Approach re: Issues in Limine, Technical or Procedural Objections, Dilatory, Declaratory and Dispositive Pleas

HHH57-09 : KISIMUSI DHLAMINI AND GANDHI MUDZINGWA AND ANDRISON MANYERE vs THE STATE
Ruled By: MTSHIYA J

I must hasten, at this point, to mention that at the hearing of., where the point in limine was raised, I pointed out that the norm in this court is that when an objection in limine is raised, a party is normally enjoined to also address the merits of the matter before the court.,. ...

HB41-09 : THANDAZO RETAIL AND MARKETING (PVT) LTD T/a STRIDES BOUTIQUE AND FUNKEE MUNKEE vs MAIN MOTORS (PVT) LTD AND REFCO (PVT) LTD
Ruled By: NDOU J

Coming to the counter claim, I dismissed the point in limine raised by the applicant ex tempore, and indicated that this judgment will provide reasons for that conclusion. The applicant is raising a technical objection. It is trite that technical objections to the less than perfect procedural steps should not be permitted in the absence of prejudice, to ...

HB66-09 : SIPHILISIWE SIZIBA vs SOPHIE MATIMBA N.O. and QHUBEKANI MABUZA NCUBE
Ruled By: KAMOCHA J

When the matter went for a hearing, the present applicant's legal practitioner raised two points in limine, and made submissions in support thereof. Thereafter, counsel for the other party responded to the points in limine. I must mention that counsel for the then applicant had already addressed the court on the merits when the points in ...

HB114-09 : DENNY NDABEZINHLE MASHENGELE vs JAMES NCUBE
Ruled By: NDOU J

In view of the nature of the point in limine that he had raised, it is no longer necessary to hear him on the merits before the interim relief sought is determined. The respondent will have all the time to make submissions on the substantive relief sought before the return date.

HH24-10 : SAHAWI INTERNATIONAL (PTY) LIMITED and YAKUB IBRAHIM MAHOMED vs JOHN ARNOLD BREDENKAMP and BRECO INTERNATIONAL (PRIVATE) LIMITED
Ruled By: MAKARAU JP

At the hearing of the matter, counsel for the plaintiffs' objected to the presence of Advocate de Bourbon at the bar as representing the defendants. At the time he raised the objection he had not yet handed over to me the written objection that the plaintiffs' had filed earlier on in the morning. Taken ...

HH30-10 : TM SUPERMARKETS (PVT) LTD vs CHADCOMBE PROPERTIES (PVT) LTD
Ruled By: PATEL J and OMERJEE J

In any event, I take the view that counsel for the respondent's belated objection, and cavalier manner in which it was raised, constitute palpably unacceptable conduct – almost verging on contempt of court. Accordingly, the Registrar is hereby directed to write to counsel for the respondent firmly cautioning him against similar misconduct in future.

HH07-13 : ZIMBABWE TEXTILE MANUFACTURERS ASSOCIATION vs ZIMBABWE TEXTILE WORKERS UNION and DR. GODFREY KANYENZE
Ruled By: MTSHIYA J

At the commencement of the hearing, counsel for the applicant submitted that the respondents had filed their heads out of time and were therefore barred. I, however, allowed the parties to present full argument covering both the preliminary issues and the merits of the matter.

HH45-13 : OLIVER MUSHUMA vs SWEEN MUSHONGA
Ruled By: HLATSHWAYO J and MAWADZE J

The court a quo misdirected itself in its failure to deal with the three points in limine raised by the appellant, which points in limine are valid at law.The finding by the court a quo that the points taken in limine by the appellant were “technical issues which, if considered by the court ...

The court a quo misdirected itself in its failure to deal with the three points in limine raised by the appellant, which points in limine are valid at law.

The finding by the court a quo that the points taken in limine by the appellant were “technical issues which, if considered by the court at this juncture, would result in the premature life of an otherwise arguable case on the merits”, is, with all due respect, a shocking indictment on the part of the court a quo's failure to appreciate the very basic tenets of the law the court is enjoined to consider. The three points raised in limine are both meritorious and relevant to the very order the court a quo granted.

I briefly illustrate why.

The three points taken in limine by the appellant in the court a quo are as follows:-

a) That the respondent had made an application for rescission of judgment out of time and had not sought or been granted condonation.

b) That the respondent had not complied with the provision of order 30 Rule 3 of the Magistrates Court (Civil) Rules 1980.

c) That the respondent had approached the court with dirty hands as he had lied in both the founding and answering affidavit as regards the reasons for the default and the authenticity of the acknowledgement of debt.

Order 30 Rule 1 of the Magistrates Court (Civil) Rules 1980 provides as follows:-

“(1) Any party against whom a default judgment is given may, not later than one month after he has knowledge of thereof, apply to the court to rescind or vary such judgment.”

It is common cause that the default judgment was granted on 1 June 2011. The respondent, as is the norm, has been evasive as to when he had become aware of the default judgment. The appellant's evidence that the respondent visited him at his offices on 8 June 2011 and that he advised him of the default judgment was not controverted. Be that as it may, the respondent was served with a copy of the legal costs and the writ of execution by the Messenger of Court on 10 June 2011. One can therefore safely assume that as at 10 June 2011 the respondent was aware of the default judgment. The application for default judgment was only made on 30 August 2011 (after a period of 2 months and 23 days) - which is well after the one month prescribed by the Rules.

The respondent did not seek condonation in terms of Order 33 Rule 1(2) of the Magistrates Court Rules.

See also Karimazondo v Standard Chartered Bank of Zimbabwe 1995 (2) ZLR 404…,.

The fact that an application for rescission of the default judgment was made out of time is very clear from the pleadings filed in the court a quo. In fact, the court a quo was alerted to this fact by the appellant who took the point in limine to that effect. Instead, the court a quo failed to address this clear non-compliance with the Rules. It also did not state that it had condoned such conduct and why.

This constitutes a misdirection….,.

All in all, the failure by the court a quo to deal with the issues raised in limine by the appellant on the basis that they were technical issues which will result in an unfavourable finding against the respondent is a misdirection.

HB95-11 : MADINDA NDLOVU vs HIGHLANDERS FOOTBALL CLUB
Ruled By: CHEDA J

Where points in limine have been raised the court has a discretion either to deal with the points in limine first before hearing the merits or to allow submissions to be made on the merits before making such determination on the points raised in limine. In the exercise of that discretion I allowed arguments ...

HB07-14 : JOSEPH MARSHAL STUART vs NATIONAL RAILWAYS OF ZIMBABWE
Ruled By: NDOU J

Parties should not rely too much on procedural issues to the detriment of justice.

SC32-13 : HEYWOOD INVESTMENTS (PRIVATE) LIMITED t/a GDC HAULIERS vs PHARAOH ZAKEYO
Ruled By: MALABA DCJ, GARWE JA and GOWORA JA

A court before which an interlocutory application has been made should not proceed to determine a matter on the merits without first determining the interlocutory application.

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.”

Counsel for the respondents, who said was standing in for Mr Lubimbi who is seized with the matter but is still at the Lupane Magistrates' Court, said his instructions were to raise the point in limine that the matter was not urgent for the following reasons:

The applicant once filed an ex parte application in the Magistrates' Court on 20 May 2012, in case number 2721/12, wherein it was alleged that some of the respondents herein had violated the court order granted by consent (annexure “B”). That application was dismissed on 12 November 2013. Thereafter, the applicant issued summons in the Magistrates' Court, under cover of case number 8616/13, against the first respondent herein raising the same issues. That litigation is still pending and is at plea stage of the pleadings.

In the event, the applicant is precluded from approaching this court three months after the plea was filed alleging that the matter is urgent.

The applicant deliberately omitted to disclose this information in its founding affidavit thereby hiding lack of urgency in the matter by omission.

Also, in paragraph 34 of its founding affidavit, the applicant avers that it has no alternative remedy, yet, the summons alluded to above constitute an alternative remedy.

I must say that the timing of the raising of the point in limine was a poor technique in litigation on the part of counsel for the respondents.

A point in limine must be timeously raised even where no opposing papers have been filed such as in casu. One cannot raise it after the other party had finished making submissions on the merits.

HMA12-17 : BRIAN ANDREW CAWOOD vs ELASTO MADZINGIRA and THE MESSENGER OF COURT – MWENEZI N.O.
Ruled By: MAFUSIRE J

Legal practitioners should not waste precious time by raising dud points in limine as if they are a mandatory ritual in every case.

HMA17-17 : MAIN ROAD MOTORS (Case 1) and SYLVIA CHORUWA (Case 2) vs COMMISSIONER – GENERAL, ZIMRA
Ruled By: MAFUSIRE J

It is a fundamental principle of justice delivery that whenever possible, the real dispute between the parties should be solved without being over fastidious about forms and formalities.

HH446-15 : TELECEL ZIMBABWE vs POSTAL AND TELECOMMUNICATIONS REGULATORY AUTHORITY and MINISTER OF INFORMATION TECHNOLOGY N.O. and CHIEF SECRETARY, OFFICE OF PRESIDENT and EMPOWERMENT CORPORATION
Ruled By: MATHONSI J

Legal practitioners should be reminded that it is an exercise in futility to raise points in limine simply as a matter of fashion. A preliminary point should only be taken where; (i) Firstly, it is meritable; and (ii) Secondly, it is likely to dispose of the matter. The time has come to discourage such waste of court time by the ...

HH73-15 : FUNGAI NHAU vs MEMORY KAFE and CHIPO NKUDZI
Ruled By: MATHONSI J

The rules of court providing for a plea in bar are there for a purpose. They are certainly not designed to provide sanctuary to litigants bent on evading lawsuits. They are for genuine ones who desire to dispose of those actions which should not detain the court because they can be disposed of on substance ...

HH225-13 : EMMERSON MNANGAGWA vs ALPHA MEDIA HOLDINGS (PRIVATE) LIMITED and DUMISANI MULEYA
Ruled By: MATHONSI J

I…, take the view expressed by BEADLE AJ…, in McKelvey v Cowan NO 1980 (4) SA 525 (Z) that the law does not discourage parties from taking exceptions when exceptions may result in the reduction of costs and shortening of proceedings.

HH228-16 : ANJIN INVESTMENTS (PVT) LTD vs THE MINISTER OF MINES & MINING DEVELOPMENT and THE MINISTER OF HOME AFFAIRS and THE COMMISSIONER-GENERAL OF THE ZIMBABWE REPUBLIC POLICE
Ruled By: MANGOTA J

The respondents raised a number of in limine matters which the court chose not to consider. It remained of the view that the application should be disposed of on the basis of its substance and not on technical issues which had been placed before the court.

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

The respondent's opposing affidavit and written submissions raised the issue of urgency. The matter proceeded to argument on the merits without the respondent formally raising the issue of urgency, only to do so in response to the applicant's submissions on the merits. The applicant contends that the respondent let the court hear the matter on the ...

The respondent's opposing affidavit and written submissions raised the issue of urgency.

The matter proceeded to argument on the merits without the respondent formally raising the issue of urgency, only to do so in response to the applicant's submissions on the merits. The applicant contends that the respondent let the court hear the matter on the merits having declined an opportunity to raise any preliminary objections.

That is not a correct reflection of what transpired.

No invitation was extended to the respondent to address the court on its preliminary issues. The court proceeded on the assumption that the parties had discussed the issue and come to some common ground over the issue of urgency.

The applicant submitted that the respondent should have raised the issue of urgency from the outset; that it was irregular for the applicant to let the court hear the case on the merits, only to raise the issue of urgency in response to the applicant's submissions on the merits. It urged the court to disregard the issue of urgency.

The applicant is clutching at straws.

A preliminary point is one that is likely to dispose of the matter without the need to go into the merits of the matter. It is expected to be taken at the outset. If it is upheld at that stage it obviates the need for the court to hear argument on the merits. It is therefore desirable that it be taken before commencement of argument on the merits in the spirit of/for good order and convenience. Where a preliminary point is raised during the course of argument on the main matter it becomes a point of contention which still requires resolution. The taking of a preliminary point on urgency, albeit, belatedly does not render it fatal to the taking of the point. One has to have regard to the fact that in applications of this nature, the court is required to be satisfied that the matter is urgent irrespective of the position of the opponents. A matter brought on an urgent basis does not assume urgency simply because an adversary failed to raise the issue of urgency timeously. The fact that the point was raised tardily does not defeat the point.

HH217-17 : NAISON SEKERAMAYI and OTHERS vs MASTER OF HIGH COURT and PROVINCIAL MAGISTRATE, HARARE and EASTER DZWOWA and YARADZO MUNANGATI MANONGWA (Executrix Dative in Estate Lovemore Sekeramayi)
Ruled By: ZHOU J

The respondent objected in limine to the determination of the matter on the merits on the following grounds: (a)…,. (b)….,. (c) That there is material non-disclosure on the part of the applicants which vitiates the application. A fourth point raised, that the applicants were represented by a legal practitioner when the Magistrate made his decision that the third respondent was married to the deceased ...

HMA36-18 : AMALGAMATED RURAL TEACHERS UNION OF ZIMBABWE vs OBERT MASARAURE and ZIMBABWE AFRICAN NATIONAL UNION [PATRIOTIC FRONT] and MINISTER OF PRIMARY AND SECONDARY EDUCATION
Ruled By: MAFUSIRE J

All in all, I considered that none of the first respondent's technical objections aforesaid, individually or collectively, could block the determination of the matter on the merits seeing that the applicants' complaint was a breach of fundamental rights and freedoms enshrined in the Constitution. Section 85 of the Constitution says the fact that a person has ...

SC70-20 : CITY OF HARARE vs AMOS CHIKWANDA
Ruled By: BHUNU JA

This is an application for reinstatement of an appeal in terms of Rule 34(5) of the Supreme Court Rules, 1964.

The brief facts giving rise to the application are that the applicant employed the respondent as its clerical officer.

Sometime in October 2011, the respondent received and receipted a total amount of US$34,247 in the course of duty. The money went missing and the respondent was charged with failure to remit the receipted money for banking. The prime suspect for the missing money was the respondent's supervisor who also went missing soon after the money disappeared.

Consequently, the Disciplinary Committee charged and dismissed the respondent from employment in connection with the missing money. The Committee found that the respondent was at fault in that there was no evidence that he handed over the missing money to his supervisor, Mr Manyere, because the supervisor had not signed acknowledging receipt of the money.

As the respondent was dissatisfied with his dismissal from employment, the matter was subsequently referred to the arbitrator. The arbitrator ruled in favour of the appellant and confirmed the dismissal.

Aggrieved by the arbitrator's award, the respondent successfully appealed to the Labour Court. In an order dated 25 October 2013 it determined that the respondent's dismissal was unlawful and proceeded to make the following order:

“1. The appeal be and is hereby upheld.

2. The respondent is ordered to reinstate the appellant without any loss of salary or benefits from the date of unlawful dismissal.

If re-instatement is no longer an option, the parties may agree on the quantum of damages in lieu of reinstatement. In the event that parties fail to agree on the amount of damages, either party can approach this Court for quantification of damages.

There is no order as to costs.”

Dissatisfied by the above order, the applicant sought, and was granted, leave to appeal to this Court on 9 July 2014.

By the time the applicant obtained leave to appeal the time within which it was obliged to file its appeal had already expired, thereby necessitating an application for condonation of late noting of appeal. The application for condonation was granted by this Court on 18 June 2015. The order reads:

“IT IS ORDERED THAT:

1. The condonation of late noting of appeal and extension of time within which to appeal be and is hereby granted.

2. The notice of appeal dated 12 December 2014 shall be deemed to have been filed on the date of this order.

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

Following the granting of the above order, on 10 August 2017, the Registrar of the Labour Court issued a notice for the applicant to pay US$120 within five (5) days of receipt of the notification letter in terms of Rule 34(1); being costs for the preparation of the record of proceedings. The notice was served on the applicant on 16 August 2017.

The applicant defaulted in making the required payment within the prescribed five (5) days' period; whereupon, the Registrar wrote to the applicant's legal practitioners, on 23 November, advising that the appeal was deemed to have lapsed. The letter reads:

“RE: CITY OF HARARE V CHIKANDA

Reference is made to the notice of appeal you filed on 27 March 2017.

It is noted that you did not make any arrangements for the preparation of the record within the time specified in sub rule (1) of Rule 34 of the Supreme Court Rules, 1964.

In terms of sub-rule (5) of Rule 34 of the aforementioned rule, the appeal is deemed to have lapsed.”

In terms of Rule 34(5), the applicant can only be granted relief by a judge of this Court upon proof of good cause for non-compliance.

The sole issue for determination on the merits is whether or not the applicant has shown good cause for the admitted disdain of the Rules.

The respondent has however raised a point in limine that has to be disposed of before delving into the merits of the application.

The point in limine is premised on two grounds:

1. That the application does not conform to the Rules.

2. That the applicant has not taken diligent and determined steps to prosecute the appeal.

Counsel for the respondent merely stated, without elaborating, why he says the application does not conform to the Rules of Court.

It is for the objector to prove that there has been a fatal disdain of the Rules. It is not for the court to forage through the Rules in search of fatal procedural irregularities not apparent to it. This is for the simple, but good reason, that it is for parties to make up their respective cases without leaving it to the court or judge to fill in the gaps.

In Delta Beverages (Pvt) Ltd v Murandu SC38-15, this Court had occasion to observe that:

“Parties are expected to argue their cases so as to persuade the court to see merit, if any, in the arguments advanced for them. They are not expected to make bald unsubstantiated averments and leave it to make of them what it can.”

As for the second ground for objection, it does not deal with any procedural preliminary points but the merits of the application.

That being the case, I find that there is absolutely no merit in the points in limine raised. Both points in limine are accordingly dismissed.

HB94-11 : GOLDEN MOYO vs STEPHEN MKOBA and DISTRICT ADMINISTRATOR, MIDLANDS PROVINCE and GOVERNOR, MIDLANDS PROVINCE and MINISTER OF LOCAL GOVERNMENT and PRESIDENT OF THE REPUBLIC OF ZIMBABWE
Ruled By: NDOU J

There are two matters in this case.The first matter, HC1396/09, is for the confirmation or discharge of a provisional order granted by this court on 10 September 2009. The second, which is the main matter, under HC1410/09, is for the rescission of the decision to appoint the first respondent as ...

Appealed
SC06-21 : OLIVER MASOMERA (as Executor Dative of Estate late Bryan James Rhodes) vs GIDEON HWEMENDE and OTHERS
Ruled By: PATEL JA, BHUNU JA and BERE JA

This is an appeal against the judgment of the High Court dismissing an application for the rescission of an earlier judgment granted in favour of the fourth respondent in Case No. HC1589/13. The application was dismissed with costs to be borne by the estate of the late Brian James Rhodes, ...

Background

Prior to his demise, on 29 July 2006, the deceased, B.J. Rhodes, had established two companies, namely, Beverly East Properties (Pvt) Ltd and Karoi Properties (Pvt) Ltd. The appellant, as I have said, is the executor dative of the deceased estate. He was not a party to the proceedings in Case No. HC1589/13 wherein the court granted a declaratory order in favour of the fourth respondent.

In his application before the court a quo, the appellant sought the rescission of that order on the ground that it had been obtained through fraud, and, alternatively, that it had been granted in error.

In Case No. HC1589/13, the court dismissed the claims over the two companies by the first respondent (Gideon Hwemende), who had purported to appoint the fifth to the tenth respondents (Valentine Mushore, Alfred Chademana, Joel Tenderere, Oliver Chibage, Farai Mutizwa and Calisto Vengesai) as directors in the companies in order to protect his own interests.

The court ruled that the lawful shareholder of the two companies was the Phoenix Trust, the assets of which included corporate stock in the two companies.

It found that the fourth respondent (Terrence Cobden Rhodes) was a trustee of the Trust and a Director in both companies owned by the Trust. The court also found that the fourth respondent (Terrence Cobden Rhodes), as trustee, had legal title to the trust property and that any benefits accruing to the companies, including accumulated rentals in the sum of US$70,000, in turn, accrued to the Trust as the shareholder of the companies.

In granting its order, the court imposed the condition that the fourth respondent (Terrence Rhodes) should furnish evidence that the Trust legally owned the companies before the Registrar could release to the Trust the sum of US$70,000 that was deposited with him.

In the application a quo, the appellant adduced the supporting affidavit of the deceased's widow (Elizabeth Anne Rhodes). The admission of this affidavit was challenged by the fourth respondent (Terrence Rhodes) on the ground that it did not comply with the provisions of the High Court (Authentication of Documents) Rules, 1971. The court a quo agreed and held that the affidavit was not admissible as it had not been properly authenticated.

More importantly, the fourth respondent (Terrence Rhodes) also took the point in limine that the applicant did not have locus standi to bring the application because he was only the curator bonis of the deceased estate.

The appellant had initially deposed, in his founding affidavit, that he was acting in his capacity as the executor dative of the estate. However, he had attached the letters of his confirmation as curator bonis rather than his Letters of Administration in respect of the estate. Subsequently, through his answering affidavit, he then attached the Letters of Administration appointing him as the executor dative of the estate. The letters of confirmation were issued on 1 November 2013, while the Letters of Administration were issued on 26 February 2014.

High Court Judgment

As regards the appellant's locus standi, the court a quo found that, as at 20 November 2013, the appellant could not have engaged in Case No. HC1589/13 in terms of section 22(2) of the Administration of Estates Act [Chapter 6:01]. He would therefore not have had locus standi to seek the rescission of the order granted in that matter. That rendered his actions in casu nugatory as the absence of a cause of action could not be cured through the substitution of his capacity in his answering affidavit. He could not properly cure the defect in the founding affidavit pertaining to locus standi through the production of an authorising document in his answering affidavit.

The court accordingly held that his case must fail due to lack of legal standing.

Having found that the application should be dismissed for want of locus standi, the court nevertheless proceeded to address the merits of the matter....,.

In the event, the court a quo held that the relief of rescission sought by the appellant must be refused and accordingly dismissed the application on the merits.

Grounds of appeal and relief sought

There are three grounds of appeal in this matter:

(i) The first is that the court a quo erred in holding that the appellant had no authority to institute the application a quo but nevertheless proceeding to dismiss the matter on the merits....,.

In reply, counsel for the fourth respondent (Terrence Rhodes) submitted that the first ground of appeal was irrelevant. There was no impropriety or harm occasioned by the court a quo declining locus standi and still dealing with the merits of the matter....,.

In his response, counsel for the appellant agreed that the first ground of appeal was irrelevant.

HH66-16 : MEIKLES LIMITED vs ZIMBABWE STOCK EXCHANGE and ALBAN CHIRUME
Ruled By: MAKONI J

The authors, HERBSTEIN and Van WINSEN, in The Civil Practice of the High Court of South Africa 5th ed…, stated that a special plea is one that does not raise a defence on the merits of the case, but, as its name implies, sets up some special defence which has, ...

HH83-14 : RITENOTE PRINTERS (PVT) LTD and JOHN KANOKANGA vs A.ADAM & COMPANY (PVT) LTD and TARIK ADAM and MOOSA ADAM
Ruled By: CHIGUMBA J

The plaintiffs issued summons against the three defendants on 20 August 2012 seeking payment of:

(a) US$230,000 being losses suffered as a result of failure by the plaintiffs to trade owing to wrongful eviction.

(b) US$25,000 being damages for injuria.

(c) US$50,000 being damages for permanent chronic depression.

(d) US$450,000 being the difference between the value of the business and the price at which it was sold.

(e) US$4,000,000 being the amount the second plaintiff would have made but for the chronic depression he has suffered as a result of wrongful eviction.

(f) US$12,060 plus US$15 per day reckoned from the date of summons to the date of payment, being storage charges incurred by goods attached by the Messenger of Court at the defendants' unlawful instance.

(g) Interest on the sums set out above at the prescribed rate from the date of summons to the date of payment.

(h) Costs of suit.

The plaintiffs averred, in the declaration, that, on 1 November 2010, the defendants unlawfully, wrongfully, and intentionally procured the first plaintiff's eviction from premises known as Number 147 Mbuya Nehanda Road, Harare and from Winston House, 109 Leopold Takawira Street, Harare.

The first plaintiff carried on its printing, photocopying, and related business from those premises which belong to the first defendant.

The plaintiffs averred, further, that, as a result of the aforesaid eviction, they suffered losses by reason of failure to trade from those premises, 147 Mbuya Nehanda Road, for the period ranging from 1 November 2010 to date, and from Winston House from 1 November 2010 to 29 June 2011.

The plaintiffs' claim was founded on injuria, and, on consequent damages arising therefrom, such as loss of business, and chronic depression arising as a result of the defendants' conduct.

On 24 September 2012, the defendants entered appearance to defend themselves in this matter, and filed a combined exception and plea on 30 January 2013.

The exception was based on the fact that paragraphs 5,6,7 and 8 of the plaintiffs' summons allegedly failed to disclose a cause of action, and that, it was not specifically pleaded, that, at the material time, the defendants acted in an unreasonable manner.

It was averred, that, the plaintiffs ought to have specifically pleaded that the defendants foresaw the possibility of harm being occasioned to the plaintiffs by their action of evicting them.

The defendants denied acting unreasonably, and averred that they had been issued with a valid and competent eviction order before the Magistrate's Court, and were entitled to act on it.

The defendants' plea on the merits was to deny that they caused any harm to the plaintiffs, either intentionally or negligently; to deny being at fault in any way in causing the plaintiffs' eviction; and to aver that they acted reasonably at all times.

Intention to cause injuria was denied; knowledge of the second plaintiff's depression was denied; illegal conduct was denied; and the defendants prayed for dismissal of the action together with costs on a higher scale.

The plaintiffs replicated to the exception on 13 February 2013, and reiterated that they clearly pleaded fault on the part of the defendants. The plaintiffs prayed for the dismissal of the defendants' exception, together with costs on a higher scale.

At the pre-trial conference, on 24 September 2013, a joint pre-trial conference minute was filed of record, in terms of which the following issues were referred to trial:

1. Whether or not the plaintiffs' summons and declaration disclose a cause of action at law.

2. Whether or not the second and third defendants have been erroneously joined to the present matter.

3. Whether or not the defendants acted negligently, unlawfully, and wrongfully in evicting the first plaintiff.

4. Whether the plaintiffs sufficiently set up a cause of action warranting the dismissal of the exception to which the defendants have pleaded over.

At the hearing of the matter, counsel for the defendants moved for the 'exception' to be upheld, and for the dismissal of the plaintiffs' claim on the basis that the summons and the declaration did not disclose a cause of action.

Counsel for the defendants opposed this application...,.

Before considering the merits of the exception filed by the defendants, now the first defendant only, after the removal of the second and third defendants as parties to the proceedings, the court considered whether or not the exception was properly before it.

Order 21 of the High Court Rules, 1971 provides as follows:

“137. Alternatives to pleading to merits: forms

(1) A party may —

(a) Take a plea in bar or in abatement where the matter is one of substance which does not involve going into the merits of the case, and which, if allowed, will dispose of the case;

(b) Except to the pleading or to single paragraphs thereof if they embody separate causes of action or defense as the case may be;

(c) Apply to strike out any paragraphs of the pleading which should properly be struck out;

(d) Apply for a further and better statement of the nature of the claim or defence or for further and better particulars of any matter stated in any pleading, notice, or written proceeding requiring particulars.

(2) A plea in bar or abatement, exception, application to strike out, or application for particulars shall be in the form of such part of Form No.12 as may be appropriate mutatis mutandis, and a copy thereof filed with the registrar. In the case of an application for particulars, a copy of the reply received to it shall also be filed.”

The first thing to note is that Rule 137 is entitled “alternatives to pleading on the merits.”

It becomes immediately clear that the defendant's plea and exception, filed of record on 30 January 2013, is not properly before the court.

There are four alternatives to pleading to the merits;

(i) A plea in bar - Order 21 Rule 137(1)(a);

(ii) Exception - Order 21 Rule 137(1)(b);

(iii) An application to strike out - Order 21 Rule137(1)(c); or

(iv) An application for a further and better statement - Order 21 Rule 137(1)(d).

My reading of Rule 137 is that, if it provides alternatives to pleading to the merits, those alternatives cannot be combined with a plea to the merits as the defendants purported to do on 30 January 2013.

The defendant ought to have simply proceeded in terms of Order 21 Rule 137(1)(b) and filed an exception to the summons and declaration.

This view is further supported by Rule 138 which provides as follows:

“138. Procedure on filing special plea, exception or application to strike out

When a special plea, exception, or application to strike out has been filed -

(a) The parties may consent, within ten days of the filing to such special plea, exception or application being set down for hearing in accordance with sub rule (2) of Rule 223;

(b) Failing consent, either party, may, within a further period of four days set the matter down for hearing in accordance with sub rule (2) of Rule 223;

(c) Failing such consent and such application, the party pleading specially, excepting, or applying, shall, within a further period of four days, plead over to the merits if he has not already done so and the special plea, exception, or application shall not be set down for hearing before the trial.”

My reading of Rule 138 is that, after the defendant had filed its exception, on 30 January 2013, it had ten days, until 13 February 2013, within which to engage the plaintiffs and agree to set the exception down for hearing by using the application procedure provided by Order 32 of the Rules of this Court.

If the parties failed to set the exception down for hearing by consent, by 13 February 2013, then, the defendant had a further four (4) days, up to 19 February 2013, to itself set the exception down for hearing using the provisions of Order 32 Rule 138(c) which stipulates, that, where the exception has not been set down, either by consent or solely by the defendant, a further four (4) days is added to the 14 (fourteen) days that will have elapsed since the exception was filed, within which the defendant must plead over to merits, by 25 February 2013 in this case.

After pleading over to merits, Rule 138(c) stipulates that:

“…, the special plea, exception, or application shall not be set down for hearing before trial.”…,.

It is trite, that, the object of a summons or a declaration is to inform the defendant of the cause of action and the facts upon which the claim is based.

See HERBSTEIN & Van WINSEN – Civil Practise of the Superior Courts of South Africa, 4th ed…,.; Haskel v Lebedina Schechter 1930 WLD 296; Erasmus v Slomonitz 1938 TPD 238; Pietpot Gieters Rust White Lime Co v Sand & Co 1916,TPD 687; Bulawayo Pattern Makers (Pvt) Ltd v Motor & Agri Equipment (Pvt) Ltd HB32-98.

In order to uphold an exception, such as the one raised by the defendant, the court must consider whether the plaintiffs “claims, as formulated in the summons and the declaration, are set out clearly, concisely, both in fact and in law.”

If the claims are not clear or concise, in fact and/or in law, the exception must be upheld. In other words, if the averments contained in the plaintiffs summons and declaration disclose:

(a) Sufficient particularity;

(b) Are not contradictory and mutually destructive;

(c) A cause of action, particularly a delictual claim for damages;

(d) Are appropriate in law; then, the exception ought to be dismissed and the matter proceeds to trial.

See Benson v Robinson 1917 WLD 126; Kali v Incorporate General Insurance (Pvt) Ltd 1976 (2) SA 178.

According to HERBSTEIN & Van WINSEN, Civil Practice of the Superior Courts in South Africa, 2nd ed…,:

“The true object of an exception is either, if possible to settle the case or at least a part of it, in cheap and easy fashion or to protect oneself against an embarrassment which is so serious as to merit the costs even of an exception.”

It has been held, in the case of Tobacco Sales Producers (Pvt) Ltd v Eternity Star Investments 2006 (2) ZLR 293, that:

“…, an exception can only be properly filed before the excipient pleads to the merits of the matter…, it is an alternative to pleading to the merits.

Once the excipient pleads, before filing the exception, he is in fact telling the other party that its declaration discloses a cause of action and is neither vague nor embarrassing…,; after the defendant has pleaded, it becomes difficult to ask the plaintiff to remove the vague and embarrassing averments. It also becomes difficult to except to the cause of action.”

I associate myself fully with these findings of my brother judge and find them not only persuasive, but instructive in the simplicity with which they explain the correlation between an exception and a plea to the merits.

It follows that there is no exception before the court.

The defendant purported to except and plead at the same time which is impermissible in terms of Rule 138(c), and incongruous, as one cannot except to summons and declaration on the basis that no cause of action is disclosed, then, in the same breath, plead to the merits.

By pleading to the merits, the defendant implied that the summons and declaration had sufficient particulars to enable it to plead.

Rule 138 clearly stipulates the time period within which an exception ought to be set down for hearing.

Once those time periods elapse, the opportunity to have the exception determined is lost.

By 25 February 2013, the ship had sailed. The defendant no longer had the alternative of having the exception set down for hearing before trial.

Once the defendant pleaded to the merits, it no longer was at liberty to seek to have the summons and declaration amended on the basis that no cause of action was disclosed. Pleading to merits implies that the summons and declaration contain sufficient particularity to inform the defendant of the case it has to answer.

There is therefore no need to determine the so-called exception; the defendant neutralized that alternative by electing to plead to the merits.

The exception is dismissed on the basis, that, the time within which it ought to have been determined has lapsed, and that, it was rendered baseless by the defendant's plea to the merits.

It is ordered, that, the first and second defendants be removed as parties to these proceedings. Costs will remain in the cause.

SC71-14 : EDWARD TAWANDA MADZA and OTHERS vs REFORMED CHURCH IN ZIMBABWE DAISYFIELD TRUST and REFORMED CHURCH OF ZIMBABWE and NAISON TIRIVAVI and DUTCH REFORMED CHURCH
Ruled By: ZIYAMBI JA, GARWE JA and HLATSHWAYO JA

Having concluded the matter was not urgent, the proper course would have been to remove the matter from the roll of urgent matters to allow the appellants, if so minded, to place the matter before the High court on the ordinary roll for determination. The order of dismissal was ...

The order of dismissal was improper in the circumstances.

The main question faced by a Judge presented with an 'urgent application' is to decide whether or not to give priority to the application by dealing with it on an urgent basis. In arriving at a decision on this issue, he or she is called upon to exercise discretion. Such discretion must be exercised judicially taking into account the factors urged in favour of, and against, an urgent hearing.

If, on perusal of the papers, the Judge comes to the conclusion that the matter is urgent enough to merit an urgent hearing, then he or she conducts a hearing and gives such order as he thinks fit. But if the conclusion is reached, however, that the matter is not urgent, he or she must refuse to hear the application and remove it from the roll, in which event the applicant has the option of enrolling his matter for hearing on the ordinary roll of court applications.

It is a contradiction in terms to dismiss a matter on the twin bases that it is not urgent and that the applicant has no locus standi for the latter basis indicates that a decision on the merits of the application has been made in which event the applicant is barred from placing the matter on the ordinary roll for determination. The effect of the dismissal on the latter basis is that the applicant is put out of court and is deprived of his right to have the matter properly ventilated in a court application or trial. Where, however, the matter is struck off the roll for lack of urgency, the applicant, if so advised, may place the matter on the ordinary roll for hearing.

The learned Judge, in giving his reasons for finding that the matter was not urgent, made certain findings of fact which involved the merits. For example, he found that the appellants' Board was dissolved on July 12 - a fact of which the appellants claim they were unaware; and that the appellants had not established locus standi to act for the Board or to seek the remedy sought in the draft provisional order.

Those issues went to the heart of the matter.

In proceeding to determine them and to make those findings of fact, the court misdirected itself….,.

View Appeal
SC161-20 : STANLEY NHARI vs ROBERT MUGABE and DR GRACE MUGABE and GUSHUNGO DAIRY HOLDINGS (PVT) LTD
Ruled By: GARWE JA, MAVANGIRA JA and MAKONI JA

This is an appeal against the judgment of the High Court upholding the special plea by the respondents that the High Court did not have jurisdiction to determine issues of employment and labour law.

At the centre of the dispute between the parties, both in the court a quo and before this Court, is the question whether the High Court, which now enjoys original jurisdiction over all civil and criminal matters throughout Zimbabwe pursuant to section 171 of the Constitution 2013, has jurisdiction to determine all matters including issues of labour and employment.

Having carefully considered all the constitutional provisions that have a bearing on this matter, as well as case law authority, I am in no doubt that the powers of the High Court are not unbounded and that in the sphere of labour and employment law, the court does not have jurisdiction to determine such matters in the first instance.

BACKGROUND FACTS

The appellant was employed as General Manager of the third respondent in terms of an unwritten agreement and commenced such employment in or about January 2007.

It appears, from the pleadings, that, the employment relationship hit stormy waters, and, in 2015, the appellant's employment was terminated.

At the relevant time, the first respondent was the President of the Republic of Zimbabwe whilst the second was his wife and the country's First Lady.

In July 2018, the appellant, as plaintiff, issued a summons against all three respondents claiming various sums of money which he contended were due.

In his declaration, the appellant claimed that the third respondent was the first and second respondents' alter ego and that it constituted the economic entity through which the first and second respondents pursued their economic interests.

He claimed, that, as General Manager, he was required to perform all such tasks as are customarily undertaken by a person in that position and that, in addition, he was required to do work that had nothing to do with his position as General Manager of the third respondent.

On 6 October 2015, “by use of illegitimate influence, force and might”, the first and second respondents “required” him to relinquish his position but was however ordered to continue working until 6 November 2015.

The relief sought consequent upon the above developments is captured in his declaration as follows:

“2.1. As a result of the unlawful termination of the employment relationship, plaintiff is owed by defendants damages for a period extending from 1 October 2015 to 6 November 2015 being the sum of $8,909=14 computed on the basis of the salary that plaintiff was earning, which sum the defendants have refused to pay.

2.2. Plaintiff is also owed $69,492=69 in accrued leave days reckoned from 1 January 2007 to 6 November 2015 such leave accruing at 25 days per year.

2.3. At the time of the termination of relationship between the parties, the plaintiff was entitled, by agreement, to a motor vehicle or to the value of such vehicle being US$90,000. Defendants have refused to allow plaintiff to recover this benefit.

2.4. Upon the enforced termination of the employment relationship, first and second defendants used public media to denigrate plaintiff at various gatherings in a manner that imperilled his future prospects of employment.

2.5. The acts(s) of the defendants in interfering with the plaintiff's prospects are wrongful and deliberate and resulted in plaintiff losing potential employment and has consequently yielded loss of US$588,000 which is due from defendants to plaintiff.”

The respondents, as defendants, filed a plea-in-bar in which they averred that the High Court had no jurisdiction to entertain the matter because it was a purely labour dispute in respect of which the Labour Court had jurisdiction in the first instance as provided for in section 89(6) of the Labour Act [Chapter 28:01].

They further contended that the cause of action was the alleged non-payment of post-termination of employment wages and benefits.

That being the position, in terms of section 13 of the Labour Act, the allegation, if proved, would constitute an unfair labour practice which fell to be dealt with under section 93 of the Labour Act.

In terms of section 89(6) of the Labour Act, the High Court has no jurisdiction in the first instance to hear and determine such a matter. Whilst accepting that in terms of section 171(1) of the Constitution 2013 the High Court has original jurisdiction over all civil and criminal matters throughout Zimbabwe, the respondents further submitted that, by section 172(2) and (3), the same Constitution has circumscribed matters over which the Labour Court has exclusive jurisdiction.

In its determination, the High Court accepted, that, in terms of section 171(1) of the Constitution 2013, the High Court has jurisdiction over all civil and criminal matters in Zimbabwe.

Relying on a number of decisions of the same court, the court found that, regard being had to section 172 of the Constitution 2013 which provides for the establishment of the Labour Court, the intention of the legislature was that, in labour matters, the Labour Court be the court of first instance.

The court further found that the Constitution recognizes the distinction between labour matters and civil matters in general.

It also found that in any event section 13 of the High Court Act [Chapter 7:06] makes it clear that it is subject to the High Court Act itself and any other law.

Since section 2A(3) of the Labour Act provides that the Act prevails over any other enactment inconsistent with it, section 89(6) of the Labour Act would prevail over section 13 of the High Court Act.

The court, after analysing each of the plaintiff's claims, came to the conclusion that they were all rooted in Labour Law, and, therefore, only the Labour Court had jurisdiction to determine them.

The court acknowledged that there were conflicting High Court decisions on the matter, with some holding, that, with the advent of the new Constitution, the High Court now enjoyed jurisdiction to determine all matters, including those that originate from labour and employment, whilst other decisions are to the contrary.

It was "in light of this unhappy state of the law” that the court determined that an award of punitive costs was not warranted. In the result, the court upheld the special plea.

Instead of striking the matter off the roll for want of jurisdiction, the court dismissed it with costs....,.

Unhappy with the above determination, the appellant filed a notice of appeal with this Court. His grounds of appeal are that:

1. The court a quo erred in finally and definitively dismissing his claims on the basis of procedural impropriety....,.

The appellant submitted that the decision to dismiss the claim is wrong because it is final and definitive. It closes the door for the appellant despite the finding by the court that the claims fell to be determined by the Labour Court.

Once the court found that it had no jurisdiction, there was no claim before it to dismiss....,.

The respondents..., submit that the court a quo was correct in dismissing the claim and for this proposition relied on the decision of this Court in Doelchem v Pichanick 1999 (1) ZLR 390, and HERBSTEIN & Van WINSEN, The Civil Practice of the High Courts of South Africa, 5th Ed…,.

Once a special plea of jurisdiction succeeds, the court quashes the claim.

It is not always the case that where a court pronounces a dismissal, the matter cannot be brought back. For example, a court that determines that there are disputes of fact in a case can dismiss the claim on that basis only....,.

THE DISMISSAL OF THE CLAIM

It is the appellant's submission, that, after determining as it did that it had no jurisdiction, the court a quo should simply have declined jurisdiction and not dismissed the claim with costs. The respondents, in oral submissions, disagreed, stating that the dismissal was not final and that the appellant could still bring the matter before the appropriate court.

I am inclined to agree with the appellant that the order dismissing the entire claim was, in the circumstances, improper.

The court had found that it had no jurisdiction to entertain the claims because such claims lay in the province of labour. Having so determined, there was therefore nothing that remained before the court. There was nothing further to dismiss.

In Edward Tawanda Madza & Others v (1) The Reformed Church in Zimbabwe Daisyfield Trust (2) The Reformed Church of Zimbabwe (3) Naison Tirivavi (4) The Dutch Reformed Church SC71-14, this Court remarked as follows:

"It is a contradiction in terms to dismiss a matter on the twin bases that it is not urgent and that the applicant has no locus standi for the latter basis indicates that a decision on the merits of the application has been made in which event the applicant is barred from placing the matter on the ordinary roll for determination.

The effect of the dismissal, on the latter basis, is that the applicant is put out of court and is deprived of his right to have the matter properly ventilated in a court application or trial. Where, however, the matter is struck off the roll for lack of urgency, the applicant, if so advised, may place the matter on the ordinary roll for hearing.”…,.

I cannot agree more with the above remarks....,.

1....,.

2. The portion of the judgment..., dismissing the entire claim with costs on the ordinary scale is set aside with each party paying its own costs.

HH443-15 : MHANGURA COPPER MINES LIMITED vs TAYENGWA MUSKWE
Ruled By: HUNGWE J

A point in limine is a motion moved by one of the parties to litigation at the very beginning of proceedings aimed at usually pulling the rug from under the feet of the other party, so to speak.

In limine motions are designed to facilitate the management of a case, generally, by deciding difficult evidentiary issues in advance of a trial. The normal purpose of such motions is to preclude the presentation of evidence deemed inadmissible and prejudicial by the party moving the motion. Although trial courts may exercise their inherent powers to permit non-traditional uses of motions in limine, when used in such a fashion, these become substitutes for other motions thereby circumventing procedural protections provided by trial on the merits.

They risk blind-siding the other party, and, in some cases, they could infringe a party's right to a trial.

They are difficult applications to succeed upon as the trial judge, at that stage, will not yet have much context to rule on admissibility of evidence. Thus, in the words of JUSTICE CONLON of the United States District Court in Hawthorne Partners v AT & T Technologies Inc and ENSR Corporation, 831 F 831 Supp 1398 (1993);

“Unless evidence meets this high standard, evidentiary rulings should be deferred until trial so that questions of foundation, relevancy, and potential prejudice may be resolved in proper context.

Denial of a motion in limine does not necessarily mean that all evidence contemplated by the motion will be admitted at trial. Denial merely means that without the context of trial, the court is unable to determine whether the evidence in question should be excluded. The court will entertain objections on individual proffers as they arise at trial, even though the proffer falls within the scope of a denied motion in limine.”

The point raised by the defendant should or could have been the subject of an exception.

It is purely a procedural question whether the determination of such points as raised in limine in trial proceedings should be described as an exception or the hearing of argument on a point of law or a point in limine: see Rule 152 of the High Court Rules, 1971.

HH147-16 : TATENDA MANDUNA vs ALLIANCE INSURANCE (PVT) LTD
Ruled By: MUSHORE J

Order 21 Rule 138 of the High Court Rules states:“138 Procedure on filing special plea, exception or application to strike outWhen a special plea, exception, or application to strike out has been filed -(a) The parties may consent, within ten days of the filing to such special plea, exception or ...

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HB128-19 : 1893 MTHWAKAZI RESTORATION MOVEMENT TRUST and NOMALANGA DABENGWA vs TINASHE KAMBARAMI and CITY OF BULAWAYO and ZIMBABWE ELECTORAL COMMISSION and MOVEMENT FOR DEMOCRATIC CHANGE ALLIANCE
Ruled By: MABHIKWA J

The applicants herein filed a court application and sought the following relief, that;

(a) It be declared that the election of the first respondent as councilor for Ward 3 in Bulawayo was in contravention of section 119(2)(e) of the Electoral Act [Chapter 2:13] following his conviction of theft at the Bulawayo Magistrates Court under criminal record book number 1981/18 on 27 June 2018 and is therefore set aside on account of being null and void.

(b) Consequently, the election of the first respondent as the second respondent's Deputy Mayor be set aside.

(c) Costs of suit at an attorney and client scale against such party as will oppose the above relief sought.

Suffices at this stage to mention that only the first respondent opposed the relief sought.

The brief history of the matter is as follows:

Following a proclamation by the President of the Republic of Zimbabwe, in terms of section 144(2) of the Constitution of Zimbabwe as read with section 38(1)(c) of the Electoral Act [Chapter 2:13], setting the dates for the sitting of the Nomination Court and for the holding of a general election, the first respondent, who was an aspiring councillor representing the Movement for Democratic Change Alliance (MDC-A) successfully filed his nomination papers with the third respondent.

The Nomination Court set on 14 June 2018.

The first respondent's nomination papers were accepted by the third respondent and he was duly registered as the MDC-A candidate for Bulawayo, Ward 3 councillor.

It is now common cause, that, on 27 June 2018, albeit two (2) weeks after the Nomination Court, the first respondent was arrested and appeared before a magistrate, sitting at Bulawayo Magistrates Court. He was charged with the crime of theft in contravention of section 113 of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. He pleaded guilty to the charge and was duly convicted and sentenced to a fine of $180 in default of payment 18 days imprisonment.

Needless to say, the general elections were held 33 days later, on 30 July 2018.

On 2 August 2018, the first respondent was declared duly elected councilor for Bulawayo, Ward 3 by the third respondent.

On 30 October 2018, the first applicant, through its legal practitioners of record, wrote a letter to the first respondent. The letter indicated to the first respondent, in effect, that he had been disqualified from holding office as councilor and Deputy Mayor for Bulawayo by reason of his conviction by a Criminal Court on 27 June 2018. The first applicant urged the first respondent to do what it called the “honourable thing” and voluntarily resign within 48 hours failing which an application would be filed with the court seeking the nullification of his election as councillor for Ward 3, and, subsequently, as Deputy Mayor of Bulawayo.

The first respondent did not resign, and, on 23 November 2018, the applicants filed this current application as narrated above.

The first applicant states, that, it is an organisation operating in terms of the laws of Zimbabwe with the right and power to sue and be sued in its own name. Its objectives are, inter alia, to promote economic development in the Matabeleland and Midlands provinces as well as lobbying for awareness for human rights and violations thereof, including speaking against corrupt tendencies by public officers.

The second applicant states that she is a registered voter in Bulawayo's ward 3 wherein the first respondent was elected and confirmed councillor.

To that extent, the applicants claim that they are affected as well as interested parties in this matter.

The first respondent has vigorously opposed this application.

In fact, it would appear, that, soon after receipt of this application, which the applicants say was served on him on 6 December 2018, the first respondent filed his notice of opposition on the same day (6 December 2018). The very next day, on 7 December 2018, he filed an application for condonation of late filing of notice of appeal against the 27 June 2018 conviction and sentence.

The conviction and sentence, however, remain extant.

The first respondent raised preliminary points in the matter.

The first respondent contended, that, this court has no jurisdiction to deal with the matter in that although the hearing judge was one of the judges appointed by the Chief Justice, in terms of section 162(1) of the Electoral Act [Chapter 2:13], to be a Judge of the Electoral Court Division of the High Court, such appointment was with effect from 8 June 2018 to 31 December 2018. He contended that the application, being heard on 15 July 2019, the matter was therefore improperly before the court in that the appointment and term of office for all judges appointed to serve as Electoral Court Judges had expired on 31 December 2018.

The first respondent also said the applicants failed to comply with section 168 of the Electoral Act and Rule 21 of the Electoral Court Rules.

Thirdly, the first respondent alleged that the applicants had failed to comply with section 67 of the Electoral Act.

He challenged their locus standi in judicio in filing the application.

The first respondent also contended, that, the applicants had failed to comply with section 168(5) and 169 of the Electoral Act relating to payment of security costs.

As regards the second applicant, the first respondent argued, that, there was no evidence before the court showing that she is a registered voter in Ward 3 nor that she participated in the election.

From the onset, it was clear that the major issue to be decided was whether what is before the court is a court application or an election petition.

In effect, the applicants argue, that, they made an application in which they seek a declaratur on the first respondent's suitability to hold public office following his conviction on 27 June 2018.

The first respondent argues, on the other hand, that, the applicants have filed an election petition disguised as an ordinary court application.

It appears to me that the rest of what the first respondent has raised as points in limine are premised on the fact of, or assumption that, the court will find that it is indeed an election petition.

For that reason, they are, strictly speaking, not points in limine in that the court would still have to decide what is effectively the main issue on the merits.

It is for that reason also that I decided and advised both sets of counsel to make their submissions on the points in limine as well as the merits, and, thereafter, the court will make its ruling and judgment at once.

SC67-21 : COSSAM CHIANGWA and OTHERS vs APOSTOLIC FAITH MISSION IN ZIMBABWE and OTHERS
Ruled By: MAVANGIRA JA, MAKONI JA and KUDYA AJA

This is an appeal against the entire judgment of the High Court, dated 4 September 2019, in which the court a quo granted a declaratur and consequential relief sought by the respondents against the appellants and dismissed the application for a declaratur sought by the appellants against the respondents.

The order of the court a quo erroneously confirmed the terms of a provisional order of the initial urgent chamber application that had, by consent of the parties, been removed from the roll of urgent chamber matters, on 8 October 2018, and enlisted on the opposed roll. The provisional order was substituted by an “amended draft order” filed together with the respondents answering affidavits and heads of argument on 2 November 2018.

The erroneous order was, with the consent of the parties, corrected by this Court in terms of section 22(1)(a) of the Supreme Court Act [Chapter 7:13] in Civil Appeal No. SC527/2019, which was specially lodged by the respondents for that purpose and heard just before the present appeal.

The corrected order of the court a quo, therefore forms the basis of the present appeal.

THE FACTS

The appeal concerns a church dispute between two formations for the control and leadership of the Apostolic Faith Mission in Zimbabwe (the AFM or the church).

The appealed judgment is a consolidation of two applications that were filed separately by the parties.

The first application, HC9149/18, was filed by the first five respondents (Apostolic Faith Mission in Zimbabwe, Aspher Madziyire, Amon Madawo, Munyaradzi Shumba and Tawanda Nyambirai) against the seven hominal appellants (Cossam Chiangwa, Amon Chinyemba, Nathan Nhira, Shepherd Sebata, Donard Mdoni, Arthur Nhamburo and M. Mashumba) on 4 October 2018; while the second application, HC179/19, was filed by the first five appellants (Cossam Chiangwa, Amon Chinyemba, Nathan Nhira, Shepherd Sebata and Apostolic Faith Mission in Zimbabwe) against the second (Aspher Madziyire), third (Amon Madawo), sixth (Clever Mupakaidzwa), seventh (Briton Tembo) and eighth (Christopher Chembere) respondents on 10 January 2019.

In the first application, the respondents sought the nullification of a meeting held by the appellants on 22 September 2018, and all subsequent acts flowing from it while in the second application the appellants sought recognition as the duly elected office bearers of the church and consequential relief.

The High Court granted the first application and dismissed the second, with costs.

The church is a universitas with a written Constitution and consequent regulations, which inscribe its foundational values, confession of faith, mission and governance structures and reposes the power to sue and be sued in its national office bearers in clauses 1.2, 1.3, 1.4 1.4. 6(f) and 12.4.1, respectively.

The dominant protagonists in the two applications were the second respondent (Aspher Madziyire) and the first appellant (Cossam Chiangwa), respectively, who were elected President and Deputy President of the church at the triennial elections in April 2015. The third (Amon Madawo) and fourth (Munyaradzi Shumba) respondents were elected, at the same elections, as General Secretary and National Administrator.

Between August 2015 and 15 September 2018, the Church, led by the Apostolic Council and Workers Council, conducted a Constitutional Review Process (CRP) through a Constitutional Review Committee (CRC) chaired by the fifth respondent (Tawanda Nyambirai), a co-opted member of the Apostolic Council.

The Constitutional Review Process (CRP) was designed to address acute electoral, financial, and governance shortcomings through the amendment of the Constitution and geared to deliver free, fair and credible church elections; strengthen accountability and transparency; and engender parity and equity in the conditions of service of the clergy and development programs of the church in both rural and urban areas.

The Constitutional Review Process (CRP) culminated in the Extraordinary General Meeting (EGM) of the Workers Council of 10 February 2018, which resolved to hold the triennial Provincial and Workers Council elections, due on 28 April 2018, after “the Workers Council considers, and, if deemed fit, passes, with or without amendment, the proposed amendments to the Constitution of the Apostolic Faith Mission in Zimbabwe in terms of the attached draft” at its scheduled meeting of 28 April 2018.

The meeting of 28 April 2018 was terminated unceremoniously without resolving the proposed resolution.

Tonderai Mathende took the Church, the first (Apostolic Faith Mission in Zimbabwe), second (Aspher Madziyire) and fifth (Tawanda Nyambirai) respondents and the first appellant (Cossam Chiangwa) to court under HC4756/18 and obtained an order compelling the 2015 office bearers to reconvene and conclude the aborted Workers Council meeting of 28 April 2018.

By a letter dated 31 July 2018, the second respondent (Aspher Madziyire) called for a Workers Council Meeting to be held on 15 September 2018 in compliance with the court order issued under HC4756/18.

On 15 September 2018, the Workers Council met and considered the proposed Constitutional amendments and “accepted” them subject to the suspension of all the provisions, except for the provisions relating to the conduct of elections, in order to give other church members an opportunity to propose further amendments to the amendments.

The resolution was carried by 2,021 votes, inclusive of the appellants votes, against 35, with no abstentions.

The optimum number of councillors supplied by the respondents was 3,475 councilors against 2,056 provided by the appellants.

On 21 September 2018, the Apostolic Council met to consider the dates and rules for the impending triennial elections.

The provincial elections were to be held on 29 September and 3 October 2018, while the national elections would be on 3 November 2018.

The first appellant (Cossam Chiangwa) told the meeting that “he would go his own way because he did not accept the resolution that was passed by the Workers Council on 15 September 2015.”

Whereupon, he served written notice, dated 20 September 2018, and co-signed by all the appellants (Cossam Chiangwa, Amon Chinyemba, Nathan Nhira, Apostolic Faith Mission in Zimbabwe, Donard Mdoni, Arthur Nhamburo and M. Mashumba), except the fourth (Shepherd Sebata), on his fellow national office bearers of the meeting of 22 September 2018.

Paragraph 2 of the notice implored the targeted audience to:

“Please note that this is a National Workers Council of all those councilors who strongly feel the adoption of the DRAFT resulted in the formation of a totally different church and is in itself a departure from the church that they have always cherished and loved. It is, therefore, a National Workers Council of those councilors who would like to remain in the AFM in Zimbabwe Church which is governed by the old Constitution which the 15th September National Workers Council attempted to repeal.”…,.

The meeting of 22 September 2018, was purportedly attended by 2,056 councillors, comprised of 1,562 delegates and 567 pastors from 513 assemblies with apologies from 137 assemblies.

The attendees ignored the cease and desist call from the second respondent (Aspher Madziyire).

The meeting, inter alia, reviewed and nullified the resolution of 15 September 2018, and, by a total 1,557 affirmative votes, dismissed the serving national bearers, other than the first appellant (Cossam Chiangwa), arrogated to themselves the power to conduct triennial elections on 6, 13 and 20 October 2018 and incited the members to revolt against the defrocked office bearers.

On 25 September 2018, the Apostolic Council abandoned the saved electoral amendments because they were in complete dissonance with the preserved governance structures of the amended Constitution.

On 26 September 2018, the appellants (Cossam Chiangwa, Amon Chinyemba, Nathan Nhira, Shepherd Sebata, Apostolic Faith Mission in Zimbabwe, Donard Mdoni, Arthur Nhamburo and M. Mashumba) spurned the cease and desist order and call to return to the mainstream fold issued by the third respondent (Amon Madawo).

They appointed their own 26 provincial overseers and the fourth appellant (Shepherd Sebata) as the National Administrator to whom church funds were to be remitted.

They also urged all church members to ignore the triennial dates set by the Apostolic Council.

On 27 September 2018, the appellants were suspended without pay and benefits and subsequently charged with participating in an illegal meeting and formenting rebellion, disharmony, confusion, destabilization, disorder, and disturbances against the church; forming a splinter group and usurping the powers of the Apostolic Council and the other office bearers in violation of clauses 1.4.2 and 1.4.6 of the Constitution.

They snubbed the charges and notices of hearing, and were dismissed from their official positions on 15 October 2018 with effect from their respective dates of suspension.

They refused to vacate church premises and surrender church assets in their possession or under their control.

They were permanently replaced as office bearers at the national elections held by the respondents (Apostolic Faith Mission in Zimbabwe, Aspher Madziyire, Amon Madawo, Munyaradzi Shumba, Tawanda Nyambirai, Clever Mupakaidzwa, Briton Tema and Christopher Chembere) on 3 November 2018.

The appellants conducted parallel provincial elections on 3, 6, 7, 13 and 14 October 2018 and Worker's Council elections on 20 October 2018, where the first four appellants (Cossam Chiangwa, Amon Chinyemba, Nathan Nhira and Shepherd Sebata) were elected as President, Deputy President, General Secretary and National Administrator.

It was in their collective capacity, as purported office bearers, that they lodged the second application.

THE ARGUMENTS PRESENTED IN THE COURT A QUO

The First Application

In the first application, the respondents submitted, that, they were the duly elected office bearers of the church, who had legal standing to sue on its behalf for the vindication and protection of its assets through a declaratur and an interdict.

They contended that they had satisfied the requirements for a declaratur prescribed in section 14 of the High Court Act [Chapter 7:06] and the common law requirements for a final interdict and were thus entitled to such relief.

They argued that the meeting of 22 September 2018 was ultra vires the Constitution in that it violated the notice and quorum requirements stipulated in clause 12.7.1 as read with 12.3, clause 13.3.1 of the Regulations and clauses 12.6 and 12.9 and the financial probity arrangements enshrined in clause 12.5 and 12.6 of the Constitution.

They also argued that the vote of no confidence was not only alien to the Constitution but also violated the audi alteram rule.

Lastly, they contended that the appointment, instead of election, of office holders in the church, was anathema to the Constitution.

The appellants took five preliminary points. These were;

(i) That the application was not urgent;

(ii) The respondents did not have locus standi to represent the church as their tenure of office, as national office bearers, had expired on 28 April 2018 and had not been renewed;

(iii) The matter was lis pendens in Mujokeri v Madziyire HC4583/18, in which judgment had been reserved;

(iv) The application was a disguised review of the outcomes of the meeting of 22 September 2018 which could not be sought urgently, on review, or through a declarator; and

(v) Lastly, that there were material disputes of fact, pertaining to the quorum of the meeting of 22 September 2018, which could not be resolved on the papers.

On the merits, the appellants implicitly conceded that their meeting was not convened in terms of the Constitution by ascribing the call to “a big constituency of the church which was clearly not happy with the way the church was going about the Constitutional changes.”

They, however argued, that, this amorphous grouping had the power to dis-appoint just as it had the power to appoint the respondents.

They strongly contended that the resolution of 15 September 2018 was in breach of the mandatory procedural requirements of the two-thirds quorum prescribed in clause 12.6 of the Constitution.

The Second Application

In the second application, the appellants, who baptized themselves as 'the Originals' submitted, that, as the office bearers elected by the church at the triennial elections of 20 October 2018, they had the power to vindicate and protect the assets of the church from the respondents, whom they christened 'the Reform Side' whose tenure of office expired by the effluxion of time on 28 April 2018.

They further submitted, that, the respondents, by violating the amendment clause, clause 12.6 to the Constitution, had, by public acclamation, forfeited their claims to the leadership of the church to the appellants.

The respondents took two preliminary points:

(i) They contended, that, the appellants had no locus standi to represent the church as their election to the national offices was tainted by the illegality of the meeting of 22 September 2018 from which they traced their authority.

(ii) The second was that there were material disputes of fact on the procedure, substance, and effect of the meeting of 22 September 2018 which could not be resolved on the papers.

On the merits, the appellants contended, for the first time in argument, that, the respondents had seceded from the church on 22 September 2018 and therefore did not have locus standi to represent the church.

They argued, that, the respondents sought to overhaul the Constitution and reframe the church in their own image by abandoning the confession of faith and the fundamental doctrines of the church.

THE DETERMINATION OF THE COURT A QUO

The court a quo criticized both parties for raising preliminary points “in such a contentious matter.” It prefaced its decision on the preliminary objections by remarking that:

“Both Madziyire and Chiangwa should have realized that preliminary matters, though permissible in terms of the rules of court, served no purpose in such a contentious matter as the present one.

They should have remained alive to the fact, that, the same required the court to consider the merits of the case as opposed to having the same resolved on the basis of technical issues.

Any technical issue which is not capable of resolving the dispute of the parties is not worth the paper on which it is written. It becomes a time-wasting exercise which does not enhance the work of the court. It should, therefore, be avoided as it constitutes an exercise in futility which is of no benefit to anyone. It does not benefit the party which raises it, let alone the party against which it is raised.

Apart from the issue of lis pendens, which Chiangwa raised, I shall, therefore, deal with all the parties preliminary issues in the body of this judgment. They all relate to the reasons which prompted Madziyire and Chiangwa to file their respective applications.”...,.

The issue of locus standi had been raised by both parties as a preliminary issue in their respective applications.

The finding that the respondents had locus standi, while the appellants did not, adequately resolved the dispute between the parties. It was not necessary for the court a quo to delve into the other issues....,.

Counsel for the appellants criticized the court a quo for using the merits to determine the preliminary points.

Counsel for the respondents conceded that such an approach was “inelegant, but not blatantly wrong.”

The approach of the court a quo was colored by its misunderstanding of the sentiments made, inter alia, in Telecel Zimbabwe (Pvt) Ltd v Postal and Telecommunications Regulatory Authority of Zimbabwe & Ors HH446-15…, which deplored the futility of raising unsustainable preliminary points in a bid to avoid decision on the merits.

That case did not advocate the procedure adopted by the court a quo.

It ought to have determined the matter without delving into the merits by assessing the admitted conduct of the parties against the provisions of the Constitution.

It is significant, however, that, in the end, justice was properly served.

HB04-16 : PATIENCE MAFU vs FREEMAN BIBA NCUBE and THE BULAWAYO CITY COUNCIL
Ruled By: MATHONSI J

Courts of law are there to adjudicate disputes on the merits. While matters may be disposed of procedurally; in my view, a definitive determination of the merits should be the first prize.

SC78-21 : ZIMBABWE HOMELESS PEOPLES FEDERATION and OTHERS vs MINISTER OF LOCAL GOVERNMENT AND NATIONAL HOUSING and OTHERS
Ruled By: GARWE JA, MAVANGIRA JA and MATHONSI JA

After hearing argument from the parties, the High Court of Zimbabwe made an order dismissing the application filed by the appellants in terms of section 85(1) of the Constitution of Zimbabwe. The court also ordered the appellants to pay the costs of the application.

This followed a finding by the court that the appellants could not properly seek to enforce their right to shelter in terms of section 85 of the Constitution of Zimbabwe as such a right was not a fundamental right enshrined in Chapter 4 of the Constitution which contains the declaration of rights. The court further found, that, the right to shelter was one of the national objectives under Chapter 2 of the Constitution and therefore not justiciable.

This appeal is against that determination.

FACTUAL BACKGROUND

The first appellant, the Zimbabwe Homeless Peoples Federation, is a universitas at law with an active membership said to be ten thousand homeless people who contribute and pool their resources together for the purpose of achieving and attaining the goal for housing for poor homeless people. The second appellant, Tawonga Savings Scheme, is a saving scheme established in terms of its Constitution with the power to sue and be sued.

The third appellant, Ngwaru Masanza, is a resident of Newpark informal settlement situated at Haydon Farm along the Old Mazoe Road.

Although counsel for appellants attempted, unsuccessfully, to urge the court a quo, and this Court, to accept that the application brought by the first and second appellants in the court was not in terms of section 85(1) of the Constitution of Zimbabwe, it is clear, when all is said and done, that all three appellants approached the court a quo in terms of section 85(1) of the Constitution.

This is an aspect I will revert to in the course of this judgment as it has an important bearing on whether or not the appellants were properly non-suited by the court a quo on the basis that they could not seek relief in terms of section 85 of the Constitution.

The first respondent is the Minister of Local Government and National Housing whose Ministry is responsible for national housing and the administration of local authorities in Zimbabwe. He is hereinafter referred to as “the Minister” of Local Government.

The second respondent is Zvimba Rural District Council, a local authority that operates under the aegis of the first respondent. It will be referred to in this judgment simply as “the Council”. It is the local authority for Haydon Farm which is at the centre of the dispute between the parties herein.

The third respondent is Leengate (Pvt) Ltd (“Leengate”), a private company involved in housing development. It was this company which was given the right to develop a portion of the farm in question.

The fourth respondent is the Minister of Lands, Land Reform and Rural Resettlement, the acquiring authority of the farm. He is hereinafter referred to as “the Minister of Lands”. It was the Minister of Lands who handed over the farm to the Minister of Local Government for housing development who, in turn, allocated it to the Council and Leengate.

Members of the Tawonga Savings Scheme, including the third appellant herein (Ngwaru Masanza), took occupation of Haydon Farm sometime in 2000, during the height of the land reform programme. They proceeded to construct fixtures, some permanent, but these were demolished in 2005 during a Government operation that came to be referred to as Operation Murambatsvina.

It was shortly thereafter that the land in question was acquired by the State pursuant to Constitutional Amendment No.17 after which it became State land.

The informal settlement at the farm was not regularised.

In due course, the third respondent, Leengate (Pvt) Ltd, was offered a hundred hectares of the land for residential development.

It is common cause that some of the appellants occupy part of the land that was offered to Leengate (Pvt) Ltd for development.

It is not in dispute that Leengate (Pvt) Ltd proceeded to have the land surveyed after which roads and storm drains were constructed thereon. Leengate proceeded to develop a hundred and fifty Stands which it then sold to the public.

About forty per cent of this land is still occupied by the second appellant's members.

PROCEEDINGS BEFORE THE HIGH COURT

In their founding papers before the High Court, the appellants averred that Council and Leengate (Pvt) Ltd then began to threaten them and proceeded to evict some of them from the farm. They gave notice to the remaining occupants to vacate the farm by a given date.

The appellants contended, that, the evictions were a breach of their rights enshrined under sections 28, 44, 48, 51, 56(1) and 77 of the Constitution.

They argued, that, whilst there was no specific right to shelter or housing in the Declaration of Rights, other than for children, the right to dignity (section 48) necessarily incorporates the right to shelter as the latter right would be meaningless without the concomitant right to food and shelter.

The appellants therefore sought an order interdicting the Council and Leengate (Pvt) Ltd from evicting them.

They also sought orders compelling the Minister of Local Government and the Council to allocate serviced Stands to them as well as construct basic houses for them. Alternatively, they sought an order compelling the Minister of Local Government and the Minister of Lands to provide them with alternative land and serviced Stands thereon.

An application to further amend the prayer was abandoned at the hearing of this matter.

All the respondents, including the City of Harare against which the application was subsequently withdrawn, opposed the application to interdict what the appellants termed forced evictions.

The Minister of Local Government and the Minister of Lands took the common position that the land in question was State land and that the appellants had no lawful authority to occupy, use, or hold it. They contended that the right to shelter was not part of the Bill of Rights and therefore the appellants could not seek relief against them in terms of section 85 of the Constitution.

Leengate (Pvt) Ltd, on the other hand, averred, that, the appellants occupation of the farm was illegal and that, as a corollary, they had no right of audience before the court. Leengate also submitted that there had been no illegal evictions undertaken by itself or at its instance. Instead, what it had done was follow due process and to institute eviction proceedings against the appellants in the Magistrates Court. Leengate further submitted, that, as the right to shelter was not entrenched in the Constitution, the appellants therefore had no cause of action against it pursuant to section 85 of the Constitution.

In its determination, the court a quo found that all the applicants had approached the court in terms of section 85(1)(d), 85(1)(e) and 85(1)(a) respectively.

The court held, that, section 85(1) was available to litigants who sought to enforce rights enshrined under the Declaration of Rights in Chapter 4. It found that since the right to shelter was not part of the Declaration of Rights, the appellants could not have properly approached the court in terms of section 85(1) alleging a breach of a fundamental right.

The court found it unnecessary to determine the merits of the matter, and, consequently, dismissed the application with costs.

PROCEEDINGS BEFORE THIS COURT

Aggrieved by the above determination, the appellants noted an appeal to this Court. They alleged that the court a quo had erred in three respects:

(i) Firstly, in failing to recognise the right of shelter on the basis that it is not included in Chapter 4 of the Constitution whereas section 47 of the Constitution, which is part of the Bill of Rights, provides that Chapter 4 does not preclude the existence of other rights and freedoms that may be recognised or conferred by law, to the extent that they are consistent with the Constitution.

(ii) Secondly, in finding that the appellants could not approach the court in terms of section 85 of the Constitution when there was in existence section 47 of the same Constitution which recognised the existence of other rights and freedoms conferred by the law.

(iii) In not making a determination on the merits through the selective application of Chapter 4, when the very same Chapter contains the non-exclusionary clause under section 47 of the same Constitution.

Both in his heads of argument and oral submissions, counsel for the third respondent (Leengate (Pvt) Ltd) raised the preliminary point, that, the appellants heads of argument were not compliant with Rule 52(2) of the Supreme Court Rules, 2018.

Although the parties had agreed, before the hearing, not to pursue the preliminary points taken by the respondents in their respective heads of argument, all addressed the court on whether there were proper heads of argument filed by the appellants before the court.

The court directed the parties to address it on all the issues that required determination by this Court.

On the merits, counsel for the appellants submitted, that, the right to shelter ought to be declared a fundamental right pursuant to section 47 of the Constitution.

She further argued, that, the right to life, dignity, and equal protection of the law do not exist independently of the right to shelter. Human rights are indivisible and interdependent. Indeed, one cannot be said to have the right to life or dignity if one does not have the right to shelter or a home.

Counsel urged the court to adopt a wide and purposive interpretation in order to determine whether the legislature intended to make shelter a fundamental right within the Constitution.

Counsel further argued, that, the findings of the court a quo had not taken into account all the provisions of the Constitution.

The Constitution has provided for adequate shelter as a national objective under section 28.

It has provided for freedom from arbitrary evictions under section 74 of the same Constitution. It has also made provision for the right of children to education, health services, nutrition, and shelter under section 81(f). It also provides for security of tenure to every person lawfully owning or occupying agricultural land.

The court should therefore have adopted a purposive interpretation and paid due regard to all these provisions that have a bearing on the right to shelter.

Taken as a whole, the Constitution provides for the fundamental right to housing.

The appellants have further contended, that, the decision of the court a quo has far reaching implications as it effectively leaves the appellants members homeless with nowhere to go.

Before sanctifying the drastic measure of eviction, the court a quo should have gone beyond the facts.

The court did not take into account the circumstances and length of time the appellants members had been in occupation, the rights and needs of vulnerable sections of that group, such as children, and the failure by the relevant organs of the State to make suitable alternative accommodation available.

SUBMISSIONS BY THE MINISTER OF LOCAL GOVERNMENT AND THE MINISTER OF LANDS

Counsel for the two Ministers submitted, that, for the reasons given by Leengate (Pvt) Ltd, with which they agree, the appellants heads of argument do not comply with the Rules of Court. He urged this Court to find that there are no proper heads before it.

On the merits, he argued, that, the right to shelter is not included in Chapter 4 of the Constitution but is envisaged as a national objective under section 28.

He further submitted, that, the reliance by the appellants on section 47 of the Constitution was inappropriate as they had failed to point to any law that provides the right to shelter. In any event, any rights recognised by section 47 of the Constitution are not fundamental rights. The provision simply means the Constitution does not exclude the existence of other rights confirmed in terms of other laws recognised as such by the Constitution.

SUBMISSIONS BY LEENGATE

Counsel for Leengate (Pvt) Ltd submitted, that, there were no proper heads of argument before the court. The appellants heads span fifty-eight pages and are clearly not in compliance with Rule 52(2) of the Supreme Court Rules 2018.

On the merits, counsel also submitted, that, the right to shelter is just but an aspiration.

Section 47 of the Constitution refers to rights conferred by law. The appellants have not pointed to any provision of law that creates the right to shelter.

The matter brought before the court is therefore not a constitutional matter, and, consequently, the principle of subsidiarity applies.

ISSUES ARISING FOR DETERMINATION

From the above synopsis, four issues arise for determination. These are:

(i) First, whether the appellants heads of argument are compliant with Rule 52(2) of the Supreme Court Rules 2018.

(ii) Second, whether the right to housing is a fundamental right cognizable in our law.

(iii) Third, whether the court correctly found that the appellants could not properly approach the court in terms of section 85 of the Constitution and whether the doctrine of avoidance is applicable in this case.

(iv) Last, whether the court a quo erred by not making a determination on the merits....,.

THE ALLEGED FAILURE TO DETERMINE THE MATTER ON THE MERITS

Having correctly found that the appellants could not approach the court in terms of section 85 of the Constitution, it became unnecessary for the court to deal with the matter on the merits.

SC80-21 : ALLEN GESSEN vs PRISCILLA CHIGARIRO
Ruled By: MATHONSI JA

This is an application for condonation of the late noting of an appeal and the extension of time within which to appeal against a judgement of the High Court handed down on 1 October 2020.The applicant's initial appeal, filed timeously, was struck off the roll on 1 April 2021 for ...

This is an application for condonation of the late noting of an appeal and the extension of time within which to appeal against a judgement of the High Court handed down on 1 October 2020.

The applicant's initial appeal, filed timeously, was struck off the roll on 1 April 2021 for the reason that the Notice of Appeal was fatally defective.

FACTUAL BACKGROUND

The applicant is a citizen of the United States of America (USA) even though he was born in Russia. The respondent is a Zimbabwean citizen. The two met in 2011 in Harare, Zimbabwe and commenced having a relationship which is said to have been upgraded to a customary marriage by reason that the applicant paid the bride price for the respondent.

They never registered a legal marriage.

The parties association was blessed with a boy child, called Orrin, who was born on 23 July 2013.

During the period extending from 2015 to 2019, the applicant secured employment in Russia, and, as such, became resident in that country. In 2016, the respondent and the boy child, Orrin, followed the applicant to Russia where the family took up residence.

It was during the period of their temporary residence in Russia that the couple decided to have a second child. Owing to some health challenges, the respondent could no longer carry the pregnancy. They decided to have the child through surrogacy and found a surrogate mother with whom a Surrogacy Agreement was entered into.

It was signed by the applicant, the respondent, and the surrogate mother on 2 March 2018.

The Surrogacy Agreement stated, in pertinent part:

“We undertake to assume the equal rights and obligations of parents with respect to the children, born by 'surrogate mother' after embryo transfer to the uterine cavity of 'surrogate mother', in terms of their upbringing, as defined by the Russian legislation on family and marriage.”

In pursuance of that agreement, the surrogate mother carried the pregnancy for the parties and gave birth to the girl child, Elizabeth, now at the centre of the dispute, on 15 November 2018.

Unfortunately, the parties relationship hit turbulence, and, a short while after the birth of the child, they commenced living apart.

Although the surrogate mother had given her consent for them to register the child as their own, as genetic parents, the Khamovhichesky Department of the Civil Registry of Moscow refused their application to register the child as they were not married.

Acting together, they instituted a lawsuit against the Registry Office for their recognition as the parents of Elizabeth.

On 27 September 2019, the Meshchansky District Court of Moscow allowed the State registration of the child and for the respondent to be registered as its mother. The applicant was not so lucky. His application for registration as the father was rejected because, by then, he had had his employment in Russia terminated and had relocated to the United States of America.

In doing so, the applicant took the boy child, Orrin, with him.

Although there is no convergence between the parties as to what their intentions were, the applicant says he relocated to the United States of America with the respondent's consent, while the respondent's position is that the applicant abducted Orrin and deserted her and Elizabeth.

It is however not in dispute that the respondent and Elizabeth were left stranded in Russia. They had been in that country on the applicant's expired VISA.

The respondent and Elizabeth ended up living at the Zimbabwean embassy while processing documents to move to Zimbabwe. In due course, the duo found their way to Zimbabwe, in November 2019, where they have remained to this date.

The applicant was aggrieved.

He brought an application to the High Court in terms of the Hague Convention on the Civil Aspects of International Child Abduction (the Hague Convention). The Hague Convention has been domesticated in Zimbabwe and bears the force of law by virtue of section 3 of the Child Abduction Act [Chapter 5:05].

The basis of the applicant's case was that the removal of the child from Russia, and its retention in Zimbabwe, are unlawful.

The applicant sought a declaratory order to that effect. Consequent to that, the applicant sought an order that the child be removed from Zimbabwe and sent to Boston in the United States of America or to Russia for a determination of the parties parental rights in those jurisdictions.

According to the applicant, Russia was the child's habitual residence. He asserted that the child had been in that country awaiting the processing of documentation which would have enabled it to migrate to the United States of America with the respondent in terms of their agreement.

The respondent opposed the application.

According to her, the parties had agreed to return to Zimbabwe and settle here. She stated that an email she had written to the applicant's lawyer, insinuating the existence of an agreement with the applicant for their relocation to the United States of America, had been written under duress. The respondent asserted full parental rights over the child to the exclusion of the applicant as her rights had been settled by the court in Russia. According to her, the child was lawfully retained as a Zimbabwean.

The High Court dealt with a number of approaches in seeking to determine the child's habitual residence for purposes of the Hague Convention on the Civil Aspects of International Child Abduction (the Hague Convention).

It concluded, that, while the issue of the intention of the parties was key in determining habitual residence, the child's parents never formed an intention to settle in Russia. They travelled there for work only and for that reason Russia was not the child's habitual residence. It could not be returned to that country.

By the same token, the High Court found, that, it could not order that the child be returned to the United States of America given that doing so would not be in line with the Hague Convention's purpose of restoring the status quo ante.

Finding the Hague Convention inapplicable, the High Court dismissed the application.

The applicant was dissatisfied.

On 9 October 2020, well within the time allowed by the rules of court, the applicant filed an appeal to this Court. The appeal was defective in that the relief sought therein was incompetent. At the hearing, the appeal suffered the fate of all defective appeals. It was struck off the roll.

THE APPLICATION

The appeal, having been struck off the roll, the applicant has filed the present application for condonation of the late filing of an appeal and the extension of time within which to appeal. The application before me was filed on 9 April 2021 – just eight (8) days after the initial appeal was struck off.

Clearly, there was no material delay in seeking condonation.

The applicant's explanation for failure to comply with the Rules is, that, right up to the date of the hearing of the appeal, he was labouring under the mistaken belief that he had filed a valid appeal. The explanation is actually given by the applicant's legal practitioner who takes ownership of the defective prayer in the initial appeal.

On the prospects of success on appeal, the point is made, on behalf of the applicant, that, the High Court was wrong in dismissing the application on the basis that shared parental intent could not give rise to an application under the Hague Convention on the Civil Aspects of International Child Abduction (the Hague Convention). The applicant would also want to contest the High Court's finding that Russia was not the child's habitual residence.

The respondent opposes the application.

In doing so, the respondent asserts, that, the intended appeal enjoys no prospects of success because the applicant had sought the return of the child to Russia. That country could not possibly be said to be the child's habitual residence in the circumstances of the case. Accordingly, the High Court's decision cannot be assailed.

In the respondent's view, the applicant ought to have appealed against the judgment of the court of Moscow which gave her sole parental rights over the child. She denies unlawfully retaining the child in Zimbabwe.

PRELIMINARY OBJECTIONS

Counsel for the respondent raised two preliminary objections:

(i) Firstly, she submitted that the prayer in the heads of argument filed on behalf of the applicant was defective. It sought the dismissal of the appeal when what is before the court is an application for condonation.

In counsel's view, such inattention has permeated the manner in which the applicant has dealt with this matter.

Counsel for the applicant was down on his knees, so to speak, when he apologised profusely for that typing error. He promptly applied for the deletion of the prayer from the heads of argument.

While such clerical oversights should not be done in papers filed by senior counsel for the benefit of a superior court, they cannot form the basis of a dismissal of an application.

(ii) Secondly, counsel for the respondent objected to the filing of the applicant's answering affidavit out of time.

In terms of Rule 43(5), the applicant should file his or her answering affidavit within three (3) days of being served with the respondent's opposing affidavits. In this case the answering affidavit was filed on the fourth day.

In my view, no prejudice was suffered by the respondent by that marginal failure to meet the timelines set by the Rules. This is moreso given, that, the offending affidavit was filed on 22 April 2021 - several weeks before the application was set down.

I restate, that, such small indiscretions should not be allowed to stand in the way of the attainment of justice and the right of litigants to access the court.

I condoned the late filing of the answering affidavit.

Appealed
SC119-21 : MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS and OTHERS vs CONCILIA CHINANZVAVANA and THE NATIONAL PEACE AND RECONCILIATION COMMISSION
Ruled By: GWAUNZA DCJ, GUVAVA JA and BHUNU JA

This is an appeal against the entire judgment of the High Court sitting at Masvingo dated 13 March 2019. In this case, the court a quo granted a declaratory order sought by the first respondent in the following terms:

“The National Peace and Reconciliation Commission that is established in terms of section 251 of the Constitution shall have a tenure of life of ten (10) years deemed to have commenced on the 5th of January 2018 with the gazetting as law of the National Peace and Reconciliation Act [Chapter 10:32].”

Aggrieved by the order, the appellants (Minister of Justice, Legal and Parliamentary Affairs, President of the Republic of Zimbabwe, Vice President of the Republic of Zimbabwe and the Attorney General of Zimbabwe) have appealed to this court for relief.

BACKGROUND FACTS

The first respondent filed an application for a declaratory order on the 8th of October 2018, before the court a quo, in terms of section 85(1)(a) of the Constitution of Zimbabwe, 2013. The first respondent grounded her application on an alleged violation of section 56(1) of the Constitution of Zimbabwe 2013. She alleged that her fundamental right to equal protection of the law had been violated by the conduct of the appellants who had failed to enact the National Peace and Reconciliation Act (NPRC Act) in time and thus curtailed the life of the Commission by five years.

As a result of the alleged breach, she sought an order, that, it be declared that the second respondent's life tenure of ten years be deemed to have commenced from the 5th of January 2018 when the National Peace and Reconciliation Act (NPRC Act) was promulgated into law.

In the application, the first respondent's founding affidavit was divided into three parts:

(i) The first part related to the history and formation of the second respondent. The first respondent averred that the Constitution of Zimbabwe Amendment (No.20) Act 2013 ('the Constitution') introduced a number of key and revolutionary changes, chief amongst them being the creation of several Commissions. It was the first respondent's argument, that, the second respondent was one of the Commissions that was created. It was to operate for not more than ten years and had the mandate, in the main, of investigating human rights violations that were alleged to have occurred in 2008 in Zimbabwe.

The first respondent further averred, that, the Government of Zimbabwe had unilaterally amended section 251 of the Constitution by failing to ensure that the second respondent was established as soon as possible after the coming into operation of the Constitution thereby resulting in the Commission only being established after the National Peace and Reconciliation Act (NPRC Act) was enacted into law on the 5th of January 2018.

This was five (5) years after the coming into operation of the Constitution.

It was the first respondent's contention, that, this resulted in the second respondent having an existence of only five (5) years, that is, to August 2023. It was also the first respondent's averment that the failure by the Government of Zimbabwe to ensure that the effective date of the establishment of the second respondent, immediately after the coming into effect of the Constitution, amounted to a breach of her fundamental right to equal protection of the law as enshrined in the Constitution under section 56.

(ii) The second part of the founding affidavit dealt with the issue of whether or not the first respondent had locus standi to make the application and the legal basis upon which the application was before the court a quo.

The first respondent averred, that, she was a national executive member of the Movement for Democratic Change (MDC) Alliance for Mashonaland West. She further averred that she was making the application in terms of section 85(1)(a) of the Constitution, acting in her own interest, to ensure peace and reconciliation in Zimbabwe. She further alleged, that, her rights, in terms of section 56(1) of the Constitution, had been violated. She thus alleged that she had the requisite interest in the matter to bring the application in terms of section 85(1)(a) of the Constitution.

(iii) The last part of the founding affidavit dealt with an alleged ordeal that the first respondent and her family suffered in the hands of State security agents. She alleged that after the 2008 harmonized election, violence erupted in Zimbabwe and left many (including the first respondent and her family) displaced or dead. As a result of this violence, the first respondent and her husband allegedly fled from their home in Mashonaland West to Harare and stayed at Harvest House and at other MDC Alliance activists homes. The first respondent further alleged, that, she and her husband and other MDC activists were taken to Braeside Police Station and were detained for fifty-five (55) days. It was in the hands of the said police officers that the first respondent, her husband, and other activists were subjected to torture and abuse.

The first respondent further alleged, that, they were subsequently taken to Ahmed House where they were charged with terrorism, sabotage, and insurgence. The first respondent, and others, were taken to Harare Magistrates Court where they were remanded in custody. It was also alleged that the first respondent, her husband, and other activists were released after one Jestina Mukoko successfully filed an application to the Constitutional Court and the Court ordered that they be released as their original arrest was unlawful.

It was on this basis that the first respondent sought a declaratory order that the second respondent has life tenure with effect from 5 January 2018 to 5 January 2028 so that it could look into the alleged atrocities alleged in the founding affidavit.

Initially, the appellants had only opposed the application based on a preliminary objection to the application without addressing the merits of the matter. The objection was to the effect that the declaratory order sought by the first respondent was incompetent at law as she sought to amend the Constitution through a court order.

The court a quo however directed the appellants to file an opposing affidavit on the merits.

View Appeal
HMA13-19 : CONCILIA CHINANZVAVANA vs MINISTER OF JUSTICE, LEGAL & PARLIAMENTARY AFFAIRS and OTHERS
Ruled By: MAFUSIRE J

Section 251(1) of the Constitution of Zimbabwe says:

“For a period of ten years after the effective date, there is a commission to be known as the National Peace and Reconciliation Commission consisting of –”

The rest is not immediately relevant.

The applicant is a Member of Parliament for the House of Assembly on the ticket of the Movement for Democratic Change–Alliance party (MDC-A), the largest opposition political party in Zimbabwe by number of followers - at least from the results of the last general election on 30 July 2018. She wants the court to pronounce that the intention of the framers of the Constitution, as expressed in section 251(1) above, was that the life of the National Peace and Reconciliation Commission (“the NPRC” or simply “the Commission”) once established “…, after the effective date…,” would be, at the very least, ten years. Otherwise, she says, there is nothing in that section limiting the existence of the Commission to just ten years.

For her cause, the applicant has brought to court the top echelons of the Executive arm of the Government of Zimbabwe comprising the President; his Vice, to whom the administration of the National Peace and Reconciliation Commission (Commission) is assigned; the Minister of Justice, who, among other roles, doubles up as leader of Government business in Parliament; and the Attorney General of Zimbabwe, who, among other things, is the chief legal adviser.

It being the subject of the suit, the National Peace and Reconciliation Commission (NPRC) is also a party.

At first brush, there can be nothing awkward or problematic with what section 251(1) of the Constitution is saying. The provision is recognizing that there is an effective date, for this is clearly defined in section 332 of the Constitution. It is naming a certain Commission that should be there for a fixed period after the effective date. It names that Commission as being the National Peace and Reconciliation Commission (NPRC). It defines that period as ten years. In other words, and looking at it superficially, the National Peace and Reconciliation Commission (Commission) exists for ten years after the effective date.

But, apparently the position is not altogether that obvious.

To begin with, the section does not expressly tell when exactly the National Peace and Reconciliation Commission (Commission) is established. It starts by simply recognising it as a fait accompli, a thing that has already happened after the effective date. The hidden problem comes out more in the open when one considers the exact nature of the relief sought by the applicant. According to her draft order:

“1. The National Peace and Reconciliation Commission, established in terms of section 251 of the Constitution, shall have tenure of life of ten years which are deemed to have commenced on the 5th of January 2018 when the National Peace and Reconciliation Act became law.

2. It is declared that the ten year life and tenure of the National Peace and Reconciliation Commission shall deem to run from the 5th of January 2018.

3. The 1st Respondent pays costs of suit.”

Thus, to the applicant, the ten year period should be counted from 5 January 2018.

That should be deemed the effective date because, she says, that is when the operation of the National Peace and Reconciliation Commission (Commission) became effective, when the enabling legislation, the National Peace and Reconciliation Act [Chapter 10:32] (“the enabling Act”) was gazetted. That is when, according to her, the Commission became operational, when, among other things, the commissioners were sworn in; the secretariat appointed; the funding for the Commission's operations provided for; the manner of its operations spelt out; and so on.

The respondents have opposed the application on one single ground that they have stuck to from beginning to end.

At the beginning, they took the point as a preliminary objection, or point in limine, and filed no further defence on the merits. According to them, the National Peace and Reconciliation Commission (Commission) automatically ceases to exist ten years after the effective date.

Section 332 of the Constitution defines “effective date” as the date when the Constitution came wholly into operation as contemplated by section 3(2) of the Sixth Schedule to the Constitution.

In terms of section 3(2) of this Schedule, the rest of the Constitution came wholly into operation on the day on which the President elected in the first election (after the promulgation of the Constitution) assumed office. The former President, Mr Robert Gabriel Mugabe, assumed office after that election in August 2013.

On all this, the parties are ad idem, save for a minor discrepancy on the exact date former President Mugabe assumed office in August 2013: the applicant saying 18 August, and the respondents saying 22 August.

In fact, it was 22 August.

The respondents argument is that the court cannot do what the applicant wants it to do. What the applicant wants done is to have the court declare that the effective date referred to by section 251(1) of the Constitution is 5 January 2018, and that therefore the National Peace and Reconciliation Commission (Commission) lasts until 4 January 2028.

The respondents say that that will amount to the court amending the Constitution “by the back door”. It is unheard of. Only Parliament, not the court, gets to amend the Constitution in terms of the procedure set out in section 328 of the Constitution.

In the answering affidavit, the applicant denounces the respondents conduct of just raising the point in limine and refraining from pleading to the merits altogether. To her that is arrogance.

I was persuaded.

The point in limine was the entire case before me. I considered that it was bogus.

By avoiding the merits altogether, the respondents were in effect pleading in instalments.

In terms of Rule 232 and Rule 233 of the High Court Rules, the respondents have ten days, from the date an application is served upon them, to file their notice of opposition together with one or more opposition affidavits. They are barred if they fail to comply.

So I took the respondents to task on why they had pleaded that way.

Counsel for the respondents argued, that, pleading in the manner the respondents had done was permissible. He referred to a case, the name and citation of which he said he could not remember. He said the respondents in that case had pleaded in exactly the same way the respondents herein had done, avoiding the merits altogether and only taking a point in limine which they argued all the way on appeal to the Supreme Court - and succeeding for that matter.

I deprecated the respondents conduct.

The objection to pleading in instalments had been raised as early as the applicant's answering affidavit. The respondents had not replied. On his part, counsel for the respondents seemed ill-prepared. He was relying on an indeterminate case authority.

The matter had to be postponed.

I dismissed the respondents preliminary objection on the ground that the issue they were raising was in fact the substance of the whole case before me.

The applicant was not asking the court to amend the Constitution. She was asking the court to interpret section 251(1) of the Constitution. Courts do this all the time. From time to time they are called upon to interpret pieces of legislation which someone may consider vague, meaningless, or the like.

In casu, the applicant was asking for nothing unusual.

So, to mark my displeasure for the way the respondents had pleaded, I ordered them to pay the wasted costs on an attorney and client scale. I gave them leave to file their notice of opposition in terms of the time frame counsel had mutually agreed upon.

Pleading 'in instalments' as it were, that is, only taking a preliminary objection or point in limine and refraining from pleading to the merits unless the objection is dismissed, is not provided for in the Rules of Court.

The Rules of Court contemplate a situation where the respondents have one bite of the cherry. They plead all their defences and technical objections within the prescribed ten days. Only in exceptional circumstances may they do what the respondents in casu have done.

In the case of Zimbabwe Lawyers for Human Rights & Anor v President of the Republic of Zimbabwe 2000 (1) ZLR 274 (S), in which exactly the same situation happened, GUBBAY CJ said…,:

“It is true that such cases as Bader & Anor v Weston & Anor 1967 (1) SA 134 (C) at 136E–G; Governing Body of the Winterberg Agricultural High School v President of the Eastern Cape & Ors [1996] 3 All SA 71E at 77E–I; and Valentino Globe BV v Phillips & Anor 1998 (3) SA 775 (SCA) at 779I–780B, lay down, as a general rule of procedure, that a respondent who wishes to raise a preliminary issue against an application should file an affidavit on the merits of the matter within the normal time limits prescribed by the rules of court.

In other words, a respondent is at risk in relying solely upon a preliminary point.

But, the rule is not rigid or inflexible: see Standard Bank of South Africa Ltd v RTS Technique and Planning (Pty) Ltd & Ors 1992 (1) SA 432 (T) at 442A–E.

Situations may arise where the procedure of merely taking a preliminary point is unexceptionable. To my mind, the present is just such a situation”…,.

It turned out, that, the case authority counsel for the respondents had wanted to rely on was that of The President of Zimbabwe, Robert Gabriel Mugabe & Ors v Tsvangirai SC21-17.

He was right to say, that, in that case, the respondents only took a preliminary objection and refrained from dealing with the merits.

In the High Court, the preliminary point was dismissed. The respondents were given leave to file their response on the merits. However, they appealed to the Supreme Court against the dismissal of their point in limine. The appeal succeeded. The preliminary objection was upheld.

However, the Supreme Court did not deal with the question whether or not the respondents had been right to simply take a technical objection and leave the merits for another day. Even the High Court had not dealt with the point either, only noting, in passing, that the respondents had yet to file their papers on the merits…,.

Therefore, the correct position, on whether a respondent can take a preliminary objection and refrain from dealing with the merits until the preliminary point has been determined is as set out…,above.

In casu, there was nothing “unexceptionable” in the preliminary point that the respondents were raising. Raising it to block the consideration of the case on the merits was vexatious.

Every case depends on its own facts.

In the present case, it was very clear that all that was sought by the applicant was a judicial pronouncement of the meaning of section 251(1) of the Constitution in relation to the tenure of the National Peace and Reconciliation Commission (NPRC).

In reality, what the respondents sought to do by mounting the preliminary objection in the form they did was to impugn the consequences of the court's pronouncement, if it were to agree with the applicant, rather than its inherent power to interpret legislative provisions.

Viewed from this angle the objection became even more absurd.

As SACHS J, of the South African Constitutional Court, would put it, in S v Mhlungu & Ors 1995 (3) SA 867 (CC):

“The rights and values promoted by a Constitution are fundamental to the judges role as defenders of the Constitution. They link up directly with the oath the judges take, which is to uphold and protect the Constitution and the fundamental rights entrenched therein.”

“Only the most compelling language would justify a departure from such a clear responsibility:” at p912.

The respondents eventually filed their affidavit on the merits.

HH425-18 : MIDLANDS STATE UNIVERSITY vs GALAXY ENGINEERING DESIGN CONSULTANTS (PVT) LTD
Ruled By: CHIKOWERO J

I now understand why it is completely undesirable for parties to raise preliminary points as a matter of fashion. Such points should only be raised where they are merited and are as could truly dispose of the whole matter without resort being had to the merits.I have spent a lot ...

HB36-15 : BULAWAYO CITY COUNCIL vs BUTTON ARMATURE WINDING (PVT) LTD
Ruled By: MUTEMA J

Two points in limine have been upheld and are enough to dismiss the application on that basis, but, out of an abundance of caution, there is no harm or prejudice in delving into the merits.

View Appeal
SC59-16 : ZIMRE PROPERTY INVESTMENTS LIMITED vs SAINTCOR (PVT) LTD t/a V. TRACK and JOHN SHUMBA
Ruled By: ZIYAMBI JA, GARWE JA and GOWORA JA

In a judgment handed down in January 2014, the court a quo upheld the plea of prescription raised by the respondents, and, consequently, dismissed the claim against the respondents with costs.Against that order, the appellant now appeals to this court.BACKGROUNDIn October 2012, the appellant, as plaintiff, issued summons against both ...

In a judgment handed down in January 2014, the court a quo upheld the plea of prescription raised by the respondents, and, consequently, dismissed the claim against the respondents with costs.

Against that order, the appellant now appeals to this court.

BACKGROUND

In October 2012, the appellant, as plaintiff, issued summons against both respondents before the High Court, Harare, claiming payment of the sum of $30,094=98 being arrear rentals in respect of the respondents tenancy of premises known as Shop 5, Zimre Centre, Corner Kwame Nkrumah Avenue and Leopold Takawira Street, Harare.

The second respondent had bound himself as surety and co-principal debtor in respect of the first respondent's indebtedness.

In their plea, the respondents, as defendants, raised the defence of prescription. More specifically, they averred, that, in instituting proceedings on 19 October 2012, more than three years after the debt became due, the claim had become time-barred.

The plea was not set down for hearing. Instead, the defendants pleaded over to the merits in the same plea.

In its replication, the appellant denied that the claim had prescribed. It averred, that, the first defendant had, on 22 October 2009, acknowledged the debt and had undertaken to pay the outstanding amount in full by 10 November 2009.

There was no rejoinder by the respondents.

In a joint pre-trial conference minute, the parties agreed, that, the issues requiring determination at trial were:

(a) Whether the plaintiff's claim had prescribed;

(b) Whether the first respondent had breached the lease agreement by failing to pay rental and other costs;

(c) Whether the respondents were liable to pay the sum of US$30,094=98 together with interest and costs of suit;

(d) Whether there had been mutual termination of the agreement between the parties and whether the appellant had unlawfully and unilaterally ejected the respondents from its premises; and

(e) Whether such conduct had resulted in the respondents suffering damages “in respect of the first respondent's assets and business” and, if so, the quantum thereof.

PROCEEDINGS BEFORE THE COURT A QUO

At the hearing of the matter, the respondents, through their lawyer, sought the leave of the court to deal with the issue of prescription first and lead evidence on it.

Despite opposition from the appellant, the court a quo decided that the issue of prescription be determined first, and, thereafter, depending on the outcome, the court would again hear evidence on the remaining issues.

In its judgment, the court a quo was of the view, that, the issue that fell for determination was the authenticity of the letter purportedly written by one Annet Mbedzi on behalf of Saintcor Holdings in October 2009.

In this regard, it made a number of observations.

The letter was not written on any letterhead, unlike in previous correspondence; it reflected the appellant's postal address; the letter was also written on behalf of Saintcor Holdings, a company both parties were agreed does not exist and was not a party to the lease agreement; the letter was addressed to a Mr Muringani, but, the name had been cancelled in black ink and in its place the name Muringi inserted; nowhere in the letter is it suggested that Saintcor Holdings was acknowledging indebtedness on behalf of Saintcor (Pvt) Ltd.

On a consideration of all these features, the court a quo concluded, that, the letter had not been written on behalf of the first respondent.

Consequently, the court upheld the plea of prescription and dismissed the plaintiff's claim with costs, hence this appeal.

GROUNDS OF APPEAL

In its grounds of appeal, the appellant has attacked the decision of the court a quo on the basis that it:

(a) Erred in fact and at law in holding that the appellant's claim had prescribed;

(b) Misdirected itself by holding that the letter that was received by the appellant on 22 October 2012 was not authentic;

(c) Misdirected itself by making a finding that the author of the letter that was received by the appellant on 22 October 2009 did not have authority to author the same.

It is apparent from the above grounds, that. it is the conclusion reached by the court a quo, that the letter in question had not been written on behalf of the respondent that the appellant is challenging.

PRELIMINARY ISSUES RAISED BY THE RESPONDENTS

In their heads of argument, the respondents raised two points in limine:

(i) The first was that the judgment of the court a quo reflects three different dates as the dates when the judgment was handed down.

The date of the judgment reflected in the Notice of Appeal is at variance with the date appearing ex facie the judgment itself, and, consequently, there has been no compliance with Rule 29 of the Rules of this Court.

(ii) Secondly, the relief sought is defective as it seeks to substitute the decision of the court a quo with one referring the matter back to the court a quo itself.

In his response, counsel for the appellant drew the attention of the court to a letter from the Registrar of the High Court which states, that. the ex-tempore judgment was handed down on 10 February 2015, which is the date appearing in the Notice of Appeal.

On the prayer, he conceded, that, the wording was inelegant but argued that the relief sought was clear. He submitted that the inelegance does not invalidate the appeal as ultimately the court will make an order it deems appropriate in the circumstances.

After hearing argument on the two preliminary issues, this court was of the view, that, the issues be rolled over for determination together with the issues that arise on the merits.

APPELLANT'S SUBMISSIONS ON APPEAL

In both his heads of argument and oral submissions, counsel for the appellant raised the following issues:

(i) First, that the judgment of the court a quo does not derive from the pleadings.

(ii) Second, the appellant's cause of action was predicated upon a valid cancellation of the lease agreement. Such cancellation was effected on 18 November 2009 and the cause of action would have accrued on that day. Therefore, when the appellant issued summons on 22 October 2012, the debt had not prescribed.

(iii) Third, that the appellant would have had no reason to cause the letter of 22 October 2012 to be generated. Once it had accepted that the letter had not been generated by the appellant, the court should have concluded that the letter had indeed been authored by the respondents.

(iv) Fourth, that the second respondent knew how to contact Annet Mbedzi, the author of the letter in question. Annet Mbedzi had been involved in the goings-on at the premises of the first respondent, and yet both respondents had not found it proper to call him.

(v) Lastly, counsel for the appellant submitted, that, it was improper for the court to have heard evidence piecemeal. Once the plea of prescription had not been set down and the respondent had then proceeded to plead over to the merits, the court should have heard evidence on all the issues and an assessment of the credibility and integrity of the witnesses undertaken only after all the evidence had been led.

RESPONDENTS SUBMISSIONS ON APPEAL

In response, counsel for the respondents made the following submissions:

(i) First, that, what is being attacked by the appellant are findings of fact which cannot be interfered with on appeal in the absence of a finding of irrationality on the part of the trial court.

(ii) Second, that, the court a quo was correct in its findings that the letter received by the appellant on 22 October 2009 had not been written by or for the respondents. This is because the appellant had admitted that, by that date, the first respondent had been evicted from the premises, and, consequently, the first respondent would not have used that address in correspondence with the appellant.

(iii) Third, that, the appellant has not established a lawful basis for the suggestion that the judgment does not derive from the pleadings as no leave of the court had been sought to advance argument on this ground, contrary to the Rules of this court. In any event, the respondents, in their plea, had placed prescription in issue.

(iv) Lastly, that, the debt did not become due on cancellation since rent was due monthly in advance, and, therefore, the cause of action arose whenever such rental was not paid on due date. The appellant had, in any event, evicted the first respondent in August 2009 for non-payment of rent and the “debt” included outstanding rentals up to the date of such eviction.

ISSUES FOR DETERMINATION

It is clear from the above, that, a number of issues arise before this court. These will be dealt with in turn....,.

WHETHER THE COURT A QUO ERRED IN DEALING ONLY WITH THE ISSUE OF PRESCRIPTION

As noted earlier in this judgment, the special plea was not set down for hearing, but, instead the respondent pleaded over.

At the trial, the respondents requested the court to deal with the question of prescription first.

Despite protestations by the appellant on the proposed course, the court a quo determined that a full trial on the issue of prescription be held, and, if the plea failed, the court would then hear evidence, again, and determine the remaining issues referred to it for trial.

The decision by the court a quo to split the trial into possibly two was one based on its discretion.

I have not found any authority, nor has any been pointed out to me, which suggests that such an approach is wrong.

However, my view of the matter is that the approach is undesirable and somewhat irregular.

Once a matter is referred to trial on identified issues, it is desirable that all the issues be dealt with at the same time. Witnesses should be called once to give evidence on all issues.

The approach adopted by the court in this instance may have the undesirable effect that a witness will be called to give evidence twice in the case and before the same court. This may complicate the determination of issues of credibility and probabilities as the court would have to consider the evidence given by a witness on two different occasions in the same matter.

HB36-15 : BULAWAYO CITY COUNCIL vs BUTTON ARMATURE WINDING (PVT) LTD
Ruled By: MUTEMA J

This is an application for summary judgment in the sum of US$86,927=90 said to represent arrear rates for the period spanning from June 2012 to June 2014.

The statement for the bill for what the applicant contends is owed was attached to the founding affidavit as annexure “A”.

The founding affidavit was deposed to by one Spekiwa T. Guta, who, in paragraph 1 thereof stated:

“1. I am the city legal officer of the applicant in this matter and all the facts I depose hereto are to the best of my knowledge true and correct.”

Over and above the amount claimed stated above, the applicant, in the draft order, also seeks an order for collection commission on the said amount; interest at the prescribed rate; costs of suit on an attorney-client scale.

The application was opposed on the following grounds:

In Limine

1. The deponent to the founding/supporting affidavit did not establish authority to depose to the affidavit or that the facts she deposed to are with her knowledge;

2. The relief sought for collection commission is incompetent;

3. In the draft order, the applicant is seeking interest at the rate of 5% per annum yet annexure “A” shows that interest was being charged on the account at 6% per month. In the result, the interest that was levied on the account was therefore unlawful; and

4. The claim is defective for want of compliance with Rule 13(4) of Order 3 of the High Court Rules 1971 in that it does not set out separately the interest component from the capital sum.

On the Merits

1. The respondent has a bona fide defence as advanced in the preceding points in limine;

2. Via publication in the press, the applicant offered a special dispensation whereby if the respondent paid off half the amount owed, the other half would be written off. The respondent accepted the offer and the arrangement became binding on the parties and the agreement is still to run its course;

3. The calculations in annexure “A” are flawed. They are effective from February 2009 to July 2014 yet the claim avers that the period runs from June 2012 to June 2014 and is for arrear rates only, but annexure “A” factored in water levy, rates, road levy, sewage, solid waste and monthly interest of 6%. This informs on the question of whether or not part of the claim has not prescribed as well as the accuracy of the computation of the amount due.

It is proposed to deal first with the points raised in limine....,.

WHETHER THE 6% PER MONTH INTEREST CHARGED IN ANNEXTURE 'A' WAS LAWFUL

This point should not have been raised as a point in limine. It goes to the root of part of the respondent's defence as it hinges on the merits.

HH170-22 : DIVVYLAND INVESTMENTS (PVT) LTD vs DAVID CHIWEZA and THE SHERIFF OF ZIMBABWE
Ruled By: FOROMA J

The applicant filed this application as an Urgent Chamber Application seeking the following order:(1) That the execution of the eviction ordered under SC138/21 and allowed to continue under HH83-22 be allowed pending finalization of the appeal under CV SC63/22.(2) That the first respondent pays the applicant's costs of suit on ...

HH686-20 : NATIONAL ENGINEERING WORKERS UNION and WISE GARIRA and SHEPHERD MASHINGAIDZE vs NATIONAL EMPLOYMENT COUNCIL FOR THE ENGINEERING IRON & STEEL INDUSTRY and OTHERS
Ruled By: MUSHORE J

The first plaintiff is the National Engineering Workers Union. The second plaintiff is the elected President of the first plaintiff, and the third plaintiff is the Secretary General of the first plaintiff.

The first defendant is the National Employment Council for the Engineering and Iron and Steel Industry. The second defendant is the Engineering Iron and Steel Association of Zimbabwe with the third defendant (Bekezela Mangena) being the second defendants current President. The fourth to ninth defendants (Ben Mamabara, Silas Mkodza, Righton Moyo, Dennis Muchenu, Abel Gumpo and Clement Kausa) are employees in the industry.

The plaintiffs instituted a court action against the defendants in which they sought the following order:

“THAT:

1. It is hereby declared that the 4th to 9th defendants are not legitimate members or holders of any office position in the 1st plaintiff and/or 1st Defendant;

2. It is hereby declared that 2nd to 9th Defendants, or anyone claiming though them, have no locus standi to act for or represent, in any capacity whatsoever, the 1st plaintiff and/or the 1st Defendant or any institution/without the express approval of the 1st Defendant;

3. Defendants are hereby interdicted whatsoever in the management/affairs in the 1st Plaintiff or deciding who should represent the 1st plaintiff or deciding who should represent the 1st Plaintiff in the 1st defendant;

4. It is hereby declared that the 2nd Plaintiff (or any person succeeding him as President of the 1st Plaintiff) be allowed to chair the proceedings/business of the 1st defendant up to the 31st of the month of December that follows the lapse of a period of 12 calendar months from the date of this court's order after which the chairmanship of the 1st Defendant shall proceed on a rotational basis and in terms of 1st Defendant's constitution.

5. The 4th to 9th defendants (or anyone acting through them) are hereby interdicted from entering the 1st plaintiff's property/premises or using the 1st plaintiff's name, letterhead, or logogram.

6. The 1st, 2nd and 3rd defendants (or anyone acting through them) are hereby ordered not to deny the Plaintiffs/1st Plaintiff's officials full and unfettered access to all the premises/property and business of the 1st defendant.

7. In respect of all acts, meetings, negotiations, decisions, resolutions, building contracts, collective bargaining agreements, payments or transactions conducted or executed by the Defendants (or some or one of them) at/or in the name of the 1st Defendant or 1st plaintiff, without the participation and approval of the plaintiffs, from 1st November 2018 to the date of this court's order, be and are hereby declared null and void.

8. The chairing of the meetings/business of the 1st defendant by the 3rd defendant or any person who succeeds him before the grant of this order is hereby declared null and void.

9. The 1st defendant pay to the plaintiff the industrial outreach monetary disbursements computed at 1% of the Engineering Monetary Fund's monthly takings, plus 1% of the defendants monthly takings, with effect from the 1st November 2018 to the date of this court order.

10. Any monetary payments purportedly made to the 1st plaintiff through the defendants or through modes/accounts other than 2nd plaintiff, 3rd plaintiff or the 1st plaintiff's official bank accounts, are hereby declared void.

11. The 2nd to 9th defendants shall bear the costs of this suit on an attorney and client scale.”

The plaintiffs claims were met with a special plea being filed by the defendants on three (3) aspects:

(i) The first aspect being a special plea on a lack of locus standi in judicio by all three plaintiffs stating that the first plaintiff body was a bogus union and a fabrication and that it belonged to the second and third plaintiffs who had been ousted by the entire engineering industry.

Further, it was specially pleaded that the second and third plaintiffs were no longer office bearers in the genuine workers union and that they had been dismissed from employment, and, therefore, the second and third plaintiffs had no capacity to sue on behalf of the National Workers Engineering Union.

(ii) The second special plea was that the matter was pending in another court (lis alibi pendens) under case number HC8051/19; in which the defendants claim was to cause the second and third plaintiffs to be barred from instituting proceedings from filing suits in the name of the first plaintiff.

(iii) Lastly, the defendants specially pleaded that matter had already been determined in part (res judicata) in that some of the claims in the declaration had already been determined and disposed of by the Magistrates Court.

The defendants sought a dismissal of the plaintiffs claims in their entirety, if all or any of those special pleas were upheld.

Thereafter, the defendants seemed to have abandoned taking the next procedural steps in pursuing the determination of the special pleas immediately as laid out under Order 20 Rule 138(a) and (b) of the High Court Rules 1971; in that, they failed to set the matter down for the hearing of their special pleas separately.

Order 21 Rule 138 of the High Court Rules reads as follows:

“138 Procedure on filing special plea, exception or application to strike out

When a special plea, exception, or application to strike out has been filed —

(a) The parties may consent within ten days of the filing to such special plea, exception or application being set down for hearing in accordance with subrule (2) of Rule 223;

(b) Failing consent, either party may, within a further period of four days, set the matter down for hearing in accordance with subrule (2) of Rule 223;”

In the result, the special pleas would be held over for determination at the trial in this matter; but, in the meantime, and in terms of (c) the defendants were required to have pleaded over the merits of their respective cases in terms of Rule 138(c) which prescribes that:

“(c) Failing such consent and such application, the party pleading specially, excepting or applying, shall within a further period of four days plead over to the merits if he has not already done so and the special plea, exception or application shall not be set down for hearing before the trial.”

When no pleas on the merits were forthcoming from the defendants, on the 17th of January 2020, the plaintiffs filed a notice to plead and intention to bar and served the same on the defendants.

The defendants elected, deliberately, to withhold their pleas on the merits and cited their reason for that decision as being that they had pending special pleas which were yet to be disposed of by the court.

Such an irreverent approach by the defendants resulted in the defendants being barred from pleading and appearing in accordance with Order 12 Rule 83 of the High Court Rules which states:

“83 Effect of Bar

While a bar is in operation —

(a) The registrar shall not accept for filing any pleading or other document from the party barred; and

(b) The party barred shall not be permitted to appear personally, or by legal practitioner, in any subsequent proceedings in the action or suit; except for the purpose of applying for the removal of the bar.”

Strictly taken, the Registrar ought not have accepted any further pleadings from the defendants; but, assumedly, the Registrar's office would have been hard pressed to pick this up, given the voluminous court filings which are processed in that office, and also because filings on the defendants behalves were being done by registered legal practitioners.

Be that as it may, the matter ended up being enrolled on my opposed roll for determination.

Strangely, the defendants counsel audaciously appeared to argue their cases and avoided informing the court that their clients had no right of appearance in accordance with Order 12 Rule 83(b) of the High Court Rules supra.

The defendants counsel ought to have been fully aware that they had no right of audience with the court on the opposed roll of matters: see General Leasing (Pvt) Ltd v Allied Timbers Zimbabwe (Pvt) Ltd HH76-15…,.

Furthermore, none of the defendants filed Heads of Argument within the dies stated in the Rules, which further exacerbated their attempt at appearing to argue the matter.

Also, at the hearing of the matter, the defendants represented that the plaintiffs counsel had consented to waive the late filing of all the defendants heads of argument.

However, the indictment against counsel for the defendants was that they avoided informing the court about the status of the bar pertaining to their clients pleas; which was already in effect.

The latter issue was brought to my attention by the plaintiffs counsel who then made an application for judgment to be entered in favour of the plaintiffs, given that the defendants had not made the merits of their respective cases known to the court.

The court agreed with the plaintiffs submissions in that respect.

Accordingly, I granted the plaintiffs judgment in their favour as prayed and as elaborated above.

What I did add to the order was a reference to the specific Rules which had guided my determination as is shown on the order which I granted on the 23rd of January 2020.

CC08-21 : ZIMBABWE BANKS AND WORKERS UNION and TIRIVANHU MARIMO vs MINISTER OF PUBLIC SERVICE, LABOUR AND SOCIAL WELFARE and THE SHERIFF OF ZIMBABWE and ZB BANK LIMITED
Ruled By: GARWE AJCC, GOWORA AJCC and HLATSHWAYO AJCC

The Court indicated to the parties, that, notwithstanding the preliminary points raised by the third respondent, it would hear all the parties and make a determination on the merits.

View Appeal
HH264-21 : MUSA KIKA vs MINISTER OF JUSTICE LEGAL & PARLIAMENTARY AFFAIRS and THE CHIEF JUSTICE HONOURABLE LUKE MALABA N.O. and OTHERS
Ruled By: ZHOU J, CHAREWA J and MUSHORE J

IntroductionThis judgment is in respect of two matters, HC2128/21 and HC2166/21. The two matters were heard together because the substance of their complaints is the same.Both matters were brought by way of application. HC2128/21 was instituted as an urgent court application while HC2166/21 was brought as an urgent chamber application.Both ...

Introduction

This judgment is in respect of two matters, HC2128/21 and HC2166/21. The two matters were heard together because the substance of their complaints is the same.

Both matters were brought by way of application. HC2128/21 was instituted as an urgent court application while HC2166/21 was brought as an urgent chamber application.

Both applications are opposed by some of the respondents.

Opposing papers, answering affidavits, and heads of argument were filed following a case management meeting with the parties representatives at which the dates for filing the papers were set by consent.

In case no. HC2128/21 the applicant, a legal practitioner and director of the Zimbabwe Human Rights NGO Forum, cited the Minister of Justice, Legal and Parliamentary Affairs, and all the judges of the Constitutional Court and Supreme Court as well as some of the judges of the High Court, on the basis that they are acting judges of the Supreme Court or have been called upon to act as such.

The judges were cited in official capacities.

The Judicial Service Commission (JSC) was joined in the proceedings, at its instance, at the case management conference.

In HC2166/21 the respondents cited are the Judicial Service Commission (JSC), the Chief Justice of Zimbabwe, Honourable Luke Malaba N.O. and the Attorney General N.O. The applicants in that case are Young Lawyers Association of Zimbabwe and Frederick Charles Moses Mutanda, a liberation war veteran.

Background

On 7 May 2021, the Constitution of Zimbabwe Amendment (No.2) Act 2021 became law after being assented to by the President. The contentious aspects of the Amendment Act which are the subject of the instant applications are found in its section 13.

That section repealed section 186 of the Constitution 2013 and substituted it with a new section 186.

Upon gathering that section 186 of the Constitution, introduced by the Amendment, would apply to the second to eighteenth respondents (Luke Malaba, Elizabeth Gwaunza, Paddington Garwe, Rita Makarau, Anne-Mary Gowora, Ben Hlatshwayo, Bharat Patel, Antonia Guvava, Susan Mavangira, Chinembiri Energy Bhunu, Tendai Uchena, Nicholas Mathonsi, Charles Hungwe, Felistus Chatukuta, Alfas Chitakunye, Samuel Kudya and Lavender Makoni) the applicants instituted the two applications. The applicant in Case No. HC2128/21 seeks the following relief:

“IT IS DECLARED THAT:

1. In accordance with provisions of sections 186(1)(a) and 186(2) (of the Constitution of Zimbabwe 2013) in their original form and notwithstanding provisions of Constitutional Amendment Number 2, second to eighteenth respondents hold office they reach the age of seventy years, whereupon they must, by operation of law, retire.

2.The attempt to subvert the position encapsulated in the "original" section 186(1)(a) and 186(2) of the Constitution of Zimbabwe 2013 is contrary to law and therefore in breach of applicant's right to the protection of the law as set out in section 56(1) of the Constitution of Zimbabwe 2013.

IT IS CONSEQUENTLY ORDERED THAT:

3. LUKE MALABA, must or did, at midnight on 15 May 2021, cease to hold the office of CHIEF JUSTICE OF ZIMBABWE.

4. Any action, conduct, or deed of LUKE MALABA post the 15th of May 2021, purportedly as CHIEF JUSTICE OF ZIMBABWE, is null and void and of no effect.

5. ln accordance with the provisions of section 181 of the Constitution 2013, with effect from midnight on the 15th of May 2021, ELIZABETH GWAUNZA became/becomes the ACTING CHIEF JUSTICE OF ZIMBABWE until such a time as a substantive CHIEF JUSTICE OF ZIMBABWE is appointed.

6. In accordance with the provisions of section 181 of the Constitution 2013, with effect from midnight on the 15th of May 2021, PADDINGTON GARWE became/becomes the ACTING DEPUTY CHIEF JUSTICE OF ZIMBABWE until such a time as a substantive DEPUTY CHIEF JUSTICE OF ZIMBABWE is appointed.

7.There shall be no order as to costs."

During argument, counsel for the applicant abandoned the relief sought in paragraph 6 of the draft order and moved that the draft be amended accordingly.

We point out, that, notwithstanding the statement suggesting that what is being sought in paragraphs 3-7 of the draft order is consequential relief, the relief is clearly in the form of a declaration.

The second to eighteenth respondents did not file opposing papers.

They will therefore be taken not to have opposed the application: see Prosser & 35 Others v Ziscosteel Company Ltd HH201-93 and Panganai and 20 Others v Kadir & Sons (Pvt) Ltd HH26-95.

We do not accept the submission by their counsel that they oppose the application without filing opposing papers. This is because the directions issued on 12 May 2021 required the respondents to file opposing papers if they were opposing the application. Their grounds of opposition would have to be contained in the opposing affidavits.

ln Case No. HC2166/21 the applicant sought declaratory relief as follows:

“IT IS DECLARED THAT:

1. The first respondent (Judicial Service Commission) in failing to activate the provisions of section 180 of the Constitution of Zimbabwe Amendment (No.20) Act 2013 and/or the provisions of section 180 of the Constitution of Zimbabwe as amended by Constitution of Zimbabwe Amendment (No.2) Act 2021 (No.2 of 2021) diligently and without delay violated section 324 of the Constitution of Zimbabwe as amended.

2. The second respondent (Chief Justice Luke Malaba) cannot, by virtue of section 328(7) of the Constitution of Zimbabwe, as amended, benefit from the term limit extension as introduced by an amendment of section 186 by the Constitution of Zimbabwe Amendment (No.2) Act 2021.

3. As a consequence of 2 above, the second respondent shall vacate office as the Chief Justice of Zimbabwe on (sic) midnight of 15 May 2021.

4. Any action, conduct, act, or deed of second respondent post the 15th of May 2021, purportedly as Chief Justice of Zimbabwe, is null and void and of no force or effect.

5. Any attempt to continue in office by second Respondent as Chief Justice of Zimbabwe and/or any continuation in office by second respondent, purportedly as Chief Justice of Zimbabwe, violates applicants right of access to a court of law established by law and applicants right to protection of the law in accordance with section 69(4) and section 56(1) of the Constitution 2013 as amended.

6. The second respondent, in any event, can no longer be a judge of the Constitutional Court for more than 15 years in violation of section 186(1) of the Constitution 2013 as amended.

7. ln the alternative, section 14 of the Constitution of Zimbabwe Amendment (No.2) Act 2021 (No.2 of 2021) is invalid for violating section 56(3) of the Constitution 2013 and is accordingly struck down.

8. There shall be no order as to costs."

The relief set out in the first paragraph was not persisted with as it was predicated upon a misreading of the Constitutional provisions pertaining to the appointment of a Chief Justice in Zimbabwe.

The applicants were under the mistaken belief that the first respondent, the Judicial Service Commission (JSC) had the mandate to call for candidates to participate in an interview.

Section 180 of the Constitution provides that the Chief Justice is appointed by the President after consultation with the Judicial Service Commission (JSC).

The relief sought in paragraphs 2, 3, 4 and 5 is the same one being sought by the applicant in HC2128/21 save for the reference to section 69(4) of the Constitution.

The relief sought in paragraph 6 of the draft order was abandoned during argument. Also, the applicant did not make any submissions in support of the alternative relief being sought in paragraph 7 of the draft order.

We take it that this relief, seeking the declaration of invalidity in respect of section 13 (which was incorrectly referred to as section 14) of the Constitution of Zimbabwe Amendment (No.2) Act 2021, is not being persisted with.

Preliminarv Issues and Obiections

The parties raised preliminary issues and objections:...,.

The Alleged Absence of a Cause of Action

This objection is taken by the third respondent in HC2166/21…,. Although it is raised as an objection in limine, the submissions show that it is an argument on the merits of the matter.

The point being made is that the applicants in HC2166/21 failed to establish their entitlement to the right of access to the courts, as enshrined in section 69(3) of the Constitution 2013, and how the continued occupation of the office of Chief Justice by the second respondent violates the applicants rights as protected by section 69 and section 56 of the Constitution 2013.

This objection is therefore dismissed.

HH54-16 : AIR DUCT FABRICATORS (PVT) LTD vs A.M. MACHADO & SONS (PVT) LTD
Ruled By: CHIGUMBA J

This is an opposed matter in which the applicant (defendant in the main matter) filed a special plea, that the respondent's (plaintiff in the main matters) action be stayed, pending the final determination of the dispute by the arbitrator in terms of the parties agreement.

Both parties are companies which are duly incorporated in accordance with the laws of Zimbabwe.

This case brings to the fore the vexing question of the effect, that, the raising of a special plea ought to have on the proceedings in the main matter.

Various other contentious issues come to mind, such as; whether a special plea should only be raised in circumstances where, if it is upheld, it is likely to dispose of the matter, and, what the purpose of a special plea is as a tool in litigation?

These interesting legal conundrums aside, the issue that arises for determination in this matter is simple.

Does the existence of an arbitration clause in an agreement between parties preclude one of the parties from instituting legal proceedings until the matter has been referred to and determined by an arbitrator?

The background to this special plea is that the respondent issued summons against the applicant on 16 February 2015 in which it claimed payment of the sum of USD$17,313=75 being the 5% retention fund held in terms of the agreement between the parties, as well as costs of suit.

On 5 February 2013, the parties entered into an agreement in terms of which the respondent undertook to supply and fix air-conditioning and mechanical ventilation systems as a nominated sub-contractor in the Nestle new laboratory and administration block project. The respondent averred in the summons, that, it completed its mandate by 4 February 2014 and that it was issued with a certificate of practical completion of works by the Architect.

It is common cause, that, on 13 May 2014, the final certificate of payment in the sum of USD$17,313=75, the 5% retention fund held in terms of the agreement, was issued to the applicant for onward transmission to the respondent. The respondent averred, that, the applicant had failed or refused to release this money to it, in breach of the parties agreement.

The applicant filed notice of entry of appearance to defend on 3 March 2015, and, on 24 June 2015, after further particulars and further and better particulars had been sought and supplied, the applicant filed its special plea.

The basis of the special plea was clause 27 of the CIFOZ Conditions of Building Subcontracts, which the applicant averred provided, that, any dispute or difference that arose between the parties would be referred to arbitration.

According to the applicant, the dispute between the parties arose from the fact that the retention money, to the value claimed by the respondent, was and is still being held in a retention fund trust at Tetrad Investment Bank Limited for Nestle Zimbabwe (Private) Limited (Nestle) and the respondent.

The retention fund was created on 16 November 2012 under the instruction of the respondent and a nominated architect, together with the applicant for the benefit of Nestle.

The applicant contended, that, the respondent ought to have sued Nestle in its summons.

The applicant contended further, that, in terms of clause 13(c) of the CIFOZ Conditions of Building Sub-contracts, the respondent accepted the cession of the retention money to it by the applicant, therefore its claim ought to be against Nestle.

It is common cause that Tetrad Investment Bank Limited (Tetrad) was placed under judicial management, that is why the applicant has not been paid from the retention fund.

The filing of a special plea is provided for as follows by Order 21 of the High Court Rules 1971;

“137. Alternatives to pleading to merits: forms

(1) A party may —

(a) Take a plea in bar or in abatement where the matter is one of substance which does not involve going into the merits of the case, and which, if allowed, will dispose of the case;

(b)…,.

(c)…,.

(d)…,.

(2)…”

In the case of Cabat Trade & Finance v Movement for Democratic Change SC50-12…, it was held that:

“A special plea is a plea in trial susceptible of a replication and must be heard separately on the adduction of evidence: Doelcam v Pitchanik and Ors 1999 1 ZLR 390 (H) 396G-E.”

The applicant contends, that, the dispute between the parties is premised on Clause 27(b) of the agreement between the parties which reads as follows;

“Arbitration

If either the contractor or the subcontractor is unwilling to accept mediation or is dissatisfied with or unwilling to accept the opinion expressed by the mediator, then, and in such case, either the Contractor or the Sub-Contractor may within twenty eight (28) days after receiving notice of such proposal or decision require that the matter shall be referred to arbitration and the final decision of some person to be agreed upon by the parties or failing agreement, to a person to be appointed by on a request of either party by the President for the time being of the Construction Industry Federation of Zimbabwe and the award of such arbitration shall be final and binding on the parties.

Such reference, except on the question of certificates and/or payments, shall not be opened until after the completion or alleged completion of the Contract works, unless with the written consent of the Architect or the Contractor; provided that in any such arbitration as is provided for in this clause any decision of the Architect is final and binding between and upon the contractor and the sub-contractor.

The provisions of this sub-clause shall not affect the sub-contractor's rights under sub-clause 12(c) hereof.”…,

I accept as correct, the submission made on behalf of the respondent, that, a close reading of Clause 27 will show that arbitration is not mandatory. The Clause is couched in permissive terms.

Before taking a look at what our own courts have had to say on the distinction between the word 'may' and 'shall' in the context of statutory interpretation, let us take a brief look at the approach which has been adopted in South Africa.

It has been held, that, language of a predominantly imperative nature is generally taken to be indicative of peremptoriness, and that the verb “shall” is one such word: see Messenger of Magistrates Court, Durban v Pillay 1952 (3) SA 678 (A); Maharaj & Ors v Rampestad 1964 (4) SA 638 (A)…,.

The cases have a common thread, that, a court called upon to determine whether a particular provision is peremptory or directory “must construe the language of the concerned provision in the context, scope, and object of the act which it forms part.”

Use of the word 'shall' has been held to be “…, a strong indication that the requirement was peremptory:” see Messenger of Magistrates Court, Durban v Pillay 1952 (3) SA 678 (A).

It has been held further, that, categorizing statutory requirements as 'peremptory' or 'directory' are concise and convenient labels to use for the purpose of differentiating between the two categories.

Peremptory requires exact compliance whilst directory requires substantial compliance, though the distinction between the two has now become blurred.

In Nkisimane & Ors v Santam Insurance Co Ltd 1978 (2) SA 430 (A), it was held that:

“Care must be exercised, therefore, not to infer from the use of such labels what degree of compliance is necessary and what the consequences are of none or defective compliance. These must ultimately depend upon the proper construction of the statutory provision, or, in other words, upon the intention of the lawgiver as ascertained from the language, scope, and purpose of the enactment as a whole.”

In Maharaj & Ors v Rampestad 1964 (4) SA 638 (A), the court said that:

“It is a recognized principle of statutory construction, that, a court, when determining which of these two alternative constructions is to be placed upon a statutory enactment, must seek to ascertain the real intention of the Legislature, and, in so doing, have regard to the scope and object of the enactment as a whole.”

In Charleston Town Board and Another v Vilakazi 1951 (3) SA 361 (AD)…, the court said the following:

“…, every enactment must be dealt with in light of its own language, scope, and object and the consequences in relation to justice and convenience of adopting one view rather than the other…,.”

Our own superior courts have given us sufficient guidance.

In the case of Diocesan Trustees for the Diocese of Harare v The Church of the Province of Central Africa SC09-10…, it was held that:

“…, the general rule is that, when the legislature uses the word 'may' in a statute by which it confers power on a public official to do a thing, the intention is to confer the power only without a duty to exercise it.

The statute must be construed as conferring on the repository of the power a discretion to decide whether or not to do the thing, unless, there is something in the subject-matter to which the statute relates which shows that the word 'may' is used in an imperative sense to impose a duty on the public official to exercise the power.

The something referred to in the general rule may be in the nature of the thing the public official is empowered to do; in the object for which the thing is to be done; in the condition under which it is to be done; in the title of the persons for whose benefit the power is to be exercised.

That something may couple the power to a duty and make it an obligation on the person in whom the power is reposed to exercise it when called upon to do so.

If, upon consideration of the subject-matter to which the statute relates, the only reasonable conclusion that can be reached is that the intention of the legislature is that the repository of the power would have no justification for failing to exercise the power, the word 'may' must, in such a case, be held to mean 'shall'”….,.

See CRAIES on Statute Law, 7ed…,.; Annison & Ors v District Auditor for St Pancras Borough Council & Anor (1962) 1 QB 489…,.; Salisbury Financial Holdings (Pvt) Ltd v Van Niekerk 1974 (1) RLR 333 (G)…,.”

It is accepted, that, the court in Diocesan Trustees for the Diocese of Harare v The Church of the Province of Central Africa SC09-10 made these remarks in connection with the wording of a statute, but, it is my view, that, the meaning attributed to the words 'may' and 'shall' applies to those words in any contex.

'May' implies permissiveness, as in a discretion or a choice, while 'shall' is an imperative, a duty or obligation to take the prescribed course of action: see also Jonathan Nathaniel Moyo & 2 Ors v Austin Zvoma N.O. & Anor SC28-10…, where the court made a similar distinction in the meaning of the words 'may' and 'shall' also in relation to statutory interpretation. It was held that;

“The learned author FRANCIS BENNION, in his work, Statutory Interpretation, suggests that the courts have to determine the intention of the legislature using certain principles of interpretation as guidelines. He had this to say at pp21-22:

'Where a duty arises under a statute, the court, charged with the task of enforcing the statute, needs to decide what consequence Parliament intended should follow from breach of the duty. This is an area where legislative drafting has been markedly deficient. Draftsmen find it easy to use the language of command. They say that a thing 'shall' be done. Too often they fail to consider the consequence when it is not done. What is not thought of by the draftsman is not expressed in the statute. Yet, the courts are forced to reach a decision.'

It would be draconian to hold, that, in every case, failure to comply with the relevant duty invalidates the thing done. So, the courts answer has been to devise a distinction between mandatory and directory duties.

Terms used instead of 'mandatory' include 'absolute' 'obligatory' 'imperative' and 'strict'. In place of 'directory' the term 'permissive' is sometimes used. Use of the term 'directory' in the sense of permissive has been justly criticised. [See Craies Statute Law (7th ed, 1971) p61 n74].”

The guidance that emanates from these cases is that when 'may' is used, it is merely directory, and, choosing not to act in the manner prescribed is permissible. When the word 'shall' is used it denotes mandatory action and compliance with the prescribed course of action is obligatory, imperative, and strict.

Failure to comply with a mandatory course of action invalidates the thing done whereas failure to comply with a directive is not fatal, it may result in some being sanction imposed: see Associated Newspapers of Zimbabwe (Private) Limited v Minister of Information and Publicity & 2 Ors SC111-04…,.; Association of Independent Journalists & 2 Ors v The Minister of State for Information and Publicity in the President's Office & 2 Ors SC136-02…,.; Doctor Daniel Shumba & Anor v The Zimbabwe Electoral Commission & Anor SC11-08…,.; Zellco Cellular (Private) Limited v Post & Telecommunications t/a Net One 1998 (2) ZLR 106 (H).

Counsel for the respondent correctly states the position, that, it is clear from a reading of Clause 27 in the Schedule of conditions that what is mandatory or imperative is the giving of notice of the dispute as evidenced by the use of the word 'shall' in relation to notice.

It is common cause that the applicant was given such notice in a letter dated January 2015.

It is clear from a reading of Clause 27 that mediation, or arbitration, is not mandatory. The wording is not couched in peremptory terms in terms of the meaning of peremptory, as opposed to permissive, which meaning is settled at law, as shown by the cases cited above. Referring the matter to arbitration is a choice, not an imperative, as evidenced by the use of the word 'may' in relation to the issue of arbitration.

This court also agrees with the statement of law, made on behalf of the respondent, that, the arbitration clause, in Clause 27, does not oust the inherent jurisdiction of this court: see Shell Zimbabwe (Private) Limited v Zimsa (Private) Limited & Anor 2007 (2) ZLR 366 (H); Zimbabwe Broadcasting Corporation v Flame Lily Broadcasting (Private) Limited 1999 (2) ZLR 448 (H); Recoy Investments (Private) Limited v Tarcon (Private) Limited 2011 (2) ZLR 65 (H).

These cases provide authority for the proposition, that, Article 8 of the UNICTRAL Model Law set out in the Schedule to the Arbitration Act [Chapter 7:15] is an alternative to litigation and cannot take away the inherent jurisdiction of the court.

It is only when an arbitration clause is clear and unequivocal that arbitration must proceed, at first instance, in resolving the dispute that such a clause can have the effect of staying proceedings.

Clearly, Clause 27 does not state, in no uncertain terms, that, arbitration must proceed first before litigation. This court's inherent jurisdiction is not ousted by the wording of Clause 27. If it had been, such ouster would have been legally permissible in terms of Article 8 of the UNICTRAL Model Law.

What is also clear is that the arbitration process must be set in motion by the existence of a dispute. The terms of the dispute must be set by the party wishing to have the matter referred to arbitration.

In the case before me, it is common cause that the main contractor has failed to pay the sub-contractor. It is also common cause that the parties agreed to place certain funds in an escrow account with Tetrad Investment Bank Limited which is now in liquidation. It is common cause that the reason why the main contractor is unable to pay the sub-contractor is that the escrow funds are stuck at Tetrad Investment Bank Limited, the account has been frozen in the process of liquidation. The amount due and payable is not disputed.

There is no dispute between the parties which requires resolution by arbitration.

The special plea is not properly before the court because it does not constitute a matter of substance which is capable of disposing of the matter as required by Order 21 Rule 137(a) of the rules of this court.

A special plea should only be taken in circumstances where it is likely to dispose of the matter without delving into the merits.

This special plea falls short of that requirement.

Clause 27 of the of the CIFOZ Conditions of Building Sub-contracts does not provide in clear and unequivocal terms that if there is a dispute between the parties it must be referred to arbitration first, before litigation. It does not oust the inherent jurisdiction of this court in clear and unequivocal terms, thereby denying the applicant the use of the Arbitration Act as a shield or the use of Article 8 of the Model Law as a sword.

The applicant knew, or ought to have known, that, the special plea would not dispose of the matter, because the law is clear. The applicant can simply petition the court that Nestle be joined as a party to the proceedings. This will alleviate its obvious difficulty. Raising a special plea was not the appropriate legal remedy in the circumstances.

The court awards a punitive order as to costs as a mark of its displeasure at this waste of its time.

For these reasons, the special plea be and is hereby dismissed with costs on a legal practitioner and client scale.

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Approach re: Issues in Limine, Technical or Procedural Objections, Dilatory, Declaratory and Dispositive Pleas

HHH57-09 : KISIMUSI DHLAMINI AND GANDHI MUDZINGWA AND ANDRISON MANYERE vs THE STATE Ruled By: MTSHIYA J

HB41-09 : THANDAZO RETAIL AND MARKETING (PVT) LTD T/a STRIDES BOUTIQUE AND FUNKEE MUNKEE vs MAIN MOTORS (PVT) LTD AND REFCO (PVT) LTD Ruled By: NDOU J

HB66-09 : SIPHILISIWE SIZIBA vs SOPHIE MATIMBA N.O. and QHUBEKANI MABUZA NCUBE Ruled By: KAMOCHA J

HB114-09 : DENNY NDABEZINHLE MASHENGELE vs JAMES NCUBE Ruled By: NDOU J

HH24-10 : SAHAWI INTERNATIONAL (PTY) LIMITED and YAKUB IBRAHIM MAHOMED vs JOHN ARNOLD BREDENKAMP and BRECO INTERNATIONAL (PRIVATE) LIMITED Ruled By: MAKARAU JP

HH30-10 : TM SUPERMARKETS (PVT) LTD vs CHADCOMBE PROPERTIES (PVT) LTD Ruled By: PATEL J and OMERJEE J

HH07-13 : ZIMBABWE TEXTILE MANUFACTURERS ASSOCIATION vs ZIMBABWE TEXTILE WORKERS UNION and DR. GODFREY KANYENZE Ruled By: MTSHIYA J

HH45-13 : OLIVER MUSHUMA vs SWEEN MUSHONGA Ruled By: HLATSHWAYO J and MAWADZE J

HB95-11 : MADINDA NDLOVU vs HIGHLANDERS FOOTBALL CLUB Ruled By: CHEDA J

HB07-14 : JOSEPH MARSHAL STUART vs NATIONAL RAILWAYS OF ZIMBABWE Ruled By: NDOU J

SC32-13 : HEYWOOD INVESTMENTS (PRIVATE) LIMITED t/a GDC HAULIERS vs PHARAOH ZAKEYO Ruled By: MALABA DCJ, GARWE JA and GOWORA JA

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

HMA12-17 : BRIAN ANDREW CAWOOD vs ELASTO MADZINGIRA and THE MESSENGER OF COURT – MWENEZI N.O. Ruled By: MAFUSIRE J

HMA17-17 : MAIN ROAD MOTORS (Case 1) and SYLVIA CHORUWA (Case 2) vs COMMISSIONER – GENERAL, ZIMRA Ruled By: MAFUSIRE J

HH446-15 : TELECEL ZIMBABWE vs POSTAL AND TELECOMMUNICATIONS REGULATORY AUTHORITY and MINISTER OF INFORMATION TECHNOLOGY N.O. and CHIEF SECRETARY, OFFICE OF PRESIDENT and EMPOWERMENT CORPORATION Ruled By: MATHONSI J

HH73-15 : FUNGAI NHAU vs MEMORY KAFE and CHIPO NKUDZI Ruled By: MATHONSI J

HH225-13 : EMMERSON MNANGAGWA vs ALPHA MEDIA HOLDINGS (PRIVATE) LIMITED and DUMISANI MULEYA Ruled By: MATHONSI J

HH228-16 : ANJIN INVESTMENTS (PVT) LTD vs THE MINISTER OF MINES & MINING DEVELOPMENT and THE MINISTER OF HOME AFFAIRS and THE COMMISSIONER-GENERAL OF THE ZIMBABWE REPUBLIC POLICE Ruled By: MANGOTA J

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

HH217-17 : NAISON SEKERAMAYI and OTHERS vs MASTER OF HIGH COURT and PROVINCIAL MAGISTRATE, HARARE and EASTER DZWOWA and YARADZO MUNANGATI MANONGWA (Executrix Dative in Estate Lovemore Sekeramayi) Ruled By: ZHOU J

HMA36-18 : AMALGAMATED RURAL TEACHERS UNION OF ZIMBABWE vs OBERT MASARAURE and ZIMBABWE AFRICAN NATIONAL UNION [PATRIOTIC FRONT] and MINISTER OF PRIMARY AND SECONDARY EDUCATION Ruled By: MAFUSIRE J

SC70-20 : CITY OF HARARE vs AMOS CHIKWANDA Ruled By: BHUNU JA

HB94-11 : GOLDEN MOYO vs STEPHEN MKOBA and DISTRICT ADMINISTRATOR, MIDLANDS PROVINCE and GOVERNOR, MIDLANDS PROVINCE and MINISTER OF LOCAL GOVERNMENT and PRESIDENT OF THE REPUBLIC OF ZIMBABWE Ruled By: NDOU J

Appealed SC06-21 : OLIVER MASOMERA (as Executor Dative of Estate late Bryan James Rhodes) vs GIDEON HWEMENDE and OTHERS Ruled By: PATEL JA, BHUNU JA and BERE JA

HH66-16 : MEIKLES LIMITED vs ZIMBABWE STOCK EXCHANGE and ALBAN CHIRUME Ruled By: MAKONI J

HH83-14 : RITENOTE PRINTERS (PVT) LTD and JOHN KANOKANGA vs A.ADAM & COMPANY (PVT) LTD and TARIK ADAM and MOOSA ADAM Ruled By: CHIGUMBA J

SC71-14 : EDWARD TAWANDA MADZA and OTHERS vs REFORMED CHURCH IN ZIMBABWE DAISYFIELD TRUST and REFORMED CHURCH OF ZIMBABWE and NAISON TIRIVAVI and DUTCH REFORMED CHURCH Ruled By: ZIYAMBI JA, GARWE JA and HLATSHWAYO JA

View Appeal SC161-20 : STANLEY NHARI vs ROBERT MUGABE and DR GRACE MUGABE and GUSHUNGO DAIRY HOLDINGS (PVT) LTD Ruled By: GARWE JA, MAVANGIRA JA and MAKONI JA

HH443-15 : MHANGURA COPPER MINES LIMITED vs TAYENGWA MUSKWE Ruled By: HUNGWE J

HH147-16 : TATENDA MANDUNA vs ALLIANCE INSURANCE (PVT) LTD Ruled By: MUSHORE J

View Appeal HB128-19 : 1893 MTHWAKAZI RESTORATION MOVEMENT TRUST and NOMALANGA DABENGWA vs TINASHE KAMBARAMI and CITY OF BULAWAYO and ZIMBABWE ELECTORAL COMMISSION and MOVEMENT FOR DEMOCRATIC CHANGE ALLIANCE Ruled By: MABHIKWA J

SC67-21 : COSSAM CHIANGWA and OTHERS vs APOSTOLIC FAITH MISSION IN ZIMBABWE and OTHERS Ruled By: MAVANGIRA JA, MAKONI JA and KUDYA AJA

HB04-16 : PATIENCE MAFU vs FREEMAN BIBA NCUBE and THE BULAWAYO CITY COUNCIL Ruled By: MATHONSI J

SC78-21 : ZIMBABWE HOMELESS PEOPLES FEDERATION and OTHERS vs MINISTER OF LOCAL GOVERNMENT AND NATIONAL HOUSING and OTHERS Ruled By: GARWE JA, MAVANGIRA JA and MATHONSI JA

SC80-21 : ALLEN GESSEN vs PRISCILLA CHIGARIRO Ruled By: MATHONSI JA

Appealed SC119-21 : MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS and OTHERS vs CONCILIA CHINANZVAVANA and THE NATIONAL PEACE AND RECONCILIATION COMMISSION Ruled By: GWAUNZA DCJ, GUVAVA JA and BHUNU JA

View Appeal HMA13-19 : CONCILIA CHINANZVAVANA vs MINISTER OF JUSTICE, LEGAL & PARLIAMENTARY AFFAIRS and OTHERS Ruled By: MAFUSIRE J

HH425-18 : MIDLANDS STATE UNIVERSITY vs GALAXY ENGINEERING DESIGN CONSULTANTS (PVT) LTD Ruled By: CHIKOWERO J

HB36-15 : BULAWAYO CITY COUNCIL vs BUTTON ARMATURE WINDING (PVT) LTD Ruled By: MUTEMA J

View Appeal SC59-16 : ZIMRE PROPERTY INVESTMENTS LIMITED vs SAINTCOR (PVT) LTD t/a V. TRACK and JOHN SHUMBA Ruled By: ZIYAMBI JA, GARWE JA and GOWORA JA

HB36-15 : BULAWAYO CITY COUNCIL vs BUTTON ARMATURE WINDING (PVT) LTD Ruled By: MUTEMA J

HH170-22 : DIVVYLAND INVESTMENTS (PVT) LTD vs DAVID CHIWEZA and THE SHERIFF OF ZIMBABWE Ruled By: FOROMA J

HH686-20 : NATIONAL ENGINEERING WORKERS UNION and WISE GARIRA and SHEPHERD MASHINGAIDZE vs NATIONAL EMPLOYMENT COUNCIL FOR THE ENGINEERING IRON & STEEL INDUSTRY and OTHERS Ruled By: MUSHORE J

CC08-21 : ZIMBABWE BANKS AND WORKERS UNION and TIRIVANHU MARIMO vs MINISTER OF PUBLIC SERVICE, LABOUR AND SOCIAL WELFARE and THE SHERIFF OF ZIMBABWE and ZB BANK LIMITED Ruled By: GARWE AJCC, GOWORA AJCC and HLATSHWAYO AJCC

View Appeal HH264-21 : MUSA KIKA vs MINISTER OF JUSTICE LEGAL & PARLIAMENTARY AFFAIRS and THE CHIEF JUSTICE HONOURABLE LUKE MALABA N.O. and OTHERS Ruled By: ZHOU J, CHAREWA J and MUSHORE J

HH54-16 : AIR DUCT FABRICATORS (PVT) LTD vs A.M. MACHADO & SONS (PVT) LTD Ruled By: CHIGUMBA J

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Law Portal
Zimbabwe

HHH57-09 : KISIMUSI DHLAMINI AND GANDHI MUDZINGWA AND ANDRISON MANYERE vs THE STATE
Ruled By: MTSHIYA J

HB41-09 : THANDAZO RETAIL AND MARKETING (PVT) LTD T/a STRIDES BOUTIQUE AND FUNKEE MUNKEE vs MAIN MOTORS (PVT) LTD AND REFCO (PVT) LTD
Ruled By: NDOU J

HB66-09 : SIPHILISIWE SIZIBA vs SOPHIE MATIMBA N.O. and QHUBEKANI MABUZA NCUBE
Ruled By: KAMOCHA J

HB114-09 : DENNY NDABEZINHLE MASHENGELE vs JAMES NCUBE
Ruled By: NDOU J

HH24-10 : SAHAWI INTERNATIONAL (PTY) LIMITED and YAKUB IBRAHIM MAHOMED vs JOHN ARNOLD BREDENKAMP and BRECO INTERNATIONAL (PRIVATE) LIMITED
Ruled By: MAKARAU JP

HH30-10 : TM SUPERMARKETS (PVT) LTD vs CHADCOMBE PROPERTIES (PVT) LTD
Ruled By: PATEL J and OMERJEE J

HH07-13 : ZIMBABWE TEXTILE MANUFACTURERS ASSOCIATION vs ZIMBABWE TEXTILE WORKERS UNION and DR. GODFREY KANYENZE
Ruled By: MTSHIYA J

HH45-13 : OLIVER MUSHUMA vs SWEEN MUSHONGA
Ruled By: HLATSHWAYO J and MAWADZE J

HB95-11 : MADINDA NDLOVU vs HIGHLANDERS FOOTBALL CLUB
Ruled By: CHEDA J

HB07-14 : JOSEPH MARSHAL STUART vs NATIONAL RAILWAYS OF ZIMBABWE
Ruled By: NDOU J

SC32-13 : HEYWOOD INVESTMENTS (PRIVATE) LIMITED t/a GDC HAULIERS vs PHARAOH ZAKEYO
Ruled By: MALABA DCJ, GARWE JA and GOWORA JA

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

HMA12-17 : BRIAN ANDREW CAWOOD vs ELASTO MADZINGIRA and THE MESSENGER OF COURT – MWENEZI N.O.
Ruled By: MAFUSIRE J

HMA17-17 : MAIN ROAD MOTORS (Case 1) and SYLVIA CHORUWA (Case 2) vs COMMISSIONER – GENERAL, ZIMRA
Ruled By: MAFUSIRE J

HH446-15 : TELECEL ZIMBABWE vs POSTAL AND TELECOMMUNICATIONS REGULATORY AUTHORITY and MINISTER OF INFORMATION TECHNOLOGY N.O. and CHIEF SECRETARY, OFFICE OF PRESIDENT and EMPOWERMENT CORPORATION
Ruled By: MATHONSI J

HH73-15 : FUNGAI NHAU vs MEMORY KAFE and CHIPO NKUDZI
Ruled By: MATHONSI J

HH225-13 : EMMERSON MNANGAGWA vs ALPHA MEDIA HOLDINGS (PRIVATE) LIMITED and DUMISANI MULEYA
Ruled By: MATHONSI J

HH228-16 : ANJIN INVESTMENTS (PVT) LTD vs THE MINISTER OF MINES & MINING DEVELOPMENT and THE MINISTER OF HOME AFFAIRS and THE COMMISSIONER-GENERAL OF THE ZIMBABWE REPUBLIC POLICE
Ruled By: MANGOTA J

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

HH217-17 : NAISON SEKERAMAYI and OTHERS vs MASTER OF HIGH COURT and PROVINCIAL MAGISTRATE, HARARE and EASTER DZWOWA and YARADZO MUNANGATI MANONGWA (Executrix Dative in Estate Lovemore Sekeramayi)
Ruled By: ZHOU J

HMA36-18 : AMALGAMATED RURAL TEACHERS UNION OF ZIMBABWE vs OBERT MASARAURE and ZIMBABWE AFRICAN NATIONAL UNION [PATRIOTIC FRONT] and MINISTER OF PRIMARY AND SECONDARY EDUCATION
Ruled By: MAFUSIRE J

SC70-20 : CITY OF HARARE vs AMOS CHIKWANDA
Ruled By: BHUNU JA

HB94-11 : GOLDEN MOYO vs STEPHEN MKOBA and DISTRICT ADMINISTRATOR, MIDLANDS PROVINCE and GOVERNOR, MIDLANDS PROVINCE and MINISTER OF LOCAL GOVERNMENT and PRESIDENT OF THE REPUBLIC OF ZIMBABWE
Ruled By: NDOU J

Appealed
SC06-21 : OLIVER MASOMERA (as Executor Dative of Estate late Bryan James Rhodes) vs GIDEON HWEMENDE and OTHERS
Ruled By: PATEL JA, BHUNU JA and BERE JA

HH66-16 : MEIKLES LIMITED vs ZIMBABWE STOCK EXCHANGE and ALBAN CHIRUME
Ruled By: MAKONI J

HH83-14 : RITENOTE PRINTERS (PVT) LTD and JOHN KANOKANGA vs A.ADAM & COMPANY (PVT) LTD and TARIK ADAM and MOOSA ADAM
Ruled By: CHIGUMBA J

SC71-14 : EDWARD TAWANDA MADZA and OTHERS vs REFORMED CHURCH IN ZIMBABWE DAISYFIELD TRUST and REFORMED CHURCH OF ZIMBABWE and NAISON TIRIVAVI and DUTCH REFORMED CHURCH
Ruled By: ZIYAMBI JA, GARWE JA and HLATSHWAYO JA

View Appeal
SC161-20 : STANLEY NHARI vs ROBERT MUGABE and DR GRACE MUGABE and GUSHUNGO DAIRY HOLDINGS (PVT) LTD
Ruled By: GARWE JA, MAVANGIRA JA and MAKONI JA

HH443-15 : MHANGURA COPPER MINES LIMITED vs TAYENGWA MUSKWE
Ruled By: HUNGWE J

HH147-16 : TATENDA MANDUNA vs ALLIANCE INSURANCE (PVT) LTD
Ruled By: MUSHORE J

View Appeal
HB128-19 : 1893 MTHWAKAZI RESTORATION MOVEMENT TRUST and NOMALANGA DABENGWA vs TINASHE KAMBARAMI and CITY OF BULAWAYO and ZIMBABWE ELECTORAL COMMISSION and MOVEMENT FOR DEMOCRATIC CHANGE ALLIANCE
Ruled By: MABHIKWA J

SC67-21 : COSSAM CHIANGWA and OTHERS vs APOSTOLIC FAITH MISSION IN ZIMBABWE and OTHERS
Ruled By: MAVANGIRA JA, MAKONI JA and KUDYA AJA

HB04-16 : PATIENCE MAFU vs FREEMAN BIBA NCUBE and THE BULAWAYO CITY COUNCIL
Ruled By: MATHONSI J

SC78-21 : ZIMBABWE HOMELESS PEOPLES FEDERATION and OTHERS vs MINISTER OF LOCAL GOVERNMENT AND NATIONAL HOUSING and OTHERS
Ruled By: GARWE JA, MAVANGIRA JA and MATHONSI JA

SC80-21 : ALLEN GESSEN vs PRISCILLA CHIGARIRO
Ruled By: MATHONSI JA

Appealed
SC119-21 : MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS and OTHERS vs CONCILIA CHINANZVAVANA and THE NATIONAL PEACE AND RECONCILIATION COMMISSION
Ruled By: GWAUNZA DCJ, GUVAVA JA and BHUNU JA

View Appeal
HMA13-19 : CONCILIA CHINANZVAVANA vs MINISTER OF JUSTICE, LEGAL & PARLIAMENTARY AFFAIRS and OTHERS
Ruled By: MAFUSIRE J

HH425-18 : MIDLANDS STATE UNIVERSITY vs GALAXY ENGINEERING DESIGN CONSULTANTS (PVT) LTD
Ruled By: CHIKOWERO J

HB36-15 : BULAWAYO CITY COUNCIL vs BUTTON ARMATURE WINDING (PVT) LTD
Ruled By: MUTEMA J

View Appeal
SC59-16 : ZIMRE PROPERTY INVESTMENTS LIMITED vs SAINTCOR (PVT) LTD t/a V. TRACK and JOHN SHUMBA
Ruled By: ZIYAMBI JA, GARWE JA and GOWORA JA

HB36-15 : BULAWAYO CITY COUNCIL vs BUTTON ARMATURE WINDING (PVT) LTD
Ruled By: MUTEMA J

HH170-22 : DIVVYLAND INVESTMENTS (PVT) LTD vs DAVID CHIWEZA and THE SHERIFF OF ZIMBABWE
Ruled By: FOROMA J

HH686-20 : NATIONAL ENGINEERING WORKERS UNION and WISE GARIRA and SHEPHERD MASHINGAIDZE vs NATIONAL EMPLOYMENT COUNCIL FOR THE ENGINEERING IRON & STEEL INDUSTRY and OTHERS
Ruled By: MUSHORE J

CC08-21 : ZIMBABWE BANKS AND WORKERS UNION and TIRIVANHU MARIMO vs MINISTER OF PUBLIC SERVICE, LABOUR AND SOCIAL WELFARE and THE SHERIFF OF ZIMBABWE and ZB BANK LIMITED
Ruled By: GARWE AJCC, GOWORA AJCC and HLATSHWAYO AJCC

View Appeal
HH264-21 : MUSA KIKA vs MINISTER OF JUSTICE LEGAL & PARLIAMENTARY AFFAIRS and THE CHIEF JUSTICE HONOURABLE LUKE MALABA N.O. and OTHERS
Ruled By: ZHOU J, CHAREWA J and MUSHORE J

HH54-16 : AIR DUCT FABRICATORS (PVT) LTD vs A.M. MACHADO & SONS (PVT) LTD
Ruled By: CHIGUMBA J