Interim Interdict Pendente Confirmation or Discharge Proceedings re: Approach, Return Date and the Prima Facie Concept

HH36-08 : MASIMBA KUCHERA and MICHAEL MUZA and TAFADZWA RUGOHO vs MINSTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS
Ruled By: GUVAVA J

Matters which are brought on a certificate of urgency require that only interim relief be granted as the applicant only needs to establish a prima facie case: see The Registrar General of Elections v Combined Harare Residents Association Anor SC07-02…,..

HB46-14 : TOPPERS UNIFORMS PL vs HYDE PARK INVESTMENTS PL and TOTALLY UNIFORMS PL and AHMED ESAT and NKANI KHOZA and ZULEKA ESAT
Ruled By: MUTEMA J

The first respondent owns a building formerly known as Toppers Building, situate at corner Fort Street and 13th Avenue, Bulawayo [the premises].

The applicant leased the premises for several years carrying on the business of manufacturing and retailing school uniforms and other items of school wear. During that period, the applicant was wholly owned by the directors of the first respondent.

In about 2007, the then directors of the applicant sold their entire shareholding in the applicant to the applicant's current directors, viz Mohamed Zakariya Patel and Daud Isa Patel. The business was sold as a going concern.

The parties also concluded a restraint of trade agreement wherein it was agreed that the former shareholders would, for a period of five years, not engage in any school uniform manufacture and retail in competition with the applicant.

The applicant continued trading from the premises under a five year lease agreement.

Subsequently, the parties got embroiled in several acrimonious legal battles whose culmination was the conclusion of an out of court settlement on 30 October 2012 which was imbued with a Magistrates' Court order – annexure “B”.

Pursuant to paragraph 1 of the consent order, the applicant vacated the premises on 31 January 2014 and handed over the premises to the first respondent.

Upon retaking possession of the premises, the first respondent immediately put on display in the shop windows various types of uniforms for different schools in alleged direct contravention of the terms of paragraph 5 of the consent order, annexure “B”.

That paragraph 5 reads as follows:

“5. The plaintiff [1st respondent herein] shall not, directly or indirectly, after 31st January 2014, and on the entire property described in paragraph 1 above, sew and/or sell school wear and/or raw materials thereof or school related products for a period of 5 years from 31 January 2014….,.”

Alarmed by this development, the applicant's legal practitioners wrote a letter to the first respondent protesting at the unlawfulness of its actions and demanding that it removes the displayed uniforms from the shop windows.

This letter was responded to by the fourth respondent, on behalf of the first respondent, on 6 February 2014 stating, inter alia, that, they were only displaying the uniforms and not selling them so therefore there was no contravention of paragraph 5 of the consent order.

The applicant, however, contends that the real reason for displaying the uniforms is that across the road from the premises there is a shop called Totally Uniforms owned by the second respondent which is conducting the business of retailing school uniforms.

The second respondent is wholly owned by the directors of the first respondent.

What happens is that if a customer enters the premises enquiring about the displayed uniforms, the first respondent's staff refers the customer to Totally Uniforms across the road to buy. This, according to the applicant, amounts to the first respondent directly and indirectly manufacturing and selling school uniforms in breach of paragraph 5 of annexure “B”.

Further, the applicant contends, the premises are well known and generally associated with the manufacture and sale of school uniforms of virtually all schools in Bulawayo and the Matabeleland region if not throughout the country. The mention of the name Toppers is naturally linked to the premises. The name Totally Uniforms is displayed boldly and prominently in red on the second respondent's premises. The name somewhat resembles the applicant's trading name, Toppers Uniforms.

What the respondents are doing is all intended to hoodwink the school uniform buying public into thinking that the applicant is still operating from the premises and that the second respondent is somehow associated with the applicant – some form of passing off.

The foregoing is the reason why the applicant filed the urgent chamber application whose interim relief sought is:

“Pending the finalization of this matter, applicant is granted the following interim relief:

1. 1st, 3rd, 4th and 5th respondents be and are hereby ordered and directed to remove all school uniforms and any other type of school wear on display in the shop windows of or anywhere inside the premises formerly known as Toppers Building situated at 129A Fort Street/13th Avenue, Bulawayo.

2. 1st, 2nd, 3rd, 4th and 5th respondents be and are hereby interdicted and prohibited from manufacturing, selling, and advertising for sale in any manner whatsoever including referring customers to 2nd respondent any school wear, raw materials, or any school related products from the aforesaid premises.”...,.

Now, regarding the merits, the requirements for the granting of a temporary or interim interdict are trite. They are that:

1. The right sought to be protected is clear; or

2.(a) If it is not clear, it is prima facie established, even though open to doubt; and

(b) There is a well-grounded apprehension of irreparable harm if the relief is not granted and the applicant ultimately succeeds in establishing his right; and

3. The balance of convenience favours the grant of the relief; and

4. There be no other satisfactory remedy.

See Enhanced Communication Network (Pvt) Ltd v Minister of Information, Posts & Telecommunications 1997 (1) ZLR 342 (HC).

I am satisfied, in casu, that, from a reading of paragraph 5 of annexure “B” as read with what the applicant alleges the respondents are doing (which the respondents have not meaningfully challenged – in fact, the fourth respondent's letter on behalf of the first respondent does not at all dispute the display of school uniforms at the premises), the right sought to be protected is quite clear, let alone prima facie established, and a well-grounded apprehension of irreparable harm is exitant if the relief is not granted.

Two legal concepts arise from the applicant's allegations, namely, breach of restraint clause agreement and passing off.

Regarding restraint of trade, the respondents' interpretation of paragraph 5 of annexure “B” is too simplistic and narrow.

They say paragraph 5 of annexure “B” restrains sale of school uniforms but they are only displaying and that is not selling.

From what the applicant is alleging, there will be need for the court to invoke the Mischief of Rule of statutory interpretation in order to get behind the mischievous smoke screen created by the respondents.

The respondents surprisingly remained mum on why they would indulge in displaying those school uniforms in the display windows if they are not doing so for sale. What benefit would they derive out of that? Certainly, the likelihood of fooling the general public into thinking that the applicant is still operating from the premises, to its irreparable financial prejudice, having paid $300,000 for goodwill when purchasing the business, cannot be discounted.

The CR14 produced by counsel for the respondents shows that the fourth respondent is a common denominator as he is also a director of the first respondent. It has not been disputed that the fourth and fifth respondents are directors of the first respondent who also wholly own the second respondent.

So, the contention that some of the respondents cited in this application were mis-joined is a lame duck.

In Saybrook (1978) (Pvt) Ltd and Anor v Girdlestone 1986 (2) ZLR 185 (SC) the court held that it must be satisfied, in respect of passing off, that the conduct complained of is calculated to pass-off other goods as those of the complainant or at least to produce confusion in the minds of probable customers as would likely to lead to the other goods being bought for the complainant's.

In casu, the conduct complained of by the applicant seems to have that likelihood.

Regarding the balance of convenience, it clearly favours the grant of the relief sought.

The respondents stand to lose nothing if the relief is granted, if they are surely not embarking upon the conduct complained of; while, on the other hand, if the relief is refused, the applicant would suffer immeasurable financial prejudice that is difficult, if not impossible, to quantify.

I have already dealt with the fourth requirement, relating to absence of satisfactory remedy, above so it should not detain me by regurgitating it.

In the result, I am satisfied that the applicant has succeeded in establishing the requirements for an interim interdict. The application is accordingly granted with costs.

HH33-12 : BRIAN JUSTICE ENTERPRISES PL vs H.E.R. (PVT) LTD and NITSA OLYMPIOS and PARIS OLYMPIOS and CHRISTOS VENTURAS and REGISTRAR OF DEEDS
Ruled By: HUNGWE J

This matter was placed before me through the Chamber Book on 25 January 2012.

After I perused the papers, I directed that the matter be set down for hearing the next day.

On this day, the parties addressed me on the issue of urgency. I found the matter to be urgent and the respondents asked for more time to prepare and file their opposing papers which indulgence was granted.

The hearing was postponed to 31 January 2012.

The applicant seeks the following interim relief;

“INTERIM RELIEF

Pending the determination by this Honourable Court of the issues referred to above, it is ordered that:

1. The First to Fourth Respondent be and are hereby interdicted from disposing of the immovable property in the name of the First Respondent to any third party, registered under Deed of Transfer Number 1598/11, pending confirmation of this order.

SERVICE OF PROVISIONAL ORDER

Copies of this Provisional Order shall be served upon the Respondents by the applicant's legal practitioners.”

In its founding affidavit, the applicant's director makes the following averments:

The applicant bought 50% shareholding in the first respondent on or about 9 June 2009 under a Sale of Shares agreement for US$600,000 under certain terms and conditions. This sum, it is contended, has been paid in full. The first respondent is resisting the transfer of shares in favour of the applicant. As a result, the applicant has instituted proceedings in this Court compelling transfer.

In the meantime, the applicant has learnt that the respondents are seeking to dispose of the only immovable asset owned by the first respondent, being a business premises.

The applicant's director confirms that people in the oil industry have visited the service station to inspect the premises. The applicant fears that if this asset is sold, it will suffer irreparable harm as it is the only asset in the first respondent's books. The applicant states that it has no other remedy besides seeking the present relief.

On the other hand, the third respondent, as director of the first respondent, stated the following;

The agreement of sale was concluded in August 2009. The full purchase price was to be paid by 1 November 2009. The applicant failed to pay the full purchase price by that date. As a result, the agreement of sale was duly cancelled and a refund of the payment made towards the purchase price tendered to the applicant's legal practitioners.

The applicant has not made any effort to supply its bank account details to the respondents to facilitate transfer of the said payments.

Because the sale was cancelled, the first and second and third respondents believes the applicant has no right to be at the premises.

The third respondent states that the second respondent, who is his mother, is entitled to sell her shares in the first respondent but does not wish to do so at this point in time.

The third respondent avers that the premises are owned by three shareholders. He states that he is entitled to sell his shares since they are not subject to any legal dispute, and, in any event, even if the applicant were to succeed in the matters before the courts, all the applicant will be entitled to is only 50% share of the premises and not the entire property. He confirms that he is seeking to sell his 40% share but goes on to assure the court that since the second respondent does not wish to sell her shares till the matter pending before this court is resolved, there is no prejudice to the applicant's interests should he succeed in selling his assets.

According to the third respondent, the applicant seeks to interdict the sale of immovable property wherein it has no prima facie right, and, therefore, not entitled to the title deeds.

Counsel for the applicant pointed out that there is a matter pending before this court in HC1589/12. The issue for decision in that matter is whether the sale of shares agreement entered into by the parties is liable to be cancelled or whether the applicant is entitled to take transfer of the shares in the first respondent.

The first respondent is the registered owner of the immovable property, a petrol station, subject of this application. The third respondent holds the other 40% and there have been attempts to sell this shareholding. The fourth respondent confirms this in his affidavit.

Should the applicant succeed in HC4208/12, then, it would be entitled to the 50% shareholding in the first respondent, which translate to a right to claim 50% share of the immovable asset subject of these proceedings.

By Article 5(b) of the first respondent's Articles of Association, the applicant will be entitled to a right of pre-emption of the remaining 50% shareholding in the first respondent which the third respondent has attempted to sell. Such sale, in the present situation, would result in irreparable harm to the applicant.

On the facts admitted by the respondent, counsel for the applicant agreed, the applicant is entitled to the relief it seeks.

Counsel for the respondents argued, that, on these facts, the applicant is not entitled to the remedy of an interim interdict since, to start with, the sale which would have entitled the applicant some prima facie right to the immovable property was cancelled.

In short, according to this argument, the applicant has failed on its first hurdle.

Second, there has to be an actual or reasonably apprehended injury.

As the applicant's rights were extinguished by the cancellation of the sale, the applicant could not possibly reasonably entertain such fear of injury to non-existent rights.

In any event, even if the court held that the applicant has some right capable of injury, since any sale of property under administration by the executor is a nullity, the applicant could easily seek the setting aside of the sale with ease. As such, there are other remedies should the applicant's rights suffer any harm at the hands of the respondents.

Counsel for the respondents argued that the application before this court related to immovable property whereas the conduct giving rise to the urgency was the third respondent's dealings with his shares in the first respondent.

If I understood her correctly, which I am sure I did, her argument is that the present application seeks to interdict the sale of the immovable property. As there is no application being made against the third respondent's dealing with his shareholding in the first respondent, then, the application, in its present form, cannot succeed.

I need not show to counsel the effect of the order sought but it seems necessary to do so.

The claim by the applicant is that the third respondent seeks to sell his shares in the first respondent. This entails a share transfer. Such sale of shares is, in effect, sale of the immovable property in question because share transfer arises where the property is owned by a company as its sole asset. Instead of transferring the property from the company to the purchaser, the company retains ownership of the property and the shares in the company are sold to the purchasers.

It seems to me, seeking to interdict the sale of immovable property by the respondents will achieve the same result which an interdict against share transfer would achieve.

I agree with counsel for the applicant, that, the applicant has established a prima facie right to some share in the immovable property owned by the first respondent. The validity of this share is subject of the litigation in HC4208/12.

Having decided that the applicant has established a prima facie right, does he have a well-grounded apprehension of irreparable injury?

The third respondent says that the second respondent, his mother, has no intention of selling her shares till the final determination of the matter which is pending in this court. However, he alleges that he has every right to sell his shares in the first respondent as they are not subject to any legal dispute.

The fact that one of the respondents, such as he, commands control in the first respondent company should give the applicant grounds for some apprehension that the third respondent intends to sell the whole immovable property for his own advantage.

I say this because the second respondent is now beyond the court's jurisdiction. The executor who holds a power of attorney for the mother confirms these attempts at sale.

Clearly, nothing will prevent the third respondent putting himself in a position where he could dispose of it without the concurrence or knowledge of the executor.

It is clear, moreover, that an interdict is the only remedy that can protect the applicant from the harm that he apprehends may be inflicted.

In Eriksen Motors (Welkom) Ltd v Protea Motors & Anor 1973 (3) SA 685 (A)…, HOLMES JA said that the granting of an interim interdict pending an action is an extraordinary remedy within the discretion of the court. After referring to the requisites laid down by INNES JA in Setlogelo v Setlogelo 1913 AD 221…, he said:

"In exercising its discretion, the court weighs, inter alia, the prejudice to the applicant, if the interdict is withheld, against the prejudice to the respondent if it is granted. This is sometimes called the balance of convenience."

The second respondent, it has been indicated, is prepared to await the final determination of the matter pending between her and the applicant before selling her shares.

Therefore, if an interim interdict is granted in the terms prayed for, she would hardly suffer any prejudice. On the other hand, as I have demonstrated above, should this court not grant the interim interdict, there is a very real danger that the applicant's rights in the first respondent will most likely be jeopardised irreparably.

On the balance of convenience, therefore, I consider that the court should exercise its discretion in favour of the applicant and grant an interim interdict in the terms prayed for.

It is ordered:-

1. The first to fourth respondents be and are hereby interdicted from disposing of the immovable property in the name of the first respondent to any third party, registered under Deed of Transfer Number 1598/11, pending confirmation of this order.

2. There is no order as to costs.

HH19-07 : PONDORO (PVT) LTD and DOUGLAS TAYLOR-FREME vs MENDE NEMAKONDE and THE MAGISTRATE, CHINHOYI
Ruled By: HUNGWE J

A Court of the Magistrate can only do those things the Magistrates Court Act prescribes to it. It cannot do or act outside the four corners of the statute creating it. The court cannot ascribe to itself jurisdiction not expressly granted to it by the Magistrates Court Act.In respect of ...

HH635-14 : ECONET WIRELESS vs POSTAL AND TELECOMMUNICATIONS REGULATORY AUTHORITY OF ZIMBABWE (POTRAZ)
Ruled By: DUBE J

This is an application for an interdict.

The applicant is a telecommunications services provider. The respondent is the Regulatory Authority established in terms of section 3 of the Postal and Telecommunications Act [Chapter 12:05] (the Act). The salient facts of this court application may be summarised as follows:

On 16 October 2014, the respondent issued Regulatory Determination Number 1 of 2014, a circular on Implementation of Excise Duty on airtime or network usage for voice, internet and data services provided by Public Telecommunication Service Providers. The determination fixes new National Interconnection tariffs and Mobile Voice tariffs for telecommunications operators for the period December 2014 to December 2016.

Aggrieved by this decision, the applicant has launched this application.

The applicant claims that the respondent varied or amended the existing tariffs without affording the applicant a right to be heard on whether or not the existing approved tariffs should be amended, and, if so, to what levels and when this should be done. That the respondent proposed to amend the existing tariffs by reducing them significantly. The applicant contended that the respondent's direction that the applicant propose tariffs which the respondent has itself set by 14 November 2014 is an effort to purge the illegality it committed by fixing tariffs for the applicant without having first received a tariff proposal from the applicant. The applicant maintains that the respondent's failure to afford the applicant an opportunity to be heard violates principles of natural justice as well as provisions of the Constitution. The applicant contends that the determination is biased against the applicant in that the tariff reduction will weigh heavily on the applicant than on the other operators who have not bothered to pay the $137,5 million licence fees. The applicant avers that there is no level playing field.

In addition, the applicant challenges the authority of the respondent to act in the manner it did.

The applicant argues that section 4(g) and (i) as read with section 100 of the Postal and Telecommunications Act [Chapter 12:05], under which the respondent purported to act, does not empower it to vary existing approved tariffs mero motu without an application or proposal for the variation of the tariffs by a licensee. The applicant further submitted that the respondent violated the audi alteram partem rule by imposing tariffs without first affording the applicant an opportunity to be heard on the proposed tariffs and the effective date of the tariffs. The applicant's position is that the respondent exceeded the powers conferred upon it and acted ultra vires the Postal and Telecommunications Act.

Counsel for the applicant contended that the respondent cannot purport to act in terms of section 42 as a tariff is not part of a licence and powers conferred upon the authority by section 42(1) do not include the power to amend a tariff.

The applicant canvassed the requirements of a temporary interdict and urged the court to find in its favour.

I will not, for the purposes of this judgment, summarize arguments advanced by both parties with respect to the merits of the interdict. The application is premised upon the trepidation that if the respondent is allowed to impose illegal tariffs before the applicant's rights are finally decided by the court, it will suffer irreparable harm if it subsequently succeeds in this dispute, in that it will not be able to recover the loss suffered as a result of the unlawful reduction in tariffs. The applicant reasons that the reduction in its tariffs will force the applicant to retrench some of its employees and to downscale its distribution network that has created 20,000 jobs. Further, that the applicant will be forced to discontinue some of its scholarship programs in which it pays fees for more than 40,000 less privileged members of the society.

The terms of the interim order sought are as follows:

“INTERIM RELIEF GRANTED

Pending the determination of this matter, the applicant is granted the following relief:-

1. That the implementation of the Postal and Telecommunication Regulatory Authority of Zimbabwe [Determination on Voice, Data and Internet Charges for Regulated Telecommunication Services in Zimbabwe] regulatory Authority of Zimbabwe (Circular on Implementation of Excise Duty on Airtime or network usage for voice, internet and data services provided by Public Telecommunication Service Providers) Regulatory Circular Number 1 of 2014 be and is hereby suspended.”

The final relief sought is for an order suspending the operation of the determination until the respondent has collected licence fees from other mobile operators.

The respondent's submissions in response may be summarised as follows:

The regulatory determination purports to cite section 100 instead of section 42(1)(d) of the Postal and Telecommunications Act [Chapter 12:05]. The true intention or purpose of the action can be gleaned from the consequences and not the label placed on the determination. There has not been any unlawful interference by the respondent in the applicant's business. The conduct complained of has a basis in section 42 which gives the respondent powers to amend licences in specific instances and an amendment can be made in terms of section 42(1)(d) if considered desirable and in the public interest. The regulatory determination does not seek to direct any licensee what to charge but sets a limit above which no operator shall charge. The same section, in subsection 2, enjoins the respondent, prior to amending the licence, to give its reasons for the decision and invite the licensee's input into the matter. The respondent denied that the determination is discriminatory. Counsel for the respondent submitted that there is no discrimination as the licence fees which other operators also pay have not been reduced. The other operators are expected to fork out the same full licence fees. He contended that the applicant has the advantage that it has been able to recoup part of its outlay on the back of high tariffs. He submitted that the tariffs have been reduced in the public interest.

The respondent took up two preliminary points;

(i) The respondent argued that the applicant has adopted a wrong procedure for seeking this relief.

The respondent submitted that the remedy of an interdict is resorted to only when other alternative remedies are not available and when the delays associated with the use of other remedies could cause irreparable harm. The respondent submitted that that the applicant ought to have sought relief in terms of section 96 of the Postal and Telecommunications Act [Chapter 12:05], as the effect of the regulatory determination complained about is to amend existing tariffs which are an extricable component of a licence. That the applicant ought to have requested for reasons from the Minister and if not satisfied with the reasons, appealed to the Administrative Court if need be. The respondent insists that a wrong procedure was adopted for seeking this relief, that the application is improperly before the court and ought to be dismissed on that basis alone.

(ii) The respondent's second point relates to the urgency of the application.

The respondent submitted that the application is not urgent as the applicant has always been aware of the respondent's intentions. Counsel for the respondent submitted that the dispute has been raging on since 2013 when research was conducted by the respondent - with the participation of the applicant. This resulted in the applicant penning a letter, dated 24 June 2014, wherein the applicant threatened to take the matter to court if the respondent did not withdraw its intentions. He submitted that this matter became urgent and ripe for taking to court in June 2014 and that the applicant has not explained its failure to take any action from July to 24 October 2014.

The respondent asserts that the applicant has not been candid with this court and was selective in the information it presented to the court. That if the applicant had disclosed to the court the existence of the letter dated 24 June 2014 this would have negatively affected any notions of urgency….,.

The applicant opposed both preliminary points.

The applicant insisted that this application is properly before the court. It submitted that this matter is not an appeal but a review against the determination and is properly before the court.

HB88-16 : SOLOMON MHENYU vs RUTH MLAUDZI
Ruled By: MATHONSI J

The applicant was ordered by the Magistrates Court sitting at Beitbridge to pay the respondent a sum of $9,800= by a judgment delivered on 28 January 2013.He lodged an appeal to this court on 1 February 2013.By letter dated 13 November 2015, which he says was received by his legal ...

HH198-10 : BIRCH WILLIAMS vs MARIA KATSANDE and DELITTE PRODUCTS (PRIVATE) LIMITED
Ruled By: MAWADZE J

The applicant seeks a provisional order in the following terms:-“Terms of the provisional order granted1. Respondents be and are hereby ordered to forthwith hand over a property listed in Annexture 'B' to the founding affidavit to the applicant upon service of this order.1(a) In the event of the respondents refusing ...

The applicant seeks a provisional order in the following terms:-

“Terms of the provisional order granted

1. Respondents be and are hereby ordered to forthwith hand over a property listed in Annexture 'B' to the founding affidavit to the applicant upon service of this order.

1(a) In the event of the respondents refusing or forbidding to comply with the terms of para 1 above, the Deputy Sheriff be and is hereby authorized to retrieve the said property from the respondents' property and deliver it to the applicant.

2. Respondents are required to account for one applicant's property sold prior to 14 of July 2010 and to handover all proceeds of such sales to the applicant within 48 hours of service of this order.

3. Leave is given to the applicant's attorney to serve a copy of this order.”

The terms of the final order sought are constructed as follows:-

“Terms of the final order sought

1. It is hereby declared that the property listed in annexture 'B' attached to the founding affidavit is the exclusive property of the applicant.

2. Respondents be and are hereby ordered to pay costs of suit on legal practitioner client scale.”

The brief facts of the matter can be briefly stated as follows:-

The applicant conducts the business of interior and exterior decorations and sells diversified specifically-designed household goods and effects. On or about October 2009, the applicant entered into negotiations with the first respondent who was allegedly representing herself and the second respondent. It was agreed that that the first respondent, through the second respondent, would act as an agent of the applicant.

The nature of the agency relationship was that the applicant would supply the respondents with goods for sale which would be sold on the applicant's behalf by the respondents who would, in turn, receive 20% commission on any goods sold.

On 14 July 2010, the applicant wrote to the respondents cancelling the agency agreement alleging improper conduct and breach of the material term of the agreement between the parties by the respondents.

The second respondent, by way of letter on 15 July 2010, confirmed the cancellation of the agency agreement but sought to remain in possession of the property listed in Annexture 'B' until a certain date and that the respondents be paid certain amounts due arising from the applicant's cancellation of the agreement.

The applicant persisted in demanding to be handed over the property in Annexture 'B' valued at US$116,627=50 but the respondents refused indicating that certain conditions should be met.

When the applicant visited the respondent's shop, on 13 August, ostensibly for a stock take, the applicant was denied access into the shop. The applicant alleges that some of the property had been removed from the shop and property valued at about US$100,000 was no longer in the shop.

The applicant's fear was that the respondents were disposing of the applicant's property hence causing possible irreparable loss to the applicant.

The applicant then approached this court, on a certificate of urgency, praying for the interim relief already alluded to.

This application is opposed.

Counsel for the respondents raised three points in limine, two of which he argued are capable of resolving the matter without even going into the merits of the application. The points in limine are;

(i) Firstly, that the certificate of urgency is defective;

(ii) Secondly, that the first respondent is improperly cited; and

(iii) Thirdly, that the matter is not urgent.

I propose to deal with the points in limine first.

That first respondent is improperly cited

Counsel for the respondents, in argument, stated that it was improper to cite Maria Katsande as the first respondent in these proceedings in her personal capacity as the Agency Agreement was between the applicant and the second respondent. He argued that the first respondent, despite being both a shareholder and director of the second respondent, should not be party to these proceedings in her personal capacity.

Counsel for the respondents submitted that the second respondent is a duly registered company in terms of the Companies Act [Chapter 24:03] and has a separate legal persona distinct from the first respondent.

On the other hand, counsel for the applicant countered that the first respondent was properly cited as she is the one who negotiated the Agency Agreement on her own behalf and that of the second respondent. Counsel for the applicant submitted that the first respondent at no stage produced a resolution from the Board of Directors of the second respondent indicating that she was acting on behalf of the second respondent.

Reference was made to the case of Madzivire & Ors v Zvarirwadzwa & Ors 2005 (2) ZLR 148 (H) in support of counsel for the respondents argument.

My view is that this case is irrelevant to the point in issue as it dealt primarily with the right of individual directors or shareholders to bring action on behalf of the company.

It is common cause that the second respondent prima facie is a duly registered company in terms of the Companies Act [Chapter 24:03]. I say prima facie because the applicant did not contest this point although the certificate of incorporation attached as Annexture 'A' to the second respondent's opposing affidavit is unsigned by the Registrar of Companies and is a photocopy.

Section 9 of the Companies Act [Chapter 24:03] provides as follows:-

“A company shall have the capacity and powers of a natural person of full capacity in so far as a body corporate is capable of exercising such powers.”

In the absence of any basis to pierce the corporate veil, I would agree with counsel for the respondents that there would be no proper basis in law to cite the first respondent in these proceedings in her personal capacity, albeit, being both a director and shareholder of the second respondent. Accordingly, the first point in limine is upheld.

However, this would not dispose of the matter as the second respondent remains party to the proceedings.

Certificate of Urgency

Counsel for the respondents submissions in this regard is that the court papers filed by the applicant are not in order as the certificate of urgency was prepared by one Tamuka Moyo, a legal practitioner with the law firm Mutamangira & Associates who are acting as the applicant's legal practitioner. This argument is based on the ratio formulated by CHEDA J in Chafanza v Edgars Stores & Anor 2005 (1) ZLR 299 wherein…, the learned judge said;

“To my mind, it is totally undesirable for a legal practitioner to either attest to an affidavit or sign an urgent certificate for and on behalf of a client who is being represented at his firm as such a lawyer clearly has an interest in the matter at hand.”

It is quite apparent that legal practitioners have not taken heed of the learned judge's advice, as in many urgent applications brought before this court the ratio formulated in Chafanza v Edgars Stores & Anor 2005 (1) ZLR 299 is ignored and invariably judges have been asked to deal with this aspect in most urgent chamber applications.

I am aware that there has been no unanimity in this court as regards the correctness of the ratio formulated in Chafanza v Edgars Stores & Anor 2005 (1) ZLR 299. To my knowledge, the Supreme Court has not pronounced itself on this issue. The two divergent views emerging from this court can be illustrated by a few cases dealt with by my brother and sister judges as shown below:

In the case of Attorney General v Chiringa Estate & Ors HC659/10 KUDYA J…, came to the conclusion that Chafanza v Edgars Stores & Anor 2005 (1) ZLR 299 was made by a panel of two judges of concurrent jurisdiction with the learned judge and that in line with the principle of stare decisis, a single judge is bound by a determination made by a panel of two or more judges of concurrent jurisdiction. The learned judge was not persuaded to depart from the ratio decidendi in Chafanza v Edgars Stores & Anor 2005 (1) ZLR 299.

In the case of Route Toute BV & Ors v Sunspun Bananas (Pvt) Ltd & Anor HH27-10 CHATUKUTA J took virtually a different view from that of KUDYA J. On p3 of the cyclostyled judgment, the learned judge had this to say:-

“I am persuaded by Mr Chikumbirike's submission that the Rules do not prescribe that a legal practitioner who signs an urgent certificate must not be from the same firm that represents the applicant in that matter. Rule 242(2) simply prescribes that where an applicant is legally represented in an urgent chamber application, the application must be accompanied by a certificate from a legal practitioner supporting the urgency of the application. As Mr Mlotshwa conceded, the decision in Chafanza case is not binding. It is my view that there is no conflict of interest. Even if there was such conflict, it does not seem that the conflict would render the application not urgent. I am therefore of the view that nothing much turns on the propriety of the certificate of urgency,”

It is apparent, therefore, that the reasoning by CHATUKUTA J is in conflict with the view clearly expressed by KUDYA J in Attorney General v Chiringa Estate & Ors HC659/10.

The pertinent issue which remains unresolved after considering these two cases is whether irrespective of what the correct interpretation of Rule 242(2) is, this court is not bound by the decision in Chafanza v Edgars Stores & Anor 2005 (1) ZLR 299 on the basis of the principle of stare decisis as that decision was made by a panel of two judges.

In the case of African Consolidated Resources & Ors v Minerals Marketing Corporation of Zimbabwe & Ors HC2238/10 PATEL J had the privilege of comparing the apparently conflicting conclusions arrived at by KUDYA J and CHATUKUTA J in the cases already alluded to. At p4 of the cyclostyled judgment the learned judge had this to say:

“While I am prepared to accept that the certificate of urgency in this case is improper and undesirable but not fatally defective, I might still be persuaded to strike this matter off the roll for want of compliance with the Rules as construed and applied in Chafanza case. However, it is not necessary for me to make any definitive decision on this point in light of the following determination of the question of urgency.”

The approach by PATEL J, in my view, seems to be the middle of the road option as it were and is not in direct conflict with the conclusions arrived at by both KUDYA J and CHATUKUTA J.

However, in the case of Ngoni Mudekunye and Ors v Garon Evans Mudekunye & Ors HH190-10 BERE J, after discussing the apparent conflicting views of KUDYA J, CHATUKUTA J and PATEL J came to the conclusion that the decision in Chafanza v Edgars Stores & Anor 2005 (1) ZLR 299 may not be in line with the correct interpretation of Rule 242(2) and that it was not a decision made by a panel of two judges. After dealing with a number of relevant issues pertaining to the conflicting views on this matter BERE J, at p9 of the cyclostyled in Ngoni Mudekunye and Ors v Garon Evans Mudekunye & Ors HH190-10, had this to say:-

“There is no doubt that this is a sound legal principle insofar as it applies to affidavits (i.e. the ratio in Chafanza case). It is however doubtful if this same principle could be extended to a certificate of urgency as currently provided for in our Rule 242 which, in my view, is very clear in its requirements…,.

My very strong view, as highlighted, is that this principle of law, sound as it is, cannot override a specific provision in our Rules particularly where the Rule itself has gone further to provide sufficient safeguards by giving the presiding judge the power to either confirm or dismiss the urgency of the matter irrespective of the existence of a certificate of urgency.”

The definitive finding made by BERE J, in Ngoni Mudekunye and Ors v Garon Evans Mudekunye & Ors HH190-10, is captured as on pp9 to 10 of the cyclostyled judgment as follows:

“Coming to the case before me, I am satisfied that there was nothing improper about Itai Ndudzo filing a certificate of urgency to certify the urgency of a matter which was being handled by his law firm. In my view, this is what it should be. In fact, it appears to me such a certificate is better and more informative document if prepared by the applicant's counsel. The point of objection raised in limine in this regard is not sustainable.”

While I am prepared to accept the lucid reasoning in the judgment of BERE J, I am unable to agree with the learned judge that Chafanza v Edgars Stores & Anor 2005 (1) ZLR 299 was not made by a panel of two judges of concurrent jurisdiction and that it is not binding to a single judge of this court.

I am more inclined to agree with PATEL J, that, while on the basis of Chafanza v Edgars Stores & Anor 2005 (1) ZLR 299, the certificate of urgency may, under certain circumstances, be deemed to be improper and that it may be undesirable for a legal practitioner to sign an urgent certificate for and on behalf of a client who is being represented by such a law firm, that, on its own, would not make the certificate of urgency fatally defective.

The point in limine in this regard, raised by counsel for the respondents, is therefore dismissed.

Urgency

The question of what constitutes urgency was aptly dealt within the case of Kuvarega v Registrar General & Anor 1998 (1) ZLR 188…, wherein the learned judge has this to say:-

“There is an allied problem of practitioners who are in the habit of certifying that a case is urgent when it is not one of urgency…,.

What constitutes urgency is not only the imminent arrival of the day of reckoning; a matter is urgent, if, at the time the need to act arrives, the matter cannot wait. Urgency which stems from a deliberate or careless abstention from action until the deadline draws near is not the type of urgency contemplated by the Rules. It necessarily follows that the certificate of urgency or supporting affidavit must always contain an explanation of the non-timeous action if there has been a delay.”

See also Madzivanzira & Ors v Dexprint Investment (Private) Limited and Anor HH145-02.

In casu, the question of urgency is closely linked to the exact nature of the dispute between the parties.

I am unable to agree with counsel for the respondents that the dispute between the parties arose on 14 July 2010 when the applicant wrote the letter terminating the Agency Agreement. It is important in this regard to deal with the sequence and chronology of events to appreciate what ultimately was the dispute between the parties leading to this application.

In the letter dated 14 July 2010 the applicant did not seek the immediate return of the goods after terminating the Agency Agreement but stated as follows:-

“We again ask you to set a time in the next few days to enable us to collect our property.”

In the letter dated 15 July 2010, the second respondent confirmed the cancellation of the agency relationship but sought to impose certain conditions which are summed up as follows:-

“In the event that you want to immediately collect all the items, please be advised that payment of anticipated commission is required first.”

In fact, in the letter dated 15 July 2010, the second respondent indicated that despite the cancellation of the agency relationship, the applicant's goods will remain in the second respondent's shop and would continue to be sold as usual as per the cancelled Agency Agreement and that the second respondent would give monthly reports and make payments weekly to the applicant on the goods sold.

The second respondent's argument was that the second respondent had already incurred costs on the goods in the shop and would not release those goods immediately.

In my view, it is the contradictory nature of the second respondent's letter which initially caused problems between the parties. The second respondent, while confirming cancellation of the Agency Agreement, still insisted that the status quo ante should remain.

The subsequent correspondence between the parties is instructive.

After the second respondent's letter, dated 15 July 2010, the applicant then wrote to the second respondent, on 2 August 2010, indicating that the applicant would collect the goods on 3 August 2010 at 1500hrs irrespective of the second respondent's concerns raised in this letter dated 15 July 2010.

However, when the applicant visited the second respondent's shop, on 3 August 2010, the second respondent locked the shop and refused to handover the property.

In a letter dated 5 August 2010, the applicant protested to the second respondent about events of 3 August 2010 and proposed to collect the goods on 16 August 2010. However, before that date, and on 6 August 2010, the second respondent wrote to the applicant reiterating the second respondent's unwillingness to surrender the goods as proposed on 16 August but to surrender the goods on 31 August 2010.

The applicant then capitulated, and, in a letter dated 11 August 2010, agreed to collect the goods on 31 August 2010 but suggested that the applicant would visit the second respondent's shop on Friday 13 August 2010 for purposes of stock take and accounting pending the collection of the goods on 31 August 2010. However, the second respondent was not agreeable to this and wrote, in a letter dated 12 August 2010, but only delivered to the applicant on 16 August 2010 at 1334hrs, that the second respondent's counsel was not available on Friday 13 August and will only contact the applicant after Monday 16 August to respond to the applicant's request for a stock-take.

Needless to say, the applicant proceeded to the second respondent's shop on Friday 13 August 2010 (applicant had not received the second respondent's letter objecting to this). What then transpired on 13 August 2010 is captured in paragraph 19 of the applicant's founding affidavit.

In brief, the applicant was denied access to the shop, no cash was handed over to the applicant, and the applicant realised that some of the goods had been removed from the display and placed in a storeroom, tables were dumped carelessly outside, and some goods, valued at about US$100,000, were removed from the shop and the second respondent was unwilling to disclose the whereabouts of those goods.

In my view, the sequence of events clearly shows that, as at 13 August 2010, both parties were agreeable that goods would be collected on 31 August 2010. The purpose of the proposed visit on 13 August 2010 was not to collect the goods but to carry out a stock take pending the surrender of the goods on 31 August 2010.

What then prompted this application is captured in the applicant's founding affidavit, paragraph 20:-

“On 13 August 2010 it became clear to the applicant that he stands to suffer irreparable loss because his property was no longer accessible to him and he has no knowledge of its whereabouts and no longer trusted the promise to handover property on 31 August 2010.”

It is pertinent to note that 13 August 2010 was a Friday hence after only one working day, and on 17 August 2010, the applicant filed this application.

In my view, one cannot seriously argue that a delay of one day constitutes inordinate delay, and, therefore, would qualify this matter as not being urgent. To that extent, therefore, the applicant acted diligently and timeously in a bid to address the problem which arose on 13 August 2010. In that context, therefore, one may be inclined to rule that the matter is indeed urgent.

The problem in making such a finding arises from the relief sought by the applicant.

The question to be asked first is: what was the dispute between the parties on 13 August 2010 which prompted this application?

It was certainly not in relation to ownership of the goods. The ownership of the property was never in issue at any stage.

This then begs the question why in the final order the applicant seeks a declaration that this property in Annexture 'B' belongs to the applicant.

That is a non-issue.

It is disingenuous for counsel for the applicant to argue that the applicant merely seeks a declarator in the final order when in fact what is before this court is not an application for a declarator but a provisional order subject to confirmation on the return date.

The other aspect to note is that as at 13 August 2010 the surrender of the goods in Annexture 'B' to the applicant, by the respondent, was not an issue. The parties had agreed that this would be done on 31 August 2010. There could not therefore have been an urgency in the surrender of the goods on 13 August 2010 when the parties had already agreed that this would happen on 31 August 2010.

This would mean that in the context of the relief sought by the applicant, which is the surrender of the goods, there is no urgency at all. It would be self-created urgency as the parties had agreed to 31 August as the date to collect the goods.

On this score alone, this court is of the view that the matter is not urgent.

In my view, the dispute between the parties, as at 13 August 2010, was not the ownership of the goods as prayed for in the final order. It was not the surrender of the goods as prayed for in the interim relief sought. The issue was about being allowed access to carry out a stock take in anticipation of the surrender of the goods on 31 August 2010.

The urgency therefore was in relation to the issue of being denied access to the goods to carry out stock take and proper accounting. Unfortunately, this is not the relief sought by the applicant.

As per the interim relief sought, the applicant prays for immediate surrender of the goods, which goods the applicant had agreed to collect on 31 August 2010. The interim relief does not seek to address the issue of being allowed access to the shop for accounting and stock take purposes.

Counsel for the applicant did not even seek to amend this defective provisional order despite the persistent concerns by the court - even at the eleventh hour.

In conclusion, I would also want to make the point that even if I was to find that this matter is urgent I am not inclined to grant the relief prayed for.

The reason is that the provisional or interim relief prayed for, if granted, has the effect of a final order. In other words, once the goods are returned to the applicant, as per the provisional order, there would be no point, even on the return date, to deal with the question of ownership of these goods, which issue has always been a non-issue.

My finding is that there was urgency in this matter on the basis of the dispute which arose regarding access to the goods for purposes of stock take and accounting. However, such urgency does not relate to the relief sought. The relief sought is misplaced and improperly drafted. This court cannot, in the absence of a proper application, proceed to amend the relief sought moreso when such shortcomings were brought to the attention of the applicant's counsel.

Lastly, counsel for the respondents sought an award of costs on a higher scale on the basis that this application is ill-conceived, unnecessary, and replete with basic errors; moreso, as there was no dispute between the parties.

While I agree with counsel for the respondents observations in respect of other issues he raised, I do not entirely share his overall sentiments.

At the commencement of the hearing of this matter, the court pointed out that the parties could resolve the issue without need for a full fledged hearing of the matter. Counsel for the respondents was not amenable to this on account of costs.

The conduct of the second respondent cannot be said to be without reproach.

The second respondent was unwilling to unconditionally agree to cancellation of the agency relationship. The second respondent was unwilling to unconditionally surrender the goods, and, most importantly, seemed unwilling to allow the applicant access to the goods, which goods the second respondent admits belong to the applicant.

In other words, the second respondent was only willing to deal with the issues on the second respondent's terms - nothing less.

Given those facts, I find no basis to reward the second respondent's conduct with a generous award of costs as prayed for. It is only fair and just, that, given the nature and the outcome of this case each party bears its own costs.

I accordingly make the following order:

1. The application is dismissed.

2. Each party is to bear its own costs.

HH21-21 : LAZARUS MUCHENJE vs SUSAN M. MUTANGADURA and PAUL MUPFIGA and TENDERO DZVETERO and DR BEAULAH CHIRUME and CHIDO BOKA and NETONE CELLULAR PL
Ruled By: MUREMBA J

The applicant was employed as the Chief Executive Officer (CEO) of the sixth respondent. The sixth respondent is Net One Cellular (Pvt) Ltd, a licensed provider of mobile and related telecommunications services in Zimbabwe. The first to fifth respondents are its directors.

Following a Board meeting held on 20 February 2020, a special resolution to suspend the applicant as Chief Executive Officer was passed. The applicant successfully obtained an interim court order suspending that resolution.

On 9 July 2020, the sixth respondent's Board of Directors wrote a letter to the applicant advising him that his suspension pending disciplinary hearing had been withdrawn and that he was now reinstated as Chief Executive Officer with no loss of salary or benefits.

In less than 24 hours of reinstatement, a letter terminating the applicant's employment on three months' notice was written by the same Board members of the sixth respondent and was delivered to the applicant.

Again, the applicant successfully obtained an interim court order on 15 July 2020, under case number HC3611/20, suspending the effectiveness of the letter of termination pending the hearing of the matter and its final determination on 4 August 2020.

The interim order has not yet been confirmed or discharged. Judgment is still pending in this court.

That notwithstanding, the first respondent, on behalf of the sixth respondent, wrote a letter to the applicant, on 21 December 2020, withdrawing the letter of termination of contract of 9 July 2020 and reinstating him as Chief Executive Officer. On the same date, but in a different letter, the first respondent wrote to the applicant again terminating his employment contract on three months' notice with immediate effect.

The applicant was advised that the President of the Republic of Zimbabwe had given his endorsement for his removal from office of Chief Executive Officer of the sixth respondent. The applicant was further advised that he would be paid in lieu of the three months' notice as his services were no longer required.

It is this letter which prompted the applicant to file the present urgent chamber application.

It is the applicant's averment that the letter of termination of his employment contract is illegal as his contract of employment cannot be terminated on notice or in the manner that the respondents purport to terminate it.

Furthermore, there is an interim court order by CHINAMORA J barring the respondents from giving effect to a similar letter which sought to terminate his contract of employment on notice.

In this application, the applicant is seeking, as against the respondents, a prohibitory interdict in the interim and a declaratur on the return day. The reliefs are couched as follows:

“TERMS OF THE FINAL ORDER SOUGHT

That you show cause to this Honourable Court why a final order should not be made in the following terms:

1. That the letter dated 21 December 2020, authored by the 1st respondent, purportedly for and on behalf of the 6th respondent, addressed to the applicant, be and is hereby declared null and void.

2. Any processes taken pursuant to the said letter be and are hereby declared null and void.

3. That, any respondent(s) opposed to the granting of the Final Order be ordered to pay costs, jointly and severally, the one paying the others to absolved on a legal practitioner-client scale.

INTERIM RELIEF GRANTED

Pending the confirmation of the Provisional Order, the applicant be and is hereby granted the following relief:

1. That, the effect of the letter dated 21 December 29020, drafted by the 1st respondent for and on behalf of the board directors of the 6th respondent, be and is hereby suspended as well as any further processes taken in furthering its objects.

2. The respondents be and are hereby interdicted from publishing the illegal dismissal of/or termination of the applicant's contract of employment in terms of section 11(2) of the Public Entities Corporate Governance (General Regulations S.I.168 of 2018) and further interdicted from advertising applicant position in terms of section 8 of the same Statutory Instrument.

3. That, the respondents be interdicted from terminating the applicant's employment contract pending the final determination of this matter and case number HC3611/20.

SERVICE OF PROVISIONAL ORDER

This provisional order shall be served on the respondents or their legal practitioners by the applicant's legal practitioners.”

In short, in the interim, the applicant wants the respondents barred from terminating his employment contract pending the return date. He also wants the respondents barred from publishing his dismissal or termination of his employment contract and advertising his position. On the return date, the applicant will be seeking a declaratur that the letter of 21 December 2020, terminating his employment contract, is a nullity.

In response to the application, the respondents raised some points in limine which I deal with hereunder.

Lack of Jurisdiction

The respondents averred that this is a labour matter wherein the applicant is effectively seeking an order setting aside the termination of his employment contract on notice on 21 December 2020. The respondents contended, that, the applicant should challenge the termination thereof in terms of the Labour Act [Chapter 28:01]. The applicant ought to approach a labour officer who should determine whether or not there is need to follow due process when terminating an employment contract on notice. The ruling should thereafter be submitted to the Labour Court for confirmation or discharge in terms of the provisions of Amendment Act No.5 of 2015.

The Labour Court is set up as a specialist court to deal with employment matters in terms of section 172 of the Constitution.

This court has no jurisdiction to determine the applicant's complaint that his contract was terminated without regard to due process. This court has no inherent jurisdiction to deal with purely employment matters; its jurisdiction having been restricted by the Constitution which created the Labour Court as a specialist court to handle employment matters.

Counsel for the respondents submitted, that, in Stanley Nhari v Robert Gabriel Mugabe & Ors SC61-20 it was clarified that the High Court does not have jurisdiction to deal with labour matters. He referred to paragraph 47 of the judgment. It reads;

“On a careful interpretation of the Constitution, it is clear that the High Court does not, in fact, have unlimited jurisdiction over all civil and criminal cases in Zimbabwe. The general jurisdiction of the High Court is restricted by the very Constitution itself which has created specialised courts to handle specific areas of the law.

The High Court has no jurisdiction to determine unfair labour practices which, in terms of the Labour Act, should more properly be handled by labour officers appointed in terms of that Act.”

Counsel for the respondents argued, that, in casu, the applicant is claiming that he was unlawfully dismissed.

Referring to paragraph 42 of Stanley Nhari v Robert Gabriel Mugabe & Ors SC61-20, he submitted that the procedure for dealing with an unfair labour practice is to be found in section 93(5) of the Labour Act. Paragraph 42 provides:

“The procedure for dealing with an unfair labour practice is to be found in section 93 of the Labour Act. The unfair labour practice is handled by a labour officer who attempts conciliation. The officer may, by consent of the parties, refer the matter to arbitration or that failing, proceed in terms of section 93(5) of the Labour Act.”

In response, counsel for the applicant submitted that Stanley Nhari v Robert Gabriel Mugabe & Ors SC61-20, the judgment that the respondents seek to rely on, is not applicable to the present matter. The circumstances are different.

He submitted that whilst in Stanley Nhari v Robert Gabriel Mugabe & Ors SC61-20 the appellant had approached this court for an order that he be paid monies that were due to him arising out of his employment contract; in casu, the applicant is seeking an interdict, a prohibitory interdict to be specific. He makes that clear in paragraph 5 of his founding affidavit. The Labour Court cannot grant that relief. It has no jurisdiction to grant interdicts whereas the High Court has jurisdiction to grant such.

Counsel for the applicant further submitted that in any case the Labour Act is not the applicable statute in the applicant's case, but the Public Entities Corporate Governance Act [Chapter 10:31] and its General Regulations.

He submitted that this is in terms of Chapter 9, and more specifically section 197 of the Constitution of Zimbabwe (Amendment Act No.20) 2013 which provides for terms of office of heads of Government-controlled entities. Section 197 of the Constitution reads;

“An Act of Parliament may limit the terms of office of chief executive officers or heads of government controlled entities and other commercial entities and public enterprises owned or wholly controlled by the State.”

Counsel for the applicant submitted that the Act of Parliament being referred to in section 197 of the Constitution is the Public Entities Corporate Governance Act, and not the Labour Act.

He submitted that section 16 of the Public Entities Corporate Governance Act is the provision which deals with the termination of the term of office of the head of a State-controlled commercial entity.

Counsel for the applicant further submitted that Chapter 9 of the Constitution and the Public Entities Corporate Governance Act do not prohibit the High Court from exercising jurisdiction in a matter such as the present one.

He further submitted that a reading of section 3(1) of the Labour Act shows that the Labour Act is not applicable to the applicant who is governed by section 197 of the Constitution. It was his argument that the applicant's conditions of service are provided for in the Constitution by virtue of section 197.

To begin with, it is pertinent to point out that counsel for the respondents did not dispute that the Public Entities Corporate Governance Act is the Act that was enacted to provide for the governance of public entities in compliance with Chapter 9 of the Constitution and in terms of section 197 thereof.

To resolve the issue of whether or not this court has jurisdiction in this matter, it is necessary to examine the provisions of section 3 of the Labour Act which deals with the application of the Act. It provides;

“(1) This Act shall apply to all employers and employees except those whose conditions of employment are otherwise provided for in the Constitution.

(2) For the avoidance of any doubt, the conditions of employment of members of the Public Service shall be governed by the Public Service Act [Chapter 16:04].

(3) This Act shall not apply to or in respect of —

(a) Members of a disciplined force of the State; or

(b) Members of any disciplined force of a foreign State who are in Zimbabwe under any agreement concluded between the Government and the Government of that foreign State; or

(c) Such other employees of the State as the President may designate by statutory instrument.”

In City of Gweru v Richard Masinire SC56-18 BHUNU JA interpreted this provision.

He stated that it confers jurisdiction of the Act over all employees except those it expressly excludes; and those that are expressly excluded are:

1. Those whose conditions of employment are otherwise provided for in the Constitution.

2. Members of the Public Service.

3. Members of a disciplinary force of the State.

4. Any other employee designated by the President in a Statutory Instrument.

In casu, I do not believe that the applicant falls in any one of the excluded categories.

I am not in agreement with counsel for the applicant's argument that the applicant's conditions of service are provided for in the Constitution by virtue of section 197 of the Constitution. Rather, I am in agreement with counsel for the respondents argument that the applicant's conditions of service are not found in the Constitution, but in an Act of Parliament, the Public Entity Corporate Governance Act which was enacted in compliance with Chapter 9 of the Constitution, which chapter includes section 197.

One of the purposes of the Public Entity Corporate Governance Act, as can be seen from its preamble, is to provide a uniform mechanism for regulating the conditions of service of members of public entities and their senior employees.

Section 197 of the Constitution does not provide any conditions of service for employees of Government controlled entities. It simply says that An Act of Parliament may limit the terms of office of Chief Executive Officers or Heads of Government controlled entities and other commercial entities and public enterprises owned or wholly controlled by the State.

Surely, this provision cannot, by any stretch of the imagination, be interpreted as providing conditions of service.

Clearly, the applicant does not fall within the category of employees that are excluded by section 3 of the Labour Act [Chapter 28:01]. The Labour Act is therefore applicable to him.

In the letter of termination of the applicant's employment contract, dated 21 December 2020, it is not indicated in terms of which law (whether the Labour Act or the Public Entities Corporate Governance Act) the employment contract was terminated.

The letter is silent.

However, the letter of termination of 9 July 2020, although it was subsequently withdrawn, made it clear that termination had been made in terms of section 12(4) of the Labour Act. On the other hand, the applicant avers that his contract of employment, as read together with section 16 of the Public Entities Corporate Governance Act, which provision provides for the dismissal of Chief Executive Officers, does not provide for the termination of his employment contract on notice.

The point that the applicant was making here was that his employment contract was terminated in terms of the Public Entities Corporate Governance Act which has no provision for the giving of notice.

I will not be drawn into making a determination of whether or not the notice was lawfully given. That is not the issue before me.

The issue that is before me is simply whether or not this is an employment matter which should be determined in terms of Labour Law.

If it is a labour or employment matter, I will decline jurisdiction on the basis of Stanley Nhari v Robert Gabriel Mugabe & Ors SC61-20 that I have already referred to above.

It was counsel for the applicant's further argument, that, even if the Labour Act is applicable to the applicant, this court has jurisdiction to deal with the present application because the applicant is seeking an interdict which only the High Court, and not the Labour Court, can grant.

As was correctly argued by counsel for the respondents, in deciding what relief an applicant is seeking, the court must look at the grounds of the application and the evidence adduced in support of the order prayed for; see Cainos Chingombe & Another v City of Harare SC177-20…,.

The fact that the applicant is seeking a particular relief is not itself decisive. In other words, what is important, or what matters, are the grounds on which the application is based rather that the order or relief that is being sought. Regard should be had to the substance of the application and the averments contained therein instead of the relief that is being sought.

The relief being sought cannot be the sole decider of whether or not a matter is properly before the Court. The decider is the dispute that has been placed for adjudication before the court.

In casu, in paragraph 5 of the founding affidavit, the applicant outlined the purpose of his application. He averred that he is seeking a prohibitory interdict and ancillary relief to the effect that the purported letter of dismissal be declared null and void. From paragraphs 16 to 18 he outlined what he termed “the complaint.”

In paragraph 16 he averred, that, “the letter of termination is illegal and has no force of law in that the applicant's contract of employment cannot be terminated on notice or in the manner that the respondents purport to terminate it.”

In paragraph 18, he averred, that, “the letter of termination…, is illegal and contemptuous in that it seeks to circumvent an extant interim court order…, of this Honourable Court under case number HC3611/2020…,.”

In the subsequent paragraphs, the applicant went on to make averments which deal with the requirements of an interdict.

In paragraph 19, he averred that he has a clear right to lawful process by the respondents which right was wantonly violated. On irreparable harm, he averred, that, in terms of his contract as read together with the Public Entities Corporate Governance General Regulations he cannot be dismissed on notice as purported in the letter of termination.

He further averred that assuming that the President gave his endorsement, the decision to dismiss him was illegal, arbitrary, and an affront to the laws of natural justice in that he was never invited to make any representations.

He averred, that, most importantly, the essential processes to terminate his contract were not compiled with.

He averred that he has rights in terms of the interim court order which interdicts the respondents from terminating his contract on notice.

He averred that he stands to suffer irreparable prejudice by the unlawful process.

What is clear from the applicant's averments is that although he avers that he is seeking an interdict, he is basically challenging termination of his employment contract by way of notice, a way which he says is not provided for in his employment contract and in the General Regulations of the Public Entities Corporate Governance Act.

He is challenging the legality of the termination process.

He says it was unlawful, hence his request for a declaratur that the letter of termination, and any processes taken pursuant to the said letter, are null and void.

I take the view that this is a dispute that relates to the employment relationship between the applicant and the sixth respondent. The dispute is whether or not the applicant's employment contract was lawfully terminated.

Such a dispute falls for determination in terms of labour law under the Labour Act and its structures.

Section 2A of the Labour Act spells out the purpose of the Act as follows:

“2A(1) The purpose of this Act is to advance social justice and democracy in the workplace by —

(a) Giving effect to the fundamental rights of employees provided for under Part II;

(b)…,. [Paragraph repealed by section 3 of Act 7 of 2005]

(c) Providing a legal framework within which employees and employers can bargain collectively for the improvement of conditions of employment;

(d) The promotion of fair labour standards;

(e) The promotion of the participation by employees in decisions affecting their interests in the work place;

(f) Securing the just, effective, and expeditious resolution of disputes and unfair labour practices.”

Section 2A(1)(f) of the Labour Act is pertinent. It seeks to secure a just, effective and expeditious resolution of employment disputes and unfair labour practices.

In terms of Stanley Nhari v Robert Gabriel Mugabe & Ors SC61-20, the High Court has no jurisdiction in labour and employment issues. Clearly this is not a matter for an interdict and a declaratur.

Under the guise of seeking an interdict and a declaratur, the applicant is actually challenging the termination of his employment contract and seeking reinstatement as Chief Executive Officer (CEO) of the sixth respondent through the back door.

In view of the foregoing, I come to the conclusion that I have no jurisdiction to deal with this matter which is an employment matter.

In the result, it be and is hereby ordered that:

1. Jurisdiction is declined.

2. The applicant shall pay the respondents' costs.

HH74-16 : TRIANGLE LTD and HIPPO VALLEY ESTATES LTD and MKWASINE ESTATE and THE ZIMBABAWE SUGAR ASSOCIATION EXPERIMENT STATION (PVT) LTD vs ZIMBABWE SUGAR MILLING INDUSTRY WORKERS' UNION and OTHERS
Ruled By: MAKONI J

The applicants approached this court seeking a provisional order in the following terms:“TERMS OF FINAL ORDER SOUGHTThat you show cause to this Honourable Court why a final order should not be made in the following terms:1. The 1st respondent, its members, and all other persons acting through it and on ...

The applicants approached this court seeking a provisional order in the following terms:

“TERMS OF FINAL ORDER SOUGHT

That you show cause to this Honourable Court why a final order should not be made in the following terms:

1. The 1st respondent, its members, and all other persons acting through it and on its instructions be and are hereby interdicted from embarking on a collective job action arising from the dispute around the 2015 to 2016 collective bargaining agreement, pending the finalisation of the dispute in accordance with due process.

2. That the 1st respondent shall pay the costs of this application on a legal practitioners and client scale.

INTERIM RELIEF

Pending confirmation or discharge of the final order the applicants are granted the following interim relief:

1. The 1st respondent, its members, and all other persons acting through it and on its instructions be and are hereby interdicted from embarking on a collective job action.

2. Should any member of the 1st respondent resort to the said collective job action, such action shall be unlawful and the applicants shall have the right to bring such member before a disciplinary hearing.

3. The 2nd respondent shall, within 7 working days of this order, convene a meeting of the parties to the dispute for purposes of referring the matter to arbitration.

4. That leave is hereby granted to the applicants' legal practitioners or the Sheriff to attend to the service of this order forthwith upon the respondents in accordance with the Rules of High Court.”

The background to the matter is that the first respondent (Zimbabwe Sugar Milling Industry Workers Union) embarked on a collective job action sometime between 27 November 2015 to around 18 December 2015. As a result of the intervention of the second respondent (the Minister of Public Service, Labour and Social Welfare), the applicants and the first respondent agreed to the termination of the collective job action which termination took effect on 18 December 2015.

I must, at this stage, point out that there is a dispute between the parties whether the collective job action was suspended or terminated. The first respondent argues that it was suspended whilst the applicants argue that it was terminated.

The parties were supposed to resume efforts to resolve the dispute by way of due process from where they had left. This failed for reasons I will not go into.

The first respondent then wrote advising the applicants that it was resuming the collective job action.

The applicants then brought the present proceedings seeking to interdict the first respondent from embarking on a collective job action.

It is the applicants position that the parties agreed to the termination of the collective job action. It was not suspended. It cannot be resurrected.

The threatened and purported resumption of the collective job action is defective and such action will be unlawful for want of compliance to the provisions of the Labour Act [Chapter 28:01] (The Act) on collective job action.

The application was opposed by the first (Zimbabwe Sugar Milling Industry Workers Union) and fourth (Sugar Production Milling Allied Workers Union of Zimbabwe) respondents....,.

The first respondent raised, in limine, that this court has no jurisdiction to deal with this matter.

Counsel for the first respondent contended, that, in terms of section 89(6) of the Labour Act, the Labour Court was given exclusive jurisdiction to entertain labour disputes.

In terms of section 104 of the Labour Act, the employees are entitled to go on strike. If the employer regards the job action as illegal he will be entitled to act in terms of section 106 to apply for a show cause order returnable to the Labour Court which then disposes of the matter in terms of section 107. It further contended, that, in terms of section 106(2)(b), the second respondent (the Minister of Public Service, Labour and Social Welfare) can issue interim orders which include suspension of the collective job action.

The applicants seek to interdict the first respondent to embark on a collective job action which it perceives to be unlawful. The applicants are asking the court to take the powers given to the second respondent in terms of section 104 of the Labour Act.

Counsel for the first respondent further submitted that the relief that the applicants seek is available in the Labour Court.

Paragraph 2 of the Provisional Order is a declaratur which is not competent as interim relief.

In paragraph 3, they seek to compel the second respondent to convene a meeting of the parties for purposes of referring the matter to arbitration. Such relief can be obtained in terms of the Labour Act.

Counsel for the first respondent further submitted that the applicants had not exhausted the available domestic remedies.

They could appeal in the Labour Court in terms of section 110(1) of the Labour Act.

The applicants have since filed an application in the Labour Court for the determination of the substantive dispute between the parties.

Why should they then bring this issue before this court?

He further contended that whilst the court has residual powers to grant declarators and interdicts; in casu, show cause orders are specifically provided for in the Labour Act.

On his part, counsel for the applicants submitted the Labour Act does not confer on the Labour Court the power to grant interdicts.

The applicants, sometime in November 2015, approached the second respondent for a show cause order. It has not been determined. Rather, the second respondent came up with a parallel process which led to the stoppage of the collective job action. The fact that the show cause order application has not been determined, for two months, is an indication that the second respondent cannot offer effective alternative remedies.

He further contended that if the court were convinced that the collective job action was terminated instead of being suspended, then the court ought to find in favour of the applicants. The interdictory relief that the applicants seek amounts to a disposal order.

He confirmed that the applicants have filed an application in the Labour Court. They therefore require that the status quo ante be maintained until the main dispute has been disposed of.

He made reference of section 4(1) of the Administrative Justice Act [Chapter 10:28] which provides for relief to persons aggrieved by the actions of an administrative authority.

He contended that section 110 of the Labour Act does not apply to the current situation as no show cause order has been made or rejected. This has rendered this particular domestic remedy ineffective. The applicants can only approach the High Court.

To buttress his argument, he made reference to Confederation of Zimbabwe Industries v Rita Marque Mbatha HH125-15 where MATHONSI J found that section 171(a) of the Constitution of Zimbabwe has reinstated the jurisdiction of this court on Labour Court matters which had been ousted by section 89(6) of the Labour Act.

Jurisdiction

Section 89(6) of the Labour Act provides as:

“No court, other than the Labour Court, shall have jurisdiction in the first instance to hear and determine an application, appeal, or matter referred to in subsection (1).”

It was settled position in our law that the High Court, or any other court, has no jurisdiction to hear and determine labour disputes which are subject to resolution in terms of the Labour Act: see Tuso v City of Harare 2004 (1) ZLR; and Border Timbers (Pvt) Ltd v Export Processing Zones Labour Board and Others SC46-09.

This was the position until Confederation of Zimbabwe Industries v Rita Marque Mbatha HH125-15 wherein MATHONSI J expressed the view that section 171(1) of the Constitution re-instated the jurisdiction of the High Court over labour matters.

In Stanley Machote v Zimbabwe Manpower Development Fund HH813-15, TSANGA J had occasion to relate to the question whether the Constitution had reinstated the jurisdiction of the High Court in labour matters. She was also referred to Confederation of Zimbabwe Industries v Rita Marque Mbatha HH125-15.

At p4 of the cyclostyled judgment she had this to say:

“As stated, when a court has original jurisdiction this refers to its standing and right to hear a case as the first court of first instance.

Constitutionally, the High Court has indeed been conferred with unfettered power to exercise original jurisdiction in all civil and criminal matters as argued by the respondent. Such original jurisdiction is exercisable even in matters regulated by statute.

However, whilst section 171(1)(a) does confer upon the High Court original jurisdiction over all civil and criminal matters throughout Zimbabwe, this overall authority also has to take into account other applicable constitutional provisions as well as legislation in force that in reality places some breaks or limits on its exercise of original jurisdiction in specific instances.

Thus, section 172(2) of the Constitution gives the Labour Court 'jurisdiction over labour matters as conferred by an Act of Parliament'.

The applicable Act of Parliament in labour matters is the Labour Act [Chapter 28:01].

As stated, its section 89(6) clearly confers on the Labour Court jurisdiction in the first instance; jurisdiction to hear and determine any applications, appeals, or other matters stipulated in that Act.

The Labour Act is thus a delegated piece of legislation in labour matters in terms of which it is empowered to determine all labour matters as a court of first instance and as also as a court of appeal.

It can be said, that, at least in labour matters, there is express legislative exclusion by an Act of Parliament of the High Court's original jurisdiction that is envisaged by section 171.

In the face of what is tantamount to legislative exclusion of the High Court's original jurisdiction in labour matters, there would have to be a powerful 'need' for upsetting the implied exclusion of the High Court's original jurisdiction in labour matters. It is not the intention of the legislature, in granting the High Court original jurisdiction, to create unwarranted conflict with legislation in force.”

I agree entirely with the sentiments expressed by TSANGA J.

Provisions of the Constitution cannot be read in isolation.

If section 171(1) is read with section 172, it becomes clear that “all matters” in section 171(1) excludes matters over which a specialized court, such as the Labour Court, is established.

The absurdity that will arise is that while the Labour Court is set up with elaborate mechanisms to deal with labour disputes, litigants will by-pass it and approach the High Court.

This would render the establishment of specialised courts nugatory. This would not have been the intention of the drafters of the law.

The next issue for determination is whether the dispute before me is a labour dispute subject to resolution by the Labour Court.

The parties are agreed that the dispute between them, viz the threat to go on a collective job action, a labour dispute, can be dealt with in terms of the Labour Act by the Labour Court.

Section 104(1) of the Labour Act gives the first respondent the right to resort to collective job action to resolve disputes of interest. This is provided that they meet the requirements set out in section 104(2).

Section 106 of the Labour Act provides:

“106 Show cause orders

(1) Whenever a workers committee, trade union, employers organisation or federation of registered trade unions or employers organisations (hereafter in this section called a 'responsible person') threatens, recommends, encourages, incites, organises, engages in any collective action referred to in subsection (1) of section one hundred and nine (hereinafter in this section and section one hundred and seven called an 'unlawful collective action'), the Minister, acting on his own initiative or upon the application of any person affected or likely to be affected by the unlawful collective action, may issue an order calling upon the responsible person to show cause why a disposal order should not be made in relation thereto: Provided that the Minister may call both parties to appear before him or her for submissions before he or she issues a show cause order if he or she deems it necessary that they appear.

(2) A show cause order -

(a) Shall specify -

(i) The date, time and place at which the responsible person must appear before the Labour Court to show cause why a disposal order should not be made; and

(ii) The order or action desired or proposed;

(b) May direct that pending the issuance of a disposal order, the unlawful collective action concerned be terminated, postponed, or suspended.”

In terms of section 107 of the Labour Act, the show cause order is returnable to the Labour Court which then issues a disposal order after an inquiry.

The point of departure is where the applicants are arguing that they made the application in terms of section 106 of the Labour Act and the second respondent has not determined the matter.

They contend that the second respondent has failed to offer an alternative effective remedy.

They further contend that the respondent has no jurisdiction to issue an interdict of the nature being sought.

That is why they approached this court in terms of section 4 of the Administrative Justice Act.

That the first respondent is threatening to embark on a collective job action is essentially a labour dispute. The Labour Act has elaborate provisions to deal with such disputes.

The next issue would be whether the applicants have exhausted the domestic remedies provided for in the Labour Act for them to then approach this court for relief.

I agree with counsel for the applicants that they cannot proceed in terms of section 110 of the Labour Act as the second respondent has not made a determination. Section 4 of the Administrative Justice Act provides:

“4. Relief against administrative authorities

(1) Subject to this Act and any other law, any person who is aggrieved by the failure of an administrative authority to comply with section three may apply to the High Court for relief.

(2) Upon an application being made in terms of subsection (1), the High Court may, as may be appropriate -

(a) Confirm or set aside the decision concerned;

(b) Refer the matter back to the administrative authority concerned for consideration or reconsideration;

(c) Direct the administrative authority to take administrative action within the relevant period specified by law, or, if no such period is specified, within a period fixed by the High Court;

(d) Direct the administrative authority to supply reasons for its administrative action within the relevant period specified by law, or, if no such period is specified, within a period fixed by the High Court;

(e) Give such directions as the High Court may consider necessary or desirable to achieve compliance by the administrative authority with section three.

(3) Directions given in terms of subsection (2) may include directions as to the manner or procedure which the administrative authority should adopt in arriving at its decision and directions to ensure compliance by the administrative authority with the relevant law or empowering provision.

(4) The High Court may, at any time, vary or revoke any order or direction given in terms of subsection (2).”

It provides relief which can be granted by this court to a person who is aggrieved by the failure of an administrative authority, such as the second respondent in casu (the Minister of Public Service, Labour and Social Welfare), to comply with the provisions of section 3 of the Administrative Justice Act.

Section 3 of the Administrative Justice Act [Chapter 10:28] provides:

“3. Duty of administrative authority

(1) An administrative authority which has the responsibility or power to take any administrative action which may affect the rights, interests, or legitimate expectations of any person shall -

(a) Act lawfully, reasonably, and in a fair manner; and

(b) Act within the relevant period specified by law, or, if there is no such specified period, within a reasonable period after being requested to take action by the person concerned; and

(c) Where it has taken action, supply written reasons therefor within the relevant period specified by law, or, if there is no such specified period, within a reasonable period after being requested to supply reasons by the person concerned.”

The applicants, in casu, are not seeking any of the relief as provided for in section 4(2) of the Administrative Justice Act.

This is the course of action that they should have adopted when they realised that the second respondent was refusing or neglecting to determine their show cause. They could have sought for relief as provided for in terms of section 4(2), (c) and (e) of the Administrative Justice Act. The matter could have then proceeded in terms of section 106 of the Labour Act.

In terms of section 106(2)(b) of the Labour Act, the second respondent has power to issue interim measures such as the termination, postponement, and suspension of the collective job action.

The applicants chose to go along with the parallel process adopted by the second respondent and abandon the show cause order application.

Whilst the High Court has residual powers to grant declarators and interdicts; in casu, show cause orders are specifically provided for in the Labour Act and can provide the same remedies that the applicants seek in this court.

In any event, asking this court to interdict a collective job action would amount to ursurp the powers given to the second respondent in terms of section 104 of the Labour Act.

In paragraph 2 of the provisional order, the applicants seek, in effect, a declarator in respect of the unlawfulness of the strike. That relief is not competent on a certificate of urgency, as it is final in nature.

Accordingly, I will uphold the point in limine.

In the result, I will make the following order;

(1) The fourth respondent.

(2) The application is dismissed.

(3) The applicants to pay the costs of the first respondent and the fourth respondent.

SSC10-21 : ROBERT GUMBURA and OTHERS vs FRANCIS MAPFUMO N.O. and THE NATIONAL PROSECUTING AUTHORITY
Ruled By: GWAUNZA DCJ, MAKONI JA and BERE JA

The remedy sought by the appellants was a temporary interdict. The prerequisites for such an interdict are trite and are set out in Setlogelo v Setlogelo 1914 AD 221.

SC18-21 : A. ADAM AND COMPANY (PVT) LTD and SGI PROPERTIES (PVT) LTD and GARABGA NCUBE AND PARTNERS vs GOODLIVING REAL ESTATE (PVT) LTD
Ruled By: GUVAVA JA, MAVANGIRA JA and BHUNU JA

This is an appeal against the whole judgment of the High Court sitting at Harare, dated 10 July 2019, in favour of the respondent. The court a quo in this case granted an interdict against the first and second appellants ordering them to share the money collected between 2014 and 2018 in accordance with the partnership agreement and stopping them from interfering with the management of Stands 147 and 151 Mbuya Nehanda Street, Harare.

BACKGROUND FACTS

In order to understand the basis of this appeal, it is necessary to set out, in some detail, the background of this matter.

The first and second appellants ('the appellants') are the owners of commercial properties known as Stand 147 and 151 Mbuya Nehanda Street, Harare ('the properties'). The third appellant is a law firm representing the appellants. The respondent is a real estate company, registered in terms of the laws of Zimbabwe.

The first and second appellants, and the respondent, entered into a partnership agreement wherein the respondent would develop and build shops on the appellants Stands. In terms of this agreement, it would be valid for a period of three (3) years and subject to renewal by both parties. The parties also agreed that the respondent would develop and effect certain improvements on the two properties at its own expense. It was further agreed, that, upon completion of the development of the properties, the parties would lease them out with the appellants being entitled to 67 per cent of the rentals and the respondent to 33 per cent.

Subsequent to this agreement, the parties entered into a commercial lease agreement dated 26 August 2010, which resulted in a joint venture agreement. Following the creation of the lease agreement, a dispute arose between the parties. The first and second appellants alleged that the contract between the parties was to operate for a period of three (3) years only whereas the respondent alleged that it was for a period of at least fifteen (15) years. The averment by the respondent was made on the basis of purported terms of a prior verbal agreement which the parties made before the creation and signing of the partnership agreement on 10 January 2010.

The dispute between the parties resulted in numerous litigation between the parties.

On 4 September 2013, the respondent approached the High Court under case number HC7215/13 seeking an interdict stopping the appellants from interfering with the respondent's management of the properties as agreed in the partnership agreement. The application resulted in a consent order which was granted by TAKUVA J and whose operative part reads as follows:

“1. Pending final disposition of the substantive dispute between the parties, through arbitration proceedings, the status quo obtaining at the premises in question shall continue to subsist and the parties' relations shall continue to be regulated by the existing agreements.

2. The parties shall proceed with due expedition to refer the dispute between them to the Commercial Arbitration Centre for resolution by an Arbitrator who shall dispose of the substantive dispute in accordance with the provisions of the Arbitration Act.

3. Each party shall bear its own costs.”

The dispute was referred to arbitration on 13 October 2013. The respondent sought a determination regarding whether the joint venture agreement had ceased to exist; whether it was entitled to take over the management and control of the developed premises; and, alternatively, whether the appellants had lawfully cancelled the agreements.

The respondent further filed an application for rectification before the High Court which sought the rectification of the partnership contracts so as to reflect the true intention of the parties in relation to the duration period to be covered by the agreement. The respondent alleged that the arbitrator, retired SMITH J, then wrongly advised it to withdraw its application for rectification before the High Court so that he would deal with it himself. The respondent further alleges that it co-operated without knowing that the arbitrator was an interested party and he went on to dismiss the rectification application.

On 29 May 2014, the arbitrator granted an interlocutory award in favour of the first and second appellants which ordered the respondent to remit all the rentals collected into the third appellant's trust account. On 6 December 2016, the arbitrator issued a final award.

The appellants sought to register the arbitral award under case number HC1054/17.

On the other hand, the respondent made an application for the setting aside of the arbitral award under HC1347/17. The applications were heard together by PHIRI J who set aside the arbitral award and dismissed the appellants' application for registration of the award. The appellants noted an appeal against this decision before the Supreme Court under case number SC351/19.

Following the setting aside of the arbitral award by PHIRI J, the respondent filed an application for an interdict against the appellants. The respondent sought to interdict the appellants from interfering with the management of the properties and a mandatory interdict ordering that rentals collected should be shared in terms of the partnership agreement.

SUBMISSIONS A QUO

In making the application, the respondent averred that the written agreement between the parties did not correctly reflect the intention of the parties.

It was always their intention that the agreement would operate for a period of 15 years to enable the respondent to recover its capital and make a reasonable profit. The respondent further averred that to prove the agreement was meant to exist for 15 years, some of the tenants were made to enter into lease agreements of 15 years whereby both parties appended their signatures confirming the partnership would subsist for 15 years.

Further, the respondent averred that it had invested about one million dollars into the project, and, by the time when the application was made, it had only recovered about US$250,000.

The appellants opposed the application and argued that the partnership agreement between the parties was never set aside and was to operate for 3 years only.

The appellants also submitted that the respondent had no lawful right to collect rentals from the occupants of the premises in dispute.

The court a quo, in dealing with the application, found that the respondent had managed to satisfy the requirements of a temporary interdict which it sought.

The court further found that the arbitral award, having been set aside, and that decision having been appealed against, the consent order by TAKUVA J was in operation in determining how the parties would interact pending the appeal.

The court found that the interim award changed the status quo which had been determined by the order of TAKUVA J, and, that the interim award thus contradicted the consent order. The court held that the consent order granted by TAKUVA J was an order of a superior jurisdiction compared to arbitration proceedings. Thus, the only courts which could interfere with the order are the High Court itself or other superior courts. As such, the court found that the arbitrator misdirected himself by varying an order of the High Court. Thus, the order governing the parties was the consent order and not the interim order.

On that basis, the court granted the application for an interdict sought by the respondent and made the following order:

“1. The money collected since 2014 to 2018 and remitted in the 3rd respondent's trust account, all arrear rentals the respondents collected in form of cash or through their personal accounts and money sitting in the trust account of the Law Society of Zimbabwe be shared in accordance to the partnership agreement in proportion of 33% and 67% respectively.

2. 1st and 2nd respondents be and are hereby ordered to stop interfering in the management of both Stand 147 and 151 Mbuya Nehanda Street, and collection of rentals on Stand Mbuya Nehanda Street, Harare as dictated by the partnership agreement pending the outcome of an appeal filed under SC351/19.

3. The 1st, 2nd and 3rd respondents jointly and severally each paying the other to be absolved pay the costs of this application.”

Dissatisfied with the decision of the court a quo, the appellant noted this present appeal under the following grounds:

“1. The court a quo erred at law and grossly misdirected itself on the facts relating to an interim interdict application and affording such relief in circumstances where no such application was before it.

2. The court a quo erred and misdirected itself in finding as it did that Mr Justice Takuva's order was negated by the interim arbitration award of 29 May 2014. This ignored the common cause position that the consent order of Mr Justice Takuva contemplated resolution of the dispute in terms of the relevant law, which law provides for the relief of an interim award.

3. In any event, the court a quo grossly erred and misdirected itself in affording interdictory relief in light of the extant arbitration award of 8 September 2014 dismissing respondent's rectification claim.

4. The court a quo erred and grossly misdirected itself in resuscitating a partnership agreement whose fate had been sealed by the dismissal of the rectification claim by the arbitrator, retired Justice Smith, and, therefore, no basis existed for the court to order any sharing of rentals and/or management of 1st appellant's property.

5. The court a quo grossly erred and misdirected itself in granting interdictory relief where the respondent had not met the requirements of such relief.”

ISSUES FOR DETERMINATION

It appears to me that from the five grounds of appeal the determination of one issue will resolve the dispute. The issue for determination is whether or not the court a quo correctly granted the interdict sought by the respondent.

SUBMISSIONS ON APPEAL

At the hearing, counsel for the appellants argued that the application made before the court a quo by the respondent was an application for a final interdict. It was counsel's argument that the draft order sought by the respondent clearly showed that paragraph 1 was for a final mandatory interdict whereas paragraph 2 sought a prohibitory interdict of interference. With that, counsel argued that the court misdirected itself when it considered the requirements of an interim interdict as no such application was before it.

Counsel further argued that the court a quo failed to correctly apply the requirements of a final interdict as had been sought by the respondent. It was argued that the respondent had no clear right to claim as the dispute between the parties, pertaining to the partnership agreement, was ongoing, and, as such, no clear right could be deduced from the ongoing dispute.

Also, it was counsel's argument that the respondent failed to satisfy the requirement that it did not have alternative remedies as it could still claim damages, specific performance, or an order of contempt of court against the appellants.

Per contra, counsel for the respondent argued that the court a quo correctly granted the draft order which was sought by the respondent as the respondent had satisfied all the requirements in making its application. Counsel further argued that the only remedy the respondent had in the face of the appellants continued disturbance of its management of the properties, was for the respondent to seek for an interdict which was correctly granted by the court.

APPLICATION OF THE LAW TO THE FACTS

The respondent made an application for a final interdict before the court a quo.

In its founding affidavit, it listed the requirements it had to satisfy in making the application, being:

(i) Existence of a clear right;

(ii) Imminent danger;

(iii) Irreparable harm; and

(iv) Absence of other remedies.

The respondent's draft order reads as follows:

“1. The money collected since 2014 to 2018 and remitted in the 3rd respondent's trust account, all arrear rentals the respondent's collected in form of cash or through their personal accounts and money's sitting in the trust account of the Law Society of Zimbabwe be shared in accordance to the partnership agreement in proportion of 33% and 67% respectively.

2. 1st and 2nd respondents be and are hereby ordered to stop interfering in the management of both Stand 147 and 151 Mbuya Nehanda Street, and collection of rentals on Stand 151 Mbuya Nehanda Street, Harare as dictated by the partnership agreement.

3. The 1st, 2nd and 3rd respondents jointly and severally each paying the other to be absolved pay the costs of this application on an attorney and client scale.”

The court a quo, in determining the application made by the respondent, however, went on to consider the requirements of an interim interdict. The court noted as follows:

“The applicant seeks both a mandatory and prohibitory interdict. The requirements of a temporary interdict are trite. They are;

1. A prima facie right, though it may be open to doubt;

2. A well-grounded apprehension of irreparable harm;

3. The balance of convenience must favour the grating of the interdict;

4. Absence of any other satisfactory remedy.

…,.

I will proceed to consider whether the applicant satisfied the requirements of the temporary interdicts sought.”

From the above remarks made by the court a quo, it is clear that the court fell into error when it considered the application before it as an application for an interim interdict when in fact it was an application for a final interdict.

The requirements that must be established in an application for a final interdict have been set out in a long line of cases in this jurisdiction. In the case of Econet Wireless Holdings & Ors v Min of Finance & Others 2001 (1) ZLR 373 (S)…, this Court had occasion to once again succinctly set them out. The court held that:

“What the appellants in this case sought was a final interdict. In order to succeed in obtaining such an interdict they had to establish:

(a) A clear right;

(b) An injury actually committed or reasonably apprehended; and

(c) The absence of similar protection by any other ordinary remedy.

See Setlogelo v Setlogelo 1914 AD 221 at 227; Sanachem (Pty) Ltd v Farmers Agri-care (Pty) Ltd & Ors 1995 (2) SA 781 (A) at 789B-C; Charuma Blasting & Earthmoving Svcs (Pvt) Ltd v Njanjai & Ors 2000 (1) ZLR 85 (S) at 89D; Blue Rangers Estates (Pvt) Ltd v Muduviri & Another 2009 (1) ZLR 368 (S).”

Whereas the requirements for an interim interdict were aptly stated in Airfield Investments (Pvt) Ltd v Minister of Lands & Ors 2004 (1) ZLR 511 (S). The Court cited with approval the case of L F Boshoff Investments (Pty) Ltd v Cape Town Municipality 1969 (2) SA 256 (C)…, CORBETT J…, wherein the court said an applicant for such temporary relief must show:

“(a) That the right which is the subject matter of the main action, and which he seeks to protect by means of interim relief is clear, or, if not clear, is prima facie established though open to some doubt;

(b) That, if the right is only prima facie established, there is a well grounded apprehension of irreparable harm to the applicant if the interim relief is not granted and he ultimately succeeds in establishing his right;

(c) That the balance of convenience favours the granting of interim relief; and

(d) That the applicant has no other satisfactory remedy.”

There can be no doubt, from the above cited authorities, that, the requirements to be considered and assessed by a court when faced with an application for an interim and final interdict are different.

The court a quo, in casu, however, assessed the respondent's application on the requirements of an application for interim interdict which had not been sought or motivated by the respondent. The court could not have properly assessed whether or not the respondent had satisfied the requirements for an interim interdict as the respondent's founding affidavit was making a case for a final interdict.

In Gwaradzimba N.O. v CJ Petron & Co. (Pty) Ltd 2016 (1) ZLR 28 (S), the Court emphasised the importance for a court to determine all issues raised before it. The court held that:

“The position is well settled, that, a court must not make a determination on only one of the issues raised by the parties and say nothing about other equally important issues raised 'unless the issue so determined can put the whole matter to rest;' Longman Zimbabwe (Pvt) Limited v Midzi & Ors 2008 (1) ZLR 198, 203 D (S).

The position is also settled, that, where there is a dispute on some question of law or fact, there must be a judicial decision or determination on the issue in dispute. Indeed, the failure to resolve the dispute or give reasons for a determination is a misdirection, one that vitiates the order given at the end of the trial.”

In PG Industries Zimbabwe (Pvt) Ltd v Bvekerwa & Others SC53-16 the court held the following:

“The position is settled, that, where there is a dispute on a question, be it on a question of fact or point of law, there must be a judicial decision on the issue in dispute. The failure to resolve the dispute vitiates the order given at the end of the proceedings.”

Also, in Nzara and Ors v Kashumba N.O. and Ors SC18-18…, the Court held that:

“The function of a court is to determine the dispute placed before it by the parties through their pleadings, evidence, and submissions. The pleadings include the prayers of the parties through which they seek specified orders from the court. This position has become settled in our law. Each party places before the court a prayer he or she wants the court to grant in its favour. The Rules of Court require that such an order be specified in the prayer and the draft order.

These requirements of procedural law seek to ensure that the court is merely determining issues placed before it by the parties and not going on a frolic of its own. The court must always be seen to be impartial and applying the law to facts presented to it by the parties in determining the parties' issues.”

From the above referred authorities, it is clear that this Court has pronounced itself on the importance of a court to be guided by the papers and pleadings placed before them. A court must neither stray from the issue it is asked to determine nor must it create an issue for the parties. It must not go on a frolic of its own.

In casu, the respondent placed before the court a quo an application for a final order.

The draft order sought clearly showed that the respondent was seeking a final interdict as per paragraph 1 of the draft order for the sharing of the rentals which had been collected since 2014 to 2018 in terms of the partnership agreement.

Paragraph 2 was more of an interim relief which sought to prohibit the appellants from interfering in the management of the properties pending the outcome of the appeal which had been filed under SC351/19.

The court a quo thus grossly misdirected itself in granting the draft order on the basis of the requirements of an interim interdict which had not been motivated by the respondent. The court a quo ought to have been guided by the papers placed before it by the parties before making its determination on the application which was being sought by the respondent.

The respondent made an application for a final interdict and went on to motivate the requirements for such application. There was no application for an interim interdict before the court, and, as such, the order granted by the court was erroneously granted.

The court finds merit in the arguments made by counsel for the appellant, and, on this basis alone, the appeal must succeed.

The appellants have succeeded and they are thus entitled to their costs. I am not however persuaded by the argument that the appellants have made out a case that justifies that they should have been awarded costs on a legal practitioner client scale before the court a quo.

DISPOSITION

In the result, it is accordingly ordered as follows:

1. The appeal succeeds with costs.

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

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

View Appeal
HH480-21 : EZEKIEL CHINOINGIRA vs BALWEARE HOLDINGS (PVT) LTD and SABRE SERVICES (PVT) LTD
Ruled By: MUCHAWA J

This is an urgent chamber application in which the interim relief sought is that the first respondent be barred and interdicted from evicting the applicant from a certain farm known as “the remainder of Westhey, Sabonabon Estate, Kadoma arbitrarily without a court order.As a final order, it is prayed that ...

Appealed
SC25-22 : ELLIOT RODGERS vs PUWAYI CHIUTSI and TENDAYI MASHAMHANDA and REGISTRAR OF DEEDS and SHERIFF OF ZIMBABWE and BARIADE INVESTMENTS PL and LAW SOCIETY OF ZIMBABWE
Ruled By: GWAUNZA DCJ, GUVAVA JA and BHUNU JA

This is an appeal against the whole judgment of the High Court handed down on 14 March 2019, in which the court a quo dismissed the appellant's application for interim relief. The appeal was heard together with that in SC09/20 which involved the same parties, centered around the same dispute and effectively sought the same relief that the appellant seeks in casu.

However, separate judgments for the two appeals have been issued.

The sixth respondent, having applied for the de-registration of the first respondent as a legal practitioner, indicated it would abide by the decision of the court.

FACTUAL BACKGROUND

In 2012, the appellant in this matter sold his house, at No.30 Arundel School Road, with the conveyancing done by the first respondent (a legal practitioner). From a series of actions and applications brought before the courts, it was accepted that the first respondent misappropriated some of the proceeds from the sale of the immovable property.

Consequently, the appellant successfully instituted legal proceedings against the first respondent and obtained a judgment against him in 2015.

Despite a multiplicity of legal proceedings at the instance of the first respondent, the appellant managed to place a caveat on the latter's immovable property, being a certain piece of land situate in the district of Salisbury called the remainder of subdivision C of Lot 6 of Lot 190, 191, 192, 193, 194 and 195 Highlands estate of Welmoed measuring 4,377 square metres, under Deed of Transfer No. 8421/2000.

Pursuant to this, the Sheriff successfully sold the first respondent's property in execution, to the fifth respondent. The first respondent, in a number of applications, challenged the sale in execution which the Sheriff, nevertheless, eventually confirmed.

The High Court as well as this Court further upheld the confirmation of the sale.

Despite these numerous judgments, and the caveat placed upon his property, the first respondent managed to transfer the same property to the second respondent on 8 February 2019. The appellant, in his founding affidavit a quo, averred that such transfer could only have been made possible through some fraudulent conduct on the part of the first respondent in connivance with the Registrar of Deeds.

Subsequently, the appellant filed an urgent application before the court a quo seeking a provisional order in the following terms:

“Terms of final order sought

It is ordered that:

1. Puwayi Chiutsi be and is hereby struck off from the roll of legal practitioners.

2. Puwayi Chiutsi and the Sheriff of Zimbabwe each paying the other to be absolved, pays costs of suit on a scale as between attorney and client.

3. The applicant's legal practitioners be and is hereby given leave to serve the copy of this order to the Registrar of Deeds.

Terms of Interim Order Sought

Pending the final determination of this matter, at the return date, the applicant is granted the following relief;

1. That Deed of Transfer No.708/19, issued in the name of Tendai Mashamhanda in respect of a piece of land in the district of Salisbury called the remainder of subdivision C of Lot 6 of Lot 190, 191, 192, 193, 194 and 195 Highlands estate of Welmoed measuring 4,377 square metres be and is hereby cancelled.

2. That forthwith, the Law Society of Zimbabwe, must place the law firm of Puwayi Chiutsi under curatorship in terms of the Legal Practitioners Act.

3. Puwayi Chiutsi be and is hereby suspended from the practise of the legal profession (at the commencement of proceedings, counsel for the appellant informed the court that both the first respondent and his legal firm had since been de-registered by the Law Society of Zimbabwe).”

On 28 February 2019, the court a quo found that the application was not urgent in as far as it related to the relief sought to compel the Law Society of Zimbabwe to place the first respondent's law firm under curatorship, and, also, his suspension from practice as a legal practitioner.

On 1 March 2019, the court a quo proceeded to hear the rest of the application on the merits.

The court a quo found that the interim relief sought by the appellant, in respect of the cancellation of Deed of Transfer No.708/19, would in fact be a final order. The court brought this issue to the attention of the parties. It was submitted, on behalf of the second respondent, that he was ready to accept an interim interdict to stop any transfer of the property pending determination on the return date. However, the appellant did not move for any relief in the alternative and chose to stand or fall on the final relief being sought.

Consequently, the court a quo held that it was improper to seek final relief on the basis of submissions supporting the grant of an interim order. The court noted, correctly, that such a circumstance would leave nothing for the court to confirm or discharge on the return date.

It also expressed the view that the appellant's interests could have been secured by a temporary interdict prohibiting any transfer of property by the second respondent pending the return date. However, the court took the view that it could not grant such an order as it had not been prayed for, and accordingly, dismissed the application.

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

1. The court a quo grossly erred, holding that there was no urgency in the application in so far as it related to the suspension of Puwayi Chiutsi, the first respondent, from practicing as a legal practitioner.

2. The court a quo grossly erred in not understanding and holding that the court, as well as the appellant, had the duty to ensure the protection of the public and indeed the legal protection against errant lawyer (sic) whose damage to the public and to the legal profession was immense.

3. The court a quo grossly erred, in failing to grant the provisional order sought in terms of the chamber application filed by the appellant.

4. Further, as a question of law, the court a quo erred in not finding, that, in the circumstances of this case, the appellant had shown the legal basis for the granting of the order that was sought whether or not it could be classified as final.

In addition to an order that the appeal be allowed with costs, the appellant seeks an order that the judgment of the High Court be set aside and substituted with an order granting the relief that he originally sought a quo.

This is notwithstanding the fact that he had amended his draft order to leave out the parts of the relief that the court had ruled not to be urgent.

ISSUE FOR DETERMINATION

Notwithstanding the fact that the appellant has four grounds of appeal, as outlined, the only issue that arises for determination in this matter is contained in the appellant's third and fourth grounds of appeal; that is, whether or not the court a quo erred in dismissing the application for what was in fact a final order disguised as provisional order.

The court finds the other two grounds of appeal to be both misplaced and without merit....,.

Whether or not the court a quo erred in not granting the provisional order sought

It is evident from the appellant's fourth ground of appeal that he accepted that the relief that he sought could very well be determined to be final in nature. That notwithstanding, his attitude is that the court a quo still erred in not granting the relief that he sought.

It is argued, in his heads of argument, that, the cancellation of the title deed in question was part of the 'interim interdict' that he sought a quo and that, in any case, there was 'small difference between the granting of an interim interdict and the granting of a final interdict.'

The appellant argues, further, that, there is nothing in the High Court Act or the Rules, that says that a final interdict or final order cannot be granted in chambers. This is because, so the argument goes, a final order can be granted provided there is evidence and facts to support its granting.

The appellant's lengthy heads of argument chronicle, at length, and with harsh condemnation, instances of the first respondent's alleged unprofessional conduct in this whole dispute.

On that basis, and relying on a number of authorities, the appellant surprisingly shifts from the interim relief argument, to submit that the matter a quo was argued on the basis of final relief. That being the case, he contends, the court a quo should have granted the final relief sought.

The first and second respondents both sought the dismissal of the appeal with costs.

It was argued, for the first respondent, that, the relief sought, in the form of an order cancelling a Deed of Transfer was final in both effect and nature, since it constituted an extinction of all rights vesting by circumstance of the Deed in question. Further, that such relief could not 'properly be sought or procured on an urgent basis or at any rate, on the strength of a prima facie case.'

Echoing the same sentiments, the second respondent submits that in an urgent application, a party comes to court with a prima facie case and is granted relief that is temporary in nature and meant to preserve the rights of the parties pending final resolution of the dispute on the return date.

There is merit in the submissions of the first and second respondents in this respect.

The court a quo correctly found that the interim relief sought, to cancel Deed of Transfer No.708/19, issued in the name of the second respondent, was final in its form and effect.

Contrary to the appellants' contention, that there is very little difference between a provisional and a final order, the definition and purpose of the former is markedly different from that of a final order. This distinction is stressed and underlined in a plethora of authorities both within and without our jurisdiction. C. B PREST in his book, The Law and Practice of Interdicts,,9th ed Juta & Co (Pty) Ltd..., defines and explains the purpose of a provisional order as follows:

“A provisional order is a remedy by way of an interdict which is intended to prohibit all prima facie illegitimate activities. By its very nature, it is both temporary and provisional, providing (interim) relief which serves to guard the applicant against irreparable harm which may befall him, her, or it, should a full trial of the alleged grievance be carried out. As the name suggests, it is provisional in nature, as the parties anticipate certain relief to be made final on a certain future date upon which the applicant has to fully disclose his, her, or its entitlement to a final order that the interim relief sought was ancillary to.”...,.

In the South African case of Development Bank of Southern Africa (Ltd) v Van Rensburg NO and Ors [2002] 3 All SA 669 (SCA), the court stressed that the purpose of a provisional order is to preserve the status quo pending the return day.

See also the Australian case, In Re: Brian Charles Gluestein; Ex parte Anthony [2014] WASC 381, and the English case in Attorney General v Punch Limited and Anor [2002] UKHL 50 where the same principles were emphasised.

Thus, unlike a provisional order, a final order is conclusive and dispositive of the dispute. It finally settles the issues in dispute and has no return date. Once a final order is given, the court issuing the order becomes functus officio and cannot revisit the same issues at a later date.

In Chiwenga v Mubaiwa SC86-20 this Court made the following remarks:

“It is settled law that the standard of proof for a provisional order is different from that of a final order. A provisional order is established on a prima facie basis because it is merely a caretaker, temporary order pending the final determination of the dispute on the return date. The parties have an opportunity to argue the matter again on the return date. On the other hand, a final order is obtained on the higher test of a clear right because it is final and definitive as it has no return date.”

Interestingly, both the appellant and the first respondent cite the same passage from Kuvarega v Registrar General and Anor 1998 (1) ZLR 188 (HC) in support of their opposing views on the propriety of the order sought by the appellant a quo, as follows:

“There was nothing interim about the provisional relief sought. It would have provided the applicant with the relief she sought on the day of the election. The practice of seeking interim relief, which is exactly the same as the substantive relief sued for and which has the same effect, defeats the whole object of interim protection. In effect, a litigant who seeks relief in this manner obtains final relief without proving his case. That is so because interim relief is normally granted on the mere showing of a prima facie case. If the interim relief sought is identical to the main relief and has the same substantive effect, it means that the applicant is granted the main relief on proof merely of a prima facie case. This, to my mind, is undesirable especially where, as here, the applicant will have no interest in the outcome of the case on the return day.

The point I am making will become clearer if I put it in another way.

If, by way of interim relief, the applicant has asked for a postponement of the election pending the discharge or confirmation of the provisional order, she would not, in that event, gain an advantage over the respondents, because the point she wanted decided would have been resolved before the election was held. But, if the interim relief were granted in the form in which it is presently couched, she would get effective protection before she proves her case and the election would be conducted on the basis that it is unlawful to wear t-shirts emblazoned with party symbols and slogans.

Therefore, it would be fruitless for the respondents to establish their entitlement to wear such t-shirts.

Care must be taken in framing the interim relief sought as well as the final relief so as to obviate such incongruities.”…,.

The first respondent relies on this passage to buttress his argument that the final order sought by the appellant could not be granted on the basis of a prima facie case.

Per contra, the appellant argues that the same passage:

“Supports the position that where the matter is argued on the basis of a final relief, and there are facts that show that a final relief should be granted, then the court should grant a final relief.”

While it is not clear just what part of the passage cited supports the appellant's assertions in this respect, it is evident, from the record, that the appellant, a quo and in this Court, argued for and effectively sought either provisional relief or final relief, based on the same set of evidence and facts. That this was the appellant's somewhat unusual, if not questionable, approach in the court a quo is explained in the following remarks in the court's judgment:

“The applicant, in his papers, seeks a provisional order with an interim order which is in fact a final order.

Urgent applications are brought to seek provisional orders as a measure to secure someone's interests pending a return day for confirmation or discharge.

The draft order by the applicant, under the interim order sought, says 'pending the final determination of this matter, at the return date, the applicant is granted the following relief.'…,. It is then a self-defeating argument to say one should get a final order at this stage.

What should then happen on the return date.

In fact, the return day will no longer be necessary for the applicant.

I disagree with Mr Biti for the argument he advanced to secure a final order. He relied on the inherent jurisdiction of this Court, that the High Court Act does not prohibit such order being granted and also referred to some case law which I did not find helpful to resolve this issue.

There are a number of issues which ought to be fully argued on the return day, e.g. the effect of the payment by Chiutsi; whether applicant has the locus standi to bring this application; issues of an innocent purchaser; existence of caveat or otherwise etc.

This matter is an urgent application.

If granted, it must have a return day, giving an opportunity to all parties to present their side of story not in an urgent atmosphere.

While it is accepted that there are instances where the court may grant a final order in an urgent application. However, that depends with the uniqueness of the nature of relief sought.

In casu, it is not desirable because the applicant's interests can be secured with a temporary interdict prohibiting any transfer of property by the second respondent.

The interim interdict has not been pushed for by the applicant as an alternative. The court can therefore not grant that which has not been asked for.

The omnibus approach advocated by Mr Biti, in his submission, is undesirable; one cannot obtain a final order in these circumstances. For these reasons, this application is bound to fail.”

We find it difficult to assail the reasoning of the court a quo as set out above.

The appellant, through his counsel, sought to secure what even he knew was a final order on the basis of a draft order formulated as a provisional order. In other words, he sought to be granted the main relief that he really craved, on an urgent basis, on proof merely of a prima facie case, and in circumstances where other relief would easily have secured his interests pending the return date. The court a quo properly applied the applicable law and gave cogent reasons for its inability to grant the provisional order in the form that it was presented by the appellant.

In a similar vein, the court, while accepting that in some rare instances a final order could be granted in urgent circumstances, gave sound reasons as to why the case at hand could not be given that special treatment.

The appellant, in short, failed to prove a case for either an interim or a final order.

A consideration of all the authorities cited above on the definition, purpose, and requirements of a provisional and a final order, and the distinction between the two, lays bare the shortcomings of and serious procedural faux pas attendant on the manner in which the appellant chose to prosecute this matter, both a quo and on appeal.

His heads of argument before this Court persist with the argument that the grant of either a provisional order or a final one had been proved through the evidence and facts argued before the court.

It is difficult to conceive how both a prima facie and a clear right could have been proved on the basis of the same facts and evidence.

The appellant, in the view of this Court, exhibited some ambivalence as to the exact nature of the relief that he is seeking in casu. This calls to mind the admonition by the court in Kuvarega v Registrar General and Anor 1998 (1) ZLR 188 (HC) to the effect that care needs to be taken in framing the relief that a litigant seeks from the court, be it interim or final.

One may also add that the import and effect of the orders sought before the court also need careful consideration to ensure compliance with the relevant procedural and substantive law. Failure by a legal practitioner to pay attention to these details is to do grave injustice and disservice to the litigant concerned.

For its failure to meet the requirements of the law, both procedurally and on the merits, the application a quo was doomed to fail, and was accordingly properly dismissed.

When all is considered, the appeal lacks merit and ought to be dismissed with costs.

DISPOSITION

The judgment and reasoning of the court a quo in this matter cannot be faulted. On the facts of the matter, and the evidence placed before the court, the appellant failed to prove a case for either interim relief or the final relief that he questionably sought.

It is accordingly ordered as follows:

“The appeal be and is hereby dismissed with costs.”

View Appeal
SC61-21 : COSMA CHIANGWA vs DAVID KATERERE and ROBERT CAMPBELL LOGAN and ISRAEL GUMUNYU and REGISTRAR OF DEEDS and EDMOND CHIVHINGE and MASTER OF THE HIGH COURT
Ruled By: BHUNU JA, MATHONSI JA and CHITAKUNYE AJA

This is an appeal against the whole judgment of the High Court (“the court a quo”) handed down on 15 June 2011 wherein the court a quo granted an application for a declaratur that the sale and transfer of Stand 382 Good Hope Township to the appellant was null and ...

FACTUAL BACKGROUND

The matter before the court a quo was a court application for a declaration of the sale and registration of Stand 382 Good Hope Township of Subdivision B of Good Hope into the appellant's name as being null and void.

In November 1999, the first respondent entered into an agreement of sale in terms of which he purchased an immovable property, namely, Stand 382 Good Hope Township of subdivision B of Good Hope, from the estate of the late Johanna Maria Francisca Logan as represented by the executrix testamentary of the estate.

The immovable property was transferred to the first respondent on 2 April 2007 by virtue of Deed of Transfer number 1597/2007.

On 1 October 2006, one Tsungirai Musenha and the appellant, represented by the third respondent, filed an application in the Magistrates Court, in Case No.12060/06, citing Robert Adrian Campbell-Logan, estate late Maria Johana Campbell-Logan, and the Registrar of Deeds as respondents.

They alleged therein that the second respondent had sold to them and they had purchased Stand Numbers 412 and 382 Good Hope Township of Subdivision B of Good Hope.

On 5 October 2006, a rule nisi was granted by the Magistrate's Court, interdicting the three (3) respondents and all those acting through them from disposing or transferring to anyone Stand Numbers 412 and 382 respectively being subdivisions of the remainder of subdivision B of Good Hope held under Deed Number 6180/95 pending the return date.

The return date was, however, not stated in the order.

On 29 November 2006, the sixth respondent issued Letters of Administration appointing the third respondent as executor dative to administer the estate of the late Maria Johanna Francisca Campbell-Logan, for the sole purpose of effecting transfer of Stand Number 382 into the name of Cosma Chiangwa, (the appellant herein).

On 4 July 2007, Stand 382 was transferred into the name of the appellant by Deed of Transfer 4079/2007.

This prompted the application in the court a quo wherein the first respondent sought an order that the sale, registration, and transfer of the property in question to the appellant be declared null and void; that the appointment of the third respondent as executor dative of the estate of the late Maria Johanna Francisca Campbell-Logan be declared null and void; and that the first respondent be declared the sole owner of the property in question.

The first respondent averred that the appointment of the third respondent as the executor dative of the estate, during the lifetime of the executrix testamentary, and during a period when the executrix testamentary was still holding office and was not incapacitated, was not valid in law.

He also averred, that, when the second respondent sold Stand 382 to the appellant, he had no title to pass and that the sale was done in the second respondent's personal capacity and without authority.

He further averred, that, when the second respondent sold the property to the appellant, he knew that it had already been sold to the first respondent as he had co-signed the agreement of sale between the first respondent and the executrix testamentary.

Further, it was also alleged, by the first respondent, that, the fourth respondent registered the property into the name of the appellant without checking his register.

Furthermore, that the fifth respondent, who was the conveyancer of the property did not perform due diligence before drafting and lodging conveyancing papers with the Deeds Registry. Had he exercised due dilligence and care he would have discovered that the immovable property belonged to the first respondent as it had already been registered into his name more than two months earlier.

The first respondent further indicated that the position that was stated by the executrix testamentary in the letter of 1 September 2007 was the correct position at law.

The letter had raised, with the sixth respondent, the invalidity of the appointment of the executor dative as it was done when the executrix testamentary had not been removed from office by a competent court or judge. It was thus averred that the sixth respondent acted without authority when he appointed the third respondent as executor dative, and, consequently, all acts done by the executor dative in relation to the transfer of the property were of no force or effect.

On the other hand, the appellant contended that the application ought not to succeed for the reason that the first respondent was alleging fraud on the part of the persons who prepared and authored the documents which are being challenged and that such persons would need to be cross-examined in trial proceedings.

Secondly, he contended that there were disputes of fact which could not be resolved on the papers, such disputes being in relation to how two agreements of sale could have been concluded for the same property; how the Master authorized the third respondent to deal with the property; and how the first respondent (applicant then) sought to register his property with the fourth respondent. These issues, he contended, could not be adequately addressed in affidavits.

Thirdly, he contended that the first respondent did not challenge or cause the suspension of the 'compellation order' authorizing transfer of the property in issue emanating from Case No.1206/06 granted by the Magistrates Court, in default, on 8 November 2006.

He further contended, that, the court therein decided that the property belonged to him, and, until that order is suspended, the court a quo could not hear the first respondent's case.

The appellant also contended that the first respondent had no real rights over the property in question and that the Registrar of Deeds had confirmed, by letter, that the property belongs to him.

He contended, that, the first respondent's supposed title deed is not a valid title deed and does not confer any rights on him hence the first respondent could not challenge the registration of a property which he does not own. As such, he averred that there was no double registration of the immovable property in issue.

The appellant further contended that the first respondent's purported agreement of sale, dated November 1999, with the executrix testamentary, was invalid because the executrix testamentary did not then have authority from the sixth respondent to sell the property, such authority only having been granted by the sixth respondent on 27 February 2006.

He further averred that the first respondent had sued the wrong party as he should have sued the estate from which his rights emanate in terms of the agreement of sale.

The appellant thus moved the court to dismiss the application with costs on the higher scale.

After considering submissions from the parties, and papers filed of record, the court a quo found that the appellant's Deed was unlawful and therefore null and void as his registration as owner was subsequent to that of the first respondent over the same property.

It was held that this was sufficient justification for the court to declare the registration of the appellant as owner to be null and void as deeds follow the sequence of their relative causes.

It also found, that, at the time ownership was purportedly passed to the appellant, the property no longer belonged to the estate, but to the first respondent; thus, it had no rights to transfer to the appellant.

Pertaining to the executor, the court a quo found that the appointment of the third respondent was irregular in that he was appointed as executor dative whilst the executrix testamentary was still alive, holding office, not incapacitated, and still sane, thus rendering any acts carried out by him in the name of the estate as of no legal consequence.

The court a quo further found that the property was sold to the appellant by the second respondent, who was an heir to the estate, at a time when such property had not yet vested in him.

It was, on this basis, that the court a quo held the purported sale to be fraught with illegality and therefore a nullity. It thus concluded that both the agreement of sale and the deed of transfer in favour of the appellant were, in the circumstances, null and void.

Pertaining to the interdict, the court a quo found that the interim interdict granted had no return date and that it could not have been the intention of the Magistrates Court for it to be operative indefinitely as it could end up having the effect of a final interdict.

It further found that the first respondent was not a party to the proceedings in that matter in which the interim interdict was granted hence the order could not bind him.

On this basis, it found that the purported transfer to the appellant was invalid.

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

1. The Learned Judge a quo erred in failing to appreciate and make a finding that there was a material dispute of fact regarding the validity of the agreements of sale between the appellant and first respondent, and, consequently, the deeds of transfer, which disputes could not be resolved on the papers.

2. The learned Judge a quo erred in her finding that the Regional, Town and Country Planning Act has no application in this matter yet it is the law that regulates agreements relating to the sale of land.

3. The learned judge a quo erred at law in invalidating the appointed executor dative and setting aside his actions when such an appointment was a legal requirement for the purposes of transferring property into the appellant's name.

4. The learned judge a quo erred at law in relying upon an agreement of sale which was never placed before the court for its scrutiny....,.

In motivating the appeal, the appellant's counsel submitted that the order of the court a quo was incompetent as it conflicted with another order of the Magistrates Court in terms of which a rule nisi was issued prohibiting the second and third respondents from transferring or disposing of the property in dispute.

He submitted, that, the court a quo ought to have set aside that order, failure of which it remains extant and commands obedience until set aside....,.

Conversely, counsel for the first respondent submitted, that, the rule nisi did not have a return date hence it lapsed on 31 of December 2006 as it could not have been the intention of the Magistrates Court that it should operate indefinitely.

Appealed
HH122-11 : DAVID KATERERE vs COSMA CHIANGWA and ROBERT CAMPBELL-LOGAN and ISRAEL GUMUNYU and REGISTRAR OF DEEDS and EDMOND CHIVHINGE and MASTER OF THE HIGH COURT
Ruled By: MAVANGIRA J

In 1999, the applicant herein entered into an agreement of sale in terms of which he purchased an immovable property from the estate of the late Johanna Maria Fransisca Logan as represented by the executrix testamentary of the estate.

The immovable property, described as Stand 382 Good Hope Township of Subdivision B of Good Hope, was transferred to the applicant in April 2007 by Deed of Transfer number 1597/2007.

On or about 1 October 2006, one Tsungirai Musenha and the first respondent herein filed an application, as co-applicants, in the Magistrates Court in Case No.12060/06. They cited Robert Adrian Campbell-Logan (the second respondent herein), estate late Maria Johanna Campbell-Logan, and the Registrar of Deeds (the fourth respondent herein) as the first, second, and third respondents respectively.

They contended therein that the second respondent herein had sold to them and they had purchased Stands Numbers 412 and 382.

They further contended, that, the second respondent herein was avoiding them then for the purpose of passing transfer to them of the said properties.

On or about 5 October 2006, a rule nisi was granted by the Magistrates Court in the following terms:

“A Rule Nisi be and is hereby issued returnable to this honourable court on the…, day of…,. 2006 calling upon the first and second respondents to show cause, if any, why? (sic)

1. First, second, and third respondents, and all those acting through them, should not be barred from transferring to anyone other than first and second applicants Stand Numbers 412 and 382 respectively, being subdivisions of the remainder of subdivision B of Good Hope held under Deed Number 6180/95. (sic)

2. First, second, and third respondents should not be ordered to effect transfer of Stand 412 and 382 to first and second applicants Stand Numbers 412 and 382, respectively, being sub-divisions of the remainder of subdivision B of Good Hope held under Deed Number 6180/95. (sic)

3. First, second, and third respondents, and all those acting through them, should not be barred from disposing first and second applicants in any way of their occupation of Stand numbers 412 and 382 respectively. (sic)

4. First respondent should not be ordered to pay costs of this application. (sic)

INTERIM RELIEF:

1. Pending the return date, all respondents and all those acting through them be and are hereby interdicted from disposing or transferring to anyone Stand Numbers 412 and 382 respectively, being subdivisions of the remainder of sub-division B of Good Hope held under Deed Number 6180/95.”

On 8 November 2006, the magistrate granted default judgment in the same matter for an “interdict and compelling order” in favour of the applicants therein.

On 29 November 2006, the sixth respondent issued Letters of Administration appointing the third respondent as executor dative to administer the estate of the late Maria Johanna Fransisca Campbell-Logan, for the sole purpose of effecting transfer of “a certain piece of land situated in the District of Salisbury being a remainder of subdivision B of Good Hope, being Stand Number 382 measuring 2200 square metres into the name of Cosma Chiangwa.”

On 4 July 2007, the immovable property was transferred into the name of Cosma Chiangwa, the first respondent herein by Deed of Transfer 4079/2007.

The applicant now applies for an order in the following terms:

“1. That the sale to the first respondent, by the second respondent, of Stand 382 Good Hope is null and void. (sic)

2. That the registration of Stand 382 of Good Hope Township of Subdivision B of Good Hope into the name of first respondent is null and void. (sic)

3. That the appointment of the third respondent, as Executor Dative of the estate of the late Maria Johanna Fransisca Campbell-Logan, is null and void.

4. That the applicant is the sole lawful registered owner of Stand 382 Good Hope Township of Subdivision B of Good Hope.

5. That the fourth respondent shall, within 3 days of service of this Order upon him, delete the name of the first respondent from the name of the applicant as the registered owner of Stand 382 Good Hope Township of subdivision B of Good Hope. (sic)

6. That the first, second, third, and fifth respondents shall pay costs of these proceedings jointly and severally, the one paying the others to be absolved.”

In the main, the applicant contends, that, the appointment by the sixth respondent of the third respondent as the executor dative of the estate, during the lifetime of the executrix testamentary and during a period of time when the executrix testamentary was still holding office and was not incapacitated, is not valid in law....,.

The respondents, on the other hand, contend..., that the applicant has not challenged or caused the suspension of the “compellation orders authorising transfer of the property in issue emanating from Case No.1206/06 granted by the Magistrates Court.”

They contend that the court therein decided that the property belonged to the first respondent, and, until that order is suspended, this court cannot hear the applicant's case....,.

He further submitted, that, the limited Letters of Administration were issued pursuant to a compelling order issued by the Magistrates Court. As that order has not been set aside, and cannot be set aside in these proceedings, the applicant would need, first, to seek a nullification of that order if so advised.

He submitted, that, from the papers, it appears that having become aware of the order, the applicant neither sought rescission of it nor a declaratory order to the effect that it was obtained by fraud - if that be his contention.

He submitted the instant proceedings are certainly not the process by which the magistrate's order could be rescinded or set aside....,.

The rule nisi, in terms of which the Magistrates Court granted in favour of the first respondent, and another interim relief in the form of an interdict barring the disposal or transfer of the property in issue, has also been heavily relied on by the first respondent.

However, a perusal of the rule nisi reveals that no return day was endorsed.

Theoretically, therefore, even though the interdict was granted as interim relief, it is in effect for an indefinite period. That would be unconscionable and could not certainly have been the intention of the Magistrates Court.

View Appeal
HHH458-18 : THE STATE vs KIZITO MUTSURE
Ruled By: CHITAPI J and ASSESSORS: BARWA and CHITSIGA

The word prima facie is a latin word which means 'at first view' or 'on the face of it.'A prima facie case will be established where facts alleged, if not rebutted, would result in those facts being conclusive to found a case against the accused.

Appealed
SC63-21 : GATEWAY PRIMARY SCHOOL and KM RICQUEBOURG N.O. and GATEWAY PRIMARY SCHOOL PARENTS ASSOCIATION vs MARINDA FENESEY and THE SHERIFF OF ZIMBABWE
Ruled By: HLATSHWAYO JA, GUVAVA JA and BHUNU JA

The appellants are appealing against the entire judgment of the High Court delivered on 24 May 2017 under judgment number HH329-17. That judgment granted the respondent a provisional spoliation order in the following terms:“TERMS OF THE FINAL ORDER SOUGHTThat you show cause to this Honourable Court why a final order ...

“TERMS OF THE FINAL ORDER SOUGHT

That you show cause to this Honourable Court why a final order should not be made in the following terms:

1. The first, second, and third respondents be and are hereby interdicted from interfering in any manner with the applicant's business operations at the tuck shop situated at Gateway Primary School. Including, but not limited to barring her potential customers from buying from the tuck shop.

2. The first, second, and third respondents be and are hereby ordered not to unlawfully evict the applicant from the tuckshop at Gateway Primary School.

3. The first, second, and third respondents to pay costs at an attorney and client scale, the one paying and the others to be absolved.

INTERIM RELIEF GRANTED

Pending confirmation or discharge of the provisional order, the applicant is granted the following relief:

1. The first, second, and third respondents be and are hereby ordered to remove their additional locks at the tuck shop at Gateway Primary School upon service of this order and take all necessary steps to ensure that the applicant's peaceful and undisturbed occupation of the tuck-shop is restored failing which the fourth respondent be and is hereby authorised to remove the locks abovesaid.

2. The second applicant (sic) be and is hereby ordered to publicly, and, at an assembly, reverse the order he imposed on school pupils and teachers not to buy at the applicant's tuckshop at Gateway Primary School.

3. The applicant's legal practitioners are hereby given leave to serve the order on the respondents.”

The appeal is strenuously opposed by the respondent.

The facts giving rise to the appeal are, to a large extent, common cause. It is however convenient to give a brief resume of the material facts of this case at this juncture.

The undisputed facts are that the first appellant is a primary school whereas the second appellant is its headmaster and overall administrator. The third appellant is the school's Parents Association capable of suing and being sued in its own name. It assists in the smooth running of the school. Among other functions, it generally manages the tuckshop.

The third appellant leased out the school tuck shop to the first respondent as its statutory tenant sometime in 2011. The lease agreement was subsequently renewed from September 2016 to September 2017.

On 5 February 2017, the Chairman of the Parents Association Committee wrote to the first respondent giving her two months notice of its intention to terminate the lease agreement with effect from 6 April 2017. The letter reads:

“Dear Marinda

Notice of Termination of lease contract

We refer to the tuck shop lease agreement which was renewed in September 2016 expiring on 8 September 2017.

We regret to advise that after much deliberation and thought, the Parents Association Committee hereby gives you notice of their intention to terminate the lease agreement (without renewal) with yourself with effect from the end of the first term. Our notice period is therefore effective from 6 February until 6 April 2017.

We thank you for your tenancy over the many years with the Gateway Community as well as the rent payments that have always been on time.

We trust that this is sufficient notice for you to make the necessary arrangements. If you have any further queries, please do not hesitate to contact the undersigned.”

Aggrieved by the intended termination of her tenancy of the tuckshop, the first respondent consulted her lawyers who took the view that the notice was a legal nullity.

They, accordingly, wrote to the third appellant, on 5 April 2017, challenging the lease termination on the grounds that the notice period was inadequate and that it did not provide good and sufficient reasons for the termination.

Unperturbed by the threatened legal challenge to its notice to terminate the lease agreement, the third appellant proceeded to execute its cancellation of the lease agreement in terms of its written notice of 5 February 2017.

The validity of the termination of the first respondent's lease, and tenancy of the disputed property, is hotly contested.

It is however common cause that schools closed on 6 April 2017 and the parties proceeded on end of term school holidays, during which period the tuckshop was closed.

The point of departure is the circumstances surrounding the closure of the tuck shop and its reopening at the end of the school holidays in May 2017.

The first respondent's version, in her founding affidavit, is that, at the end of term she locked her tuckshop and went away without any event. During the holidays, she fully restocked her tuck shop in anticipation of the reopening of the school. Upon her return, on 9 May, at the end of the school holidays, she unlocked the tuckshop only to discover that the second respondent had issued orders banning her customers, mainly teachers and students, from buying anything from the tuck shop. Guards were posted at the tuckshop to enforce the ban.

On 10 May 2017, she found herself locked out of the tuckshop.

Additional locks had been placed on the entrance door by the appellants acting in concert and common purpose.

It was her case, that, by locking her out, the respondents were unlawfully violating her peaceful and undisturbed possession of the tuck shop hence her urgent application for a provisional spoliation order for relief.

On the other hand, the respondents, in their opposing affidavit, deposed to by the third appellant's Chairman, one Justice Marwisa, denied ever locking the first respondent out of the tuckshop as alleged or at all.

He deposed that when given notice of termination of the lease agreement, the first respondent agreed and voluntarily cleared the tuckshop and left without any problem on 6 April 2017.

Accordingly, he denied that the first respondent was in peaceful and undisturbed possession of the tuckshop when the true owners of the tuck shop, Gateway Trust, recovered possession of the tuck-shop.

In short, the appellants case is that the first respondent voluntarily surrendered possession of the tuckshop to the lessor.

The learned judge in the court a quo believed the first respondent and disbelieved the appellants.

He found in her favour that she was in peaceful and undisturbed possession of the tuck shop prior to the unlawful dispossession, much to the chagrin of the appellants - hence this appeal.

The appellants raised the following grounds of appeal:

1. The learned judge in the court a quo erred at law and in fact in failing to find that the first respondent was not in peaceful and undisturbed possession of the tuckshop at the time of the alleged closure of the tuck shop. This requirement of spoliation was not established.

2. The learned judge in the court a quo erred at law in finding that the deprivation of the tuckshop amounted to unlawful deprivation since the first appellant was given notice of termination of the lease.

3. In the alternative, the learned judge in the court a quo grossly misdirected himself at law in failing to exercise his discretion not to grant the order sought given the circumstances of the matter that the continued operation of the tuckshop was not in the best interest of the children.

Although the appellants raised three (3) grounds of appeal, there is, in reality, one cardinal issue for determination.

The primary issue advanced for determination is whether or not the respondent was in peaceful and undisturbed possession of the tuckshop prior to the alleged unlawful dispossession.

The last two grounds of appeal are mere make-weights which add no value or cogency to the appeal.

Although there are apparent material disputes of fact, no one has complained that they were incapable of resolution on the basis of the papers filed of record.

The learned judge in the court a quo was therefore correct in disposing of the matter before him on the basis of the papers filed of record.

While preparing this judgment, it however occurred to me that a vital legal issue upon which the resolution of this appeal revolves was omitted. The crisp issue omitted for consideration is:

Whether an interdict having the effect of a final order can be sought through a provisional order?

Both counsel for the appellants and the first respondent have since filed useful supplementary heads of argument at the court's special instance and request.

They are agreed, that, a spoliation order, being a form of a final interdict, cannot be granted as a provisional order. It can only be granted as a final order.

Undoubtedly, both counsels are correct in their appreciation of the law in this respect.

The leading case on this settled point of law is Blue Rangers Estates (Pvt) Ltd v Muduvuri & Anor 2009 (1) ZLR 368.

That case is authority for the proposition that a spoliation order, being a final and definitive order, cannot be granted as a provisional order.

That being the case, it follows, that, the respondent erred and strayed into the realm of illegality when it sought a spoliation order in the form of a provisional order.

Consequently, the court a quo also erred, and fell into grave error, when it granted the first respondent a provisional spoliation order contrary to the dictates of the law.

While admitting that the provisional order granted by the court a quo is fatally defective, the first respondent has implored this Court to come to its rescue by resort to the court's powers under section 22(1) of the Supreme Court Act [Chapter 7:13] in the interests of justice.

The relevant parts of the section relied upon provide as follows:

“22 Powers of Supreme Court in appeals in civil cases

(1) Subject to any other enactment, on the hearing of a civil appeal, the Supreme Court —

(a) Shall have power to confirm, vary, amend, or set aside the judgment appealed against or give such judgment as the case may require;

(b) May, if it thinks it necessary or expedient in the interests of justice —

(i)…,.

(ix) Take any other course which may lead to the just, speedy, and inexpensive settlement of the case;”

On a proper reading of section 22 of the Supreme Court Act, it is clear that it confers no power of substitution on the court. It can only confirm, vary, amend, or set aside the judgment appealed against or give such judgment as the case may require.

The power “to give such judgment as the case may require” is in my view, not an open cheque for the court to go on a frolic of its own giving any judgment it desires.

That power is confined to what it is authorised to do under section 22 of the Supreme Court Act.

As the power of substitution is not given under section 22 of the Supreme Court Act, the court cannot exercise such power. If it does, it acts without jurisdiction.

That being the case, this court cannot substitute a final order for a provisional order.

By the same token, both the court a quo and this Court cannot give the respondent a relief that she did not ask for in the court a quo.

It is now settled law, that, a court has no jurisdiction to determine issues not placed before it because it is bound by the pleadings. It cannot go on a frolic of its own: see Nzara & Ors v Kashumba NO & Ors SC18-18…,.

Section 22(1)(b)(ix) of the Supreme Court Act is a procedural section which does not give any substantive relief.

Reliance on it for the granting of a final order, in place of the provisional spoliation order granted by the court a quo, is therefore misplaced and untenable at law.

In the final analysis, the urgent chamber application, being fatally defective, the appeal can only succeed.

It is accordingly ordered that:

1. The appeal succeeds with costs.

2. The whole judgment of the court a quo be and is hereby set aside, and, in its place, the following be substituted:

“The urgent application for a provisional spoliation order be and is hereby dismissed with costs.”

View Appeal
HH329-17 : MARINDA FENESEY vs GATEWAY PRIMARY SCHOOL and K M RICQUEBOURG N.O. and GATEWAY PRIMARY SCHOOL PARENTS ASSOCIATION and THE SHERIFF OF ZIMBABWE
Ruled By: MUSAKWA J

This is an application for a spoliation order. The draft order reads as follows -“TERMS OF FINAL ORDER SOUGHTThat you show cause to this Honourable Court why a final order should not be made in the following terms;1. The 1st, 2nd and 3rd Respondents be and are hereby interdicted from ...

This is an application for a spoliation order. The draft order reads as follows -

“TERMS OF FINAL ORDER SOUGHT

That you show cause to this Honourable Court why a final order should not be made in the following terms;

1. The 1st, 2nd and 3rd Respondents be and are hereby interdicted from interfering in any manner with the Applicant's business operations at the tuck shop situated at Gateway Primary School, including, but not limited to barring her potential customers from buying from the tuckshop.

2. The1st, 2nd and 3rd Respondents be and are hereby ordered not to unlawfully evict the Applicant from the tuck-shop at Gateway Primary School.

3. The 1st, 2nd and 3rd Respondents to pay costs of suit on an attorney and client scale, the one paying the others to be absolved.

INTERIM RELIEF GRANTED

Pending confirmation or discharge of the provisional order, the Applicant is granted the following relief:

1. The 1st, 2nd and 3rd Respondents be and are hereby ordered to remove their additional locks at the tuckshop at Gateway Primary School upon service of this order and take all necessary steps to ensure that the Applicant's peaceful and undisturbed occupation of the tuck shop is restored failing which the 4th Respondent be and is hereby authorized to remove the locks above said (sic).

2. The 2nd Applicant (sic) be and is hereby ordered to publicly, and at an assembly, reverse the order he imposed on school pupils and teachers not to buy at the Applicant's tuck shop at Gateway Primary School.

3. The Applicant's legal practitioners are hereby given leave to serve the order on the Respondents.”

The background to this application is that the applicant leased a tuckshop that is situated at Gateway Primary School. The agreement was concluded with the Parents Association Committee of Gateway Primary School.

The applicant has been a statutory tenant since 2011.

On 6 February 2017, the applicant was given notice of termination of the lease with effect from 6 April 2017.

On 5 April 2017, the applicant's legal practitioners wrote to the chairman of the Parents Association Committee challenging the termination of the lease without good cause.

The applicant claims that she stocked the tuckshop in anticipation of the opening of the second term of schooling.

On 9 May 2017, which was the opening day of school, it is alleged that the second respondent barred everyone from buying from the tuck shop. The ban was announced at the school assembly. People were deployed to guard against anyone buying from the tuckshop. The applicant tried to engage the second respondent to no avail.

On 10 May 2017, the applicant found that additional locks had been installed on the tuck shop. As a result, she has not been able to access the tuck-shop.

It is the applicant's contention, that, she had hitherto been in peaceful and undisturbed possession of the tuck shop. Consequently, she was despoiled of her peaceful and undisturbed possession of the tuckshop.

The respondents contend, that, the applicant accepted the termination of the lease. She only flipped on 5 April 2017.

When she voluntarily gave up possession, the Gateway Schools Trust took over the premises.

It is also contended, that, the applicant was never in possession of the premises during the month of April. It is also disputed that she stocked the tuck shop.

There is further averment that the second and third respondents did what was in the best interests of the pupils whom the applicant was swearing at.

Although in the opposing papers the respondents had raised some points in limine, counsel for the respondents abandoned them in favour of the matter being heard on the merits.

That is quite commendable, as it has become predictable, in urgent applications, for the opposing side to raise preliminary issues.

Counsel for the applicant submitted, that, there was no response to the letter of 5 April, which suggests an admission of the unlawful conduct complained of. He further submitted, that, in terms of the oral lease, the applicant would not pay rentals during school holidays as there was no business to be conducted. However, the applicant had access to the tuck shop during the holidays.

The denial of access, by placing additional locks, is in violation of section 24 of the Commercial Premises (Rent) Regulations, S.I.676 of1983, SI676/83.

He further submitted that a tuck shop fits within the definition of commercial premises.

Regarding the contention that a spoliation order may not be granted where it is not practicable to do so, counsel for the applicant submitted that there is no averment that someone else has taken over the premises.

In submitting that the requirements for spoliation had been proven, he outlined them as -

(a) Peaceful and undisturbed possession; and

(b) Unlawful deprivation.

Whilst conceding the legal requirements for spoliation, counsel for the respondents submitted that this is not a case of spoliation.

According to him, spoliation is proprietary and does not apply to personal rights. He further submitted, that, the applicant's possession of the premises ended when the lease was terminated. Thus, possession of immovable property must be factual. Quasi-possession does not apply.

Counsel for the respondents also submitted that the applicant was misconceived to claim that the Commercial Premises (Rent) Regulations, SI676/1983 apply to the facts of the matter. This is because Gateway Primary School does not constitute commercial premises.

Counsel for the respondents further submitted, on the authority of De Jager and Others v Farah and Nestadt 1947 (4) SA 28 that a court has discretion not to grant a spoliation order where it is not practicable to do so.

Thus, it was his submission that the applicant's return to the premises would poison the learning environment. This is because the relationship between the parties is said to have deteriorated.

Reference was made to an incident wherein the applicant is said to have scolded one pupil calling her an idiot.

I do not think that it can be argued, seriously, that the applicant was not in possession of the tuck shop.

Once it is admitted that there was a lease agreement, then the issue of possession is established.

The applicant had access to the tuckshop from where she conducted her business.

Even though the applicant was not in exclusive possession of the tuck-shop, as it would be closed during holidays, it cannot be said she forfeited her overall physical control.

I am not persuaded that the tuck shop does not constitute commercial premises.

This is because, in terms of the Commercial Premises (Rent) Regulations, S.I.676/83 commercial premises are defined as -

“'commercial premises' means any premises, or part thereof, occupied under a lease for the purpose of carrying on therein any industry, business, trade or occupation, and includes any ground, parking-space, garage, outbuilding, workers quarters, and other improvement let therewith;”

There is no doubt that the applicant was conducting business under a lease with the respondents. This is irrespective of the fact that Gateway Primary School, on which the tuckshop is situated, may not be commercial premises for other purposes.

For purposes of a spoliation order, possession is not dependent on who has better title between an applicant and the spoliator.

What is necessary to prove is that the applicant was unlawfully dispossessed, or was unlawfully prevented from resuming possession after temporarily relinquishing physical control over the thing where there is reasonable belief that the applicant would be able to resume such control whenever he required the thing: see H. SILBERBERG, The Law of Property -1975.

With the requirements for spoliation having been set out, the only valid defences available are that -

(a) The applicant was not in peaceful and undisturbed possession of the thing in question at the time of the dispossession;

(b) The dispossession was not unlawful and therefore did not constitute spoliation;

(c) Restoration of possession is impossible;

(d) The respondent acted within the limits of counter-spoliation in regaining possession of the article.

In this respect, see the case of Kama Construction (Pvt) Ltd v Cold Comfort Farm Co-Operative and Others 1999 (2) ZLR 19 (SC).

There is dispute between the parties regarding whether the applicant had relinquished possession of the tuck shop by virtue of the notice that was given by the third respondent.

The applicant denies that she acquiesced to the notice, hence the letter of 5 April.

The other contention is that if she had voluntarily vacated the tuck shop, there would have been no need to install the additional locks. In addition, there would have been no need to make an announcement at assembly.

I would therefore hold, that, the applicant was unlawfully deprived of possession of the tuckshop. This destroys the respondents defence that the applicant voluntarily vacated the tuck shop.

It can be noted that the notice of termination did not advance any reasons.

This does not accord with section 22 of the Commercial Premises (Rent) Regulations, S.I.676/1983 which provides that -

“No order for the recovery of possession of commercial premises or for the ejectment of a lessee therefrom which is based on the fact of the lease having expired, either by the effluxion of time, or in consequence of notice duly given by the lessor, shall be made by a court, so long as the lessee —

(a) Continues to pay the rent due, within seven days of due date; and

(b) Performs the other conditions of the lease;
unless the court is satisfied that the lessor has good and sufficient grounds for requiring such order other than that —

(i) The lessee has declined to agree to an increase in rent; or

(ii) The lessor wishes to lease the premises to some other person.”

The fact that the applicant refused to vacate the premises did not empower the respondents to resort to unorthodox means to gain control of the premises. This runs contrary to the well-established principle that no one must take the law into their own hands.

The law on spoliation is aimed at protecting a possessor in retaining physical control or regaining it where he or she has been unlawfully deprived of such possession: see WILLE's Principles of South African Law, 7th ed.

The placing of additional locks on the tuckshop violates section 24 of the Commercial Premises (Rent) Regulations, SI 676/83 which provides that -

“No lessor of commercial premises shall —

(a) Without a lessee's consent, and without reasonable excuse, cause the removal from the premises of any property belonging to the lessee; or

(b) Prevent a lessee from using or occupying the premises; unless he has obtained an order of court for the removal of such property, if appropriate, or for the recovery of possession of the premises or the ejectment of the lessee therefrom.”

As regards whether restoration is possible, the contention by the respondents is untenable.

The argument, that the relationship between the parties has deteriorated was never advanced in the notice of termination. The claim that the applicant verbally abused a pupil cannot be an adequate reason to deny restoration as the aggrieved party has sufficient remedies to pursue. In addition, there was no averment by the respondents that a new tenant has since taken over the premises.

Accordingly, a provisional order is granted in terms of the draft.

Appealed
SC82-21 : TRIANGLE LIMITED and HIPPO VALLEY ESTATES LIMITED vs ZIMBABWE REVENUE AUTHORITY and OTHERS
Ruled By: GWAUNZA DCJ, MATHONSI JA and CHITAKUNYE AJA

This is an appeal against the judgment of the High Court sitting at Masvingo, delivered on 24 June 2020, which dismissed with costs the application made by the two appellants for a declaratory order and an interdict.FACTUAL BACKGROUNDThe two appellants are sugar-producing giants in the Lowveld while the first respondent ...

FACTUAL BACKGROUND

The two appellants are sugar-producing giants in the Lowveld while the first respondent (Zimbabwe Revenue Authority) is the statutory body charged with revenue collection in Zimbabwe. The remainder of the respondents are either sugar cane farmers or associations representing such farmers (Zimbabwe Sugarcane Development Association, Zimbabwe Cane Farmers Association, Mkwasine Sugarcane Farmers Trust, Commercial Sugarcane Farmers Association of Zimbabwe, Hippo Valley Productive Farmers Association, Zimbabwe Sugarcane Development Association Royal Trust, Chipiwa Mpapa Mill Group, Chiredzi Productive Cane Growers, Farai Dumo Augustine Musikavanhu and Roy Bhila).

The respondents will be referred to in this judgment, for convenience, as Zimbabwe Revenue Authority and the farmers respectively.

The appellants and the farmers entered into two types of agreements, either a “Cane Milling Agreement” or a “Cane Purchase Agreement” in terms of which the appellants would either provide milling services to the farmers and market their sugar and molasses or outrightly purchase the sugar cane.

The dispute which arose between the parties did not involve the outright purchase and sale of sugar cane. As such this judgment does not deal with that scenario at all. The judgment concerns itself with the cane milling agreements entered into between the parties.

In terms of the cane milling agreements, the charge for milling and marketing services, payable by the farmers to the appellants, was calculated in terms of a pre-determined ratio referred to as the “Division of Proceeds” (DoP) ratio. It was fixed at 23 percent of the proceeds the farmers would get; meaning that, the appellants would retain 23 percent of the proceeds while remitting the balance of 77 percent to the farmers.

Regrettably, in fixing the milling and marketing charge, the appellants did not include Value Added Tax (VAT) as required by law. It follows, that, no Value Added Tax was paid by the appellants to the Zimbabwe Revenue Authority in that regard.

It was in the process of auditing the appellants Value Added Tax (VAT) assessments for the period 2009 to 2017 that the Zimbabwe Revenue Authority decided that the milling and marketing charges of 23 percent of the proceeds levied by the appellants against the farmers attracted VAT.

The Zimbabwe Revenue Authority proceeded to issue assessments of value added tax (VAT) for those years and demanded payment of same from the appellants. These assessments related to the past supplies where the appellants ought to have, but failed, to collect and remit VAT to the Zimbabwe Revenue Authority.

The appellants objected to the assessments which objections were all disallowed by the Zimbabwe Revenue Authority. The appellants appealed to the Fiscal Appeals Court but paid the assessed value added tax (VAT) to the Zimbabwe Revenue Authority notwithstanding.

An appeal does not exonerate a tax payer from paying the assessed tax.

After effecting payments to the Zimbabwe Revenue Authority, the appellants sought to recover such value added tax (VAT) from the farmers on the basis that they were obliged to charge and collect the VAT from the consumers of the service, the farmers, but had not done so.

The appellants were of the view, that, it was only fair and reasonable that the farmers should re-imburse them of the value added tax (VAT) paid by them to the Zimbabwe Revenue Authority.

There being no convergence between the farmers, who had obtained advice from the Zimbabwe Revenue Authority, that, the 23 percent Division of Proceeds ratio was inclusive of value added tax (VAT), and the appellants, the latter filed an application in the court a quo.

In their application, the appellants sought declaratory relief that they were legally entitled to continue charging and collecting value added tax (VAT) from the farmers - over and above the 23 percent milling charge.

The appellants also sought to be reimbursed the monies they paid to the Zimbabwe Revenue Authority on past assessments.

In addition, they accused the Zimbabwe Revenue Authority of interfering with contractual issues between them and the farmers by rendering advice to the farmers on the value added tax (VAT) dispute.

Accordingly, the appellants sought an order interdicting the Zimbabwe Revenue Authority from what they called “gratuitously interfering in pricing and contractual issues” between them and the farmers.

The application was opposed by the Zimbabwe Revenue Authority and most of the respondents.

DECISION A QUO

It was the view of the court a quo, that, the entire dispute revolved around the interpretation of section 69 and section 72 of the Value Added Tax Act [Chapter 23:12].

Regarding the past supplies of sugar cane to the appellants, the court a quo found, that, the literal meaning of section 69 of the Value Added Tax Act suggests, that, it is irrelevant whether the registered operator has charged VAT or not. If the price does not reflect the tax component, section 69 of the Value Added Tax Act operates such that there is a presumption that a price not reflecting VAT included that tax.

It was the finding of the court a quo, that, the section serves to “estop” a registered operator, who has not reflected value added tax (VAT) on the price, from denying that the price includes that tax.

It also found, that, section 69 of the Value Added Tax Act precludes such registered operator from subsequently claiming VAT not reflected on the price.

In the court a quo's view, permitting the appellants to recoup value added tax (VAT) in retrospect would render nugatory the deeming provision of section 69 of the Value Added Tax Act as the deeming provision cannot be interpreted to mean different things to two different people.

Regarding the claim for value added tax (VAT) on present and future supplies of sugarcane, which the contracts of the parties are still silent on, the court a quo took the view, that, it was up to the parties to re-negotiate or clarify the terms of their contracts in order to plug the existing lacunae.

If they do not, then, section 69 of the Value Added Tax Act will continue to apply.

The court a quo was not persuaded that a case was made for an interdict against the first respondent.

It recognised, that, the appellants had made a formal request to the first respondent to intervene and educate the farmers on the tax implications of their agreement. They could not, thereafter, cry foul after such intervention.

In addition, the court a quo found no evidence of the first respondent's interference with the pricing issues between the appellants and the farmers.

On the question of costs, the court a quo found no basis for departing from the general rule, that, costs follow the result. It dismissed the application with costs granted in favour of only those respondents who participated in the suit.

The appellants were aggrieved. They noted this appeal to this Court on the following grounds;

GROUNDS OF APPEAL

1. The learned judge of the court a quo erred and misdirected himself in finding that section 69 of the Value Added Tax Act [Chapter 23:12] operated to preclude the appellants from recovering value added tax (VAT) for past supplies on an alleged milling service which the first respondent considered to have been rendered to farmers.

2. Further, the court a quo erred and misdirected itself in failing to pronounce, definitively, on the appellants right and entitlement to charge, levy, and collect value added tax (VAT), and the farmers respective obligation to pay same, in addition to the value of the alleged milling service, with respect to current and future supplies pursuant to the first respondent's decision to impose tax.

3. The learned Judge of the court a quo erred and misdirected himself in failing to find, that, the letter by the first respondent to the farmers, with respect to the farmers tax obligations, strayed upon purely contractual matters which it was not competent for the first respondent to prescribe to parties.

4. The court a quo erred in awarding costs against the appellants, and in favour of the respondents in general, and, at any rate, most especially as it relates to the second (Zimbabwe Sugar Cane Development Association), fifth (Commercial Sugar Cane Farmers Association of Zimbabwe), seventh (Zimbabwe Sugar Cane Development Association Royal Trust), eighth (Chipiwa Mpapa Mill Group), and tenth (Farai Dumo Augustine Musikavanhu) respondents in particular.

ISSUES

The grounds of appeal may be four, but they speak to essentially two narrow issues for determination in this appeal. They are:

1. Whether or not the court a quo erred in refusing to grant the declaratur and the interdict.

2. Whether or not the court a quo erred in granting costs against the appellants.

SUBMISSIONS ON APPEAL

Counsel for the appellants anchored his arguments on the legal effects of the decision taken by the first respondent, contained in its letter dated 9 September 2019. Following meetings held by the parties, the first respondent determined that:

“1. The VAT Act, under section 6, provides that VAT shall be charged and levied where a service is provided. Facts at hand indicated that millers provide milling services to the farmers and they retain 23% from the sugar proceeds…,.

Given the above legislative requirements, VAT is therefore applicable on the milling fees, and, as discussed in the meeting, VAT is recovered as depicted in the following scenario…,.”

It was submitted, that, the moment the first respondent made the decision to commence recovering value added tax (VAT) on milling services, when, prior to that, it had not done so, the provisions of section 72(1) of the Value Added Tax Act [Chapter 23:12] were triggered.

The section provides:

“(1) Whenever the value added tax is imposed or increased in respect of any supply of goods or services in relation to which any agreement was entered into by the acceptance of an offer made before the tax was imposed or increased, as the case may be, the registered operator may, unless agreed to the contrary in any agreement in writing and notwithstanding anything to the contrary contained in any law, recover from the recipient, as an addition to the amounts payable by the recipient to the registered operator, a sum equal to any amount payable by the registered operator by way of the said tax on increase, as the case may be, and any amount so recoverable by the registered operator shall, whether it is recovered or not, be accounted for by the registered operator under this Act as part of the consideration in respect of the said supply.”

To the extent that value added tax (VAT) was only imposed on the milling fees, by letter quoted above, so the argument goes, when it had not been claimed previously, the appellants were entitled to recover it from the recipients of the milling services by virtue of that provision.

It was submitted, further, that, the deeming provisions of section 69 of the Value Added Tax Act do not preclude the appellants from recovering the value added tax (VAT) paid to the first respondent. This is so because the section is a shield in the hands of the revenue collector. It is an administrative tool for the facilitation of easy collection of taxes without disruptive disputes with registered operators.

In counsel for the appellants view, section 69 of the Value Added Tax Act cannot be used to estop the operator from recovering value added tax (VAT) paid to the collector.

Per contra, counsel for the first respondent submitted, that, given that the contracts for milling services did not reflect value added tax (VAT), section 69 of the of the Value Added Tax Act applies. To that extent, in respect of past supplies, the contract price is deemed to be inclusive of VAT.

It was submitted further, that, in the absence of an agreement with the farmers to vary the contract price, even by the application of basic principles of Contract Law, the appellants could not unilaterally vary the price by levying value added tax (VAT).

On the effects of section 72 of the Value Added Tax Act, it was submitted, that, the section may be regarded as a law–changing provision. In the event that the law changes to include value added tax (VAT), where it was not applicable, so it was argued, or to increase the applicable VAT, then, by dint of section 72 of the Value Added Tax Act, the agreement is varied accordingly.

The net effect of those submissions is that the section has no application where value added tax (VAT) was excluded in the agreement when it should have been included.

Regarding the alleged interference with contractual rights and obligations by the first respondent, counsel for the first respondent submitted, that, the advice rendered by the first respondent was not only at the invitation of the appellants themselves but also in fulfilment of a statutory obligation. The first respondent is obliged to educate taxpayers on their tax obligations.

The requirements for an interdict were not met.

Counsel for the rest of the respondents in attendance, in chorus, associated themselves with submissions made on behalf of the first respondent....,.

Counsel for the appellants did not prosecute the issue of the interdict sought against the first respondent with any degree of enthusiasm.

It is not without reason that this is so:

(a) Firstly, evidence placed before the court a quo shows, that, the appellants invited the first respondent to intervene and educate the farmers on the tax implications of their contracts with the appellants. That the first respondent interpreted their contracts in a manner not favourable to the appellants can scarcely found a cause of action.

(b) Secondly, and more importantly, the requirements for the grant of an interdict were not met.

I can only advert to the fact that the court a quo made factual findings relating to the failure by the appellants to prove that the first respondent had interfered with the contractual issues.

It also made a finding that the advice rendered by the first respondent was only confined to value added tax (VAT) matters falling within the statutory province of the first respondent as a revenue collector.

Surely, one cannot be interdicted from carrying out a lawful duty.

The court a quo also made a finding that the use of the term “gratuitously interfering” was too imprecise and unenforceable.

On appeal, the appellants failed to set out a basis for interference with those findings.

It is trite, that, it is only where the factual findings of the lower court are clearly irrational, to an extent that no sensible court seized with the same facts could have reached such a conclusion, that the Appellate Court will interfere: see Hama v National Railways of Zimbabwe 1996 (1) ZLR 664 (S); Shuro v Chiuraise SC20-19.

No such threshold was attained in the present case. As such, this Court cannot interfere.

View Appeal
HMA28-20 : TRIANGLE LIMITED and HIPPO VALLEY ESTATES vs ZIMBABWE REVENUE AUTHORITY and OTHERS
Ruled By: ZISENGWE J

The parties in this application are embroiled in a bitter dispute over the implications of their failure to specifically include Value Added Tax (abbreviated herein as “VAT”) matters in agreements for the milling of sugarcane.

The applicants are both companies duly incorporated in terms of the laws of Zimbabwe whose names over the years have become synonymous with sugar and sugar cane production in Zimbabwe. They grow, source, and mill sugar-cane and market its products. They carry on this agro-based business in and around the Lowveld towns of Triangle and Chiredzi.

The first respondent is the Zimbabwe Revenue Authority (ZIMRA): a statutory body whose chief mandate is to assess, collect, and enforce the payment of all revenues on behalf of the State. It is established in terms of the Revenue Authority Act [Chapter 23:11].

Save for the 10th (Farai Dumo Augustine Musikavanhu) and 11th (Roy Bhila), the rest of the respondents are organisations representing the interests of sugarcane farmers in the Lowveld (Zimbabwe Sugar Cane Development Association, Zimbabwe Cane Farmers Association, Mkwasine Sugar Cane Farmers Trust, Commercial Sugar Cane Farmers Association of Zimbabwe, Hippo Valley Productive Farmers Association, Zimbabwe Sugar Cane Development Association Royal Trust, Chipiwa Mpapa Mill Group and Chiredzi Productive Cane Growers Association).

The 10th (Farai Dumo Augustine Musikavanhu) and 11th (Roy Bhila) respondents are individual sugar cane farmers.

They were probably singled out on account of the positions they hold as Members of Parliament for the Chiredzi South and Chiredzi North constituencies respectively over and above their roles as sugar-cane farmers. They also occupy and serve in specialised Parliamentary capacities.

BACKGROUND

Solely for purposes of convenience and brevity, the second to eleventh respondents (Zimbabwe Sugar Cane Development Association, Zimbabwe Cane Farmers Association, Mkwasine Sugarcane Farmers Trust, Commercial Sugarcane Farmers Association of Zimbabwe, Hippo Valley Productive Farmers Association, Zimbabwe Sugarcane Development Association Royal Trust, Chipiwa Mpapa Mill Group, Chiredzi Productive Cane Growers Association, Farai Dumo Augustine Musikavanhu and Roy Bhila) will be referred to simply as “the farmers” and the first respondent as “ZIMRA”.

It is common cause, that, pursuant to the terms of either of two types of written agreements between them, the farmers supply the sugar cane that they produce to the applicants. These contracts are generally referred to by the parties as the “Cane Milling Agreement” and the “Cane Purchase Agreement.”

Under the former, the basic idea (as is implicit in the name) is that the applicants merely provide a milling service to the farmers. In addition, the applicants also proceed to market, on behalf of the farmers, the sugar and molasses thereby produced as well as other by-products, and, thereafter, remit to the farmers the proceeds thereof after deducting the expenses associated with the milling of the sugarcane and marketing of the sugar and the other by-products.

It is further common cause, that, under the cane milling arrangement, there is an existing agreement that the charge for the milling is calculated according to a pre-determined ratio referred to as the “Division of Proceeds” (DoP) ratio. This ratio currently stands at 23 percent of the proceeds which the applicants retain in the wake of the marketing of the products of the milling process. The farmer gets the remainder.

The Cane Purchase Agreement operates differently.

According to the parties, this agreement involves a direct and complete sale of the sugar cane by the farmers to the applicants with risk and benefits passing to the latter upon the delivery of the cane.

During oral submissions in court, counsel for the applicants referred to a rather convoluted method by which the purchase price of the cane is computed under this arrangement; suffice it to say that there is no convergence as among the parties as to whether the supplies of cane that gave rise to the current dispute constitute a Cane Milling Agreement or a Cane Purchase Agreement.

Be that as it may, it is common cause, that, in a decision (which has since been appealed against to the Fiscal Appeals Court), the first respondent determined that the set-up which currently obtains, chiefly characterised by the distribution of proceeds arrangement, constitutes one which attracts value added tax (VAT).

Therein lies the genesis of the dispute.

This is because the simple question to be answered is whether the 23 percent retained by the applicants, post the milling and marketing, incorporates value added tax (VAT) (as contended by the farmers) or it does not (as maintained by the applicants).

It is further common cause that the Zimbabwe Revenue Authority (ZIMRA), having made the decision that the aforementioned arrangement was one that attracts value added tax (VAT) in terms of the law, and that the applicants were therefore legally obligated to have, all along, charged and collected from the consumers (i.e. the farmers) and remitted the amounts so collected to it, directed that the said amounts be paid to it.

In compliance with that decision, the applicants aver, that, they have since calculated the outstanding amounts in this regard and remitted the same to the first respondent.

Through the current application, the applicants seek;

(i) A declaratory order to the effect that they are legally entitled to recover from the farmers the value added tax (VAT) which they have since paid to the first respondent; and

(ii) Secondly, that they are legally entitled to continue charging and collecting value added tax (VAT) from the farmers over and above the 23 percent milling charge.

The applicants also take exception to the fact that the first respondent (through some of its officials) took it upon itself to render certain advice to the farmers which advice they contend amounts to an unwarranted interference in matters that are purely contractual.

Part of that advice related to the first respondent's interpretation of the tax implications of the failure to include value added tax (VAT) matters in the cane supply agreements.

The terms of the declaratur sought by the applicants are captured in the draft order annexed to the application which reads:

“Wherefore, after reading papers filed of record and hearing counsel, IT IS ORDERED THAT:

1. The application succeeds with costs.

2. It be and is hereby declared that -

(a) The conduct by the first respondent to give advice to the applicants and the second to eleventh respondents on what are purely contractual matters is ultra vires its functions and responsibilities as an administrative authority and therefore unlawful.

(b) To the extent that they are liable to pay VAT for milling costs, the applicants are entitled to charge, levy, and collect such VAT in accordance with the VAT Act on and in addition to the value for the milling charge.

3. The first respondent be and is hereby ordered and directed to refrain from gratuitously interfering in pricing and contractual issues between the applicants and the second to eleventh respondents.

4. The respondents shall, jointly and severally, the one paying the others to be absolved, pay the applicants costs of suit on an attorney–client scale.”

The applicants raised a number of arguments in support of their contention that they should be permitted to recover that which they have since paid to the Zimbabwe Revenue Authority (ZIMRA) in the wake of the latter's aforementioned determination.

The main thrust of their argument, as I see it, however, is that the very fact that the Act makes it clear that the burden to pay the tax in question rests on the consumers, who in this case are the farmers, yet it was them (applicants) who were compelled to pay it, necessarily implies that they can recover the same from the farmers.

Reliance was placed, inter alia, on the elucidation by GOWORA JA, of the tripartite relationship in the value added tax (VAT) equation. This was in the case of ZIMRA v Packers International (Private) Limited SC28-16 where the following exposition was made:

“The system of collection of VAT, as embodied in the VAT Act, involves the imposition of tax at each step along the chain of manufacture of goods or the provision of services subject to VAT;”

And further that:

“…, tax under the VAT Act consists of monies that have been taxed on goods and services paid by consumers for onward transmission to the Commissioner. All that is required of an operator is to calculate the amount so paid, submit a return, and make payment.”

Flowing from this basic premise, according to the applicants, are two applicable precepts that emanate therefrom, namely, unjust enrichment and equity.

The latter, though not specifically pleaded in their papers, was nevertheless amply canvassed during the oral submissions in court.

Regarding unjust enrichment, it was averred, that, should the court not find in the applicants favour, an injustice will ensue in that the respondents will have been unjustly enriched at their expense.

For the requirements and application of the principle of unjust enrichment, the following cases were cited as authority; Industrial Equity v Walker 1996 (1) ZLR 269 (H); Chioza A.M. v Siziba S.W. SC04-15; and Trojan Nickel Mine Ltd v Reserve Bank of Zimbabwe HH169-13.

It was contended, that, the facts of this case point to the fact that all the pre-requisites for a finding for the applicant on the basis of unjust enrichment have been met.

The nub of the equity argument is that justice and fairness simply demand that the applicants be allowed to recoup from the farmers that which they paid to the Zimbabwe Revenue Authority (ZIMRA) in compliance with the latter's determination.

It is clear that this is merely an extension or adjunct of the unjust enrichment contention.

The applicants further referred to various sections of the Act which, in their view, fortify their position. Reliance was placed in this regard to section 9(2) which provides as follows:

“The value placed on any supply of goods or services shall, save as is otherwise provided in this section, be the value of the consideration for such supply, as determined in accordance with subsection 3, less so much of such value as represents tax: Provided that -

(a)…,.;

(b) Where the portion of the value of the said consideration which represents tax is not accounted for separately by the registered operator, the said portion shall be deemed to be an amount equal to the tax fraction of that consideration.”

Similarly, reliance was placed on section 9(5) of the Act which provides:

“Where goods or services are deemed to be supplied by a registered operator in terms of subsection (2) or (8) of section 7, the supply shall be deemed to be made for a consideration in money equal to the lesser of -

(a) The cost to the registered operator of the acquisition, manufacture, assembly, construction, or production of goods or services, including -

(i) Any tax charged in respect of the supply to the registered operator of such goods or services or of any components, materials, or services utilised by him in such manufacture, assembly, construction or production;

(ii) Where such goods or any right referred to in subsection (2) of section seven, when held by the registered operator, constituted trading stock as defined in section 2 of the Taxes Act, any further costs, including tax incurred by him in respect of such goods or right;

(iii) Any costs, including tax, incurred by the registered operator in respect of the transportation or delivery of such goods or the provision of such services in connection with the transfer of such goods or the provision of such services as contemplated in subsection (8) of section seven; and

(iv) Where such goods or services were acquired under a supply in respect of which the consideration in money was in terms of subsection (4) of this section deemed to be the open market value of the supply or would in terms of that provision have been deemed to be the open market value of the supply were it not for the fact that the recipient would have been entitled under subsection (3) of section fifteen to make a deduction of the full amount of tax in respect of that supply, such open market value to the extent that it exceeds the consideration in money for that supply: or

(b) The open market value of such supply.”

THE POSITION OF THE RESPONDENTS

The third (Zimbabwe Cane Farmers Association) and fourth (Mkwasine Sugar Cane Farmers Trust) respondents did not ultimately participate in the proceedings on account of the fact that the former did not file any opposing papers and the latter filed its heads of argument outside the prescribed time and was therefore barred.

In a similar vein, there was no appearance by or on behalf of the sixth (Hippo Valley Productive Farmers Association), ninth (Chiredzi Productive Cane Growers Association) and eleventh (Roy Bhila) respondents on the day of the hearing.

Effectively, therefore, only the positions of the first (Zimbabwe Revenue Authority), second (Zimbabwe Sugar Cane Development Association), fifth (Commercial Sugar Cane Farmers Association of Zimbabwe), seventh (Zimbabwe Sugar Cane Development Association Royal Trust), eighth (Chipiwa Mpapa Mill Group), and tenth (Farai Dumo Augustine Musikavanhu) respondents were before the court.

ZIMBABWE REVENUE AUTHORITY's POSITION (ZIMRA)

Regarding the implications of the failure by the applicants and the farmers to specifically incorporate value added tax (VAT) matters in their Division of Proceeds (DoP) arrangements, ZIMRA articulated two distinct positions, namely;

(i) That which relates to past supplies of cane; and

(ii) That which attends to present and future supplies of cane.

In respect of past supplies of sugarcane, the Zimbabwe Revenue Authority (ZIMRA) averred that a proper construction of section 69 of the Value Added Tax Act shows, that, in the absence of the express mention of value added tax (VAT) component in any price for goods or services, then the price will be deemed to contain the said tax.

As far as the alleged impropriety of the advice it rendered to the farmers, it contended that whatever advice it gave to the farmers was not only within its legal powers to give but also that it did so at the behest of the applicants.

It further averred, that, it has a duty to provide education to taxpayers not only to impart knowledge of the same but also to inculcate and engender a spirit of compliance.

First (ZIMRA) respondent's position on VAT implications for present and future supplies of cane

In its papers opposing this application, the Zimbabwe Revenue Authority (ZIMRA) does not commit itself on what the tax implications in respect of present and future supplies are. It opted, instead, to confine itself to the question of past supplies.

However, it soon became apparent that its position is that the applicants are not only at liberty to charge, levy, and collect from the farmers the said tax, but that they are in fact obligated to do so.

It suffices, however, to note that this does not address the issue of whether this will be over and above the 23 percent being charged for the milling of the cane.

THE FARMERS POSITION

As earlier stated, only the positions of the second (Zimbabwe Sugar Cane Development Association), fifth (Commercial Sugar Cane Farmers Association of Zimbabwe), seventh (Zimbabwe Sugar Cane Development Association Royal Trust), eighth (Chipiwa Mpapa Mill Group), and tenth (Farai Dumo Augustine Musikavanhu) respondents were effectively before court.

Save for a few instances of divergence (which will be highlighted below) the farmers were united not only in their resistance to the application but also on the grounds thereof.

The rallying point in their opposition to the quest by the applicants to recover the tax for past supplies was section 69 of the Value Added Tax Act. Their position essentially mirrors that of the Zimbabwe Revenue Authority (ZIMRA).

Over and above the import of section 69 of the Value Added Tax Act, however, a few additional arguments were presented to buttress their position and these are:

1. The very fact that the Zimbabwe Revenue Authority (ZIMRA) has determined that the 23 percent milling charge includes value added tax (VAT) as far as the second (Zimbabwe Sugar Cane Development Association), eighth (Chipiwa Mpapa Mill Group) and tenth (Farai Dumo Augustine Musikavanhu) respondents are concerned, is dispositive of the whole dispute.

They go as far as contending that the decision of ZIMRA is binding.

They further assert, that, in their view, the applicants have merely abdicated from their responsibility to remit the value added tax (VAT) so collected to ZIMRA and the consequences attendant thereto cannot be visited on them.

2. That the endeavour, on the part of the applicants, to recover the value added tax (VAT) they paid from them amounts to an attempt to vary the implied terms of their contract.

3. That, as far as the fifth (Commercial Sugar Cane Farmers Association of Zimbabwe) respondent is concerned, its cane supply arrangement with the applicants is governed by neither a cane milling agreement nor a cane purchase agreement, but, rather, by what it terms a “memorandum of understanding.” A copy of which was attached.

4. A further point raised by the fifth respondent (Commercial Sugar Cane Farmers Association of Zimbabwe) was that the very fact that invoices relating to disbursements of the individual farmer's share of proceeds is silent on the collection of value added tax (VAT) necessarily implies that VAT was included in the 23 percent milling charge.

During oral addresses in court, yet another argument was presented, namely, that, the Division of Proceeds (DoP) ratio was decided upon by the Minister responsible for the superintendence of the sugar sector, namely, the Minister of Industry and Commerce.

It was averred, in this regard, that, during the negotiations leading up to those figures (of 23 percent and 77 percent) it was in the contemplation of the parties that value added tax (VAT) was incorporated in the 23 percent milling charge.

In apparent departure from the positions held by the other respondents, the seventh respondent (Zimbabwe Sugar Cane Development Association Royal Trust) maintained that section 69 of the Value Added Tax Act applies to all supplies of cane; past, present, and future.

THE ISSUES

In my view, there are two broad issues up for determination in this dispute, and, from each, two sub-questions arise. The two broad questions are:

(1) Whether the 23 percent cane milling charge includes or excludes value added tax (VAT); and

(2) Whether there has been an unjustifiable interference by the first respondent the Zimbabwe Revenue Authority (ZIMRA) in purely contractual matters between the applicants and the farmers.

The sub-questions in respect of (1) above are:

(a) Whether or not the applicants are entitled to recover from the farmers value added tax (VAT) which they (i.e. applicants) paid to ZIMRA for past supplies; and

(b) Whether or not the applicants are entitled to charge, levy, and collect from the farmers value added tax (VAT) over and above the 23 percent milling charge.

The sub-questions from (2) above are:

(a) Whether the applicants have satisfied the requirements for the declaratur sought in paragraph 2(a) of the draft order; and

(b) Whether the applicants have satisfied the requirements for the interdict sought in paragraph 3 of the draft order....,.

Untenable is the argument advanced on behalf of the second (Zimbabwe Sugar Cane Development Association), eighth (Chipiwa Mpapa Mill Group) and tenth (Farai Dumo Augustine Musikavanhu) respondents that the very fact that ZIMRA has deemed that the 23 percent milling charge as being inclusive of value added tax (VAT) is determinative of the issue.

The Zimbabwe Revenue Authority (ZIMRA), as with any other individual or entity is bound by the provisions of the law (in this case the Value Added Tax Act). Its interpretation of its provisions is also subject to judicial review. The court is still enjoined to determine the correctness or otherwise of that interpretation....,.

WHETHER THE 23% CANE MILLING CHARGE INCLUDES OR EXCLUDES VALUE ADDED TAX (VAT)

This is arguably the most significant question as it lies at the very heart of the dispute.

As indicated above, the applicants used various arguments in support of their contention that the 23 percent milling charge must be taken as excluding value added tax (VAT).

They relied, inter alia, on subsections 2 and 5 of section 9 of the Value Added Tax Act.

I however fail to see how section 9(2)(b) of the Value Added Tax Act assists the applicants.

Section 9 of the Value Added Tax Act, in general, is aimed at the determination of the value of supply of goods or services. Paragraph 2(b), in particular, is a proviso to the general provision that the value to be placed on any supply of goods or services is the value of the consideration.

This proviso however addresses a situation where the registered operator neglects to separately account for the value of the consideration which represents tax in which case it will be deemed to be the tax fraction of the consideration.

Implicit in this proviso is that the tax fraction is to be calculated from that consideration: not in addition to the consideration. A fraction of something is a piece, part, portion, or component of something. Put in context, therefore, the tax fraction is incorporated in not excluded from or to be added to the 23 percent milling charge which is the consideration.

Sub-section (5) of section 9 of the Value Added Tax Act equally does not avail the applicants.

It is simply a method aimed at assisting in the computation of the consideration of the supply of the goods or services in question in instances of “deemed supply”. The basic idea being that this involves a calculation of all the expenses incurred in or attendant to the acquisition of the goods or services (or any lesser amount) or simply the open market value of such supply.

Needless to say that this provision does not even come close to unlocking the current legal logjam, let alone assist the applicants....,.

The real issue as I see it, lies in the interpretation of sections 69 and 72 of the Value Added Tax Act and their application to the facts of this matter....,.

REGARDING PAST SUPPLIES OF CANE

As indicated earlier, in this regard, the Zimbabwe Revenue Authority (ZIMRA) relied almost exclusively on the provisions of section 69 of the Value Added Tax Act (and the farmers adopt a similar stance) which provides as follows:

“69 Prices deemed to include tax

(1) Any price charged by the registered operator in respect of any taxable supply of goods or services, shall, for the purposes of this Act, be deemed to include any tax payable in terms of paragraph (a) of subsection (1) of section six in respect of such supply, whether or not the registered operator has included tax in such price.”

According to ZIMRA, the significance of this section is that where the price/charge (which, in this case, the milling price which is pegged at 23 percent of the value of the proceeds from the cane) is silent on the value added tax (VAT) component thereof, it is deemed, ex lege that VAT is included in that price.

Put in perspective, therefore, according to the first respondent, the Zimbabwe Revenue Authority (ZIMRA), it is deemed that the consumer of the goods or service (in this case the farmer) has already paid value added tax (VAT) in that price, and, by logical extension, all the registered operator (in this case the applicants) needs to do is to remit it to ZIMRA.

Any purported attempt to recover the same from the consumer is untenable because that would not only amount to taxing the consumer twice but also runs contrary to the tenor and spirit of that section.

The Zimbabwe Revenue Authority (ZIMRA) further contended, that, doing so would inevitably lead to a fresh computation of the value added tax (VAT) payable because the one calculated and subsequently paid by the applicants was on the basis of section 69 of the Value Added Tax Act.

In a nutshell, accepting the position adopted by the applicants would yield higher figures for the value added tax (VAT) payable.

The applicants took a contrary view and argued;

(i) Firstly, that there is no need to resort to the deeming provision of any legislation when in fact the issue in question is adequately provided for elsewhere in that Act.

This is because, so the argument goes, it should only be resorted to in instances of omission on the part of a party with the duty to comply with a statutory obligation.

(ii) Secondly, they contended that section 69 of the Value Added Tax Act only serves to remove as a potential defence in situations such as the present when ZIMRA demands from it the value added tax (VAT) component of any price where same is not expressly stated therein.

However, according to them, it offers no sanctuary to a consumer when the registered operator now seeks to recover from him (i.e. consumer) that which they paid pursuant to ZIMRA's decision.

In my view, the position adopted by the applicants cannot be sustained.

Firstly section 9(2) and section 9(5) of the Value Added Tax Act, which they relied on, have already been found to be of no application to the current dispute.

Secondly, the plain and literal meaning of the section suggests that it is irrelevant whether or not the registered operator has in fact charged the tax in question; where the price does not reflect the tax component thereof it is presumed that the tax is incorporated in that price.

In other words, the phrase “whether or not the registered operator has included tax in such price” operates a twin blow to the registered operator: it serves to estop him from denying that the price in reality did not include tax in a bid to avoid accounting for the tax to the Commissioner. At the same time, it precludes him from purporting to claim from the consumer the tax that he may or may not have collected from the consumer.

The question of who bears the obligation under the Value Added Tax Act to pay the tax (who is obviously the consumer), which the applicants expended so much effort on, is hardly the issue.

To contend that section 69 of the Value Added Tax Act should be construed so as to permit the registered operator to pursue the consumer for the recovery of the tax they paid to the Zimbabwe Revenue Authority (ZIMRA) would, in my view, run contrary to the clear intention of the legislature.

The legislature must obviously have been alive to the fact, that, in most day to day supply of goods and services, the customer disappears without trace soon after the transaction.

How then would the registered operator be able to recoup the tax that he claims he did not in fact charge and collect?

Even if the customer could be traced, there would be an unnecessary proliferation of disputes between him and the registered operator as to whether the price included value added tax (VAT) or not.

It would create unnecessary uncertainty and confusion in the market place where the consumer will never know whether or not the price charged includes value added tax (VAT) and where he always runs the risk of being informed ex post facto that the price he paid actually did not include tax.

If the applicants are permitted to recover the tax in question from the farmers then the deeming provision will be rendered nugatory. It would mean the price cannot then be deemed to include tax - it is as simple as that.

Further, related to the above, the deeming provision cannot be interpreted to mean two different things to two different people.

The interpretation that the applicants want to foist on section 69 of the Value Added Tax Act will result in a mathematical or accounting incongruence and an absurdity in logic.

The Zimbabwe Revenue Authority (ZIMRA), in its papers, vividly illustrate the mathematical inconsistency that will arise when they juxtapose the outcomes of the two contrasting positions using the hypothetical figure of $1,000 as proceeds for the sale of sugar thus:

(a) Where section 69 of the Value Added Tax Act is invoked

Proceeds from sale of sugar = $1,000
Price for milling services at 23% of the proceeds = ($1,000 x 23%) = $230
VAT due after deeming that that price includes VAT = ($230 x 15/115) = $30

(b) Where the applicants recover the section 69 ($30) VAT from the farmers

Proceeds from sale of sugar = $1,000
Price for milling services at 23% of the proceeds = ($1,000 x 23%) = $230
VAT due after deeming that that price includes VAT = ($230 x 15/115) = $30
VAT due after the applicants recover the $30 VAT from the farmers = 15% ($230-30+30) = $34.50

What the applicants are moving the court to accept will also yield a further absurd result in the following context:

Where, from the standpoint of the first respondent, the Zimbabwe Revenue Authority (ZIMRA), vis a vis the applicants, value added tax (VAT) is deemed to be included in the price; yet, from the standpoint of the applicants vis-a-vis the farmer, the price is deemed not to include the tax.

It could never have been the intention of the legislature to produce such an absurd or anomalous situation.

The net result of the interpretation should be uniform, consistent, and certain not only to the parties but also to other persons similarly situated.

Section 69 of the Value Added Tax Act effectively places the registered operator on guard on the consequences of his failure to specifically include in his price the value added tax (VAT) component thereof.

Viewed differently, it is the responsibility of the registered operator to ensure that value added tax (VAT) matters are addressed in his dealings with the consumer. It is not a responsibility that the registered operator jointly shares with the consumer because the duty to account to the Commissioner ultimately rests with him (i.e. Registered Operator).

There can never be a conflation of the roles, duties, and responsibilities among the various parties: the burden to pay the tax lies with the consumer (the farmer), the duty to charge, collect, and remit the tax lies with the registered operator (the applicants).

In the context of this case, whether occasioned by inadvertence, oversight, or a mis-interpretation of the nature of the contract, the consequences of the failure to specifically include the value added tax (VAT) are that VAT is deemed included in the milling price.

During the proceedings, resort was made by the applicants to section 72(1) of the Value Added Tax Act which provides as follows:

“72 Contract price or consideration may be varied according to rate of value-added tax

(1) Whenever the value added tax is imposed or increased in respect of any supply of goods or services in relation to which any agreement was entered into by the acceptance of an offer made before the tax was imposed or increased, as the case may be, the registered operator may, unless agreed to the contrary in any agreement in writing and notwithstanding anything to the contrary contained in any law, recover from the recipient, as an addition to the amounts payable by the recipient to the registered operator, a sum equal to any amount payable by the registered operator by way of the said tax or increase, as the case may be, and any amount so recoverable by the registered operator shall, whether it is recovered or not, be accounted for by the registered operator under this Act as part of the consideration in respect of the said supply.”

In my view, this provision is meant to address the adjustments that may have to be made in contractual situations wherein, at the time the offer was made, there was no value added tax (VAT) imposable on that contract or it stood at a certain level; however, by the time the acceptance is made, that type of contract, by operation of the law, now attracts VAT or had been increased.

The imposition of or the increase in the value added tax (VAT) was not in the contemplation of the parties thereby necessitating an adjustment in the price.

This provision is clearly not applicable to the current dispute.

There was no imposition of a “new” tax which hitherto did not exist, nor was there an increase of the value added tax (VAT) chargeable and payable.

The parties merely failed to take into account a tax which was already in existence.

PRESENT AND FUTURE SUPPLIES OF CANE

Therefore, against the backdrop of a finding that the parties (whether through inadvertence, oversight, or mis-apprehension) failed to address value added tax (VAT) matters in their contracts, one cannot legitimately vouch for the perpetuation of the status quo.

It behoves the parties to re-negotiate or clarify the terms of their contract to plug that lacuna.

It suffices to state, that, failure to do so may very well result in section 69 of the Value Added Tax Act being continuously invoked....,.

THE DECLARATUR AND INTERDICT SOUGHT IN PARAGRAPHS (2a) AND 3 OF THE DRAFT ORDER RESPECTIVELY

The relief sought in each of the above emanates from the same alleged culpable conduct. In both instances, the applicants complain that the first respondent, the Zimbabwe Revenue Authority (ZIMRA), has, in the past, overstepped its mandate (i.e. it acted ultra vires its functions and responsibilities) and has unjustifiably (and gratuitously) interfered in matters that are purely contractual as between themselves and the farmers.

The Declaratur

In MDC v The President of the Republic of Zimbabwe & Ors HH28-07, MAKARAU JP…, on the strength of the approach by VAN DIJKHORST J, in Family Benefit Friendly Society v Commissioner for Inland Revenue and Anor 1995 (4) SA 120, summarises the factors to be considered in an application for a declaratur. She stated that the applicant or plaintiff must show that:

1. It is an interested person;

2. There is a right or obligation which becomes the object of the inquiry;

3. It is not approaching the court for what amounts to a legal opinion upon an abstract or academic matter;

4. There must be interested parties upon which the declaration will be binding;

5. Considerations of public policy favour the issuance of the declaratory.

As far as the first requirement is concerned, it can hardly be disputed that the applicants are interested persons.

To the extent that they stand to be affected by any opinion or advice rendered by the first respondent, the Zimbabwe Revenue Authority (ZIMRA), to the contracting parties in the sugar-cane supply agreements, the applicants do have an interest thereto.

The second requirement, however, poses a stern challenge to the applicants.

In MDC v The President of the Republic of Zimbabwe & Ors HH28-07, the court reviewed a number of decisions on the import of this requirement (among them Electrical Contractors Association (South Africa) and Another v Building Industries Federation (South Africa) (2) 1980 (2) SA 516 (T); Durban City Council v Association of Building Societies 1942 AD 27; and Caluza v Independent Electoral Commission and Another 2004 (1) SA 631 (Tk) and concluded as follows:

“It appears to me, from a reading of the above authorities, that, what is required to be contended is a legal right and not a factual basis upon which a right may then be founded.

In casu, all the declaratory orders do not relate to a right. Nowhere has the applicant, as a political party with the majority of opposition seats in Parliament, contended that its rights are in issue and what those rights are.

I would therefore hold, that, the declarators sought in this application are incompetent as they relate to a factual situation and not to any rights, existing or future, that the applicant has or may have.

As has been stated in the authorities, the applicant must set forth its contention as to what the alleged right is. This, the applicant has failed to do. It is not for me to speculate as to what that right is or may be.”

In my respectful view, the applicants in the present case find themselves in a similar situation.

Apart from alleging a certain factual situation as obtaining (namely, the giving of advice by the first respondent, the Zimbabwe Revenue Authority (ZIMRA), they have not asserted precisely what right they purport to have.

For that reason, the application for the declaratur in paragraph 2(a) must fail.

The Interdict

The parties sparred on the precise nature of the relief sought in paragraph 3 of the applicants draft order.

It was submitted, on behalf of the applicants, that, what they seek is in fact an interdict although they did not characterise it as such in their papers.

The requirements for an interdict are well known; they may be summarized as:

1. A clear right on the part of the applicant;

2. Actual or reasonably apprehended injury; and

3. Absence of any other remedy by which the applicant can be protected with the same results.

See Flame Lily Investments Company (Pvt) Ltd v Zimbabwe Salvage (Pvt) Ltd & Anor 1980 ZLR 378; Setlogelo v Setlogelo 1914 AD 221.

As far as the first requirement is concerned, the current application is blighted by several shortcomings:

(i) Firstly, the imprecision of the term “gratuitous interference” renders the relief sought virtually unenforceable. When does interference cross the line from 'normal' (hence acceptable) to 'gratuitous' (and therefore merits censure)?

(ii) Secondly, there is no evidence that the first respondent, the Zimbabwe Revenue Authority (ZIMRA), has interfered in the pricing issues between the applicants and the farmers.

The evidence placed during this application shows that the advice which the first respondent (ZIMRA) gave relates to value added tax (VAT) matters.

The paragraph of the letter by the first respondent, the Zimbabwe Revenue Authority (ZIMRA), which the applicants find offensive reads:

“Having gone through the report by Ernst and Young Consultants on the review of Division of Proceeds (D.o.P.) and the cane purchase agreement, I noted that the two documents are silent on tax issues. In that regard, the legislation provides that VAT is included in the 23% milling charge.”

It is clear that the advice given only related to the first respondent, the Zimbabwe Revenue Authority (ZIMRA), on value added tax (VAT) matters in view of the circumstances which the parties to the contract found themselves in.

That advice can neither be termed gratuitous nor unjustified interference.

It does not, in the least, relate to pricing.

In any event, tax issues in the context of this case can hardly be referred to as pricing (or contractual) matters - they are matters of statutory interpretation.

(iii) Thirdly, there is an email from one Bigboy Shava, acting on behalf of the second applicant, which e-mail is dated 12 June 2019, directed to the first respondent (ZIMRA), among other issues, urging the latter to essentially register and educate the farmers on the implications of its (i.e. first respondent's) tax directive (which the applicants were and still are challenging).

It was then that meetings were held on 28 August and 6 September 2019.

These meetings were followed up with the letter dated 9 September 2019.

Therefore, the applicants, having requested the first respondent, the Zimbabwe Revenue Authority (ZIMRA), to address the farmers on the tax implications of their agreement cannot turn around and cry foul and allege gratuitous interference.

In the circumstances, there can be no justification in granting the interdict sought....,.

1. The application for a declaratur, as sought in paragraph 2(a) of the draft order be and is hereby dismissed.

2....,.

3....,.

4. The application for an interdict, as sought in paragraph 3 of the draft order, be and is hereby dismissed.

SC101-21 : EQUITY PROPERTIES (PVT) LTD vs ALSHAMS GLOBAL BVI LIMITED and REGISTRAR OF DEEDS
Ruled By: BHUNU JA, UCHENA JA and KUDYA AJA

This is an appeal against part of the judgment of the High Court of Zimbabwe sitting at Harare on 20 November 2019 granting an interim interdict in favour of the first respondent.THE FACTSThe appellant and the first respondent have been engaged in a flurry of litigation, and, at other times, ...

This is an appeal against part of the judgment of the High Court of Zimbabwe sitting at Harare on 20 November 2019 granting an interim interdict in favour of the first respondent.

THE FACTS

The appellant and the first respondent have been engaged in a flurry of litigation, and, at other times, with Interfin Banking Corporation Ltd in liquidation (the Bank) in both the High Court and in this Court. Some of the cases have been concluded while others are still pending.

The facts relevant to this appeal are narrow.

On 16 March 2018, in HC2463/18, the appellant brought motion proceedings against the first respondent seeking vindication of its original title deed no. 9068/2008, which pertains to Lot 3 of Bannockburn (the immovable property), within 10 days of the grant of the order failing which the second respondent was to issue a duplicate replacement deed within 90 days of that order.

The order was granted, purportedly in default of the first respondent, on 6 June 2018.

On 18 July 2018, while the application for rescission of the default judgment was pending, the appellant obtained the duplicate replacement title deed from the second respondent.

The first respondent filed three urgent chamber applications to stop the second respondent from issuing the replacement deed and one court application to prevent the appellant from using it.

The three urgent applications were all removed from the roll for lack of urgency while the court application was withdrawn.

The default judgment, upon which the replacement deed was issued, was rescinded a quo, in terms of Rule 449 of the High Court Rules 1971, on 21 November 2018.

The appellant duly appealed against the rescission of the judgment of the court a quo to this Court. The appeal was dismissed with costs on the higher scale on 7 October 2019 in case number SC924/18 for two reasons:

(i) The first was that the substituted service, upon which the rescinded judgment was based, had been effected on legal practitioners who did not have the mandate to represent the first respondent.

(ii) The second was that the order for substituted service had, by consent of the parties, been rescinded by this Court in SC733/18 on 25 March 2019.

It was common cause that the appellant used the duplicate title deed to subdivide an undisclosed number of Stands on Lot 3 of Bannockburn. He also used it to conclude an undisclosed number of agreements of sale with purchasers such as Conradie Tinofirei Mutumbuki, the third respondent in the application for rescission, on 11 October 2019, and to transfer title thereof to three purchasers, one of which was David Madyausiku who took transfer on 12 April 2019.

On 21 October 2019, the first respondent filed the urgent chamber application which has given rise to this appeal. It sought, in the interim, the return of the replacement deed to the second respondent; its cancellation by the second respondent; and the setting aside of all transactions based on it.

On the return date, it sought confirmation of the interim relief and costs de bonis propriis on the higher scale against the appellant's legal practitioner of record, one Mr Kwaramba.

On 29 October 2019, the appellant opposed the application.

It also filed a counter urgent chamber application in terms of Rule 229A of the High Court Rules, 1971. It raised five preliminary points. These were;

(i) That one of the urgent chamber applications that had been removed from the roll was lis pendens;

(ii) There was material non-disclosure of all the urgent applications that had been removed from the roll and the court application that had been withdrawn;

(iii) The application was not urgent;

(iv) There was non-joinder of third parties who had benefited from transactions based on the replacement title deed; and

(v) Lastly, that the relief in the interim order was the same as the one in the final order.

On the merits, it sought the dismissal of the application.

In the counter application, the appellant sought the retention of the replacement deed in the interim and determination of the lawfulness of the first respondent's possession of the original title deed on the return date.

It indicated its avowed intention to utilize the replacement deed to conduct further subdivisions, conclude more agreements of sale, and transfer the subdivisions that had been sold.

One such purchaser was Conrad Tinofirei Mutumbuki, who was joined in the proceedings on his own motion as the third respondent at the hearing on 29 October 2019 and made common cause with the appellant.

The first respondent also raised the preliminary point of lack of urgency against the counterclaim and sought its dismissal on the merits.

THE FINDINGS A QUO

The court a quo dismissed all the preliminary points raised by the appellant.

While it regarded one of the urgent chamber applications that had been removed from the roll to be pending at the instance of the first respondent, it found the cause of action and relief sought to be different from those before it.

It found the non-disclosure of prior urgent chamber applications and court application irrelevant to the determination of whether the main application was urgent.

It held, that, as the appellant had only impugned the interim relief pertaining to the setting aside of all transactions based on the replacement deed, and not the surrender and cancellation relief as final in effect, it could exercise its Rule 240 discretion to grant interim relief that was not final in effect.

It proceeded to do so by suspending, rather than cancelling, all the transactions predicated upon the replacement deed.

The court a quo further determined, that, the relief sought did not seek to stop past events but “recent and ongoing events.”

It also relied on the provisions of Rule 87 to find that the non-joinder of the third parties who purchased or took transfer of the purchased subdivisions was not inimical to their rights and interests as they were not involved in the procurement of the impugned replacement deed.

Lastly, it found that the first respondent had acted with speed after the decision of this Court of 7 October 2019 to launch the urgent chamber application after the subsequent ten-day negotiations for the voluntary surrender of the replacement deed failed.

Under the consequence factor, it held, that, the first respondent had established that the failure to intervene on an urgent basis would result in the attenuation and dissipation of the immovable property to the detriment of the first respondent's rights in the security pending litigation in HC8113/16, the consolidated case under which the application for rescission had also been incorporated.

Regarding the counter-application, it upheld the preliminary point of lack of urgency that was raised by the first respondent and struck it off the roll with costs on the higher scale.

On the merits of the main application, the court a quo was cognisant of the fact that the issue before it concerned the legality of the possession of the duplicate title deed by the appellant and not the legality of the possession of the original title deed by the first respondent.

It held, that, the appellant had fraudulently procured the duplicate title deed through a deliberate omission of the timeous opposition to its application in HC2463/18 from the bundle of documents for default judgment and the improper appeal against the rescission of the default judgment.

It reasoned that the appellant had done so for the twin purposes of obtaining and utilizing the duplicate deed to undertake the transactions it could not do without the original title deed; such as, the advertisements for the sale of Stands, the conclusion of agreements of sale, and the transfer of the Stands.

It also determined, that, the rescission of the default judgment restored the status quo ante, thereby effectively maintaining and preserving the first respondent's possession of the original deed and preventing the appellant from utilizing the duplicate deed to attenuate and dissipate the security by subdividing, selling, and transferring any subdivisions.

Lastly, it held that the first respondent had established all the requirements for a mandamus.

It therefore granted the provisional order for the return of the duplicate deed to the second respondent for cancellation and suspended all pending activities founded on the subdivisions, agreements of sale, and transfers of title predicated upon the duplicate title deed.

The appellant was accordingly estopped from effectuating all activities based on the duplicate title deed.

The court a quo reserved the nature and level of costs for the return day.

GROUNDS OF APPEAL

Aggrieved by the determination a quo, the appellant sought the setting aside of the order in the main application only and its substitution by a dismissal of the urgent chamber application with costs on the following four grounds of appeal:

“1. The court a quo erred in concluding that the 1st respondent's application was urgent when the 'time' and 'consequence' factors of urgency were not satisfied.

2. The court a quo erred in granting the relief of an interdict when all the requirements of an interdict were not met.

3. The court a quo grossly misdirected itself by granting a final interdict on an interim basis.

4. The court a quo grossly misdirected itself by purporting to interdict past events done pursuant to the replacement title deed.”

It is noteworthy that the appellant did not appeal against the striking off order against its counter urgent chamber application.

THE ISSUES

It was common cause that the issues for determination that arise from the grounds of appeal are:

1. Whether the court a quo correctly determined that the matter was urgent.

2. Whether the requirements of an interim interdict were satisfied.

3. Whether or not the court a quo granted a final interdict when the first respondent had sought an interim order....,.

On the merits, the appellant contended that the court a quo erred in holding;

(i) Firstly, that, the time to act commenced soon after this Court's judgment of 7 October 2019 rather than 18 July 2018, when the replacement title deed was issued by the second respondent; and

(ii) Secondly, that, the continued use of the replacement deed to subdivide, sell, and transfer the subdivisions constituted an irreversible dissipation of the immovable property secured by the collateral held by the first respondent.

It submitted, that, the previous attempts, in HC5466/19 and HC7769/19, to stop the use of the replacement deed negated the “time and consequence” based urgency by the time the provisional order was sought on 21 October 2019, since the dissipation of the immovable property, which began in 2008, was known to the first respondent from March 2012 when it took possession of the original deed.

On the consequent aspect, the appellant argued, that, the failure a quo to determine whether the tender of security in lieu of the original deed negated any irremediable harm arising from the indebtedness claimed in HC8113/16, which had been fully ventilated by the parties, constituted a fatal misdirection warranting interference with its discretion on appeal.

The appellant further submitted, that, as the immovable property was not hypothecated, it could not constitute security for the Bankers Acceptances.

It strongly contended, that, the absence of irreparable harm therefore negated the finding a quo of urgency.

The appellant further impugned the finding that the first respondent had established a prima facie case for granting the provisional order.

It assailed the existence of a prima facie entitlement, though open to some doubt, to possess the original title deed pending determination of HC8113/16, on four grounds:

(i) Firstly, the absence of a debtor-creditor relationship;

(ii) Secondly, the absence of a cession between the two protagonists;

(iii) Thirdly, that the appellant had discharged its obligations in full to the Bank; and

(iv) Lastly, that possession of the original title deed was contrary to the Security Trust Deed and Assignment Agreement between the first respondent and the Bank.

The appellant also emphasized, that, as the title deed was not the subject of the claim in HC8113/16, nor encumbered, the purported tender of the bond of security countervailed the existence of actual or reasonable apprehension of harm.

It further argued, that, the balance of convenience favoured the appellant in that it had earned US$15 million from the sale of 300 stands on which third parties had invested a further US$18m, which, in aggregate, significantly eclipsed the claim of US$2.3m in HC8113/16.

It boasted of its ability to pay the claimed amount in the event liability was established.

Lastly, the appellant contended, that, the court a quo improperly granted final relief on an interim basis on a lower onus, which did not protect its rights pending HC8113/16.

Per contra, the first respondent contended, that, the court a quo had correctly found that the first respondent established both the “time and consequence” factors of urgency and all the four requirements for the grant of an interim interdict.

Counsel for the first respondent further argued, that, the provisional order was not final in form or substance as it was premised on the determination of HC8113/16, which was pending before the High Court.

THE LAW

The treatment of whether an application is urgent is a matter in the discretion of the court a quo.

This Court has very limited grounds upon which it can interfere with the exercise of that discretion. It can do so where the lower court makes a mistake on the law or the facts; acts upon a wrong principle; allows extraneous considerations to influence its decision; fails to take into account relevant facts; or, more generally, makes a decision that is irrational: see Hama v National Railways of Zimbabwe 1996 (1) ZLR 664 (S)…,; Barros & Anor v Chimpondah 1999 (1) ZLR 58 (S)…,; and Econet Wireless (Pvt) Ltd v Trust Co Mobile (Pty) Ltd & Anor SC43-13.

The law on what constitutes urgency is settled.

Urgency is manifested by either a time or consequence dimension: see Kuvarega v Registrar-General & Anor 1998 (1) 188 (H)…,; Document Support Centre (Pvt) Ltd v Mapuvire 2006 (2) ZLR 240 (H); Gwarada v Johnson & Ors 2009 (2) ZLR 159 (H); and Sitwell Gumbo v Porticullis (Pvt) Ltd t/a Financial Clearing Bureau SC28-14…,.

In addition, in Econet Wireless (Pvt) Ltd v Trust Co. Mobile (Pty) Ltd & Anor SC43-13…, GARWE JA,…, further suggested that an urgent chamber application in which the interim relief is similar to or has the same effect as the final relief prayed for may justifiably be found to be not urgent.

While he generally approved the position articulated in Kuvarega v Registrar General & Anor 1998 (1) 188 (H), at 193A-C, he underscored that such an application could not be regarded as a nullity and stated that:

“Whilst no hard and fast rule can be laid down, there may well be cases where a court would be justified in holding, in such a situation, that the application is not therefore urgent and that it should be dealt with as an ordinary court application. There may also be cases where the court, as it is empowered to do…, may amend the relief sought in order to grant…, interim protection (and) obviate a situation where final relief is granted by way of a provisional order.”

It is apparent, that, the consequence dimension pre-supposes that the harm sought to be protected in an impending matter would be amorphously irremediable without the interim indulgence.

In Chiwenga v Mubaiwa SC86-20…, this Court further highlighted the incongruence of noting an appeal against a finding of urgency for the basic reason that the finding of urgency is a mere procedural device used by an applicant to jump the queue of other pending matters for a consideration of the merits. This Court reasoned that:

“Looked at differently, an order granting the urgent hearing of a matter is generally not appealable. This is for the simple reason that the order has no bearing on the merits of the application or judgment. This is akin to a bank customer who is, rightly or wrongly, allowed to jump the queue. His or her transaction cannot be impugned or rendered unlawful solely on the basis that he or she has jumped the queue. By the same token, a correct judgment cannot be impugned or rendered incorrect by the mere fact that the matter was improperly heard as an urgent application.”

In Nyakutombwa Mugabe Legal Counsel v Mutasa & Ors SC28-18…, this Court held that a finding of urgency by a court, on its own, cannot constitute a substantive ground of appeal.

In our law, a pledge vests real rights of security in the property pledged to the pledgee. This was pertinently pronounced by MFALILA J in Hughes v Lotriet 1985 (2) ZLR 179 (H)…, thus:

“This valid pledge, therefore, had the effect of conferring on the applicant (the pledgee) a real right in the articles pledged and this right can only terminate when the pledge is extinguished. The pledge is extinguished only after the original or principal obligation is discharged….,. Until this is done, the respondent, as pledgor, has no right of action either for their return or damages for their loss.”

The requirements and purpose of an interim interdict are also well settled in this jurisdiction.

It seeks to protect an existing right from unlawful infringement that is either continuing or reasonably anticipated: see Mayor Logistics (Pvt) Ltd v Zimbabwe Revenue Authority CC07-14; Setlogelo v Setlogelo 1914 AD 221…,; and Tribac (Pvt) Ltd v Tobacco Marketing Board 1996 (2) ZLR 52 (S).

In the latter case, this Court stated…, that:

“An application for a mandamus or 'mandatory interdict' as it is often termed, can only be granted if all the requisites of a prohibitory interdict are established: see Lipschitz v Wattrus NO 1980 (1) SA 662 (T) at 673C-D; Kaputuaza & Anor v Executive Committee of the Administration for the Hereros & Ors 1984 (4) SA 295 (SWA) at 317E. These are:

1. A clear or definite right - this is a matter of substantive law.

2. An injury actually committed or reasonably apprehended - an infringement of the right established and resultant prejudice.

3. The absence of a similar protection by any other ordinary remedy. The alternative remedy must -

(a) Be adequate in the circumstances;

(b) Be ordinary and reasonable;

(c) Be a legal remedy; and

(d) Grant similar protection.”

In respect of an interim interdict, where the right sought to be protected is not clear “a right which 'though prima facie established, is open to some doubt'” suffices: see Eriksen Motors (Welkom) Ltd v Warrenton & Anor 1973 (3) SA 685 (A)…,.

Where a clear right is established, the applicant is precluded from establishing a well-grounded apprehension of irreparable harm, but must do so where only a prima facie right open to some doubt is established: see Pinkstone Mining (Pvt) Ltd & Ors v Lafarge Cement (Pvt) Ltd & Anor HH118-18…,.

Bankers Acceptances (BAs) meet the definition of a bill of exchange espoused in the Bills of Exchange Act [Chapter 14:02] (section 3(1)): A bill of exchange is an unconditional order in writing, addressed by one person to another, signed by the person giving it, requiring the person to whom it is addressed to pay on demand, or at a fixed or determinable future time, a sum certain in money to, or to the order of, a specified person, or to bearer.

The Bills of Exchange Act also defines certain correlative terms to a bankers acceptance such as 'acceptance' 'bearer' 'delivery' 'endorsement holder' and 'payment in due course'.

“acceptance” means an acceptance completed by delivery or notification;

“bearer” means the person in possession of a bill or note which is payable to bearer;

“delivery” means transfer of possession, actual or constructive, from one person to another;

“endorsement” means an endorsement completed by delivery;

“holder” means the payee or endorsee of a bill or note, who is in possession of it, or the bearer thereof;

“payment in due course” means payment made at or after the maturity of a bill to the holder thereof in good faith and without notice that his title to the bill is defective.

APPLICATION OF THE LAW TO THE FACTS

The appellant submitted, that, the court a quo mis-applied the time aspect and failed to consider the “consequence” factor.

The ratio of the court a quo on these two aspects is delineated on p13 of the appealed judgment in these words:

“Notwithstanding that the order that enabled the first respondent to procure a duplicate title deed was effectively nullified by the Supreme Court on 7 October 2019, the first respondent (appellant) is still refusing to return the replacement copy of the title deed in terms of which it subsequently subdivided and sold parts of the property as evidenced by the agreement of sale in the third respondent's (Mutumbuki) notice of opposition, hence, first respondent is effectively in the process of developing and dissipating Stands to individual purchasers.

From the papers, applicant engaged the first respondent from 7th to 17th October 2019 but first respondent has made it clear that it wants to hold onto the replacement title deed at all costs to further its apparent unlawful activities of dissipating the immovable property before resolution of case HC8113/18 (sic).

It becomes prudent for this court to intervene, on an urgent basis, to force the first respondent to return the duplicate title deed and for the duplicate title deed to be cancelled, if necessary, to prevent first respondent from alienating the property or disposing of its title in the said immovable property pending litigation between the parties before MUSHORE J.”

The above sentiments are unassailable.

Before the order of this Court of 7 October 2019, all prior urgent applications to stop the issuance and use of the replacement deed by the second respondent were hamstrung by the extant default judgment that permitted the appellant to obtain the replacement deed.

The patently erroneous default judgment had been given a lease of life by the improper appeal lodged by the appellant against the order of rescission.

Notwithstanding that the service by substitution order upon which the default judgment was based was, by consent, rescinded by this Court on 25 March 2019, the appellant brazenly utilized the replacement deed to transfer a Stand on the immovable property to Madyausiku on 12 April 2019.

And, despite the confirmation, again by this Court, of the rescission of the default judgment, on 7 October 2019, which, by operation of law, rendered the replacement deed inefficacious, the appellant perverted the default judgement and the replacement deed by concluding an agreement of sale for a Stand on the immovable property with, amongst others, Mutumbuki, on 11 October 2019.

In its opposing affidavit, the appellant persisted with its avowed intention to continue using the replacement deed to subdivide, sell, and transfer Stands on the immovable property.

We are satisfied that the court a quo properly applied both the time and consequent factors of urgency.

The exercise of its discretion, on the question of urgency, is unassailable.

Again, on the authority of this Court in Nyakutombwa Mugabe Legal Counsel v Mutasa & Ors SC28-18 and Chiwenga v Mubaiwa SC86-20, the first ground of appeal is not only ill-conceived and misplaced but also devoid of merit.

The tenor of the contentions made by the appellant in respect of the second ground of appeal disingenuously relates more to the counter application that was struck off and not appealed against rather than the provisional order that it sought to impugn.

The provisional order protected the first respondent's right to legality, which constitutes a vital aspect of the rule of law.

The consolidated matter in which, inter alia, the first respondent sought the discharge of dishonored Bankers Acceptances drawn by the appellant and secured by the title deed was pending as was the claim of vindication that was lodged by the appellant.

The case was awaiting determination in accordance with the law.

This Court had effectively disgorged the appellant of the ill-gotten duplicate deed and nullified its efficacy on 7 October 2019.

The appellant's refusal to voluntarily surrender the duplicate deed was inimical to the first respondent's real rights in the security that are awaiting determination. The provisional order could not, and did not, determine the issues pending in HC8113/16.

It was remiss of the appellant to motivate the second ground solely on the legality of the possession of the original deed by the first respondent while studiously ignoring the legality of its own stranglehold on the duplicate deed.

The failure to properly demonstrate how the court a quo misdirected itself in finding that the constituent elements of an interim interdict were established is fatal to the second ground of appeal.

The second ground of appeal lacks merit and must, therefore, fail.

The appellant further contended, that, the court a quo erred in granting a final interdict on an interim basis.

The order granted a quo was a provisional order, which restored the status quo ante pending the conclusion of the consolidated matter, HC8113/16.

Before the replacement deed was issued, the appellant could neither subdivide, sell, nor transfer any Stands on the immovable property.

That is the position that was safeguarded by the provisional order.

The order sought to be confirmed or discharged is predicated on the pending consolidated matter HC8113/16, which, at the time the provisional order was sought and granted, incorporated HC2463/18.

In addition, the court will determine the propriety of mulcting Mr Kwaramba with costs on the higher scale de bonis propriis on the return date.

The first respondent will also be obliged to show not only why the status quo ante should be confirmed pending the determination of the disputes raised by both parties in the consolidated matter, HC8113/16, but also why Mr Kwaramba should personally be mulcted with punitive costs.

The provisional order did not stop the determination of HC8113/16 nor did it pre-empt any of the issues raised therein.

The provisional order was therefore not the same as the final order sought nor did it have final effect.

Accordingly, the third ground of appeal must fail.

COSTS

It is clear to us, that, the appeal was launched for the perverse purpose of prolonging the appellant's stranglehold on the replacement deed in order to render the security held by the first respondent redundant. This is a proper case for expressing our displeasure at the conduct of the appellant by mulcting it with costs on the scale of legal practitioner and client.

DISPOSITION

Accordingly, it is ordered that:

1. The appeal be and is hereby dismissed.

2. The appellant shall pay the first respondent's costs on the scale of legal practitioner and client.

HB25-15 : DORCAS MHLANGA vs BENJAMIN PHAKATSHANE
Ruled By: MUTEMA J and MOYO J

The phrase prima facie is Latin for 'at first sight' or 'sufficient to establish a fact or raise a presumption unless disproved or rebutted' or 'on first appearance but subject to further evidence or information.'This therefore means, that, evidence which is prima facie is not absolute as contended for by ...

SC105-21 : WALTER MAGAYA vs ZIMBABWE GENDER COMMISSION
Ruled By: GOWORA JA, PATEL JA and UCHENA JA

The appellant is a clergyman of the Prophetic Healing and Deliverance Ministries, commonly known as the PHD Ministries.

The respondent is the Zimbabwe Gender Commission (“the Commission”), an independent commission provided for in accordance with section 245 of the Constitution and established as a body corporate in terms of section 2 of the Zimbabwe Gender Commission Act [Chapter 10:31] (the “Act”).

Its functions are set out in section 246 of the Constitution as being:

“(a) To monitor issues concerning gender equality to ensure gender equality as provided in this Constitution;

(b) To investigate possible violations of rights relating to gender;

(c) To receive and consider complaints from the public and to take such action in regard to the complaints as it considers appropriate;

(d) To conduct research into issues relating to gender and social justice, and to recommend changes to laws and practices which lead to discrimination based on gender;

(e) To advise public and private institutions on steps to be taken to ensure gender equality;

(f) To recommend affirmative action programmes to achieve gender equality;

(g) To recommend prosecution for criminal violations of rights relating to gender;

(h) To secure appropriate redress where rights relating to gender have been violated; and

(i) To do everything necessary to promote gender equality.”

On 23 August 2019, the Zimbabwe Gender Commission (Commission) issued General Notice 1444 of 2019 which it published in the Government Gazette. The General Notice authorized the respondent to conduct an investigation into complaints of sexual abuse, generally, made against the appellant.

In response, on 3 September 2019, the appellant filed an application with the High Court for a review of the decision by the respondent to launch the investigation pursuant to the General Notice.

He followed this up with an urgent chamber application in which he sought, by way of interim relief, an interdict against the conduct of the investigation by the respondent.

On 22 October 2019, the High Court dismissed the urgent chamber application with costs. This appeal is against that judgment.

PROCEEDINGS IN THE COURT A QUO

In seeking relief before the High Court, the appellant attached a draft order in which he sought the following:

“TERMS OF THE FINAL ORDER SOUGHT

That you show cause to this Honourable Court, if any, why a final order should not be made in the following terms;

1. General Notice No.1444 of 2019 published in the Gazette of 23 August 2019 be hereby declared null and void and of no force and effect.

2. That the intended investigations of the applicant, for sexual abuse by the Respondent, in terms of General Notice No.1444 of 2019, published in the Gazette of 23 August 2019, be and are hereby permanently stayed.

3. Costs will be costs in the cause.

TERMS OF THE INTERIM RELIEF GRANTED

1. Pending the determination of this matter on the return day, the intended investigations of the Applicant, for sexual abuse by the Respondent, in terms of General Notice No. 1444 of 2019, published in the Gazette of 23 August 2019, be and are hereby stayed.”

In his application for an interdict, the appellant averred that he had sought the review of the decision to cause an investigation against him on allegations of sexual abuse arising from complaints laid against him.

He contended, that, in the review, he sought to challenge the jurisdiction of the Zimbabwe Gender Commission (Commission) in respect of the General Notice as well as the intended investigation into the alleged complaints of sexual abuse.

He averred, that, the contemplated investigations were imminent, and that, by his reckoning, were due to commence, at the earliest, by 12 September 2019, by which date his application for review would not have been determined, and, that, the mere pendency of the application would not stop the Zimbabwe Gender Commission (Commission) from proceeding with the investigation of the alleged complaints of sexual abuse.

He contended, that, he had good prospects of succeeding on the review and that his rights from the review process would be rendered nugatory if the investigations were not halted pending the review.

His stance was that neither the Constitution nor the Zimbabwe Gender Commission Act [Chapter 10:31] afforded the Zimbabwe Gender Commission (Commission) the authority to conduct the contemplated investigation. To that extent, any investigation by the Commission constituted an illegality.

He contended further, that, what the Commission intended from the published notice was outside its statutory mandate, and, as a result, the appellant was entitled to the protection of the law which he was seeking from the court. Thus, it was only right that the court issue an interdict against the Zimbabwe Gender Commission (Commission).

Over and above the averments referred to in the aforegoing, the appellant contended, that, even if the Zimbabwe Gender Commission (Commission) had the authority to conduct an investigation, the methodology it had employed violated his constitutional rights and legal principles and rules governing evidence such as that which the Commission wished to gather. The methods adopted would lead to a compromised result which would cause him to suffer irreversible harm.

He averred that the balance of convenience was in his favour, and that, if he was not granted the relief sought, he would suffer unconscionable irreparable harm in that he would 'be put out of pocket and suffer permanent impairment of his personal dignity which no other process could remedy.' He did not have any other remedy that he could employ to stop the process which he considered illegal.

He opined, that, the Zimbabwe Gender Commission (Commission), on the other hand, would not suffer any prejudice if its intended investigation were halted.

The Zimbabwe Gender Commission (Commission) opposed the application.

It maintained, that, it had investigative functions in terms of the Constitution and its enabling Act. It contended, that, under the provisions of section 5 of the Zimbabwe Gender Commission Act [Chapter 10:31], an investigation is preceded by the promulgation of a notice in the Government Gazette and the publishing of such notice in one or more national newspapers informing the public of its intention to investigate a systemic barrier as provided in the Zimbabwe Gender Commission Act.

The Zimbabwe Gender Commission (Commission) contended, that, the notice it issued was lawful and provided for by law.

It averred, that, it had received numerous complaints of alleged sexual abuse from numerous quarters against the appellant which necessitated the issuance of the notice to facilitate the conduct of investigations into the said complaints.

It denied suggestions by the appellant that it had neither the mandate nor the authority to proceed as intended.

In so far as the prospects of success were concerned, the Zimbabwe Gender Commission argued that there were none.

It pointed to the averment by the appellant, that, there were numerous complaints against him, some of which were the subject of police investigations. The Commission averred, that, an investigation under section 5 of the Zimbabwe Gender Commission Act can only be possible where complainants and witnesses have come forward with allegations pointing to the possibility of the existence of alleged violations.

DETERMINATION BY THE COURT A QUO

The court a quo decided the application on the sole issue of whether or not the applicant's rights were likely to be violated. It said the following:

“I do not see how the applicant's rights may be violated by the investigation. He has a right to legal representation. The investigation itself is not of a criminal nature, in the sense that the respondent is not endowed with any power to impose any sanction consequent to an investigation.”

The court a quo concluded, that, the Zimbabwe Gender Commission (Commission), had, under section 7 of the Zimbabwe Gender Commission Act, the power to conduct an investigation, and, where the investigation reveals systemic barriers prejudicial to gender equality, etc, after informing the Minister, make a report to Parliament on its findings.

The court a quo found, that, there was no immediate impact on the appellant from the investigation as contemplated by the Zimbabwe Gender Commission.

THE APPEAL

The grounds of appeal are framed as follows:

“1. The court a quo misdirected itself in totally misconstruing the application before it as one for the setting aside of investigations and so erred when consideration is given to the fact that the application was actually meant to interdict the holding of unlawful investigations.

2. The court further erred in concluding, that, protection against harm to fama cannot, at law, be sought through urgent interdictory relief and so erred in arriving at a finding which is contrary to established and well-regarded authority.

3. Having found that respondent had instituted an investigation in terms of section 5 of the Gender Commission Act [Chapter 10:31] and having concluded that the issues it sought to investigate were outside the remit of the powers contained in that provision, the court a quo erred in not concluding that appellant had prospects of success in the review application and was consequently due the remedy of an interdict.

4. A fortiori, the court a quo erred in failing to appreciate that the principle of legality requires that when challenged, the exercise of public power must be justified on the basis upon which it has been specifically exercised, and that, for that reason, the notice impugned not having been properly given in terms of section 5 of the Act could not be held valid on the basis of constitutional provisions.

5. Having come to the conclusion that the process which had been instituted by the respondent was pointless and abortive, the court a quo erred in not concluding that appellant's rights were imperilled by having to be required to go through a sham and that he was consequently entitled to protection since the balance of convenience was in his favour.”

ARGUMENTS ON APPEAL

Counsel for the appellant commenced his argument by challenging the jurisdiction of the Zimbabwe Gender Commission (Commission) to conduct the investigation as set out in the General Notice.

He submitted that the General Notice had not been issued in terms of the Zimbabwe Gender Commission Act [Chapter 10:31].

He added, that, the court a quo had itself queried the necessity by the Commission to publish the General Notice, which it said was inconsistent with the Zimbabwe Gender Commission Act, and suggested that the court a quo had implied that section 5 of the Zimbabwe Gender Commission Act was inappropriately relied upon by the Commission.

Counsel for the appellant argued, that, before the court a quo, the appellant was called upon to establish a prima facie case.

He stated that the Zimbabwe Gender Commission (Commission) did not have jurisdiction to issue the General Notice.

He highlighted to this court, that, once the judge a quo made a finding that the investigation sought to be conducted by the respondent was not a section 5 process, it automatically followed that the court ought to have granted the relief sought by the appellant.

The court engaged counsel for the appellant to shed light on what he understood a General Notice to be.

To his credit, counsel accepted that a General Notice is in the nature of a statutory instrument and has the force of law.

The court also enquired from counsel whether it was possible, at law, for a court to grant an interdict the effect of which was to suspend the operation of a law that has legal force and effect.

In addition, the court directed counsel for the appellant, premised on the relief sought in the court a quo wherein the final order sought was the permanent stay of the investigations, and enquired of him whether the application for review was not a superfluous process given that the final order sought by the appellant was a permanent stay of the investigations.

Once granted by the court, in terms of the final order prayed for, the order would render the review application inconsequential.

Counsel for the appellant contended otherwise.

Per contra, counsel for the respondent submitted, that, owing to the exchange between counsel for the appellant and the court, the issue which arose for determination was whether or not a law can be set aside through an application for an interdict.

Counsel for the respondent contended, that, in view of the promulgation of the General Notice as a law, anything done pursuant thereto must be presumed to be valid.

She argued further, that, a court cannot interdict lawful conduct.

For this contention, she sought reliance on ZIMRA v Packers International SC28-16 and Mayor Logistics v ZIMRA CC07-14, which, according to her submissions, both underscored the principle that a challenge to law cannot be made in terms of an interdict.

She proceeded to argue that the Zimbabwe Gender Commission (Commission) had acted within the ambit of its powers as prescribed in terms of section 5 of the Zimbabwe Gender Commission Act in that systemic barrier to gender equality can emanate from the conduct of one person. In this regard, she argued, the appellant, being an influential leader of a great movement, it is that stature and influence that he seeks to protect.

Counsel went on to argue, that, the Constitution, in section 246, gave the Commission the mandate to carry out such investigations. She conceded, that, the functions stated in section 246 of the Constitution are not restated in the Zimbabwe Gender Commission Act but that this did not take away the Commission's authority to act in the manner that it did because the purpose of the Zimbabwe Gender Commission Act is not to restate what is in the Constitution but to augment the contents thereof.

Counsel for the respondent submitted, that, section 246 paragraphs (b) and (c) of the Constitution set out the investigative functions of the Zimbabwe Gender Commission (Commission). She also referred the court to section 2 of the Zimbabwe Gender Commission Act which defines “systemic barriers” and added that a reading of section 2 showed that the definition therein was not exhaustive, and, for that reason, the Commission took the view that organised worship is a sphere of activity as contemplated in the Zimbabwe Gender Commission Act.

In any event, counsel for the respondent argued, the Commission had decided not to proceed with the investigations and decided to await the outcome of the review application.

In response, counsel for the appellant indicated to the court, that, the authorities cited by counsel for the Commission were irrelevant and distinguishable to the present matter.

He argued, that, the General Notice was inconsistent with the Zimbabwe Gender Commission Act and this should have automatically translated to a prima facie case for the appellant enabling him to obtain relief from the court a quo.

He submitted, that, section 5 of the Zimbabwe Gender Commission Act does not allow the Commission to exercise the powers it purported to have exercised in terms of the General Notice.

He argued, that, there was no systemic barrier involved in casu that prejudiced gender equality or gender equity.

Also, the Commission was said to have failed to indicate the section of society that was to be investigated as envisaged by section 2(1) of the Zimbabwe Gender Commission Act.

In closing his submissions, counsel for the appellant stated, that, the methodology employed by the Commission was inappropriate and not in conformity with relevant provisions of the Zimbabwe Gender Commission Act.

Having said that, he prayed that the appeal be allowed and the decision of the court a quo be set aside.

ISSUE FOR DETERMINATION

The facts of the matter are not in dispute and the appeal falls for determination on the basis of the ratio decidendi of the court a quo.

Although the appellant raised numerous grounds of appeal, there is only one issue that arises for determination and is capable of disposing of this whole appeal.

The only issue is whether or not the court a quo was wrong in refusing the application for an interdict.

STATUS OF THE GENERAL NOTICE

The Zimbabwe Gender Commission (Commission) is imbued with an investigative mandate, both in terms of the Constitution and the enabling Act. It issued a General Notice, and the appellant seeks to challenge the decision to publish the Notice through the review that he has filed.

What is a General Notice?

A General Notice is a public notice published in the Government Gazette. A General Notice is in the same category as a statutory instrument. It is subsidiary legislation. It, therefore, has the force and effect of law.

It can also be viewed as a document that has legislative character, and, like any other law, it has legal force and effect.

It is an essential element of due process, and, therefore, once it is issued it must be complied with unless set aside. As a consequence, until and unless it has been set aside, anything done under or pursuant to such General Notice is lawful.

It is not necessary in this appeal to determine whether or not the Zimbabwe Gender Commission (Commission) exceeded its powers in issuing the General Notice. Whether or not the Notice is in accordance with the powers bestowed on the Commission is for the court hearing the application for review to decide.

WHETHER THE COURT A QUO MISDIRECTED ITSELF IN REFUSING THE INTERDICT

What was before the court a quo was an application for a temporary interdict and that is the issue before the court on appeal.

In determining the issue, it would be prudent to start by looking at what the appellant purported to do.

The appellant applied for an interdict through which he sought to set aside the General Notice.

The premise of the interdict was that the intended investigation was illegal from several bases, the first being the want of jurisdiction to conduct an investigation and the alleged illegal exercise of that jurisdiction by the Zimbabwe Gender Commission (Commission).

It was the intention of the appellant to subject the decision to issue the Notice to a review process.

It is pertinent to point out, that, for every law that is gazetted there is a presumption of validity and appropriate legal mechanisms have been put in place, in terms of the law, where one intends to challenge the validity of a legal instrument.

Until it has been set aside, the General Notice has the force of law, and, anything done under it is presumed to be lawful and valid.

An application for an interdict is not, and cannot, by any stretch of the imagination, be considered as one of those mechanisms.

In casu, a case has not been made for the granting of the relief sought for the following reasons:

The appellant has not yet successfully impugned the legal status of the General Notice. That can only be determined after the review is decided.

Clearly, in such circumstances, the legality of the Notice itself is not in issue. It still stands as law.

In Mayor Logistics v ZIMRA CC07-14, the court said:

“The applicant seeks an order suspending the statutory obligation to pay the amount of the tax it was assessed to be liable to pay to the Fiscus pending the hearing and finalization of the appeal in the Fiscal Appeal Court. It is in the heads of argument that the applicant reveals that the relief sought is an interim interdict. There is need to have regard to the substance and not the form of the relief sought. The fact that the applicant calls the order sought an interim interdict does not make it one.

The subject of the application is not the kind of subject matter an interdict, as a remedy, was designed to deal with.

An interdict is ordinarily granted to prevent continuing or future conduct which is harmful to a prima facie right, pending final determination of that right by a court of law. Its object is to avoid a situation in which, by the time the right is finally determined in favour of the applicant, it has been injured to the extent that the harm cannot be repaired by the grant of the right.

It is axiomatic that the interdict is for the protection of an existing right.

There has to be proof of the existence of a prima facie right. It is also axiomatic that the prima facie right is protected from unlawful conduct which is about to infringe it.

An interdict cannot be granted against past invasions of a right nor can there be an interdict against lawful conduct: Airfield investments (Pvt) Ltd v Minister of Lands & Ors 2004 (1) ZLR 511 (S); Stauffer Chemicals v Monsato Company 1988 (1) SA 895; Rudolph & Anor v Commissioner for Inland Revenue & Ors 1994 (3) SA 771.”

The view I take is that the lawfulness of the intended investigation is established by the General Notice. It is a legislative instrument with the force and effect of law.

As noted above, a General Notice has the force and effect of law; therefore, there is always a presumption of validity on that Notice and the validity thereof cannot be questioned through an application for an interdict. The appellant cannot seek to interdict lawful conduct.

The court, in Mayor Logistics v ZIMRA CC07-14, at page 11 of the cyclostyled judgment, went on to say:

“There is no basis on which the interim order sought may be granted except the possibility relied on by the applicant that the existing legislation would be held unconstitutional. Any court faced with an application challenging the constitutionality of a statutory provision is required to proceed on the presumption that the legislation is constitutionally valid until the contrary is clearly established.

The principle of presumption of constitutional validity of legislation pending determination of the main application is an important limitation to the exercise of judicial power: Zimbabwe Township Developers (Pvt) Ltd v Lou's Shoes (Pvt) Ltd 1983 (2) ZLR 376 (S) at 382B-D.

By observing the principle, due respect is accorded to the legislative branch of Government consistent with the fundamental principle of separation of powers.”

It is correct that the court a quo did not determine the matter on the basis that lawful conduct cannot be interdicted.

This is an issue of law that the court can raise mero motu.

The court did raise the issue with counsel.

In my view, once the concession is made that the Notice is a law, there is no issue. The contemplated investigation having been preceded by the promulgation of the Notice cannot, by any stretch of the imagination, be referred to as a violation of the appellant's rights.

The court a quo disposed of the matter based on the principle enunciated in Masedza & Ors v Magistrate Rusape & Anor 1998 (1) ZLR 36. I am not convinced that the authority is of any assistance in the determination of this appeal.

What is at issue is a prayer for an interdict pending the determination of a review.

There were no proceedings that were sought to be stayed. In as much as the court a quo made its determination based on the principle in Masedza & Ors v Magistrate Rusape & Anor 1998 (1) ZLR 36 it misdirected itself. The authority was not applicable to the dispute before the court.

DISPOSITION

In my view, the concession that the General Notice has the force of law is dispositive of the appeal.

A General Notice is a legal instrument that has the force and effect of law: and, like any other law, there is a presumption of validity upon it until it has been validly set aside through the appropriate legal procedures. Therefore, a litigant cannot, through an application for an interdict, seek to police lawful conduct given that the validity of the General Notice has not yet been determined by a court. As far as the law is concerned, the Notice is law. It, therefore, stands to reason that an interdict cannot lie against lawful conduct.

In the premises, the appeal is devoid of merit and is dismissed with costs.

PATEL JA: I have read the lead judgment of my learned sister GOWORA JA and consider it necessary to briefly analyse and address the nature of the relief sought by the appellant in the proceedings a quo.

As regards this aspect, GOWORA JA quite correctly observes, that, in the review application the principal relief sought is that the decision of the Zimbabwe Gender Commission, in issuing the General Notice, be set aside. Again, the provisional order sought in the urgent chamber application simply prays for the intended investigation of the appellant by the Commission, in terms of the General Notice, to be stayed. It is only in the final order sought that the appellant prays that the General Notice be declared null and void and of no force or effect.

Consequently, my learned sister concludes, that, the appellant cannot seek to police lawful conduct through an interdict, given that the validity of the General Notice, which is presumed to be valid until it is set aside, has yet to be determined.

In keeping with the case authorities cited and relied upon by GOWORA JA, I fully agree that an interdict cannot ordinarily be granted against conduct that is prima facie lawful.

Regrettably for the appellant, he has tactically mis-calculated the nature of the relief that he sought in the urgent chamber application before the court a quo. He has also failed to correlate and align the draft order in the chamber application with the relief sought in the application for review pending before the High Court.

In the final analysis, the applicant has failed to take into account the formidable hurdle presented by the rule that an interdict cannot, in principle, be granted against conduct that is prima facie lawful and carried out in terms of an extant statutory instrument that is presumed to be valid until it is duly set aside by a competent court that is properly seized with the question of its validity.

In any case, as a matter of procedural correctness, the validity of the impugned General Notice could not properly have been an issue before the court a quo until the return day had arrived.

By the same token, it cannot be properly ventilated before and determined by this Court on appeal against the judgment a quo.

For these essentially technical reasons, I would agree with GOWORA JA that the present appeal should not be allowed.

Appealed
SC126-21 : PATRICIA DARANGWA vs JULIET KADUNGURE and ANDERSON KADUNGURE and NERIA KADUNGURE and MASTER OF THE HIGH COURT OF ZIMBABWE
Ruled By: MAKONI JA, MATHONSI JA and MWAYERA JA

This is an appeal against the whole judgment of the High Court, delivered on 5 March 2021, interdicting the appellant, in the interim, from administering the estate of the late Genius Kadungure among other relief.After hearing submissions from counsel, we dismissed the appeal with costs and stated that the reasons ...

This is an appeal against the whole judgment of the High Court, delivered on 5 March 2021, interdicting the appellant, in the interim, from administering the estate of the late Genius Kadungure among other relief.

After hearing submissions from counsel, we dismissed the appeal with costs and stated that the reasons for doing so would follow. What follows hereunder are those reasons.

THE FACTS

During his lifetime, Genius Kadungure was a colourful and prominent businessman with business interests in Zimbabwe, Botswana, and South Africa. He died tragically in a motor vehicle accident on 8 November 2020 at the age of 36.

At his funeral, the appellant, who is an administrator of deceased estates at Regional Executors & Trust (Pvt) Ltd, approached the first, second, and third respondents brandishing an unsigned “Will” allegedly prepared by herself on the instructions of the deceased a few weeks before he died.

The first and third respondents are the sisters of the deceased while the second respondent is his father. They shall be referred to either as the deceased's relatives or as the respondents.

The appellant persuaded the relatives of the deceased to accept the unsigned document as the last will and testament of the deceased. She also persuaded them to accept her appointment as the executrix of the deceased estate.

In due course, and following a meeting convened by the Master of the High Court, who is the fourth respondent herein, the appellant was appointed as the executrix. She was issued with Letters of Administration on 1 December 2020.

Meanwhile, the unsigned “will” was also accepted and registered by the fourth respondent.

The deceased estate of the late Genius Kadungure was then to be administered and wound up in terms of that document.

The appellant hit the ground running as she immediately entertained a claim of a Lamborghini Aventador Roadster Motor Vehicle, registration number ZM03, belonging to the estate, from one Nomatter Zinyengere.

I mention, in passing, that, that name does not appear anywhere in the unsigned will. In fact, that motor vehicle, which for some unclear reason is the only property specifically mentioned in that document, was bequeathed to one “Kit Kat”.

Without reference to the Master of the High Court, and without submitting any liquidation and distribution account for approval by the Master, the appellant sent what she called the “first interim liquidation and distribution account” to Nomatter Zinyengere's lawyers in which she demanded a payment of $48,230 from him in return for the release of the Lamborghini motor vehicle.

That interim account only contained the Lamborghini motor vehicle and no other property of the deceased. It also did not take into account any liabilities of the estate.

Nomatter Zinyengere must have paid the appellant what she demanded, because, by letter dated 27 January 2021, addressed to one Michael Mubaiwa at the deceased's mansion in Domboshava, the appellant directed that the motor vehicle be handed over to his lawyer.

It is then that the deceased's relatives sought legal advice.

As up to then, they had not been furnished with a copy of the Will, they unsuccessfully requested one from the appellant, including the minutes of the meeting held on 25 November 2020 at the Master's Office. They only got copies from the fourth respondent.

PROCEEDINGS IN THE COURT A QUO

The respondents brought an urgent application before the court a quo for interim relief interdicting the appellant from dealing with or administering the estate. On the return date, they seek a review of the fourth respondent's decision to accept the unsigned document as the Will of the deceased. They also seek the reversal of the appellant's appointment as the executrix testamentary of the estate.

The respondents case was that the appellant used undue influence to persuade them to accept the unsigned document as the deceased's will and to accept her appointment as the executrix. She had dissuaded them from seeking legal counsel regarding the will. She had claimed to be their lawyer who would handle the estate when she is not even a lawyer.

According to the respondents, they reluctantly worked with the appellant even though they had questions about the Will.

Their fears were confirmed when the appellant had, with indecent haste, proceeded to attempt to dispose of the Lamborghini motor vehicle during the lockdown period without following due process. The whole exercise was suspicious given that there was no detailed inventory of the estate property and no distribution account was submitted and approved by the Master of the High Court.

The respondents also complained about the manner in which the appellant was handling the estate in Botswana.

To them, the matter was urgent as the appellant had to be stopped in her tracks before causing more damage, especially as there are trucks in South Africa belonging to the estate which were in danger of disappearing if the issue of executorship remained unresolved.

In opposing the application, the appellant's case was that the matter was not urgent because the facts complained of occurred four months earlier. Her contention was that the respondents voluntarily consented to the Master's decision to accept the unsigned document as the deceased's will knowing it did not meet the requirements of the Will's Act [Chapter 6:06]. The appellant insisted that the respondents also consented to her appointment as the executrix of the estate.

In her view, the requirements of an interim interdict were not met.

Regarding the issue of the Lamborghini motor vehicle, while admitting that she had initially approved its release, the appellant contended, that, she later realized that she had not advertised the interim distribution account. For that reason, she had rescinded her decision to release the motor vehicle. The appellant admitted, further, that, her decision to do so was also informed by the reprimand she got from the fourth respondent.

It was the appellant's contention that the application was without merit. She sought its dismissal with costs.

The court a quo acknowledged, that, the respondents should have filed a separate application for review. It however took the view that the matter was so urgent that the court had to dispense with most of the formalities provided for in the Rules. This was so because of the then prevailing Covid 19 lockdown and Practice Direction Number 4 of 2021 which proscribed the filing of new cases and only permitted the filing of urgent cases.

The court a quo's view was that urgency stemmed from the appellant's rush to conclude part of the administration of the estate. In addition, she had advertised the estate in newspapers which action amounted to legal processes with legal consequences in the event of failure to act upon them.

Given the nature of the document being used to administer the estate, its emergence at the funeral, and the circumstances of its acceptance raised a red flag; the court a quo found that the respondents had a cause of action against the appellant. It found that, by her own admission, the appellant had tried to jump the gun in allowing the release of the Lamborghini motor vehicle.

Accordingly, the risk of irreparable harm was palpable and the balance of convenience favoured the beneficiaries. The court a quo then granted interim relief aforesaid.

PROCEEDINGS ON APPEAL

The appellant was riled by the judgment of the court a quo. She noted this appeal on the following grounds:

1. The court a quo erred in determining that the first to third respondents cause was deserving of an urgent hearing when the facts actuating the first to third respondents complaint had subsisted for well over 4 months.

2. The court a quo also erred in granting the first to third respondents an interdict in circumstances where such respondents had other satisfactory remedies available to them in terms of section 8 of the Wills Act and section 30 of the Administration of Estates Act.

3. The court a quo further erred in granting audience to a party which had, by express words and direct acts, accepted the appointment of the appellant and decision of the fourth respondent. In consequence, the court a quo erred in exercising jurisdiction in a matter redolent with material disputes of fact not resoluble on the papers.

4. The court a quo grossly misdirected itself in holding, that, it had the jurisdiction to bar the appellant from the administration of the estate of the late Genius Kadungure in South Africa when the court a quo has no jurisdiction over the South African assets of the deceased.

5. The court a quo erred in finding that the appellant used undue influence to compel the first to third respondents to accept the deceased's null absent any evidence disputed by the appellant. (sic)

6. On a point of law, the court a quo erred in its formulation of the order it handed down on the 5th of March 2021. In the court a quo's reasoning, it postulates the granting of interim relief. However, the order handed down is final in nature.

On the foregoing grounds, the appellant moved for the success of the appeal with costs and dismissal of the application a quo with costs....,.

ISSUES FOR DETERMINATION

Although there are six grounds of appeal, only two (2) issues commend themselves for determination in this appeal. They are:

1....,.

2. Whether the court a quo erred in granting an interim interdict prohibiting the appellant from administering the deceased estate....,.

On the merits, counsel for the appellant submitted, in the main, that, the court a quo dealt with an application for an interdict which was based on a past infraction which the appellant had corrected.

In his view, the appellant's decision to issue an interim liquidation account dealing only with the Lamborghini motor vehicle and to attempt to release the vehicle to “Kit Kat” had been reversed following the intervention of the fourth respondent.

It was submitted further, that, the court a quo erred in granting an interdict based on what had already transpired.

Apart from that, so it was argued, there is a procedure to be followed by a person aggrieved by the decision of the Master of the High Court. The procedure was not engaged by the respondents who obviously had other remedies available to them.

In conclusion, counsel for the appellant submitted, that, there were triable issues which could not be resolved on the affidavit and documents filed by the parties.

In counsel's view, the circumstances relating to the drafting of the unsigned will, its acceptance by the respondents themselves at the edict meeting, and the allegations of duress were all disputed facts which the court could not resolve on the papers.

In response, counsel for the respondents maintained, that, the respondents made a case for the grant of an interim interdict which is the sole subject of this appeal. Until such time that the validity of the unsigned will has been interrogated, the court a quo had to interdict its use in the administration of the estate.

He craved the dismissal of the appeal with costs on the admonitory scale....,.

On the merits, I do not agree with counsel for the appellant, that, the judge a quo granted an interdict solely on the past infraction of the attempted release of the Lamborghini motor vehicle. Of course, that conduct served as a sharp warning of what the appellant was capable of and the need to protect the deceased estate.

However, this is a case in which an unsigned document, purportedly prepared on the instructions of the deceased, was being used to administer a huge estate straddling the borders of three countries.

Its authenticity has to be investigated.

The beneficiaries questioned its origins and the involvement of the appellant as executrix of the estate. If indeed the appellant was administering the estate for the benefit of none other than the beneficiaries, surely, she should not have any problems submitting herself to judicial scrutiny.

The fact that the respondents initially accepted the unsigned document as the Will and the appointment of the appellant as executrix is of no moment in the inquiry on the authenticity and validity of that document.

This is not a “touch-is-a-move” game of draft in which the stakes turn against the player once he or she touches the lid. Where new facts have emerged, the court should be engaged to solve the issues.

I also do not agree that there was another effective alternative remedy available to the respondents other than interdicting the administration of the estate until the validity of the unsigned will has been dealt with.

Accordingly, the judge a quo cannot be faulted for finding, that, all the requirements for the grant of a temporary interdict were satisfied.

The appeal has no merit.

Regarding the question of costs, no foundation was laid for an award of costs on an admonitory scale of legal practitioner and client. However, there is no reason why costs should not follow the result as usual.

It is for these reasons that this Court dismissed the appeal with costs.

View Appeal
HH85-21 : JULIET KADUNGURE and ANDERSON KADUNGURE and NERIA KADUNGURE vs PATRICIA DARANGWA and MASTER OF THE HIGH COURT OF ZIMBABWE (N.O.)
Ruled By: CHIRAWU-MUGOMBA J

This matter was placed before me as an urgent chamber application having been filed on the 23rd of February 2021. Upon receipt, I gave directions for the filing of notices of opposition and opposing affidavits as well as heads of argument.

The second respondent did not file a notice of opposition, and, as a result, the court took it that he will abide by the decision rendered.

The applicants, through the urgent chamber application, seek an interdict, and, on the return date, a review.

Ordinarily, an application for review should be filed separately, but, given the prevailing COVID lockdown and Practice Direction Number 4, under which ordinary applications were not accepted for filing, I accepted the urgent application hence gave directives.

Let me hasten to say, that, this case is peculiar and should not be viewed as setting a precedent that review applications can be commenced through an urgent chamber application.

The first to the third applicants are, respectively, sister, father, and sister of one Genius Kadungure who passed away on the 8th of November 2020 (hereinafter the deceased).

The factual background to the application can be summarised as follows:

The deceased was a well to do person who had business interests in Zimbabwe, Botswana, and South Africa. The first respondent approached the family of the applicants, at the funeral, with a document that she purported was a Will of the deceased though it was not signed. Using undue influence, the applicants accepted the document as the last will and testament of the deceased and recommended the appointment of the first respondent as the executrix of the estate of the deceased.

The first respondent dissuaded the applicants from seeking legal advice indicating that she was also their lawyer.

The second respondent accepted the document as the last Will and testament of the deceased in terms of the Wills Act and also appointed the first respondent as the executor. This was followed by the issuance of Letters of Administration to the first respondent dated the first of December 2020.

The applicants reluctantly worked with the first respondent though they had questions over the will - a copy of which was never furnished to them.

After seeking legal advice, they approached the first respondent who refused to furnish them with a copy of the Will and minutes of a meeting held on the 25th of November 2020. They only managed to obtain copies from the second respondent.

To note is that the Will, which was drafted by the first respondent, confers executorship on her.

She, during the lock down period, attended to disposal of the deceased's Lamborghini motor vehicle in what they term 'hazy' circumstances. This was despite the fact, that, there was no detailed inventory and there was no confirmed distribution account.

FNB Bank in Botswana, where the deceased held an account for his company called Quick Gases (Pvt) Ltd, had extended a loan that had been unpaid since the demise of the deceased. He also left assets in South Africa, in the form of trucks, that were in danger of disappearing if the issues of executorship remained unresolved.

The first respondent had, on the 5th of February 2021, advertised an interim distribution account stating, falsely, that such was lying for inspection at the offices of the second respondent. The latter admonished the first respondent over her false claim.

There is litigation in Botswana over the legitimacy of the first respondent's executorship.

The applicants seek an interim interdict prohibiting any administration of the deceased's estate pending the return date upon which a review of the second respondent's decision to appoint the first applicant as the executrix, and to accept the document in question, will be sought.

The grounds for review are framed as illegality/absence of jurisdiction; fraud; speculation; malpractice; and gross irregularity.

The applicants are further concerned by the following acts which cast the authenticity of the Will in doubt:

(i) The haste with which the first respondent seeks to dispose of the Lamborghini without following due process;

(ii) The invitation by the first respondent for members of the public to inspect an estate account when she has already authorised disposal of the said vehicle;

(iii) The Will makes reference to some persons without stating their actual identities;

(iv) The vehicle arrived in Zimbabwe around the 30th of September 2020, and, its inconceivable that the deceased would have a Will drafted bequeathing it to a third party 23 days after its arrival;

(v) The deceased had a large fleet of vehicles and it is surprising that only the Lamborghini was mentioned in the will;

(vi) The first respondent falsely claimed that she is an attorney and she never wanted to avail the Will to the applicants.

The Will is therefore fake and the estate of the deceased should proceed under intestacy.

The matter is urgent and cannot wait because the applicants are the surviving blood relatives of the deceased and have a prima facie right to protect their interests.

The acceptance of the Will is a legal nullity and there is need to stop the first respondent in her tracks. She is already in the process of disposing of some assets of the deceased estate during the lock down period, more specifically, a Lamborghini motor vehicle, using a distribution account that was never availed nor approved by the second respondent.

Quick Gases (Pvt) Ltd, in which the deceased was the sole director, is in danger of being liquidated after F.N.B Bank in Botswana froze the company's bank account.

The applicants have been given up to the 31st of March 2021 to attend to issues relating to the appointment of the first applicant as executrix.

The first applicant is dissipating the deceased's estate to the permanent and irreparable harm of the applicants in circumstances when her appointment as executrix is a nullity; she has not furnished security to the second respondent for due administration of the estate; and she has not furnished the second respondent with a comprehensive inventory.

Waiting to prosecute a review application during the lockdown period without knowing when it will end will prejudice the applicants who are at risk of losing many assets.

The first respondent continues to take the law into her own hands to the detriment of the applicants.

There is no other alternative remedy to protect the rights of the applicants.

There is real risk that the first respondent, in the absence of a court order, will continue to alienate and dispose of the deceased's assets, and, accordingly, only an interdict will protect the rights of the applicants pending the return date.

The second and third applicants deposed to supporting affidavits in support of the first applicant's averments.

They thus seek a provisional order in the following terms:

“TERMS OF THE FINAL ORDER SOUGHT

That you show cause to this Honourable Court why a final order should not be made in the following terms:

1. The application is hereby granted.

2. The provisional order granted in this matter is hereby confirmed.

3. It be and is hereby declared that:

3.1 The document registered with the 2nd respondent on 25 November 2020 under DR. No.1771/20 as the will of the later Genius Kadungure ('the deceased') (who died on 8 November 2020) is null and void; and

3.2 The deceased died intestate.

4. The decision of the 2nd respondent, to register and accept the aforesaid document as the last will for purposes of administration of the estate of the deceased in terms of section 8(5) of the Wills Act (6:06) be and is hereby set aside.

5. The 2nd respondent's appointment of the 1st respondent, on 2 December 2020, as the testamentary executrix of the estate of the deceased, and all acts done by the 1st respondent (personally or by other persons at her direction) under and by virtue of such appointment be and are hereby declared null and void.

6. The letters of administration issued by the 2nd respondent, on 2 December 2020, in favour of the 1st respondent, under DR No.1771/20, appointing her as testamentary executrix, be and are hereby revoked.

7. The 2nd respondent shall convene another meeting to appoint an executor of the estate of the deceased which meeting shall be presided over by an official other than the official who presided over the meeting of the 25th of November 2020 or any of the officials who previously dealt with the estate of the deceased; and

8. The 1st respondent shall bear costs of suit on attorney-client scale (in the event that she opposes the application).

INTERIM RELIEF GRANTED

Pending the return date, the applicants are hereby granted the following interim relief:

1. Pending the return date, the 1st respondent is hereby interdicted from, in any way, administering, or dealing in the estate of Genius Kadungure ('the deceased') in Zimbabwe, Botswana or South Africa; and

2. The 2nd respondent, or any other person acting on his behalf, be and is hereby interdicted from (without the leave of this court) accepting for filing any document by, or acceding to any request from, the 1st respondent under DR. No.1771/20 save and except for the purposes of relinquishing the letters of administration issued hereunder.”

The first respondent strenuously opposes the application and raises several points in limine as follows:

(1) The matter is not urgent because the facts complained of have existed for 4 months and 8 days. The applicants voluntarily consented to the decision by the second respondent to accept a document that did not meet all the formalities of a will on the 25th of November 2020. In terms of the Wills Act, they had 30 days within which to appeal against the decision.

(2) The applicants are seeking to interdict conduct outside this court's jurisdiction specifically in Botswana and South Africa.

(3) The interim relief sought is incompetent because the Letters of Administration remain valid and the appointment of the first respondent, as executor, is valid as she has not been removed through an elaborate process set out in the Administration of Estates Act.

(4) The requirements of an interim interdict have not been met; and

(5) There is no competent cause of action.

In my view, points 3, 4 and 5 touch on the merits of the case...,.

On the merits, the first respondent made the following submissions:

The applicants participated fully and were legally represented in the process leading up to the meeting of the 25th of November 2020. They accepted the document freely and voluntarily. They worked well with the first respondent who has thus far managed to compile a comprehensive inventory as well as compiling a second interim liquidation and distribution account. The belated challenge to the Will is to evade or delay payment of estate liabilities.

She denied refusing to give a copy of the Will to the applicants as alleged.

The will was drafted as per the deceased's instructions and he only delayed in signing it. Unfortunately, he met his demise before he could sign.

The Lamborghini motor vehicle has not been disposed of.

Messrs Shomwe-Nyakuedzwa had requested release of the vehicle to their client and were advised to pay the estate liabilities for this particular bequest. This was complied with.

The first respondent initially approved release of the vehicle, but, upon realising that she had not advertised the interim account, she withdrew her consent to the release of the vehicle telephonically. The motor vehicle remains parked at the deceased's residence in Domboshava.

The first respondent explained, at length, the situation prevailing in Botswana including litigation commenced on her behalf - ostensibly to safeguard the interests of the deceased's estate. Contrary to the assertions by the applicants, she is recognised as the executrix in that country.

The applicants have various remedies at their disposal.

They have failed to meet the requirements of the granting of an interim interdict and the application should be dismissed with costs.

In their heads of arguments, the applicants made the following submissions:

The applicants have met all the requirements of an interim interdict. They have a substantial and real interest in the matter. The first respondent did not furnish the second respondent with monetary security for due administration of the estate. She unlawfully has accepted payment of liabilities for the estate based on an unconfirmed estate account. She has invited people to view an estate account in instances where she has not lodged any distribution account with the second respondent. The Will does not mention the name of Nomatter Zinyengere to whom the Lamborghini was bequeathed. The deceased's company, Quick Gases (Pvt) Ltd, in Botswana, is losing its market value.

The balance of convenience favours the applicants.

The second respondent admonished the first respondent over her behaviour but she has not done anything, especially in relation to the motor vehicle and the advertisements of the estate account in the Government Gazette and a newspaper. The law does not permit the first respondent to benefit from the estate, through appointment as an executor, in instances where she authored the Will.

The first respondent made the following submissions on the merits in her heads of argument:

The applicants have failed to meet the requirements for the granting of an interim interdict. The first respondent was lawfully appointed as executor with the consent of the applicants. The applicants did not appeal against the decision of the second respondent in accepting the unsigned document as a Will. There is no irreparable harm suffered because the Lamborghini motor vehicle is safely parked in Domboshava where the deceased used to reside. There is no evidence that the first respondent is disposing of assets of the estate. The applicants have not made a formal complaint to the second respondent that would trigger a process to have her removed as executor.

The balance of convenience favours the first respondent who has made significant progress in administering the estate both in Zimbabwe and Botswana.

The applicants have failed to exhaust their domestic remedies.

The well settled requirements for an interim interdict are as follows (see Setlogelo v Setlogelo 1914 AD 221…, which this jurisdiction has religiously followed):

(a) A prima facie right, though open to doubt;

(b) That there is a well-grounded apprehension of irreparable harm to the applicant if the interim relief is not granted and he ultimately succeeds in establishing the right;

(c) The balance of convenience favours the granting of interim relief; and

(d) That the applicant has no other satisfactory remedy.

See also Cool v Minister of Justice 1955 (2) SA 682 (C)…,..

I find myself in a dilemma that courts often face in dealing with interim interdict applications. I am referring here to the danger of touching on the merits of a case that may unduly influence the outcome of the final order proceedings should the provisional order be granted.

I find comfort, however, in the fact that the right referred to is prima facie only.

I also take a cue from the decision in Document Support Centre (Pvt) Ltd v Mapuvire 2006 (2) 240 (H) in which MAKARAU J…, stated as follows:

“Without attempting to classify the causes of action that are incapable of redress by way of urgent application, it appears to me that the nature of the cause of action and the relief sought are important considerations in granting or denying urgent applications. It is therefore inevitable that the merits of the final order sought be considered.

It is my considered view, that, the basis of the whole matter revolves around the crucial issue of the acceptance of a document that did not meet all the formalities as specified in section 8(1)(a-d) of the Wills Act as the will of the deceased. These are writing, signing, and attestation.

Section 8(5) therefore becomes an exception to the norm in that it gives the 2nd respondent, the power to accept a document that does not meet some of the formalities.

That section, in my view, seeks to create a balance between being overly rigorous to the extent that it may prejudice beneficiaries in instances where it is clear that indeed the deceased wanted their estate to be dealt with in a particular manner but failed to comply fully with section 8(1) AND potential fraudulent documents being touted as wills: see Janda v Janda 1995 (1) ZLR 375 (S) and Mhango v Gunda HH147-2000.

Section 11 of the Administration of Estates Act [Chapter 6:01] allows the transmission of a purported will or codicil or other testamentary instrument to the second respondent or their assistant. That is why it is critical to conduct the two rung inquiry before accepting a document that does not meet all the formalities as a last will and testament: see Mujuru N.O. and Ors v The Master and Others HH112-08.”

The applicants have outlined the basis upon which they believe that the document presented is fake and should be nullified. They cannot be said to lack a cause of action. They have explained the circumstances that led them to go along with the document. The first respondent has also explained, in detail, circumstances surrounding the preparation and presentation of the document.

The acceptance of any document that does not meet all the requirements is not a walk in the park.

In my view, there are prima facie red flags in the document itself, processes, and manner leading to the acceptance of the document as a will that may result in a court sitting on review making a finding in favour of the applicants.

This is what I would refer to as 'live' issues that need to be considered.

The applicants, in other words, have a reasonably arguable case, prima facie, on review.

The question on review, in my view, must revolve around the circumstances leading to the writing of the document and whether or not a proper inquiry was conducted and the authenticity of the document. This must, of necessity, include the contents of the document itself.

The whole basis of the inquiry is to arrive at the truth and rule out fraud.

If the court, on the return date, finds in favour of the applicants, it follows that the deceased's estate must be wound up on the basis of intestate succession. If not, the document will continue standing as a Will of the deceased.

The first respondent, by her own admission, jumped the gun in authorising release of a Lamborghini in the absence of a proper liquidation and distribution account. In paragraph 13.2 of her opposing affidavit she takes full responsibility for her error.

The immediate question that arises is: what is the urgency that warrants dealing with the estate in a piecemeal manner - especially in the absence of a confirmed distribution account?

What influenced the first respondent to initially, as she claims, authorise the release of the vehicle and then turn around and say, without providing proof, that she then changed her mind?

The second respondent also took her to task over the manner in which she was administering the estate – see page 36 of the first applicant's founding affidavit being a letter from the second respondent. Part of the letter reads as follows;

“having gone through the file, we wish to advise that we have no interim account in the deceased estate record. Neither have we issued any document authorizing distribution of the estate to any individual at this stage.”

And yet, the first respondent went on to advertise the estate account as lying for inspection.

According to the applicants, the estate has liabilities, and, it is trite that an estate consists of assets and liabilities. A beneficiary only has a mere hope that the liabilities do not outweigh assets since they are supposed to be paid off first. That is why the law allows beneficiaries, in a co-ordinated manner, to contribute toward liabilities should they wish to preserve the value of the estate. This is in instances where liabilities outweigh assets.

In my view, the applicants cannot be faulted for holding the view that irreparable harm may result from the conduct of the first respondent.

Their apprehension in the face of the first respondent's admitted conduct is valid.

The unfiled second interim and distribution account and the un-filed executor's inventory reveals that there are many assets as well as liabilities in the estate.

Although, at law, a company is a separate legal persona, a deceased's shareholding in a company constitutes an asset.

Nothing is said in the two documents attached as annexure INV 4, by the first respondent, to her opposing affidavit relating to the companies or the trucks that are said to be in South Africa.

The estate of the deceased spans across three countries and there are different laws and processes in relation to the administration of deceased estates of a foreigner. That, by itself, may entail external conflict of laws.

The balance of convenience, in my view, favours the applicants who are beneficiaries.

Even if the court finds, on the return date, that, the document should be taken as a Will, their rights must be protected.

Contrary to the assertions by the first respondent, that the applicants should have appealed, the conduct complained of can only be addressed though a review and not an appeal.

The applicants have, therefore, in my view, satisfied the requirements for the granting of an interim interdict.

On costs, I do not see anything warranting the award of costs at this interim stage.

I am also mindful of the fact that a provisional order can be varied as long as it does not depart from the gist of the application.

The applicants have stated, that, they have been given up to the 31st of March 2021 by FNB Botswana to sort out the issues in relation to the first respondent's executorship. As stated already there is pending litigation in Botswana, by the first respondent, seeking, inter alia, that she be declared the legally nominated executor in the estate of the deceased.

This may entail having the return date expedited.

For the avoidance of doubt, the provisional order is granted with the interim relief varied as follows:

1. The first respondent be and is hereby interdicted from administering the estate of the late Genius Kadungure under DR No.1771/20.

2. The second respondent be and is hereby interdicted from accepting any process in relation to the administration of the estate of the late Genius Kadungure under DR No.1771/20 filed by or on behalf of the first respondent.

3. The first respondent be and is hereby interdicted from presenting the Letters of Administration issued to her in Zimbabwe under DR No.1771/20 to the Master of the High Court in the Republic of South Africa for purposes of the administration of the deceased's estate in relation to assets in that country.

4. The Registrar of the High Court of Zimbabwe at Harare is directed to expedite the return date hearing. The Registrar is directed to bring this judgment to the attention of the second respondent.

SC07-17 : CHRIS STYLIANOU and FRED DRIVER AND SONS (PVT) LTD and D.R. HENDRY (PVT) LTD vs MOSES MUBITA AND 25 OTHERS
Ruled By: GWAUNZA JA, GUVAVA JA and BHUNU JA

This is an appeal against the entire judgment of the Labour Court sitting at Bulawayo, handed down on 18 January 2010. After reading documents filed of record and hearing counsel, we made the following order:“IT IS ORDERED:1. The appeal be and is hereby allowed.2. There shall be no order as ...

“IT IS ORDERED:

1. The appeal be and is hereby allowed.

2. There shall be no order as to costs.

3. The judgment of the Labour Court, in cases No. LC/URG/MT/25/08 and LC/MT/37/08 be and is hereby set aside and substituted with the following:

'(i) The urgent chamber application by the respondents be and is hereby struck off the roll.

(ii) The urgent chamber application by the applicants be and is hereby struck off the roll.

(iii) The retrenchment agreement entered into between the parties and approved by the Retrenchment Board be and is hereby upheld.

(iv) There shall be no order as to costs.'”

This judgment contains the reasons for the order....,.

The factual background to the matter is as follows:

The first appellant was, at the time of the institution of these proceedings in the court a quo, said to be the 'owner' of the second and third appellants. In legal terms he was the director and sole shareholder thereof.

The second and third appellants were companies duly registered in terms of the laws of Zimbabwe.

The respondents were employed by the second and third appellants, and, due to viability constraints, a decision was taken to retrench them.

A notice to retrench, dated 15 April 2008, was duly issued, and bore the names of those affected by the decision to retrench.

Efforts were made to negotiate a retrenchment package but no agreement was reached, prompting the parties to seek the assistance of the relevant National Employment Council (“NEC”).

The National Employment Council (NEC) gave the parties up to 15 May 2008 to reach a compromise, failure of which the matter would be referred to the Retrenchment Board.

The parties reached an agreement before this deadline.

As required by section 12C(3) of the Labour Act [Chapter 28:10] (“the Act”), approval for the retrenchment of employees was signed by the parties and sent to the Retrenchment Board, which, in turn, gave its approval in terms of the same section of the Labour Act.

When the appellants were about to implement the approved settlement, the respondents changed their minds and approached the Labour Court with a chamber application for an interdict whose effect would be to stop the appellants from implementing the retrenchment package that was approved by the Retrenchment Board.

The respondents also cited irregularities in how the retrenchment agreement came about, in particular, that it was not agreed upon because some members of the Workers Committee had not signed it. They further alleged, that, the approved settlement was not ratified by the affected employees and neither was it approved by the Minister.

In the same urgent chamber application, the respondents were seeking a final order that the agreement for the retrenchment package be declared null and void and the Retrenchment Board's approval thereto set aside. The final order would allow reinstatement of the respondents without loss of wages or benefits.

A provisional order was granted on 23 May 2008. It interdicted the first appellant from paying out retrenchment packages to the respondents without an order of court.

The main matter on the final order sought was set down for hearing on 4 July 2008 but was not heard on that day.

The parties negotiated further and signed another settlement document. When the appellants sought to implement the new agreement, the respondents refused to accept the package.

The matter was then heard on 18 January 2010 and the learned judge essentially held, that, the retrenchment itself was not done procedurally and was therefore a nullity.

In the judge's view, this was a consequence of the fact that the Minister did not approve the retrenchment - despite the agreement of the parties thereto.

Aggrieved by the decision of the Labour Court, the appellants unsuccessfully sought the leave of that court to note an appeal to this court. They, thereafter, and successfully, approached this court for leave to appeal to it, hence the instant appeal.

The appeal was brought on nine grounds. However, a number of the grounds were struck out for not being concise as required by the Rules of this court, for containing argument or for making no sense at all.

It hardly needs re-emphasizing, that, grounds of appeal must conform to laid down requirements.

The issues that arose from the valid grounds of appeal were as follows:

(i) Whether or not the court a quo erred in making an order against the first appellant.

(ii) Whether or not the Labour Court has the jurisdiction to grant an interdict and a declaratory order.

I will proceed to deal with the issues as outlined....,.

Whether or not the Labour Court has the jurisdiction to grant an interdict or a declaratory order

The respondents approached the court a quo on an urgent chamber application basis provisionally seeking an interdict. On the return date of the provisional order, they sought a declaratory order to the effect that an agreement by the Works Council was null and void.

I will deal with the interdict first and then consider the declaratory order.

Paragraph 1 of the provisional order under “interim relief” which was granted by the judge a quo on 23 May 2008 read as follows:

“1. The 1st respondent be and is hereby interdicted from paying out retrenchment packages in respect of all 51 applicants (now respondents) without an order of the court.”

The question that this order raises is whether or not the Labour Court has the jurisdiction to grant an interdict.

Whenever the powers of the Labour Court come into question, it must always be borne in mind that it is a creature of statute (Dombodzvuku v CMED (Pvt) Ltd SC31-12; Nyahora v CFI Holdings (Pvt) Ltd SC81-14) and therefore can only exercise those powers that are given to it by the Labour Act, its enabling statute.

Section 89 of the Labour Act determines the functions, powers and jurisdiction of the Labour Court. The relevant section is section 89(1)(a) which reads as follows:

“89 Functions, powers and jurisdiction of Labour Court

(1) The Labour Court shall exercise the following functions —

(a) Hearing and determining applications and appeals in terms of this Act or any other enactment;…,.”

This court, in National Railways of Zimbabwe v Zimbabwe Railway Artisans Union & Others SC08-05 was faced with the same question, that is, whether or not the Labour Court has the jurisdiction to entertain an application for an interdict. ZIYAMBI JA held as follows:

“…, before an application can be entertained by the Labour Court, it must be satisfied, that, such an application is an application 'in terms of this Act or any other enactment.'

This necessarily means, that, the Act or other enactment must specifically provide for applications to the Labour Court, of the type that the applicant seeks to bring….,; nowhere in the Act is the power granted to the Labour Court to grant an order of the nature sought by the respondents in the court a quo, nor have I been referred to any enactment authorising the Labour Court to grant such an order.”

It is thus clear on the basis of this authority, that, the Labour Court has no power or jurisdiction to grant an interdict.

When a court issues an order which it is not empowered to grant, that order is a nullity.

It follows, that, the interdict granted by the court a quo was void ab initio.

Turning to the declaratory order granted by the court a quo, the same question arises as to whether or not the Labour Court has the jurisdiction to make such orders.

Paragraph 4 of the provisional order attached to the urgent chamber application a quo read as follows:

“4. The agreement signed by the works council will be and is hereby declared null and void.”…,.

The same question was deliberated upon by ZIYAMBI JA in UZ-UCSF Collaborative Research Programme in Women's Health v David Shamuyarira SC10-10 where she held as follows:

“…, nowhere in the Act is the power granted to the Labour Court to grant an order of the nature (declaratory order) sought by the respondents in the court a quo, nor have I been referred to any enactment. So, too, in this case, there is no provision in the Act (nor have I been referred to any provision in any other enactment) authorizing the Labour Court to issue the declaratory order sought by the respondent. It is therefore my view, that, the Labour Court ought to have dismissed the application for want of jurisdiction authorizing the Labour Court to grant such an order.”

It is therefore evident, that, the court a quo acted outside its jurisdiction.

Consequently, the declaratory order, like the interdict it granted, was null and void.

The declaratory order, was, in any case, premised on the interdict that the court had already found was invalidly made. It therefore had no legal leg to stand on.

For these reasons, we made the order setting aside both the interdict and the declaratory order.

It was in view of the foregoing, that, the court made the order set out at the beginning of this judgment.

SC138-21 : DIVVYLAND INVESTMENTS (PRIVATE) LIMITED vs DAVID CHIWEZA
Ruled By: PATEL JA, GUVAVA JA and BHUNU JA

This is an appeal against the whole judgment of the High Court which was handed down on 10 April 2019. The gripe of the appellant is that the court a quo dismissed its claim and granted an order in favour of the respondent's counter-claim.BACKGROUND FACTSThe facts of the matter which ...

BACKGROUND FACTS

The facts of the matter which have a bearing on the dispute may be summarised in the following manner:

The appellant is a private limited company duly registered in accordance with the laws of Zimbabwe. The respondent is a private individual and resides at 12 Le Roux Drive, Hillside, Harare.

On 19 July 2017, the appellant issued summons against the respondent and sought an order in the following terms:

“(a) Ejectment forthwith of the defendant and all those claiming occupation through him from the property at Number 12 Le Roux Drive, Hillside, Harare.

(b) Payment of damages in the sum of US$58,000 to plaintiff;

(c) Payment of holding over damages in the amount of US$700 per month calculated from the 01st June 2017 to date of eviction;

(d) Costs of suit on the higher scale of legal practitioner and client.”

The basis of the claim followed a purported breach of contract by the respondent.

In its declaration to the summons, the appellant averred, that, sometime in September 2009, the parties entered into a verbal agreement for the sale and purchase of a portion of immovable property known as Number 12 Le Roux Drive, Harare ('the property'). The sale was facilitated by an estate agents company known as Property Plus Realtors (Private) Limited which was acting on behalf of the appellant.

The agreement of sale stipulated, that, the respondent would pay the purchase price of US$75,000 by paying a deposit of US$15,000 upon agreement. The balance of US$60,000 was to be paid at the rate of US$5,000 per month for 12 consecutive months with interest on the purchase price being calculated at the rate of 1 per cent per month. The full purchase price was to be paid on or before 30 August 2010.

The parties further agreed, that, the respondent would take immediate occupation of the property upon payment of the deposit.

The appellant alleged, that, the respondent failed to pay the full instalments by the due date, and, as such, breached the verbal agreement of sale. It was the appellant's evidence, that, the respondent failed to pay the sum of US$39,100 which comprised the principal debt and interest.

The appellant further stated, that, the respondent acknowledged, in writing, on 30 March 2017, that he had not paid the full purchase price.

On 17 May 2017, the appellant served the respondent with a notice to rectify its breach within 30 days. Despite the notice, the respondent failed or neglected to comply. As a result of the respondent's breach, the appellant cancelled the agreement of sale on 23 June 2017 and demanded vacant possession of the property.

Following the issuance of summons, the respondent entered an appearance to defend.

In his plea, he averred, that, the agreed purchase price for the property was US$68,000 and that he was to pay a deposit of US$15,000, and, thereafter, instalments of US$5,000 until the balance was paid in full.

The respondent further averred, that, he paid the deposit and a further US$37,000 and that the remaining balance, as at 1 May 2010, was US$16,000.

The respondent averred, that, he failed to continue with the payments as the appellant refused to come up with a written Agreement of Sale which would enable him to obtain a mortgage loan to pay for the outstanding balance for the property.

The respondent further averred, that, both parties, as a compromise to their verbal agreement, agreed, that, upon payment of US$300 by the respondent, the appellant would draft the Agreement of Sale.

The respondent paid the US$300 but no agreement was drafted.

The respondent further stated, that, the appellant, without his knowledge and consent, sought to subdivide the property.

In reaction to the subdivision, the respondent, through his legal practitioners, wrote a letter, on 30 March 2017, to the appellant, informing it to refrain from the illegal sub-division and for it to provide a written agreement of sale.

The respondent stated, that, the appellant did not comply with his notice.

The appellant decided to give him notice to rectify a non-existent breach of the verbal agreement. It was the respondent's averment that the notice by the appellant was a legal nullity and of no force and effect.

The respondent thus denied the appellant's entire claim, and, consequently, filed a counter-claim against the appellant seeking the following order:

“(a) An interdict restraining the Plaintiff from subdividing the property known as Stand 10830 Salisbury Township of Salisbury Township Lands Held Under Deed of Transfer Number 11900/2005.

(b) An order that the Plaintiff take all necessary steps to prepare an agreement of sale within 10 days of the granting of judgment reflecting the terms of the verbal agreement as set out in paragraphs 16 and 17 of this Declaration including the amount paid as of date and the balance outstanding in the sum of US$16,000.

(c) Costs of suit on a Legal Practitioner and client scale.”

In its plea to the counterclaim, the appellant maintained, that, the agreement between the parties was for the sale and purchase of a portion of the property.

The appellant further denied the payments and outstanding balance which the respondent purportedly made to it.

The appellant also denied that it had an obligation to draw up an Agreement of Sale.

It was the appellant's argument, that, the agreement of sale did not have a term which provided that the balance of the purchase price would be paid through a Bank loan.

Following a pre-trial conference before a Judge, in chambers, the parties entered into a joint pretrial conference minute which read as follows:

“ISSUES

1. What were the initial and later compromise terms of the agreement?

2. Whether or not the defendant breached any of the terms of the agreement.

3. Whether or not the plaintiff should not be interdicted from subdividing the property?

ONUS

4. On both parties in respect of issue number 1.

5. On the plaintiff in respect of issue 2.

6. On defendant in respect of issue 3.

ADMISSIONS

7. Plaintiff admits to receiving US$300 for the purposes of drafting an agreement of sale.

8. Defendant is presently in possession of the property.”

EVIDENCE BEFORE THE COURT A QUO

At the trial, the appellant led evidence through a single witness, one Brian Machengo (Machengo), a Sales Manager at Property Plus Realtors (Private) Limited.

Brian Machengo testified, that, the advertisement of the property was published through The Herald newspaper. It did not indicate that only a portion of the property was being sold. It simply made reference to 'one acre of panoramic views'.

He further stated, that, he was given a mandate by the appellant to sell the property for US$90,000 but published the advertisement with an offer price of $70,000.

His mandate was to sell land with a residential property measuring plus or minus 1,500 square meters. It was part of the whole property that comprised 12 Le Roux Drive.

The respondent was one of the persons who responded to the advertisement and made an offer to purchase the property for US$68,000. This offer was rejected by the appellant.

He could, however, not explain how the purchase price changed from US$90,000 to US$70,000, and, subsequently, to US$75,0000. It was his evidence, that, as the agreement was verbal there was no paper trail explaining what had taken place.

Brian Machengo further accepted, that, at the time when the sale was concluded, there was no subdivision permit as the permit was only granted on 10 February 2015.

He further accepted, that, the respondent paid about US$52,000 towards the purchase of the property and that he paid US$300 for the drafting of an Agreement of Sale.

He confirmed that the respondent filled in an offer to purchase form.

He also highlighted, that, the form did not make any reference to the respondent accessing mortgage finance to pay off the purchase price.

He denied that he was obliged to give the respondent a written agreement.

He further stated, that, the appellant was within his rights to sub-divide the property as he had only sold a portion of it to the respondent.

The respondent testified on his own behalf and led evidence from two other witnesses.

The respondent testified, that, he saw an advert for the property which had a purchase price of US$70,000. He made an offer for US$68,000 on an Offer Form provided to him by Brian Machengo.

He indicated that it was never mentioned to him that only a portion of the property was being sold and that from the description of the property on the advertisement he believed he was purchasing the whole property.

He denied that the purchase price of the property was agreed as US$75,000 as alleged by the appellant.

The respondent admitted that he had not paid the full purchase price for the property.

He attributed his failure to meet the terms of the agreement to the fact that his company was facing economic hardships and that he failed to acquire a Bank loan as the appellant had refused to give him a written Agreement of Sale.

He explained, that, since he failed to get a written agreement he was unable to obtain a loan to offset the outstanding balance.

The respondent testified, that, in 2010, he met Mr Van Hoogstraten, whom he believed to be the seller, for the first time, who informed him that he never signs written contracts in his business dealings.

He then formed the opinion that he was dealing with “crookey, dodgy, people” and decided not to pay the balance of the purchase price.

He testified, that, he later received a report that there were people subdividing the property.

He wrote to the appellant protesting the subdivision as he believed he had purchased the whole property. When he did not get a response, he made a report to the police. Following the report to the police, he then received a letter informing him that he was in breach of the agreement.

The respondent denied that he owed the sum of US$58,000 as damages for rentals calculated at the rate of US$700 per month.

In 2014, he again met Mr Van Hoogstraten, and, this time, he agreed to have a written Agreement of Sale, provided the money for drafting such agreement was paid. It was on this basis that he paid the $300 for drafting the Agreement of Sale.

However, in spite of paying the $300, no agreement was drafted by the appellant.

The evidence of Patrick Mapfumo, the respondent's second witness, was admitted with the consent of both parties.

Patrick Mapfumo's evidence, as stated in the respondent's summary of evidence, confirmed, that, in 2014, the witness and his wife had gone with the respondent to see one Mr. Nicholas Van Hoogstraten along Mazowe Road. Their party also included Brian Machengo. It was Patrick Mapfumo's evidence, that, at the meeting, the parties agreed that an Agreement of Sale be drawn up upon payment of US$300 (being made) by the respondent for drafting the agreement.

The respondent's third witness was Patrick Nyamugama, a registered estate agent, who appeared to give expert evidence in support of the respondent's case.

Patrick Nyamugama testified, that, around the year 2009 the property in dispute would have been valued at about US$70,000 – US$80,000. He also stated, that, if the property was to be subdivided, the value of the property would be about US$50,000.

At the conclusion of the trial, the court a quo found, that, the respondent purchased the entire property and not a subdivision as alleged by the appellant.

The court disbelieved the evidence of Brian Machengo and found him to be an evasive witness. The court also found that Brian Machengo made a number of concessions in favor of the respondent.

The court a quo thus found that the appellant had failed to prove its claim.

It noted, that, there were gaps in the evidence given by Brian Machengo and that the appellant ought to have called its directors.

The court further noted, that, as the subdivision of the property had already been granted it could not make any order interdicting the operation of the subdivision permit.

However, the court found, that, the subdivision permit number SD/CR/15/14, dated February 2015, was null and void as it had been granted six years after the whole property had been sold to the respondent.

In the result, the court made the following order:

“1. The plaintiff's claim is dismissed.

2. The defendant's counter-claim is granted.

3. The plaintiff shall take all the necessary steps to prepare an Agreement of Sale within ten (10) days of the handing down of this judgment reflecting the terms of the verbal agreement entered into on 30 August 2009 including the following:

3.1 That plaintiff sold to the defendant certain piece of land situate in the district of Salisbury called Stand 10830 Salisbury Township of Salisbury Township Lands measuring 3,033 square metres held under Deed of Transfer number 11900/2005 in favour of Divvyland Investments (Private) Limited.

3.2 That the agreed purchase price for the immovable property was the sum of US$68,000 (sixty eight thousand United States dollars).

3.3 That the defendant paid a deposit in the sum of US$15,000 (fifteen thousand United States dollars) on 04 September 2009.

3.4 That the defendant has paid a total of US$56,900 (fifty six thousand nine hundred United States dollars) to date towards liquidating the purchase price inclusive of interest.

3.5 That the defendant shall pay the outstanding balance of $14,384-01 (fourteen thousand three hundred and eighty four United States dollars and one cent) through a Bank loan.

4. The plaintiff shall pay the defendant's costs of suit, in respect of both the main claim and the counter-claim, on the legal practitioner and client scale.”

Aggrieved by the judgment of the court a quo, the appellant noted the present appeal on the following grounds:

1. The court a quo erred and misdirected itself in granting relief not sought by the parties, and, in consequence, by creating a non-existing contract for the parties.

2. The court a quo erred and misdirected itself in setting aside a valid subdivision permit when no such relief had been sought before it.

3. The court a quo erred and misdirected itself in failing to find, that, once the respondent was in willful default/breach for a period in excess of five years, and contrary to the agreement, the appellant was entitled to cancellation of the agreement and to the consequential relief of eviction and holding over damages.

4. Furthermore, the court a quo erred in its failure to find, that, the absence of a written agreement is no bar to payment of the purchase price and that the respondent was not absolved from performing his side of the agreement as he could still tender into court or have made payment as he had previously done.

5. The court a quo further erred and misdirected itself in failing to find, that, an advertisement is an invitation to treat and does not create a binding contract. Furthermore, it misdirected itself in failing to find, per the evidence led, that, the respondent's offer had not been accepted by the appellant.

6. The court a quo further erred in imposing a contractual obligation of loan/mortgage financing which did not form part of the agreement between the parties and which did not exist at the time of contracting as per the evidence led.

7. The court a quo further erred and misdirected itself in failing to find, that, the admissions made by the respondent entitled the appellant to succeed on its case and have the counterclaim dismissed. These were:

(a) The property is registered in the name of the appellant who still possesses all rights of ownership in terms of the title deed.

(b) The respondent had not paid the full purchase price, whether for the half portion or for the full portion. It doesn't matter which portion he has not paid and persists in breach beyond the contracted time period (sic).

(c) The appellant, like any other party, had a right to cancel the agreement and claim eviction and holding over damages consequent to cancellation.

8. The court a quo further erred and misdirected itself in disregarding the uncontroverted evidence that the land in issue was a half-acre portion as opposed to a full acre, regard being had to the mandate to sell letter and to the advertisement placed by the appellant.

9. The court a quo further erred and misdirected itself in failing to find, that, the agreement to sell a portion of land, absent a subdivision permit, was, in any event, unlawful and could consequently not be enforced.

The appellant's grounds of appeal, in my view, raise the following issues for determination:

1. Whether or not the court a quo granted relief not sought by either of the parties.

2. Whether or not the court a quo erred in dismissing the appellant's claim.

3. Whether or not the court a quo erred in granting the respondent's counterclaim.

I will proceed to deal with these issues seriatim.

APPELLANTS SUBMISSIONS BEFORE THIS COURT

Counsel for the appellant argued, that, the court a quo fell into error when it granted relief which was not sought by either of the parties.

It was counsel's submission, that, the court a quo's finding, that the subdivision permit was null and void, was made in error as the issue of its legal effect was never an issue for determination before the court.

Counsel argued, that, the court found that it could not interdict the operation of the sub-division permit as the permit had already been granted and yet the court a quo went on to grant the respondent's counterclaim - including the part which sought to interdict the appellant from subdividing the property.

It was also counsel's submission, that, paragraph 3 of the order granted by the court a quo was made in error as the court enforced a non-existent agreement made on 30 August 2009 when the verbal agreement was in September 2009.

The appellant submitted, that, the court a quo erred in granting a computation of figures which were to be included in the Agreement of Sale. In support of the point, counsel argued, that, the court misdirected itself when it ordered that the respondent was to pay US$14,384=01 through a Bank loan when the respondent, by his own admission during trial, maintained that he owed US$16,000.

In relation to the issue of whether or not the respondent proved his counterclaim, counsel for the appellant argued, that, the respondent, by his own admission, stated, that, in a period of over nine years he failed to pay the full purchase price of the property. He thus had no valid claim to the property which remained under the ownership and title of the appellant.

It was the appellant's further argument, that, the respondent's claim, that he was to obtain a Bank loan to pay off the outstanding amount, was never agreed to as between the parties and therefore the court a quo should not have granted an order allowing the respondent to pay the outstanding balance through a Bank loan.

Counsel concluded by submitting, that, it was a basic principle of law, that, where a person occupies another person's property he or she must pay rent.

Counsel thus argued, that, the respondent, having been in occupation of the property for over nine years without being able to satisfy the purchase price, was liable to pay the appellant damages of US$58,000 and holding over damages of US$700 per month calculated from 1 June 2017 to the date of eviction.

RESPONDENT'S SUBMISSIONS BEFORE THIS COURT

Per contra, counsel for the respondent submitted, that, the court a quo did not misdirect itself in its findings as it dealt with all the issues which were raised in the pre-trial conference minutes.

Counsel submitted, that, the court had to resolve whether there was a breach by the respondent.

Counsel further submitted, that, the events that led to the appellant issuing summons only arose after the respondent wrote to it informing it to stop the subdivision of the property as this was a breach of the agreement of sale.

It was counsel's argument, that, the court correctly believed the respondent's version of how the purchase price was paid. He also submitted, that, the respondent made efforts to pay off the outstanding balance by paying the US$300 for a written contract which would help him secure a loan.

The appellant's witness, Brian Machengo, made concessions during the trial which destroyed the appellant's claim. Counsel thus argued, that, the appellant's case was full of improbabilities and inconsistencies.

He therefore submitted, that, the judgment of the court a quo was unassailable and prayed for the dismissal of the appeal.

APPLICATION OF THE LAW

Whether or not the court a quo erred in granting the respondent's counterclaim

Before the court a quo, the appellant sought an order for the eviction of the respondent and all those claiming occupation through him, damages in the sum of US$58,000, holding over damages at the rate of US$700 per month calculated from 1 June 2017 to the date of eviction, and costs of suit on a higher scale.

The respondent, in his counter claim, sought an interdict restraining the appellant from subdividing the property and an order that the appellant take all necessary steps to prepare a written Agreement of Sale which would reflect the terms of the verbal contract and the outstanding balance of US$16,000....,.

As discussed above, the respondent did not motivate or satisfy the requirements of an interdict. The court, in turn, found that it could not grant the interdict sought although it went on to make a contrary finding that the permit was null and void.

The respondent was equally in breach of the agreement of sale, and, as such, could not be granted the relief he sought for the appellant to provide a written Agreement of Sale, as the appellant had already exercised its right to cancel the Agreement of Sale.

There was therefore no basis upon which the court could grant the respondent's claim as it did.

The court made factual findings in arriving at the decision to allow the respondent's claim.

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

I find that the findings of the court a quo, in granting the respondent's claim, when he was in breach of the Agreement of Sale, were so unreasonable as to warrant interference by this Court.

HB44-15 : RAILWAYS ARTISAN UNIONS vs NATIONAL RAILWAYS OF ZIMBABWE and OTHERS
Ruled By: TAKUVA J

The Labour Court has no jurisdiction to grant an interdict.

HB46-15 : ZENZO NTULIKI vs TIMOTHY SEAN WHITE and OFFICER COMMANDING MATEBELELAND SOUTH PROVINCE and THE SHERIFF OF ZIMBABWE N.O.
Ruled By: MOYO J

This is an application wherein the applicant seeks a provisional order whose interim relief is couched as follows:

“(1) That the applicant shall be allowed unhindered access to the farm known as Lot 2 of Lot 36 Essexvale also known as Avalon Farm, Esigodini and to carry out thereupon all normal farming activities.

(2) That the respondents, its agents, assignees, associates, or employees be and are hereby interdicted and stopped from interfering with the applicant's operation of the farm known as Lot 2 of Lot 36 Essexvale also known as Avalon farm.”

The facts of the matter are that the applicant was allocated Lot 2 of Lot 36 of Essexvale (Avalon) in Umzingwane Matebeleland South Province by the Ministry of Lands in an offer letter dated 4 December 2014.

He then went to the farm and sought to occupy same.

He alleges that an agreement had been reached with the first respondent who had agreed to vacate the farm in January 2015, but, that, on 10 January 2015, the first respondent reneged on his word and stopped the applicant's workers from moving into the farm.

The applicant alleges, that, the first respondent then went on to evict the rest of his workers who were at the farm. He alleges that the first respondent has disturbed his peaceful possession of the farm.

The first respondent has raised points in limine in opposition to the urgent application:

(i) He avers, that, there is no urgency in this matter as evidenced by the fact that the applicant has never been in occupation of the farm in the first place.

He avers that he has always been in lawful occupation of the farm and that he never suggested that he would vacate the farm by 10 January 2015.

He alleges that the applicant sent his workers to the farm without the first respondent's consent thereto.

He avers, that, his legal practitioners then wrote to the applicant advising him that due process had to be followed in taking over the farm and that he could not forcibly dispossess him of the farm.

(ii) The first respondent also raises another point in limine which is to the effect that the relief sought in the provisional order is incompetent as the provisional order seeks interim relief that is the same as the terms of the final order sought and has in fact the import of a final order as opposed to interim relief.

Firstly, I will therefore move on to deal with the issue of the relief sought.

It is clear that the terms of the final order sought are similar to the interim relief and they are:

“(1) That the Provisional order set out herein be and is hereby confirmed.

(2) That the respondent shall pay the costs of suit at an attorney client scale.”

The interim relief itself, which I have alluded to earlier herein, has the import of a final order as it is to the effect that the applicant be given unhindered access to the farm and that he carries therein normal farming activities as well as that the respondent be interdicted and stopped from interfering with the applicant's operations on the farm.

This clearly is a final order couched as interim relief.

It is indeed undesirable to have such a state of affairs because the applicant virtually seeks to obtain final relief without having proved its case. This is because interim relief is obtained merely on establishing a prima facie case as opposed to a proven case: refer to the case of Kuvarega v Registrar General 1998 (1) ZLR 188 (H).

This is an irregularity; the applicant, in my view, wants to be granted final relief on a platform that requires that only a prima facie case be established.

This is not proper and the application cannot succeed by reason of this irregularity.

Again, on the issue of urgency, the problem is that the applicant seems to have sought to occupy the farm without following due process.

The applicant must wait for the law to take its course before creating an urgency for himself.

It would seem the applicant failed in his bid to despoil the first respondent, rather than that he was in peaceful and undisturbed possession as he clearly failed to obtain the possession in the first place.

Again, even if I were to overlook that irregularity; on the merits of the application, the applicant would still need to satisfy the three requirements for an interdict, these being;

“(1) A right which, though prima facie, is open to some doubt;

(2) A well grounded apprehension of irreparable injury;

(3) The absence of any other remedy.”

This is enunciated in the case of Zesa Staff Pension Fund v Mushambadzi SC57-02.

The applicant in this case has produced an offer letter, so, one could hold that the first requirement has been met; a prima facie right has been established, although it is open to some doubt when one looks at the first respondent's papers. The requirement is nonetheless satisfied.

The second remedy, of a well-grounded apprehension of irreparable injury…, is the second in line to be satisfied. I have underlined the words well grounded to emphasize the aspect of the foundation of the fear, it need not be just a fear but a well grounded fear.

In my view, the applicant, upon receipt of the offer letter, as annexed to his papers, should have followed due process in seeking to occupy the farm.

By due process, I mean, that, rather than confronting the first respondent and advising his imminent take over of the farm, he should have left it to the land authorities to notify the first respondent to vacate the land and give him a reasonable period within which to leave; this, moreso in light of the letter from the Ministry of Lands, dated 17 May 2007, acknowledging that the first respondent is at the farm, which is the subject matter of this dispute, and he has made an application to the Ministry of Lands for an offer letter.

Section 3(2)(a) of the Gazetted Land (Consequential Provisions) Act [Chapter 20:28] provides thus:

“Every former owner or occupation of Gazetted Land (a) referred to in paragraph (a) of the definition of 'Gazetted Land' in section 2(1), shall cease to occupy, hold or use that land forty-five days after the fixed date, unless the owner or occupier is lawfully authorized to occupy, hold or use that land.”

This then takes us to the next question of; what is lawful authority?

Lawful authority, in my view, is authority given by the land acquiring authority.

The letter that the first respondent understands to authorize him to remain in occupation of the farm is by the Chief Lands officer from the Ministry of Lands. The offer letter given to the applicant is by the Ministry of Lands.

It is my considered view, that, the Ministry of Lands cannot allow a party to occupy land, then offer the land to another without following the requirements of the rules of natural justice that demand that the one who understands has a right to remain in occupation, should be duly notified of the intention to take that right away, make representations, if any, and a decision be taken subsequently after all concerned have been heard.

It is not disputed, that, the first respondent has remained in occupation of the farm for years by virtue of the written assurance given to him by the same Ministry, which has now given the applicant an offer letter, without first duly notifying the first respondent of the current position.

In my view, administrative decisions should be taken within the ambit of the law.

Whilst the Lands Ministry, as the acquiring authority, is vested with all rights in relation to State land, such authority should be exercised with due consideration of the rules of natural justice.

They wrote to the first respondent and made him believe that he could remain in occupation of the land; they should have, at the time they took the decision to offer the land to someone else, advised the first respondent as such.

The first respondent also challenges the purported offer letter to the applicant as being fake, for the simple reason that it now offers the applicant what the first respondent believes he is rightfully occupying by virtue of authority from the Lands Ministry.

Unfortunately, the Ministry of Lands, as well as the Chief Lands officer who purportedly authored the letter dated 17 May 2007, were not cited as parties to these proceedings.

When I pointed this out to the applicant's counsel, he submitted, that, he chose to have the application proceed without the citation of and service of the application on the Ministry.

This creates difficulty in that we are now faced with two conflicting scenarios created by the same Ministry but they are not here to enlighten the court on which is which.

The court finds itself hamstrung in this situation as only the lands office could vouch for the authenticity of the offer letter that is being challenged.

The applicant should follow due process in the eviction of the first respondent; the applicant cannot, on this platform, seek to evict the first respondent by means of a provisional order.

The requirement for a well grounded fear is not satisfied, in my view, for the afore-stated reasons; for, the applicant had not taken effective control of the farm, neither had the Ministry of Lands taken effective steps to give him possession and control of the farm in light of the conflicting correspondence by the same office.

For the applicant to have a well-grounded fear, that the first respondent wants to dispossess him of the farm or to disturb his effective control, the applicant must have occupied the farm after following due process.

This is not the situation in this case.

There is also the requirement of the lack of an alternative remedy that the applicant had to satisfy in addition to the other two.

This requirement has not been fulfilled for the simple reason, that, in paragraph 5.7 of the founding affidavit, the applicant states thus:

“I have lodged the (sic) complaint with the Zimbabwe Republic Police who are still handling the matter…,.”

This, in essence, shows that the applicant has initiated proceedings in terms of section 3 of the Gazetted Land (Consequential Provisions) Act.

In terms of that section, at section 3(5) of the Gazetted Land (Consequential Provisions) Act, a provision is made for the eviction of a former owner who has been convicted in terms of that section. This therefore clearly means, that, the applicant has initiated criminal proceedings which will, if the first respondent is convicted, lead to the eviction of the first respondent from the farm.

This, in my view, amounts to an alternative remedy as the relief sought would be achieved through the prosecution of the first respondent in terms of the Gazetted Land (Consequential Provisions) Act.

It is for the aforestated reasons that I find that this application should fail.

I accordingly dismiss the application with costs.

HH118-18 : PINKSTONE MINING (PVT) LTD and TIMOTHY MATANGI and AFRICAN MILLS & MINERALS (PVT) LTD vs LAFARGE CEMENT ZIMBABWE LTD and MINISTER OF MINES AND MINES DEVELOPMENT
Ruled By: ZHOU J

This is an urgent application for an order interdicting the first respondent from carrying on mining operations on the applicant's mineral claims described in the papers as Contrica 9 Registered Number 23331BM; Contrica 21 Registered Number 24482BM; Contrica 45 Registered Number 24866BM; and Contrica 46 Registered Number 24867BM.

The order also seeks the barring of the first respondent from coming within two hundred metres of the mining claims referred to above.

The terms of the final order, in addition to seeking the interdict as recited above and costs of suit, asks the court to set aside the first respondent's mining claims under Registration numbers 41334BM and 42332BM.

The mining claims in dispute are in an area falling under the Pfura Rural District Council.

The application is opposed by the first respondent.

The second respondent, through his legal practitioner, advised that he would abide by this court's decision.

The brief facts upon which the application is founded are as set out below:

The third applicant is the holding company in the first applicant. The first applicant is the holder of the mining claims described above. It registered the claims in 1996. The current certificates of registration and inspection are attached to the applicants papers.

At some point, the applicants and the first respondent had business dealings involving minerals from those claims. It appears that the agreement was not pursued.

The respondent went on to register mining claims over a piece of land which included the claims already registered under the applicants names.

The applicants became aware of the first respondent's intention to carry on mining operations on the claims in dispute on 19 February through an article which appeared in The Herald newspaper of 14 February 2018.

The first respondent does not dispute that it has registered the claims in dispute. It, however, contests the relief being sought in this application....,.

The second ground of objection which is set out in the opposing affidavit is that the relief sought in the draft order is incompetent, because, according to the respondent, it is final in its effect.

That submission is incorrect as clearly the relief is being sought pending the determination of this matter on the return date.

On the merits, the relief sought is an interim interdict. The requirements for such an interdict are settled. They are:

(a) A clear right, or a prima facie right though open to some doubt. Where a clear right is established, the applicant does not need to establish a well-grounded apprehension of irreparable harm. But, where the right is only prima facie established, the second requirement must be established, namely;

(b) That there is a well grounded apprehension of irreparable harm to the applicant if the interim relief is not granted and the applicant ultimately succeeds in establishing the right; and

(c) The balance of convenience favours the granting of interim relief; and

(d) The applicant has no other satisfactory remedy.

See Watson v Gilson Enterprises (Pvt) Ltd 1997 (2) ZLR 318 (H).

The applicants have produced the relevant documents to show title in the mining claims in dispute. The certificates of registration of transfer of the claims as well as the inspection certificates show that the applicants hold rights in the claims in question.

Their right is therefore clearly established.

The respondents have not placed any evidence before the court to contradict the title established by those documents.

The first respondent clearly intends to mine on the same claims which are subject to the applicants rights.

The fact that the first respondent has registered claims over the same area does not take away the extant rights of the applicants.

It is the policy of the law to give priority to the first in title unless there are special reasons.

No such special reasons have been shown by the first respondent, but, in any event, that is a matter that is better left for a determination on the return date.

The first respondent suggested, without evidence, that, the applicants probably failed to maintain their title in the claims as required by section 173 of the Mines and Mineral Act [Chapter 21:05].

The second respondent would not have issued the applicants with the documents of title and inspection certificates referred to above if that was the case.

Even if the documents were to be taken as only prima facie evidence establishing the applicants rights, it is clear that the fear of irreparable prejudice is properly founded.

The first respondent evinces an intention to mine on the claims even though no actual mining activities have commenced. The applicants cannot wait until actual mining starts when there is evidence of an intention to mine on the disputed claims.

In deciding whether the balance of convenience favours the granting of the interim interdict, the court weighs the prejudice to the applicant if the interim relief is not granted against the harm to the respondent if the relief is granted.

The present situation is that the first respondent is not carrying on any mining activities on the claims. It is therefore not prejudiced by the granting of the interim relief being sought which is essentially the maintenance of the status quo.

The first respondent, through its legal practitioner, suggested, in the alternative, that an interdict could be granted stopping all mining activity by both parties until the dispute is resolved.

Such an order would unduly prejudice the applicant whose title to the claims has not been challenged, let alone set aside.

Counsel for the first respondent submitted, that, there is an alternative remedy of approaching the Mining Commissioner.

The remedy is not an alternative remedy to the interdict being sought in the present case as it does not achieve the same result. It is doubtful, that, the suggested recourse would afford the applicants the relief of ensuring that the first respondent's employees should not be allowed within two hundred metres of the mining claims.

In the result, the application is granted in terms of the draft provisional order as amended.

HH11-17 : ANDREW PASCOE vs MINISTRY OF LANDS AND RURAL RESETTLMENT and W. BUNGU and THE ATTORNEY GENERAL N.O.
Ruled By: CHITAPI J

In this application, the applicant seeks the following relief as set out in the provisional order:“TERMS OF FINAL ORDER SOUGHT1. That it be and is hereby declared that second respondent's dispossession of certain land and buildings in respect of applicant's offer letter for a certain piece of land described as ...

In this application, the applicant seeks the following relief as set out in the provisional order:

“TERMS OF FINAL ORDER SOUGHT

1. That it be and is hereby declared that second respondent's dispossession of certain land and buildings in respect of applicant's offer letter for a certain piece of land described as Subdivision 2 of Ivordale in the Goromonzi district of Mashonaland East Province measuring approximately 449.792ha in extent dated 16 July 2014 (hereinafter called “the property”) which physical dispossession took place on or about the 5th December 2016 and on subsequent days thereafter is and was unlawful on account that this was done without the consent of the applicant and without following due process and therefore in circumstances amounting to spoliation.

2. That it be and is hereby declared that the applicant, his agents, representatives, employees and invitees are entitled to peaceful and undisturbed possession of the property until such time as the respondents or one or other of them applies for and obtains an order of ejectment against applicant having final effect from a competent court.

3. That Respondents jointly and severally pay the costs of this application.

INTERIM RELIEF

Pending the determination of this matter, applicant is granted the following relief:

(a) That applicant's possession of the property referred to in his offer letter dated 16 July 2014 called Subdivision 2 of Ivordale in the Goromonzi District of Mashonaland East Province measuring approximately 449.792ha in extent (“the property”) be and is hereby restored in its entirety; and

(b) That second respondent and all other persons acting through or in common purpose with him remove all and any impediments on the property so as to permit free and unimpeded access by the applicant, his agents, employees, and invitees in and to the property and of all improvements on it; and

(c) That the second respondent and all persons acting through or in common purpose with him shall forthwith, upon the grant of this order, vacate the property, including any buildings and that all movable assets and property including livestock that may have been introduced by them onto the property also be removed. Failing vacation and removal, that the Sheriff or his Deputy be and is hereby authorised and empowered to attend to the ejectment of the second respondent and of all other persons claiming occupation and use of the property through him.

SERVICE OF THE PROVINCIAL ORDER

That leave be and is hereby granted to applicant's legal practitioners or the Sheriff or his Deputy to attend to the service of this order forthwith upon the Respondents in accordance with Rules of the High Court.”

On 16 December 2016, which was the set down date, the respondents sought a postponement of the hearing. The respondents had not had enough opportunity to peruse the application and to prepare and file their responses.

I postponed the hearing, and, following submissions by the applicant who was concerned that he could not access his planted crop, I asked the second respondent whether he had any problems with allowing the applicant to attend on his planted crop. The second respondent did not have a problem with this. I then granted an interim order pending the final disposal of the matter by myself.

I consequently granted an interim order in the following terms:

“IT IS ORDERED THAT:

1. The hearing of the application be postponed to 19 December 2016 at 2:30pm and ruling on wasted costs is reserved.

2. In the intervening period, the 2nd respondent, his agents or any other person so inclined is hereby ordered not to interfere with or impede in any manner the applicant or his workers access to and tending his crop of maize, groundnuts, and soya beans and already planned on the disputed land, subdivision 2 of Ivordale in Goromonzi as described in the applicant's founding affidavit.

3. The applicant shall not plant any new crops and the 2nd respondent shall not do or suffer to be done anything either by himself of through his agents on the disputed land as may affect the status quo which should remain so until the application is determined.

4. The respondents to file any opposing papers if they oppose the relief sought by no later than 12noon on 19 December 2016 and to serve the applicant's legal practitioner by no later than 1:00pm on the same date.”

HH11-17 : ANDREW PASCOE vs MINISTRY OF LANDS AND RURAL RESETTLMENT and W. BUNGU and THE ATTORNEY GENERAL N.O.
Ruled By: CHITAPI J

In this application, the applicant seeks the following relief as set out in the provisional order:

“TERMS OF FINAL ORDER SOUGHT

INTERIM RELIEF

SERVICE OF THE PROVINCIAL ORDER

“IT IS ORDERED THAT:

The first and second respondents filed their responses.

The first respondent responded on the merits through an affidavit deposed to by the Permanent Secretary of the relevant Ministry. The first respondent's position was set out in the relevant paragraphs of her affidavit as follows:

“3. I have read the applicant's founding affidavit and wish to respond as follows;

4. All due processes leading to the downsize of the applicant's farm size were observed and adhered to and the applicant was left with enough land to conduct his dairy farming activities and other operations.

5. The Ministry policy permits the applicant to wind up any operations and harvest any crops that he might have planted without any interference from the incoming beneficiary.

6. In essence, the 2nd respondent is to allow the applicant to wind up operations with no interference from himself and/or any others that claim occupation through him.

7. In the premise, we abide with the court's ruling.”

The first respondent's position was therefore that the Minister did not oppose the interim relief sought. This much appears clearly from an analysis of paragraphs 5 and 6 of the first respondent's affidavit.

The Ministry does not allow an incoming beneficiary to interfere with operations of the incumbent operative who is given an opportunity to wind up his or her operations without interference.

The second respondent, on the other hand, was opposed to the application on three (3) grounds;

(i) Firstly, that the application was defective and therefore a nullity;

(ii) Secondly, that the matter was not urgent; and

(iii) Thirdly, on the merits.

I deal with the issues raised in turn....,.

On the merits, the applicant simply has to establish a prima facie case to obtain a provisional order.

A consideration of the papers filed in this matter, and the parties submissions, have left me satisfied that the applicant managed to establish a prima facie case.

The second respondent did not really deny the acts of spoliation complained of by the applicant. His attitude appeared to me to be that of one claiming a right to the disputed piece of land, and hence, by such right, an entitlement to act in whatever manner he chooses. For example, in paragraph 26 of his opposing affidavit, he admitted that he brought his property onto his allocated farm and did not need anyone's authority or permission to do so.

He misses the point.

The claim of right defence does not apply to spoliation proceedings.

In paragraph 27 of the same opposing affidavit, the second respondent averred that he “politely” asked the applicant to vacate the property. He does not, however, allege that the applicant, when politely asked to vacate, as averred, agreed to do so.

The applicant, without doubt, did not agree to vacate the farm nor did he allow the second respondent to chuck him out of the farm or disturb the applicant's farming activities.

The applicant petitioned the court for protection because he did not consent to the second respondent's acts of spoliation or takeover.

The second respondent should look to the law to enforce his rights and the more so taking into account, that, as a Chief, he must lead by example and obey and uphold the country's laws.

A close reading of the second respondent's affidavit shows that he has no defence to the allegations of spoliation. He describes the applicant as being defiant of his authority as Chief and being disrespectful.

The second respondent averred, in paragraph 31 of his opposing affidavit, as follows:

“…,. It is clear that what the applicant is trying to do is to prevent me from enjoying peaceful possession of my farm which was allocated to me by the first respondent.”

The second respondent averred, in his opposing affidavit, that, he cannot live with the applicant whom he referred to as his 'subject' in his area where such subject is hostile to him. He avers that the applicant must leave the area.

After hearing submissions from counsel for the second respondent, I formed the view, that, the second respondent felt challenged in his authority as Chief of the area by the applicant who challenged his takeover of the farm after allocation by the first respondent.

The law is blind. Every person is equal before it.

It would be a sad day for the gains which civilization and democracy have made if people in authority were to consider themselves as being a law unto themselves.

The facts of this matter are straightforward.

The first respondent has downsized the applicant's farm. A portion thereof has been allocated to the second respondent. The applicant has property and a crop on the farm. Until such time that the applicant vacates the portion allocated to the second respondent, either on his own violation or by eviction sanctioned by law, no one, including the second respondent, is allowed to forcibly occupy the farm - including the portion allocated to the second respondent.

Even the allocating authority, being the first respondent, has deposed to the fact that it does not support a policy of hostile takeover.

I therefore rule, that, the applicant has, on a balance of probabilities, made out a case for spoliation and is entitled to the relief which he seeks....,.

For the avoidance of doubt, I accordingly determine the application as follows:

1. The application succeeds and the interim relief, as set out in the provisional order, is hereby granted.

2. The interim order issued on 16 December 2016 is discharged and the interim relief as aforesaid shall substitute it.

HMA55-19 : GREAT ZIMBABWE UNIVERSITY vs NESBERT MAREVERWA
Ruled By: WAMAMBO J

The applicant seeks a rei vindicatio order. It seeks to recover its property retained by the respondent.

The applicant is a body corporate duly constituted in terms of the Great Zimbabwe University Act [Chapter 25:24].

The respondent was an employee of the applicant holding the position of Chief Security Officer.

The respondent holds property belonging to the applicant, which property the respondent was holding by virtue of his being an employee of the applicant. The property consists of guns, a security motor vehicle and office and gun cabinet keys.

The respondent's contract of employment with the applicant has been terminated....,.

On the merits, the application is for rei vindicatio.

In Chitungwiza Municipality v Maxwell Karenyi HH93-18 TAGU J formulated the requirements of rei vindicatio the applicant must satisfy as follows…,:

“1. That, he is the owner of the property; Jolly Shannon and Anor 1998 (1) ZLR 78.

2. That, at the commencement of the action, the thing to be vindicated was still in existence and the respondent was in possession of the property; Masuli v Jera HH67-07; and

3. That, the respondent's possession is without his consent; Stanbic Finance Zimbabwe v Chivhunga 1999 (1) ZLR 262.”

The respondent avers, that, he is challenging the termination of his employment. That is clearly not material.

When dealing with the same contention, MWAYERA J, in The Minister of Higher and Tertiary Education, Science and Technology Development v Rudolf Pimai Matsanga HH104-19 says as follows…,:

“Whether or not the respondent is challenging the termination of employment is immaterial. The basis of occupation, which is employment, no longer exits, and the owner of property is entitled to vindicate.”

In the case of Montclair Hotel and Casino v Farai Mukutwa HH200-15, MATHONSI J made pertinent remarks emphasizing, that, once the basis of occupation has been terminated then the owner is entitled to vindicate. The Honourable Judge MATHONSI remarked:

“Just from where do former employees think they can derive the authority to hold onto property belonging to a former employer given to them for use during the subsistence of the contract of employment, in the discharge of their duties as employees, after they have lost employment? This matter is one of several of its nature which are now finding their way to the court with alarming frequency of late where a dismissed employee would simply not surrender the employer's property but would cling to it as if life depends on it.”

The above sentiments apply with equal force to the instant matter.

Apparently, as a red herring, the applicant contends, that, the guns in question are registered in his name and he fears that if they get in the wrong hands mayhem may ensure and he will be held accountable.

It is common cause that the guns are owned by the applicant and the respondent's name appears on the firearm certificate as a representative of the applicant.

Apparently, efforts are underway by the applicant to appoint persons to be responsible for the firearms: see the letter dated 4 November 2019 addressed to the Officer Commanding, Masvingo Province, ZRP by the applicant through its Registrar's Office.

Whilst an attempt has been made to justify possession of the keys to the office and cabinet wherein the guns are lodged, the issue of the security vehicle is not addressed in depth by the respondent.

The applicant contends, that, the vehicle in question is a security vehicle and its absence impacts on the security of the applicant's premises.

It is common cause that the guns, the office, and cabinet where they are lodged belong to the applicant. The keys to both the office and gun cabinet belong to the applicant. The same applies to the security vehicle.

It is common cause that the above property existed at the time of action and that the respondent was in possession of the said property. The efforts by the applicant, to have the property retained, has not succeeded. The action by the police is one such result of the applicant's attempt to retain its property. It also reflects that the respondent possesses the property without the applicant's consent.

A somewhat novel argument was raised by counsel for the respondent; it is to the effect that there has not been a demand for the return of the property in question.

A number of letters addressed to the respondent reflect that a request was made for the return of the applicant's property in the possession of the respondent. A letter dated 30 September 2019, addressed to the respondent, reads, in part, as follows:

“Pursuant to our letter dated 25 September 2019 informing you of the abolishment of the post of Chief Security Officer, kindly handover property of the University in your possession to Mr Richard Tivakudze, the Senior Security Officer. For security sensitive items, such as guns and ammunition, kindly do the handover in the presence of the Acting Vice Chancellor, Dr E. Chikodza, Acting Registrar, Mr I. Chinyemba, and Acting Bursar, Mr I. Jamela.”

Following the above letter are other letters addressed to the respondent requesting the handing over of the property in question; see letters dated 10, 21, 23 and 29 October 2019.

In the circumstances, I find that the applicant has proven that he is entitled to the interim relief he seeks. For clarity, I will grant the interim order as prayed for as amended. The applicant appears to have repeated the contents of paragraph 1. To that end, paragraph 2 of the draft order is deleted.

IT IS HEREBY ORDERED AS FOLLOWS:

Pending confirmation or discharge of this provisional order, the applicant is granted the following relief;

1. The respondent be and is hereby ordered to surrender and return –

(a) 3 guns and rounds of ammunition (the details of the guns are listed below);

(a)(i) Revolver Taurus, Serial Number 1290665.

(a)(ii) Shortgun B.S.A. Serial Number 111-3754.

(a)(iii) Pistol Norinco Serial Number 49109461.

(b) Keys to the gun cabinet.

(c) Applicant's vehicle, MAZDA BT50 Registration Number 9417.

(d) Applicant's office and keys; upon service of this order, failing which the Sheriff of Zimbabwe or his lawful deputy be and is hereby authorised to take all the necessary steps to recover the said property from the respondent or any person, whomsoever, is in possession thereof and wherever the property may be situate and return the same to applicant where it shall be kept by the applicant.

2. The applicant and/or his legal practitioners be and are hereby authorised to serve this Provisional Order on the respondent.

HMT03-19 : THE TRUSTEES OF THE UNITED MUTARE RESIDENTS AND RATEPAYERS TRUST (UMRRT) vs CITY OF MUTARE and THE MINISTER OF LOCAL GOVERNMENT, PUBLIC WORKS & NATIONAL HOUSING
Ruled By: MUZENDA J

Where there is an alternative remedy, there is no basis for seeking the interdict.

HH221-11 : PARTSON ZVANDASARA vs DR M. MAKONESE N.O. (as Chairperson of the Board of Directors of the 2nd respondent) and BELVEDERE NURSING HOME (PVT) LTD
Ruled By: MUTEMA J

The dispute between the parties is steeped in the realm of Employment Law.

The bare bones are that the applicant, who is the largest shareholder in the second respondent, with a 19.42% shareholding, used to be employed by the second respondent as the Managing Director - (this in fact constitutes the main bone of contention between the parties; the respondents aver that the applicant verbally resigned the post in early 2010 as can be gleaned from minutes of a meeting held on 3 May 2010, chaired by the applicant, at which he introduced Doctor Saungweme who took over from him as the new Managing Director, while the applicant denies resigning averring that he only relinguished some Managing Director's duties to Saungweme while he was engaged in a fundraising mission aimed at expanding the hospital and Saungweme was merely chair warmer for him).

When the applicant went away, he vacated the office taking with him his personal belongings therefrom.

Saungweme occupied the office in his new capacity as Managing Director.

In about March 2011, the applicant returned to the institution claiming that he had come back to reclaim his Managing Director's post; forced himself into the office, and locked it off from everyone except himself, thereby despoiling the incumbent Managing Director, and started issuing orders and instructions to staff and threatened to assault or injure anyone who tried to stop him or make him see reason.

All attempts to make him see sense failed, prompting the first respondent to issue a memo, on 20 September 2011, to all stakeholders restating the correct position regarding the applicant's status vis-a-vis the Managing Director post of the second respondent.

This did not help matters, and, on 24 September 2011, the respondents installed new locks and put bars to the entrance of the Managing Director's office thereby denying the applicant access to that office.

On 26 September 2011, the applicant issued summons against the second respondent in case number HC9444/11 claiming, inter alia, $50,000 which he claimed was owed to him.

On 29 September 2011, the applicant filed a court application against both respondents, in case number HC9592/11, seeking, inter alia, a declaratory order that he is the lawful Managing Director of the second respondent.

The two suites are being opposed.

On 30 September 2011, the applicant then lodged this application, via the Chamber Book, for a provisional order whose relief is couched in the following terms:

“PROVISIONAL ORDER

(a) That, the first respondent be and is hereby ordered to return possession of the applicant's office situated at the second respondent's premises.

(b) That, pending the determination of the matter in case number HC9592/11, the first respondent is ordered to ensure that the possession by the applicant of his office, situated at second respondent's premises, is not violated.

(c) The respondents are to pay the costs of this application at an attorney–client scale wholly (sic) and severally the one paying to absolve the other.

INTERIM ORDER GRANTED

Pending the determination of this matter, the first applicant (sic) is granted the following relief:

(a) The second respondent is ordered to restore applicant's possession of office situated at first respondent's premises (sic).

(b) Should the respondent not restore such possession within twenty–four hours of this order, the Deputy Sheriff, or any attested member of the Zimbabwe Republic Police, is hereby authorised to do all is necessary to ensure that such possession is restored.”

At the hearing, counsel for the respondents raised two main preliminary issues. They are these:

1. The dispute is a labour issue, and, as such, it should have been directed to its proper forum which is the Labour Court.

Section 89 of the Labour Act confers virtually as wide a jurisdiction as the High Court, so he submitted. It is one of the requirements for an interdict that there be no other satisfactory remedy, but, in casu, there is a remedy in the Labour Court.

2. The applicant makes a serious allegation, in paragraph 21 of his Founding Affidavit, that he was in peaceful and undisturbed possession of the office prior to the actions of the first respondent and her subordinates.

There was no such peaceful and undisturbed possession enjoyed by the applicant.

In fact, it was the current Managing Director who enjoyed peaceful and undisturbed possession prior to the applicant's actions.

I do not deem it fit to delve into the first point in limine that was raised by counsel for the respondents, viz, that the dispute should have been referred to the Labour Court because it is a labour issue; suffice it to say, that, that point would only be relevant either at confirmation or discharge of the provisional order or at the hearing of the application in case number HC9592/11.

It is then that the issue would fall for determination whether the matter is a labour dispute falling exclusively within the purview of section 89(1) of the Labour Act, and, if it does, then, subsection (6) would oust this Court's jurisdiction.

Regarding the second point in limine, I am constrained to uphold it. The reason, therefore, is simple and straightforward.

The applicant alleges he was despoiled of the office as well as his personal belongings lodged therein which he uses for his private life and business. The respondents have offered that the applicant is at liberty, at his earliest convenience, to come and collect his personal items.

I have no reason to doubt the sincerity of that offer.

However, as regards the office, that is a different kettle of fish.

While the applicant alleges spoliation, the respondents papers clearly show that it is him who is the spoliator.

He had been away for some 8 months and Saungweme was in lawful /and undisturbed possession of that office. He was denied occupation of the office, but, he locked it to the exclusion of everyone - except himself.

This, despite the exitant dispute between the parties, amounts, on the applicant's part, to self-help.

I did not hear the applicant to dispute the respondents version, either on paper or in oral submissions, of how he ended up re-occupying the office. He therefore did not come to Court with clean hands.

He is the spoliator.

To allow him audience would be tantamount to sanctioning unlawfulness.

On the basis of the second preliminary point raised by the respondents, the application is hereby dismissed with costs.

HH335-14 : ZUWA DAMSON vs LINCOLN USHAMBA
Ruled By: TSANGA J

This urgent application turned upon the issue of whether an order of maintenance from the Magistrate Court, that is currently pending review, can be varied, even provisionally, by the High Court through an urgent chamber application.

My immediate legal view was that this was not possible.

However, since the parties were self-actors, and since on the affidavit of urgency, the matter involved a young child who had been sent home for non-payment of fees, as upper guardian, I did set down the matter down for hearing as an urgent application so as to determine more fully the circumstances and nature of the urgency expressed in the affidavit.

However, having heard the parties on the circumstances of the urgency, I declined to grant the order sought by the applicant and dismissed the matter as not urgent.

This judgment captures the full reasons for so holding.

From the applicant's founding affidavit, the basis of her claim was that a child whom she has with the respondent, who is doing Grade One at Cornway College, had been thrown out of school for outstanding payment of fees. Under an existing Maintenance Order, from 2010, the respondent has been paying $150 a month as maintenance and $670 a term as fees. The applicant applied for a variation upward in February 2014 from $150 to $600 for child's upkeep and from $670 to $1,550 for school fees.

She obtained a default judgment in Bulawayo for these amounts on 24 April 2014.

However, on May 19, 2014 (ruling stamped 9 June 2014), this default judgment was rescinded and the Maintenance Court ordered that the maintenance should revert back to $150 for upkeep and $670 for the school fees. The respondent, though, was also ordered to repay a sum of $248 constituting various expenses for settling the child at Cornway College.

The applicant's affidavit of urgency, as well as her founding affidavit, indicated that she had brought the proceedings of the Magistrate Court for review under HC4663/14, which matter was still pending.

The basis of the urgent application brought before me was the insufficiency of the maintenance amount to meet the child's costs and the fact that the child had been thrown out of the school for owing the sum of $1,021 in fees.

The applicant's contention was that the sum of US$670 represented the fees for when the minor was still at pre-school.

What was gleaned from a letter attached from the school, regarding the amount owing to Cornway, where the child is now doing Grade One, was that of the sum owing, $571, was a balance from the 1st term. The fees for the second term was stated as $1,100 and US$650 had been paid thus bringing the total amount outstanding to $1,021.

The applicant's averment was that the respondent, who owns KWMM Investments (Pvt) Ltd, and is said to operate a fleet of 16 haulage trucks, is able to pay. She therefore sought an order couched as follows:

"TERMS OF FINAL ORDER SOUGHT

(i) That you show cause to this Honourable court why a final order should not be made in the following terms.

(ii) That pending the finalisation of case HC4663/14, Respondent be ordered to maintain the minor in terms of Annexure C.

(iii) That Respondent bears the cost of this application.

INTERIM RELIEF GRANTED

Pending determination of this matter there is granted the following relief:

(i) That Respondent is ordered to pay all the school arrears forthwith and to provide $500 for the upkeep of the minor child per month.

(ii) That this provisional order be served upon the Respondent by Sheriff."

There were three primary reasons for my rejecting the matter as urgent once the urgency had been ventilated and the circumstances surrounding it:

(i) The first was that the order of maintenance granted at $150 per month for upkeep and $670 for fees per month remains extant.

(ii) Secondly, the review of the matter by the magistrate, ordering that the maintenance revert to the original amount stated above, is still pending.

(iii) Thirdly, the applicable Constitutional provisions call into play the participation of both parents towards their children's needs. As such, where an order already exists that governs a particular parent's contribution, a matter cannot be rendered urgent by unilaterally upping that party's contribution and subsequently seeking to have that endorsed, when not honoured, by way of an urgent application.

The urgency, under such circumstances, becomes self-created.

The reluctance of higher courts to interfere with proceedings outside a review or an appeal, is one that is captured in a number of decisions.

In Berly-Lynn Surtee v Mohammed Hassin Surtee HH07-08 MAKARAU J stated thus:

“It would appear to me, that, this court has, over the years, adopted the approach, that, where there is an existing order by a competent court of jurisdiction, another court cannot make an order competing with or overriding it even if the court making the original order is inferior to the High Court….,.

The issue is not that the Juvenile Court is an inferior court, but, as pointed out by McNALLY J…,. the courts have to adopt a sensible and practical approach to the matter and avoid dealing with orders that are properly before another court of competent jurisdiction save as is provided for under the procedure of review.”

For further articulation of this rule, that, an order made by a court can only be varied by that court save by way of appeal or review in a higher court, see also Raath v Carikas 1966 (1) SA 756; Kunz v Pretorius 1982 (2) ZLR 24 (HC); Walkinshaw v Walkinshaw 1971 148 (NC).

In light of these legal authorities, I considered that the applicant's quest to bring an urgent application which would in effect vary the maintenance upwards, would, in essence, amount to interfering with an existing order of a court of competent jurisdiction.

To try and reverse maintenance proceedings which are already under review, by way of an urgent chamber application in the High Court, however temporarily or provisionally, would be tantamount to mis-application of inherent powers to simply muscle out decisions of the lower courts.

In the case of Karimatsenga v Tsvangirai & Ors HH369-12 GUVAVA J cited the following dicta, in Nyaguwa v Gwinyai 1981 ZLR 25…, where PITTMAN J stated as follows regarding the need to fully respect the jurisdiction granted a court by statute:

“I was of the opinion, that, in this country, each court is a creature of statute, and its powers are created and defined by statute. If one court were to claim that it has same inherent power to overrule another court instead of a power specifically created by statute, in effect, it would be claiming the power to nullify the body of statute law….,.”

She thus went on to conclude as follows, regarding the overlap of jurisdiction, in the case that was before her:

“Thus, it is clear to me, that, where the legislature has intentionally, and by statute, set out procedures and remedies for certain acts these must be followed. This court cannot invoke its inherent powers to take away powers which have been given to certain persons in an Act of Parliament.”

Besides, maintenance, and its variation, are, by way of enquiry, and cannot be dealt with through an urgent chamber application.

While cognisant of the High Court's role as upper guardian of all minor children, and whilst alive to the principle of the best interests of the child, as vital tenets of our Constitution, these are not principles to be applied in a knee jerk manner.

They certainly cannot be read to mean, that, every order asked for, in the name of urgency and the 'best interests' of the child, should be granted.

They equally do not mean, that, a party can unilaterally create urgency through incurring expenses on behalf of the child, that the parent herself cannot afford, and expect the courts to endorse her actions thereafter in the face of an existing Maintenance Order.

Drawing on relevant provisions of the Constitution, the best interests of the child, in the case before me, mean the child's right to parental care, as articulated in section 81(d) of the Constitution, and the right to education, health care services, nutrition and shelter as found in section 81(f) of the Constitution.

For the sake of clarity, the applicable provisions are worded as follows:

“Section 81 Rights of Children

(1) Every child, that is to say, every boy and girl under the age of eighteen years, has the right –

…,.

…,.

…,.

(d) To family and parental care or to appropriate care when removed from the family environment;

…,.

(f) To education, health care services, nutrition, and shelter;

…,.

…,.

…,.

(2) A child's best interests are paramount in every matter concerning the child.

(3) Children are entitled to adequate protection by the court, in particular, by the High Court as their upper guardian.”

These are part of the fundamental rights granted to the child by our Constitution, and which, in my view, to the Constitutional cohort of what constitutes 'best interests' that are to be embraced in every matter concerning a child as enjoined by section 81(2) of the Constitution.

In my opinion, with a comprehensive articulation of children's rights in the Constitution, when courts are called upon to make decisions which call into play an interpretation of 'best interests' guidance must, of necessity, come from the Constitutional formulation of children's fundamental rights so as to avoid a purely subjective assessment of what comprises those 'best interests' of the child.

In other words, it is not what a parent has put forth that should guide the courts in making a legal decision, but, what our Constitution provides.

It is the rights contained in section 81(a) to (h) of the Constitution, that must, of necessity, inform our understanding as a point of departure of the 'best interests' principle if we are to avoid a situation where the meaning essentially stems from each according to one's own understanding.

In summary, these include the right to be heard; to a name and family name; to family and parental care or appropriate care outside a home environment; to protection from economic and social exploitation; and to education, health and care services, nutrition, and shelter. They further include the right not to be recruited into a militia; not to be forced to take part in any political activity, and the right not be detained save as a measure of last resort.

While these rights canvass a broad range of children's experiences, in addition, children, as full citizens, equally benefit from the provisions of the Constitution as a whole.

In dismissing the application as not urgent, on the basis of the existing Maintenance Order and the pending review, I therefore considered, that, it is both parents, Constitutionally, who have the obligation to provide parental care, and, additionally, who have the responsibility to take care of their children in terms of education, health care, and shelter.

While the State also has specific obligations regarding these rights that centre on the duty to respect, protect, and fulfil the nature of these obligations, are not, in my view, the subject matter of this case, other than the duty to protect which is what courts are called upon to do as an operative arm of the State.

The fundamental focus of the facts before me bring to the fore the obligation of parents, specifically with regard to the rights accorded children.

With parents in mind, there is no suggestion, whether constitutionally or in terms of section 4(d) of the Maintenance Act [Chapter 5:09], that only the father is to contribute to the financial up-keep of a child.

In fact, the opposite is true.

It is both parents who are called upon to play their role.

Support which the mother herself can provide is a matter to be taken into account in determining whether the child is without adequate means of support: see, for example, Thomson v Thomson 1968 (4) SA 270 (RA).

It was for this reason, that, while dismissing the matter as not urgent, for the reasons that I have given, I did seek to, at least, find out from the applicant whether she was able to make up the difference pending the review. After all, her own founding affidavit suggests that the child commenced schooling at Cornway under an existing order where the father was expected to contribute U$670 for fees per term.

It was only in February, after the child had already started school, that the application for variation was sought.

In response to the urgency articulated by the applicant, the respondent said he was unable to provide any more than what the existing Order provides.

I considered it important not to leave the child in the lurch and to at least try to get the parents to find some solution to the predicament facing the child, pending the review, and the possible search for an affordable school.

The applicant's own indications were that she could possibly devote $500 from rentals she receives towards the child returning to school as a matter of urgency pending the outcome of the review. There was also the $248 which she said the court had ordered the respondent to reimburse for monies she said she had expended on uniforms and other sundry expenses on behalf of the minor child.

This, he was willing to pay.

Still this would not be enough, yet, neither parent seemed particularly enthusiastic about devoting the necessary energy towards finding an affordable alternative. Each saw it as something the other should be doing.

Realistically, pending the review, the parties seem to have very little choice other than to live within their means. Realism, in this moment, practically translates to finding a school for their child which both of them can afford.

The court's role, in protecting the best interests of the child, does not translate to a higher court foisting a decision atop of an existing one from the court below through an urgent application.

As emphasised, this court is not in a position to interfere with the order of the court below save by way of review, which is still pending, or by appeal, which is not the subject matter of the case.

The State's role, in giving effect to the right to education, equally does not translate to handing out parental subsidies under these “lifestyle” type of circumstances.

Taking into account the sum total of the above reasons:

(a) I therefore dismissed the application as not urgent.

(b) I made no order as to costs since the parties were both self actors.

HB29-17 : CLAUDIOUS MANAMELA and BRIGHTON NANGA and SAZIWE DUBE and ENOCK MARUME vs COMMISSIONER GENERAL ZIMBABWE REPUBLIC POLICE and OFFICER ON CHARGE NJUBE POLICE STATION and APOSTOLIC FAITH MISSION OF AFRICA
Ruled By: KAMOCHA J

The interim relief sought in this matter was couched in the following fashion:

“Pending determination of this matter, the applicant (sic) is granted the following relief:

1. All 3rd respondent members are interdicted from barring or blocking any other church member from entering the 3rd respondent premises wherever situated.

2. All 3rd respondent members are interdicted from inciting violence, threats of violence, assault, or act on an (sic) unlawful manner within the 3rd respondent premises wherever situated.

3. ZR Police is empowered to arrest and detain and charge fine of US$100 or three months imprisonment to any church member who incites violence, threats of violence, assault or act in any unlawful manner that disturb other church members peace of worshipping wherever 3rd respondent premises situated.

4. ZR Police is empowered to use minimum force on all 3rd respondent premises wherever situated when necessary to give peace and order.

5. This order shall operate at all 3rd respondent premises wherever situated.

6. This order shall remain operational notwithstanding any appeals or applications as may be noted by any party hereto till 3rd respondent leadership matters are fully finalized.

7. No order as to costs.”

On 31 January 2017, the applicant, Claudious Manamela, and Brighton Nanga, filed a similar application, on a certificate of urgency, seeking the same redress. After reading the papers filed of record, this court concluded thus:

“(1) This matter appears to have apparent numerous disputes of facts about the ownership of the church. These can only be settled through a fully fledge long trial. The applicants should prepare themselves for such contest in court.

(2) Those who resort to violence should be prosecuted for the offences they allegedly committed and should be punished accordingly.

(3) Accordingly, this matter does not deserve to jump the queue and is hereby dismissed.”

While that application had two applicants, the present one has an increased number of four. The number of respondents is the same in both applications. The first respondent in the first matter is different from the second matter.

The substance in both applications is the same and so is the redress being sought.

The matter is clearly res judicata.

The present application was only signed by the first applicant, Claudious Manamela, but, all the other three applicants did not sign it as required by Order 32 Rule 227(2)(b) of the rules of this court which recites that:

“(2) Every written application and notice of opposition shall —

(a)…,.

(b) Be signed by the applicant or respondent, as the case may be, or by his legal practitioner.”

Claudious Manamela is not a legal practitioner to have signed on behalf of the other three applicants.

Further, two of the applicants did not file their supporting affidavits.

My sister, MOYO J, in a case where Claudious Manamela had a similar dispute relating to the same church, held that Claudious Manamela had no locus standi in the matter.

There is no reason for me to hold otherwise.

The factions of the Apostolic Faith Mission of Africa have taken each other to court many times. Some matters have been brought to finality by the Supreme Court. However, there are still two which are still pending in Harare, in cases HH12163/15 and HH385/16.

These two matters have been consolidated and are being dealt with at the same time.

A decision will be made about who seceded from the church and the court will determine the rights of each faction in the church.

This application is in respect of the same issues. This matter is therefore clearly lis pendens.

It is common ground, that, when the church split, in 2014, Claudious Manamela went with the group that totally moved away from the church premises. There then followed a series of court cases in which Claudious Manamela's group came out second best losing all five cases on appeal.

It was submitted by the church, that, because he lost the five cases, on appeal, he was desperate to get back inside thereby causing chaos as he tries to come back.

The applicant has claimed no right - either clear or prima facie.

Those are the rights the court in Harare is still to determine by hearing evidence. Quite clearly, Claudious Manamela wants to use the court to allow him to get into the premises which he left in 2014.

At the end of arguments by the parties, the court dismissed the application with costs on the ordinary scale and indicated that the reasons would follow.

These are they.

HH125-17 : GRANDWELL HOLDINGS vs ZIMBABWE CONSOLIDATED DIAMOND COMPANY LTD and COMMISSIONER GENERAL, ZIMBABWE REPUBLIC POLICE and MBADA DIAMONDS (PVT) LTD
Ruled By: TSANGA J

In March 2016, the applicant, Grandwell Holdings (Grandwell), which owns a 50% shareholding in Mbada Diamonds [Private] Limited (Mbada), a joint venture initiative for diamond mining in Chiadzwa, obtained an interim order under HC1977/16 (HH193-16).

The other 50% shareholding in Mbada is owned by Marange Resources [Private] Limited (Marange), a Government-owned company.

According to the applicant, the elements of the order which was granted entitled its security personnel, and its entire chain, to return to Chiadzwa in order to safeguard its assets. Among these are said to be diamond ore and unprocessed diamonds that are kept in a vault. The diamond ore, which has been crushed, awaits removal of diamonds.

What is not in dispute is that from March last year, the applicant's security personnel went on site as per the order by the court in HC1977/16.

What has brought the applicants back to court, on an urgent basis, is its allegation that their security personnel at the diamond site have now been removed and that massive looting of their diamond ore has taken place at the instance of the first respondent, Zimbabwe Consolidated Diamond Company Limited (ZCDC), and continues to take place - aided and abetted by the Zimbabwe Republic Police (the police), as the second respondent.

The ore is said to being loaded without any recording or chain of command making it impossible to ascertain what is being taken.

With the core mingling of the diamond ore with that being mined by the Zimbabwe Consolidated Diamond Company Limited (ZCDC), the fear is that it would be impossible to tell which diamonds come from which ore and that therein lies the irreparable harm.

Mbada Diamonds [Private] Limited's security personnel have been sterilised by these actions of ZCDC.

To compound the problem, the Zimbabwe Consolidated Diamond Company Limited (ZCDC) is said to have brought onto the mining site security personnel previously hired by Mbada Diamonds [Private] Limited who know how to open the vault locks. As such, a real fear is that of the diamonds being stolen.

Further, if the ore and the diamonds are taken, an equally real fear is that the pending appeal before the Supreme Court would be rendered nugatory.

Having invested US$100m in Mbada Diamonds [Private] Limited, Grandwell Holdings says it has a real and substantial interest in protecting the interests of Mbada Diamonds and its own investment.

An attempt is said to have been made to file the application on behalf of Mbada Diamonds [Private] Limited, but, it had failed to secure the signatures of representatives on the Board of Mbada Diamonds who represent Marange Resources [Private] Limited.

Grandwell Holdings, being a 50% shareholder in Mbada Diamonds [Private] Limited had therefore brought a derivative action to enforce the rights of Mbada Diamonds and to seek a possessory remedy to restore possession.

The basis upon which Grandwell Holdings says that Mbada Diamonds [Private] Limited has been despoilt is paragraph 7 of the Order that was granted in HC1977/16. The paragraph was couched as follows:

“Paragraph 7

For the purposes of safeguarding assets, all of the fifth respondent's security personnel, with all their chain of command, shall be entitled, authorised, and empowered to remain at the fifth respondent's mining site at Chiadzwa Diamond Concession, as directed in paragraph 2 of the order of this court on 29 February 2016, until the resolution of this matter.”

The police, as second respondents, were said not to have appealed against the order, whilst the Zimbabwe Consolidated Diamond Company Limited (ZCDC) which had indeed appealed, had only done so against the finding that it had committed acts of spoliation.

The appeal was therefore said to be in part, leaving paragraph 7, in essence, extant.

In addition, the fact, that, there was no appeal against the presence of security personnel, as per the court order, which is said to be extant, was said to be supported by the fact, that, for almost a year Mbada Diamonds [Private] Limited's security personnel remained firmly on site even as the appeal was pending.

However, the Zimbabwe Consolidated Diamond Company Limited's position is that any removal that has taken place has been as per the court order and arises from the fact, that, the mining grants which were acknowledged to have expired in the said order of the court have not been renewed.

Spoliation per se is denied.

The police say they are there in terms of their constitutional mandate, in section 219 of the Constitution, to maintain peace and order and safeguard property. They have asserted, that, they cannot be interdicted from carrying out a lawful mandate. Furthermore, their standpoint is that no police report was made regarding any theft to diamonds.

They too, essentially, deny despoiling Mbada Diamonds [Private] Limited....,.

I turn now to the merits.

The merits against the backdrop of facts I have already outlined, the bulk of counsel for the first respondent's submission were on the competing rights to the ore stemming from the non-renewal of the mining grants.

This, indeed, was of no relevance to an application for spoliation since its purpose is: “not the protection and vindication of rights in general, but, rather, the restoration of the status quo ante where the spoliatus has been unlawfully deprived of a thing, a movable or immovable, that he had been in possession or quasi-possession of:” see Zulu v Minister of Works, KwaZulu and Others 1992 (1) SA 181 (T).

Key to the remedy is the need to stop and reverse self-help in the resolution of disputes between parties.

Furthermore, as explained in Yeko v Qana 1973 (4) SA 735 (A)…, drawing in Voet 41.2.16:

“…, the injustice of the possession of the person despoiled is irrelevant as he is entitled to a spoliation order even if he is a thief or a robber. The fundamental principle of the remedy is that no one is allowed to take the law into his own hands. All that the spoliatus has to prove is possession of the kind which warrants protection of the remedy and that he was unlawfully ousted.”

An applicant in spoliation proceedings has to establish that they were in peaceful and undisturbed possession of the thing in question at the time they were deprived of possession.

As stated in the case of Gondo NO v Gondo 2001 (1) ZLR 376…,:

“In order to obtain a spoliation order, an applicant needs to prove no more than that -

(a) He was, at the time of the act of spoliation, in peaceful and undisturbed possession of the property; and

(b) He was forcibly or wrongfully, and against his consent, deprived of possession.”

Therefore, what is of relevance here is whether an act of spoliation has taken place entitling the return of possessory right to Mbada Diamonds [Private] Limited.

Fundamentally, also as observed in the case of Chikodzi & Anor v Mashonaland Tobacco (Pvt) Limited & Anor HH392-15, self help itself materially runs against the grain of rule of law as articulated in section 3(1)(a) and (b) of the Constitution of Zimbabwe Amendment Act (No.20) Act 2013 which states in section 3 in its founding values and principles that:

“Zimbabwe is founded on respect of the following values and principles –

(a) Supremacy of the Constitution.

(b) The rule of law.”

Self-help is inimical to a society in which the rule of law prevails as observed in the case of Chief Lesapo v Northwest Agricultural Bank 2000 (1) SA 409.

Notably, this dispute pits a joint venture entity with its foreign investor against a State-created entity.

It is as such important to bear in mind the broader picture.

Among the multitude of factors that have a bearing on investment anywhere in the world is observance of the rule of law in the settlement of disputes. It matters not that one of the parties feels contractually short-changed or thereby entitled to its actions. The rule of law ought to be the guiding principle and it is the duty of the courts to fearlessly foster dispute resolution through the proper channels at all times.

Disregard for the rule of law ultimately does nothing towards fostering a climate of trust for productive investment.

Much of the focus by counsel for the first respondent addressed the question of rights.

The dispute, in so far as this aspect is concerned, is under appeal.

The applicants were emphatic, that, the gravamen of their complaint is the removal of the security personnel who remain at Chiadzwa but have been confined to the residential areas.

In view of the order that was granted in HC1977/16, of which paragraph 7 has indeed, from an examination the notice of appeal, not been appealed against by the Zimbabwe Consolidated Diamond Company Limited (ZCDC), the first respondent, then, Mbada Diamonds (Private) Limited is entitled to an interim relief in the spirit of part of that remains extant.

It has been argued, that, Mbada Diamonds (Private) Limited has alleged spoliation and yet it seeks an interdict.

It is clearly in terms of the rights accorded in paragraph 7 of that Order that it bases its application for an interdict. As such, the argument that they have not satisfied the requirements of an interdict therefore cannot hold. It has merely sought a remedy that is appropriate to the facts. The interdict seeks, among things, to stop the removal of its ore.

No evidence was placed before the court for this hearing to challenge the applicant's assertion, that, Mbada Diamonds (Private) Limited's security personnel had in fact been on the site undisturbed from the time of the granting of the Order up until the recent developments of dispossession.

However, having examined closely the interim relief sought against the final relief claimed, I am undoubtedly of the view that paragraph 1 of the final relief is in fact what should constitute the interim relief whilst paragraph 1 of the interim relief is undoubtedly a part of the final order sought. It is far broader and delves into the issue of actual mining.

This was not the subject matter of paragraph 7 of the Order granted in HC1977/16.

Accordingly, the provisional order is granted as follows:

INTERIM RELIEF GRANTED

Pending the confirmation of the final order, it is ordered that:

1. The first and second respondents, and those acting on their behalf, be and are hereby interdicted from collecting, from the third respondent's concession area, diamond ore mined by the third respondent; accessing areas secured by security personnel of the third respondent; or otherwise interfering in any manner with such security arrangements in relation to the said concession area.

2. Costs will be in the cause.

HH363-13 : TAKANAYI MUREYI vs FORTUNE CHARUMBIRA
Ruled By: MTSHIYA J

This matter came before me as an urgent chamber application. I then set it down and heard the parties legal practitioners on 26 August 2013.

After hearing the legal practitioners, I dismissed the application with costs.

On 13 September 2013, the applicant's legal practitioners, Messrs Musendekwa and Mtisi, wrote to my clerk requesting that I give reasons for my decision to dismiss the application. These are they.

In his urgent application, filed on 21 August 2013, the applicant sought the following relief:

“FINAL ORDER SOUGHT

1. The respondent be and is hereby interdicted from uttering any hate language denouncing me and my political party.

2. The respondent be and is hereby ordered to stop forthwith engaging in any political activities in Masvingo West Constituency.

3. The respondent shall pay costs of suit on attorney-client scale.

INTERIM ORDER

1. That pending the determination of the final order the respondent is interdicted from -

(i) Coercing his subjects from attending political meetings or rallies.

(ii) Threatening his subjects with death or evictions for supporting applicant and MDC-T.

SERVICE OF THE INTERIM ORDER

The applicant's legal practitioners be and are hereby given leave to serve this provisional order on the respondent.”

The applicant herein was a candidate in the harmonized elections conducted on 31 July 2013. He contested and lost the Masvingo West National Assembly seat. He contested the seat on the ticket of the Movement for Democratic Change (MDC-T) led by the former Prime Minister, Morgan Tsvangirai.

In his founding affidavit, he states, that, he has since filed a petition with the Electoral Court under case number EC35/13 challenging the results of the election on the basis of “multiple electoral malpractices and irregularities which marred the election.”

The respondent, whom the applicant alleges to have “continued to conduct meetings and/or rallies in the Masvingo West Constituency denouncing him and his party MDC-T” is a traditional Chief in the Constituency.

The respondent is also the President of the Traditional Chiefs Council in Zimbabwe.

The applicant averred, that, after the elections, the respondent continued to conduct meetings for people to attend what he called “Partisan Political Meetings.” These meetings, the applicant went further, were, in turn, addressed by the ZANU PF winning candidate, Mr Ezra Chadzamura.

In paragraph(s) 10-15 of his founding affidavit, the applicant states as follows:

“10. I am advised by my legal practitioners of record, and such advice I accept, that, the office of the Chief is an apolitical office and Chiefs are primarily there to promote unity and social cohesion not to be an extension of any political party or candidate.

11. In this context, the actions by the respondent, to force march villagers meetings and denouncing me are illegal and should be stopped as a matter of urgency.

12. Masvingo West Constituency is a relatively rural community, and conservative, where chiefs are held in high esteem as vanguards of traditional norms and values and the continued meddling in political affairs of this constituency by the respondent is thus an evil political mechanism which is designed to exert undue pressure on the electorate against me and my political party, such that even in the event that my election petition is successful, it would not be conducive to hold a fresh election anytime soon because the electorate would still be in deep slumber of intimidation and threats by respondent.

13. I am also of the view, that, since I have filed an Electoral Petition, and, amongst my grounds, is the fact that the respondent has been intimidating people to vote for ZANU PF, it is in the best interests of justice to have respondent stopped since I may be prejudiced in the event of the Electoral Court nullifying the elections of July 31st, 2013 in Masvingo West Constituency and ordering a re-run.

14. A Chief, as a social leader, should not utter hate language like 'Down with Takanayi Mureyi' rather, he is supposed to unify people beyond their political orientation. His open support for ZANU-PF as evidence by affidavits of the concerned subjects annexed hereto marked Annexure 'B1 - B8' wherein he has been intimidating and jointly giving eviction and death threats to villagers with ZANU PF winning candidate for the Constituency is completely unacceptable, unlawful, and unconstitutional.

15. My right to seek an order from the Honourable Court to bar the chief from intimidating villagers and giving an advantage to one political party at the expense of another is well established since I am a politician; I was a candidate in this particular constituency and I have a direct interest in this matter as I am awaiting ruling on my Electoral Petition and my supporters have been the prime targets of the respondent.”

Indeed, in support of his case, the applicant produced a number of affidavits from villagers in the Masvingo West Constituency.

In some of the affidavits, the villagers recount their experiences - mainly before the harmonised elections referred to above.

Given the alleged conduct of the respondent, the applicant sought the relief indicated at p1 herein (re: interdict against the respondent).

Counsel for the applicant correctly argued, that, the new Constitution did not allow the respondent to conduct himself in the manner he was alleged to be doing.

He said, notwithstanding the fact that some of the affidavits from the villagers dealt with experiences prior to the elections, there was still ample evidence showing that the respondent had, after the elections, continued to conduct himself in the manner alleged in this application.

He did not agree, that, granting the application was tantamount to supporting the applicant's petition already before the Electoral Court.

He therefore urged the court to grant the relief sought.

There were no opposition papers filed, but, counsel for the respondent, submitted, that, the respondent denied the allegations of threats and intimidation directed against the applicant and other villagers.

He said the relief sought was meant to support the applicant's petition already before the Electoral Court, in that, if the order prayed for in casu were granted, that would be confirmation of the applicant's allegations.

Counsel for the respondent argued, that, the effect of the relief sought would also interfere with the respondent's role as a Traditional Chief.

He said the respondent, as a Chief, had to address his people from time to time.

He agreed that the Constitution did not allow the respondent to engage in politics but the allegations in casu were not admitted, and, therefore, the respondent should be allowed access to his people as provided for in the Traditional Leaders Act [Chapter 27:17] (the Act).

Counsel for the respondent went further to argue, that, apart from other remedies available to the applicant, such as reporting to the police, the Traditional Leaders Act had provisions that dealt with acts of misconduct perpetrated by persons in the position of the respondent.

He therefore prayed for the dismissal of the application with costs.

Due to the nature of the allegations in this application, I did not find it difficult to accept the urgency of the matter.

The respondent's legal practitioners did not raise issue with urgency.

I therefore proceeded to look at the merits of the matter.

There is no issue regarding the Constitutional provision which disables the respondent from engaging in politics.

Section 281(2) of the Constitution of Zimbabwe Amendment (No.20) Act 2013 (the Constitution) provides as follows:

“(2) Traditional leaders must not -

(a) Be members of any political party or in any way participate in partisan politics;

(b) Act in a partisan manner;

(c) Further the interests of any political party or cause; or

(d) Violate the fundamental rights and freedoms of any persons.”

Section 282(1) of the Constitution then spells out the functions of traditional leaders, such as the respondent, as follows:

“Functions of Traditional Leaders

(1) Traditional leaders have the following functions within their areas of jurisdiction -

(a) To promote and uphold the cultural values of their communities, and, in particular, to promote sound family values;

(b) To take measures to preserve the culture, traditions, history, and heritage of their communities, including sacred shrines;

(c) To facilitate development;

(d) In accordance with an Act of Parliament, to administer Communal Land and to protect the environment;

(e) To resolve disputes amongst people in their communities in accordance with customary law; and

(f) To exercise any other functions conferred or imposed on them by an Act of Parliament.”

I want to believe, that, in the main, the execution of the above functions necessitate the holding of public meetings – which meetings, of course, should not be for the purposes of:

“(a) Furthering the interests of any party or cause; and

(b) Violating the fundamental rights and freedoms of any person.”

The allegations in casu suggest, that, the respondent proceeded to do (a) and (b) above.

As already indicated, that was denied.

It is clearly illegal to conduct oneself as alleged.

However, I find merit in the submission, that, if the allegations are indeed true, the applicant has other remedies available to him.

This, the applicant accepts.

In paragraph 24 of his founding affidavit he states:

“Further, applicant has no other remedy under the circumstances considering that the police are also failing to rein over him and granting of an interdict against the respondent is the only available remedy.”

There is no clear evidence that the matter was ever placed before the police for their investigation/action.

All nine supporting affidavits filed herein are silent on whether or not any police reports were made.

It is only the applicant who makes reference to police reports.

In paragraph 20 of his founding affidavit he states as follows:

“20. This matter is of great urgency in that despite the parted (sic) illegality of the respondent's conducts, efforts to report to the police have been made, with the police only making empty promises to stop and control the chief but it appears the respondent has totally lost respect to the laws and the Constitution of Zimbabwe because he had engaged a high gear calling and frog matching his subjects to ZANU PF meeting where I am denounced through hate speech.”

The above averment does not in any way say the police have refused to act.

Furthermore, there is no indication that the other traditional leaders have been called upon to rein in one of their own as provided for in section 7 of the Traditional Leaders Act [Chapter 27:17].

The said section provides for the investigation of any acts of dishonesty and misconduct on the part any chief, such as the respondent.

Section 7 of the Traditional Leaders Act provides, in part, as follows:

“(1) Where -

(a) A chief has been found guilty of any offence involving dishonesty; or

(b) After an investigation in terms of subsection (7), a chief has been found guilty of an act of misconduct in relation to the customs and traditions observed in his area; or

(c) A chief has been charged with any offence involving dishonesty; or

(d) An investigation in terms of subsection (7) into alleged misconduct on the part of a chief has been or is about to be instituted;
The Minister may suspend the chief from his duties.”

The allegations against the respondent, if true, admit of nothing else other than a full report upon investigations. Such report should be placed before the authorities vested with the power to protect citizens such as the applicant.

The applicant has every right to approach this court, on an urgent basis, where threats against his life are made by any person - regardless of their status. However, in doing so, the applicant must first prove, that, the other remedies have been denied him.

That is not the case in casu.

The law is clear on when the remedy of an interdict, such as prayed for in casu, can be granted.

In Charuma Blasting and Earthmoving Services (Private) Limited v Njainjai & Ors 2000 (1) ZLR 85 (S) SANDURA J said:

“What an applicant for an interdict should establish in order to succeed has been set out in many previous cases. In Setlogelo v Setlogelo 1914 AD 221, INNES JA (as he then was) said the following at 227:

'The requisites for the right to claim an interdict are well known; a clear right, injury actually committed or reasonable apprehended, and the absence of similar protection by any other ordinary remedy.'

Subsequently, in Eriksen Motors (Welkom) Ltd v Proten Motors, Warrenton & Anor 1973 (3) SA 685 (A) HOLMES JA, dealing with the issue of temporary interdicts, said the following at 691C-G:

'The granting of an interim interdict pending an action is an extraordinary remedy within the discretion of the court. Where the right which it is sought to protect is not clear, the court's approach in the matter of an interim interdict was lucidly laid down by INNES JA in Setlogelo v Setlogelo 1914 AD 221 at p227. In general, the requisites are:

(a) A right which 'though prima facie established, is open to some doubt';

(b) A well-grounded apprehension of irreparable injury;

(c) The absence of ordinary remedy.

In exercising its discretion, the court weighs, inter alia, the prejudice to the applicant, if the interdict is withheld, against the prejudice to the respondent if it is granted. This is sometimes called the balance of convenience.

The foregoing considerations are not individually decisive, but are inter-related; for example, the stronger the applicant's prospects of success the less his need to rely on prejudice to himself. Conversely, the more the element of 'some doubt' the greater the need for the other factors to favour him…,.

Viewed in that light, the reference to a right which 'though prima facie established, is open to some doubt' is apt, flexible, and practical, and needs no further elaboration.'”

The above paragraphs set out the factors, and indeed the law to be taken into account before an interdict is granted.

Whereas I do not dispute the applicant's clear right to protection, I do believe, as I have already demonstrated, that similar protection, other than an interdict, is still available to the applicant.

In that light, I accept, that, the circumstances of this case do not therefore justify a measure that will effectively interfere with the respondent's exercise of his Constitutional duties.

The founding affidavit and the supporting affidavits are clear testimony, that, in the main, the applicant is relying on what he has been told – namely, that, the respondent and the winning candidate for the Constituency have denounced him at victory rallies.

He does not tell us what he himself has heard.

Nowhere does he say he himself has heard the threats, or seen the respondent coercing his people to the said rallies.

Furthermore, given the import of paragraphs 12-15 of his founding affidavit, one is persuaded to link the application to the applicant's petition already before the court. The paragraphs referred to seem to solicit support for the said petition.

For the foregoing reasons, I dismissed the urgent application with costs.

HH158-17 : THE TRUSTEES OF THE APOSTOLIC FAITH MISSION OF AFRICA vs ZULU ROSEWELL and OTHERS
Ruled By: MATANDA-MOYO J

Legal practitioners should keep up to date with and give cognizance to rules of the courts. They should not waste the court's time by bringing ludicrous applications before the court. The determination of cases should not be slowed or deferred un-essentially because a legal practitioner has failed to assimilate the Rules.

This was the case in this matter.

This was an application brought before the court on an urgent basis; but, before the court could hear the matter on the merits, the respondents took a technical objection in points in limine....,.

The respondent also submitted, that, the relief of spoliation is final in nature and cannot be sought on an interim basis.

The applicant has premised his application on a prima facie right as opposed to a clear right.

I was referred to the case of Blue Ranges Estates (Pvt) Ltd v Muduviri and Another 2009 (1) ZLR 368 (S) where the court, at 369A, said;

“A spoliation order cannot be granted on evidence of a prima facie right only. Once the order was made and fully executed it was discharged.”

At p377D the court had this to say;

“The finding of the fact in issue was a final and definitive determination of the fact in question. There would have been no other final determination of the issue of spoliation on the return day. A clear right in the applicant to be restored to the possession of the property would have been established. A spoliation order cannot be granted on evidence of a prima facie right.”

HERBSTEIN and Van WINSEN, Civil Practice of the Supreme Court of South Africa 4ed states…, that:

“A mandament van spolie is a final order although it is frequently followed by further proceedings between the parties concerning their rights to the property in question. The only issue in the spoliation application is whether there has been a spoliation. The order that the property be restored finally settles that issue as between the parties.”

Counsel for the applicant conceded the above position.

Such concession was properly made. Accordingly, the application fails on this ground alone.

HH269-15 : ELIZABETH MAPURISA and ENESIA GUTU and SIMBA MOYO and RAISHEN MOYO vs NEHANDA HOUSING COOPERATIVE and SUNGAMBERI HOUSING COOPERATIVE
Ruled By: BERE J

In launching this urgent application, the applicants have urged this court to grant them interim relief couched as follows:“INTERIM RELIEF GRANTED1. 1st Respondent be and is hereby interdicted from selling Stands to any person either natural or juristic.2. 1st Respondent's management shall not dispose of any asset belonging to 1st ...

In launching this urgent application, the applicants have urged this court to grant them interim relief couched as follows:

“INTERIM RELIEF GRANTED

1. 1st Respondent be and is hereby interdicted from selling Stands to any person either natural or juristic.

2. 1st Respondent's management shall not dispose of any asset belonging to 1st Respondent or purchased using 1st respondent members contributions.

3. 2nd Respondent shall not threaten nor interfere with administration of 1st Respondent's activities.”

This application is premised on the first applicant's other application pending in this court filed under HC9842/14 on 6 November 2014. I will refer to this particular application as the main application for ease of reference.

The first applicant's main application was filed in terms of section 85(1)(c) of the Constitution of the Republic of Zimbabwe, and, in that application, the first applicant appears as the only applicant, who, on 9 September 2014, was suspended by the first respondent.

In that main application, the first applicant sought, inter alia, to challenge the general meeting of 27 September 2014 which appears to have ushered in the Management Committee whose coming into being she was not happy with. She also sought the disqualification of this Management Committee.

There is no doubt that the applicant has problems with the Management Committee of the first respondent.

A date of hearing is yet to be provided in the main application.

The final order desired by the applicants, in the instant matter, is to bar the first respondent from operating until such time the main matter is determined.

The urgent application filed by the applicants has been strenuously opposed by the two respondents on the basis, that, there is nothing that has been placed before this court to justify the urgency of this matter given that the main issue that triggered the applicant's concern were the election of office bearers for the first respondent on 27 September 2014.

The position of the first respondent, and supported by the second respondent, is that from September 2014 the applicants did nothing really to protect their interests and that they have had to wait until the filing of this urgent application on 10 March 2015.

There is no bona fide explanation as to why action was not taken immediately the first respondent's management was put in place to avoid the potential prejudice now being faced by the second respondent which has projected itself as an innocent party in its dealings with the first respondent.

The applicants have, instead, gauged the computation of their time to file this urgent application from the 8th and 9th of March 2015.

The 8th of March 2015 is alleged to be the date when the applicants learnt of the transaction between the first respondent and the second respondent concerning the disposal of certain land in which the first applicant has an interest. The significance of 9th of March 2015 is the date when the applicants were notified of their eviction from the co-operative's houses by the first respondent.

The view that this court takes is that the coming into office of the new office bearers of the first respondent, on 27 September 2014, was with the full knowledge of the applicants; and, it ought to have dawned on the applicants, that, the new Management Committee was going to embark in running the affairs of the first respondent in a manner they considered to be in the best interest of the first respondent.

The transactions involving the first respondent and the second respondent must clearly be looked at within this context.

The casual approach adopted by the applicants does not justify urgency in this case.

The eviction of the applicants by the first respondent, initiated on the 9th of March 2015, cannot, in my view, be looked at as the most opportune time to bring the instant application to court on an urgent basis, because, if the applicants feel very strongly that they have a good defence to that eviction process they have all the time, as prescribed by the court Rules, to deal with that process.

That process can be dealt with independent of the order desired in the first applicant's main application pending in this court.

There is a plethora of authorities which condemn litigants who want to benefit from self-created urgency, and, this is one classic example of such a scenario: see Kuvarega v Registrar-General and Anor.

The other significant and disturbing feature of this case is that in HC9842/14 the first applicant purports to be acting on behalf of other members of the first respondent yet there is nothing in her papers to demonstrate that she indeed has the mandate of those unidentified individuals.

Not even an affidavit of collegiality has been filed by the first applicant.

One cannot, by their mere say so, pretend to be fighting for the cause of others without any tangible indication that indeed they have such a mandate.

Section 85(1)(c) of the Constitution requires much more than a bare declaration that one is acting on behalf of other class of persons. There must be a way of identifying such other litigants otherwise it would set a very bad precedent for a litigant to be accepted to be representing others when in fact she is fighting for her own interests.

Finally, I am persuaded to accept, without question, the ratio expressed by my then sister Judge, GOWORA, in the case referred to me by the first respondent's counsel, Makamure v Deven Engineering (Pvt) Ltd that;

“Litigants must refrain from seeking relief in an urgent manner where such relief is dependent on the conclusion of an action launched.”

The rationale behind this is that such an approach forces the judge seized with the urgent application to start speculating on the possible outcome of the matter that may never be brought before him for determination; worse still, for him to try and draw conclusions that may be in conflict with the eventual outcome of the main matter.

In any event, in the main case that has been launched by the first applicant, under HC9842/14, the first applicant does not seek to have the decisions of the Management Committee, whose legitimacy she attacks, to be set aside.

Consequently, I am satisfied that the applicants have failed to fast track this matter before the court on an urgent basis. I decline to hear this matter on an urgent basis.

The applicants are ordered to pay costs of this application for both the first and second respondents.

HH364-15 : TASARA MUGUTI and OTTILIA MUGUTI vs TIAN ZE TOBACCO COMPANY (PVT) LTD and MESSENGER OF COURT
Ruled By: MATHONSI J

For reasons which are not apparent from the papers placed before me, the first respondent sued the first applicant in the Magistrate's Court of Harare in case number 19780/13 for payment of the sum of $73,577=93 together with interest of 5% per annum and costs of suit on the scale of legal practitioner and client and obtained judgement on 7 November 2013.

I say the reasons are not apparent because a claim of that magnitude would ordinarily be made in this court; the Magistrates Court's civil jurisdiction being currently limited to only $10,000.

Subsequently, a writ of execution against immovable property, being Stand 8 Good Hope Township of Lot 7 of Good Hope, Westgate, Harare, was issued on 14 November 2014 after the first respondent had failed to locate sufficient movable assets to satisfy the debt.

That property was then attached in execution by the second respondent in terms of Order 26 Rule 8 of the Magistrates Court (Civil) Rules 1980.

I say that because the second respondent sought authority from the resident magistrate for the area to sell the property, presumably acting in terms of Order 26 Rule 8(2) of that court's Rules which provides, that, whenever a dwelling is attached, the Messenger shall forthwith send written notification to the magistrate and then take no further steps.

The magistrate sent written notification of the attachment to the secretary in the Ministry of Local Government, Public Works and National Housing - who did not bother to respond.

On 19 February 2015, the magistrate wrote to the second respondent in the following:

“Reference is made to my letter to the Secretary dated 2 January 2015. The Secretary has not respondent (sic) to the letter. In terms of Order 26 Rule 8, you are hereby directed to proceed with the sale of four attached properties. Be guided accordingly.

B Pabwe
Resident Magistrate
Harare Civil Court”

After receiving those instructions from the magistrate, the second respondent, who I must stress is an officer of that court charged with the execution of writs coming out of that court, proceeded to advertise the property for sale by public auction on 10 April 2015.

It is that advertisement which has jolted the applicants into action and triggered the filing of this urgent application wherein they seek the following relief:

“TERMS OF THE FINAL ORDER SOUGHT

That you show cause to this Honourable Court why a final order should not be made in the following terms:

(a) The sale of Stand No.8 Goodhope Township of Lot 7 of Goodhope be and is hereby suspended on condition that the applicant pays the judgement in three equal monthly instalments of USD22,054 beginning on the 1st of July 2015 until the debt is settled, and, if applicant defaults on any one payment execution will proceed.

(b) Applicants pay the costs.

INTERIM RELIEF

It is hereby ordered, that, pending the confirmation of this matter, the applicant is granted the following relief -

1. The sale of Stand No.8 Goodhope Township of Lot 7 of Goodhope be and is hereby suspended on condition that the applicant pays an amount of USD22,054 on or before the first day of each month provided that the first such payment shall commence on or before the 1st of July 2015. In the event that the applicants defaults in respect of any one payment the sale in execution shall proceed.

2. The 2nd respondent shall suspend any action towards the sale in execution of the property referred to in paragraph 1 hereof.

3. A copy of this order or shall be served on the 1st and 2nd respondent's legal practitioners.”

Never mind that the interim relief is the same as the substantive relief; (Kuvarega v Registrar General & Anor 1998 (1) ZLR 188), but, clearly, this is an application made in terms of Rule 348A of the High Court of Zimbabwe Rules 1971 for the stopping of a sale in execution to facilitate settlement of a claim.

Ordinarily, there would be nothing wrong with it except that it has been made in the wrong court.

Rule 348A of the High Court Rules deals with stopping sales in execution conducted by the Sheriff of the High Court in pursuance of a writ issued in terms of Rule 346 of the High Court Rules.

HH446-15 : TELECEL ZIMBABWE (PVT) LTD vs POSTAL AND TELECOMMUNICATIONS REGULATORY AUTHORITY OF ZIMBABWE (POTRAZ) and MINISTER OF INFORMATION TECHNOLOGY, POSTAL AND COURIER SERVICES N.O. and OTHERS
Ruled By: MATHONSI J

After hearing arguments from counsel on 7 May 2015, I granted the provisional order and said the reasons would follow. These are they.

This matter has got a chequered history indeed.

The applicant is an incorporation which provides national cellular telecommunications service in Zimbabwe, among other services, by virtue of a licence issued in terms of the Postal and Telecommunications Act [Chapter 12:05] (the Act) by the first respondent (the Postal and Telecommunications Regulatory Authority), which is the statutory authority established in terms of the Postal and Telecommunications Act to superintend the licencing and regulation of telecommunication service in this country under the watchful eye of the second respondent (the Minister of Information, Technology, Postal and Courier Services), the Minister charged with the administration of the Postal and Telecommunications Act.

The applicant was initially issued with a national cellular telecommunications licence in May 1998. It was issued with a revised licence on 26 June 2002, a licence which, in terms of its clause 4 was, valid for 15 years from the date of its signing. That licence contains the terms and conditions under which the applicant is required to provide the service.

I have said that the relationship between the parties has had its fair share of problems.

At some point, because of the squabbles relating to the applicant's shareholding, which the regulatory authority insisted did not comply with the country's indigenisation laws, and, more importantly, with the terms of the licence, the authority cancelled the licence on 9 August 2007.

The applicant appealed that cancellation to the responsible Minister, in terms of section 96 of the Postal and Telecommunications Act, on 10 August 2007, and approached this court by urgent application in HC4301/07 for interim relief. This court, per MUSAKWA J, issued a consent order on 15 August 2007 to wit:

“It is hereby ordered that:

1. Pending the determination of the appeal by the second respondent, the order cancelling the licence and directing the applicant to switch off its telecommunications issued by the first respondent be and is hereby suspended.

2. There is no order as to costs.”

Just as well the applicant had the presence of mind to seek the suspension of the cancellation order, because it was not until 29 April 2010 that the Minister finalised the appeal - almost three (3) years later.

The Minister's decision, communicated by the Secretary for Transport, Communications and Infrastructural Development, on that date, is helpful:

“RE: TELECEL ZIMBABWE LICENCE

Your minute AM/mn/342/10 dated 28 April 2010 refers. The Ministry holds the view, that, cancelling Telecel Zimbabwe's licence is not tenable vis-a-vis the thousands of subscribers the mobile operator now has and the many negative messages such action would convey to potential investors, both in the sector and across the whole economy.

Thus, at a meeting between Honourable Minister N T Goche (MP) and Telecel's chief, Mr Kia Uebech, on 1 April 2010, Government's requirement that Telecel Zimbabwe reverts back to its original 60:40 position in respect of its local: foreign shareholding was stated/indicated.

Telecel undertook to address this challenge.

Clearly, it will be difficult for the Government to support the renewal of the licence come 2013 should Telecel fail to comply with Government's pre-condition. In our view, the ball is now in Telecel Zimbabwe's court.”

That way, the licence was reinstated on the understanding, that, the shareholding would be regularised to meet Government requirements.

Since 2010, the parties have been engaged in dialogue over the shareholding which went on and on with no end in sight. A lot has happened, including an agreement signed by the parties on 6 August 2013.

However, not happy with what the applicant had done, the first respondent, again, cancelled the applicant's licence, on 28 April 2015, on the basis that the applicant had failed to comply with the Postal and Telecommunications Act.

It then set about issuing a raft of provisions in its final regulatory order which reads:

“11. REGULATORY ORDER

HAVING REGARD to the provisions of the Act, Telecel licence conditions, persistent compliance default, all relevant evidence, and the submissions made by Telecel Zimbabwe Limited, POTRAZ hereby makes the following order in the exercise of its power under the Act.

11.1 Telecel's licence to provide National Cellular Telecommunications Service is hereby cancelled with effect from the date of this order.

11.2 Telecel immediately notifies its subscribers and relevant stakeholders of the termination of its licence upon receipt of this order.

11.3 Telecel ceases to operate its cellular telecommunications network and ceases to offer any communication service upon receipt of this order.

The effect of the cancellation is as follows:

(a) Radio frequency spectrum allocated to Telecel for the provision of cellular telecommunication services are hereby withdrawn with effect from the date of receipt of this order (see Annex 01 for the detailed spectrum information).

(b) Radio frequency spectrum allocated to Telecel for the establishment of Microwave Fixed Links in 7, 8, 13, 18, 22 and 23 GHz bands are hereby withdrawn with effect from the date of receipt of this order.

(c) Radio frequency spectrum allocated to Telecel for the establishment of a C-band VSAT Earth Station are hereby withdrawn with effect from the date of receipt of this order.

(d) The number resources used by Telecel Zimbabwe Limited to offer telecommunication services are hereby withdrawn with effect from the date of this order.

12. SPECIAL DISPENSATION TO TELECEL

NOTWITHSTANDING the provisions of subparagraphs 11.2 and 11.3 above, however, and being mindful of the disruptive effect of an immediate cessation of operations upon the subscribers and other stakeholders of Telecel, POTRAZ hereby grants a special dispensation to Telecel for it to continue with its operations for a period of thirty (30) days from the date of receipt of this order. The purpose of the dispensation will be to afford Telecel an opportunity, among other things, to:

12.1 Facilitate the migration of subscribers from Telecel to other licenced telecommunications operators.

12.2 Notify its employees and agents of the cancellation of its operating licence.

12.3 Notify its stakeholders in the mobile financial services sector of the cancellation of its licence.

12.4 Notify the general public of the cancellation of its licence.

12.5 Begin the process of decommissioning its telecommunications equipment, which process has to be completed within ninety (90) days calculated from the date of receipt of this order.”

Hence, on the stroke of the pen, and by Regulatory decree, scores of employees had lost employment and a number of subscribers had lost a service, never mind other stakeholders and never mind the labour laws of this country dealing with notice of termination of employment.

The applicant has now come to court, on an urgent basis, seeking the following relief:

“TERMS OF FINAL ORDER SOUGHT

That you shall show cause to this Honourable Court why a final order should not be made in the following terms:

1. That, pending determination of the finalisation of the appeal by the applicant pursuant to the provisions of section 96 of the Posts and Telecommunications Act [Chapter 12:05] that Regulatory Order No.1 of 2015 and special licence and concomitant dispensations imposed by the Postal and Telecommunications Regulatory Authority of Zimbabwe (POTRAZ) be and are hereby suspended.

2. That, pending finality to the appeal process, as provided by the Posts and Telecommunications Act [Chapter 12:05] applicant shall not dispose of any movable assets or infrastructure without notice to the 1st, second, and third respondents.

3. That, there be no order as to costs.

INTERIM RELIEF (GRANTED)

Pending determination of this matter, the applicant is granted the following relief:

(a) That, first to third respondents be and are hereby interdicted from in any way of (sic) interfering with the normal business activities of the applicant pursuant to the provision of its telecommunication services and related business activities to the public and its subscribers in Zimbabwe.

(b) The dispensation time periods mentioned in Regulatory Order No.1 of 2015 and the cancellation of applicant's licence be and are hereby suspended until such time as there has been a final determination of (sic) a final order sought in terms of this application.”

In its founding affidavit, deposed to by Angeline Vere, its General Manager, the applicant states, that, after all its attempts to reduce its foreign shareholding to a level acceptable to the first respondent were rejected by the latter, which retains the exclusive right of approval in terms of clause 12 of the licence, the first respondent resorted to the drastic action of cancelling the licence on terms set out in the Regulatory Order aforesaid.

Clause 12 of the licence provides:

“12.1 Ownership

12.1.1 Foreign Investment and Shareholding Structure

1. The holder of this licence must be incorporated in Zimbabwe. The licencee shall ensure that the foreign ownership shall be limited to forty-nine percent (49%).

2. Changes in the shareholding structure, at any stage, must be approved by the Authority before it is effected.

3. In the event that the licencee's initial shareholding structure does not conform to the provisions of clause 12.1.1.1 the licencee shall, within five (5) years from date of signing of the licence, ensures (sic) that the foreign ownership is reduced to forty nine percent (49%.).”…,.

Over the years, the applicant has tried to comply by introducing a new partner to assume ownership of the 11 per cent balance of the 60 per cent shareholding held by the foreign partner, Telecel International Limited (TIL), but, the first respondent either rejected the proposed partner or insisted it had to be approved by the Minister.

At one stage, the applicant was told the 11 per cent shareholding could only be sold to the fourth respondent (Empowerment Corporation (Pvt) Ltd) which holds the other 40 percent stake.

The applicant introduced an Employees Share Ownership Scheme (ESOP) in terms of which its employees would own the 11 per cent shares currently in the hands of Telecel International Limited (TIL) in order to move the shareholding to indigenous people.

This was rejected.

It proposed listing on the Zimbabwe Stock Exchange as another option which was also rebuffed.

Instead, the first respondent cancelled the licence.

The reason given for the cancellation appears in paragraph 1 of the first respondent's “judgment” of 28 April 2015 which reads:

“1. INTRODUCTION

This case concerns Telecel Zimbabwe Limited (hereinafter referred to as 'Telecel') non-compliance with licence conditions, provisions of the Postal Telecommunications Act [Chapter 12:05] (hereinafter referred to as 'the Act') as read with Indigenisation and Economic Empowerment laws. The Postal Telecommunications Regulatory Authority of Zimbabwe (hereinafter referred to as 'POTRAZ') has to determine whether the licence issued to Telecel to provide National Cellular Telecommunication Services should be cancelled or not and issue an appropriate order.”

The applicant stated, that, following the cancellation and the “appropriate order” it has appealed to the second respondent (the Minister of Information, Technology, Postal and Courier Services), the responsible Minister, but, meanwhile, the Regulatory Order remains extant as the appeal does not have the effect of suspending the order appealed against.

Whichever way, it is unlikely that the Minister will dispose of the appeal before the expiration of the period of 30 days it has been given to close shop; a period which is unreasonable in the circumstances given that it employs more than 700 direct employees (at the hearing, counsel for the employees corrected that figure, there are 820 direct employees) whose employment contracts would have to be terminated.

In addition, in terms of the Postal and Telecommunications Act, they are entitled to 28 days during which to lodge an appeal.

The applicant therefore craves the interim relief aforesaid.

While the other respondents did not oppose the application; in fact, counsel for the fourth respondent (Empowerment Corporation (Pvt) Ltd) supported it, and counsel for the second and third respondents (Minister of Information, Technology, Postal and Courier Services N.O. and Chief Secretary in the Office of the President and Cabinet N.O.) had no submissions to make except that the Minister would await the appeal, the first respondent surprisingly opposed the application, vehemently, as if everything depended on the cancellation of the licence and the closure of the applicant....,.

What the applicant seeks is a temporary, interim, or interlocutory interdict.

HOLMES JA set out the requirements for the grant of such an interdict in Ericksen Motors (Welkon) Ltd v Proten Motors, Warrenton and Anor 1973 (3) SA …, (quoted with approval by SANDURA JA in Charuma Blasting and Earthmoving Services (Pvt) Ltd v Njainjai and Ors 2000 (1) ZLR 85 (S)…,.) as:

“The granting of an interim interdict pending an action is an extraordinary remedy within the discretion of the court. Where the right it is sought to protect is not clear, the matter of an interim interdict was lucidly laid down by INNES JA in Setlogelo v Setlogelo 1914 AD 221 at p227. In general, the requisites are:

(a) A right which 'though prima facie established, is open to some doubt'.

(b) A well-grounded apprehension of irreparable injury.

(c) The absence of ordinary remedy.

In exercising its discretion, the court weighs, inter alia, the prejudice to the applicant if the interdict is withheld against the prejudice to the respondent if it is granted. This is sometimes called the balance of convenience.

The foregoing considerations are not individually decisive, but, are interrelated; for example, the stronger the applicant's prospects of success the less the need to rely on prejudice to himself. Conversely, the more the element of 'some doubt' the greater the need for the other factors to favour him….,. Viewed in that light, the reference to a right which 'though prima facie established is open to some doubt' is apt, flexible, and practical, and needs no further elaboration.”

See also Bozimo Trade and Development Co. (Pvt) Ltd v First Merchant Bank of Zimbabwe Ltd & Ors 2000 (1) ZLR 1 (H)…,.

In respect of the establishment of a prima facie right, counsel for the applicant alluded to section 96 of the Postal and Telecommunications Act which gives the applicant a right to appeal the decision of the first respondent to the Minister and to section 71 of the Constitution of Zimbabwe relating to the right to protection of property.

On the other hand, counsel for the first respondent submitted, that, the applicant would not possibly have any right, prima facie or otherwise, when it has been operating outside the law, that is, without compliance with the indigenization laws of this country; which counsel for the applicant countered by submitting, that, the Indigenisation and Economic Empowerment Act [Chapter 14:33] only came into effect in April 2008 - long after the licence had been issued on 26 June 2002.

Counsel for the fourth respondent (Empowerment Corporation (Pvt) Ltd) brought a new dimension to the issue.

He submitted, that, to the extent that the cancellation is premised on indigenization laws, as stated in the first respondent's “judgment” the cancellation is invalid because the first respondent is not the enforcement authority of the Indigenization and Economic Empowerment Act; the Minister of Youth, Empowerment & Indigenisation is, in terms of section 5 thereof. It is him who initiates the process of cancellation for want of compliance with the Indigenisation and Economic Empowerment Act.

It is not necessary for me to determine all those issues because that is the province of the second respondent when dealing with the appeal. I am sitting only be decide whether a case had been made for an interim interdict.

I think it has been.

Section 96(1) of the Postal and Telecommunications Act [Chapter 12:05] provides:

“Subject to this section, any person who is aggrieved by -

(a) A decision of the Authority not to issue a licence or certificate; or

(b) Any term or condition of a licence issued to him, or a refusal by the Authority to specify a term or condition in a licence; or

(c) A refusal by the Authority to review a licence or certificate; or

(d) Any amendment of a licence or a refusal by the Authority to amend a licence; or

(e) The suspension or cancellation of a licence; or

(f) The grant or refusal to grant any approval or authority in terms of this Act; or

(g) The outcome of any mediation by the Authority of a dispute between licensees; or

(h) Such decision of the Authority as may be prescribed;
may, within twenty eight days after being notified of the decision or action of the Authority concerned, appeal, in writing, to the Minister, submitting with his appeal such fee as may be prescribed;

Provided that such appeal shall not suspend the operation of any licence or certificate issued by the Authority.”

After cancelling the applicant's licence, the first respondent issued a special licence, effective from 28 April 2015 to 26 May 2015, to facilitate only the winding up of the applicant's operations - presumably including the termination of the employment contracts of 820 employees.

Such termination would ordinarily require three (3) months notice, where there are good grounds, in terms of the Labour laws of this country.

The applicant cannot lawfully employ those employees after 26 May 2015.

All that against the backdrop of the applicant's right of appeal to the Minister, which right subsists until the expiration of 28 days, on 28 May 2015, if one includes weekends and public holidays.

By the time the applicant's right of appeal expires, the applicant would have closed down in terms of the Regulatory Order.

What that means, therefore, is that the Regulatory Order effectively obliterates the applicant's right of appeal reposed to it by section 96 of the Postal and Telecommunications Act.

Clearly, therefore, that Regulatory Order is not only unreasonable in the extreme in its effect, it also infringes upon the right of appeal given to the applicant by the Postal and Telecommunications Act. That right has been taken away.

More importantly, there is the possibility that the Minister may take a while to determine the appeal. There is no time limit given by the Postal and Telecommunications Act for him to determine an appeal.

Subsection (3) of section 96 of the Postal and Telecommunications Act only requires him to make an order on appeal “after due and expeditious inquiry.”

A precedent has already been set in that regard.

When the applicant appealed another cancellation by the first respondent, in August 2007, the Minister took almost three (3) years to determine the appeal.

In terms of section 68 of the Constitution, the applicant has a right to administrative conduct that is lawful, prompt, efficient, reasonable, proportionate, impartial, and both substantively and procedurally fair.

In terms of section 69 of the Constitution, it has a right to a fair hearing in the determination of its civil rights.

Those rights cannot be derogated from at the whim of an impatient and overzealous regulatory authority.

The concept of administrative justice is now embedded in our Constitution. It provides the skeletal infrastructure within which official power of all sorts, affecting individuals, must be exercised. The elements are:

1. Lawfulness, in that official decisions must be authorised by statute, prerogative, or the Constitution.

2. Rationality, in that official decisions must comply with the logical framework created by the grant of power under which they are made.

3. Consistency, in that official decisions must apply legal rules consistently to all those to whom the rules apply.

4. Fairness, in that official decisions should be arrived at fairly; that is, impartially in fact and appearance, giving the affected persons an opportunity to be heard.

5. Good faith in the making of decisions, in that the official must make the decision honestly and with conscientious attention to the task at hand having regard to how the decision affects those involved.

Where an administrative authority makes a decision which renders nugatory the right of the affected party to appeal, that decision cannot be said to accord with the dictates of administrative justice which I have set out above. It cannot be rational neither can it be fair, and, in fact, borders on unlawfulness.

I therefore entertain no doubt, that, the requirements of an interdict have been met.

The applicant does have a prima facie right to appeal which has been curtailed, if not negated. There has been an infringement of that right, which, if allowed to perpetuate, would adversely prejudice the applicant and its employees. It would have to close before it has exhausted remedies available to it.

In weighing the balance of convenience, as I am required to do, I can conceive of no prejudice that may be sustained by the first respondent, except for a wounded ego, which perhaps is the only reason why it chose to oppose the application.

It is a truism, that, the first respondent has acted in an overzealous and precipitate manner without regard to the rights of stakeholders in this matter. It has in fact proceeded roughshod over the rights of those that it is sworn to superintend, and, in so doing, it has created a train smash of gigantic proportions.

It is for these reasons that I granted the provisional order, as amended, the interim relief of which is in the following:

“INTERIM RELIEF GRANTED

Pending determination of this matter, the applicant is granted the following relief:

(a) That, first to third respondents be and are hereby interdicted from in any way interfering with the normal business activities of the applicant pursuant to the provision of its telecommunication services and related business activities to the public and its subscribers in Zimbabwe.

(b) The dispensation time periods mentioned in Regulatory Order No.1 of 2015 and the cancellation of applicant's licence be and are hereby suspended until such time as there has been a final determination or a final order sought in terms of this application.”

HMT29-20 : THE TRUSTEES OF THE ARDA-TRANSAU RELOCATION DEVELOPMENT TRUST vs ZIMBABWE ELECTRICITY TRANSMISSION AND DISTRIBUTION COMPANY (ZETDC) (PVT) LTD
Ruled By: MWAYERA J

A raft of measures meant to comply with the World Health Organisation (WHO) guidelines on the prevention, containment, and treatment of Coronavirus disease, commonly known as COVID 19, prompted the Minister of Health and Child Care, and, indeed, the Government of Zimbabwe to make an order for National lockdown under Statutory Instrument 83 of 2020, SI83 of 2020, on 28 March with effective date of operation 30 March 2020.

The Order, among other important provisions, provides that the supply of water and electricity services are critical and essential services.

The virus is real and indeed a menace as evidenced by reports of the numbers of the infected and dead. Zimbabwe has not been spared by this invisible but real enemy wreaking havoc among the rich and the poor without distinction by colour, creed, or age.

At the time of hearing, nine (9) recorded cases had been confirmed and one (1) death recorded in Zimbabwe. South Africa had 1,505 positive cases and 9 deaths. Globally, there were 1,051,697 positive cases and 56,986 deaths: see Situation Report 75 - World Health Organisation www.who.int/emergencies/diseases/novel-coronavirus-2019/situation-reports

Bearing in mind the emphasis on personal hygiene, anchored on the need to regularly wash hands with clean running water and soap, the applicants jostled into action.

The applicants had no water supply since the Zimbabwe Water Supply pumps supplying the household with water for community consumption had been rendered dry by disconnection of electricity.

World over, including our neighbour South Africa, news reported increase in numbers of infected people and deaths due to the formidable pandemic.

The applicants, faced with COVID-19 outbreak and threat without running tap water due to ZESA power cut to the ZINWA outlet which supplies them with water, approached this court through the urgent chamber book. The applicant sought:

“TERMS OF THE FINAL ORDER SOUGHT

1. That the Respondent provides electricity supply services to the Zimbabwe National Water Authority water pumps within Arda–Transau community for the duration of the state of disaster subject to the load shedding schedule.

2. No order as to costs.

TERMS OF THE INTERIM ORDER SOUGHT

1. That the Respondent immediately restores electricity supply services to the Zimbabwe National Water Authority water pumps within Arda–Transau community.”

The respondents were properly served but did not respond or appear.

The brief history of the matter is as follows:

The applicant (trustees of the Trust) represent the interests and rights of the Trust; its members and beneficiaries relocated from Chiadzwa diamond fields in Marange and now reside in ARDA TRANSAU.

The relocation occurred between 2010 and 2016.

From inception of relocation up to 2019 December, the mining companies that relocated their families have been responsible for paying for electricity supply to the respondent. The electricity supply powered water pumps installed by the Zimbabwe National Water Authority for water supplies to the relocated families. The mining companies, namely, Anjin Diamond Mining Company, Mbada Diamonds Housing, Jinan Mining, Marange Resources, and Zimbabwe Consolidated Diamond Company paid in full for the power utility bills.

Upon the ceasation or discontinuity of the complete subsidization of power utility bills by the mining companies, the community struggled to pay for the electricity consumption bills.

This culminated in a cumulative debt of ZW$30,000 owing to the respondent, ZESA.

Consequently, the respondent rightfully discontinued the supply of electricity to the community for none payment of electricity bills. The disconnection inevitably means no supply of tap water to the community.

On the face of it, this is self-created urgency stemming from non-payment of ZESA bills; but, the question is:

Is it really self created urgency given the background history of being relocated and having mining companies pay the ZESA bills and then stopping?

The problem was not the villagers own making.

Upon considering whether or not a matter is urgent, the settled factors which fall for consideration should never be looked at in isolation, neither should they be dissociated from the history and all circumstances of the cause.

Looking at requirements of urgency in isolation would lead to erroneous view of the status of the matter.

The immediate factors giving rise to this urgent application fall under scrutiny.

On 30 January 2020, the World Health Organisation (WHO) declared Coronavirus Disease – 2019, generally known as COVID19, a Public Health Emergency of International Concern: see http//:www.who.int

Pursuant to the declaration, the World Health Organisation (WHO) set guidelines for all countries to curb and control the outbreak of the disease, and, among other important measures, is the critical requirement that individuals must regularly wash hands with clean running water and soap-based substances, and, further, that people must maintain social distancing for about a metre from the next person in order to minimize the risk of transfer of the virus disease.

The Zimbabwean Government, in response, is no exception as it declared, through Presidential action, a State of Disaster (the Civil Protection (Declaration of State of Disaster) Rural and Urban Areas of Zimbabwe (COVID 19) Notice 2020), and, consequently, a National Lockdown, to contain the spread of COVID19 (the Public Health (COVID-19 Prevention, Containment and Treatment (National Lockdown) Order 2020).

In an effort to give effect to the World Health Organization (WHO) guidelines to contain the spread of COVID 19 and protect citizens, the Government of Zimbabwe, in terms of S.I.83 of 2020 banned gatherings of more than two persons in public places and declared water and electricity supply services as essential services….,.

Water and electricity are critical services; however, at the time of hearing, both are lacking to the applicants despite being also part of all the other citizens in the declared state of disaster occasioned by the outbreak of COVID 19.

The circumstances are clear, that, the applicants do not have clean and regular water supply because of electricity disconnection to the Zimbabwe National Water Authority (ZINWA). This naturally poses a threat to personal hygiene during the lockdown period, and, worse still, spells doom to the intended containment of the national disaster, and would be further obstructive to the global efforts to successfully fight against this deadly scourge pandemic, COVID 19.

The case cries out for urgent redress, and, indeed, spells out and clearly meets the requirements of urgency as contemplated by the Rules of this court.

The applicant acted with agility as they set out to file the application upon the publication of water and electricity as an essential commodity. The publication was on 28 March 2020 and 3 April the applicants were at court.

They undoubtedly treated the matter as urgent: see Madzivanzira and Ors v Dexprint (Pvt) Ltd and Anor HH245-02.

Secondly, there is no other remedy except seeking redress with the court for connection of electricity to the Zimbabwe National Water Authority (ZINWA) pipes for water to be availed.

The applicants have accrued a debt through the diamond companies under whom they were resettled. The long term solution, of awaiting for repayment of debt, would occasion irreparable harm not only to the applicants but the national and global village.

Critically, the none availability of water disrupt the efforts to contain the spread of COVID 19.

There will be no irreparable harm occasioned to the respondents because the applicants are not seeking to be exonerated from the debt, neither are they seeking the debt to be written off, but, are seeking an interim relief for restoration of electricity supply to the Zimbabwe National Water Authority (ZINWA) pumps for them to access clean and portable water for personal hygiene during the lockdown period only.

The urgent relief sought is the only remedy that will satisfactorily redress the dire circumstances of the applicants.

A matter is viewed as urgent if circumstances depict it cannot wait, as waiting and dealing with the matter later would render the relief sought hollow or useless.

In this case, at the time of hearing, the deadly pandemic outbreak was causing havoc the world over. This jurisdiction declared it a disaster, and water and electricity supply were termed critical or essential services.

To have the matter wait and proceed on the ordinary roll would amount to a reactive reaction post event. That would not serve any purpose.

In this matter, the circumstances and the prevailing situation speak volumes to the extreme urgency of the matter. This is a case which apparently denotes urgency from the cause of action and nature of relief sought: see Document Support Centre (Pvt) Ltd v Mapuvire 2006 (2) ZLR 240 H.

In the present case, the matter is fully clothed and colored with urgency.

The balance of convenience lean in favour of granting the interim relief sought.

Accordingly, the interim relief sought is granted.

HH987-15 : NEHANDA HOUSING CO-OPERATIVE SOCIETY and OTHERS vs SIMBA MOYO and OTHERS
Ruled By: MAFUSIRE J

The first applicant was a duly registered co-operative society. The parties to this matter were two factions of its membership.

The one faction comprised applicants 2 to 6 (Never Kowo, Keri Mhute, Andrew Marauka, Charles Matapo and Jotamu Nkala).

The other was respondents 1 to 5 (Simba Moyo, Enesia Gutu, Elizabeth Gutu, Lloyd Hamamuti and Austin Hove).

Both sides were fighting for the control of the first applicant (Nehanda Housing Co-operative Society).

Both claimed to be the legitimate management committee of the first applicant. Both claimed to have been duly installed in office following due process.

For applicants 2 to 6, their claim to office was an alleged election allegedly won by them in September 2014. For the respondents, their claim to office was an alleged vote of no confidence against applicants 2 to 6 allegedly passed by the majority of the first applicant's members in April 2015.

The case before me was the return date of a provisional order issued by this court [per TAGU J] on 27 June 2015. It read [words in parenthesis added to somewhat straighten it out]:

“TERMS OF [FINAL] ORDER SOUGHT

That you show cause to this Honourable Court why a final order should not be made on the following terms:

1. That 1st to 5th respondents be and are hereby interdicted, restrained, and barred from conducting themselves as the managing committee of the 1st applicant pending the finalization of the Supreme [Court] Case No. SC267/15.

2. The 1st to 5th respondents jointly and severally with [the] one paying [and] the other[s] to be absolved be and are hereby ordered to pay [the] cost[s] of this application [on an] attorney and client scale.

INTERIM RELIEF GRANTED

1. Pending the finalization of this provisional order, the 1st to 5th respondents be and are hereby interdicted, barred, and restrained from holding any meetings for the purposes of running or deliberating on the management/or affairs of the applicants.”

During argument, it was apparent to me, that, the fight had nothing to do with the interests of the first applicant per se. It had everything to do with the protection of individual interests and the preservation of egos.

The interests of the first applicant seemed to have been consigned to the periphery.

Even though both sides purported to canvass the requirements for an interdict, namely, a prima facie or clear right; a well-grounded apprehension of an irreparable harm; an absence of an alternative remedy; and the balance of convenience should the interdict be granted or refused [see Setlogelo v Setlogelo 1914 AD 221…,.; Tribac (Pvt) Ltd v Tobacco Marketing Board 1996 [1] ZLR 289 [SC]…,; and Universal Merchant Bank Zimbabwe Ltd v The Zimbabwe Independent & Anor 2000 [1] ZLR 234 [H]…,.] it was clear to me, that, this was a mere perfunctory exercise.

I wondered how, if the focus of the legal contest was really the first applicant, either of the parties could legitimately claim a right that could be harmed irreparably, with no other alternative remedy and how the balance of convenience could be said to favour either of them were I to confirm or discharge the provisional order.

It was just not adding up.

But, the protagonists having come to court, the outcome would have to be either win or lose, for one or other of them....,.

The second requirement for an interdict is a reasonable apprehension of an irreparable harm or injury.

In my view, it was somewhat preposterous to suggest, that, there was a reasonable apprehension of an irreparable harm if an interdict was not granted to restrain the respondents from holding themselves out as the management committee of the first applicant.

The fear of an irreparable harm or injury should have been in relation to the first applicant, the juristic person - not applicants 2 to 5 personally.

The nature of the harm was not identified, let alone the manner in which it could be said to be irreparable.

If the fear of harm was in relation to the applicants 2 to 5 personally, then, all the more reason why the application had to fail:

(i) Firstly, the dispute could not have been about themselves personally.

(ii) Secondly, and as I have already said, the nature of such harm, and the respects in which it would be irreparable, were not at all spelt out.

(iii) Thirdly, it was the respondents that actually adverted to some form of harm to the first applicant if the applicants, 2 to 5, remained in office. The respondents averred, in their notice of opposition, attaching the minutes of the meeting of 25 April 2015, that the applicants 2 to 5 had been removed from office because of their repeated mismanagement of the funds, assets, and affairs of the first applicant. They argued that returning applicants 2 to 5 to office would be a licence for them to continue embezzling the first applicant's funds.

So, on this second ground, again, there was no basis for applicants 2 to 5 seeking an interdict against the respondents.

The third requirement for an interdict is the absence of an alternative remedy.

In casu, there was an alternative remedy. Co-operative societies are governed by the Co-operative Societies Act. There is a dispute resolution mechanism set up by that Act.

Section 115 of the Co-operative Societies Act reads as follows:

“115 Settlement of Disputes

[1] If any dispute concerning the business of a registered society arises —

[a] Within the society, whether between the society and any member, past member or representative of a deceased member, or between members of the society or the management or any supervisory committee; or

[b]…,.;
and no settlement is reached within the society…, the dispute shall be referred to the Registrar for decision.

[2]…,.

[3] Where a dispute has been referred to him in terms of subsection [1], the Registrar may —

[a] Settle the dispute himself; or

[b] Refer the dispute for settlement to an arbitrator or arbitrators appointed by him; or

[c] Refer the dispute to the Minister for decision.

[4] For the purpose of settling a dispute in terms of paragraph (a) of subsection (3), the Registrar may exercise any of the powers conferred on him under section one hundred and fourteen.

[5] The Arbitration Act [Chapter 7:02] shall apply in relation to any reference of a dispute to an arbitrator, or arbitrators, in terms of paragraph (b) of subsection (3).

[6] Any person aggrieved by a decision made by —

[a] The Registrar, in settling a dispute in terms of paragraph (a) of subsection (3); or

[b] An arbitrator or arbitrators appointed in terms of paragraph (b) of subsection (3);
may appeal to the Minister within sixty days after being notified of the decision, and the Minister may confirm, vary, or set aside the decision appealed against or make such other order in the matter as he thinks appropriate.

116 Appeals to Administrative Court

[1] Any person aggrieved by a decision made by the Minister in terms of this Act may appeal against it to the Administrative Court within two months after being notified of the decision.

[2] For the purpose of hearing appeals in terms of this Act, the Administrative Court shall consist of a President of the Court and two assessors appointed by the Minister from a list of not fewer than ten persons who have been nominated by apex organizations and who are suitable for appointment from their experience in co-operative matters.

[3] Subject to the Administrative Court Act [Chapter 7:01] the Administrative Court may, in any appeal, confirm, vary, or set aside the decision appealed against or make such other order in the matter as the Court thinks just.”

With such an elaborate dispute resolution mechanism, it could not possibly lie in the mouth of the applicants to say that there was no other alternative remedy.

So, on this third ground, again, the application for an interdict could not succeed.

The fourth requirement for an interdict is for an applicant to establish, that, the balance of convenience lies in its favour if the interdict is granted.

In casu, the applicants failed to show this.

Both sides claimed to be the legitimate management committee of the first applicant. In their opposing affidavit, the respondents claimed that they were effectively in control since the alleged passing of the vote of no confidence in April 2015. In the answering affidavit, the applicants strenuously denied this. In paragraph 4[ii] of Andrew Marauka's affidavit, they said:

“…,. [A]t no stage did the Respondents occupy the offices of the 1st Applicant or attempt to run its affairs as alleged. It is further denied that the respondents are the sitting management committee of the 1st Applicant and whatever meeting they hold purporting to represent the interest of the 1st Applicant are a nullity.”

This was rather confusing.

If the respondents had, at no stage, occupied the offices of the first applicant, or even attempted to run its affairs, then, what had been all the fuss about? What reasonable apprehension of an irreparable injury had the applicants perceived?

Why on earth had they ever come to court?

But, on the contrary, it seemed to me, that, on a balance of probabilities, the respondents must have assumed effective control of the first applicant's affairs. That must have been what had stung the applicants into action.

If that was the case, then, the balance of convenience favoured the status quo remaining until the applicants appeal had been determined by the Supreme Court.

But, even if that was not the case, the applicants could still not succeed on this ground because it was not established.

The onus lay on them.

SC09-22 : MOVEMENT FOR DEMOCRATIC CHANGE (TSVANGIRAI) and DOUGLAS MWONZORA and DR THOKOZANI KHUPE vs LILIAN TIMVEOS and THABITHA KHUMALO and OTHERS
Ruled By: GUVAVA JA, MAKONI JA and CHITAKUNYE JA

This is an appeal against the whole judgment of the High Court handed down on 1 June 2020 granting an interdict in favour of the first and second respondents (Lilian Timveos and Thabitha Kuhumalo).BACKGROUNDOn 3 April 2020, the second appellant (Douglas Mwonzora), in his capacity as Secretary General of the ...

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

BACKGROUND

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

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

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

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

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

The provisional order they sought was couched as follows:

“TERMS OF FINAL ORDER SOUGHT

It is ordered that:

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

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

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

INTERIM RELIEF SOUGHT

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

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

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

PROCEEDINGS IN THE COURT A QUO

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

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

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

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

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

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

Further, he averred that the matter was not urgent.

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

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

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

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

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

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

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

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

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

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

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

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

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

The court a quo dismissed all the points in limine.

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

It further held that the matter was urgent.

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

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

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

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

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

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

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

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

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

The order granted reads as follows:

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

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

SUBMISSIONS BEFORE THIS COURT

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

The grounds that remained pertained to:

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

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

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

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

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

As regards the citation of the Chairperson of the Zimbabwe Electoral Commission (ZEC) and not ZEC, counsel for the appellants submitted that the court a quo also erred in finding that the joinder of the Zimbabwe Electoral Commission was not necessary and the non-joinder was not fatal.

He also submitted, that, the court a quo erred in law in not finding that it had no jurisdiction to interdict a lawful process, namely, that it could not interdict the filling of vacancies that have arisen by operation of law.

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

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

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

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

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

Regarding the citation of the Chairperson of the Zimbabwe Electoral Commission (ZEC) instead of ZEC, counsel insisted that the citation or joinder of the Zimbabwe Electoral Commission was not necessary, and failure to do so was not fatal, as no order was made against it.

Counsel for the third and fourth respondents (Speaker of the National Assembly and President of the Senate) had no submissions to make save to indicate that his clients would abide by the decision of the court.

Counsel for the fifth respondent (Chairperson of the Zimbabwe Electoral Commission) indicated that whilst his client would abide by the court's decision, there was, however, an unsatisfactory position of the law regarding whether the Zimbabwe Electoral Commission (ZEC) should have been cited or not.

In this regard, he alluded to section 14 of the Electoral Act as amended by Act 3 of 2012 and Shumba & Anor v ZEC & Anor 2008 (2) ZLR 65 (S).

He juxtaposed these with section 4A of the Electoral Act as amended by Act 3 of 2012 on the corporate status of the Zimbabwe Electoral Commission (ZEC) and the Constitution of Zimbabwe Amendment (No.20) Act of 2013 which provides corporate status for independent commissions, of which ZEC is one.

ISSUES FOR DETERMINATION

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

The issue of citation is only pertinent in as far as it is necessary to bring to the fore the inconsistency alluded to.

The issues for determination may thus be restricted to:

(i) Whether or not the order granted by the court a quo was proper in the circumstances.

(ii) Whether or not the court a quo erred in finding that the citation of the chairperson of the Zimbabwe Electoral Commission (ZEC) was proper and that non-joinder of the Zimbabwe Electoral Commission, as a party, was not fatal to the proceedings as it was not necessary in terms of section 14 of the Electoral Act.

APPLICATION OF THE LAW TO THE FACTS

1. WHETHER OR NOT THE ORDER GRANTED BY THE COURT A QUO WAS PROPER IN THE CIRCUMSTANCES

The appellants counsel submitted, that, the order granted by the court a quo was not in sync with the relief that the first and second respondents had approached the court for.

The order was not a provisional order at all and should not have been granted.

The appellants counsel submitted, that, the first and second respondents, in the urgent chamber application, had only established a prima facie case.

Counsel for the first and second respondents conceded, that, whilst his clients approached the court a quo seeking a provisional order, the court a quo granted a final order. He, in effect, conceded that the respondents had set out to establish a prima facie case for the grant of the interim relief.

That the order granted is not the one the first and second respondents sought is thus common cause.

In our view, in dealing with this case, it is necessary to restate the law relating to the grant of interdicts.

It is a settled principle, that, for a party to be entitled to an interdict, he or she has to satisfy the court that their particular case favours such with regards to the requirements for the granting of the interdict.

An interdict is a summary court order, usually issued upon application, by which a person is ordered either to do something, stop doing something, or refrain from doing something in order to stop or prevent an infringement of a certain right.

The requirements for an interim interdict were set out in Setlogelo v Setlogelo 1914 AD 221…, as:

“(i) A prima facie right, even if it be open to some doubt;

(ii) A well-grounded apprehension of irreparable harm if the relief is not granted;

(iii) That the balance of convenience favours the granting of an interim interdict;

(iv) That there is no other satisfactory remedy.”

If the above conditions are met, then, the court may grant the provisional order sought and provide for a return date for the parties to then make arguments on whether or not the final order sought can be granted.

On the return day, a party ought to establish a clear right as opposed to a prima facie right.

The requirements for a final interdict, on the other hand, are:

(i) A clear right;

(ii) Irreparable harm actually committed or reasonably apprehended; and

(iii) The absence of an alternative remedy.

In HERBSTEIN and Van WINSEN, The Civil Practice of the High Courts and the Supreme Court of Appeal of South Africa, 5th Ed 2009…, the authors, whilst noting the difficulty in defining the term 'clear right' acknowledged that:

“What is meant by the phrase is a right clearly established; that the word 'clear' relates to the degree of proof required to establish the right and should strictly not be used to qualify 'right' at all;…, a clear right must be established on a balance of probabilities.”

From the authorities, it is clear that where a final interdict is sought, the right must be established clearly as opposed to it being prima facie established.

Thus, the word 'clear' in the context of rights in an interdict does not qualify the right but rather expresses the scope to which the right has been established by evidence on a balance of probabilities.

A prima facie case, on the other hand, does not have to be established on a balance of probabilities but can be granted even though open to doubt.

A provisional order granted on the basis of a prima facie case affords the parties opportunity to fully argue their case on the return date.

In Blue Rangers Estate (Pvt) Ltd v Muduwiri SC29-09, this Court aptly stated that:

“For an order to have the effects of an interim relief, it must be granted in aid of, and as ancillary to the main relief which may be available to the applicant on final determination of his or her rights in the proceeding.”

It is thus important to ascertain whether the order being granted affords the parties that opportunity to argue on the main relief that has to be proved on a balance of probabilities in the proceedings before that court.

As the basis upon which the interim and the final order are granted are different, it follows, that, where the relief being sought as an interim interdict has essentially the same effect as the final order, such is generally improper.

The grant of an interim relief, which is essentially the same as the final relief, would lead to that order being set aside.

In Registrar General of Elections v Combined Harare Residents Association & Anor SC07-02…, CHIDYAUSIKU CJ succinctly stated the position as follows:

“On that basis also, I would set aside the interim relief granted by the court a quo. In my view, the relief sought and granted in the draft interim order is the same as that sought on the return day.

Where the relief sought as interim relief is essentially the same as the relief sought on the return day, the court's correct approach should be to proceed by way of an urgent court application seeking final relief: see Econet v Mujuru HH58-97.”

In casu, the court a quo misdirected itself in granting a relief that had not been sought and which required no return date when all that the first and second respondents had established was a prima facie case and not a clear right on a balance of probabilities.

It is common cause that the first and second respondents approached the court a quo seeking an interim relief as outlined above. The only amendment they made was to abandon the paragraph interdicting the Zimbabwe Electoral Commission. Thus, their draft order remained as before save for the removal of paragraph 2 of the interim relief.

Thus, whilst the first and second respondents sought interim relief pending the confirmation or discharge of the provisional order on the return day, the court a quo went on a frolic of its own and granted them a final order that they had not asked for.

In doing so, the court simply plucked paragraph 2 of the draft final order and embellished it with verbosity after which it granted the order under the pretext that it was a provisional order.

The order granted did not require a return day and had no incentive for the parties to seek to come to court on a return date as it was granted pending the conclusion of other cases with their own procedures that were yet to be finalised.

The effect of the order is that the first and second respondents obtained a final order, in this matter, on merely establishing a prima facie case.

There was nothing to return to court for at all.

Where the order does not provide for a return date, it is a final order as regards those proceedings and such must only be granted where a clear right has been established on a balance of probabilities.

In Nzara & Others v Kashumba & Others SC18-18 this Court reiterated the need for a court to adhere to issues placed before it and not to go on a frolic of its own on issues not motivated by the parties. At page 13-14 of the cyclostyled judgment, the court aptly stated that:

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

This position has become settled in our law.

Each party places before the court a prayer he or she wants the court to grant in its favour. The Rules of court require that such an order be specified in the prayer and the draft order. These requirements of procedural law seek to ensure that the court is merely determining issues placed before it by the parties and not going on a frolic of its own.

The court must always be seen to be impartial and applying the law to facts presented to it by the parties in determining the parties issues.

It is only when the issues or the facts are not clear that the court can seek their clarification to enable it to correctly apply the law to those facts in determining the issues placed before it by the parties.

The judgment of the court a quo unfortunately fell short of these guiding principles.

In seeking to find middle ground, the court a quo granted orders which had not been sought by either party. It granted the first and fourth respondents a further grace period and a referral to arbitration. The first and fourth respondents had not sought such orders.

Such orders cannot be sustained at law….,.

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

In casu, in granting an order whose genesis is in paragraph 2 of the draft final order, the court a quo indirectly accepted, that, the interim relief sought was essentially the same as the final relief despite its earlier ruling that the two were not the same.

The court a quo found itself entangled in a web of uncertainty on what order to give.

In the process, it considered factors not placed before it and granted an order which was final in effect without seeking the input of the parties on the order it intended to grant as this order was materially different from the order sought and upon which the parties had argued.

Whilst Rule 240 of the High Court Rules 1971 provided, that, in granting an order, the court may vary the order, this is not a licence to substitute a provisional order sought by a litigant with a final order.

Any variation of the order sought must still leave the order granted as a provisional order subject to confirmation or discharge on the return date.

The order was thus improper and cannot stand. It must be set aside.

In view of this irregularity, there is no proper appeal before us....,.

In terms of section 25 of the Supreme Court Act [Chapter 7:13] this Court may review proceedings where it finds that an irregularity was committed.

The court a quo erred and misdirected itself in granting an order that had not been sought by the parties. The order must be set aside.

Accordingly, it is ordered as follows:

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

2. In the exercise of the court's review powers, in terms of section 25 of the Supreme Court Act [Chapter 7:13], the judgment of the court a quo, in case number HC2527/20, be and is hereby set aside.

SC29-22 : TECHNOIMPEX JSC vs RAJENDRAKUMAR JOG and TECHNOIMPEX JC (PVT) LTD and SARAH HWINGWIRI and REGISTRAR OF DEEDS and SHERIFF OF THE HIGH COURT OF ZIMBABWE
Ruled By: GUVAVA JA, UCHENA JA and KUDYA AJA

This is an appeal against the whole judgment of the High Court dated 13 August 2020, striking off the roll the appellant's application for rescission in HC6771/19 of a default judgment granted in favour of the respondents in HC12074/16 and granting a consent order which dismissed an interdict granted against the respondents in HC6784/19.

At the hearing of the appeal, counsel for the first respondent (Rajendrakumar Jog) and counsel for the second and third respondents (Technoimpex JC (Pvt) Ltd and Sarah Hwingwiri) raised points in limine on the validity of the appellant's Notice of Appeal.

They submitted, that, there is no valid appeal before the court because the appeal was noted without leave of the court against an interlocutory order and was also noted against a consent order.

This judgment is restricted to the determination of these preliminary points.

FACTUAL BACKGROUND

The facts of the case can be summarised as follows:

The appellant (Technoimpex JSC) is a company duly incorporated in terms of the laws of Bulgaria. It is the registered owner of an immovable property in Harare, Zimbabwe known as Lot 12 of Lot 15 Block C of Avondale, commonly referred to as Bath Mansions Flats at number 32 Bath Road, Avondale, Harare held under Deed of Transfer number 1657/89.

In case number HC6784/19 it applied for an interdict against the first to the third respondents (Rajendrakumar Jog, Technoimpex JC (Pvt) Ltd and Sarah Hwingwiri) who it alleged wanted to steal its property.

The High Court granted the application. In arriving at the decision to grant the provisional order, it said:

“From the history of the matter that I outlined above, the applicant has always been the lawful owner of Bath Mansions Flats. The judgment I referred to (sic) showed he was successful in warding off the efforts of the first and second respondents to steal the property. For that reason, the applicant has a real right in the property. Once the property has been transferred to a third party, the applicant is likely to suffer irreparable harm. In this case, the second respondent has applied for a rates clearance certificate to enable her to transfer title of the property to third respondent. Such harm is apprehended. In my view, the balance of convenience favours the granting of the relief sought until a lasting solution to the saga is found. There is therefore no other effective alternative remedy other than granting the relief sought. The application will succeed and I grant the following order.

IT IS ORDERED THAT:

TERMS OF FINAL ORDER SOUGHT

INTERIM RELIEF:

“1. The 1st Respondent be and is hereby interdicted from transferring Lot 12 of Lot 15 Block C of Avondale commonly known as Bath Mansions Flats, 32 Bath Road Avondale, Harare previously held in favour of Technoimpex JSC under Deed of Transfer No.1657/89 and currently held in favour of 1st Respondent under Deed of Transfer No.1080/2019 and certificate of registered title no.1081/2019 to 3rd Respondent or any other persons.

2. 1st, 3rd, 4th, and 5th Respondents be and are hereby interdicted from transacting on and/or facilitating any process for the transfer of Lot 12 of Lot 15 Block C of Avondale commonly known as Bath Mansions Flats, 32 Bath Road, Avondale, Harare previously held in favour of Technoimpex JSC under Deed of Transfer no. 1657/89 and currently held held in favour of 1st Respondent under Deed of Transfer no. 1080/2019 and certificate of registered title no. 1081/2019 unless with specific leave of the court hearing this matter.

3….,.

4. The Registrar of Deeds and all the Respondents cited herein be and are hereby interdicted from facilitating or passing further transfer of Lot 12 of Lot 15 Block C of Avondale, Harare previously held under Deed of Transfer Number 1657/89 and currently held in favour of 1st Respondent under Deed of Transfer no. 1080/2019 and certificate of registered title no. 1081/2019, commonly known as Bath Mansions Flats, 32 Bath Road, Avondale, Harare.

5. The 1st, 2nd, and 3rd Respondents be and are hereby interdicted from advertising, selling, pledging, ceding, mortgaging, donating or in any way encumbering or alienating Lot 12 of Lot 15 Block C Avondale, Harare.

6. Pending the determination of this matter and High Court Case no. 2012/2018, whichever is the later, the Sheriff of the High Court be and is hereby directed to serve notices, court process, pleadings, orders issued by any person or litigant (sic) be served on Applicant's legal practitioners mentioned in para 3 above.

7. Pending the determination in High Court Case no. HC12074/16 or the application for rescission of default judgment granted in High Court matters HC2972/17 and HC11246/17 whichever will be the later, the Sheriff of Zimbabwe be and is hereby ordered not to carry out any eviction at 32 Bath Road Avondale, Harare in terms of any litigation commenced after 13 September 2016 by any person without the leave of the Court hearing the present matter.”

It is apparent from the provisional order that it had various interdicts protecting the appellant from possible harmful conduct by the first, second, and third respondents.

Appealed
SC31-22 : NMB BANK LIMITED vs FORMSCAFF (PVT) LTD and PENNIWILL (PVT) LTD and RODNEY CALLAGHAN and MILLICENT CALLAGHAN and CHARLES CANNINGS and CLIFFORD JOHNSON and LESLEY BENNET
Ruled By: GARWE JA, PATEL JA and GUVAVA JA

A prima facie case was noted in Fillieks and Others v S [2014] ZAWHC 34 as follows:“Prima facie evidence, in its more usual sense, is used to mean prima facie proof of an issue, the burden of proving which is upon the party giving that evidence. In the absence of ...

SC39-22 : MASIMBA CHARITY HUNI FUELS (PVT) LTD vs NATHAN KADURIRA and MAKONI RURAL DISTRICT COUNCIL
Ruled By: GUVAVA JA, BHUNU JA and MUSAKWA JA

The purpose of an interdict is to prohibit unlawful conduct, to compel the doing of a particular act or to remedy the effects of unlawful conduct: in this respect, see HERBSTEIN and Van WINSEN in The Civil Practice of the High Courts and the Supreme Court of Appeal of South ...

Appealed
SC47-23 : EXMIN SYNDICATE vs LUKE DUBE and PROVINCIAL MINING DIRECTOR, MATEBELELAND SOUTH N.O. and OTHERS
Ruled By: GWAUNZA DCJ, BHUNU JA and MUSAKWA JA

HERBSTEIN Van WINSEN “The Civil Practice of the Supreme Court of South Africa, 4th Ed...,. states:“A mandamente van spolie is a final order although it is frequently followed by further proceedings between the parties concerning their rights to the property in question. The only issue in spoliation applicant ...

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Interim Interdict Pendente Confirmation or Discharge Proceedings re: Approach, Return Date and the Prima Facie Concept

HH36-08 : MASIMBA KUCHERA and MICHAEL MUZA and TAFADZWA RUGOHO vs MINSTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS Ruled By: GUVAVA J

HB46-14 : TOPPERS UNIFORMS PL vs HYDE PARK INVESTMENTS PL and TOTALLY UNIFORMS PL and AHMED ESAT and NKANI KHOZA and ZULEKA ESAT Ruled By: MUTEMA J

HH33-12 : BRIAN JUSTICE ENTERPRISES PL vs H.E.R. (PVT) LTD and NITSA OLYMPIOS and PARIS OLYMPIOS and CHRISTOS VENTURAS and REGISTRAR OF DEEDS Ruled By: HUNGWE J

HH19-07 : PONDORO (PVT) LTD and DOUGLAS TAYLOR-FREME vs MENDE NEMAKONDE and THE MAGISTRATE, CHINHOYI Ruled By: HUNGWE J

HH635-14 : ECONET WIRELESS vs POSTAL AND TELECOMMUNICATIONS REGULATORY AUTHORITY OF ZIMBABWE (POTRAZ) Ruled By: DUBE J

HB88-16 : SOLOMON MHENYU vs RUTH MLAUDZI Ruled By: MATHONSI J

HH198-10 : BIRCH WILLIAMS vs MARIA KATSANDE and DELITTE PRODUCTS (PRIVATE) LIMITED Ruled By: MAWADZE J

HH21-21 : LAZARUS MUCHENJE vs SUSAN M. MUTANGADURA and PAUL MUPFIGA and TENDERO DZVETERO and DR BEAULAH CHIRUME and CHIDO BOKA and NETONE CELLULAR PL Ruled By: MUREMBA J

HH74-16 : TRIANGLE LTD and HIPPO VALLEY ESTATES LTD and MKWASINE ESTATE and THE ZIMBABAWE SUGAR ASSOCIATION EXPERIMENT STATION (PVT) LTD vs ZIMBABWE SUGAR MILLING INDUSTRY WORKERS' UNION and OTHERS Ruled By: MAKONI J

SSC10-21 : ROBERT GUMBURA and OTHERS vs FRANCIS MAPFUMO N.O. and THE NATIONAL PROSECUTING AUTHORITY Ruled By: GWAUNZA DCJ, MAKONI JA and BERE JA

SC18-21 : A. ADAM AND COMPANY (PVT) LTD and SGI PROPERTIES (PVT) LTD and GARABGA NCUBE AND PARTNERS vs GOODLIVING REAL ESTATE (PVT) LTD Ruled By: GUVAVA JA, MAVANGIRA JA and BHUNU JA

View Appeal HH480-21 : EZEKIEL CHINOINGIRA vs BALWEARE HOLDINGS (PVT) LTD and SABRE SERVICES (PVT) LTD Ruled By: MUCHAWA J

Appealed SC25-22 : ELLIOT RODGERS vs PUWAYI CHIUTSI and TENDAYI MASHAMHANDA and REGISTRAR OF DEEDS and SHERIFF OF ZIMBABWE and BARIADE INVESTMENTS PL and LAW SOCIETY OF ZIMBABWE Ruled By: GWAUNZA DCJ, GUVAVA JA and BHUNU JA

View Appeal SC61-21 : COSMA CHIANGWA vs DAVID KATERERE and ROBERT CAMPBELL LOGAN and ISRAEL GUMUNYU and REGISTRAR OF DEEDS and EDMOND CHIVHINGE and MASTER OF THE HIGH COURT Ruled By: BHUNU JA, MATHONSI JA and CHITAKUNYE AJA

Appealed HH122-11 : DAVID KATERERE vs COSMA CHIANGWA and ROBERT CAMPBELL-LOGAN and ISRAEL GUMUNYU and REGISTRAR OF DEEDS and EDMOND CHIVHINGE and MASTER OF THE HIGH COURT Ruled By: MAVANGIRA J

View Appeal HHH458-18 : THE STATE vs KIZITO MUTSURE Ruled By: CHITAPI J and ASSESSORS: BARWA and CHITSIGA

Appealed SC63-21 : GATEWAY PRIMARY SCHOOL and KM RICQUEBOURG N.O. and GATEWAY PRIMARY SCHOOL PARENTS ASSOCIATION vs MARINDA FENESEY and THE SHERIFF OF ZIMBABWE Ruled By: HLATSHWAYO JA, GUVAVA JA and BHUNU JA

View Appeal HH329-17 : MARINDA FENESEY vs GATEWAY PRIMARY SCHOOL and K M RICQUEBOURG N.O. and GATEWAY PRIMARY SCHOOL PARENTS ASSOCIATION and THE SHERIFF OF ZIMBABWE Ruled By: MUSAKWA J

Appealed SC82-21 : TRIANGLE LIMITED and HIPPO VALLEY ESTATES LIMITED vs ZIMBABWE REVENUE AUTHORITY and OTHERS Ruled By: GWAUNZA DCJ, MATHONSI JA and CHITAKUNYE AJA

View Appeal HMA28-20 : TRIANGLE LIMITED and HIPPO VALLEY ESTATES vs ZIMBABWE REVENUE AUTHORITY and OTHERS Ruled By: ZISENGWE J

SC101-21 : EQUITY PROPERTIES (PVT) LTD vs ALSHAMS GLOBAL BVI LIMITED and REGISTRAR OF DEEDS Ruled By: BHUNU JA, UCHENA JA and KUDYA AJA

HB25-15 : DORCAS MHLANGA vs BENJAMIN PHAKATSHANE Ruled By: MUTEMA J and MOYO J

SC105-21 : WALTER MAGAYA vs ZIMBABWE GENDER COMMISSION Ruled By: GOWORA JA, PATEL JA and UCHENA JA

Appealed SC126-21 : PATRICIA DARANGWA vs JULIET KADUNGURE and ANDERSON KADUNGURE and NERIA KADUNGURE and MASTER OF THE HIGH COURT OF ZIMBABWE Ruled By: MAKONI JA, MATHONSI JA and MWAYERA JA

View Appeal HH85-21 : JULIET KADUNGURE and ANDERSON KADUNGURE and NERIA KADUNGURE vs PATRICIA DARANGWA and MASTER OF THE HIGH COURT OF ZIMBABWE (N.O.) Ruled By: CHIRAWU-MUGOMBA J

SC07-17 : CHRIS STYLIANOU and FRED DRIVER AND SONS (PVT) LTD and D.R. HENDRY (PVT) LTD vs MOSES MUBITA AND 25 OTHERS Ruled By: GWAUNZA JA, GUVAVA JA and BHUNU JA

SC138-21 : DIVVYLAND INVESTMENTS (PRIVATE) LIMITED vs DAVID CHIWEZA Ruled By: PATEL JA, GUVAVA JA and BHUNU JA

HB44-15 : RAILWAYS ARTISAN UNIONS vs NATIONAL RAILWAYS OF ZIMBABWE and OTHERS Ruled By: TAKUVA J

HB46-15 : ZENZO NTULIKI vs TIMOTHY SEAN WHITE and OFFICER COMMANDING MATEBELELAND SOUTH PROVINCE and THE SHERIFF OF ZIMBABWE N.O. Ruled By: MOYO J

HH118-18 : PINKSTONE MINING (PVT) LTD and TIMOTHY MATANGI and AFRICAN MILLS & MINERALS (PVT) LTD vs LAFARGE CEMENT ZIMBABWE LTD and MINISTER OF MINES AND MINES DEVELOPMENT Ruled By: ZHOU J

HH11-17 : ANDREW PASCOE vs MINISTRY OF LANDS AND RURAL RESETTLMENT and W. BUNGU and THE ATTORNEY GENERAL N.O. Ruled By: CHITAPI J

HH11-17 : ANDREW PASCOE vs MINISTRY OF LANDS AND RURAL RESETTLMENT and W. BUNGU and THE ATTORNEY GENERAL N.O. Ruled By: CHITAPI J

HMA55-19 : GREAT ZIMBABWE UNIVERSITY vs NESBERT MAREVERWA Ruled By: WAMAMBO J

HMT03-19 : THE TRUSTEES OF THE UNITED MUTARE RESIDENTS AND RATEPAYERS TRUST (UMRRT) vs CITY OF MUTARE and THE MINISTER OF LOCAL GOVERNMENT, PUBLIC WORKS & NATIONAL HOUSING Ruled By: MUZENDA J

HH221-11 : PARTSON ZVANDASARA vs DR M. MAKONESE N.O. (as Chairperson of the Board of Directors of the 2nd respondent) and BELVEDERE NURSING HOME (PVT) LTD Ruled By: MUTEMA J

HH335-14 : ZUWA DAMSON vs LINCOLN USHAMBA Ruled By: TSANGA J

HB29-17 : CLAUDIOUS MANAMELA and BRIGHTON NANGA and SAZIWE DUBE and ENOCK MARUME vs COMMISSIONER GENERAL ZIMBABWE REPUBLIC POLICE and OFFICER ON CHARGE NJUBE POLICE STATION and APOSTOLIC FAITH MISSION OF AFRICA Ruled By: KAMOCHA J

HH125-17 : GRANDWELL HOLDINGS vs ZIMBABWE CONSOLIDATED DIAMOND COMPANY LTD and COMMISSIONER GENERAL, ZIMBABWE REPUBLIC POLICE and MBADA DIAMONDS (PVT) LTD Ruled By: TSANGA J

HH363-13 : TAKANAYI MUREYI vs FORTUNE CHARUMBIRA Ruled By: MTSHIYA J

HH158-17 : THE TRUSTEES OF THE APOSTOLIC FAITH MISSION OF AFRICA vs ZULU ROSEWELL and OTHERS Ruled By: MATANDA-MOYO J

HH269-15 : ELIZABETH MAPURISA and ENESIA GUTU and SIMBA MOYO and RAISHEN MOYO vs NEHANDA HOUSING COOPERATIVE and SUNGAMBERI HOUSING COOPERATIVE Ruled By: BERE J

HH364-15 : TASARA MUGUTI and OTTILIA MUGUTI vs TIAN ZE TOBACCO COMPANY (PVT) LTD and MESSENGER OF COURT Ruled By: MATHONSI J

HH446-15 : TELECEL ZIMBABWE (PVT) LTD vs POSTAL AND TELECOMMUNICATIONS REGULATORY AUTHORITY OF ZIMBABWE (POTRAZ) and MINISTER OF INFORMATION TECHNOLOGY, POSTAL AND COURIER SERVICES N.O. and OTHERS Ruled By: MATHONSI J

HMT29-20 : THE TRUSTEES OF THE ARDA-TRANSAU RELOCATION DEVELOPMENT TRUST vs ZIMBABWE ELECTRICITY TRANSMISSION AND DISTRIBUTION COMPANY (ZETDC) (PVT) LTD Ruled By: MWAYERA J

HH987-15 : NEHANDA HOUSING CO-OPERATIVE SOCIETY and OTHERS vs SIMBA MOYO and OTHERS Ruled By: MAFUSIRE J

SC09-22 : MOVEMENT FOR DEMOCRATIC CHANGE (TSVANGIRAI) and DOUGLAS MWONZORA and DR THOKOZANI KHUPE vs LILIAN TIMVEOS and THABITHA KHUMALO and OTHERS Ruled By: GUVAVA JA, MAKONI JA and CHITAKUNYE JA

SC29-22 : TECHNOIMPEX JSC vs RAJENDRAKUMAR JOG and TECHNOIMPEX JC (PVT) LTD and SARAH HWINGWIRI and REGISTRAR OF DEEDS and SHERIFF OF THE HIGH COURT OF ZIMBABWE Ruled By: GUVAVA JA, UCHENA JA and KUDYA AJA

Appealed SC31-22 : NMB BANK LIMITED vs FORMSCAFF (PVT) LTD and PENNIWILL (PVT) LTD and RODNEY CALLAGHAN and MILLICENT CALLAGHAN and CHARLES CANNINGS and CLIFFORD JOHNSON and LESLEY BENNET Ruled By: GARWE JA, PATEL JA and GUVAVA JA

SC39-22 : MASIMBA CHARITY HUNI FUELS (PVT) LTD vs NATHAN KADURIRA and MAKONI RURAL DISTRICT COUNCIL Ruled By: GUVAVA JA, BHUNU JA and MUSAKWA JA

Appealed SC47-23 : EXMIN SYNDICATE vs LUKE DUBE and PROVINCIAL MINING DIRECTOR, MATEBELELAND SOUTH N.O. and OTHERS Ruled By: GWAUNZA DCJ, BHUNU JA and MUSAKWA JA

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Zimbabwe

HH36-08 : MASIMBA KUCHERA and MICHAEL MUZA and TAFADZWA RUGOHO vs MINSTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS
Ruled By: GUVAVA J

HB46-14 : TOPPERS UNIFORMS PL vs HYDE PARK INVESTMENTS PL and TOTALLY UNIFORMS PL and AHMED ESAT and NKANI KHOZA and ZULEKA ESAT
Ruled By: MUTEMA J

HH33-12 : BRIAN JUSTICE ENTERPRISES PL vs H.E.R. (PVT) LTD and NITSA OLYMPIOS and PARIS OLYMPIOS and CHRISTOS VENTURAS and REGISTRAR OF DEEDS
Ruled By: HUNGWE J

HH19-07 : PONDORO (PVT) LTD and DOUGLAS TAYLOR-FREME vs MENDE NEMAKONDE and THE MAGISTRATE, CHINHOYI
Ruled By: HUNGWE J

HH635-14 : ECONET WIRELESS vs POSTAL AND TELECOMMUNICATIONS REGULATORY AUTHORITY OF ZIMBABWE (POTRAZ)
Ruled By: DUBE J

HB88-16 : SOLOMON MHENYU vs RUTH MLAUDZI
Ruled By: MATHONSI J

HH198-10 : BIRCH WILLIAMS vs MARIA KATSANDE and DELITTE PRODUCTS (PRIVATE) LIMITED
Ruled By: MAWADZE J

HH21-21 : LAZARUS MUCHENJE vs SUSAN M. MUTANGADURA and PAUL MUPFIGA and TENDERO DZVETERO and DR BEAULAH CHIRUME and CHIDO BOKA and NETONE CELLULAR PL
Ruled By: MUREMBA J

HH74-16 : TRIANGLE LTD and HIPPO VALLEY ESTATES LTD and MKWASINE ESTATE and THE ZIMBABAWE SUGAR ASSOCIATION EXPERIMENT STATION (PVT) LTD vs ZIMBABWE SUGAR MILLING INDUSTRY WORKERS' UNION and OTHERS
Ruled By: MAKONI J

SSC10-21 : ROBERT GUMBURA and OTHERS vs FRANCIS MAPFUMO N.O. and THE NATIONAL PROSECUTING AUTHORITY
Ruled By: GWAUNZA DCJ, MAKONI JA and BERE JA

SC18-21 : A. ADAM AND COMPANY (PVT) LTD and SGI PROPERTIES (PVT) LTD and GARABGA NCUBE AND PARTNERS vs GOODLIVING REAL ESTATE (PVT) LTD
Ruled By: GUVAVA JA, MAVANGIRA JA and BHUNU JA

View Appeal
HH480-21 : EZEKIEL CHINOINGIRA vs BALWEARE HOLDINGS (PVT) LTD and SABRE SERVICES (PVT) LTD
Ruled By: MUCHAWA J

Appealed
SC25-22 : ELLIOT RODGERS vs PUWAYI CHIUTSI and TENDAYI MASHAMHANDA and REGISTRAR OF DEEDS and SHERIFF OF ZIMBABWE and BARIADE INVESTMENTS PL and LAW SOCIETY OF ZIMBABWE
Ruled By: GWAUNZA DCJ, GUVAVA JA and BHUNU JA

View Appeal
SC61-21 : COSMA CHIANGWA vs DAVID KATERERE and ROBERT CAMPBELL LOGAN and ISRAEL GUMUNYU and REGISTRAR OF DEEDS and EDMOND CHIVHINGE and MASTER OF THE HIGH COURT
Ruled By: BHUNU JA, MATHONSI JA and CHITAKUNYE AJA

Appealed
HH122-11 : DAVID KATERERE vs COSMA CHIANGWA and ROBERT CAMPBELL-LOGAN and ISRAEL GUMUNYU and REGISTRAR OF DEEDS and EDMOND CHIVHINGE and MASTER OF THE HIGH COURT
Ruled By: MAVANGIRA J

View Appeal
HHH458-18 : THE STATE vs KIZITO MUTSURE
Ruled By: CHITAPI J and ASSESSORS: BARWA and CHITSIGA

Appealed
SC63-21 : GATEWAY PRIMARY SCHOOL and KM RICQUEBOURG N.O. and GATEWAY PRIMARY SCHOOL PARENTS ASSOCIATION vs MARINDA FENESEY and THE SHERIFF OF ZIMBABWE
Ruled By: HLATSHWAYO JA, GUVAVA JA and BHUNU JA

View Appeal
HH329-17 : MARINDA FENESEY vs GATEWAY PRIMARY SCHOOL and K M RICQUEBOURG N.O. and GATEWAY PRIMARY SCHOOL PARENTS ASSOCIATION and THE SHERIFF OF ZIMBABWE
Ruled By: MUSAKWA J

Appealed
SC82-21 : TRIANGLE LIMITED and HIPPO VALLEY ESTATES LIMITED vs ZIMBABWE REVENUE AUTHORITY and OTHERS
Ruled By: GWAUNZA DCJ, MATHONSI JA and CHITAKUNYE AJA

View Appeal
HMA28-20 : TRIANGLE LIMITED and HIPPO VALLEY ESTATES vs ZIMBABWE REVENUE AUTHORITY and OTHERS
Ruled By: ZISENGWE J

SC101-21 : EQUITY PROPERTIES (PVT) LTD vs ALSHAMS GLOBAL BVI LIMITED and REGISTRAR OF DEEDS
Ruled By: BHUNU JA, UCHENA JA and KUDYA AJA

HB25-15 : DORCAS MHLANGA vs BENJAMIN PHAKATSHANE
Ruled By: MUTEMA J and MOYO J

SC105-21 : WALTER MAGAYA vs ZIMBABWE GENDER COMMISSION
Ruled By: GOWORA JA, PATEL JA and UCHENA JA

Appealed
SC126-21 : PATRICIA DARANGWA vs JULIET KADUNGURE and ANDERSON KADUNGURE and NERIA KADUNGURE and MASTER OF THE HIGH COURT OF ZIMBABWE
Ruled By: MAKONI JA, MATHONSI JA and MWAYERA JA

View Appeal
HH85-21 : JULIET KADUNGURE and ANDERSON KADUNGURE and NERIA KADUNGURE vs PATRICIA DARANGWA and MASTER OF THE HIGH COURT OF ZIMBABWE (N.O.)
Ruled By: CHIRAWU-MUGOMBA J

SC07-17 : CHRIS STYLIANOU and FRED DRIVER AND SONS (PVT) LTD and D.R. HENDRY (PVT) LTD vs MOSES MUBITA AND 25 OTHERS
Ruled By: GWAUNZA JA, GUVAVA JA and BHUNU JA

SC138-21 : DIVVYLAND INVESTMENTS (PRIVATE) LIMITED vs DAVID CHIWEZA
Ruled By: PATEL JA, GUVAVA JA and BHUNU JA

HB44-15 : RAILWAYS ARTISAN UNIONS vs NATIONAL RAILWAYS OF ZIMBABWE and OTHERS
Ruled By: TAKUVA J

HB46-15 : ZENZO NTULIKI vs TIMOTHY SEAN WHITE and OFFICER COMMANDING MATEBELELAND SOUTH PROVINCE and THE SHERIFF OF ZIMBABWE N.O.
Ruled By: MOYO J

HH118-18 : PINKSTONE MINING (PVT) LTD and TIMOTHY MATANGI and AFRICAN MILLS & MINERALS (PVT) LTD vs LAFARGE CEMENT ZIMBABWE LTD and MINISTER OF MINES AND MINES DEVELOPMENT
Ruled By: ZHOU J

HH11-17 : ANDREW PASCOE vs MINISTRY OF LANDS AND RURAL RESETTLMENT and W. BUNGU and THE ATTORNEY GENERAL N.O.
Ruled By: CHITAPI J

HH11-17 : ANDREW PASCOE vs MINISTRY OF LANDS AND RURAL RESETTLMENT and W. BUNGU and THE ATTORNEY GENERAL N.O.
Ruled By: CHITAPI J

HMA55-19 : GREAT ZIMBABWE UNIVERSITY vs NESBERT MAREVERWA
Ruled By: WAMAMBO J

HMT03-19 : THE TRUSTEES OF THE UNITED MUTARE RESIDENTS AND RATEPAYERS TRUST (UMRRT) vs CITY OF MUTARE and THE MINISTER OF LOCAL GOVERNMENT, PUBLIC WORKS & NATIONAL HOUSING
Ruled By: MUZENDA J

HH221-11 : PARTSON ZVANDASARA vs DR M. MAKONESE N.O. (as Chairperson of the Board of Directors of the 2nd respondent) and BELVEDERE NURSING HOME (PVT) LTD
Ruled By: MUTEMA J

HH335-14 : ZUWA DAMSON vs LINCOLN USHAMBA
Ruled By: TSANGA J

HB29-17 : CLAUDIOUS MANAMELA and BRIGHTON NANGA and SAZIWE DUBE and ENOCK MARUME vs COMMISSIONER GENERAL ZIMBABWE REPUBLIC POLICE and OFFICER ON CHARGE NJUBE POLICE STATION and APOSTOLIC FAITH MISSION OF AFRICA
Ruled By: KAMOCHA J

HH125-17 : GRANDWELL HOLDINGS vs ZIMBABWE CONSOLIDATED DIAMOND COMPANY LTD and COMMISSIONER GENERAL, ZIMBABWE REPUBLIC POLICE and MBADA DIAMONDS (PVT) LTD
Ruled By: TSANGA J

HH363-13 : TAKANAYI MUREYI vs FORTUNE CHARUMBIRA
Ruled By: MTSHIYA J

HH158-17 : THE TRUSTEES OF THE APOSTOLIC FAITH MISSION OF AFRICA vs ZULU ROSEWELL and OTHERS
Ruled By: MATANDA-MOYO J

HH269-15 : ELIZABETH MAPURISA and ENESIA GUTU and SIMBA MOYO and RAISHEN MOYO vs NEHANDA HOUSING COOPERATIVE and SUNGAMBERI HOUSING COOPERATIVE
Ruled By: BERE J

HH364-15 : TASARA MUGUTI and OTTILIA MUGUTI vs TIAN ZE TOBACCO COMPANY (PVT) LTD and MESSENGER OF COURT
Ruled By: MATHONSI J

HH446-15 : TELECEL ZIMBABWE (PVT) LTD vs POSTAL AND TELECOMMUNICATIONS REGULATORY AUTHORITY OF ZIMBABWE (POTRAZ) and MINISTER OF INFORMATION TECHNOLOGY, POSTAL AND COURIER SERVICES N.O. and OTHERS
Ruled By: MATHONSI J

HMT29-20 : THE TRUSTEES OF THE ARDA-TRANSAU RELOCATION DEVELOPMENT TRUST vs ZIMBABWE ELECTRICITY TRANSMISSION AND DISTRIBUTION COMPANY (ZETDC) (PVT) LTD
Ruled By: MWAYERA J

HH987-15 : NEHANDA HOUSING CO-OPERATIVE SOCIETY and OTHERS vs SIMBA MOYO and OTHERS
Ruled By: MAFUSIRE J

SC09-22 : MOVEMENT FOR DEMOCRATIC CHANGE (TSVANGIRAI) and DOUGLAS MWONZORA and DR THOKOZANI KHUPE vs LILIAN TIMVEOS and THABITHA KHUMALO and OTHERS
Ruled By: GUVAVA JA, MAKONI JA and CHITAKUNYE JA

SC29-22 : TECHNOIMPEX JSC vs RAJENDRAKUMAR JOG and TECHNOIMPEX JC (PVT) LTD and SARAH HWINGWIRI and REGISTRAR OF DEEDS and SHERIFF OF THE HIGH COURT OF ZIMBABWE
Ruled By: GUVAVA JA, UCHENA JA and KUDYA AJA

Appealed
SC31-22 : NMB BANK LIMITED vs FORMSCAFF (PVT) LTD and PENNIWILL (PVT) LTD and RODNEY CALLAGHAN and MILLICENT CALLAGHAN and CHARLES CANNINGS and CLIFFORD JOHNSON and LESLEY BENNET
Ruled By: GARWE JA, PATEL JA and GUVAVA JA

SC39-22 : MASIMBA CHARITY HUNI FUELS (PVT) LTD vs NATHAN KADURIRA and MAKONI RURAL DISTRICT COUNCIL
Ruled By: GUVAVA JA, BHUNU JA and MUSAKWA JA

Appealed
SC47-23 : EXMIN SYNDICATE vs LUKE DUBE and PROVINCIAL MINING DIRECTOR, MATEBELELAND SOUTH N.O. and OTHERS
Ruled By: GWAUNZA DCJ, BHUNU JA and MUSAKWA JA