwell Holdings (Pvt) Ltd SC34-18…, the court held that:

“It has been stated in a number of cases, that, issues of rights are irrelevant in spoliation proceedings. In Yeko v Oana 1973 (4) SA 735 (AD) at 739G it was stated that:

'The fundamental principle of the remedy is that no one is allowed to take the law into his own hands. All that the spoliata has to prove is possession of a kind which warrants the protection accorded by the remedy, and that he was unlawfully ousted.'”

In the case of Chisveto v Minister of Local Government and Town Planning 1984 (1) ZLR 248 (H) the court remarked:

“Lawfulness of possession does not enter into it. The purpose of the mandamus van spolie is to preserve law and order and to discourage persons from taking the law into their own hands. To give effect to these principles, it is necessary for the status quo ante to be restored until such time as a competent court of law assess the relative merits of the claims by each party.”

And, in Streamsleigh Investments (Pvt) Ltd v Autoband (Pvt) Ltd SC43-14…, GOWORA JA…, held as follows:

“It has been stated in numerous authorities, that, before an order for mandament van spolie may be issued, an applicant must establish that he was in peaceful and undisturbed possession, and was deprived illicitly.

In Scoop Industries (Pty) Ltd v Longlaagte Estate & GM Co. Ltd (In Vol Liq) 1948 (1) SA 91 (W) LUCAS AJ said at pp98-99:

'Two factors are requisite to found a claim for an order for restitution on allegation of spoliation. The first is that the applicant was in possession, and, the second that he has been wrongfully deprived of that possession against his wish.

It has been laid down, that, there must be clear proof of possession and illicit deprivation before the order is granted….,. It must be shown that the applicant had free and undisturbed possession….,.'”

See also H J Voster (Pvt) Ltd and Anor v Save Safaris (Pvt) Ltd and Ors SC41-22.

The above authorities are instructive, that, in spoliation proceedings, the determining factor is not the lawfulness or otherwise of the possession but whether the applicant was in peaceful and undisturbed possession, and, that he/she/it was wrongfully deprived of that possession against his/her/its consent.

In case number HC1604/21, the first respondent obtained a provisional order against Kumbirai Kangai and all those claiming occupation of part of the farm belonging to the first respondent. The order granted in HC1604/21 was enforced by the second respondent on 14 February 2021 whereupon Kumbirai Kangai and his employees were evicted from the mining site.

On the same day, the first respondent took occupation of the site and proceeded to clear off Kumbirai Kangai's squatter camp by burning all the temporary grass structures.

It is also common cause, that, on 15 February 2021, when the first respondent's workers sought to fill in holes and knock off stone and mortar structures, they were denied access by the appellant's employees who were already in the process of fencing off the site.

The court finds, that, the facts of the matter clearly show that the appellant despoiled the first respondent of its undisturbed possession of part of the farm. This finding is made on the basis of the following points:

(i) Firstly, the order granted in HC1604/21 gave the first respondent vacant possession of its part of the farm. The eviction of Kumbirai Kangai, and his employees, resulted in the first respondent possessing part of the farm, which possession it held peacefully.

(ii) Secondly, the first respondent proceeded to clear the site as a mark of establishing its peaceful possession of part of the farm.

(iii) Lastly, on 15 February 2021, the appellant, with no consent of the first respondent, entered part of the farm and proceeded to erect a fence over the area upon which the first respondent had been given vacant possession by the court under HC1604/21.

The appellant clearly despoiled the first respondent of its peaceful possession of part of the farm.

Counsel for the appellant conceded at the hearing of this appeal, that, the first respondent was in possession of part of the farm, but, however, sought to make the argument that such possession ought to be viewed as co-possession between the appellant and the first respondent.

This argument was never pleaded by the appellant before the court a quo, as correctly noted by counsel for the first respondent.

The authors A.C. CILLIERS, C. LOOTS and H.C. NEL in The Civil Practice of the High Courts of South Africa (5th ed, J)…, quoting Halsbury's Laws of England, 4th ed (Reissue) Vol 36 (1) para 1, state the following in relation to a pleading:

“The term 'pleading' is used in civil cases to denote a document in which a party to proceedings in a court of first instance is required, by law, to formulate in writing his case in preparation for the hearing.”

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

“The object of pleading is to define the issues; and parties will be kept strictly to their pleas where any departure would cause prejudice or would prevent full enquiry. But, within those limits, the court has a wide discretion. For pleadings are made for the court, not the court for pleadings. And, where a party has had every facility to place all the facts before the trial court, and the investigation into all the circumstances has been as thorough and as patient as in this instance, there is no justification for interference by an appellate tribunal, merely because the pleading of the opponent has not been as explicit as it might have been.”

Pleadings are meant to mark out the parameters of the case sought to be advanced and define the issues between litigants.

In this regard, it is a basic principle that an issue should be clearly stated in pleadings at the initial stages when a matter is filed. This enables the opposing party to answer to such issues and also ensures that the court determines all issues raised before it.

The Court finds merit in the submission by counsel for the first respondent, that, the issue of co-possession was never related to or pleaded by the appellant in its opposing affidavit before the court a quo.

SC110-23 : CHINHOYI MUNICIPALITY vs TENDAI MUSONZA
Ruled By: MAVANGIRA JA, CHIWESHE JA and MUSAKWA JA

It is trite that a point of law can be raised at any stage of the proceedings.

SC120-23 : COLLINS MANGENJE and GODWIN MANGENJE vs ISAAC TICHARWA (executor, estate Kennedy Mangenje) and MANGENJE BROTHERS (PVT) LTD (In liquidation) and CECIL MADONDO (liquidator, Mangenje Brothers)
Ruled By: BHUNU JA, CHIWESHE JA and CHATUKUTA JA

This is an appeal against the whole judgment of the High Court (the court a quo) wherein it confirmed a provisional order against the appellants.THE PARTIESBoth appellants are directors and shareholders of the second respondent, a company under liquidation, duly registered in terms of the laws of Zimbabwe. The first ...

This is an appeal against the whole judgment of the High Court (the court a quo) wherein it confirmed a provisional order against the appellants.

THE PARTIES

Both appellants are directors and shareholders of the second respondent, a company under liquidation, duly registered in terms of the laws of Zimbabwe. The first respondent is the executor dative of the estate of the late Kennedy Mangenje who was a founder and director of the second respondent company. The third respondent is cited in his official capacity as the liquidator of the second respondent, whereas the fourth respondent is the Sheriff of the High Court of Zimbabwe cited in his official capacity as well.

FACTUAL BACKGROUND

The first respondent brought an application in the court a quo for the provisional liquidation of the second respondent in terms of section 5(1)(b)(iii) of the Insolvency Act [Chapter 6:07] (the Act). The section authorizes one or more members of a company to apply for an order to wind up a company in circumstances where it is just and equitable that the company be liquidated.

Section 4(1) of the Insolvency Act clothes the first respondent, in his capacity as executor, with the authority to apply for the liquidation of the second respondent as a debtor of the deceased estate.

The first respondent brought the application in a bid to protect the interests and rights of the deceased estate for the benefit of its beneficiaries. The appellants, in turn, countered by seeking to prove the quantum of damages they suffered, placing reliance on section 8 of the Insolvency Act [Chapter 6:04] (the Act).

The court a quo granted the provisional order on May 2022. A final liquidation order was granted on 28 September 2022 in the following terms:

“IT BE AND IS HEREBY ORDERED THAT:

1. The first respondent, MANGENJE BROTHERS (PRIVATE) LIMITED be and is hereby finally wound up.

2. Subject to section 41 of the Insolvency Act [Chapter 6:07], CECIL MADONDO is hereby appointed as the final liquidator of the first respondent company with the powers set out in Part X of the Insolvency Act.

3. The first respondent shall meet the costs of this application and the liquidation proceedings.”

The court a quo found that the appellants, as interested parties, could not claim for damages in terms of section 8 of the Insolvency Act. Consequently, it ruled that the provision exclusively permits a debtor to claim the relief sought by the appellants. It therefore ruled, that, the express mention of debtor excludes all other parties to claim damages with the exception of a debtor.

The outcome of the confirmation proceedings did not go down well with the appellants, hence this appeal. They accordingly mounted the appeal on the following nine grounds:

GROUNDS OF APPEAL

“1. The court a quo grossly misdirected itself and erred at law in failing to find, as it ought to have done, that the provisional order issued on 4 May 2022 was a legal nullity on account of the application's fatal non-compliance with the mandatory provisions of section 5(4) of the Insolvency Act.

2. The court a quo erred at law and grossly misdirected itself in failing to find, as it ought to have done, that the application before it was fatally defective and could not be granted due to first respondent's failure to attach a statement of affairs of the company as contemplated by section 5(4) of the Insolvency Act.

3. The court a quo erred in finding that the two paged statement of assets and liabilities and statement of liabilities, attached to the application, constituted a statement of affairs of the 2nd respondent as required in terms of section 5(4) of the Insolvency Act.

4. The court a quo grossly misdirected itself when it held, that, the appellant refused to supply the requisite information for the sake of compliance with the statute, when there was never any such request made by the Provisional Liquidator as required in terms of the law, and in circumstances where the 1st respondent was in possession of the company documents.

5. The court a quo erred at law and grossly misdirected itself when it held that appellant did not show that they were prejudiced by the nature of the application mounted by the 1st respondent without complying with Rule 59(1) of the High Court Rules notwithstanding the clear demonstration made that the 2nd respondent was not given any chance to oppose the application before the granting of the provisional order, and that once the provisional order was granted, the appellants lost a right to oppose that application before the granting of the provisional order, and that, once the provisional order was granted, the appellants lost a right to oppose the liquidation on behalf of the 2nd respondent which prejudice could not be cured by costs.

6. The court a quo erred and grossly misdirected itself in finding, that, the minutes of proceedings of the first meeting of the creditors of the 2nd respondent was the Master's report thereby proceeding without the requisite Master's report as required in terms of the law.

7. The court a quo erred in failing to find, that, by leasing out its properties, the 2nd respondent was actually trading and carrying on business as its memorandum of association authorised it to do so.

8. The court a quo erred and grossly misdirected itself in finally winding up the 2nd respondent when there was no just and equitable cause for its winding up, yet, the court never got to relate to the merits of all the other grounds which the appellants had resisted the success of the application, save for the issue concerning first respondent's non-compliance with section 5(4) of the Insolvency Act.

9. The court a quo erred at law and grossly misdirected itself in winding up the company on the basis that it was now defunct when there was never any evidence led or submissions made to the effect that the company was defunct. In so doing, it went on a frolic of its own.”

POINT IN LIMINE

At the commencement of the hearing of the appeal, counsel for the first respondent raised preliminary points of objection in terms of Rule 51 of the Supreme Court Rules 2018 (the Rules).

Her initial objection is to the effect, that, the purported appeal is fatally defective such that there is no appeal before this Court. Counsel for the second respondent pitched his tent with counsel for the first respondent in attacking the validity of the appeal.

The preliminary points raised are opposed by counsel for the appellants.

In taking the point in limine, counsel for the first respondent contended, that, the appeal is fatally defective because:

1. The appeal does not comply with Rule 37(1)(d) and 37(1)(e) of the Supreme Court Rules.

2. The prayer sought is not exact.

3. Grounds of appeal 4, 5 and 8 are fatally defective. The remaining grounds of appeal cannot be related to because the prayer is incurably bad.

Whether the appeal complies with Rules 37(1)(d) and 37(1)(e) of the Supreme Court Rules

Both Rules regulate the mandatory requirements for filing a valid appeal. Rule 37(1)(d) of the Supreme Court Rules provides as follows:

“CIVIL APPEALS FROM THE HIGH COURT

37. Entry of Appeal

(1) Every civil appeal shall be instituted in the form of a notice of appeal signed by the appellant or his or her legal practitioner, which shall state —

(a) The date on which, and the court by which, the judgment appealed against was given;

(b) If leave to appeal or condonation and extension of time to appeal was granted, the date of such grant;

(c) Whether the whole or part only, and, if so, which part of the judgment is appealed against;

(d) The grounds of appeal in accordance with the provisions of Rule 44;

(e) The exact relief sought;

(f) The address for service of the appellant or his or her legal practitioner.

(2) The notice of appeal shall be filed and served on a registrar, a registrar of the High Court and the respondent in accordance with Rule 38.

(3) If the appellant does not serve the notice of appeal in compliance with subrule (2) as read with Rule 38, the appeal shall be regarded as abandoned and shall be deemed to have been dismissed.”

Rule 37(1)(e) of the Supreme Court Rules requires that the relief sought be exact. The relief sought by the appellant is couched in the following terms:

“RELIEF SOUGHT

FURTHER TAKE NOTICE that the appellant seeks the following relief:

1. The present appeal be and is hereby allowed with costs.

2. The judgment of the court a quo be and is hereby set aside and substituted with the following:

'(a) The provisional order granted by the High Court, on 4 May 2022, be and is hereby discharged.

(b) The respondent be and is hereby granted leave to prove the damages suffered as a result of the winding up proceedings in terms of section 8 of the Insolvency Act.

(c) The applicant shall pay the costs of suit on an attorney and client scale.'”

Having considered the objection as to whether the appeal complies with Rule 37(1)(d) and (e) of the Supreme Court Rules, I am of the view that there was substantial compliance, such that, this objection should not detain us any further.

That being the case, I now turn to deal with the real pertinent issues for determination.

SC123-23 : ARISTON MANAGEMENT SERVICES vs ECONET WIRELESS ZIMBABWE LIMITED
Ruled By: GUVAVA JA, MAKONI JA and MATHONSI JA

This is the unanimous judgment of this Court.

This is an appeal against the judgement of the High Court handed down on 20 July 2023 dismissing the appellant's application to set aside an arbitral award and registering that award.

On 2 October 2023, the respondent filed a notice of objection in terms of Rule 51 of the Supreme Court Rules 2018, that, the appellant's founding affidavit filed in support of the application seeking to set aside the arbitral award in the court a quo was defective in that it was undated. The respondent submitted, that, for that reason, there was no valid application before the court a quo.

The respondent urged the court to dismiss the appeal with costs on that basis.

At the commencement of the hearing, counsel for the respondent, relying on the authority of Mandishaya v Sithole HH798-15, which is a judgment of two Judges of the High Court, submitted that the founding affidavit of the appellant, in the court a quo, was invalid as it was un-dated.

Per contra, counsel for the appellant submitted that the Mandishaya v Sithole HH798-15 judgment is wrong. He argued, that, section 8 of the Justices of the Peace and Commissioners of Oath Act [Chapter 7:09], which governs the administering of an oath, does not require the insertion of a date on an affidavit. Counsel further referred to section 2 of SI 183/98, which prohibits a Commissioner of Oaths from administering an oath in a matter in which he or she has an interest.

Counsel for the appellant also referred to the case of Firstel Cellular (Pvt) Ltd v Net One Cellular (Pvt) Ltd 2015 (1) ZLR 94 (S) which dealt with a matter where a wrong stamp had been appended by the Commissioner of Oaths.

In our view, that case is not useful for present purposes.

In Mandishaya v Sithole HH798-15, the court remarked that the deponent of an affidavit must take the oath in the presence of the Commissioner. Equally, the Commissioner must append his or her signature on the statement in the presence of the deponent. The court went on to say, that, the Commissioner must also endorse the date on which the oath was administered and that those acts must occur contemporaneously.

The reason behind that requirement is for the court to be satisfied, that, the oath was administered at a given date, in the presence of both the deponent and the Commissioner. Without the date, the court may never be able to ascertain if the oath was properly administered in accordance with the law.

The court a quo was bound by the Mandishaya v Sithole HH798-15 judgment, being a judgement of the two Judges.

Even though the issue was not argued a quo, it could be raised for the first time on appeal as it is a point of law.

We do not agree with counsel for the appellant, with his argument that the judgment was wrongly decided.

There is merit in the preliminary objection. It ought to be upheld. It renders the application for setting aside the award a nullity....,.

It follows that, absent a valid application a quo, there can be no valid appeal before this Court.

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Appeal re: Findings of Fact or Exercise of Discretion iro Jurisdictional Considerations and Technical Objections

SC35-23 : NELISIWE MLAMBO vs AROSUME PROPERTY DEVELOPMENT (PVT) LTD and MWANA WEVHU HOUSING CO-OPERATIVE and KUDZANAI CHIKUTU and MINISTER OF LOCAL GOVERNMENT AND PUBLIC WORKS N.O.
Ruled By: MUSAKWA JA

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

SC46-23 : GAYNOR CHITSAKA and OTHERS vs LORRAINE HEYNS and OTHERS
Ruled By: MAKONI JA, CHIWESHE JA and CHATUKUTA JA

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

SC59-24 : CHANDRA GOYEL vs MYRAMMAR FARMING (PRIVATE) LIMITED t/a COTTONZIM and OTHERS
Ruled By: MWAYERA JA

SSC03-18 : CHRISTOPHER SAMBAZA vs AL SHAMS GLOBAL BVI LIMITED
Ruled By: GARWE JA, MAVANGIRA JA and UCHENA JA

SC64-23 : DOVES FUNERAL ASSURANCE (PVT) LTD vs HARARE MOTORWAY (PVT) LTD and AFRICAN BANKING CORPORATION LTD and BLUE STAR LOGISTICS PL and SHERIFF OF ZIMBABWE and REGISTRAR OF DEEDS
Ruled By: MAKONI JA

SC69-23 : ZESA HOLDINGS (PRIVATE) LIMITED vs CLOVEGATE ELEVATOR COMPANY (PRIVATE) LIMITED and JUSTICE L.G. SMITH N.O.
Ruled By: MATHONSI JA, KUDYA JA and MWAYERA JA

SC93-23 : AUGUR INVESTMENTS and DOOREST PROPERTIES vs FAIRCLOT INVESTMENT and THE SHERIFF and THE REGISTRAR OF DEEDS
Ruled By: BHUNU JA, CHIWESHE JA and MWAYERA JA

SC119-23 : QUICKLINK INVESTMENTS (PRIVATE) LIMITED vs CMAL (PRIVATE) LIMITED and THE SHERIFF OF ZIMBABWE
Ruled By: BHUNU JA, CHIWESHE JA and MUSAKWA JA

SC110-23 : CHINHOYI MUNICIPALITY vs TENDAI MUSONZA
Ruled By: MAVANGIRA JA, CHIWESHE JA and MUSAKWA JA

SC120-23 : COLLINS MANGENJE and GODWIN MANGENJE vs ISAAC TICHARWA (executor, estate Kennedy Mangenje) and MANGENJE BROTHERS (PVT) LTD (In liquidation) and CECIL MADONDO (liquidator, Mangenje Brothers)
Ruled By: BHUNU JA, CHIWESHE JA and CHATUKUTA JA

SC123-23 : ARISTON MANAGEMENT SERVICES vs ECONET WIRELESS ZIMBABWE LIMITED
Ruled By: GUVAVA JA, MAKONI JA and MATHONSI JA

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Law Portal Zimbabwe

Appeal re: Findings of Fact or Exercise of Discretion iro Jurisdictional Considerations and Technical Objections

SC35-23 : NELISIWE MLAMBO vs AROSUME PROPERTY DEVELOPMENT (PVT) LTD and MWANA WEVHU HOUSING CO-OPERATIVE and KUDZANAI CHIKUTU and MINISTER OF LOCAL GOVERNMENT AND PUBLIC WORKS N.O. Ruled By: MUSAKWA JA

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

SC46-23 : GAYNOR CHITSAKA and OTHERS vs LORRAINE HEYNS and OTHERS Ruled By: MAKONI JA, CHIWESHE JA and CHATUKUTA JA

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

SC59-24 : CHANDRA GOYEL vs MYRAMMAR FARMING (PRIVATE) LIMITED t/a COTTONZIM and OTHERS Ruled By: MWAYERA JA

SSC03-18 : CHRISTOPHER SAMBAZA vs AL SHAMS GLOBAL BVI LIMITED Ruled By: GARWE JA, MAVANGIRA JA and UCHENA JA

SC64-23 : DOVES FUNERAL ASSURANCE (PVT) LTD vs HARARE MOTORWAY (PVT) LTD and AFRICAN BANKING CORPORATION LTD and BLUE STAR LOGISTICS PL and SHERIFF OF ZIMBABWE and REGISTRAR OF DEEDS Ruled By: MAKONI JA

SC69-23 : ZESA HOLDINGS (PRIVATE) LIMITED vs CLOVEGATE ELEVATOR COMPANY (PRIVATE) LIMITED and JUSTICE L.G. SMITH N.O. Ruled By: MATHONSI JA, KUDYA JA and MWAYERA JA

SC93-23 : AUGUR INVESTMENTS and DOOREST PROPERTIES vs FAIRCLOT INVESTMENT and THE SHERIFF and THE REGISTRAR OF DEEDS Ruled By: BHUNU JA, CHIWESHE JA and MWAYERA JA

SC119-23 : QUICKLINK INVESTMENTS (PRIVATE) LIMITED vs CMAL (PRIVATE) LIMITED and THE SHERIFF OF ZIMBABWE Ruled By: BHUNU JA, CHIWESHE JA and MUSAKWA JA

SC110-23 : CHINHOYI MUNICIPALITY vs TENDAI MUSONZA Ruled By: MAVANGIRA JA, CHIWESHE JA and MUSAKWA JA

SC120-23 : COLLINS MANGENJE and GODWIN MANGENJE vs ISAAC TICHARWA (executor, estate Kennedy Mangenje) and MANGENJE BROTHERS (PVT) LTD (In liquidation) and CECIL MADONDO (liquidator, Mangenje Brothers) Ruled By: BHUNU JA, CHIWESHE JA and CHATUKUTA JA

SC123-23 : ARISTON MANAGEMENT SERVICES vs ECONET WIRELESS ZIMBABWE LIMITED Ruled By: GUVAVA JA, MAKONI JA and MATHONSI JA

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Law Portal
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SC35-23 : NELISIWE MLAMBO vs AROSUME PROPERTY DEVELOPMENT (PVT) LTD and MWANA WEVHU HOUSING CO-OPERATIVE and KUDZANAI CHIKUTU and MINISTER OF LOCAL GOVERNMENT AND PUBLIC WORKS N.O.
Ruled By: MUSAKWA JA

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

SC46-23 : GAYNOR CHITSAKA and OTHERS vs LORRAINE HEYNS and OTHERS
Ruled By: MAKONI JA, CHIWESHE JA and CHATUKUTA JA

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

SC59-24 : CHANDRA GOYEL vs MYRAMMAR FARMING (PRIVATE) LIMITED t/a COTTONZIM and OTHERS
Ruled By: MWAYERA JA

SSC03-18 : CHRISTOPHER SAMBAZA vs AL SHAMS GLOBAL BVI LIMITED
Ruled By: GARWE JA, MAVANGIRA JA and UCHENA JA

SC64-23 : DOVES FUNERAL ASSURANCE (PVT) LTD vs HARARE MOTORWAY (PVT) LTD and AFRICAN BANKING CORPORATION LTD and BLUE STAR LOGISTICS PL and SHERIFF OF ZIMBABWE and REGISTRAR OF DEEDS
Ruled By: MAKONI JA

SC69-23 : ZESA HOLDINGS (PRIVATE) LIMITED vs CLOVEGATE ELEVATOR COMPANY (PRIVATE) LIMITED and JUSTICE L.G. SMITH N.O.
Ruled By: MATHONSI JA, KUDYA JA and MWAYERA JA

SC93-23 : AUGUR INVESTMENTS and DOOREST PROPERTIES vs FAIRCLOT INVESTMENT and THE SHERIFF and THE REGISTRAR OF DEEDS
Ruled By: BHUNU JA, CHIWESHE JA and MWAYERA JA

SC119-23 : QUICKLINK INVESTMENTS (PRIVATE) LIMITED vs CMAL (PRIVATE) LIMITED and THE SHERIFF OF ZIMBABWE
Ruled By: BHUNU JA, CHIWESHE JA and MUSAKWA JA

SC110-23 : CHINHOYI MUNICIPALITY vs TENDAI MUSONZA
Ruled By: MAVANGIRA JA, CHIWESHE JA and MUSAKWA JA

SC120-23 : COLLINS MANGENJE and GODWIN MANGENJE vs ISAAC TICHARWA (executor, estate Kennedy Mangenje) and MANGENJE BROTHERS (PVT) LTD (In liquidation) and CECIL MADONDO (liquidator, Mangenje Brothers)
Ruled By: BHUNU JA, CHIWESHE JA and CHATUKUTA JA

SC123-23 : ARISTON MANAGEMENT SERVICES vs ECONET WIRELESS ZIMBABWE LIMITED
Ruled By: GUVAVA JA, MAKONI JA and MATHONSI JA