Disputes of Fact or Conflict of Facts re: Approach, Factual, Non-Factual, Questions of Law and Material Resolutions

SC22-09 : MAXMUS SAVANHU vs MAGNET MARERE N.O. and MASTER OF THE HIGH COURT and THE REGISTRAR OF DEEDS
Ruled By: MALABA DCJ, CHEDA JA and GARWE JA

This is an appeal from a judgment of the High Court given on 9 March 2006 dismissing with costs an application for an order compelling the first respondent to transfer Stand 151 of Plot 216 of Good Hope Township of Good Hope into the appellant's name in terms of an agreement of sale entered into ...

The appellant and the late Robert Mubayiwa Marere (“the deceased”) entered into a written contract on 30 October 1998 in terms of which the latter agreed to sell and the former agreed to purchase Stand 151 of Plot 216 of Good Hope Township of Good Hope (“the property”) for $230,000=.

The parties provided for two alternative methods of payment of the purchase price under Clauses 12 and 7. Under Clause 12, they agreed that the purchase price would be paid as follows:

“1. The sum of $50,000= (fifty thousand dollars) to be paid to ERS REALTY'S TRUST ACCOUNT on signing of this Agreement of Sale.

2. The balance of $180,000= (one hundred and eighty thousand dollars) to be paid at the rate of $30,000= (thirty thousand dollars) per month commencing on the 1st of July 1998 with interest at the rate of 25% effected if the purchaser does not meet the deadline of 30 December 1998.”

Under Clause 7, headed “TRANSFER”, the parties agreed that:

“Transfer shall be effected by the seller's conveyancers and the purchaser shall, within a period of fourteen days, pay or furnish a Bank or Building Society guarantee for payment of the purchase price against transfer. If such payment or guarantee shall not be furnished to the seller's conveyancers the purchase price shall bear interest at 19% per annum from the expiry of such period of fourteen (14) days until transfer shall be effected.”

The details of payment provided for under Clause 7 are so different from those under Clause 12 that an inference must be drawn, as a matter of construction from the terms used, that the parties intended that the appellant would have to decide which of the two methods of payment to follow and be bound by the terms.

Under Clause 10, the parties agreed that in the event of the purchaser failing to pay any sum owing under the agreement on the due date or in the event of any breach of any other condition of the agreement, the seller had to give the purchaser written notice to remedy the breach within fourteen days of the posting of such notice failing which the seller would be entitled to cancel and terminate the agreement of sale, or, alternatively, have the option to institute legal proceedings against the purchaser for the balance of the purchase price then owing under the agreement.

Lastly, they agreed, under Clause 11, that the agreement of sale constituted the entire contract between them and no variation of it would be valid unless reduced to writing and signed by or on behalf of the parties.

No payment of the sum of $50,000 was made by the appellant on signing of the agreement on 30 October 1998 in terms of Clause 12(1) of the contract. An amount of $50,000 had been paid to ERS Realty on 21 May 1998. The receipt states that the money was paid as a deposit of the purchase price in respect of Stand 21G of Lot 216 of Good Hope Township.

Counsel for the appellant argued, on appeal, that Stand 21G of Lot 216 was in fact the same as Stand 151 of Lot 216 of Good Hope Township.

Whilst that may be the case there was nothing said by the appellant in the founding affidavit to support the contention. Similarly, the founding affidavit was silent as to whether Stand 21G of Lot 216 of Good Hope Township in respect of the purchase price of which an instalment of $3,000 was paid to ERS Realty on 31 July 1998 was the same as Stand 151 of Lot 216 of Good Hope Township.

Five receipts of payments of $30,000 made by the appellant to Messrs Manase & Manase, a firm of legal practitioners appointed as the seller's conveyancers, were annexed to the founding affidavit. The payments were all made between 31 March and 12 October 1999. Each receipt states that the payment was a deposit for a purchase price for an unidentified piece of land. The payment is said to be to the credit of an entity called NYIKA Engineering.

Counsel for the appellant suggested, in argument on appeal, that NYIKA Engineering was a company owned by the deceased.

There was no reference to NYIKA Engineering in the founding affidavit.

Even if it is a company there was no explanation given as to why it received payment of the money in terms of a contract to which it was not a party.

The respondent, who became the executrix dative on 24 October 2003 in her husband's estate, denied that the estate received any of the sums of money paid by the appellant to ERS Realty and Messrs Manase & Manase for the property. She denied knowledge of any relationship between NYIKA Engineering and the deceased in his lifetime. She went on to aver, in paragraph 2 of the opposing affidavit that:

“It is also telling that the applicant has not been able to take vacant possession of the said Stand since 1998 and has not claimed it until well after my husband's death and has not sought to enforce his rights to take transfer. This is so because my husband repeatedly informed him that he had not received the purchase price. It is therefore apparent that the applicant knows of the problems associated with this sale and wishes to take his chances with me.”

The court a quo held that payment of the instalments of $30,000= per month to Messrs Manase & Manase constituted a breach of Clause 12(2) of the Agreement of Sale as the appellant was bound to pay the money to ERS Realty. As a result, the application was dismissed with costs.

The contention, on appeal, was that the learned Judge misdirected herself in making the finding that the payment of the instalments to Messrs Manase & Manase was in breach of Clause 12(2) of the agreement of sale. It was argued, in the alternative, that even if the payment was a breach of contract, the learned Judge ought not to have dismissed the application because the deceased or the first respondent had not initiated and completed the procedure agreed on by the parties under Clause 10 of the agreement of sale for termination of the contract.

To determine the correctness of the contention that the court a quo misdirected itself in holding that payment to Messrs Manase & Manase was in breach of Clause 12(2) it is necessary to decide the question as to which of the two methods of payment of the purchase price the appellant was found to have decided to follow.

It is clear that the learned Judge took the view that he followed the method of payment provided for under Clause 12 of the contract. Counsel for the appellant argued that the payments of the instalments were made in terms of Clause 7 of the agreement of sale.

The fact that there was in fact no payment of the deposit of $50,000 on signing of the agreement of sale on 30 October 1998 in terms of Clause 12(1) of the contract would suggest that the appellant decided to pay the purchase price in terms of Clause 7. It is, however, clear from the facts of the case that although the payment of $50,000 to ERS Realty by the appellant on 21 May 1998 was, at law, not payment in terms of the agreement of sale, he believed that it was payment towards the purchase price of the property.

Although he produced no evidence to support the allegation, the appellant had his case argued on the basis that Stand 21G of Lot 216 of Good Hope Township for the purchase price of which $50,000 was paid was in fact Stand 151 of Lot 216 of Good Hope Township.

The learned Judge was correct in finding, on the facts, that the appellant believed he had made the payments in terms of Clause 12 of the agreement of sale. I, however, do not agree with the finding by the learned Judge that if the payment to Messrs Manase & Manase was indeed in respect of Stand 151 of Lot 216 of Good Hope Township it was in breach of Clause 12(2) because it ought to have been made to ERS Realty.

The appellant was specifically required, under Clause 12(1) of the agreement of sale, to pay $50,000 of the purchase price to ERS Realty on signing of the contract. That exclusive mandate did not extend to the payment of the balance of $180,000. Clause 12(2), relating to the payment of the balance, is silent as to whom the payment was to be made. It therefore had to be made to the deceased.

Payment of the instalments of the purchase price to Messrs Manase & Manase, in terms of clause 12(2) of the agreement, would not be in breach of the contract provided the appellant made sure that the deceased received the money.

It is clear from the facts that the appellant failed to prove that the payments he made were in terms of the contract. He failed to show that there was payment of $50,000 to ERS Realty on signing of the agreement. There was no term in the agreement of sale by which the parties acknowledged payment of $50,000 before the signing of the contract. There was no evidence at all in the papers to show that the deceased received any of the payments made either to ERS Realty before the signing of the agreement of sale or to Messrs Manase & Manase after the signing of it.

The first respondent denied that the deceased received any of the payments. All that the appellant could say in the answering affidavit was that the question whether the deceased received the money in terms of the contract was not for him to answer.

The appellant chose to proceed by way of a court application to claim the order of specific performance against the first respondent. As the proceedings were by way of a court application and there were disputes of fact the final relief could only have been granted if the facts stated by the first respondent together with the admitted facts in the appellant's affidavit justified such an order. Plascon Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd 1984 (3) SA 623 (A) …,.

As the court a quo was not satisfied as to the inherent credibility of the factual averments in the appellant's affidavit and the first respondent's denial not found to have been patently false it correctly held that it could not grant the order sought.

HH196-15 : G CHIPARAUSHE and 66 OTHERS vs TRIANGLE LIMITED and TRIANGLE SENIOR STAFF PENSION FUND
Ruled By: CHIGUMBA J

One morning, in February 2009, Zimbabweans woke up and found themselves subjected to a 'multi-currency system'. The Zimbabwean dollar was no longer accepted as legal tender. A basket of other currencies, such as the United States dollar and the South African Rand, were introduced into our society. The truth of the matter is that these currencies had ...

The truth of the matter is that these currencies had been circulating on what had been dubbed a 'parallel market' for quite some time. There are those who welcomed the formal adoption of those currencies as legal tender in this country which had been ravaged by the knock-on effects of super hyper inflation. Others bemoaned the symbolic annihilation of our currency which they associated with a corresponding perception of the annihilation of our national sovereignty. The majority of the people were perturbed by the effect of the introduction of the multi-currency system on their pensions, insurance policies, and life savings.

This case is about a group of workers who, between them, gave more than twenty years of loyal service to their employer. In terms of the pension policy that was in operation at the outset both employer and employees diligently contributed monthly to a pension fund.

The issue that falls for determination, put simply, is whether all sixty seven employees are entitled to challenge the determination by the employer as to what constitutes their basic annual salary for purposes of calculating their pension benefits. Depending on the answer to this question, the court will have to determine, further, whether these employees are entitled to demand further payments by the employer towards their eventual pensions.

At the heart of these issues lies the contentious issue of the effect of the introduction of the 'multi currency' system on the calculation of pension contributions which had previously been based on our local currency, and were now set to be calculated on the basis of the United States dollars, the currency that the employees were now remunerated in.

Some would say that the question ought to be holistically and definitively addressed by Parliament as a matter of policy. Others feel that it is simply a question of implementing the provisions set out in the relevant pension fund.

We have been asked to issue an interdict and a declaratur as to the parties' rights and obligations in terms of the rules of their pension fund.

The application before the court was filed of record on 16 December 2013. The founding affidavit was deposed to by G. Chiparaushe in a personal capacity and as the duly authorized representative of the sixty six other applicants who attached supporting affidavits authorizing him to represent them.

The first respondent is a sugar cane growing and processing company duly registered in accordance with the laws of this country and the employer of the sixty-seven applicants.

To avoid confusion, the first respondent shall be referred to as TRIANGLE. The second respondent is the Triangle Senior Staff Pension Fund (to be referred to as TSSPF), a properly constituted pension fund, duly registered with the Commissioner of Insurance, Pension and Provident Funds Act (IPEC), in terms of section 6 of the Pension and Provident Funds Act [Chapter 24:09]. The Triangle Senior Staff Pension Fund (TSSPF) is governed by its rules (the Fund Rules).

The first applicant averred that the application before the court was brought in accordance with Rule 9 of the Triangle Senior Staff Pension Fund Rules which provides that a member or any person whose claim is derived from a member shall have the right to refer a dispute to a court of law in this country for determination.

The applicants had previously approached an arbitrator, Honourable J.T Mawire, in terms of the Labour Act [Chapter 28:01] to determine the dispute, and, on or about the 5^th of September 2013, the arbitrator found that he did not have the jurisdiction to determine the dispute between the parties.

It was submitted, on behalf of the applicants, that they had a clear right to the interdict and declaratur that they sought.

The first applicant averred that he became an employee of TRIANGLE on the 1^st of April 1980, and a member of the Triangle Senior Staff Pension Fund (TSSPF) on the 1^st of July 1996. As from the date of his membership to the Triangle Senior Staff Pension Fund, TRIANGLE commenced deducting his share of pension contributions from his basic salary. The applicant remains a member of the Triangle Senior Staff Pension Fund to date.

The first applicant averred, further, that in terms of clause 11 of his contract of employment, membership to the Triangle Senior Staff Pension Fund (TSSPF) became compulsory on the date of his appointment, and his contribution of 7% of his basic monthly salary was automatically deducted and forwarded to the Triangle Senior Staff Pension Fund (TSSPF), by TRIANGLE, every month. According to the Terms and Conditions of the employment of C Band staff (Loss Control Manager), as at 1 July 1996 the basic salary was pegged at ZW$90,948=. The pension contribution of 13% came to ZW$11,823=. Under the heading “remuneration” was a note to the effect that:

“The basic salary is pensionable and the company currently contributes 13% to the Triangle Senior Staff Pension Fund.”

After the basic salary was a list of benefits which were to be paid on behalf of the employee on a 50% contribution basis, such as CIMAS medical aid and a drug scheme. Further benefits included an education allowance which was expressly qualified as being taxable.

The first applicant averred that, currently, in terms of Rule 19 of the Triangle Senior Staff Pension Fund Rules, TRIANGLE is obliged to make a corresponding monthly contribution to the Triangle Senior Staff Pension Fund of 13.5% of the first applicant's basic monthly salary. On the basis of the aforesaid, the first applicant averred that he and his fellow applicants have a clear right to have a deduction of 7% of his basic monthly salary made and to have a corresponding 13.5% of his basic monthly salary contributed by TRIANGLE. Failure to match the first applicant's contribution would be a failure by TRIANGLE to abide by the Triangle Senior Staff Pension Fund Rules.

It was submitted that, in or about October 2000, the Managing Director of TRIANGLE, Mr. J. M. Cleasby, advised members of the Triangle Senior Staff Pension Fund (TSSPF) that it was closed to new entrants on the basis that its existing members would be given an option to transfer to a different pension fund, the Triangle Pension Plan (hereinafter referred to as The Money Plan). In November 2000, Mr. Cleasby wrote a letter to the members of the Triangle Senior Staff Pension Fund and advised them that the date of transfer to The Money Plan was the 1^st of January 2001. Paragraph 3 of the letter stated that:

“To assist you in making a decision please find enclosed;

(a) Comparison booklet.

(b) Illustration letter.

It was submitted, on behalf of the applicants that, TRIANGLE caused a booklet called 'Defined Benefit Triangle Senior Staff Pension Fund or Defined Contribution The Money Plan', which compared the two schemes to be published. All sixty seven applicants opted to remain members of the Triangle Senior Staff Pension Fund (TSSPF).

The first applicant averred that the applicants suffered an injury and/or that, alternatively, an injury is reasonably apprehended by them. In support of this contention is the averment found in paragraph 18 of the first applicant's founding affidavit, that TRIANGLE has unilaterally decided to refuse to make its share of contributions to the Triangle Senior Staff Pension Fund and/or to deduct their 7% contributions from their basic monthly salaries. The allegation against TRIANGLE is that, by refusing to recognize most of the earnings of members of the Triangle Senior Staff Pension Fund (TSSF) as 'pensionable', it has, by its conduct, breached the terms of the Triangle Senior Staff Pension Fund Rules and interfered with the accrual of pension benefits.

In support of this averment, the first applicant referred to a letter to the trustees of the Triangle Senior Staff Pension Fund (TSSPF), dated 1 April 2009, written by the TRIANGLE managing director, Mr. S. D. Mutsambiwa. The letter was entitled “Pensionability of US$ Salaries”. It reads as follows:

“Kindly note that the January 2009, February 2009 and March 2009 salaries have been paid in USD$ to employees who are members of the Triangle Senior Staff Pension Fund (TSSPF). These salaries were paid in USD$ without any confirmation by the employer whether or to what extent the salaries would constitute pensionable emoluments. A decision in this regard is still to be made pending a review of the 'dollarisation' of the Zimbabwean economy and the bearing this will have, amongst other things, on the functioning of the Fund. The company will be arranging a meeting with the Board of Trustees in the near future to consider the way forward both in relation to existing pensioners and active member. In the meantime, and until further notice, contributions will be remitted to the Fund Administrators as an interim measure pending final decisions regarding the way forward in respect of the Triangle Senior Staff Pension Fund (TSSPF). This interim arrangement should under no circumstances be regarded as an implied decision having been taken that current USD$ salaries are indeed classified as pensionable emoluments.”…,.

On 8 July 2009, TRIANGLE introduced the “guaranteed package” to employees in the Executive grade, backdated to June 2009….,.

In paragraph 24 of his founding affidavit, the first applicant avers that all the applicants were forced to sign the acceptance letter in unilateral variation of their conditions of employment.

To prove this claim, he referred to an electronic mail communication dated 15 December 2009, addressed to Mr, Eston, in which Fred Nyangwe advised that Mr. Eston's failure to sign the letter which contained the new conditions of service, meant that, with effect from 1 December 2009, his salary, as set out in the letter, would be discontinued and he would go back to earning his old salary as at 31 May 2009. He was also advised that the difference between the two salaries, which he had been paid, would be deducted from his old salary until it had been recovered in full.

On 7 October 2010, TRIANGLE announced that the Triangle Senior Staff Pension Fund (TSSPF) would be discontinued and its active members moved to the Money Fund with effect from 1 November 2010. The Triangle Senior Staff Pension Fund Trustees refused to sign a resolution to approve the disbanding of the Fund on the basis that this violated the Triangle Senior Staff Pension Fund Rules and constituted a reversal of the undertakings made by TRIANGLE to the Fund members.

The Trustees were of the view that the procedure set out by Rule 36 of the Triangle Senior Staff Pension Fund Rules had not been followed.

A meeting was held at which TRIANGLE announced the transfer of the Triangle Senior Staff Pension Fund members to the Money Plan and told the members that the transfer values would be based on January 2009 salaries and not on current salaries.

Again, this was alleged to be in violation of the Triangle Senior Staff Pension Fund Rules.

The applicants' contention is that the relevant Rule equates pensionable emoluments to a member's basic salary or wage. Members' basic salaries had increased significantly since 2009, in some instances by 500%. TRIANGLE contended that following the Triangle Senior Staff Pension Fund Rules would result in its bankruptcy.

On 19 October 2010, the Triangle Senior Staff Pension Fund members delivered a petition to the trustees of the Triangle Senior Staff Pension Fund to demonstrate that they did not wish or agree to transfer from the Triangle Senior Staff Pension Fund (TSSPF) to the Money Plan. On 15 February 2011 the trustees addressed a letter to the TRIANGLE Human Resources Manager. Paragraph 3 of the letter reads as follows:

“…,. Of concern by members is why the trustees are not being consulted on the future of the Fund in accordance with the Fund's rules. Member trustees are not being kept informed as to what is happening and are not being asked for input or direction…”

In February 2011, TRIANGLE announced a further annual salary review together with changes to the structure of employment benefits. Members were asked to agree to and sign for these changes by 7 March 2011. Part of a letter written to Mrs. Eston (one of the applicants) on 21 February 2011, by Human Resources, reads as follows:

“Dear Mrs Eston,

The structure of your remuneration package has been reviewed in the context of the need to align the employee remuneration framework…,. It is confirmed that your actuarily calculated benefit in the TSSPF is to be based on the USD$ salary that has been used to determine your Fund contributions since 1 January 2009…,.”

In response to the petition by members of the Triangle Senior Staff Pension Fund (TSSPF), the Insurance and Pensions Commission (IPEC) called a meeting and advised that TRIANGLE was at liberty to disband the Triangle Senior Staff Pension Fund (TSSPF) - but only after fully funding it and complying with the requisite termination procedures.

In paragraph 38 of the founding affidavit, it is averred, on behalf of the applicants, that they have no other remedy. Various meetings with the trustees have not yielded any results. TRIANGLE has continued to refuse to recognize members' basic salary as the pensionable emolument. Repeated appeals to the Insurance and Pensions Commission (IPEC) to intervene have not yielded any tangible solutions.

The applicants reiterate that no other remedy other than a declaratur and an interdict can assist them to assert their pension rights.

On 20 January 2014, TRIANGLE filed a notice of opposition.

The opposing affidavit was deposed to by Fred Nyangwe, the Human Resources director. He raised various points in limine;

(i) The first of which was that the applicants had failed to exhaust domestic remedies.

(ii) The second preliminary point raised is that there are material disputes of fact which make this matter incapable of resolution on the papers filed of record.

(iii) The third preliminary point raised in the founding affidavit is that this matter is lis pendens, the decision of the arbitrator, Mr. Mawire, of 23 September 2013, not being final.

(iv) The final preliminary point raised is that this matter has prescribed because the applicants' claims arose in August 2009, or, alternatively, January and August 2010.

On 20 February 2014, an answering affidavit was filed on behalf of the applicants. TRIANGLE was accused of usurping the power of the Board of Trustees of the Triangle Senior Staff Pension Fund (TSSPF) and of attempting to close the Fund. The trustees deliberated over the dispute for more than two years and it was alleged that they have failed to resolve the issue because the chairman of the Fund frustrated all efforts to settle the matter. It was contended that TRIANGLE frustrated efforts by the Insurance and Pensions Commission (IPEC) to resolve the dispute starting with the meeting of 6 October 2011, by failing to comply with the Insurance and Pensions Commission directives.

The issues that fall for determination before this court are as follows:

1. Whether this court is correctly seized with this matter.

2. Whether the applicants failed to exhaust domestic remedies.

3. Whether the applicants claim has prescribed.

4. Whether there are material disputes of fact which are not capable of resolution on the papers filed of record.

5. What constitutes basic salary for purposes of calculating the contributions due from the applicants and from TRIANGLE for onward transmission to the Triangle Senior Staff Pension Fund (TSSPF) every month.

6. Whether the applicants are entitled to the relief sought....,.

(e) Whether there are material disputes of fact which are not capable of resolution on the papers filed of record

The court was asked to bear in mind three fundamental principles well established in the law of this country in its approach to this matter;

1. The first principle submitted on behalf of TRIANGLE was that it is a trite rule of procedure that an applicant bringing a matter by way of court application must make his or her case on the founding papers.

The court was referred to the following cases as authority for this proposition:

Mauberger v Mauberger1948 (3) (SA) 731 (C)…,; Shepherd v Tuckers Land & Development Co (Pty) Ltd1978 (1) SA 173 (W)…,.; Mobil Oil Zmbabwe (Pvt) Ltd v Travel Forum (Pvt) Ltd 1990 (1) ZLR 67 (HC); and Mangwiza v Ziumne NO & Anor 2000 (2) ZLR 489 (SC)…,.

The approach has been well summarized in the case of Transnamib Ltd v Imcor Zinc (Pty) Ltd (Moly-Copper Mining and Exploration Corporation (WSA) Ltd and Another1994 NR 11 (HC)…, as follows:

“It is trite law that, generally, an applicant must make out his case in his founding papers and that such papers are a combination of pleadings and evidence. Furthermore, an applicant cannot merely set out a skeleton case in the founding papers and then fortify this in reply. If scant material is furnished in the founding papers the applicant runs the risk of his application being dismissed and should not complain if this is done as it was up to him to put more facts before the court if he could. The court may, in its discretion, allow deviations from the normal procedures but it must be borne in mind that the normal procedures developed as they did because they would almost invariably be consonant with the best interest of the administration of justice.”

2. The second principle that the court was asked to bear in mind was that, having chosen to approach the court by way of application, the applicants took the risk that the matter would result in disputes of fact arising, and that those disputes of fact would be resolved on the basis of facts alleged by TRIANGLE, together with those of the applicants which are admitted, subject to any resolution of the disputed facts which could be made without causing injustice to either party. The applicants chose the procedure at their own peril. As authority for this proposition, the court was referred to the following cases;

Tamarillo (Pty) Ltd v B N Aitken (Pty) Ltd 1982 (1) SA 398 (A)…,.; Plascon-Evans Paints Ltd v Van Riebek Paints (Pty) Ltd1984 (3) SA 623 (A)..,.; Masukusa v National Foods & Anor 1983 (1) ZLR 232 (HC)…,.;Zimbabwe Bonded Fibreglass (Pvt) Ltd v Peech 1987 (2) ZLR 338 (SC)…,.; Truth Verification Testing Centre CC v PSC Truth Detection CC & Ors 1998 (2) SA 689 (W)…,.; Jirira v Zimcor Trustees Ltd & Anor2010 (1) ZLR 133 (H)…,.

3. The third well established principle that the court was asked to have regard to is that a court will not entertain a matter such as this court application where the applicants knew or ought to have known in advance that there were disputes of fact which could not be resolved on the papers. As authority for this proposition, the court was referred to;

Masukusa v National Foods & Anor 1983 (1) ZLR 232 (HC)…,.; Tamarillo (Pty) Ltd v B N Aitken (Pty) Ltd 1982 (1) SA 398 (A)…,.; Adbro Investment Co Ltd v Minister of the Interior 1956 (3) SA 345 (A)…,.; Shereni v Moyo1989 (2) ZLR 148 (S)…,.

It was submitted that the applicants ought to have regard to the admonition by the Judge in the case of Mashingaidze v Mashingaidze 1995 (1) ZLR 219 (HC)…, where he said that:

“It is necessary to discourage the oft-recurring practice whereby applicants who know, or should know, as was the case with the applicant in this matter, that real and substantial disputes of fact will or are likely to arise on the papers, nevertheless resort to application proceedings on the basis that, at the worst, they can count on the court to stand the matter over for trial….,. Unless this practice is seen to be curbed, applicants will continue to believe that they have nothing to lose, and, indeed, everything to gain tactically by embarking upon application proceedings notwithstanding their knowledge or belief at the time of doing so that the respondent will be able to show that genuine and serious disputes of fact exist on the papers.”

Two examples of “known disputes of fact” were given on behalf of TRIANGLE…,.

It was submitted that the applicants knew, in advance of instituting the present application, that certain of their critical allegations were disputed. It was submitted, further, that, at the very least the applicants must have realized that “real and substantial disputes of fact will or are likely to arise on the papers” and adopted the correct procedure.

It was contended that the first substantial dispute of fact pertained to the booklet that was produced in the year 2000 at the time that the option to move from the Triangle Senior Staff Pension Fund (TSSPF) to the Money Plan. The applicants have disputed the assertion by TRIANGLE that the booklet was produced for and on behalf of the Trustees by the Fund Administrators, AON Minet. At paragraph 59.1.2 of the opposing affidavit…,. TRIANGLE disputes that it produced this booklet.

In my view, this is not a real and substantial dispute of fact which is incapable of resolution on the papers filed of record. As previously stated, the booklet is endorsed on its face that it was prepared by Aon Minet. Its contents clearly show that it was intended to provide an analysis of the pros and cons of the Triangle Senior Staff Pension Fund (TSSPF) as opposed to the Money Plan.

The second example of a known dispute of fact is the issue of the letter of 8 July 2009 which was produced as an example of how TRIANGLE allegedly communicated a change in the applicants' conditions of service and introduced a new form of remuneration. It was submitted that the applicants knew that this allegation would be disputed by TRIANGLE and that TRIANGLE would argue that the letter was superceded after further discussions with E Band management by the letter of 31 July 2009…,.

Again, in my view, this issue referred to as an example of known disputes of fact cannot be said to constitute a 'real' or a substantial dispute of fact which is incapable of resolution on the papers.

Applying the test set out on behalf of TRIANGLE, in regards to one of the three well-established principles that the court was enjoined to keep at the back of its mind, the formula to be used in order to determine whether there are disputes of fact which cannot be resolved on the papers is 'that those disputes of fact must be resolved on the basis of facts alleged by TRIANGLE, together with those of the applicants which are admitted, subject to any resolution of disputed facts not causing injustice to either party.'

Applying this formula to the alleged dispute of fact, that is whether TRIANGLE unilaterally sought to alter the applicants conditions of service through communicating the same to them in a letter dated 8 July 2009, the following becomes clear: the letter of 8 July 2009 was meant for E Band employees only, not for all the applicants or for all members of the Triangle Senior Staff Pension Fund (TSSPF); the letter of 8 July 2009 was subsequently revised following representations by E Band employees, only ten applicants in this matter are E Band employees, an amended letter dated 31 July 2009 was subsequently sent to the E Band employees, 11 E Band employees counter signed that letter to show their acceptance of the revised conditions of employment. The 11 E Band employees subsequently prepared similar letters for the D Band employees, of whom 21 out of 22 countersigned the letter, and 29 out of 34 C Band employees followed suit.

In the result, there are no material, real, or substantial disputes of fact which are incapable of resolution on these papers, and there are no deficiencies in the applicants' founding papers which would justify sanctions against them for choosing this procedure.

That preliminary point is dismissed for lack of merit.

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

Rule 226 reads: “226. Nature of applications (1) Subject to this rule, all applications made for whatever purpose in terms of these rules or any other law, other than applications made orally during the course of a hearing, shall be made – (a) As a court application, that is to say, in writing to the court on notice to all interested ...

HH480-18 : MILMATH SECURITY PL vs TABATANA MINING SYNDICATE and PAUL CHENJERAI and ISAAC JIRI and EARTHROW INVESTMENTS PL and PROSPER MACHEKERA and ORS
Ruled By: MANGOTA J

An owner of property may recover it from whoever possess it without his consent; Badela Ndlovu v Spiwe Posi HH475-15. The actio rei vindicatio is an action brought by an owner of the property to recover it from any person who retains possession of it without his consent; Tendai Savanhu v Hwange Colliery Company SC08-15. The principle that an owner cannot ...

An owner of property may recover it from whoever possess it without his consent; Badela Ndlovu v Spiwe Posi HH475-15.

The actio rei vindicatio is an action brought by an owner of the property to recover it from any person who retains possession of it without his consent; Tendai Savanhu v Hwange Colliery Company SC08-15. The principle that an owner cannot be deprived of his property against his will means that he is entitled to recover it from any person who retains possession of it without his consent; SILBERBERG and SCHOEMAN, Law of Property, 3ed…,.

A common thread runs through the above cited dicta. It is that no person is allowed, at law, to retain the property of another against the latter's will. Put differently, the law allows the owner to recover his property from whoever is holding the same against the owner's will. The only exception which the law recognizes is where the possessor has some enforceable right against the owner.

The generally accepted position which is enunciated in the first paragraph of this judgment constitutes the applicant's cause of action. Its contention is that gold claim number 45464, Makaha [“Makaha”] belongs to it. Makaha is in Mudzi which is under Mutoko District. It states that:

(a) Makaha was granted to it in 2012 by the fourteenth respondent (Minister of Mines and Mining Development); and

(b) In an ownership dispute of Makaha which ensued between the fourth respondent and it in October 2016, the Acting Provincial Mining Director for Mashonaland East Province, who works under the purview of the fourteenth respondent (Minister of Mines and Mining Development), decided the dispute in its favour.

It alleges that the first to thirteenth respondents' continued occupation of, and mining at, Makaha adversely affects its interests as well as its mining rights. It, therefore, moves the court to evict the respondents from Makaha.

All the respondents oppose the application.

The second to the thirteenth respondents are a syndicate which is known as Tabatana Mining Syndicate, the first respondent in casu. The fourteenth respondent is the Minister of Mines and Mining Development.

(i) They own Makaha through the fifth respondent; and

(ii) They appealed the decision of the Acting Provincial Mining Director to the fourteenth respondent who is yet to decide the appeal.

They allege that the application for their eviction was prematurely filed. They contend that the parties should await the decision of the fourteenth respondent.

They state that there is a dispute of ownership of Makaha in terms of which the applicant and them are both in possession of certificates of registration. They aver that there is a material dispute of fact which cannot be resolved on the papers. The matter, they insist, should be properly ventilated and determined by way of an action. They aver that it requires viva voce evidence for its resolution.

They challenge the applicant's certificate of registration. They say it is not authentic but a fraud.

They deny that there was ever any forfeiture of Makaha which was made against them or against the fifth respondent. The forfeiture, they state, was improperly done and is, therefore, invalid. They insist that their mining activities at Makaha are within the law. They state that their appeal suspends the decision of the Acting Provincial Mining Director. They aver that all the processes are suspended pending the determination of the appeal. They deny having ever despoiled the applicant of Makaha. They move the court to dismiss the application with costs on a higher scale....,.

The applicant has real rights in Makaha. The fifth respondent does also have real rights in the same. The remaining respondents who teamed up with the fifth respondent whose rights the Director recognized in his ruling do, through him, have some rights in Makaha.

Whether or not the respondents, the fifth respondent in particular, suffer(s) forfeiture of Makaha remains a matter for another day. The issue of the alleged forfeiture can only be resolved through viva voce evidence. That is so because the respondents contest the same in a very emphatic manner. They describe the alleged forfeiture as having been of no force or effect. Their reason is that it was irregularly implemented. They challenge the applicant's certificate of registration for Makaha. They state that the certificate is a fraud on the part of the person or official who issued it in the name of the applicant.

There are, in my view, material disputes of fact in the parties' case. The fourteenth respondent states as much. He is seized with the parties' dispute which he will determine after he has received the recommendations of the Disputes Committee which he set up to investigate the parties' competing claims of Makaha.

It goes without saying that neither party has a better claim to Makaha than the other. Their claims are equal in competition one against the other. The court cannot, in the circumstances, grant the application.

The applicant failed to establish its case on a balance of probabilities. Its application is without merit. It is, accordingly, dismissed with costs.

HH204-15 : THUTHANI MOYO vs JOHN BOWMAN and PONDS PHIRI and BERYL WATSON and MARGARET JAMES and ABEL DENHERE and OTHERS
Ruled By: MAWADZE J

While our legal system allows unrepresented litigants to approach the High Court in civil matters, this case brings into focus the need, in some cases which involve intricate issues of law, for such litigants to be legally represented. My spirited attempts to advise the applicant to seek legal representation, even through the Registrar, were spurned by the applicant ...

My spirited attempts to advise the applicant to seek legal representation, even through the Registrar, were spurned by the applicant who insisted that he had the experience, knowledge, and confidence to argue his case.

My misgivings arose after I had, with the patience of the biblical Job, ploughed through the applicant's founding affidavit, answering affidavit, and heads of argument but still was unable to appreciate the applicant's case.

The relief sought by the applicant is couched in the following terms:

“IT IS ORDERED THAT;

1. The Resolutions signed on the 1^st of December 2011 by the 1^st, 2^nd, 3^rd, 4^th, 5^th and 6^th Respondents are null and void and have no effect at all.

2. The Resolution signed on 22^nd April 2012 by the 1^st and 8^th Respondents is null and void and has no effect at all.

3. The Constitution used to sit for the meeting of 2^nd November 2011 and 22 April 2012 is null and void and has no effect at all.

4. The 1^st, 2^nd, 3^rd, 4^th, 5^th, 6^th, 7^th, 8^th and 9^th Respondents pay the costs of the proceedings.”

The application is opposed by all the respondents except the seventh respondent who apparently was not served.

The manner in which the relief sought is couched is so vague that one has to plough through numerous documents filed in order to find out what these Resolutions relate to. To compound the problem, the applicant does not state in what capacities all the nine respondents are being cited.

TOC H Zimbabwe, from the reading of the papers filed, is a non-governmental welfare organization. The applicant, as per his founding affidavit, is a member of TOC H Zimbabwe since 1994 although his membership is currently being disputed by the respondents (respondents hereinafter refer to all but the seventh respondent).

The respondents are members of TOC H Zimbabwe although the positions they hold in that organization are not specified by the applicant.

It is extremely difficult to summarise the facts giving rise to this application. This is so because the founding affidavit does not seek to identify each and every respondent and in what capacity each respondent is joined in this matter. Further, the founding affidavit is vague and embarrassing as it is long, winding, but still not clear in what the applicant's grievances are and what the applicant wants this court to do for him.

Put simply, the cause of action is unclear.

Let me briefly illustrate the point made above by referring to the founding affidavit. The founding affidavit comprises of 8 pages (page 4–11) or 30 paragraphs. Attached to the founding affidavit are Annexures A to V (page 13–55). The answering affidavit covers 10 pages (page 62–72) and further Annexures A to N (page 72–90) are attached. This is clearly improper for the applicant to attach new annexures to the answering affidavit.

In his founding affidavit, the applicant said he was co-opted as a member of TOC H Zimbabwe Executive Committee in July 2010 until he was barred on 2 November 2011 as per the minutes of the meeting held on that date. At this meeting it was resolved that the TOC H Zimbabwe motor vehicle which was registered in the applicant's name, after being purchased in South Africa, should, with immediate effect, be transferred to TOC H Zimbabwe and that the applicant should hand over the said motor vehicle. At the same meeting, it was also resolved that all extension work of TOC H Zimbabwe be suspended with immediate effect and that the applicant and others involved in this outreach and extension voluntary work should be advised accordingly.

As per Annexures C and D, the applicant, on 12 February 2011, attended, as a member, a meeting for TOC H Zimbabwe Management Committee, and, on 24 September 2011, as a member of the National Executive Committee. The applicant then refers to a meeting he said he was not invited on 25 September 2011 by the National Executive Committee but paragraphs 7 and 8 of the founding affidavit are difficult to comprehend just like paragraph 9. The applicant said he took issue with the cancellation of the Management Committee meeting scheduled for 29 October 2011 and that this was the genesis of his problems.

The applicant does not explain the nature of these problems, but, instead, refers to Annexure H in which TOC H Zimbabwe National Chairman, the seventh respondent, Rodreck Phiri, resigned due to personal commitments. On 16 November 2011, the applicant said he received a letter written by the second respondent terminating the applicant's and others' services as extension workers and for the applicant to surrender the motor vehicle registered in his name but belonging to TOC H Zimbabwe.

According to the applicant, this directive violated Article 5E(viii) (see Annexure E page 21 being a copy of TOC H Zimbabwe Constitution). The applicant does not explain how that provision infringes the Constitution or the applicant's rights.

As per Annexures L and M, the applicant protested as regards the directive in the letter dated 16 November 2011. According to the applicant this invited further harassment and psychological abuse. The applicant does not explain who harassed him and in what way. In May 2012 the applicant said he was arraigned before a Harare Magistrate on charges he did not specify but insists they were trumped up charges. Nonetheless, the applicant was convicted and he alleges he has appealed to this court.

The applicant said on 14 July 2012 the second respondent, in HC6417/12, filed an urgent chamber application seeking an order to compel the applicant to surrender the said motor vehicle to TOC H Zimbabwe. The applicant alleges the second respondent used forged documents in support of this application, being annexure A and the National Council Resolution (Annexure N). Apparently this matter was decided by my sister DUBE J against the applicant who was ordered to surrender the motor vehicle to TOC H Zimbabwe.

The applicant said he decided not to appeal against the order granted by DUBE J but to challenge it through this application.

I do not understand how he intends to do that.

As per the founding affidavit, the applicant refers to another TOC H Zimbabwe Constitution, Annexure U…,. It is not clear what issue the applicant raises in relation to this Constitution except to allege that TOC H Zimbabwe is a Private Voluntary Organisation and that it is a juristic person. The applicant further alleges that the first respondent is in contempt of the Constitution as he had breached section 21(i)(a) to (k) of the Private Voluntary Organisations Act [Chapter 17:05]. This provision however deals with the suspension of Executive Committee members by the Minister responsible for administering that Act.

The applicant alleges that the first respondent's term of office expired on 21 November 2011.

In the concluding paragraphs of the founding affidavit the applicant alleges, in a general way, that his rights have been violated (see paragraph 29). It is not clear in what specific manner his rights have been trampled upon. Instead, the applicant said this is the case because the respondents have used forged documents to persecute him and that they are not ascribing to the aims and objects of TOC H Zimbabwe.

As already explained, it is extremely difficult to appreciate the cause of action in this matter. The story narrated in the founding affidavit, while full of sound and fury, clearly signifies nothing which is legally discernable to found a cause of action. It is not therefore surprising that counsel for the respondents has taken a number of points in limine which she believed, if upheld, disposes of this matter.

I now turn to the points in limine raised. The respondents have raised the following points in limine;

(a) That there are material dispute of facts in the application.

(b) The non joinder of TOC H Zimbabwe in these proceedings.

(d) The incompetence of the relief sought in paragraph 2 of the draft order.

I turn to the issues;

Material Dispute of Facts

It is clear that there are indeed several material dispute of facts which cannot be resolved on the papers filed of record.

(i) The dispute relates to the correct Constitution of TOC H Zimbabwe. There are two Constitutions attached to the founding affidavit, Annexure E…, and Annexure U…,. The applicant contends that the Constitution relied upon by the respondents is a forgery and he tenders his own version of the Constitution, being Annexture E.

This position is vehemently disputed by the respondents in the opposing affidavits.

I have no doubt in my mind that the applicant, who attached the two Constitutions to his founding affidavit, was aware at the time of instituting these proceedings that the respondents would challenge the other version of the Constitution. There is therefore a dispute as to which is the applicable version of the Constitution.

(ii) The respondents stated that some of the documents used to support the applicant's case, and are attached to the applicant's founding affidavit, are not authentic documents for TOC H Zimbabwe.

Reference is made to Annexure G…, which relates to minutes of the meeting held by the National Executive Committee on 26 October 2011. The respondents submitted that the minutes are not confirmed or signed by the President of TOC H Zimbabwe. On the other hand, the applicant insists that the document is authentic.

(iii) The applicant has challenged the resolutions allegedly passed by TOC H Zimbabwe alleging that the resolutions were improperly passed and not in accordance with the Constitution of TOC H Zimbabwe.

This is vehemently disputed by the respondents who maintain the resolutions were duly passed in accordance to the applicable Constitution of TOC H Zimbabwe. As an example, the applicant alleges that the National Council Resolution, Annexure R…, is forged. The respondents allege that the resolution was duly passed.

(iv) The membership of the applicant in the National Executive Committee and Management Committee is put into the issue.

Similarly, the allegations of fraud and mismanagement made against the respondents are disputed.

The respondents stated that the applicant would be co-opted to attend the meetings by invitation as a member of TOC H Zimbabwe; see Annexure D…, in which it was stated that the applicant is not an Executive Committee member as provided for by the Constitution and that he had no voting right in the Executive Committee. While the applicant contended that he had no proof of such membership he still insists he is a member of the Executive Committee.

The disputed allegations of fraud and management are not supported by any evidence filed of record. There would be need to lead viva voce evidence in that regard.

The nature of the material dispute of facts is such that I am unable to adopt the approach enunciated in the case of Fibreglass (Pvt) Ltd v Peech 1987 (2) ZLR 388…, where it was said;

“It is, I think, well established that in motion proceedings a court should endevour to resolve the dispute raised in affidavits without hearing of evidence. It must take a robust and common sense approach and not an over fastidious one; always provided that it is convinced that there is no real possibility of any resolution doing an injustice to the other party concerned.”

I am therefore satisfied that there are material dispute of facts in this matter which cannot be resolved on the papers filed of record. In the exercise of my discretion I have two options; which is to either dismiss this application or refer the matter to trial. See Mashingaidze v Mashingaidze 1995 (1) ZLR 219 (H); Masukusa v National Foods Ltd & Anor 1983 (1) ZLR 232…,.

I am unable to refer this matter to trial as the papers filed by the applicant cannot stand as summons and declaration. Consequently, the only available option is to dismiss the application.

HH223-15 : ZIMBABWE SUGAR MILLING INDUSTRY WORKERS UNION (ZSMIWU) vs ALFRED MAKWARIMBA and KENNIAS SHAMUYARIRA and ELIAS MADZIVA and FREEDOM MUDUNGWE and OTHERS
Ruled By: MANGOTA J

The applicant represents workers in the sugar industry. It allegedly carries a membership of 16,000 workers. It is an affiliate of the Zimbabwe Federation of Trade Unions…,.The National Executive Committee is the applicant's governing body. The committee manages the affairs of the applicant. Its elected office bearers comprise:(a) The President;(b) ...

The applicant represents workers in the sugar industry. It allegedly carries a membership of 16,000 workers. It is an affiliate of the Zimbabwe Federation of Trade Unions…,.

The National Executive Committee is the applicant's governing body. The committee manages the affairs of the applicant. Its elected office bearers comprise:

(a) The President;

(b) The Vice-President;

(c) The Secretary-General; and

(d) Three other committee members.

In or about 24 February 2014, the deponent to the applicant's affidavit, one Simbarashe Nyemba, and members of his National Executive Committee, were removed from their positions and replaced by the fourth respondent and his team of committee members.

Mr Nyemba, and members of his committee, made an urgent chamber application to the court. The application was filed under case number HC1603/14. The court granted a provisional order to the applicant. It, in effect, directed that paragraphs 3, 4, 5 and 6 of the letter which the second respondent addressed to the seventh respondent on 24 February 2014 should not be executed until proceedings which pertained to case number HC1603/14 had been completed.

The court mentions, in passing, that the proceedings in question are still pending determination.

The present urgent chamber application was premised on the allegations that, on 14 February 2015, the first and second respondents visited Chiredzi in the company of persons who, it was claimed, were from the office of the fifth respondent. The visitors, the applicant averred, appointed the third and fourth respondents as members of the applicant's Executive Committee. The fourth respondent, it said, was appointed president of the applicant's governing body.

It, accordingly, made every effort to move the court to prohibit the fourth respondent and the latter's committee members from representing the applicant until case number HC1603/14 has been conclusively dealt with.

The applicant attached to its application Annexure D. The annexure is a letter which the fifth respondent (the Minister of Public Service) addressed to the applicant's secretary-general. The letter is erroneously dated 16 January 2014. It should have read 16 January 2015 which the applicant said was the correct date.

In the letter, the fifth respondent prohibited the applicant from deducting union dues from the seventh respondent (Tongaat Hullet Zimbabwe).

The fifth respondent stated that, from reports which had been submitted, she had reasonable cause to believe that the funds of members of the applicant were being abused and mis-appropriated. She said she would appoint an investigator who would look into the affairs of the applicant. She prohibited the applicant's national executive committee from using the funds for any purpose other than what the investigator or she herself would have directed.

The fifth respondent copied her letter to, among other authorities, the seventh respondent.

The applicant appealed to the Labour Court against the decision of the fifth respondent. It did so on 22 January 2015 under case number LC/MS/03/15.

The appeal is pending before the Labour Court.

The first, second, third and fourth respondents opposed the application and so did the seventh respondent. The fifth and sixth respondents did nothing about the application. They remained uncommitted to the matter notwithstanding the fact that they were served with the application.

The Sheriff's returns of service showed that both respondents were served on 19 February 2015. Their attitude to the application, therefore, remained unknown. It was, in the premise, assumed that they would abide by the decision of the court as they did not appear in person or through legal representation.

The first four respondents raised some preliminary issues after which they proceeded to deal with the substance of the application.

The seventh respondent adopted a pattern which, to all intents and purposes, was similar to that of the first, second, third and fourth respondents....,.

The applicant stated that its membership has a total number of sixteen thousand (16,000) workers. It produced no register of its membership to substantiate its claims in the mentioned regard. The court was left in the dark on that matter, so to speak.

Production of the register of its members would have been the earliest of matters for the applicant to have done. That was so as it was one of the functions of the applicant's Secretary General, to keep a register for the members of the applicant. As is stated in section 13(b)(iv) of the applicant's Constitution, the Secretary-General records:

(i) The member's name;

(ii) The member's number; and

(iii) The member's address, occupation, employer's name and date of joining the applicant.

The applicant did not give any reason as to why the register of its membership was not produced.

The first four respondents, on the other hand, remained of the view that the applicant's membership was between eleven and twelve thousand workers. They attached to their opposing papers Annexure D which they said was a register of workers who attended the special general meeting where a vote of no confidence was passed against the National Executive Committee in which Mr Nyamba, who, until 14 February 2015, was President of the applicant, was, together with members of his committee, removed from office and replaced by an interim committee headed by the fourth respondent and his team of office bearers.

Because the applicant's membership was not established, the court could not accept the applicant's claims which were to the effect that it commanded a total membership of sixteen thousand (16,000) workers. The first four respondents' assertions on the matter were that the applicant's membership was between eleven and twelve thousand workers in toto.

The court, therefore, remained in the dark as regards the correct position of this aspect of the case.

There was no doubt that the parties' positions on the issue of numbers which the applicant enjoyed as its total membership placed the application into a material dispute of fact which the court could not resolve on the papers which the parties placed before it. That dispute was compounded by the fact that the workers membership to the applicant was, in terms of its Constitution, not compulsory but voluntary. Section 6 of the applicant's Constitution was relevant in this regard. It, in part, read:

“6.0. MEMBERSHIP

Membership of the union shall be open to non-managerial employees in the sugar milling company. Application for membership shall be made on the official form which shall be lodged with the secretary and be accompanied in each case by the appropriate membership fees as prescribed in section 7 of this Constitution. Application for membership shall be considered by the Executive Committee within one week of receipt.”…,.

It was evident, from the foregoing, that the workers' membership into the applicant is not automatic. It was also not compulsory. A worker who was or is in the Sugar Milling Company acquired membership of the applicant through a process of filing an application with the secretary together with a membership fee with the end result that the applicant's office bearers would consider to accept or reject the application.

The fact that a rival union, which operates under the name Sugar Production and Milling Industry Workers Union of Zimbabwe, was registered on 8 December 2014 did not make matters any better for the applicant's claims. That new union, it was obvious, draws its membership from the same pool of workers from which the applicant drew or draws. Its existence had, and still has, the effect of depleting the applicant's claimed membership.

Such matters, as were stated in the foregoing paragraphs, placed the court into a very invidious position. It had no means of ascertaining the fact of who between the applicant and the third and fourth respondents enjoyed a total majority of the applicant's membership. The court had, on the one hand, Mr Nyemba's unsubstantiated claims and the first four respondents' averments, on the other.

HH213-18 : BULCHIMEX GmbH IMPORT-EXPORT CHEMIKALIEN und PRODUKTE and TECHNOIMPEX SOFIA BULGARIA JSC vs BULCHIMEX GMBH IMPORT EXPORT CHEMIKALIEN und PRODUKTE PL and SARAH HWINGWIRI and R. JOGI
Ruled By: MANGOTA J

The applicants are foreign legal entities. The first is a German company. It is owned by a Bulgarian Corporation. The second is a Bulgarian entity. It is a subsidiary of the first.

Until 22 November 2017 the first applicant was the owner of a certain piece of land which is situated in the district of Salisbury. The piece of land is called Stand Number 295, Northwood Township 2 of Sumbeni. It was held under Deed of Transfer number 5022/2008. It is commonly known as Number 116 Twickenham Road, Mount Pleasant, Harare [“the Mount Pleasant property”].

On 9 December 2013 one Rajendrakumah Jogi [Jogi] purchased the property. He took title in the property on 22 November 2017 following its sale to him. It is now registered under Deed of Transfer number 4766/17 which Deed records the name of the purchaser as the new owner of the same.

The second applicant was, and still is, the owner of a certain piece of land which is situated in the district of Salisbury. It is called Lot 12 of Lot 15 Block C of Avondale. It is held under Deed of Transfer number 1657/89. It is commonly known as Bath Mansions Flats. It is at Number 32, Bath Road, Avondale, Harare [“The Avondale property”].

The abovementioned two properties lie at the centre of the main application, HC12074/16 and the urgent chamber application, HC2012/18.

The applicants filed the main application on 28 November 2016. They successfully moved the court to interdict the first and second respondents from dealing in any way with the two properties and/or from coming within 100 metres of the same. The interim order which the applicants obtained in the mentioned regard is dated 2 December 2016.

On 22 February 2018 l heard the matter which related to the confirmation or discharge of the provisional order of 2 December 2016. Having heard submissions from both parties, I reserved judgment.

Before the ink which related to my hearing of the main application had dried up, the applicants filed the urgent chamber application, HC2012/18. They did so on 5 March 2018. They moved the court to restore to them possession of the Mount Pleasant property and to interdict:

(a) The first (Bulchimex GMBH Import Export Chemikalien und Produkte (Pvt) Ltd), second (Sarah Hwingwiri) and third (Rajendrakumar Jogi) respondents from selling, or, in any way, alienating or encumbering the Mount Pleasant property.

(b) The fourth respondent (Registrar of Deeds) from facilitating or making further transfer of the Mount Pleasant property which is held under Deed of Transfer number 4766/17 in favour of Rajendrakumah Jogi to anyone.

(c) All the respondents from facilitating or transferring title in the Avondale property which is registered under Deed of Transfer number 1637/89 to anyone.

(d) The fifth respondent (the Sheriff of Zimbabwe) from evicting occupants of the Avondale property.

Because title in the Mount Pleasant property had already changed hands from the first applicant to Mr Jogi when the application was filed, I disallowed paragraphs 1, 2 and 3 of the applicants draft order.

I allowed paragraphs 6 and 9 of the draft order with some amendments. I directed that the word Lease which appeared in paragraph 6 should be deleted. I further directed that the phrase or 116 Twickenham Drive, Mount Pleasant, Harare which appeared in paragraph 9 should also be deleted.

I, accordingly, allowed paragraphs 4, 5 and 6 as amended, 7, 8, 9 as amended and paragraph 11 to remain as the interim relief for the applicants.

The interim order was issued with the consent of all the parties.

My reading of the record satisfied me that HC2012/18 was urgent.

The applicants stated that they were not aware that their Mount Pleasant property had been sold and transferred to someone. They said they became aware of that fact on 1 March 2018 when the deponent to their founding affidavit received a call from one Kudzai Kupambana, the caretaker of the property. He submitted that Mr Kupambana informed him that the Messenger of Court was carrying out eviction at the premises. He said he immediately notified the applicants' legal practitioners of the development. These and him, he said, visited the Mount Pleasant property. He averred that the legal practitioners and him later established that it was not the Messenger of Court but the Deputy Sheriff who had carried out the eviction.

The supporting affidavit of Mr Kubambana was on all fours with that of the deponent of the founding affidavit especially on the portion which related to the latter's eviction.

The applicants filed the urgent chamber application a day after their discovery of what had occurred. They most certainly treated the matter with the urgency which it deserved.

The first, second and third respondents opposed the urgent chamber application. They, however, and to their credit, consented to the interim relief which I granted to the applicants in its amended form. They did so in the interests of progress. They agreed with me that the situation had to be arrested. All the parties shared the view which the court had. The view was that the situation of the parties' case did not have to get out of hand whilst judgment in the main application, HC12074/16, was being awaited.

Two characters stand out clearly in both applications. These are;

(1) One Borislav Boynov (“Borislav”); and

(2) One Sarah Hwingwiri (“Sarah”).

Borislav Boynov is the deponent to the founding and the answering affidavits of the applicants. He is so for the main application as well as the urgent chamber application.

Sarah Hwingwiri is the second respondent in both applications. She is the deponent to the affidavits of the first and the second respondents in both applications.

Sarah Hwingwiri and one Ivan Pantchev (“Ivan”), a Bulgarian who is domiciled in Bulgaria, registered the first respondent in terms of the laws of Zimbabwe. They are both its Directors.

Borislav Boynov's averments, in the main application, were that the applicants own the Mount Pleasant and the Avondale properties. He said they also used to own a certain piece of land which is situated in the district of Salisbury called Lot 9 of Lot 9 of Glen Lorne measuring 4,047 square metres [“the Glen Lorne property”]. This, he alleged, was sold by Sarah Hwingwiri and Ivan Pantchev for $150,000 and transferred into the name of the purchaser.

The sale, he stated, was with the authority of the applicants.

He submitted that Sarah Hwingwiri and Ivan Pantchev did not transmit the proceeds of the sale to the applicants. He successfully moved the court to grant to the applicants the provisional order which prohibited the first and the second respondents from dealing, in any way, with the remaining two properties as well as from coming within 100 metres of the same. He, in the final order, prayed that:

(i) The first applicant be declared the owner of the Mount Pleasant property;

(ii) The second applicant be declared the owner of the Avondale property; and

(iii) The first and second respondents be declared to have no ownership rights or interests in either property.

The first and the second respondents opposed the application. The third did not. My assumption is that he chose to abide by the decision of the court.

The two respondents raised a number of preliminary matters in their opposition to HC12074/16.

(a)...,.

(b)...,.

(c)...,.

(d)...,.

(e)...,.

(f) The last was that the application contained material disputes of facts which could not be resolved on the papers....,.

The applicants denied that there were material disputes of facts in the matter. They urged the court to adopt a robust approach and resolve the dispute, if any, on the papers which were before it....,.

Whether or not the application contains material disputes of fact will be determined in the course of this judgment. The probabilities are that it does not. That is so as the court will have to determine who between the applicants and the respondents owns the two properties. A robust approach to the matter, as urged of the court by the applicants, will, no doubt, enable the court to resolve the issue without hearing any oral evidence on that aspect of the case.

HB81-18 : FRANK MUTEZO and OTHERS vs ZIMBABWE SCHOOL EXAMINATIONS COUNCIL and THE MINISTER OF PRIMARY AND SECONDARY EDUCATION
Ruled By: MOYO J

The facts of this matter are that on 12 February 2018, the fourteen applicants received a whatsapp message from the headmistress of Regina Mundi High School where their minor children were enrolled and had sat for their Ordinary Level examinations during November last year. In the message, amongst other things, they were advised that their children had been blacklisted as they had cheated in the examination of November 2017 and that consequently their results had been cancelled.

Aggrieved with that decision they then mounted an application for review on 23 February 2018 under case number 619/18 seeking to have the first respondent's decision of cancelling the results set aside.

The gist of the application for review is that the decision to cancel the results was made without the affected parties having been heard and that this violated section 3 of the Administrative of Justice Act [Chapter 10:28]. The other reason for review being that the decision to cancel the results is contrary to the provisions of section 75 of the Constitution of Zimbabwe.

Section 3 of the Administrative Justice Act [Chapter 10:28] deals with the right to fair administrative justice. Section 75 of the Constitution deals with the rights to education.

The basis of this application is to seek that the other application (the application for review) be heard as a matter of urgency as it affects the minor children's rights to proceed to Advanced Level and that should happen during this school term.

The respondents have raised two points in limine in response; they say that;

(i)...,.

(ii) Secondly, there are material disputes of fact that cannot be resolved on paper.

On the merits, the applicants say their children never cheated during the November 2017 O-Level examinations.

The first respondent says following a report of cheating at the concerned school, investigations were conducted that unearthed cheating by the affected students and they have annexed to the opposing papers their findings in this regard, that is, as to why they arrived at that conclusion, and, consequently, took the action they took....,.

The point in limine relating to material disputes of fact

The first respondent contends that there are material disputes of fact in the matter in that whilst the applicants say their daughters never cheated in the examination, the first respondent has cogent information that it is advancing in support of their decision that the applicant's children cheated. This particular issue cannot be resolved on paper.

I agree with the respondent's counsel on this point, and, whilst this point may not affect the urgency or otherwise of the application, it affects its prospects of success in the sense that if there are material disputes of fact then certainly spearheading the set down of that application will not serve any purpose as it is doomed to fail on that technical point anyway.

HH124-18 : MIKE VELAH and ALBERT NYAMURONDA and JOSEPH PEDZAYI and BRENDA HATINAHAMA vs THE MINISTER OF PRIMARY & SECONDARY EDUCATION and ZIMBABWE SCHOOL EXAMINATIONS COUNCIL
Ruled By: ZHOU J

The four applicants are parents of minor children who wrote Ordinary Level examinations in November 2017. The examinations are managed by the second respondent, a body corporate duly established by and in terms of section 3 of the Zimbabwe School Examinations Council Act [Chapter 25:18].

The results for the November 2017 examinations were released by the second respondent on 23 February 2018. When the applicants and/or the children they represent attended at St David's Bonda Secondary School, which was their examination centre, to collect the results they were informed by the authorities there that their results had been withheld by the second respondent on grounds of alleged cheating.

The precise dates on which the withholding of the results was communicated to the applicants is not clear from their affidavits. Be that as it may, what is evident is that the applicants then instituted the instant urgent chamber application on 2 March 2018.

At the commencement of the hearing, the fourth applicant notified that she was withdrawing from the matter. Three applicants persisted with the application.

The application is opposed by both respondents.

Before hearing submissions on the merits of the application I heard argument on the objections in limine taken by the respondents....,.

(1)...,.

(2)...,.

(3)...,.

(4)...,.

(5) That there are material disputes of fact which cannot be resolved on the papers....,.

The further point taken is that there are material disputes of fact which cannot be resolved on the papers.

The dispute relates to whether there is indeed evidence which establishes that the applicants' children had access to the examination question papers, or parts thereof, prior to the date and time of writing the examination.

The applicants make the allegation that their children did not cheat and never admitted to accessing the examination question in advance of the date of the examination. The respondents, on the other hand, have placed before this court cogent facts, and, in some instances, evidence which point to cheating.

Although the fourth applicant did not give any reason for withdrawing from the application one cannot ignore the possibility that the decision may have been influenced by evidence of her cellphone texts conversation with her daughter. That conversation suggests the she secured the examination questions for the daughter prior to the date of examinations.

The second respondent has also, through its internal procedures, presented findings which, if proved at the trial, would mean that the applicants' children were guilty of the misdemeanour alleged.

These are matters that would need to be tested through a trial.

The nature of examinations, and their bearing on the credibility and integrity of a system of education, are matters of national importance. It is therefore necessary that where the integrity of a country's system of education is exposed to being questioned the authorities responsible for examinations be allowed to act in the interests of protecting that integrity.

In this case, the court would be aiding illegal conduct if it was to ignore the findings made by the second respondent through its investigations. Those findings cannot be rejected via the procedure of a court application.

The court has a discretion as to the future course of proceedings instituted by way of court application where there are material disputes of fact. Further, when the issue of disputes of fact is taken together with the relief sought, as considered above, it is only appropriate that the application be dismissed.

In the result, It is ordered that:

1....,.

2. In relation to the second respondent, the application be and is hereby dismissed with costs.

3. The costs referred to in paragraphs 1 and 2 hereof shall be paid by all the applicants, including the fourth applicant, jointly and severally the one paying the others to be absolved.

HH99-10 : CRAIG ROBINSON vs ROBERT ROOT PROPERTY CONSULTANTS and HAMMER AND TONGUES (PVT) LTD
Ruled By: MAKARAU JP

In March 2009, the applicant approached this court on a certificate of urgency and obtained a provisional order calling upon the respondents to show cause why they should not be ordered to release certain items of household goods and effects whose details were listed in an annexure to the application.

As interim relief, the second respondent was ordered not to sell or dispose of any of the property on the schedule. The second respondent was also restrained from releasing any of the property to anyone other than the applicant.

On 14 January 2010, the matter was set down before me for the confirmation or discharge of the provisional order, the first respondent having filed a notice of opposition and opposing affidavit in the matter....,.

The issue that has exercised my mind in this application is whether the applicant is entitled to the order that he seeks on the facts that he alleges.

In his provisional order, the applicant seeks an order compelling the respondents to release to him certain items of his household goods and effects that are in the possession of the second respondent.

In his founding affidavit, the applicant alleges that he was in occupation of certain property leased by the first respondent. A rent dispute arose between the parties leading to the applicant approaching the Rent Board after the first respondent had locked the applicant out of the leased property. When the first respondent requested the applicant to show, in some tangible way, how he would be able to pay whatever rental was found to be fair in respect of the property, he pointed out that he had valuable movables that could be sold to meet his obligations. The first respondent demanded that the movables be valued and this was done.

Later, the applicant learnt that the first respondent intended to have his property sold.

He approached the second respondent, who was in possession of the property, and advised it not to sell the property as such had been removed without his permission and he had not consented to the sale.

In obtaining an order restraining the second respondent from selling the property, the applicant averred that he was in peaceful and undisturbed possession of the property before he was locked out of the rented property and before the respondents removed his movables from the property.

From the concluding paragraph of his founding affidavit, and from the submissions made orally by counsel for the applicant, it is clear that the applicant approached the court for restoration of his possession under the mandament van spolie.

It is trite that for one to succeed in a spoliation, one must prove that they were in peaceful and undisturbed possession of the property and were illicitly despoiled of such possession.

In my view, the applicant drafted his affidavits so vaguely that I cannot discern at what stage he alleges he was in peaceful and undisturbed possession of the property for the purposes of the application he has brought.

From his own affidavit, it would appear that after being initially locked out, which clearly was an act of spoliation, he was restored in possession of the rented premises after the Rent Board intervened.

After the intervention of the Rent Board, it is not clear how the applicant “lost” or parted with possession of his movables. The affidavit does not say.

In my view, the absence of an averment, in the founding affidavit, to the effect that the applicant was unlawfully made to part with possession is fatal to his application - even in the absence of opposition from the respondents who are now barred.

I am aware that the applicant obtained a provisional order from this court, granting him interim protection pending the issuance of an order restoring possession of the property to him.

It is trite that the judge who granted the provisional order was satisfied that a prima facie case had been made out for the interim protection that the applicant was seeking. It is further trite, that, at this stage, for me to grant the final relief that the applicant prays for, I must be satisfied that he has established his case on a balance of probabilities.

I am not so satisfied.

(i)...,.

(ii) Secondly, the applicant proceeded by way of application to seek to recover his property in the face of a number of disputes of facts.

He was aware of the stance that the respondents were taking in the matter and proceeded notwithstanding.

HH95-10 : TIISO HOLDINGS (PTY) LIMITED vs ZIMBABWE IRON & STEEL COMPANY LIMITED
Ruled By: PATEL J

The plaintiff in this matter has issued summons for payment of the sum of EUR6,640,295=94 together with interest and costs of suit.

The claim arises pursuant to a default judgment of the Regional Court of Frankfurt entered in favour of Kreditanstalt fur Wiederaufbau (KFW) as against the defendant on 25 July 2006.

On 20 May 2008, KFW assigned its rights in the judgment to the plaintiff.

The latter then obtained judgment on the Frankfurt award for an equivalent sum in the High Court of Botswana on 5 June 2009.

The defendant has not satisfied either the Frankfurt or the Botswana judgment.

The plaintiff's claim in this Court is founded on the Frankfurt judgment.

The defendant has filed a Plea in Abatement challenging the enforceability of that judgment on various grounds.

At the hearing of this matter, counsel for the defendant abandoned several of these grounds relating to, inter alia, the impact of the in duplum rule on the interest claim, the non-payment of security for costs by the plaintiff as a peregrine suitor, and the non-enforceability of the Botswana judgment. The last aspect was not pursued in light of the concession by counsel for the plaintiff that its claim was premised solely on the Frankfurt award and not on the Botswana judgment.

Following these concessions, the issues for determination in casu are as follows:

(a)...,.

(b)...,.

(c)...,.

(d)...,.

(e)...,.

(f) Whether or not the Frankfurt judgment is final and conclusive for the purposes of its recognition and enforcement in this country....,.

Finality and Conclusiveness of Frankfurt Judgment

The defendant avers that the judgment that the plaintiff seeks to enforce is ex facie not one that is final and conclusive, and, as such, it cannot be enforced in casu.

In this respect, it is specifically pleaded by the plaintiff, in paragraph 4 of its Declaration, that the Frankfurt judgment “is final in its terms and remains valid and effective.” Consequently, it is submitted, by counsel for the plaintiff, that the defendant cannot challenge the validity and finality of the judgment by way of special plea and can only raise that issue on the merits.

It is further argued, by counsel for the plaintiff, that the finality or otherwise of the judgment under German law is a matter for the defendant to establish. This contention is disputed by counsel for the defendant who submits that the burden in this regard falls squarely on the plaintiff.

The requirement of finality and the burden of proof in that regard are lucidly adumbrated by JOUBERT (ed.): The Law of South Africa (First Reissue, 1993) Vol. 2…,:

“A foreign judgment will not be enforced unless it is a final judgment and has the effect of res judicata according to the law of the forum that pronounced the judgment. The fact that it is subject to appeal does not affect its finality for the purposes of recognition, but, if an appeal is actually pending, the South African court will probably exercise its discretion not to recognise the judgment. Finality must be alleged and proved by the party seeking to enforce the judgment.”

According to FORSYTH: Private International Law (4th ed.)…,:

“A provisional judgment of an internationally competent foreign court will not be enforced or recognised.

After all, it would be undesirable if the foreign court's judgment were enforced, and, thereafter, the foreign judgment was set aside or altered by the court which made it in the first place. Consequently, any foreign judgment must be final and conclusive before it will be recognised or enforced.

Our courts have largely accepted the English principles in this regard; thus, what is required is that the judgment was un-alterable by the court which pronounced it. But it need not be absolutely unalterable. Indeed, the fact that a particular judgment is appealable or has been appealed against in the legal system from which it comes does not affect the finality of the judgment. Although the original judgment may be upset on appeal it is not then altered by the court which made it. It appears, further, however, that where the rendering court has suspended its judgment pending an appeal, such a judgment will not be enforced locally, and, moreover, where an appeal is pending although the effect of the judgment has not been suspended the court has a discretion not to enforce the judgment…,.

The onus of establishing that a foreign judgment is final rests, naturally, on the party seeking to enforce it; but, once this is shown the 'defendant must place before the Court the facts relating to the impending appeal, and such other relevant facts as may persuade the Court to exercise its discretion in granting a stay of proceedings.' [per Jones v Krog 1995 (1) SA 677 (A) at 692].”

With reference to default judgments, the learned author opines as follows…,:

“The position in regard to default judgments, which may or may not be rescinded by the court which rendered them, is less clear.

Under German law, for example, a defendant against whom a default judgment has been given has the privilege of Einspruch available (if exercised within two weeks of the judgment being served on him) in terms of which the case against him is automatically re-opened without the defendant needing to excuse the default. Such a judgment is certainly not final while the defendant can exercise this privilege; but, thereafter, it must be considered final.

Other legal systems, however, do not build time limits into their rules.

In our own law, for example, it appears that, notwithstanding certain cases to the contrary, a High Court judgment can be rescinded at any time on grounds that would normally entitle defendant to restitutio in integrum or 'some other just cause'. Such judgments are, in theory, not final for they may still be altered by the court which made them.

…, there is a strong case for creating an exception to the 'final and conclusive' rule in the case of default judgments. If this is not done, default judgments, even when granted by an internationally competent court, will often be worthless outside the territory of that court. Moreover, in the absence of a time limit after which the default judgment cannot be set aside by the court which pronounced it, only an application by the defendant to have the judgment set aside can, when dismissed, transmute the judgment into an internationally enforceable one…,.

The courts, in several jurisdictions, have been creating such an exception (subject to safeguards) and the local courts should do so too.”

As regards proof of the finality of a foreign judgment, VAN WINSEN, CILLIERS & LOOTS: The Civil Practice of the Supreme Court of South Africa (4th ed. 1997)…, enunciate the position concisely:

“The foreign judgment must, however, be a final and conclusive one, and the finality and conclusiveness of the judgment should appear ex facie the record. It should be alleged, in the summons, that the judgment is a final one, and the law and facts which make it final should be stated if, on the face of it, the judgment appears to be provisional.”

With reference to the requisite formalities, the learned authors continue, at pp.1000-1001:

“It is essential that all the papers should be in order before a foreign judgment will be enforced. The plaintiff must therefore have, before the court, a properly authenticated copy of the judgment upon which provisional sentence is sought, and, if it does not appear from that, that the judgment is a final one, the plaintiff should annex a certificate from the competent authority in the foreign tribunal to show that the judgment is or has become final. If the judgment is in a foreign language, a due and proper translation of it must be annexed to the summons. The documents must show that the translation was made either by a sworn translator of the court or by a person otherwise qualified to translate the judgment.”

In the instant matter, the plaintiff has annexed to its Declaration certified copies of the original judgment and what purports to be a certified translation of that judgment. However, it is not clear that the copy of the original judgment has been properly authenticated. Moreover, there is no indication on the papers that that the translation was made by a sworn translator of the Frankfurt court or by a person otherwise qualified to translate the judgment.

Be that as it may, these are technical issues that may well be addressed and rectified should the matter proceed to trial.

What is more significant, at the present stage of the proceedings, is the content of the record as it stands and what appears on the face of the Frankfurt judgment itself.

It is not in dispute that the judgment was granted by default and that the defendant has neither applied for its rescission nor appealed against it. In that regard, nothing has been placed before this Court as to whether or not the period for appealing against the judgment or for seeking its rescission has expired: FORSYTH: Private International Law (4th ed.)…, and, without such clarification, I am not at liberty to assume the correct position under German law at the present time.

SC54-06 : VIGOUR FUYANA vs NTOMBAZA MOYO
Ruled By: CHIDYAUSIKU CJ

This is a Chamber application for the condonation of the late noting of an appeal. Although the applicant does not specifically aver this, I shall assume that the application is made in terms of Rule 31 of the Supreme Court Rules (“the Rules”).

On 25 July 2005, SANDURA JA, sitting with MALABA JA and NDOU AJA, issued the following order:

“WHEREUPON, after reading documents filed of record and hearing counsel, IT IS ORDERED THAT:

The matter be struck off the roll with costs.”

The record reveals that both parties were present, and the record of SANDURA JA, who presided over the matter, indicates that the matter was struck off the roll because the Notice of Appeal was filed out of time and no application for condonation had been made.

Because of the multiplicity of cases involving the same parties, it is important to understand that the Court was seized with appeal case no. SC236/2000, which was an appeal against judgment no. HB44/2000.

Where an appeal is noted out of time, before the matter can be heard by this Court an application for condonation has to be made, and such condonation granted, before the appeal can be entertained.

A matter that is set down for hearing without condonation being first granted will be struck off the roll, as happened in this case.

On 14 and 18 July 2000 the applicant filed a Chamber application for directions before KAMOCHA J. He handed down judgment dismissing the application on 20 July 2000. The judgment is judgment number HB44/2000, HB44-00.

Over a year after the handing down of the judgment, on 21 August 2001, the applicant filed a Notice of Appeal against the judgment of KAMOCHA J. The headnote of that Notice of Appeal reads as follows:

“Take notice that the applicant hereby appeals against the judgment of the High Court No. HB44/2000, in terms of which the Honourable Judge dismissed the applicant's application for discharge of the provisional order in case number HC5207/99 with costs on the grounds and reasons detailed below.”

Apart from the fact that the above Notice of Appeal does not comply with the Rules, in particular Rule 29(a) and (c), in that it does not give the date when the judgment was delivered nor state whether the appeal is against the whole or part of the judgment, and is therefore invalid, it was filed way out of time.

The applicant was appealing against the judgment of KAMOCHA J (No. HB44/2000) which had been handed down on 20 July 2000 and not any of the other judgments involving the same parties - of which there are several. Thus, the Court was seized with an appeal against judgment No. HB44/2000 and no other matter.

The applicant, in his submissions to the Court, alleges that he filed a Notice of Appeal against this judgment, No. HB44/2000, on 15 August 2000 and that the above Notice of Appeal, of 21 August 2001, was an amendment to the Notice of Appeal filed on 15 August 2000.

The alleged Notice of Appeal, of 15 August 2000, is not on the record.

The Notice of Appeal of 21 August 2001, cited above, is not an amendment but a Notice of Appeal on its own.

However, even if I were to accept that the applicant did file a Notice of Appeal on 15 August 2000, that Notice of Appeal would have been out of time. Judgment HB44/2000 was handed down on 20 July 2000, and, according to my calculations, the dies induciae for noting an appeal expired on 10 August 2000.

Thus, the Notice of Appeal filed on 15 August 2000 was outside the fifteen days prescribed by the Rules of the Supreme Court.

Thus, whichever of the two dates one accepts as the date for the filing of the Notice of Appeal makes no difference. Both dates were outside the dies induciae.

Consequently, the striking off of the matter from the roll admits no doubt.

The applicant contends that the matter should not have been struck off the roll and impugns the integrity of the Court for striking the matter off the roll....,.

Ten months after the appeal was struck off the roll, on 17 May 2006, the applicant filed the present application for condonation of the late noting of an appeal.

The Rules of this Court provide that condonation for the late noting of an appeal can be granted upon the establishment of a good cause.

It is well settled that the essential elements of a good cause are:

(a) A reasonable explanation for the failure to file the Notice of Appeal within the prescribed period;

(b) Some prospect of success on the merits; and

(c) The bona fides of the application....,.

PROSPECTS OF SUCCESS ON THE MERITS

As I have already stated, the appeal that was before the Court, and that was struck off the roll, was the appeal against judgment No. HB44/2000. In that judgment, KAMOCHA J dismissed a Chamber application for directions by the applicant.

Judgment No. HB44/2000 is very brief and to the point.

The judgment very ably sets out the facts of this case and the reasoning behind the learned Judge's conclusion. I can do no better than refer to it extensively. It reads, in part, as follows:

“For convenience, the parties in this matter will be referred to as Fuyana and Ntombaza.

On 14 October 1998, Ntombaza obtained a provisional order whose terms, inter alia, barred Fuyana from taking transfer of Stand Number 11747 Nkulumane from one William Ndlovu who had allegedly sold the same property to Ntombaza using Fuyana as his agent. Ntombaza was also granted rights to re-occupy the house as she had been in occupation before the said house had been damaged by one Jericho Maphosa.

Fuyana filed his notice of opposition but did not anticipate the return date.

Exactly a year later, on 14 October 1999, Ntombaza made an ex parte application seeking for (sic) an order converting the papers in the first application to pleadings and the matter (to be) referred to trial. The parties were allowed to file further pleadings within fourteen days of the order if they so desired.

This application to refer the matter to trial was served on the legal practitioners of Fuyana on 8 October 1999.

There seemed to be no opposition from Fuyana's legal practitioners and the application was granted six days after it had been served.

To illustrate the confusion that reigned in Fuyana's camp, a belated attempt to oppose the application was made by Fuyana himself - not through his lawyers.

Ntombaza asserted that Fuyana's legal practitioners had agreed that the matter be referred to trial.

I am inclined to agree with her because if what she asserted was not true Fuyana's legal practitioners would have filed an affidavit denying that they had agreed to the matter being referred to trial with the terms of the provisional order standing.

When the court granted the application it must have been satisfied that the matter was not capable of being resolved on the papers filed of record. It then issued an order which has not been rescinded. The matter has been settled and yet Fuyana still calls upon the court to interfere.

The court had concluded that a robust approach could not be adopted in this particular case to resolve the matter on the papers in the light of the numerous disputes of fact therein. But, Fuyana still lodged this application requesting the court to discharge the provisional order in question. He also wanted Ntombaza, and all persons claiming through her, to be ordered to vacate Stand 11747 Nkulumane within forty-eight hours of service on them of the order, failing which the Deputy Sheriff be ordered to evict them and their possessions.

Fuyana is clearly abusing court process and this court should express its displeasure by ordering him to pay punitive costs.

In the result, the application is dismissed with costs on an attorney/client scale.”

It is difficult to see on what possible basis a Court of Appeal can interfere with the above judgment more so having regard to the grounds of appeal contained in the Notice of Appeal.

The reasoning and the conclusion of the learned Judge, in my view, are flawless and there is no prospect of an Appeal Court differing from the learned Judge. The Notice of Appeal filed by the applicant is no more than a series of senseless assertions that the learned Judge misdirected himself on this fact or on that point of law. The Notice of Appeal raises nothing worth serious comment or consideration.

I would also add that KAMOCHA J was dealing with an application for directions by the applicant.

The heading of the application specifically indicates that the application before the learned Judge was one for directions. An application for directions, as the word implies, is an application seeking directions on how to proceed in the main proceedings, usually the trial. Order 23 and Rule 152 clearly set out the purpose and content of an application for directions.

The application before KAMOCHA J, although headed application for directions, sought to canvass issues between the same persons referred to trial by another judge. The draft order attached to the application for directions sought substantive and not procedural relief.

In my view, an application for directions that seeks, in its draft order, the eviction of the respondent from the premises is totally misconceived and should have been dismissed on that basis alone without much ado.

The merits of the case involving the Agreement of Sale which the applicant is harping on ad nauseum could only be resolved properly at a trial. The judge in the previous proceedings was quite correct in referring the issues for trial. This was done with the consent of the applicant's legal practitioner and therefore with the consent of the appellant. The learned Judge, in my view, was correct in ordering the matter to go to trial.

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

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

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

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

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

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

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

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

The appellants were among the persons listed under paragraph 10.

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

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

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

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

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

“IT IS ORDERED THAT:

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

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

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

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

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

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

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

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

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

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

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

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

The court went on to decide the issues before it and found against the appellants on all three issues....,.

I turn to the final issue, which is whether the 4,000 shares in Paradise Park Motel (Pvt) Ltd form part of the deceased estate. The learned Judge dealt with the matter thus:

“The applicants referred to affidavits by the first respondent in which she stated that the shares belonged to the estate. They also attached the First Interim Liquidation and Distribution Account laid for inspection on 4 December 1992 and the subsequent First and Final Liquidation and Distribution Account of 1 November 1996 in which the shares are reflected as being assets belonging to the estate as proof that they are estate property.

In paragraph 13 of the Founding Affidavit, the applicants aver that the shares belong to the Estate.

In response, in her opposing affidavit, the first respondent averred that those shares in Paradise Park Motel (Pvt) Ltd had not been paid for at the time the testator died and that he never owned them. She then goes on to state that they never became part of the estate.

Apparently, the sellers of the shares invited interested beneficiaries to participate in Paradise Park Motel (Pvt) Ltd. None was interested save the first respondent who negotiated transfer to herself and who took transfer.

In their answering affidavit, the applicants insisted that the shares form part of the estate - no doubt on the basis of the earlier statements on oath to this effect by the first respondent.

The applicants did not dispute the averment that the letter of 23 April 2002, by Messrs Gill, Godlonton & Gerrans, was written in response to the one by their then erstwhile legal practitioners, Messrs Musunga & Associates, over the transfer of an immovable property associated with Paradise Park Motel (Pvt) Ltd. This letter, on page 74 of the record, indicated that the agreement referred to was entered into between Auto Export/Import (Pvt) Ltd and Auto Import/Export (Pvt) Ltd as purchaser and that transfer could only be effected to Paradise Park Motel (Pvt) Ltd and not the estate.

The applicants did not lay facts before this court on the status of Paradise Park Motel (Pvt) Ltd other than averments of the first respondent's sworn affidavit to the effect that that she would become co-director with the testamentary executor in this company which was part of her late husband's estate.

The letter from Gill, Godlonton & Gerrans seems to suggest that post-payments on the purchase price were paid by the first respondent.

There would be need to lead evidence on the true circumstances surrounding the shares in question.

It may very well be that the shares belong to the estate notwithstanding that in terms of section 104(1) of the Companies Act [Cap 24:03] the holder of a certificate duly signed and with the seal of the company is presumed to be the owner of the shares on a prima facie basis.

This, however, is an area where further evidence will be needed.

If so advised, it seems to me that this is an issue to be pursued by the second respondent with the Motel and the first respondent.

When the applicants brought the application, it must have been in their contemplation from the contents of the letter from Gill, Godlonton & Gerrans that a dispute of fact would arise on the question of shares. They did not cite the company. These factors are fatal to the present application. I would thus dismiss the request to hold that the 4,000 shares belong to the estate in the absence of further evidence.”

It appears to me that the dispute as to the ownership of the shares is bona fide and not merely illusory. In such a case, the onus is on the appellants to satisfy the court that the matter could be resolved on the affidavits without the risk of injustice to the other party: see Zimbabwe Bonded Fibreglass (Pvt) Ltd v Peech 1987 (2) ZLR 338 (S)…,.

This they failed to do.

I cannot fault the learned Judge for finding himself unable to resolve the dispute on the papers without hearing evidence. In choosing to proceed by way of court application the appellants, aware of the dispute of fact, took the risk of failing to discharge the onus on them to convince the court that the matter could be determined without calling evidence.

In the premises, I would uphold the decision of the learned Judge on this issue as well.

View Appeal
HH113-06 : JOSHUA KADENGU and LAMECK KADENGU and ROSA KADENGU vs OLGA KADENGU (In her personal capacity and as guardian of her two minor children) and RICHARD CHIMBARU and MASTER OF THE HIGH COURT
Ruled By: KUDYA J

On 24 March 2003, three of the beneficiaries of the estate of the late Job Bruno Kadengu filed this application seeking the variation of certain clauses of the Last Will and Testament of the testator.

The application was served on the respondents on 2nd April 2003, 17 April 2003, and 16 March 2005 respectively.

The first respondent opposed the application on 18 August 2003 while the second respondent did so on 1st September 2003.

The testator died testate on 25 March 1990. He executed his 9-paged Will on 20 February 1990. It contains 20 clauses.

One Gregory Slater of Gollop and Blank legal practitioners of Harare was appointed the executor testamentary and was issued with Letters of Administration by the Master on 14 June 1990 in line with clause 3 of the Will.

Gregory Slater attempted to administer the estate DR No.665/90, but, by 30 September 1998 he had not finished doing so. He fled the country under allegations of misappropriation of funds.

Messrs Gollop and Blank proceeded to renounce their appointment as executors of and trustees to the estate on 5 September 1997.

The Master then appointed the second respondent as Executor Dative on 2nd July 1999.

The new executor failed to remedy the problems that Gregory Slater left unresolved. By 28 September 2000 the first and second applicants, together with Martin Kadengu, another beneficiary, wrote to the Master complaining of the inaction of the second respondent and his resultant failure in winding up the estate in accordance with the wishes of the testator.

The desired result was not achieved.

The applicants instituted the present application in the belief that:-

“This estate can no longer be wound up in terms of the Will as some of the clauses have become irrelevant with the passage of time whilst others have been overtaken by events.”

They referred to Clause 9 which dealt with the formation of a Trust whose trustee was to be senior partner in the law firm of Messrs Gollop & Blank which law firm had renounced their appointment as trustees and executors even before the Trust had been formed.

They pointed out that the beneficiaries had not, and could not, agree on a suitable substitute.

In any event, to them, the Trust would not achieve its intended purpose as some of the beneficiaries could not be located while others had left Zimbabwe.

They sought the dispensation of the formation of the Trust and the liquidation of the estate in a way consistent with the overall intention of the testator that a commodious enough house be purchased for the first respondent and the residue be shared equally to all the deceased's children.

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

They therefore prayed for the disposal of the 4,000 shares in Paradise Park Motel (Pvt) Ltd by private treaty, and that Clause 6 of the Will be implemented for “a large enough and commodious enough house be purchased for first respondent in the Northern suburbs of Harare” from the proceeds and that the residue be shared equally amongst the beneficiaries.

They further prayed for the registration of Alloa Farm, in the names of all the beneficiaries, as a family home which would not be sold and that costs be borne by the Estate in the event of the first and second respondents did not oppose the application.

On 23rd July 2003, a default judgment was entered by this court. It was ordered that:-

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

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

3. “A large enough and commodious enough” house shall be purchased for the first respondent and her minor children from the proceeds of the sale of the Paradise Park Motel (Pvt) Ltd. The Master of the High Court (3rd respondent) shall determine whether or not the house which the estate shall be purchasing for the first respondent and her children is large enough and commodious enough.

4. After purchasing the house described above for the first respondent and her children, the residue shall be equally distributed among the surviving beneficiaries. The shares of beneficiaries who are outside the country or who are not part of these proceedings shall be deposited with the Master of the High Court.

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

6. The costs of this application shall be borne by the estate.

Both parties were agreed that this order was rescinded by consent.

The first respondent, in her opposition, averred that the Will was valid and effectual and that the second respondent be afforded the opportunity to administer it and give effect to the deceased's wishes. She averred that improper conduct by Gregory Slater, or delays and inaction by the second respondent, were not recognized grounds for setting aside the Will.

She further averred that the shares in Paradise Park Motel did not belong to the estate as the deceased had not paid for them at the time of his demise. An open invitation was extended to those beneficiaries willing to participate in the purchase of these shares to do so but only the first defendant responded positively.

She produced a letter written to the applicant's then legal practitioners, of 23 April 2002, which indicated that a dispute existed as to the ownership of the shares.

Further, she averred that Alloa Farm be dealt with in terms of the Will.

The second respondent, on the other hand, in his opposition, noted that the estate was illiquid and this hampered his ability to discharge his mandate. He believed that the issue of the ownership of the 4,000 shares be determined first before the estate could be wound up.

Three issues were argued before me. These are:-

1....,.

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

The last issue for determination revolves on the ownership of the 4,000 shares in Paradise Park Motel (Pvt) Ltd; that is, whether these shares are part of the deceased's estate.

The applicants referred to affidavits by the first respondent in which she stated that the shares belonged to the Estate.

They also attached the First Interim Liquidation and Distribution Account laid for inspection on 4 December 1992 and the subsequent First and Final Liquidation and Distribution Account of 1st November 1996 in which the shares are reflected as being assets belonging to the estate as proof that they are estate property.

In paragraph 13 of the Founding Affidavit, the applicants aver that the shares belong to the Estate.

In response, in her opposing affidavit, the first respondent averred that those shares in Paradise Park Motel (Pvt) Ltd had not been paid for at the time the testator died and that he never owned them. She then goes on to state that they never became part of the estate.

Apparently, the sellers of the shares invited interested beneficiaries to participate in Paradise Park Motel (Pvt) Ltd. None was interested save the first respondent who negotiated transfer to herself and who took transfer.

In their answering affidavit, the applicants insisted that the shares form part of the Estate - no doubt on the basis of the earlier statements on oath to this effect by the first respondent.

The applicants did not dispute the averment that the letter of 23 April 2002 by Messrs Gill, Godlonton and Gerrans was written in response to the one by their then erstwhile legal practitioners Messrs Musunga and Associates over the transfer of an immovable property associated with Paradise Park Motel (Pvt) Ltd.

This letter, on page 74 of the record, indicated that the agreement referred to was entered into between Auto Export/Import (Pvt) Ltd and Auto Import/Export (Pvt) Ltd as purchaser and that transfer could only be effected to Paradise Park Motel (Pvt) Ltd and not the Estate.

The applicants did not lay facts before this court on the status of Paradise Park Motel (Pvt) Ltd other than averments of the first respondent's sworn affidavit to the effect that that she would become co-director with the testamentary executor in this company which was part of her late husband's estate.

The letter from Gill, Godlonton and Gerrans seems to suggest that post payments of the purchase price were paid by the first respondent.

There would be need to lead evidence on the true circumstances surrounding the shares in question.

It may very well be that the shares belong to the estate notwithstanding that in terms of section 104(1) of the Companies Act [Chapter 24:03] the holder of a certificate duly signed and with the seal of the company is presumed to be the owner of the shares on a prima facie basis.

This, however, is an area where further evidence will be needed.

If so advised, it seems to me that this is an issue to be pursued by the second respondent with the Motel and the first respondent.

When the applicants brought the application it must have been in their contemplation, from the contents of the letter from Gill, Godlonton and Gerrans, that a dispute of fact would arise on the question of shares.

They did not cite the company.

These factors are fatal to the present application.

I would thus dismiss the request to hold that the 4,000 shares belong to the estate in the absence of further evidence.

HB189-18 : CLAUDIUS MANAMELA and BRIGHTON NANGA and SIBONGILE MANAMELA vs ROSEWELL ZULU and APOSTOLIC FAITH MISSION OF AFRICA INTL and CLEMENT NYATHI and APOSTOLIC FAITH MISSION OF AFRICA
Ruled By: MABHIKWA J

On 30 January 2018, the applicants caused to issue legal proceedings, an application, out of this Honourable Court –

“In the High Court of Zimbabwe, held in Bulawayo. The applicant sought an order that it be declared that:

(1) That the President of the Apostolic Faith Mission of Africa International is Reverend Zulu.

(2) That the President of the Apostolic Faith Mission of Africa is Reverend Clement Nyathi.”

On the day of the hearing, on 10 July 2018, the first applicant quickly made what he termed an application for the matter to be removed from the roll.

That application, which must have taken everyone by surprise, was vigorously opposed by the first, second and fourth respondents.

The court may mention, at this stage, that, for all intents and purposes, it became clear, as the matter progressed, that this was an application (i.e. the main application and the “mini” application for removal from) were being orchestrated by the first applicant.

The second applicant, despite being present in court, and allegedly appearing in an individual capacity, said virtually nothing apart from bending over for a second to say he was associating himself with the first applicant's submissions - and this only when asked by the court.

The third applicant was not even present, although, upon inquiry by the court, the three (3) applicants were said, by the first applicant, to be appearing purely in their individual capacity.

The first applicant then told the court that for some reason, the third applicant had failed to attend court.

It was however clear that the first applicant, as he went on over-drive in submissions, was really speaking on behalf of all three (3) applicants - and moreso supposedly on behalf of a “church”.

This court had to discover later on…, that the third applicant is his wife, as shown by various other matters brought before the courts.

As the first applicant insisted, the court decided not to shut him out, as an unrepresented litigant, but to give him a long ear so to speak.

The court still asked him, however, to be clear on what application exactly he was making; in terms of what legal basis he was making it; and the reasons why he was making it.

The first applicant then said that this matter was heard before Mr Justice BERE who clearly recused and also clearly stated that no Judge from the Bulawayo High Court would hear the matter. He said that Justice BERE thus and then recused himself on his behalf and on behalf of all Bulawayo High Court Judges.

He went on to say both parties were therefore of the view that the matter would be transferred elsewhere and were shocked to be told that they were appearing before me.

He went on to say both parties would still press that no Bulawayo High Court Judge should hear the matter hence the application for its removal from the roll.

The court later learnt, from a copy of an order produced by counsel for the first, second and fourth respondents, and after reading a 'swarm' of other matters by the same litigants, that;

(i) Firstly, my brother Mr Justice BERE…, did not recuse himself from, this matter.

(ii) Secondly, and in any case, he did not and could not have legally recused himself on behalf of all other Bulawayo Judges. He clearly recused himself on his own behalf only.

(iii) Thirdly, both parties, the first applicant seemed to mean that the applicants and the respondents were all anticipating that the matter would be transferred elsewhere or would still pursue for that position. Clearly, that was not the case, he must himself have been taken by surprise, not only the respondents but also the second applicant. The third applicant was not in attendance anyway.

When the court sought to confirm whether indeed a transfer of the matter was the expectation and wish of both parties, counsel for the first, second, and fourth respondents emphatically disagreed and submitted that the court is being misled.

Counsel for the first, second, and fourth respondents also shed light on the plethora of cases, mostly applications brought before the courts by the three (3) applicants and/or their group. He further submitted that the applicants merely make a flurry of accusations, unfoundedly, with the sole purpose of diverting the court from its core business and mandate to properly deal with issues before it.

Ultimately, the first applicant in fact then and again went overdrive in his accusations, adding to the list counsel for the first, second, and fourth respondents himself and the Registrar's officer.

He even accused all Bulawayo Judges of “discussing” these matters before going into court.

He could not back down - even after being reminded that the Judge in this hearing had just come from Harare.

Unclear and unheralded as it sounded, the first applicant was directed to file his clear and written application before 18 July 2018 and serve it on the defendants' counsel.

He did not by close of business on 17 July 2018. The application/request had no merit, and, in any case, was vigorously opposed.

It is dismissed.

Coming to the main application, the court had sought to look at all the other matters involving the parties that kept on coming up in this application to have a better understanding of what was going on.

This was moreso because, from the reading of the papers, one was left wondering why such a matter was brought to court by way of an application in the first place. In fact, it had been initially brought as an urgent chamber application.

I must say that the respondents at…, point 18.4 of their opposing affidavit also make the same point; that the application procedure should not be used in matters that are as contentious as this one....,.

In addition to the court's reservations, as well as point 18.4 of the respondents' opposing affidavit, my brother, KAMOCHA J…, stated, on 5 February 2017, in case number HC302/17, that:

“This matter appears to have apparent and numerous disputes of fact about the ownership of the church and those can only be settled through a fully fledged trial.”

He dismissed the application.

HH49-09 : DYNAMOS FOOTBALL CLUB (PRIVATE) LIMITED and DYNAMOS FOOTBALL CLUB vs RICHARD CHIMINYA and OTHERS
Ruled By: CHATUKUTA J

This is an opposed application in which the applicant sought the following relief, that:

“1. The affairs of the Second Applicant shall be run by the Board of Directors of the First Applicant.

2. The Ninth Respondent (the Premier Soccer League) shall forthwith recognize any person appointed by the First Applicant and the two representative (sic) of the Second Applicant.

3. The First (Richard Chiminya), Second (Sunday Chidzambwa), Third (Charles Gwatidzo), Fourth (Jairos Banda), Fifth (George Shaya), Sixth (Simon Sachidi), Seventh (Brian Kashangura) and Eighth (Eric Mvududu) Respondents shall cease to run the affairs of Dynamos otherwise than through the structures set by the First Applicant.

4. First to Eighth Respondent (sic) shall pay the costs of this application.”

The second applicant is a football club (herein referred to as the Club). It is an un-incorporated voluntary organization. It was established in 1963 under the Constitution of the Dynamos Football Club of Salisbury Rhodesia (the Constitution). A Board of Trustees was established in terms of clause 5 of the Constitution. The Board of Trustees was constituted of the founder members and former players who joined the Club within the first year of its existence.

The Board of Trustees was mandated to be the policy organ of the Club (Clause 5.1.3). It was further empowered to appoint the executive committee, managers, head coach, and other committees of the club. The executive committee was mandated to administer and manage the affairs of the Club.

Clause 16 of the Constitution provided for the registration of a company, Dynamos Football Club (Pvt) Ltd (the Company). Upon registration of the Company, the Board of Trustees was to constitute the Board of Directors of the Company.

The first applicant is the company that was formed pursuant to clause 16 of the Constitution.

The applicants averred that the first respondent, in connivance with the second to the eighth respondents, formed an association which they termed the “Board of Trustees”. They proceeded to appoint an executive committee which is now illegally running the affairs of the Company.

It was contended that the Board of Trustees and the executive committee are illegally running the affairs of the club as it has usurped the powers of the Board of Directors of the Company.

The application was opposed by the first to the eighth respondents whom I shall refer to as “the respondents”.

The respondents raised two points in limine:

(i) The first point is that Morris Longstaff Sifelani (Sifelani), who deposed to the founding affidavit, did not have the authority to represent both applicants. It was contended that Sifelani purported to act for two separate entities and was required to satisfy the court, in the founding affidavit, that he had the authority to represent the applicants.

The applicants filed minutes of a meeting of Board of Directors of the company, held on 22 May 2007, which purported to authorise Morris Longstaff Sifelani to institute the proceedings in the Answering Affidavit.

I say “purported” because the legality of the Board of Directors is challenged by the respondents.

The respondents contended that the proof of authority only arose in the Answering Affidavit instead of the Founding Affidavit. This amounted to introducing new evidence. The applicants should therefore have applied for leave of the court to introduce the new evidence. It was contended that an application must stand or fall by its founding affidavit.

The applicants contended that the minutes were adequate to cure the irregularity raised by the respondents. It was further contended that section 12 of the Companies Act [Chapter 24:03] raises a presumption that the acts of the company are regular. Outsiders should therefore not inquire if the rules of the company have been complied with.

(ii) The second point in limine is that there is a material dispute of fact that cannot be resolved on the papers.

It was contended that Morris Longstaff Sifelani does not have the authority to represent the applicants. It was further contended that Sifelani was not a Director of the first applicant. He was not a member of the Board of Trustees of the second applicant at the time the first applicant was incorporated. He therefore could not have been a director of the first applicant.

It was further contended that the first respondent has disputed Morris Longstaff Sifelani's authority and membership of the second applicant in other cases. The applicants therefore ought to have known that a material dispute of fact would arise and should therefore have not proceeded by way of motion.

The applicants contended that the court should adopt a robust approach and resolve the dispute on the papers.

It was contended that the production of Form CR14, on the appointment of directors, was adequate proof that Morris Longstaff Sifelani is a Director of the company. It was submitted that the Form was prima facie proof of Sifelani's directorship.

It is my view that the two issues are entwined and the first issue is subsumed by the second issue; whether or not there is a material dispute of fact.

I shall therefore deal with first issue in that context.

It is clear that the court has a discretion as to whether or not to dismiss an application where there are material disputes of fact which cannot be resolved on the papers. In exercising its discretion, the Court must take into account when the applicants became aware that there were disputes of fact in the matter: see Masukusa v National Foods Ltd & Anor 1983 (1) ZLR 232.

I will deal first with the applicant's contention that the decision that Morris Longstaff Sifelani represents the first applicant in these proceedings is covered by section 12 of the Companies Act.

It appears to me that the presumption of regularity of the acts of a company does not apply in this case and the applicants' reliance on the rule is misplaced.

As stated by MALABA JA in Ngatibataneyi (Private) Limited v Tobias Venganayi Moyo and Anor SC13-07, section 12 of the Companies Act embodies the common law principles of estoppel enunciated in the case of Royal British Bank v Turquand (1856) 119 E.R. 886 (generally known as the Turquand Rule).

The Turquand Rule is intended to protect the rights of third parties dealing with companies. It is therefore a rule that a third party would rely on when a company or office bearer of a company seeks to avoid liability.

It is my view that section 12 of the Companies Act was a red herring.

The question of Morris Longstaff Sifelani's locus standi or authority to institute legal proceedings on behalf of the applicants is not new to this Court.

The present application is a sequel to other applications brought on behalf of the applicants.

On 2 August 2005, the Club filed an Urgent Chamber Application in case no. HC3803/05 against the first and ninth respondents in the present matter and another. The applicants were challenging the dissolution of the then incumbent executive committee on 25 July 2005 by the first respondent. It appears from the Consolidated Index to the application that Morris Longstaff Sifelani deposed to a supporting affidavit. However, the affidavit is not in the record. The application was opposed. The first respondent, in paragraph 12(ii) of the Opposing Affidavit, listed the original members of the Board of Trustees. The list does not include Morris Longstaff Sifelani. The application was dismissed on the basis that it was not urgent and that the deponent to the Founding Affidavit, one Phillip Mugadza, did not have the authority to represent the Club.

On 12 September 2005, the present applicants, Morris Longstaff Sifelani and three others filed an Urgent Chamber Application in case no. HC4530/05, against the first respondent in the present matter. Sifelani deposed to the applicants' founding affidavit on behalf of all the applicants. The applicants were again challenging the 25 July 2005 dissolution of the Club's executive committee by the first respondent. Sifelani averred that he was the executive director and executive chairman of the company. He further averred that he was a founder member and a trustee of the Club. The application was almost a replica of HC3803/05. It appears that the respondents had not filed any opposing papers. Letters filed of record indicate that the respondents were going to oppose the application. The application was withdrawn and the applicants, except for the Company and the Club, were ordered to pay costs on a legal practitioner and client scale.

On 23 February 2006, the same applicants as in case no. HC4530/05, filed yet another court application against the first respondent in case no. HC1065/05. The cause of action was the same as in the other two applications. Morris Longstaff Sifelani deposed to the founding affidavit, again averring that he was a founding member and trustee of the Club and that he was the chairman and chief executive officer of the company. The application was again opposed. Sifelani's status was again put into issue in paragraph 8 of the opposing affidavit.

On 29 May 2007, the applicants filed the present application. At the core of the application is again the question as to who should run the Club. The application was again opposed and Morris Longstaff Sifelani's directorship and trusteeship put into issue. In issue is also his status as the chairman and chief executive officer of the company.

It is clear that when the applicants brought the application it must have been in their contemplation, from the previous applications, that a dispute of fact would arise.

The Form CR14 produced by the applicants does not seem to resolve the issue.

The Form is merely prima facie proof of the directorship of Morris Longstaff Sifelani. The proof has been put into issue with the production of what the respondents purport to be the first trustees of the Club who subscribed to the formation of the Company. It is these Trustees who were mandated, under the Club's Constitution, to form the Company and constitute the Board of Directors. The document therefore questions Sifelani's assertion that he is one of the founding members and a trustee of the Club when his name does not appear on its face. It further raises the question how Sifelani became a director of the applicant as at 10 October 2002 as appears on the Form CR14.

The minutes of the Board of Directors that purportedly authorized Morris Longstaff Sifelani to institute these proceedings were challenged by the respondents.

The first respondent challenges the holding of the meeting and the passing of the resolution.

It is not in issue that the first respondent is a director of the company. It appears from the minutes of the meeting that he did not attend the meeting. There is no indication from the applicants whether or not notice of the meeting was given as is required under the Companies Act.

Despite previous challenges of Morris Longstaff Sifelani's authority to represent the company, the minutes were only annexed to the answering affidavit.

It is my view that these disputes of fact cannot be resolved on the basis of the affidavits filed of record.

As already alluded to, these are disputes of fact that the applicants should have anticipated and adopted the proper procedure for their resolution.

What is left, I believe, is for me to decide whether or not, in view of the apparent material dispute of fact, I should dismiss the application as prayed for by the respondents.

As stated in Adbro Investments Co. Ltd v Minister of Interior 1956 (3) SA 345 AD;

“Where the facts are in dispute, the court has a discretion as to the future course of the proceedings. It may dismiss the application with costs or order the parties to go to trial or order oral evidence…,.

The first course may be adopted when the applicant should have realised, when landing his application, that a serious dispute of fact was bound to develop.”

Ordinarily, because of the apparent material dispute of fact, this is a case where the respondents would have been entitled to their prayer. However, I consider this case not an ordinary one.

It appears that there is a tug of war between individuals who purport to be representing the applicants, particularly the Club. In almost all the applications, there are two people who are featuring prominently, challenging each other's status within the Club, that is, Morris Longstaff Sifelani and the first respondent. When the elephants fight, the grass suffers. In this case, it is the Company and the Club which appear to be suffering. This, in my view, is not healthy for the two applicants.

It should be noted that the dispute as to who should control the Club has spilt into the Supreme Court following an appeal against a decision of this court.

The issue before the Supreme Court, in Dynamos Football Club (Private) Ltd and Anor v Zimbabwe Football Association and Ors SC93-06, was the independence of the Club to run its own affairs following a dissolution of the executive committee by the Zimbabwe Football Association (ZIFA). The second issue was whether or not a 1994 amendment of the Club's constitution was valid. The court ruled that the Club was to manage its own affairs without any interference from the respondents. It was also declared that the ownership and management of the club was in terms of the 1963 Constitution until such time as it was lawfully amended or repealed.

Although the case did not deal with Morris Longstaff Sifelani's locus standi, it brings to the fore the unending fight for the control of the Club. The multiplicity of court applications has not resolved the issue. It is my view that the fight should be brought to an end in the interest of the applicants.

This is one of the cases where it is therefore necessary to adopt a robust approach and refer the matter to trial so that all the issues are properly ventilated.

On the question of costs, the court can order costs against the applicant even where it has not dismissed the application as a sign of its displeasure: see HERBSTEIN and Van WINSEN..,. However, in Van Answegen and Another v Drotkskie and Anor 1964 (2) SA 391…, SMUT AJ stated -

“It does of cause not follow that because a dispute of fact is reasonably foreseeable that an application on notice of motion will always be dismissed with costs. There may still be circumstances present which will persuade a court not to dismiss an application but to order the parties to go to trial together with an order that the costs of the application be costs in the cause or else that the costs stand over for determination at the trial.”

This is a case where authorization of the institution of the proceedings is in issue.

I do not believe that an order for costs at this stage would be in the interest of justice where the decision to institute the proceedings may later be found not to have been authorized by the two applicants.

In the result, it appears only just that the question of costs be deferred for determination at trial.

In the result, it is ordered that:

1. The matter be and is hereby referred to trial with the court application standing as the summons.

2. The applicants be and are hereby ordered to file a declaration within 10 days of the date of this order.

3. The respondents' notice of opposition shall stand as the appearance to defend.

4. All further pleadings shall be in accordance with the rules of this Court.

5. The costs of this application shall stand over for determination at the trial.

SC39-00 : E. FILON vs THE PUBLIC SERVICE COMMISSION and THE MINISTER OF LANDS AND WATER RESOURCES
Ruled By: GUBBAY CJ, McNALLY JA and EBRAHIM JA

The appellant was discharged from the Public Service. He had been suspended from duty by the Secretary to his Minister, and, later, served with charges to which were attached certain documents. The letter containing the charges was signed by a Mr Moyo on behalf of the Secretary to the Ministry.

The appellant duly replied, in writing, to the allegations. He required other documents.

He was not supplied with copies of those documents, nor were his legal practitioners, who also demanded copies of them. He was, however, allowed access to them and to make notes.

The Public Service Commission (“the Commission”) held its enquiry, and, as a result, the appellant was found guilty of misconduct and discharged.

He took the matter on review; the sole point of review being, that, the audi alteram partem rule had been breached because of the respondent's failure to supply the requested documents.

The learned judge a quo rejected that argument.

He was right to do so.

The appellant had access to all the relevant documents. He was supplied with some documents along with the charges, and was given access to the others. His legal practitioner had the opportunity to examine the documents, though it is not clear whether he did so. He replied to the charges, in writing, at some length.

In general, on the audi alteram partem rule and its applicability to proceedings under Public Service disciplinary regulations, see Jiah & Ors v Public Service Commission & Anor 1999 (1) ZLR 17 (S); Chitzanga v Public Service Commission HH28-00.

This was not a case like Binza v Acting Director of Works 1998 (2) ZLR 364 (H), where the employee and the court were denied access to the relevant documents.

Before this Court, the appellant took a different line. He raised several new points for the first time.

As he correctly stated, points of law can be raised for the first time on appeal.

In addition, the appellant is a self-actor, and the courts, within limits, always give the greatest latitude to self actors.

The appellant argued that the disciplinary proceedings were void ab initio on several grounds –

(1) The suspension was defective;

(2) Even if the suspension was valid, it lapsed automatically after three months, as the charges did not involve financial prejudice to the State;

(3) The charges were invalid, having been preferred by someone other than his head of office, head of department, head of ministry, or the Commission itself;

(4) The charges were fatally defective.

He also argued that his case was not fairly considered, in that –

(5) The Commission did not verify the truthfulness or otherwise of his answers to the misconduct charges by referring to documents referred to it by the appellant;

(6) Information favouring the appellant, and which was available to the Commission, was not placed before it;

(7) There were serious disputes of fact which could not be resolved on the papers only;

(8) The Commission misdirected itself in law in a number of ways.

The respondents do not specifically address point (1) in their heads of argument. In my view, there is no substance in the appellant's submission on this point.

The grounds for suspension are very wide and the Secretary's action could be justified on any of a number of the grounds enumerated in section 8(1) of the Public Service Regulations.

It is also not true to say that the charges did not involve financial prejudice to the State. Clearly, financial prejudice is at the heart of all the charges.

The respondents argue, in respect of point (3), that as section 28 of the Public Service Regulations permits the delegation of disciplinary functions to any person, it must be presumed that Mr Moyo had been duly authorised by the Secretary to sign on his behalf.

As in Marumahoko v Chairman, Public Service Commission & Anor 1991 (1) ZLR 27 (H)…, there is nothing specific to show that the Secretary had authorised Mr Moyo to sign on his behalf.

The maxim omnia praesumuntur rite esse acta should not override the requirements of the Public Service Regulations.

It is likely that Mr Moyo was authorised, but, there is no specific evidence that he was.

However, it should be noted that the letter containing the charges was written “further to” the letter of suspension, which, itself, clearly adumbrated charges being brought. It is also relevant that section 28(2) of the Public Service Regulations states that the Commission may depart from or authorise any departure from the Regulations, or condone any irregularity or departure from any provision of the Public Service Regulations where the irregularity or departure has not resulted, or will not result, in a substantial miscarriage of justice.

It is not clear whether the Commission has formally condoned the irregularity, if indeed it was an irregularity. But, in the circumstances, the irregularity was, in my view, not such as to invalidate the proceedings, being one of the most technical kind and of no real significance.

The Commission reached its decision without the benefit of very important information, which might well have led it to a different conclusion.

It is clear, that, the Commission was aware that the appellant was trying to shift the blame, in respect of the first three charges, to the late Mr Guyo, but, it does not seem to have considered the report of the Board of Inquiry into the late Mr Guyo's activities (in this regard, the remarks of CHIDYAUSIKU JP in Marketing Sales Agents (Private) Limited v Minister of Lands and Water Development HH235-98 may well be pertinent).

No reason is given for this omission, and the respondents content themselves with saying, in their heads of argument, that, the disputes of fact go to the merits and could not be argued on review.

The respondents' submission is that the appellant should not be allowed to introduce the evidence relating to Mr Guyo's Board of Inquiry “as (the documents) concern another officer and could only have a bearing, possibly on the merits, which is not a reviewable ground.”

They concede, that, they would not be prejudiced if the evidence were to be admitted.

It seems to me that where a tribunal has reached a decision in the absence (for whatever reason) of vital evidence, it cannot be said to have reached a decision on the merits. It would be contrary to justice to allow the decision to stand.

It must be pointed out, though, that the fourth charge did not, apparently, concern Mr Guyo. It is a relatively minor charge.

If the Commission were to acquit the appellant on the charges where Mr Guyo was allegedly involved, it may take a different view of the penalty on the fourth charge.

I therefore consider it prudent that the whole matter be heard afresh.

I do not believe that this Court should consider the evidence. This is a situation where the appropriate course would be to set aside the Commission's decision and remit the matter to it, so that it can reconsider the case in the light of the report of the Board of Inquiry's findings into Mr Guyo's activities.

It also seems to me that this is a case where oral evidence should have been heard.

In the result, the appeal is allowed with costs. The matter is remitted to the Public Service Commission for a full hearing.

HH32-08 : LOVENESS SENGEREDO vs ERIC CABLE N.O.
Ruled By: MAKARAU JP

On 12 September 2006, the applicant obtained an order from this court compelling Africa International Removals to pay her the sum of $4,441,841=67 together with interest thereon; to deliver to her vehicle and a mobile phone together with a line for use in that phone.

A warrant of execution was taken out against the defendant and some vehicles belonging to the defendant were attached in execution.

A few days after the attachment, the defendant paid the amount levied on the warrant in full.

The motor vehicle, and the mobile phone handset, were not delivered, prompting the applicant to approach this court for an order committing the respondent to prison for contempt.

The application was opposed.

In his opposing affidavit, the respondent averred, that, it was not necessary to deliver the motor vehicle and the mobile phone to the applicant as she had always had possession of these. It was specifically averred, in the opposing affidavit, that, the applicant has always had possession of these assets and did not surrender them when she left employment.

The respondent further averred, that, after receiving a letter from the applicant's legal practitioners demanding delivery of the vehicle and the mobile phone, the respondent caused the legal practitioners for Africa International Removals to surrender to the applicant the registration book of the motor vehicle as the applicant already had the motor vehicle.

On the basis of its belief that the applicant already had in her possession the mobile phone and the line that she used during the course of her employment with the removals, the respondent averred that the approach to court, by the applicant, in the proceedings before me, was an abuse of process.

In answer to the opposing affidavit, the applicant admitted, that, the respondent has complied with some of the terms of the order but has not delivered to her the handset and has not paid the sales commission that was due to the applicant together with accrued interest.

On that basis, the applicant persisted with the proceedings for contempt and prayed that the respondent be sentenced accordingly.

The answering affidavit, by the applicant, is rather terse and does not assist the court much in resolving the dispute between the parties….,.

At the hearing of the matter, the applicant's legal practitioner submitted, from the Bar, that all that the respondent has not caused to be delivered to the applicant is the handset that she has always had when she was employed by International Removals.

It is on account of the non-delivery of this handset that the applicant seeks the imprisonment of the respondent.

It was accepted that the other aspects of the court order had been complied with although details of such compliance were not given.

It may be impertinent of me to note, at this stage, that, the issue of the line for use in the handset was not persisted with.

Again, details of when and how the line may have been delivered to the applicant were not given in the papers nor in the oral address by the legal practitioner.

In my view, the purpose of an answering affidavit is akin to that of a replication in an action. It is filed not merely for the form but to specifically meet and traverse all the averments made in the opposing affidavit that have the effect of defeating the applicant's claim.

Like in any pleading filed with the court, all issues that are not specifically denied and traversed in the answering affidavit are to be taken as if they have been admitted.

It is my further view, that, answering affidavits, like all other affidavits, must be drafted with precision and must meet the sting of the defence being raised in the opposing affidavit.

In casu, it is my view, that, the answering affidavit is not only too brief but fails to meet the sting of the defence that the respondent is proffering.

In the opposing affidavit, the point is specifically raised, that, the handset is already in the possession of the applicant. It is further averred that the applicant never returned the handset to her former employer when her services were terminated.

In answer to such a specific denial by the respondent, the applicant merely repeats that the respondent has not delivered the handset to her in terms of the court order.

With respect, this is inadequate.

The applicant, in my view, had to go further and specifically deal with the allegation of whether or not she had always had possession of the handset, and, if so, when she returned it to the possession of her former employer so that the charge of contempt could be sustained.

It is trite, that, before holding a person to be in contempt of court, it is necessary for the court to be satisfied both that the order was not complied with and that the non-compliance was wilful on the part of the defaulting party.

The primary purpose of contempt procedure is to compel compliance with the court's order where such compliance cannot be obtained through any other execution set out in the Rules of Court. Where, however, there is a dispute as to whether the court order can be complied with or not, in my view, contempt proceedings are not competent until it has been proven, on a balance of probabilities, that, the respondent can comply with the court order and is willfully deciding not to.

In casu, it appears to me, that, there is a real dispute of fact as to whether the mobile phone handset is in the custody or under the control of the respondent as alleged by the respondent or whether, as for the motor vehicle, it has always been in the possession of the applicant.

The dispute becomes real in view of the acceptance by the applicant that she has always had the motor vehicle and the handset in her possession during the period she was employed by Africa International Removals. Without further proving that she was dispossessed of the handset, at some time, in my view, she cannot succeed in having the respondent committed for contempt as she prays for.

Assuming that I have erred in holding that I cannot determine whether there has been non-compliance in the matter, I will proceed to hold that the requisite mental element for the offence has not been proved.

I am persuaded by the respondent's protestations of good faith. He genuinely believes that the applicant already has the handset and that there is nothing for him to deliver.

The opportunity that the procedures of this court afforded the applicant to challenge that belief went begging.

In contempt proceedings, the onus if on the applicant to prove not only that the court order has not been complied with, but that such non-compliance was wilful on the part of the respondent.

It is not enough for the applicant to wave a court order in his or her favour and cry that such has not been complied with.

Contempt proceedings are not only concerned with enforcing orders of this court. Such proceedings also relate to the integrity of the court and its processes. The integrity of the court is further enhanced by only holding respondents to be in contempt where their actions threaten the dignity and integrity of the court and are literally thumping their noses at the judiciary. It is not enhanced by holding defaulting respondents to be in contempt where such respondents act under a genuine and reasonable belief that there is nothing further required of them in terms of an order of court.

It is my view that the necessary mental element requisite in contempt proceedings has not been adequately proved in this matter.

Having failed to satisfy me on the two elements necessarily attendant upon a finding that the respondent is in contempt, I will dismiss the application and order costs against the applicant.

In the result, I make the following order:

1. The application is dismissed.

2. The applicant pays the costs of the application.

HH92-09 : SUPA PLANT INVESTMENTS (PVT) LTD vs EDGAR CHIDAVAENZI
Ruled By: MAKARAU JP

The facts giving rise to this application are largely common cause. They are as follows:

The applicant is in the farming business, operating a farm in Chakari. In October 2006, it set out to acquire a centre pivot irrigation system for its farm. Its Managing Director, duly authorized to act on behalf of the applicant, approached one Douglas Chihuri (“Chihuri”) who was selling a center pivot system on behalf of the respondent.

An agreement of sale was concluded between the plaintiff and Douglas Chihuri, acting for his principal, regarding a 140HA center pivot system belonging to the respondent.

A purchase price in the sum of $12,000,000 and installation charges of $3,000,000 were agreed upon.

Pursuant to the agreement, an invoice was made out to the applicant giving the total amount payable as $15 million.

It was made clear to Douglas Chihuri that payment would be made through the African Banking Corporation and would take a few weeks to be processed.

A month later, payment was effected in the agreed sum. This was made in favour of Chartered Enterprises, Douglas Chihuri's trading mantle.

A week after payment had been made, the applicant met with the respondent to discuss the details of the delivery of the centre pivot. Douglas Chihuri was in attendance. At the meeting, the respondent unilaterally increased the purchase price of the centre pivot. Instead of holding the respondent to the agreed price, the applicant agreed to pay an additional $5million and executed an acknowledgement of debt to this effect.

The seller also appended his signature to the acknowledgement. So did Douglas Chihuri.

Payment of the $15 million was then made to the respondent according to his instructions. Still acting as the seller's agent, Douglas Chihuri agreed to have the centre pivot delivered to the applicant.

The respondent did not deliver the centre pivot, prompting the applicant to bring this application seeking an order compelling the respondent to deliver a 140HA center pivot to it.

In opposing the application, the respondent denies knowledge of what transpired between the applicant and Douglas Chihuri, but admits that he was, at that time, selling two centre pivots, the details of which he gave to Douglas Chihuri. He further confirmed, that, in time, Douglas Chihuri advised him that he had secured a buyer for one of the centre pivots. He also confirmed that he received the sum of $14 million dollars for the centre pivot that Douglas Chihuri had sold to the applicant on his behalf and that a balance in the sum of $5 million would be paid in due course.

It was also suggested to him that a further $15 million would be paid for the same pivot after the applicant had sold his beasts or that he could collect the beasts himself as further payment for the sold pivot. He however opted for a cash payment. He did not agree to the delivery of the pivot in the absence of full payment and did not deliver the center pivot because he did not receive the full purchase price of $35 million.

At the hearing of the application, it emerged that the respondent had sold the centre pivot, the subject of this dispute, after being served with this application but before the matter was determined.

This emerged from supplementary affidavits filed by both parties days before the hearing and which were filed with my leave. I granted leave to the parties to file the supplementary affidavits as, in my view, they air the full dispute between the parties and bring out the real issue for determination in this matter.

In his supplementary affidavit, the respondent deposed, that, after the filing of the above application, a director of the applicant caused his arrest on allegations of fraud. It was alleged, in the criminal proceedings, that the respondent had fraudulently misrepresented to the said director that the centre pivot was available for sale when he knew that it was not as it was to be sold to a third party. The respondent was duly prosecuted but was acquitted at the close of the trial.

In it own supplementary affidavit, the applicant admitted the facts given in the respondent's additional affidavit but urged me to find the contents of the affidavit inadmissible on the basis of irrelevancy.

Before proceeding further, I will dispose of the admissibility of the contents of the affidavit.

In my view, once a court grants leave to a party to file an additional affidavit, that grant of leave necessarily implies that the contents of the affidavit are admissible. Supplementary affidavits should only be filed if their contents are relevant to the dispute before the court.

It is a general rule of evidence that irrelevant evidence is inadmissible.

Section 26 of the Civil Evidence Act [Chapter 8.01] provides that evidence that is irrelevant or immaterial and cannot lead to the proving or disproving of any point in issue shall not be admissible.

This section is simply a codification of the position at common law which holds that all facts relevant to the issue in legal proceedings may be proved and where a legally recognized exception to this rule is not invoked, relevancy remains the fundamental rule governing the admissibility of evidence.

As indicated above, this is the rule that a court summarily employs before granting leave to file additional affidavits in motion proceedings.

In my view, the rule against admissibility of irrelevant evidence is rooted more in common sense than in a legal principle. It is a common sense approach by the court to govern that which it will accept or reject lest it be inundated by evidence of all facts surrounding a dispute and trials will take longer than is necessary to resolve if the parties were left at liberty to drag in all they wish or think is necessary.

It however remains clear that the rule against irrelevant evidence is against evidence of facts that have little to do with the issue in dispute.

In casu, I was of the view that the disposal of the centre pivot pending litigation is the issue in dispute and thus facts tending to prove the disposal cannot be irrelevant. Further, and in any event, the facts sought to be rendered inadmissible by the applicant are common cause and thus no party will be prejudiced by its admission into evidence.

It is on the basis of the above that I ruled admissible the contents of the two supplementary affidavits.

I now turn to consider the merits of the application.

The issues that fall for determination in this application are mainly two in my view:

(i) Firstly, I have to determine whether or not there was an agreement between the applicant and the respondent for the sale of the centre pivot for $20 million.

The respondent has sought to argue that the agreed purchase price was $35 million. He deposed in his opposing affidavit that after the applicant had paid the first $15 million and had promised a further $5 million, by way of the acknowledgement of debt; the parties agreed to a further payment of $15 million after the applicant had sold its beasts.

Relying on these averments by the respondent, counsel for the respondent argued that the correct purchase price of the center pivot cannot, in the circumstances, be ascertained without the leading of oral evidence and thus the application should fail on this basis.

It is common cause that Douglas Chihuri, acting as the agent of the respondent, agreed to sell the centre pivot to the applicant for $15 million. The parties agreed, later, to vary the purchase price to $20 million, when, after making payment of the initial purchase price, the applicant promised, by way of an acknowledgement of debt, to pay an additional $5 million.

The agency of Douglas Chihuri to represent the respondent, whilst challenged in the opposing affidavit, was not advanced in argument.

In my view, counsel for the respondent was well advised not to advance the argument in view of the affidavit by Douglas Chihuri and the fact that the respondent accepted the sum of $15 million paid by the applicant through Chihuri.

By his own conduct, of accepting the payment, the respondent put paid to whatever argument he may have had against the agency of Douglas Chihuri. By this conduct, he gave out and confirmed that Douglas Chihuri was indeed selling the centre pivot on his behalf and is thus bound not only by what Douglas Chihuri did but by what he also personally did.

If there was any doubt about the agency of Douglas Chihuri, the respondent personally removed that doubt by accepting the part payment of the purchase price and agreeing with the applicant that the balance now stood at $5 million, thereby putting beyond doubt that the purchase price was $20 million.

In my view, he is thus condemned by his own actions as revealed by the papers filed of record.

I am aware that the respondent has repeatedly and vehemently denied, in his affidavit, that the purchase price of the centre pivot was $20 million.

It is my view that it is not the number of times a denial is made or the vehemence with which a denial is made that will create a conflict of fact such as was referred to by McNALLY J…, in Masukusa v National Foods Ltd and Another 1983 (1) ZLR 232 (H) and in all the other cases that have followed.

A material dispute of fact arises when material facts alleged by the applicant are disputed and traversed by the respondent in such a manner as to leave the court with no ready answer to the dispute between the parties in the absence of further evidence.

In casu, I believe the papers filed of record present ready answers to the questions posed by the respondent. He argues that he wanted more than the $20 million that the applicant contends was the agreed purchase price.

(a) Firstly, the papers filed of record clearly show that the respondent's agent negotiated and agreed to the sum of $20 million.

At law, the actions of the agent bind the principal - even if the agent is breaching his own contract of agency with the principal.

There is thus no need to lead evidence to show what the terms of the agency contract were regarding the purchase price he had to seek. The respondent, through the agency of Douglas Chihuri, agreed to $20 million that the applicant has paid in full.

(b) Secondly, it is common cause that the respondent received the sum of $15 million dollars through his agent, and, thereafter, acknowledged, in writing, that the balance due was $5 million.

He did not, at that stage, query the fact that the balance was only $5 million instead of $20 million according to his assertions.

By appending his signature to the acknowledgement of debt, which clearly indicates the balance as $5million, he gave out to the applicant that he agreed with the applicant in this regard.

Thus, in my view, on the basis of the papers, it is clear that the total purchase price agreed to between parties was in the sum of $20 million which was paid in full.

I find nothing on the papers to indicate that the parties may have agreed to a price other than $20 million.

The only suggestion that this may be so is the averment by the respondent, in his opposing affidavit, to this effect. It is not backed up by any other evidence. It is contradicted by the facts that are common cause and is thus clearly simply meant to introduce an illusory conflict where none exists.

Aligned to the alleged conflict of fact on the agreed purchase price is whether the respondent agreed to deliver the centre pivot before payment of the purchase price in full.

Again, counsel for the respondent urged me to find that I could not resolve this dispute in the absence of oral evidence.

I am afraid I cannot agree.

Having found that the agreed purchase price was $20 million which was paid in full, it matters not, in my view, if the respondent agreed to deliver the centre pivot as delivery is a legal consequence following the conclusion of a sale agreement. It cannot be the subject of a separate agreement between the parties.

It is therefore my finding, that, there is no material conflict of fact in this application.

The parties concluded an agreement of sale of the centre pivot for the sum of $20 million which has since been paid in full. The respondent is bound by the law of sale to deliver the centre pivot to the applicant.

SC02-21 : EDDIES PFUGARI (PVT) LTD and EDWARD NYANYIWA vs KNOWE RESIDENTS AND RATEPAYERS ASSOCIATION and NORTON TOWN COUNCIL
Ruled By: PATEL JA, BHUNU JA and BERE JA

This is an appeal against the judgment of the High Court granting an application for specific performance lodged by the first respondent against the appellants. Apart from granting the relief sought, including the payment of damages in the alternative, the court a quo also ordered the appellants to pay costs ...

Background

The first respondent is an association of residents of the Knowe Housing Development based in the town of Norton. These residents purchased Stands on the development site from the first appellant whose business is to develop and sell housing Stands.

The second appellant is apparently the only active director of the first appellant.

The second respondent is the Norton Town Council. It did not appear at the hearing of this appeal, having filed heads of argument indicating that it would abide by the decision of this Court.

The first appellant, as the owner and seller of Lot 2 of Knowe Suburb, entered into sale agreements with the first respondent's members in 1998 (Phase 2) and later in 2003 (Phase 3). The Phase 2 residents complied with their respective agreements by paying the first appellant in full over a period of 30 months. The Phase 3 residents also duly complied by paying the first appellant in full within the agreed period of 60 months that ended on 1 February 2008.

The first respondent averred that the first appellant had breached its contract of sale with the Knowe residents. It filed an application for specific performance or the payment of damages in the alternative.

The appellants opposed the application on the merits and also raised three points in limine at the hearing a quo.

High Court Judgment

The court a quo dismissed all three points in limine.

As regards the first point, relating to prescription, the court found that the permits granted to the first appellant did not give any time limit within which the infrastructural development was to be completed and that the contracts with the residents did not specify any time limits for suing the first appellant. Whatever was to be done by the first appellant was to be done within a reasonable time.

With respect to the second point, the court found that there were no material disputes of fact and that, therefore, it was proper for the first respondent to proceed by way of application rather than by way of action.

Lastly, the court dismissed the third point objecting to the citation of the second appellant in his personal capacity on the basis that he was responsible for the first appellant's administrative affairs.

On the merits, the court a quo found that the members of the first respondent had duly performed their part of the agreements. Conversely, the first appellant had performed some part of the agreements but had not fully complied with the agreements and development permits. The court was not satisfied that this failure to perform was mainly because of inflation. The court further found that the first appellant had failed to establish that performance was now impossible in the era of dollarisation.

If the first appellant had serviced the Stands at the time the purchase prices were paid, between 1998 and 2008, there would have been no difficulty in the performance of the contracts. The court rejected the defence of impossibility of performance on the basis that any hardships now encountered by the appellants were self-created.

Finally, the court held, that, if the appellants were unable to comply with an order for specific performance, they must, in the alternative, pay damages.

In the event, the court ordered the appellants to fully service the Stands in Phases 2 and 3 within 90 days to the second respondent's satisfaction and specifications. The latter was ordered to ensure that the relevant statutory requirements were met. Alternatively, the appellants were ordered to pay the sum of US$192,901,995 to the first respondent's members within 30 days. If they failed to pay, the Sheriff was authorised to attach and sell the appellants' property in execution in satisfaction of the damages awarded. Lastly, the appellants were ordered to pay the costs of suit on an attorney and client scale.

Grounds of Appeal and Relief Sought

The 10 grounds of appeal hereunder are unduly prolix and repetitive. They attack the judgment a quo on the following broad bases:

(i) The appellants were not in breach of their obligations in the absence of a finding as to the time when performance was due, and, therefore, the application a quo was premature and not enforceable.

(ii) The claims in casu were prescribed following the execution of their obligations by the residents, and, in that respect, the court misconstrued the first appellant's contractual obligations and its duties in terms of the permits issued by the second respondent.

(iii) The claim for damages required the quantification of damages by way of action, and, consequently, the claim for damages was not proven according to law.

(iv) The court erred in ordering the second appellant to pay damages personally, and, in so doing, it mis-applied the doctrine of piercing the corporate veil.

(v) The court failed to deal with and pronounce upon the defence of currency nominalism and ordered the payment of damages in the currency of circulation and not the currency of performance.

(vi) The court improperly failed to consider the feasibility of performance against the defence of supervening impossibility.

The appellants pray that the appeal be allowed with costs and that the judgment a quo be set aside and substituted with an order dismissing the application with costs.

At the hearing of the appeal, counsel for the appellants moved an amendment to the relief sought, substituting the prayer for dismissal with one for remittal to the court a quo. Counsel for the first respondent had no difficulty with the prayer being substituted as amended. The prayer was accordingly amended, by consent, to provide for the remittal of the matter rather than the dismissal of the application a quo.

Material disputes of fact relating to performance

Counsel for the appellants submits that the matter should not have been dealt with on motion but as a trial case to resolve the material disputes of fact. Evidence was required in relation to prescription, damages, and specific performance.

In the latter respect, the first respondent has not identified the specific work that still remains to be performed and the extent of the works yet to be done remains in dispute. The appellants did comply with some of the conditions stipulated in the subdivision permit. It was on this basis that the second respondent issued title deeds to almost 90 per cent of the first respondent's members in Phase 2.

Ultimately, so it is submitted, the court a quo did not make any findings on what works remained to be carried out.

Counsel for the first respondent submits that a suit for specific performance does not have to proceed by way of trial. There is no material dispute of fact that the appellants have failed to perform. The works outstanding to be performed are clearly set out in the founding affidavit.

In dealing with this, the opposing affidavit does not dispute those averments but raises issues relating to prescription and currency nominalism.

At paragraph 7 of the founding affidavit, the first respondent sets out the nature of the application a quo, i.e. to compel the first appellant to service Phases 2 and 3 of Knowe Suburb and to complete such servicing within a reasonable time as per the agreements of sale between the first respondent's members and the first appellant.

The servicing that is required is specifically identified as including the grading and tarring of roads, the construction of a proper water drainage system, the laying of a proper water reticulation system, the erection of street lights, and the handing over of serviced Stands to the first respondent's members. Such servicing, so it is averred, must all meet the requirements and specifications of the second respondent, the Norton Town Council, as the supervising authority.

In response, at paragraph 21 of his opposing affidavit, the second appellant avers that the claims of the first respondent's members had prescribed in three years after each member completed his or her own obligations under his or her respective Agreement of Sale.

It is further averred that the first respondent is demanding performance in United States dollars, which is not the currency of performance in terms of the agreements of sale, contrary to those agreements.

Lastly, it is averred that the Phase 2 residents have received title to their properties, which is proof that the second respondent was satisfied that work had been done.

The opposing affidavit is deafeningly silent on the specific servicing to be performed, as identified in the founding affidavit. Again, the nature and extent of the works to be carried out are not refuted and there is no denial of the averment that they have not in fact been carried out.

In paragraph 10.6 of the founding affidavit, the first respondent avers that the Phase 2 residents have complied with their part of the contract by paying the first appellant in full over 30 months.

At paragraph 10.7, it is averred that the first appellant has not fulfilled its obligations in respect of the Phase 2 properties relating to the grading and tarring of roads, the connection of a proper water reticulation system, the construction of a proper water drainage and sanitary system, and the erection of street lights.

Similarly, in paragraph 15.3, the first respondent avers that the Phase 3 residents have made full payment to the first appellant within the agreed period of 60 months.

Again, at paragraph 15.4, it is averred that the first appellant has breached the contracts of sale by failing to finance the project and develop the suburb, i.e. by failing to construct tarred roads, connect water reticulation, drainage and sanitary systems, erect street lights, and construct public facilities and amenities as agreed.

In response, at paragraph 27.3 of his opposing affidavit, the second appellant relates to the use of 150mm instead of 350mm water pipes and the use of septic tanks as opposed to a sewer reticulation system. He further contends that “the roads are there but they have not been tarred because the funds for that purpose were obliterated.”

As regards the Phase 3 development, the first appellant's broad retort, at paragraph 36, is that “the purchase price paid by Applicant's members for purposes of development was obliterated and rendered valueless.”

Having regard to the pleadings, it is abundantly clear that the first respondent did identify the specific work that still remained to be performed and that the extent of the works yet to be carried out was not in dispute. In this respect, the court a quo correctly found that the first appellant had not fully complied with the agreements of sale and relevant permits and that most of the terms and conditions in respect of Phases 2 and 3 had not been complied with.

The court accordingly quite correctly ordered the appellants to fully service the residential areas in Phase 2 and 3 to the second respondent's satisfaction and specifications. Furthermore, in its order, the court clearly particularised the specific services to be provided by the appellants.

To conclude this aspect of the matter, I am unable to discern any material dispute of fact relative to the appellants' failure to perform their obligations in respect of Phases 2 and 3. Moreover, I cannot find any fault with the findings of the court a quo in this regard or its consequent order of specific performance in favour of the first respondent and its members.

Given the absence of any contractually stipulated period for the performance of the first appellant's contractual obligations, it was obviously not possible for the court to make any finding as to when such performance was due. By the same token, it cannot be said that the application a quo was premature and not ripe for enforcement.

It follows that the first and second grounds of appeal are devoid of merit and cannot be sustained.

HH458-19 : KNOWE RESIDENTS AND RATEPAYERS ASSOCIATION vs EDDIES PFUGARI (PVT) LTD and EDWARD NYANYIWA and NORTON TOWN COUNCIL and REGISTRAR OF THE HIGH COURT
Ruled By: FOROMA J

This matter was originally filed as court application for contempt of court and ancillary relief. BERE J…, referred the matter to trial....,.The contempt of court proceedings were instituted as a court application which BERE J…, referred to trial for resolution; with the court application and founding affidavit standing as ...

HH63-16 : ASWEL NYANZARA vs MBADA DIAMONDS (PRIVATE) LIMITED
Ruled By: CHITAPI J

The applicant is a former employee of the respondent. He was employed in the position of Asset Protection Officer.

On 11 November 2014, the applicant was served with a notice to terminate his employment with the respondent. The notice period which the applicant was given was three (3) months effective from 11 November 2014, to be served from home i.e. the applicant was not to report for work but would nonetheless be paid his salary.

In the aforesaid notice to terminate the applicant's employment contract the respondent stated:

“…, the corporate hereby undertakes to pay the notice period and all outstanding payments due to you on a monthly basis spreading over a period of four months through the corporate's payroll until all such is extinguished in full. These payments shall be made subject to such statutory deductions as are applicable. A statement of account denoting how much you are entitled to shall be availed to you by the 30th November 2014. Kindly approach the human resources department for your termination clearances and statement of account, and affix your signature to the tear off below to signal your receipt of this letter…,.”

The letter of notice was delivered upon the applicant who refused to sign the tear off slip.

Nothing turns upon the applicant's refusal to sign the tear off slip because the validity of the termination being a unilateral act by the respondent (employer) would not require acceptance by the applicant (employee) through signing the letter. It is sufficient for its validity that the letter was conveyed upon the applicant.

By letter dated 29 November 2014, the respondent wrote to the applicant setting out the amounts which it acknowledged to be owing by it to the applicant. The letter referred to is attached as annexure 'C' to the applicant's founding affidavit and reads in material part as follows:

Re: Statement of account for Aswell Nyanzara EC No. BD1013

“We refer to the above matter.

Please be advised that Mbada Diamonds acknowledges owing you a total amount of USD$9,695=02 which was calculated starting from 1 February 2010 being the date of engagement. The detailed breakdown is as follows:

Item Value
1. Gratuity payable $1,331-95
2. 90 days of CILL payable $3,073-85
3. 0.00 months historic overtime $-
4. April & May 2014 overtime @ 1.5 $-
5. April & May 2014 overtime @ 2.0 $ 102-46
6. Back pay for June & July 2014 $ 576-00
7. Salary for September, October & November $2,305-38
8. 3 months using current work arrangement $2,305-38
Grand Total $9,695-02

Please note that all the above amounts are gross figures, and, as such, are subject to applicable statutory deductions. Mbada Diamonds will deduct any loans or amounts advanced to you from the net amount…,.

A Zindi (Mr)
The Human Resources Manager
For and on behalf of Mbada Diamonds”

As with the letter of termination of employment on notice, which the applicant refused to sign, he also did not sign the letter setting out the statement of account.

The applicant indicates, in his answering affidavit, that, he did not sign his own copy of Annexure C but signed the one which the respondent retained. He attributes his failure to sign the letter to the fact that he is a layman and thought it unnecessary to sign the copy which he retained and has attached to his application.

Although the respondent appears to take issue with the failure by the applicant to sign the statement of account in acknowledgment, it is, in my view, a matter or omission of no great moment because the authenticity of annexure 'C' is common cause between the parties.

I shall advert to analysing its contents later when I consider the jurisdictional issues raised by the respondent.

On 5 May 2015, the applicant filed the present court application whose heading reads 'COURT APPLICATION FOR PAYMENT OF MONEY'. The application is supported by the applicant's brief affidavit consisting of seven (7) paragraphs, the material ones which read as follows:

“4. On 11 November 2014, the respondent terminated my contract of employment on notice. A copy of letter of termination of contract of employment is attached hereto marked “B”.

5. On 29 November 2014, the respondent marked out my terminal benefits which amounted to $9,695=02. A copy of the statement of account from the Human Resources Manager is attached hereto marked 'C'.

6.1. Apart from the $9,695=02, the respondent owed me the following amounts;

(a) Night Allowances - $1,941=10 Annexure 'D'.

(b) Unrefunded portion of the pension fund - $799=20 Annexure “E”.

6.2. Therefore, the total amount of money which I am claiming from the respondent is $12,435=32 arrived at as follows;

7. I have not been paid a single cent from these moneys that are due to me despite demand on several occasions. The respondent has simply neglected, failed and/or refused to pay. I am applying for an order granting me the aforesaid sum for purposes of enforcement …,.

WHEREFORE, I pay for an order in terms of the Draft.

Thus sworn to at Harare this 5th day of May, 2015

Signed: Aswell Nyanzara”

Annexures 'D' and 'E' referred to in paragraph 6.1(a) and 6.1.(b) of the applicant's founding affidavit are, respectively, a letter whose date is not clear but is headed TERMINAL BENEFITS FOR ASWELL NYANZARA…,. NIGHT ALLOWANCE.

Annexure D is addressed to the respondent and is purportedly written by one E Munongerwa representing NUMQUI SWZ. There is a date stamp embossed National Union of Mines Quarrying Iron and Steel Workers of Zimbabwe. It appears that NUMQUISWZ is the abbreviation for the union. The letter purports to calculate the applicant's night allowance at $1,941 as the amount due to the applicant by the respondent.

Annexure E is a letter whose origins are not clear nor stated except that it is dated 4 March 2015, is addressed to the respondent's Principal Officer, a Mr Kennedy Bingwa, and is signed by or on behalf of Alackias Gavure – Administration Manager.

The letter is headed Mbada Diamonds Pension Fund: Retirement – Nyanzara Aswell (BD1013).

The author of Annexure E states in the letter, that, the sum of $1,834=58 was transferred into the “members” NMB Bank account number 290073502 on 2 March 2015. The payment represents the full commutation due to the member (comprising member and employer contributions together with interest thereon). The writer further states, in the letter, that, the 'balance retirement capital could not secure the statutory minimum monthly pension currently pegged at $30. The last paragraph of the letter reads as follows:

“The member has been refunded the 'funded portion' of his contributions made up to 30 November 2013. The unfunded portion, amounting $799-20, has not been refunded pending receipt of the outstanding contributions relating to the period 1 December 2013 to 31 May 2014.”

In the draft order, the applicant prays for an order as follows:

“IT IS ORDERED THAT:

1. Respondent shall pay applicant $12,435-32 together with interest thereon at the rate of 5% calculated from the date of service of the Court Application on Respondent to the date of payment together with costs of suit on attorney–client scale.”

The respondent, in opposing the application, and as shown upon a reading of its opposing affidavit, has raised two issues:

(i)...,.

(ii) The second issue raised by the respondent is in two parts, namely;

(a)...,.

(b) The second part of the second issue raised by the respondent is that the computations which the applicant has set out are disputed and have not been acknowledged by the respondent save for the computations presented by the respondent on condition they are accepted by the applicant.

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

This matter was initiated as a court application by the present plaintiff. Upon hearing argument, the court ordered that the papers filed in the court application stand as pleadings and the matter proceed to discovery in the normal way....,.Trial proceeded on the basis that the supporting and answering affidavit filed ...

HB10-15 : INTRO-WISE CATERING (PVT) LTD vs COSIRA COMMUNICATIONS GLOBAL and COSIRA AFRICA (PTY) LIMITED and ZIMBABWE PLATINUM MINES (PVT) LTD
Ruled By: MAKONESE J

This is an application for a declaratory order.

This court is invited to declare that Cosira Communications Global (first respondent) and Cosira South Africa (Pty) Ltd (second respondent) which was previously known as Cosira International (SA) (Pty) Ltd are one and the same entity.

To make such declaration, this court is asked to lift the veil of corporate personality on the grounds that such corporate personality has been used as a device to cover up fraud or improper conduct.

It is contended, on behalf of the applicant, that although the first and second respondents have distinct and separate legal personas, they are in fact one economic entity.

The first and second respondents strenuously resist the order sought and argue that there is no factual or legal basis for an order that the liabilities of one corporate entity be deemed to be liabilities of another.

The first and second respondents aver that the order sought is not legally competent and that where the corporate veil is lifted the court must effectively look behind the corporate veil to establish the shareholders of the corporate entity and then attach such liability to them.

The respondents pray that the application be dismissed for lack of merit.

Background

The facts that are common cause are these:

In November 2012, Intro-wise Catering (Pvt) Ltd (applicant) entered into a contract with Cosira South Africa (Pty) Ltd (second respondent) in terms whereof the applicant was to provide catering, housekeeping, and laundry services to Cosira South Africa (Pty) Ltd (the 2nd respondent) at the mining site of Zimbabwe Platinum Mines (Pvt) Ltd (third respondent).

The said agreement was to run continuously from November 2012 until termination by either party giving the appropriate notice in accordance with the agreement.

As a result of the agreement, the applicant supplied catering, housekeeping, and laundry services to the second respondent up to May 2013.

Invoices were raised regularly and a balance of US$155,144=22 remained outstanding for the period up to the end of May 2013.

It was the belief and understanding of the parties that the applicant was being sub-contracted to provide service to a company which had a running contract with Zimbabwe Platinum Mines (Pvt) Ltd (third respondent).

It later transpired that it was Cosira Communications Global (the first respondent), instead, that had a running contract with Zimbabwe Platinum Mines (Pvt) Ltd.

It was established that Cosira South Africa (Pty) Ltd (second respondent) never had any contract with Zimbabwe Platinum Mines (Pvt) Ltd at all.

It is Cosira Communications Global (the first respondent) that had a contract with Zimbabwe Platinum Mines (Pvt) Ltd and it is Cosira Communications Global which consumed the services which were provided by the applicant.

The applicant argues that Cosira Communications Global and Cosira South Africa (Pty) Ltd (first and second respondents) were aware, at all material times, that it was only Cosira Communications Global (first respondent) and not Cosira South Africa (Pty) Ltd (second respondent) which had a contractual relationship with Zimbabwe Platinum Mines (Pvt) Ltd.

Cosira South Africa (Pty) Ltd (second respondent) has tendered into court authenticated documents which reflect, that, on the 10th July 2013, Cosira South Africa (Pty) Ltd was placed under provisional liquidation by order of the North Gauteng High Court, sitting at Pretoria, South Africa.

Cosira South Africa (Pty) Ltd (second respondent) was placed under final liquidation on the 27th August 2013.

An order of the High Court of South Africa was issued on the 30th July 2013, authorizing the liquidators to sue on behalf of, and to defend proceedings against, Cosira South Africa (Pty) Ltd (second respondent).

Cosira South Africa (Pty) Ltd's liquidators dispute liability of the outstanding amount and further state that the applicant has failed to make out a case for the piercing of the corporate veil as Cosira Communications Global and Cosira South Africa (Pty) Ltd are separate legal personalities.

Point in Limine

The applicant argues that the application is not opposed by Cosira Communications Global (first respondent) and Zimbabwe Platinum Mines (Pvt) Ltd (third respondent). The only opposition before the court is on behalf of Cosira South Africa (Pty) Ltd (second respondent).

The applicant then extends the argument to state that the opposition before the court is a nullity for reasons set out below:

(a)...,.

The other preliminary point that was raised by the respondents is that the applicant adopted the wrong procedure.

It was argued, that, there are material disputes of fact which cannot be resolved on the papers, and that, on that basis, the matter should be dismissed.

I note that this point was not forcefully pursued and argued by the respondents.

I am satisfied that the matters before the court are capable of resolution without leading oral evidence.

The test on whether a material dispute exists in a matter was well set out by MAKARAU J in Supa Plant Investments (Pvt) Ltd v Edgar Chidavaenzi HH92-09.

SC37-09 : EDDIES PFUGARI (PVT) LTD vs KNOWE RESIDENTS ASSOCIATION and NORTON TOWN COUNCIL
Ruled By: SANDURA JA, ZIYAMBI JA and GARWE JA

This is an appeal against the judgment of the High Court directing the appellant to fully service residential stands in Phase 1 of the Knowe Housing Development in Norton.

The facts of this case are these:

The appellant, a private company, is a property developer whilst the respondent is an association of residents of the Knowe Housing Development, who, in 1998, entered into agreements of sale with the appellant in their individual capacities for the purchase of residential Stands.

The association was formed by the residents in order to compel the appellant to carry out its obligations in terms of the various contracts it had entered into with the various individuals who form the association.

The High Court found that the appellant had breached the terms of agreement between itself and the residents in regard to Phase 1 of the development. Consequently, the court granted an order directing the appellant to fully service Phase 1 of the housing development within 90 days, and, in particular, to connect to all Stands reticulated water, sanitary systems, tarred roads, and a proper drainage system.

Dissatisfied with that order, the appellant appealed to this Court on the grounds that:

(a) The court a quo had erred in finding that the respondent had locus standi in judicio to institute the proceedings; and

(b) The court a quo had erred in rejecting the appellant's contention that it had complied with its obligations in terms of the relevant Development Permit.

At the hearing of the matter before this Court, counsel for the appellant abandoned the other grounds of appeal and attacked the judgment of the court a quo on the sole basis that there were material disputes of facts which were incapable of resolution on the papers, and, for that reason, the matter should either have been referred to trial or dismissed.

The sole issue for determination before this Court, therefore, is whether the court a quo erred in resolving the disputes raised on the papers without hearing evidence.

In terms of condition 27 of the Development Permit issued to the appellant by the second respondent, the appellant was obliged, at his own expense, to: “provide all infrastructural services viz roads, electricity, water mains, and sewerage disposal, to the specification approved by and to the satisfaction of Norton Town Council and all such services shall be handed over to Council at a date to be agreed upon by the two parties involved.”

In its founding papers before the High Court, the first respondent alleged that the appellant had breached the contract in various respects.

The first respondent alleged that although the appellant had tarred the roads in Phase 1, it had done so in a substandard manner; that no proper drainage system had been constructed; and tapped water was not available at all the Stands. The first respondent further alleged that no street lighting had been put in place and social amenities, such as schools and clinics, were still to be constructed.

In its opposing affidavit, the appellant asserted, that, it had done its best to carry out its obligations under the difficult economic conditions prevailing in Zimbabwe, and that it was on course to completing its obligations.

It further stated, that, although there were no tarred roads in Phases 1 and 2, it had acquired state of the art equipment in order to carry out this task.

The appellant further stated, that, the roads had not been tarred because of the scarcity of diesel and unavailability of tar in Zimbabwe.

However, the appellant also stated, that, the road network in Phase 1 had been done satisfactorily by a Chinese sub-contractor.

The appellant further remarked, that, no drainage system had been put in place because the tarring of the roads had to be completed first. Culverts too were to be constructed after the roads had been tarred. The drainage was not as bad as suggested by the first respondent.

The appellant also stated, that, water mains had been installed and what remained was for the individual Stand holders to apply for connections.

As regards street lighting, the appellant submitted, that, this could only be attended to once the roads had been tarred.

Lastly, the appellant remarked, that, it had not deliberately avoided fully servicing the area but had been constrained by factors beyond its control, and, that, if given three months, it would ensure that the roads are completed.

In its opposing papers, the second respondent highlighted the fact that the appellant had not successfully completed Phase 1, and, therefore, should not have embarked on Phases 2 and 3 of the development project.

In determining that the appellant was in breach of its contractual obligations, the court a quo remarked, at page 6 of the cyclostyled judgment:

“It was quite apparent, from the papers before me, that the first respondent was indeed in breach of the terms of his contract in regard to Phase One of the development.

The applicant, through its members, has complied with their part of the contract and paid for the Stands in full. In my view, they may properly seek an order for specific performance.

In its opposition, the first respondent argued that the court should not exercise its discretion in favour of the applicant as the obligation was too onerous for it to perform. The excuses made by the first respondent, relating to unavailability of diesel and tar, were, in my view, merely an excuse as the applicant could carry out its obligations if it was diligent in its efforts. Whilst the court takes judicial notice of the socio-economic hardships complained of, it also notes that other successful developments have continued in spite of these challenges.

The second issue raised by the first respondent was that there was no timeframe for performance in the permit and they were therefore still in the process of completing the task.

This, in my view, was no defence to the order sought by the applicants.

Whilst it is noted that the permit does not indeed give a time frame within which the infrastructural development must be carried out, it is an implied term of the contract that performance must be conducted within a reasonable time.

In reading an implied term into a contract, the court must of course be bound by the principles set out in case law: see Mullin (Pvt) Ltd v Benade Ltd 1952 (1) SA 211.

The applicants in this case entered into the contracts with the first respondent in 1998. This application was filed on 22 June 2005. Clearly, the time lapse between the time of entering into the contract and time for performance exceeds, by any stretch of the imagination, the definition of a reasonable time.

In my view, a period in excess of six years is no longer a reasonable time - even in these challenging times.”

On the facts of this case, I am in no doubt that the court a quo was correct in determining the dispute on the papers.

The appellant had obligations which it had failed to discharge - even at the time of the hearing of the matter before the High Court in November 2006. The second respondent had still not issued the appellant with a Certificate of Compliance.

The appellant does not dispute, in its papers, that it had not discharged all its obligations in terms of the permit. Instead, the appellant states that it did the best in the prevailing socio economic situation and that it was on course to discharging its obligations under the contract.

The second respondent, in its papers, states that the servicing of Phase 1 had not been completed.

The remark by the appellant, that the drainage is not as bad as portrayed, is an admission that the work was not complete. Indeed, the appellant admitted that work was still to be done in tarring the roads, constructing a drainage system, and providing amenities.

The dispute, on the facts, could be resolved without hearing evidence. The position is now well established that:

“In motion proceedings, a court should endeavour to resolve the dispute raised in affidavits without the hearing of evidence. It must take a robust and common sense approach and not an over fastidious one; always provided that it is convinced that there is no real possibility of any resolution doing an injustice to the other party concerned.”

See Zimbabwe Bonded Fibreglass (Pvt) Ltd v Peech 1987 (2) ZLR 338 (SC)…,.

I agree with the submission by the respondent that the dispute was not so much on the substance but rather on the extent of non-compliance. I find no basis upon which the approach taken by the court a quo can be impugned.

The appeal is without merit. It is accordingly dismissed with costs.

SC60-21 : LEATHOUT INVESTMENTS (PVT) LTD vs FUTURE MUVIRIMI and PETRONELLA MUVIRIMI
Ruled By: GOWORA JA, PATEL JA and BERE JA

The parties herein are engaged in various wrangles in the Magistrates Court and the High Court. The wrangles have seen the parties file complaints of alleged criminal activities against each other.

In this appeal, the dispute relates to immovable property.

On 2 April 2014, the appellant caused summons to be issued out of the High Court wherein it sought the eviction of the respondents, who are husband and wife, from the immovable property described as 69 Glenara Avenue, Highlands, Harare. The appellant averred therein that it was the registered owner to the property and that the respondents were in occupation of the same. The appellant alleged that their occupation was without its consent.

The respondents opposed the claim for their eviction.

They filed an exception on 14 May 2014. This was followed up with a special plea filed on 16 May 20104.

In the exception, the respondents challenged the appellant's claim of ownership in the immovable property described above. The same defence was raised in the special plea.

On 27 June 2014, the respondents filed a plea on the merits.

The substance of their defence was to challenge the appellant's claim to ownership of the property in question. They alleged that the registration of title was marred by fraud. They denied that the appellant had a legal and enforceable right to claim their eviction from the property in question.

On 20 November 2015, the parties jointly filed a special case with the registrar of the High Court.

A hearing for the determination of the Special Case was convened before a judge on 3 February 2017.

The Special Case was not heard or determined.

The respondents filed a chamber application for directions, which was heard on 22 February 2017.

On 29 November 2017, the court issued a judgment in which it ordered as follows:

“1. Case Number HC2741/14 shall proceed to hearing as a stated case, subject to the directions given in paras 2 to 7 of this order.

2. The applicants be and are hereby granted leave to lead evidence at the hearing of the stated case to deal with facts relevant to the central issue of the existence or otherwise of valid title for the purposes of the action of rei vindicatio.

3. The applicants shall have the duty to begin.

4. The respondent shall, if it so wishes, be entitled to lead evidence in rebuttal.

5. The respondent shall, if it elects to lead evidence in rebuttal, file a detailed statement of the evidence intended to be led, the witnesses to be called, and a bound and paginated bundle of documents, if any, upon which reliance will be placed. This paragraph shall be complied with at least five clear court days prior to the set down date of the special case.

6. The parties shall address the court on the factual and legal issues involved as provided for by the rules and practice of this court relating to closing submissions at the close of an action.

7. No order as to costs.”

The appellant was aggrieved by the grant of the order aforementioned, and, with the leave of the High Court, has noted an appeal on the following grounds:

“1. The court a quo erred in not coming to the conclusion that the only application for directions made was one made orally and a fortiori invalidly made and stood to be dismissed on that basis.

2. The court a quo erred in coming to the conclusion that a stated case could have its character changed pursuant to the application for directions, however made, and so erred in failing to consider the true nature of the written application belatedly placed before it.

3. The court a quo erred further in coming to the conclusion that any cause existed for respondents to depart from the stated case and so erred in concluding that it had a discretion over the matter.

4. The court a quo erred in directing that the trial proceeds in terms of a course which is unavailable at law and is inconsistent with the nature of a stated case.

5. The court a quo erred at any rate in concluding that there was a dispute of fact and that the respondents had raised a defence worth interrogating in a trial cause.”

ISSUES FOR DETERMINATION

Although the appellant has set out five grounds, only three issues arise;

(i) First, whether or not an oral application for directions was made and considered by the court;

(ii) Secondly, whether or not the court ought to have declined to hear the chamber application as not being properly before it; and

(iii) Last, whether the court a quo misdirected itself in granting the order for directions which was in direct contradiction of the Stated Case.

I will proceed to consider each of the issues ad seriatim....,.

Although the fact of title being in the appellant's name was admitted, there was an issue as to the legality of that title, with an allegation of fraud attaching to such registration.

The main issue for determination by the court was whether or not ownership of the immovable property was in dispute.

This has to be considered against a statement on the agreed facts to the effect that the defendants primary defence to the rei vindicatio was an allegation that the plaintiff's ownership of the property was tainted with fraud and irregularity, which the plaintiff disputed and believed to be irrelevant in the determination of the matter....,.

WHETHER THE COURT MISDIRECTED ITSELF IN GRANTING THE ORDER FOR DIRECTIONS

A Stated Case, or Special Case, is provided for in the rules of court, High Court Rules 1971. Order 29 of the Rules is pertinent and provides:

“ORDER 29

SPECIAL CASES

199 Special case by consent

(1) The parties to a civil action or suit may, after summons has been issued, concur, in a statement, of the questions of law arising therein in the form of a special case for the opinion of the court.

(2) Every such special case shall be divided into paragraphs numbered consecutively, and shall concisely state such facts and documents as may be necessary to enable the court to decide the questions raised thereby.

(3) Upon the argument of such case, the court and the parties shall be at liberty to refer to the whole contents of such documents, and the court shall be at liberty to draw from the facts and documents stated in any such special case any inference, whether of fact or law, which might have been drawn therefrom if proved at a trial.

200 Special case by order before trial

If it appears to the court that there is, in any cause or matter, a question of law which it would be convenient to have decided before any evidence is given or any question or issue of fact is tried, the court may make an order accordingly and may direct such question of law to be raised for the opinion of the court, either by special case or in such other manner as the court may deem expedient, and all such further proceedings as the decision of such question of law may render unnecessary may thereupon be stayed.

201 Special case to be typewritten, etc.

Every special case shall be typewritten or printed by the plaintiff and signed by the several parties or their counsel, and shall be filed by the plaintiff. If the registrar so requests, one or more copies of the special case shall be filed for the use of the court.

202 Special case affecting person under disability

If a minor, or person of unsound mind, is a party to such proceedings, the court may, before determining the questions of law in dispute, require proof that the statements in such special case, so far as concerns the minor or person of unsound mind, are true.

203 Judgment and directions regarding other issues

When giving its decision upon any question in terms of this Order, the court may give such judgment as may upon such decision be appropriate and may give any direction with regard to the hearing of any other issues in the proceedings which may be necessary for the final disposal thereof.

204 Judgment without hearing evidence

If the question in dispute is one of law, and the parties are agreed upon the facts, the facts may be admitted and recorded at the trial and the court may give judgment without hearing any evidence.”

The procedure provided for in the above Rules is available to parties to a civil dispute.

The parties must agree on the undisputed facts. The provisions are available when there is no dispute on the facts. It is meant for situations where only questions of law are in contention.

The uniform rules of South Africa contain provisions that are substantially similar to our own.

In Bane v D'Ambrisio 2010 (2) SA 539 (SCA), the court had to consider what meaning was to be ascribed to the phrase 'stated case'. At 543E-G, the court remarked:

“Rules 33(1) and 33(2) make it clear that the resolution of a stated case proceeds upon the basis of a statement of agreed facts. It is, after all, seen as a means of disposing of a case without the necessity of leading evidence. The case drafted by the parties, with both of them reserving their positions with regard to the factual assumptions, was plainly contrary to the basic object of the rule and the procedure of asking the court to rule on issues thus defined was tantamount to asking the court to give advice on possibly abstract questions.”

It is trite that a statement in a Special Case must set forth the facts agreed upon, the question of law surrounding the dispute, and the issue for determination by the court.

In this jurisdiction, the locus classicus on the requisites of a Stated Case is Kunonga v The Church of Central Africa SC25-17, GARWE JA set out the requisites to be the following:

“WHAT IS A STATED CASE?

[14] The rules of court of most countries make provision for the reference of a matter as a stated case.

But, what is a stated case?

It is a case that is brought upon the agreement of the parties who submit a statement of undisputed facts to the court but who take adversarial positions as to the legal ramifications of the facts, thereby requiring a judge to decide the question of law presented (Legal dictionary. The free dictionary.com).

Put another way, it is a formal written statement of the facts in a case, which is submitted to the court by the parties, jointly, so that a decision may be rendered without trial. The facts being thus ascertained, it is left for the court to decide the question of law presented.

A stated case is also called a special case, an amicable action, a case agreed, or a friendly suit (US Legal, Inc.).

[15] In the case of Elizabeth Mambus v Motor Vehicle Accident Fund, Case No. SA 4/2013, a majority decision of the Supreme Court of Namibia, handed down on 11 February 2015, the court noted:

'…, the intention is that the stated case will adjudicate the whole of the dispute as stated in the case that exists between the parties and that this is ideally done by setting out the facts agreed to, the questions of law in dispute, and the contentions of the parties. The parties may also require a court to decide an issue of law on the basis of alleged facts as if agreed.'

[16] The court further cited with approval remarks made by the Irish Supreme Court in Simon McGinley v The Deciding Officer – Criminal Assets Bureau [2001] IESC 49 that:

'The case should set out clearly the judge's findings of fact, and should also set out any inferences or conclusions of fact which he drew from those findings.

What is required in the case stated is a finding by the Judge of the facts and not a recital of the evidence. Except for the purpose of elucidating the findings of fact, it will rarely be necessary to set out any evidence in the case stated save in the one type of case where the question of law intended to be submitted is whether there was evidence before the Judge which would justify him deciding as he did…,. This court should not be required to go outside the case to some other document in order to discover them.

The same principle applies to the contention of the parties, the inferences to be drawn from the primary facts, and the Tribunal's determination. All these must be found within the case - not in documents annexed…,.'

[17] Once the facts are agreed, the court should proceed to determine the particular question of law that arises and not delve into the correctness or otherwise of the facts. It is bound to take those facts as correctly representing the agreed position and to thereafter determine any issues of law that may arise therefrom.

It is not open to the parties to the stated case to seek to re-open the agreed factual position or to contradict such position. Nor can either party seek to ignore existing legal principles or findings of fact made in connection with the same matter by another court.

Of course, either party has a remedy, at common law, to withdraw any concession made in a stated case owing to justus error, fraud, mistake, or any other valid ground.

[18] It has become necessary to restate what a stated case is owing to the fact that in some instances, the appellant, in this case, has made submissions contrary to the stated case brought before the court. The appellant has also ignored, in part, the decision of this Court on which the stated case is predicated.

It bears stating, that, if this happens, a party will be kept strictly to the terms of the agreed facts, as it is on the basis of those facts that the court would have been invited to make a determination on some specific question of law.”

The court a quo relied on Kunonga v The Church of Central Africa SC25-17 in deciding whether or not to grant the application for directions. The learned judge reasoned as follows:

“What, in essence, this Court is being asked to determine is if it can resolve the dispute between the parties based on the stated case.

Para 1.1 of the stated case states that the respondent is the registered owner of the property. In para 1.4 of the special case, the parties recognize that the applicants primary defense to the rei vindicatio is that plaintiff's ownership of the property is tainted with fraud and illegality.

The parties recognize that the applicants have a defence to the claim having filed a challenge to the respondent's title. An attempt to settle the matter failed after the withdrawal of a deed of settlement. The claim has since been re-instituted.

It is not surprising that the stated case has attracted so much controversy. The stated case states two mutually exclusive situations, one of which cannot be correct.

The statement that the plaintiff is the registered owner of the property cannot be accepted on the face of it especially in the face of indications to the contrary in the stated case.

The presumption of ownership can only be rebutted by evidence….,.

Mention is made of a fraudulent power of attorney used to support the transfer.

The stated case records that the respondent disputes the allegations of fraud. The stated case discloses a material dispute of fact over ownership of the property between the parties that cannot be resolved on the papers. The fact that the parties previously agreed that the matter should be dealt with as a special case, in a case where there are glaring material disputes of fact that require to be ventilated at a trial, has no effect of binding the court to such an arrangement.

Resort to the special case procedure for the relief of a rei vindicatio, in the face of the disputes existent on the papers, is inappropriate.

Where a special case discloses substantial disputes of fact, the court cannot simply rubber stamp it and accede to insistence on dealing with the case as a special case because the parties agreed on a statement of agreed facts.

Whenever a material dispute of fact appears on the face of a stated case, which cannot be resolved on the papers filed, that dispute will require full ventilation.

The applicants raise a defense of claim of right.

An allegation of fraud cannot be proved in the absence of the documents allegedly used to commit the fraud. The best course to take is to allow the applicants to call evidence to substantiate their claim of fraud. I am not persuaded by the respondent's argument that the defendants are bound by the stated case.

The stated case does not clearly or correctly articulate the issues to be dealt with.

An issue arises regarding whether the respondent acquired valid title from the applicants. What the parties ought to have done is to request the court to determine who the owner of the property is, hence asking the court to determine the issue of ownership. Instead, the court was asked to determine, “whether or not ownership of the immovable property is in dispute.”

What the court is being asked to do is just to make a declaration regarding the existence of a dispute over the property.

If the court determines that ownership is in dispute - then what? That determination does not dispose of the dispute between the parties.

The court ought to have been asked to resolve the real dispute between the parties.

The issue could have been worded along the following lines: 'whether the respondent acquired valid title from the applicants.' That is the issue disclosed by the agreed facts. This way, the trial court is equipped to make a determination over the ownership of the property and dispose of the dispute.”

The Special Case in casu was set out as follows:

“WHEREAS the plaintiff issued summons and declaration against the two defendants under case number HC2741/14 seeking a rei vindication order against the said defendants, together with costs of suit;

AND WHEREAS the said defendants having been served with the summons, defended the proceedings and filed their Plea of record on 27 June 2014;

AND WHEREAS the plaintiff filed its replication to the said plea;

AND WHEREAS the matter proceeded to a pre-trial conference before the Honourable Mrs Justice Matanda-Moyo;

AND WHEREAS at the pretrial conference the parties agree to proceed by way of a special case;

NOW THEREFORE it is stated that:

1. THE AGREED FACTS

1.1 Plaintiff is the registered owner of the property in dispute, that is, Lot 1 of Stand 21A Oval Park Township measuring 5653 square metres, otherwise known as No.69 Glenara Avenue, Highlands, Harare.

1.2 The defendants had filed a suit, under HC5960/13, challenging, inter alia, the plaintiff's title to the above-named property.

1.3 On 16th March 2015, a Deed of Settlement was executed under 5960/13 in terms of which defendants withdrew their claim against, among others, the plaintiff in respect of the abovenamed property. Find attached as annexure “A” a copy of the Deed of Settlement presented at the pre-trial conference.

1.4 Defendants primary defence to plaintiff's rei vindication is the allegation that the plaintiff's ownership of the property is tainted with fraud and illegality, which the plaintiff disputes and believes is of no relevance to its claim for rei vindicatio.

2. ISSUES FOR DETERMINATION

The parties set out the issues for determination in this matter as follows:

2.1 Whether or not the ownership of the immovable property in issue is in dispute.

2.2 Whether or not, therefore, the plaintiff is entitled to a rei vindicatio order.

3. HEADS OF ARGUMENT

The Parties Counsel agreed and undertook to file heads of argument in respect of their positions on the facts as set out above as follows:

3.1 The plaintiff's heads of argument shall be filed on or before 20 November 2015;

3.2 The defendants heads of argument shall be filed on or before 25 November 2015.”

A Stated Case must set out the facts as agreed by the parties. The facts must not be in contention nor should a material dispute of fact be manifest on the statement constituting the agreed facts.

In this case, the registration of title in the appellant's name is admitted.

The causa for the registration of title and how it came to be is challenged by the respondents ex facie the “agreed facts”. They allege fraud on the part of the appellant and suggest that they wish to defend the action on the premise that the registration of title was illegal.

The definition of a Special Case was spelt out in the South African case of National Union of Mineworkers v Hartebeestfon 1986 (3) SA 53 (AD)…, as follows:

“…,. In none of them is 'special case' defined, presumably because the expression has an accepted meaning. MOZLEY and WHITELY's Law Dictionary, 7th ed says sv 'special case' that it is:

“1. A statement of facts agreed to on behalf of two or more litigant parties, and submitted for the opinion of a court of justice as to the law bearing upon the facts so stated.”

STROUD's Judicial Dictionary 4th ed states that:

“A special case is a written statement of the facts in a litigation, agreed to by the parties, so that the court may decide these questions according to law…,. It is also known as a case stated.”…,.

It is, therefore, implicit in the expression 'in the form of a special case' that there should be a statement of the facts agreed by the parties.”

The appellant has suggested that the procedure “created by the court a quo is unknown at law and cannot produce valid proceedings.” It has sought reliance for that contention on Matanhire v BP Shell Marketing 2005 (1) ZLR 140 (S)…,.

I am unable to agree and I conclude that the reliance on Matanhire v B P Shell Marketing 2005 (1) ZLR 140 (S) in this context is misplaced.

The ratio in Matanhire v BP Shell Marketing 2005 (1) ZLR 140 (S) is to the effect that an application for directions can only be made by a court in respect of a matter that was pending before the court.

In this case, there was a claim for a rei vindicatio pending before the court and the court could entertain an application for directions.

The Rules permit the giving of directions and it is trite that the High Court can do anything except that which the law expressly forbids it to do.

In this case, the Rules permit the court to give directions and that is precisely what the court did.

In this case, however, there is no Statement of Agreed Facts.

The parties have set out their respective positions, with the respondents postulating a defence to the claim for rei vindicatio. The respondents challenged the validity of the appellant's title on allegations of fraud in the registration thereof.

What the parties filed did not comply with the requirements of a Special Case, and, given what the parties themselves set out on the 'Stated Case', I cannot conclude that the learned judge in the court a quo misdirected herself in finding, as she did, that there were material disputes of fact requiring the adduction of evidence.

Evident from the 'stated case' as formulated by the parties was a clear dispute on the facts.

The order gives the respondents leave to deal with facts relevant to the central issue of the existence or otherwise of valid title for seeking relief under rei vindicatio. The onus to begin is placed on the respondents and the appellant is afforded a right to rebut any evidence led by the respondents.

No one can be in doubt that these are the issues for determination - even under the stated case itself.

The issues as recorded by the parties are:

(a) Whether or not the ownership of the immovable property in issue is in dispute; and

(b) Whether or not the plaintiff was entitled to an order for a rei vindicatio.

It was the parties who were responsible for drafting the case and issues for determination. It was not the court.

It seems to me, that, the manner of pleading adopted by the parties has resulted in the adoption of a procedure that the pleadings did not support.

If the title to the property was not in issue, it should therefore not have been placed before the court for adjudication. The fact that it was so placed, and that upon a consideration of the pleading themselves, the court was of the view that it could not resolve the matter on the papers as a material dispute of fact was evident on title, cannot be blamed on the court.

The respondents, on the papers, raised a defence to the claim.

The court was duty-bound to consider the defence. It could not do so based on a supposed Stated Case.

The issue of how the appellant acquired its title was pertinent to the disposition of the dispute. The court could not, and is not expected to turn a blind eye to allegations of fraud or illegality. It realized that there were real issues the determination of which required that the parties adduce oral evidence.

There was a clear contradiction in terms of what the appellant's case was and what the respondents case was. The court exercised its discretion, and there is no allegation that such exercise was injudicious or capricious.

The matter was therefore not properly before the court and ought not to have been referred for determination as a Stated Case.

The appellant suggests, that, the court a quo erred in holding that the Stated Case could be maintained but that the parties could give evidence on the question of the registration of title.

I think this contention has merit.

Once the court a quo concluded that there were material disputes of fact on the 'stated case' the complexion of the matter was altered.

The claim for a rei vindicatio was premised on the appellant's title which was being challenged by the respondents. The challenge to the appellant's title, as a consequence, raised the appellant's right to claim eviction as an issue.

This was the only issue for determination between the parties. As a result, there was no Stated Case for adjudication.

Even if the court was inclined to entertain the application for directions, once it concluded that there were material disputes of fact, it ought to have given directions in which it ordered the matter back to a pre-trial conference for the settling of issues for trial purposes. This, in my view, would allow the parties to properly consider their respective positions vis-a-vis the dispute to ensure that all issues pertinent to the determination of the matter are placed before the court.

Counsel for the respondents submits that the Rules give the court the discretion on how to direct the case to be heard.

I accept as correct the contention by the respondents on this point.

Rule 154 provides, that, upon hearing the application, the judge shall, “as far as practicable, make such order as may be just to any matters in respect of which directions were asked.”

In my view, the Rules give the judge the discretion to make such order as may result in the matter being dealt with to achieve justice between the parties.

I did not understand the appellant to suggest that the court lacks the discretion to make an order for directions on the hearing of the matter. What the appellant suggested was that the order for directions was not one that the court is legally permitted to give.

However, in the instant case, there was no Stated Case to determine, and, to the extent that the court a quo continued to deal with the matter as if it was a stated or special case, there was a gross misdirection on the part of the court.

This is a misdirection that impacts upon the substance of the order issued by the court a quo.

It was the wrong order in view of the fact that there was no Stated Case. It was thus a procedural irregularity warranting interference by this court.

In my view, this is a proper case for this court to invoke its powers of review as provided in the Supreme Court Act [Chapter 7: 13], which provides as follows in relevant part:

“25 Review powers

(1) Subject to this section, the Supreme Court, and every judge of the Supreme Court, shall have the same power, jurisdiction, and authority as are vested in the High Court and judges of the High Court, respectively, to review the proceedings and decisions of inferior courts of justice, tribunals, and administrative authorities.

(2) The power, jurisdiction, and authority conferred by subs (1) may be exercised whenever it comes to the notice of the Supreme Court, or a judge of the Supreme Court, that an irregularity has occurred in any proceedings or in the making of any decision notwithstanding that such proceedings are, or such decision is not the subject of an appeal or application to the Supreme Court.

(3) Nothing in this section shall be construed as conferring upon any person any right to institute any review in the first instance before the Supreme Court, or a judge of the Supreme Court, and provision may be made in rules of court, and a judge of the Supreme Court may give directions, specifying that any class of review or any particular review shall be instituted before or shall be referred or remitted to the High Court for determination.”

Notwithstanding the fact that the appellant has not attacked the court a quo, in deciding to entertain the parties herein in what was purportedly a Stated Case which ex-facie the pleadings raised material disputes of fact, the judgment of the court a quo cannot stand. It must be set aside on the basis that it was irregular.

In my view, the court did misdirect itself in ordering that the matter should proceed as a Stated Case.

Once it found that there were material disputes of fact on the so-called Stated Case, it should have referred the matter to trial....,.

However, because of the irregularity that ensued when the court dealt with the matter as a stated case in the light of the material disputes of fact ex facie the alleged stated case, the order of the court cannot stand and must be set aside.

In the result, it is ordered as follows:

1. The appeal is allowed in relation to the fourth ground only.

2. In the exercise of review powers vested in the court, in terms of section 25 of the Supreme Court Act [Chapter 7:13], the order of the court is set aside in its entirety.

3....,.

4. The matter is remitted to the court a quo for the setting up of a pre-trial conference before a judge in chambers.

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

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

FACTUAL BACKGROUND

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

ISSUES FOR DETERMINATION

Three issues arise for determination, being;

1. Whether or not the court a quo correctly found that there were no material disputes of fact.

2. Whether or not the court a quo correctly found that the Regional, Town and Country Planning Act did not apply in the present circumstances; and

3. Whether or not the court a quo erred in invalidating the agreement of sale between the appellant and second respondent; the appointment of the executor dative; and, subsequently, the purported transfer of the property into the appellant's name....,.

Counsel for the appellant argued that there were material disputes of fact which could not be resolved on the papers.

In that light, he moved that the appeal be allowed and that the matter be referred for trial....,.

1. Whether or not the court a quo correctly found that there were no material disputes of fact

The appellant, in his first ground of appeal, averred that the court a quo erred in failing to appreciate and make a finding that there were material disputes of fact regarding the validity of the agreements of sale between the appellant and the first respondent, and, consequently, the deeds of transfer, which disputes could not be resolved on the papers.

A material dispute of fact arises where a party denies material allegations made by the other and produces positive evidence to the contrary. Generally, in considering whether or not there is a material dispute of fact, the court is enjoined to adopt a robust, common sense approach to such defences when raised by litigants.

In Soffiantini v Mould 1956 (4) SA 150 (E), the court made the following pertinent comments:

“If, by a mere denial in general terms, a respondent can defeat or delay an applicant who comes to court on [application], then [application] proceedings are worthless, for a respondent can always defeat or delay a petition by such a device. It is necessary to make a robust, common-sense approach to a dispute on [application] as otherwise the effective functioning of the court can be hamstrung and circumvented by the most simple and blatant stratagem. The court must not hesitate to decide an issue of fact on affidavit merely because it may be difficult to do so. Justice can be defeated, or seriously impeded and delayed, by an over-fastidious approach to dispute raised in affidavit.”

In Muzanenhamo v Officer in Charge CID Law and Order and Others 2013 (2) ZLR 604 (S)…, PATEL JA aptly stated, inter alia, that -

“As a general rule, in motion proceedings, the courts are enjoined to take a robust and common sense approach to disputes of fact and to resolve the issues at hand despite the apparent conflict. The prime consideration is the possibility of deciding the matter on the papers without causing injustice to either party….,.

The first enquiry is to ascertain whether or not there is a real dispute of fact.

As was observed by MAKARAU JP (as she then was) in Supa Plant Investments (Pvt) Ltd v Chidavaenzi 2009 (2) ZLR 132 (H) at 136F-G:

'A material dispute of facts arises when material facts alleged by the applicant are disputed and traversed by the respondent in such a manner as to leave the court with no ready answer to the dispute between the parties in the absence of further evidence.'

In this regard, the mere allegation of a possible dispute of fact is not conclusive of its existence….,.

The respondent's defence must be set out in clear and cogent detail. A bare denial of the applicant's material averments does not suffice. The opposing papers must show a bona fide dispute of fact incapable of resolution without viva voce evidence having been heard: see the Room Hire Co. case, supra, at 1165, cited with approval in Vittareal Flats (Pvt) Ltd v Undenge & Others 2005 (2) ZLR 176 (H) at 180C-D; Van Niekerk v Van Niekerk & Others 1999 (1) ZLR 421 (S) at 428F-G.”…,.

Where there is a material dispute of fact, the court may dismiss the application; order oral evidence; or refer the matter to trial with such orders as to pleadings as it sees fit.

Upon a consideration of the alleged disputes of fact, I am of the view that the court a quo did take cognizance of the fact that the issue of the validity of the agreements of sale could be resolved without resorting to trial.

The appellant did not show that the issue was incapable of resolution on the papers.

The first respondent's papers were clear and concise.

He entered an agreement of sale with the executrix testamentary in 1999. The executrix received her Letters of Administration in 1998 and obtained authority to sell in 2006, and, thereafter, in April 2007, transfer of the property was effected. That the first respondent's transfer papers were lodged and signed for by the Registrar of Deeds, in April 2007, is without doubt.

The executrix, as the lawful representative of the estate, had the right to authorise transfer to the first respondent when she did so.

On the other hand, the appellant's registration papers were only effected in July 2007.

Section 10 of the Deeds Registries Act [Chapter 20:05] provides that:

“10 When registration takes place

(1) Deeds executed or attested by a registrar shall be deemed to be registered upon the affixing of the registrar's signature thereto:

Provided that no such deed which is one of a batch of interdependent deeds, intended for registration together, shall be deemed to be registered until all the deeds of the batch have been signed by the registrar.

(2) If, by inadvertence, the registrar's signature has not been affixed to a deed at the time at which the signature should have been affixed in the ordinary course, the registrar may affix his signature thereto when the omission is discovered, and the deed shall thereupon be deemed to have been registered at the time at which the signature should have been affixed.

(3) All endorsements or entries made on title deeds or in registers in connexion with the registration of any deed executed or attested by a registrar shall be deemed to have been effected simultaneously with the registration of such deed, although in fact they may have been made subsequent thereto.”…,.

By virtue of this section, the first respondent's title was deemed to have been registered on 2 April 2007 under transfer number 1597/2007 when the registrar affixed his signature.

Section 11 of the Deeds Registries Act further provides for deeds to follow sequence of their relative causes in these words:

“(1) Save as otherwise provided in this Act or as directed by the court —

(a) Transfers of land and cessions of real rights therein shall follow the sequence of the successive transactions in pursuance of which they are made, and, if made in pursuance of testamentary disposition or intestate succession, they shall follow the sequence in which the right to ownership or other real right in the land accrued to the persons successively becoming vested with such right;

(b) It shall not be lawful to depart from any such sequence in recording in any deeds registry any change in the ownership in such land or of such real right unless the registrar is satisfied that the circumstances are exceptional and has consented to such departure:”…,.

From the foregoing, it was clear that the first respondent's registration of title preceded the appellant's.

There was nothing unclear about the first respondent's case in this regard.

It was the appellant's case that left one with more questions than answers.

He had purportedly bought the property from an heir who had no legal right to deal with the property and the appellant's agent was appointed executor dative, upon his own solicitation, when the executrix testamentary was still in office.

He then had proceeded to effect transfer of the property three months after the first respondent had filed his transfer papers and the Registrar had acknowledged their receipt by affixing his signature thereto thus complying with section 10 of the Deeds Registries Act.

The fact that the appellant's papers were inexplicably finalized first by the fourth respondent does not detract from the sequence of the lodging of the papers.

In his papers, the appellant had not proffered any reasonable explanation to that course of events.

Unfortunately for the appellant, sections 10 and 11 of the Deeds Registries Act protected the first respondent's position as the Registrar had affixed his signature on 2 April 2007.

It was clear, that, with regard to the agreements of sale, there was no real dispute as to their sequence and parties thereto. The agreements of sale had similar suspensive conditions acknowledging the state of the sub-division.

The first respondent's agreement of sale was entered into with the executrix testamentary as the legal representative of the deceased's estate. The appellant's agreement of sale, on the other hand, was entered into with an heir who had no authority to deal in the property to the exclusion of the executrix.

In the circumstances, the appellant's request to have the matter referred to trial was only a delaying tactic hence it was not granted.

In my view, there were no real material disputes of fact. The real issues between the parties were capable of resolution on the papers without the calling of viva voce evidence or referring the matter to trial. There was thus no misdirection in this regard.

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

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

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

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

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

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

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

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

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

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

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

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

INTERIM RELIEF:

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

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

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

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

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

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

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

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

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

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

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

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

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

He also contends that when the second respondent sold the property (to the first respondent) he knew that it had already been sold to the applicant as he had co-signed the agreement of sale between the applicant and the executrix testamentary.

It is also contended by the applicant that the fourth respondent registered the property into the name of the first respondent without checking his register.

Furthermore, the fifth respondent, who was the conveyancer of the property into the first respondent's name, did not conduct any checks as to title to the property before drafting and lodging conveyancing papers with the Deeds Registry. If he had exercised care he would have discovered that the immovable property belonged to the applicant as it had already been registered into the applicant's name more than two months earlier.

The applicant further contends, that, the position stated by the executrix testamentary, in the letter of 1 September 2007, is the correct position at law.

The letter raised with the sixth respondent the invalidity of the appointment of the executor dative as it was done when the executrix testamentary had not been removed from the office by a competent court or judge.

The contention then was that the sixth respondent acted without authority when he appointed the third respondent as executor dative and consequently all acts done by the executor dative in relation to the transfer of the property is of no force or effect.

The property was thus illegally transferred into the name of the first respondent.

He also contends, that, the third respondent ought to have known that the sale by the second respondent to Tsungirai Musenha and the first respondent was defective.

It is the applicant's contention that there is sufficient justification for this court to grant him the relief that he seeks.

The respondents, on the other hand, contend that the application ought not to succeed for various reasons.

Firstly, that the applicant is alleging fraud on the part of the persons who prepared and authored the documents which are being challenged and that such persons would need to be cross-examined in trial proceedings.

They contend, secondly, that there are disputes of fact which cannot be resolved on the papers, such disputes being in relation to how two agreements of sale could have been concluded for the same property with the fourth respondent. These issues, it is contended, cannot be adequately addressed in affidavits.

The third reason stated is that the applicant has not challenged or caused the suspension of the “compellation orders authorising transfer of the property in issue emanating from Case No.1206/06 granted by the Magistrates Court.”

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

The fourth reason stated is that the applicant has no real rights over Stand 382 Good Hope Township of sub-division B of Good Hope and that the Registrar of Deeds has confirmed, by letter, that the property belongs to the first respondent.

It is contended, that, the applicant's supposed title deed is not a valid title deed and does not confer any rights on him. Consequently, the applicant cannot challenge the registration of a property which he does not own. They contend that there is no double registration of the immovable property in issue.

The fifth reason stated is that the applicant's purported agreement of sale, dated 1999, with the executrix testamentary, is invalid because the executrix testamentary did not then have authority from the sixth respondent to sell the property, such authority only having been granted by the sixth respondent on 27 February 2006.

The applicant has, in any event, sued the wrong party as he should sue the estate from which his rights emanate in terms of the agreement of sale.

Finally, it is stated that the relief prayed for by the applicant is impracticable and unprocedural as he may not sue to remove an executor or challenge the Master's decision in these proceedings.

In addition to the above, the first respondent states that he has been in occupation of the property since July 1998 and has built a two bed-roomed house thereon. He has also been paying all utility bills and rates. Even before transfer of the property to him, he used to pay the bills.

The first respondent also says, that, at the time of the alleged sale to the applicant, he was already in occupation of the property, and, if the applicant had been diligent, he could easily have found that out.

Furthermore, the second respondent could sell the property to him as he was the beneficiary and he had full authority to do so.

The respondents thus contend that the application should be dismissed with costs on the higher scale.

The papers before this court reveal the following:

The agreement of sale in terms of which the applicant purchased the property in issue was executed in 1999. The seller of the property in terms of that agreement, being the estate late Johanna Maria Fransisca Logan, was represented therein by the executrix testamentary of the estate.

The executrix testamentary was granted authority, in terms of section 120 of the Administration of Estates Act [Chapter 6:01] to sell the property otherwise than by public auction. The date of issue of such authority is unclear as the only discernible part reads “2005”.

The papers also show, that, on 29 November 2006, Letters of Administration were issued by the sixth respondent in terms of which the third respondent was appointed as the executor dative of the same estate and an endorsement was made therein that the Letters were issued for the sole purpose of effecting transfer of the same property to the first respondent.

It is also shown. by the papers, that there are two Deeds of Transfer in favour of the applicant and the first respondent, respectively, in respect of the same property, being Stand 382 Good Hope Township of Subdivision B of Good Hope.

The only difference between the two Deeds appears to be in relation to the extent of the property.

Deed of Transfer 1597/2007, in favour of the applicant, records the extent of the property as 1,998 square meters whilst Deed of Transfer 4079/2007, in favour of the first respondent, records the extent of the property as 2,200 square metres.

It is a fact borne out by the papers, therefore, that there are two deeds of transfer in favour of two different persons in respect of the same property.

The first respondent has sought to rely, inter alia, on the letter written on 3 April 2008 by the Assistant Registrar of Deeds addressed to the third respondent and which reads, in part:

“Ref: Deed Number 1597/2007 and 4079/2007

Reference is made to your letter dated 28 March 2008 where you wanted this office to clarify the position of Deed of Transfer 1597/2007 and 4079/2007. (sic)

Our investigation has shown that both deeds refer to Stand 382 Good Hope Township of Subdivision B of Good Hope. There are two records in our database. One in the name of David Katerere, under transfer p11…, 1597/2007, dated 2 April 2007, and the other in names of Cosma Chianwa, under transfer 4079/2007, dated 4/7/2007. (sic)

On further investigation, we noted that Deed of Transfer 4079/2007 was deducted first at the surveyor General's office and 1597/2007 was rejected because the Stand was already registered.

It is not clear why deed 4079/2007 was deducted first at the Surveyor General. But, this is not unusual since work is allocated to various examiners whose performances differ. What it now means is that Deed 4079/2007 has completed all the processes while transfer 1597/2007 has not, making it invalid. (sic)

However, ownership of the property and cancellation of invalid deed has to be done by the courts in line with section 8 of the Deeds Registries Act [Cap 20:05].”

At the hearing of this matter, counsel for the applicant submitted, that, the appointment of the executor dative was for the sole purpose of transferring Stand 412 into Tsungirai Musenha's name.

He submitted, that, it was not clear how Stand 382 was transferred into the first respondent's name without Letters of Administration having been issued for that purpose.

He submitted that the Letters of Administration, in relation to Stand 382, were issued to the agent of the executrix testamentary and the third respondent was not such an agent: yet, the transfer of Stand 382 into the first respondent's name was based, inter alia, on the papers prepared and signed by the third respondent as executor dative and the fifth respondent as conveyancer.

This, he submitted, must be viewed in conjunction with the fact that the fourth respondent registered the property into the first respondent's name notwithstanding the fact that the applicant's name appeared on the register as the registered owner of that property.

At p89 of the papers appears the Letters appointing the third respondent as executor dative of the estate and for the sole purpose of transferring Stand 382 into the first respondent's name.

It was also submitted that the letter written by the Registrar of Deeds, indicating that the applicant's Deed is invalid, ought not to be admitted as evidence as the Registrar is one of the respondents and cannot be viewed as being entirely objective.

Furthermore, that, in any event, declaring a Deed invalid is the prerogative of the court and the Registrar was thus usurping the court's power when he wrote the letter.

Regarding the case of X-Trend-A-Home (Pvt) Ltd v Hoselaw Investments (Pvt) Ltd 2000 (2) ZLR 348 (S) which was cited in the respondents heads of argument, counsel for the applicant submitted that what is prohibited by law is an agreement for the transfer of ownership before the granting of a subdivision permit.

He submitted that such agreement is not proscribed by the Deeds Registries Act and that the Regional, Town and Country Planning Act has no relevance in matters of registration of title as title does not flow from the agreement but is a product of the powers conferred on the Registrar of Deeds and is regulated by the Deeds Registries Act.

The provisions of the Deeds Registries Act are not affected by the Regional, Town and Country Planning Act.

Counsel for the applicant submitted that section 5(b) of the Deeds Registries Act requires the Registrar to examine all deeds or other documents submitted to him for execution or registration, and after examination reject any such deed or other such document the execution or registration of which is not permitted by this Act or by other law, or to the execution or registration of which any other valid objection exists.

He submitted that there is no requirement in this provision for the contract of sale of a piece of land to be submitted to the Registrar together with the Deed for examination. Neither does it require the Registrar not to register transfer of a property the sale agreement of which contains a suspensive condition.

He submitted that the Deeds Registries Act does not require the Registrar to do so, and the registrar should not concern himself with the agreement of sale as it is not his duty to do so.

It was further submitted, that, in any event, there is no counter-application before this court for the setting aside of the Deed of Transfer registered in favour of the applicant. This, it was submitted, must be taken as an indication that the first respondent knew or must have known that his title was defective.

It was also counsel for the applicant's submission that the only question that this court must concern itself with is; whose property is Stand 382?

He submitted that the answer to this question is to be found in section 10 of the Deeds Registries Act which provides that once real rights have been registered in a person's name he shall be deemed to be the owner of the property.

He submitted that the use of the word “deemed” in the said section gives room for any party to challenge the ownership conferred on the person registered in the Deeds Registries office.

Furthermore, that, in casu, the first respondent has opted to use a shield instead of an offensive weapon as he has resorted to merely defending himself without seeking to assert his own title.

He also submitted, that, in terms of section 11 of the Deeds Registries Act transfers of land should follow the sequence of registration. Thus, whenever ownership is being changed, the registered owner must first divest himself of the ownership of the property, or the court should divest him of it, and then declare as owner the person who has challenged such title.

On this basis, it was submitted, it is very clear that the first respondent's Deed is unlawful and therefore null and void as his registration as owner was subsequent to that of the applicant, over the same property.

It was submitted, that, this is sufficient justification for this court to declare the registration of the first respondent as owner to be null and void.

It was submitted that while the transfer to the first respondent purported to be transfer from the estate of the late Joanna Maria Fransisca Campbell-Logan, the property was, at the time, no longer a part of the deceased estate because it had already been transferred to the applicant.

Furthermore, section 11(1)(b) of the Deeds Registries Act provides that it shall not be lawful to depart from any such sequence in recording in any Deeds registry any change in the ownership in such land or of such real right unless the Registrar is satisfied that the circumstances are exceptional and has consented to such departure.

Counsel for the applicant's final submission was that the property was sold by the heir, that is, the second respondent, at a time when the property had not yet resided in the heir and thus he had no power whatsoever to deal with the property as he did.

He submitted that while the sale of another person's property is not unlawful, transfer or delivery of that property is unlawful and is null and void.

Counsel for the first, third, and fifth respondents, on the other hand, made submissions to the following effect:

The submissions by counsel for the applicant, about the inapplicability of the Regional, Town and Country Planning Act have already been considered and rejected by the Supreme Court in X-Trend-A-Home (Pvt) Ltd v Hoselaw Investments (Pvt) Ltd 2000 (2) ZLR 348 (S).

In casu, on Deed of Transfer 1597/07, the causa is given as a sale. He also highlighted that both the Deeds Registries Act and the regulations made in terms thereof require that each deed of transfer must, on the face of it, disclose the cause of the transfer and that this is what, in conveyancing terms, is referred to as the causa clause.

Such causa must be valid otherwise the resultant Deed, if based on an invalid causa, is necessarily invalid.

The Deeds Registries Act and the Regional, Town and Country Planning Act are complementary, and, a causa which is invalid by reason of breach of the Regional, Town and Country Planning Act is necessarily invalid for purposes of the Deeds Registries Act.

He quoted the famous “you cannot put something on nothing and expect it to stay there” statement by LORD DENNING in Macfoy v United Africa Co Ltd [1961] 3 ALL ER 1169 (PC)…,.

Counsel for the first, third, and fifth respondents submitted, that, the applicant is in fact seeking to enforce an illegal contract and that that is another reason why the application must fail as the maxim ex turpi causa applies and cannot be relaxed in the circumstances.

Counsel for the first, third, and fifth respondents also submitted, that, the applicant bases his case on facts which are in fact in dispute.

The applicant claims that his title was registered first whereas it is clear from the papers that the first respondent's deed of transfer has gone through all the processes and the applicant's has not.

In this regard, reliance was being placed on the letter from the fourth respondent's office, already referred to earlier in this judgment. He submitted that this dispute of fact cannot be resolved on the papers.

Furthermore, that this is a dispute which should have been foreseen at the outset as the applicant was aware, at the time of instituting this application, that the first respondent was registered, in terms of Deed of Transfer 4079/07, as the owner of the same property.

Counsel for the first, third, and fifth respondents submitted, that, before instituting this application, the applicant was aware that limited Letters of Administration had been issued to the third respondent by the sixth respondent for purposes of transferring the property in issue from the estate. Such Letters of Administration can only be set aside in terms of the procedure stipulated in the Administration of Estates Act [Chapter 6:01].

As that has not been done, the relief sought by the applicant, in paragraph 3 of his draft order, cannot be granted.

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

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

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

It was submitted, that, in view of the applicant's persistent denial that there are grave disputes of fact in this matter, when there clearly are, the applicant cannot now ask the court to refer the matter for the hearing of evidence as the applicant clearly ought to have proceeded by way of action in the first place.

He submitted, that, there is no justification for interference with the first respondent's registration as owner of the property, and that, for all the reasons stated above, the application must be dismissed with costs on the scale stated earlier in this judgment.

Section 14 of the Deeds Registries Act provides:

“Subject to this Act or any other law -

(a) The ownership of land may be conveyed from one person to another only by means of a deed of transfer executed or attested by a registrar.”

Section 8 of the Deeds Registries Act, which is referred to in the above quoted letter, provides as follows:

“(1) Save as is otherwise provided in this Act, or in any other enactment, no registered deed of grant, deed of transfer, or conveying title to land, or any real right in land, other than a mortgage bond, and no cession of any registered bond not made as security, shall be cancelled by a registrar except upon an order of court.”

The letter by the Assistant Registrar of Deeds does not constitute cancellation of the Deed of Transfer in favour of the applicant.

In my view, it expresses the author's opinion on the matter.

In any event, there is no application or counter-application before this court for the cancellation of the said deed of transfer.

It does not, in my view, support the first respondent's contention that there is no double registration of the property. The fact is that there is double registration of the property in issue; the one registration being in favour of the applicant and effected on 2 April 2007 whilst the other registration is in favour of the first respondent and was effected on 4 July 2007 - some three months later.

Section 10 of the Deeds of Registries Act provides -

“(1) Deeds executed or attested by a registrar shall be deemed to be registered upon the affixing of the registrar's signature thereto…,.”

Thereafter, section 11 provides -

“(1) Save as otherwise provided in this Act or as directed by the court -

(a) Transfers of land and cessions of real rights therein shall follow the sequence of the successive transactions in pursuance of which they are made…,.”

The fourth respondent is of the opinion that the Deed of Transfer in favour of the applicant is invalid for the reasons stated in the letter from his office; which letter has already been quoted above.

This aspect will be dealt with later in this judgment.

The respondents represented herein raised the point that the applicant's case is premised on an agreement of sale which is void ab initio for the reason that the sale was conditional upon the grant of a subdivision permit in terms of the Regional, Town and Country Planning Act [Chapter 29:12].

It was submitted, that, the Regional, Town and Country Planning Act specifically proscribes such agreements and that both the Supreme Court and the High Court have held such agreements are void ab initio.

It was submitted that it follows, therefore, that nothing can be founded thereon and the applicant cannot seek to enforce that which he does not have.

In support of these submissions, the following cases were cited. inter alia: Macfoy v United Africa Co Ltd [1961] 3 ER 1169 (PC) at 1121 where LORD DENNING stated:

“If an act is void, then it is, in law, a nullity. It is not only bad, but incurably bad. There is no need for an order of the court to set it aside. It as automatically null and void without more ado, although it is sometimes convenient to have the court declare it to be so. And every proceeding which is founded on it is also bad and incurably bad. You cannot put something on nothing and expect it to stay there. It will collapse.”

In Muchakata v Netherburn Mine 1996 (1) ZLR 153 KORSAH JA stated:

“If the order was void ab initio it was void at all times and for all purposes. It does not matter when and by whom the issue of its validity is raised; nothing can depend on it.”

In X-Trend-A-Home (Pvt) Ltd v Hoselaw Investments (Pvt) Ltd 2000 (2) ZLR 348 (S) McNALLY JA, having revisited the history of section 39 of the Regional, Town and Country Planning Act sated at 355A-D:

“The agreement with which we are concerned is clearly 'an agreement for the change of ownership' of the unsubdivided portion of a stand. What else could it be for? Whether the change of ownership is to take place on signing, or later on an agreed date, or when a suspensive condition is fulfilled, is un-important.

It is the agreement itself which is prohibited.

The evil which the statute is designed to prevent is clear. Development planning is the function of planning authorities, and it is undesirable that such authorities should have their hands forced by developers who say 'but I have already entered into conditional agreements; major developments have taken place; large sums of money have been spent. You can't possibly now refuse to confirm my unofficial subdivision or development.'”

I will shortly deal with this submission.

The substantive part of the Master's report (the sixth respondent) states as follows:

“The estate of the late Maria Johanna Francisca Logan who died testate is registered with me under DR1617/98 and Brenda Carol Leeper of Veritas Executor (Private) Limited as the appointed executrix testamentary.

I also confirm that my office authorised the sale of Stand No.382 Good Hope Township in terms of section 120 of the Administration of Estates Act [Cap 6:01].

My office, unaware of the double sale, and in compliance with the court order under Case No.12060/06, consented to the transfer of the disputed property in favour of the first respondent.

According to information on file, there appear to be material disputes which needs (sic) to be determined so as to establish which between the two sales is valid and legal.”

In my view, this report does not detract from the facts which are established by the papers.

The following are the facts which emerge from the papers and upon which this matter will be determined:

(i) Firstly, the applicant purchased the property in issue from the estate, as represented by the executrix testamentary. The first respondent, on the other hand, purchased the same property, purportedly from the same estate, but, in his case, the estate was represented by the executor dative.

It is an undisputed fact that the executor dative was appointed to the office while the executrix testamentary was still alive, holding office, not incapacitated, and still sane. Neither had the executrix testamentary been removed from office.

(ii) Secondly, the applicant's agreement of sale preceded that of the first respondent.

(iii) Thirdly, it is also clear from the papers that the property was registered into the applicant's name on 2 April 2007 by Deed of Transfer 1597/2007 while the transfer to the first respondent was done 3 (three) months later, on 4 July 2007, by Deed of Transfer 4079/2007.

The relevant law applicable to the instant matter, with particular regard to the registration of real rights as provided in the following sections of the Deeds Registries Act, is:

“10 When registration takes place

(1) Deeds executed or attested by a registrar shall be deemed to be registered upon the affixing of the registrar's signature thereto:

Provided that no such deed, which is one of a batch of interdependent deeds intended for registration together, shall be deemed to be registered until all the deeds of the batch have been signed by the registrar.

(2) If, by inadvertence, the registrar's signature has not been affixed to a deed at the time at which the signature should have been affixed in the ordinary course, the registrar may affix his signature thereto when the omission is discovered, and the deed shall thereupon be deemed to have been registered at the time at which the signature should have been affixed.

(3) All endorsements or entries made on title deeds or in registers in connexion with the registration of any deed executed or attested by a registrar shall be deemed to have been effected simultaneously with the registration of such deed, although in fact they may have been made subsequent thereto.”…,.

Section 11 then provides:

“11 Deeds to follow sequence of their relative causes

(1) Save as otherwise provided in this Act or as directed by the court —

(a) Transfers of land and cessions of real rights therein shall follow the sequence of the successive transactions in pursuance of which they are made, and if made in pursuance of testamentary disposition or intestate succession they shall follow the sequence in which the right to ownership or other real right in the land accrued to the persons successively becoming vested with such right;

Provided that —…,.”…,.

Section 14 provides:

“14 How real rights shall be transferred

Subject to this Act or any other law —

(a) The ownership of land may be conveyed from one person to another only by means of a deed of transfer executed or attested by a registrar;

(b) Other real rights in land may be conveyed from one person to another only by means of a deed of cession attested by a notary public and registered by a registrar:

Provided that attestation by a notary public shall not be necessary in respect of the conveyance of real rights acquired under a mortgage bond.”…,.

On a perusal of section 10 of the Deeds Registries Act, it follows, therefore, that, when the Registrar affixed his signature to the Deed of Transfer in favour of the applicant, on 2 April 2007, the Deed was, with effect from that date, deemed to be registered.

Furthermore, and on a perusal of section 14 of the Deeds Registries Act, ownership was conveyed from the estate of the late Maria Johanna Francisca Campbell-Logan to the applicant. Thus, the applicant became or was henceforth deemed to be the owner, and the property no longer formed part of the deceased estate.

It therefore follows, that, when, in Deed of Transfer 4079/2007, on 4 July 2007, it was purported to convey ownership of the property from the estate to the first respondent, the estate, at that stage, was no longer the owner thereof and it thus had no rights to transfer to the first respondent.

The agreement of sale, purportedly in favour of the first respondent, cannot therefore be valid.

In any event, the third respondent, having been appointed as executor dative whilst the executrix testamentary was still alive, holding office, not incapacitated, and still sane, was improperly appointed.

The deceased had left a Will in which the executrix testamentary was appointed. The sixth respondent was thus not dealing with an intestate estate.

The third respondent's appointment, as executor dative, was, in the circumstances, irregular, and, any acts carried out by him in the name of the estate would thus be of no legal consequence.

According to the affidavit placed before the magistrate in 12060/06, the second respondent, who is the heir to the deceased estate, sold the property in issue to the first respondent.

It thus appears that the second respondent purported to sell the property before the property had vested in him; hence arises the illegality and nullity of the purported sale to the second respondent.

Thus, both the agreement of sale and the Deed of Transfer, in favour of the first respondent, are, in the circumstances, null and void.

None of the arguments raised by the first respondent, as detailed earlier in this judgment, can be of any avail to the first respondent in the face of the above-stated and established facts.

It would appear to me, that, the issue of whether or not the provisions of the Regional, Town and Country Planning Act are applicable, and, if so, with what effect, cannot be of any avail to the respondents in the circumstances of this case.

Neither can it be the basis for this court, in these proceedings, to declare invalid the agreement of sale in favour of the applicant.

That agreement has not been subjected to scrutiny by this court.

The fact is that the applicant is currently registered as the owner of the property and there is no basis for the court, in these proceedings, to deny the relief sought by the applicant.

The first respondent cannot herein ask the court to declare the agreement invalid.

The submission that the agreement of sale in favour of the applicant was subject to a suspensive condition based on a proposed or desired subdivision of the main property, and therefore illegal, has been the mainstay of the first respondent's stance.

There is no application before this court challenging or impugning the said agreement of sale.

Thus, the dicta quoted from X-Trend-A-Home (Pvt) Ltd v Hoselaw Investments (Pvt) Ltd 2000 (2) ZLR 348 (S), in support of the first defendant's case, are not of any relevance in the circumstances of this matter.

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

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

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

In any event, the applicant was not a party to the proceedings in that matter.

Furthermore, as correctly pointed out by the applicant, the Magistrates Court did not authorise an illegal transfer of the property.

The purported transfer to the first respondent was invalid, as already discussed above. On the other hand, the prior registration of the applicant's ownership in the Deeds registry is the strength of or fortifies the applicant's case.

It appears to me that there is no material dispute of fact to justify either the dismissal of the applicant's application or to refer it to trial.

Although the Deed of Transfer in favour of the applicant was registered first, the fourth respondent's opinion is that the Deed is invalid for the reasons stated in the letter from his office already quoted above.

It would appear to me that this can only be viewed as the Registrar's opinion and not a statement or declaration of the legal position.

I am fortified in this assessment by the provisions of section 8(1) of the Deeds Registries Act already quoted above, in terms of which any Deed of Transfer shall not be cancelled by a Registrar except upon an order of court.

There has been no order of court which has cancelled or authorized the cancellation of the applicant's Deed of Transfer.

The applicant has established justification for the granting of the order which he seeks and he must therefore succeed. Costs will follow the cause. For the above reasons, the following is the order of this court:

IT IS ORDERED -

1. That the sale to the first respondent, by the second respondent, of Stand 382 Good Hope Township of Subdivision B of Good Hope is null and void.

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

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

4. That the applicant is the sole registered owner of Stand 382 Good Hope Township of Sub-division B of Good Hope.

5. That the fourth respondent shall, within 3 (three) days of service of this order upon him, delete the name of the first respondent from the deeds register and retain the name of the applicant as the registered owner of Stand 382 Good Hope Township of Subdivision B of Good Hope.

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

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

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

“TERMS OF THE FINAL ORDER SOUGHT

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

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

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

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

INTERIM RELIEF GRANTED

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

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

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

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

The appeal is strenuously opposed by the respondent.

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

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

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

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

“Dear Marinda

Notice of Termination of lease contract

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The appellants raised the following grounds of appeal:

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

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

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

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

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

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

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

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

SC68-21 : SIBONILE DUBE vs PAUL MUREHWA and MINISTER OF LOCAL GOVERNMENT, PUBLIC WORKS AND NATIONAL HOUSING N.O.
Ruled By: GUVAVA JA, MAVANGIRA JA and KUDYA AJA

This is an appeal against the entire judgment of the High Court sitting at Harare, in which the court granted a declaratur in favour of the first respondent; asserting that he was the lawful holder of rights and interests in the property known as Stand 6401 Retreat, Waterfalls.The court also ...

FACTUAL BACKGROUND

The first respondent made an application before the court a quo seeking to be declared the bona fide holder of rights and interests in the property known as Stand number 6401 Retreat, Waterfalls (hereafter referred to as “the property”). The first respondent also sought to have all those in occupation of the property declared unlawful occupiers and to vacate the property.

The appellant opposed the application.

The first respondent submitted, that, he had joined the Joseph Chinotimba Housing Co-operative Society sometime in 2009, and had, as a member, been allocated the property. He had proceeded to dig a well on the property and to buy the necessary building materials. According to the first respondent, the appellant invaded the property sometime in 2014 claiming that it was her own and proceeded to construct a temporary structure using some of the material that he kept and stored on the property.

With regard to the appellant's claim that the property was hers, as it had been allocated to her by her own co-operative known as Samora Machel Housing Co-operative, the first respondent submitted that her co-operative had no authority to do the alleged allocation. He submitted that this was so because the second respondent (the managing authority), had written to the appellant's cooperative reiterating its consistent position that Stand numbers 6392 to 6414 (under which the property falls) had been allocated to the Joseph Chinotimba Housing Co-operative.

The first respondent further submitted, that, consistent with its position, the second respondent had entered into a lease agreement with him over the said property thereby giving him rights, interests, and title to the property.

The first respondent averred that neither the appellant nor her cooperative had any recognisable interests and rights whatsoever over the said property.

He argued that the purported allocation of the property to the appellant had no legal basis as the second respondent had confirmed that he was the only recognised holder of rights in the property.

The appellant, on the other hand, averred, that, she was allocated the same property by her co-operative, namely, the Samora Machel Co-operative, as a vacant Stand and she had proceeded to make lawful developments thereon.

She argued that there was no basis for the first respondent's application since there had already been a full trial pertaining to the same matter in the Magistrates Court wherein the first respondent had failed to prove his ownership of the property.

The appellant also submitted that there were material disputes of facts which could not be resolved on the papers and that the first respondent had therefore used the wrong procedure in filing the application.

It was the appellant's case, that, the allocation of the property to her found favour with the Apex Board which was the authority responsible for allocating land to its members, including co-operatives. According to her, the second respondent had allocated the property to the Apex Board, which, in turn, allocated the property to her.

She averred that the property had therefore been lawfully allocated to her and the first respondent was accordingly in unlawful occupation of the same.

The appellant therefore argued, that, as the allocation to her was done by her co-operative, with the blessings of the Apex Board, the allocation was above board and remained valid.

She averred that the first respondent's lease agreement was not conclusive proof of ownership and his allocation was based on an illegality.

She therefore sought to have the first respondent's application dismissed with costs.

The second respondent's then Acting Permanent Secretary deposed to an affidavit confirming that the property had been allocated to the first respondent under the Joseph Chinotimba Housing Co-operative. He confirmed that the first respondent had been issued with a lease agreement over the said property. The second respondent further confirmed that the appellant did not have a lease agreement with the Ministry, and, as such, she was an invader on the property.

His stance was therefore that the order that was sought by the first respondent ought to be granted.

THE DECISION OF THE COURT A QUO

The court a quo noted that the cause of action in the Magistrates Court had been for eviction whilst the application before it was for a declaratur.

The court found that the second respondent had made it clear that the property in issue had been allocated to the Joseph Chinotimba Housing Co-operative and had also confirmed that the first respondent had a valid lease agreement for the Stand. The court found that the first respondent had managed to establish that he had rights over the said property emanating from the lease agreement as well as correspondence and a sworn statement from the second respondent and the relevant Ministry's official.

The court a quo also noted that the appellant sought to rely on an allocation form from her co-operative - which form did not have the Ministry's letter-head or logo but only bore a stamp. The court further took into consideration the fact that the said allocation form was a 2012 document, whereas, on record, there were documents from 2014, 2016, 2017 and 2018 indicating the Ministry's position pertaining to the first respondent's co-operative and lending support to the first respondent's claim.

In the result, the court a quo declared the first respondent to be the lawful holder of rights and interests in the property. It further ordered the appellant to vacate the property and give vacant possession to the first respondent.

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

GROUNDS OF APPEAL

“1. The court a quo grossly erred and misdirected itself in making a finding that there were no material disputes of fact when it was apparent from the papers filed of record that there were issues which could not be resolved without hearing oral evidence.

2. The court a quo erred and grossly misdirected itself in granting the declaratur in circumstances where the first respondent had failed to prove that he had rights and disregarded overwhelming evidence which proved that the appellant had rights in the property.

3. The court a quo grossly erred and misdirected itself on relying (sic) on evidence whose authenticity and origins had been challenged given that same had not been availed at an earlier stage and whose authenticity was only going to be tested through viva voce evidence.

4. The court a quo grossly erred and misdirected itself at law in completely disregarding the decision of the Magistrates Court on the similar facts of the dispute under Case Number 101166/18 and thereby effectively overruling the factual findings of the extant judgment which is already a subject of an appeal in the High Court under Case Number CIV 25/19.

5. The court a quo grossly erred and seriously misdirected itself in failing to apply the principles of estoppel in view of the evidence placed before the court and given that the application was based on the similar set of facts and documents used in an initial litigation between the appellant and first respondent.

6. The court a quo seriously erred and misdirected itself in dismissing appellant's preliminary point to the effect that the matter and dispute between the parties was pending in the High Court under case number CIV 25/19 and further erred in granting eviction that is a subject matter of the pending appeal.”

In her prayer, the appellant prays for the appeal to be allowed with costs and for the order of the court a quo to be set aside so as to dismiss the application for a declaratur with costs on an attorney-client scale.

SUBMISSIONS BEFORE THIS COURT

At the hearing of this appeal, counsel for the first respondent raised a preliminary objection to the appellant's grounds of appeal one, two, three, and five.

He submitted that they were defective on the basis that they were not clear and concise. He therefore moved the court to strike them out.

Counsel for the appellant conceded that some of the grounds were defective and abandoned grounds two, three, five and six.

She therefore motivated the appeal only in terms of grounds of appeal one and four.

On the merits, counsel for the appellant argued, that, in the court a quo, the first respondent sought to overturn the decision of the Magistrates Court but had disguised the proceedings as stet a declaratory order.

She averred, that, the first respondent applied for a declaratur based on the same facts and evidence as had been placed before the Magistrates Court, which court found that the first respondent had not proved that he had title to the property and thus had no basis to evict the appellant.

She further averred that the court a quo erred in failing to take into account the fact that there was a pending appeal in the High Court dealing with the rights of the parties, thereby running the risk of having two conflicting judgments from the same court.

Counsel for the appellant submitted, that, by hearing the matter, the court a quo, in essence, reviewed factual findings made by the Magistrates Court; which findings were the subject of an appeal before the same court. She argued that the court a quo ought to have stopped the first respondent from litigating this matter in view of the pending appeal. Thus, the court a quo erred in granting consequential relief which was the subject of an appeal.

Counsel for the appellant also argued, that, the first respondent failed to provide sufficient evidence to prove that he had rights in the property. She averred that the first respondent relied on a lease agreement whose validity was challenged and was rejected by the Magistrates Court. She argued that due process was not followed in the issuing of the first respondent's lease agreement as it did not go through the Apex Board.

Counsel therefore submitted, that, there were material disputes of fact in relation to the allocation of the Stand which could not be resolved a quo without leading oral evidence and thus prayed for the appeal to be allowed.

Counsel for the first respondent submitted, that, there were no material disputes of fact in this matter as most of the relevant facts were clear.

He submitted, that, the first respondent has a valid lease agreement which has not been cancelled or revoked and thus remains extant. He further averred that it was an established fact that the second respondent does not recognize the appellant as the legitimate holder of rights over the property. He argued that the appellant's housing co-operative did not challenge or dispute that the first respondent's co-operative had been duly issued with the necessary authority over the property. The appellant, therefore, had no basis to challenge what her own co-operative had accepted.

It was counsel for the first respondent's argument that there were no material disputes of fact at all in the circumstances.

Counsel for the first respondent further argued, that, the present matter had not been argued in the Magistrate's Court as claimed by the appellant. He averred that the parties in the Magistrates Court matter were materially different from the parties in the present matter and that the causes of action and relief sought in the respective matters were different. In the light of these differences, counsel for the first respondent submitted, that, the court a quo's finding, that the matter before it and the one that was before the Magistrate's Court were different, cannot be faulted.

He therefore sought the dismissal of the appeal with costs on the legal practitioner and client scale.

APPLICATION OF THE LAW TO THE FACTS

Whether or not the court a quo erred by finding that there were no material disputes of fact which warranted the matter to be referred to trial

The appellant contends, that, the court a quo erred in making a finding that there were no material disputes of fact in this matter.

She avers that the issues pertaining to the validity of the lease agreement, the competing legitimate rights over the property, and the allocation of the property were disputed, and, as such, they could not be resolved through the evidence placed on record without hearing viva voce evidence.

With regard to this issue, the first enquiry is to ascertain whether or not there is a real dispute of fact which could not be resolved without hearing evidence.

In Supa Plant Investments (Pvt) Ltd v Chidavaenzi 2009 (2) ZLR 132 (H)…, MAKARAU JP…, expressed the following sentiments:

“It is my view, that, it is not the number of times a denial is made or the vehemence with which a denial is made that will create a conflict of fact such as was referred to by McNALLY J (as he then was) in Masukusa v National Foods Ltd and Another 1983 (1) ZLR 232 (H) and in all the other cases that have followed.

A material dispute of fact arises when material facts alleged by the applicant are disputed and traversed by the respondent in such a manner as to leave the court with no ready answer to the dispute between the parties in the absence of further evidence.”

In the case of Eddies Pfugari (Pvt) Ltd v Knowe Residents Association & Anor SC37-09, in assessing whether the court a quo erred in resolving the disputes raised on the papers without hearing evidence, this Court stated the following:

“The position is now well established, that: in motion proceedings, a court should endeavour to resolve the dispute raised in affidavits without the hearing of evidence. It must take a robust and common sense approach and not an over fastidious one; always provided that it is convinced, that, there is no real possibility of any resolution doing an injustice to the other party concerned.”

In Muzanenhamo v Officer in Charge CID Law and Order & Ors CC03-13, PATEL JA…, stated as follows:

“As a general rule, in motion proceedings, the courts are enjoined to take a robust and common sense approach to disputes of fact and to resolve the issues at hand despite the apparent conflict. The prime consideration is the possibility of deciding the matter on the papers without causing injustice to either party.”

In casu, I am in no doubt that the court a quo was correct in resolving the matter on the papers.

The position is now well established, as reflected by the case authorities, that, not every dispute of fact in motion proceedings must be sent for trial. A material dispute of fact, it has been stated “arises when material facts alleged by the applicant are disputed and traversed by the respondent in such a manner as to leave the court with no ready answer to the dispute between the parties in the absence of further evidence.”

The court a quo found, that, there were no material disputes of fact in this matter because the facts that the appellant sought to rely on were based on the findings of the Magistrates Court where the cause of action before the court had been for eviction whilst the application before it was for a declaratur.

The learned Judge in the court a quo noted that:

“The first respondent sought very much to rely on what had transpired in the Magistrates Court where a claim for eviction had been raised by the applicant. The first respondent seeks to say that the allocation of Stands should have been done through the Apex Board hence the lease was not properly issued.

What is before me is a valid lease, it has not been indicated that the lease itself is not valid.

The complaints raised by the first respondent emanate from agreements between the Apex Board and the other entity where the parties had agreed on the modus operandi pertaining to the allocation of those particular Stands.”

I am also of the view, that, sufficient facts were established by way of affidavits and relevant documentary evidence to establish, on a balance of probabilities, that, the first respondent was the legitimate holder of real rights in the property.

A valid lease agreement was furnished. The lease agreement had not been cancelled and it remains operative. Furthermore, the first respondent also produced affidavits from the second respondent, who is the authority responsible for the management of State land.

The said documents verified and confirmed that the first respondent was the legitimate and recognised holder of rights to the property. His entitlement to the property was thereby established.

The appellant's contentions, that there were material disputes of fact, based as they were on bare denials that were not supported by any documents, were thus of no avail to her case.

The law is clear, that, bald and unsubstantiated allegations do not establish a litigant's purported or announced position: see Akhtar v Min of Public Commission SC173-97.

The court a quo's decision cannot therefore be faulted because the evidence placed before it established, on a balance of probabilities, that, the first respondent had rights emanating from the lease agreement with the second respondent whilst the appellant only made bare allegations which were not sufficient to prove the existence of any material disputes of facts.

In the circumstances, the appellant's first ground of appeal lacks merit and is hereby dismissed.

SC144-21 : FARAI MATSIKA and FAIRGOLD INVESTMENTS (PRIVATE) LIMITED vs MOSES CHINGWENA and 38 OTHERS
Ruled By: BHUNU JA

This is an opposed application for condonation of late noting of an appeal and extension of time within which to file a notice of appeal. The applicant brings the application in terms of Rule 43 of the Rules of Court 2018.THE PARTIESThe first applicant is a former employee of the ...

THE PARTIES

The first applicant is a former employee of the third respondent (the company). He was employed as its Chief Executive Officer. He was dismissed from employment sometime in 2015 following disciplinary proceedings.

The first applicant claimed to own 30% shares in the third respondent through the agency of the second applicant, a duly incorporated company, and, to that extent, a juristic person.

His claim to the directorship of the company is in dispute. He claims to be duly authorised to represent the second applicant, a factor which is also disputed by the respondents.

The first and second respondents are natural persons bearing the same surname of 'Chingwena'.

The third to ninth respondents are duly incorporated companies.

The 10th, 11th, 15th-22nd, 29th, 33rd respondents are also duly incorporated companies clothed with juristic personality.

The remaining parties, though cited, did not appear to oppose the appeal.

The 4th to 38th respondents are companies in which the first appellant alleges the company has investments liable to his 30% claim of the shares allegedly held by the third respondent therein.

THE LAW

The law relating to applications of this nature is well known such that it cannot be the subject of any controversy. The requirements for the application to succeed were spelt out in Kombayi v Berckout 1988 (1) ZLR 53 (S). These are:

(a) The extent of the delay;

(b) The reasonableness of the delay; and

(c) The prospects of success on appeal....,.

BRIEF SUMMARY OF THE CASE

The first applicant approached the court a quo in terms of section 196(1) as read with section 198 of the Companies Act [Chapter 24:03] complaining that the affairs of the company, Croco Holdings (Private) Limited are being, or have been, conducted in a manner that is oppressive or unfairly prejudicial to the interests of some part of the members including himself. The section provides as follows:

“196 Order on Application of Member

A member of a company may apply to the court for an order in terms of section one hundred and ninety-eight on the ground, that, the company's affairs are being, or have been, conducted in a manner which is oppressive or unfairly prejudicial to the interests of some part of the members, including himself, or that any actual or proposed act or omission of the company, including an act or omission on its behalf, is or would be so oppressive or prejudicial.”

The first applicant deposed to the founding affidavit wherein he averred, that, he owns 30% shares in the company whereas the first respondent owns the remaining 70%.

His complaint is that the first respondent has been, and is, abusing his position as the majority shareholder.

He alleged that the first respondent was conducting the company's affairs in an oppressive and prejudicial manner to its members including him.

He averred, that, the first respondent and he were the promoters and founding directors of the company. The first respondent had, however, fraudulently removed his name from the company's register of directors.

He proffered some documentary evidence tending to show that he was an initial subscriber of shares and Director of the company. To that end, he submitted, that, all the essential company records showed that he owned 30% of the shares in the company. He contended that he subscribed for the shares in terms of a shareholding agreement he signed on 27 May 2006.

The first applicant cast aspersions on the first respondent alleging that since 2014 he had conducted himself contrary to the Shareholders Agreement. He further accused the first respondent of making decisions outside the forum of the Board of Directors.

It was his averment, that, in frustration, he offered to sell his shares to the first respondent but he was evasive and non-committal. Eventually, the first respondent turned the tables against him and began to dispute his shareholding in the company. They, however, subsequently met and agreed that the shares be evaluated before disposal. Despite having ordered that evaluation of the shares be carried out, the first respondent, again, made an about turn and denied ever having entered into such an agreement with him.

Having failed to resolve their differences amicably, the first applicant alleged that the first respondent proceeded to suspend him from work leading to his dismissal from employment. He has since challenged his dismissal in the courts.

On that score, he complained, that, the first respondent had violated his rights as a shareholder which rights are protected by the Companies Act. Consequently, he implored the court a quo to provide him with the following relief:

“WHEREUPON after reading documents filed of record and hearing counsel;

IT BE AND IS HEREBY ORDERED THAT:

1. A forensic audit and valuation of the 3rd respondent and its investments in the 4th to 38th respondent be and is hereby ordered to be conducted by an accounting firm registered in terms of the Public Accounts and Auditors Act [Chapter 27:12] to be appointed by the 39th respondent within 5 days of granting this order, all fees and costs of the evaluation being paid by the 3rd respondent.

2. 3rd respondent be and is hereby ordered to pay the applicants the full value of thirty percent (30%) of its total issued ordinary shares and 30% of its investments in the 4th to the 38th respondents within 5 days of completion of the forensic audit and valuation; such value having been established in terms of paragraph 1 above.

3. 3rd respondent be and is hereby directed to reduce 3rd respondent's share capital once the full amount of its thirty percent (30%) issued ordinary shares have been paid by 3rd respondent.

4. The Sheriff of the High Court and/or his lawful deputies be and are hereby ordered to execute terms of paragraph 2 above.

5. The 1st respondent pays the costs of suit on a legal practitioner and client scale.”

The respondents opposed the application, arguing that the first applicant was never a shareholder of the company.

They accused him of relying on forged fraudulent documents and challenged him to prove how he had acquired the alleged company shares.

Riding on that challenge, they raised a point in limine disputing his locus standi.

They submitted, that, only a member of a company, in the form of a shareholder, can bring an application in terms section 196 as read with section 198 of the Companies Act. The first applicant, not being a shareholder of the company, was not a member of the company, and, therefore, not qualified to bring the application before the court a quo.

As a second point in limine, the respondents challenged the first applicant's authority to represent the second applicant.

FACTUAL FINDINGS OF THE COURT A QUO

The court a quo found, that, the application was founded on material falsehoods based on fraudulent documents. Both the Shareholders Agreement and the share transfer documents were adjudged to be fraudulent documents. It also found, that, in relation to the point in limine, the applicant was unable to explain two conflicting CR2 documents.

Thus, the court a quo upheld both points in limine.

Ultimately, the learned judge a quo upheld the two preliminary points, and, in the process, found, that, the application was bad at law in that it did not meet the requirements of section 95 as read with section 196 of the Companies Act.

In the result, he dismissed the application with costs....,.

For the sake of completeness, I however feel constrained to briefly deal with his other complaint, that, after finding that the first applicant had no locus standi, the court a quo ought to have struck the matter off the roll instead of dismissing it.

There is absolutely no merit in this submission for the simple reason, that, the court was clothed with an unfettered discretion.

It is trite, that, Appellate Courts are always loathe to interfere with the exercise of judicial discretion save where the exercise of such discretion is injudicious or contrary to public policy.

The learned judge a quo was alive to the fact that he had discretion whether or not to dismiss the application.

Having carefully examined the facts and the law he exercised his discretion with admirable efficacy. In dismissing the application, he placed reliance on the case of Masukusa v National Foods Ltd & Anor 1983 (1) ZLR 232 (HC) where McNALLY J…, had this to say:

“Where the facts are in dispute, the court has discretion as to whether to dismiss the application or allow the matter to go to evidence. The first course is appropriate where an applicant should, when launching his application, have realised that a serious dispute of fact was inevitable.”

The learned judge a quo took the view, that, the applicant took a conscious risk by taking the application route in the face of glaring facts pointing to a serious dispute of facts.

For that reason, he had to bear the consequences of the ineptitude of his lawyers who chose the wrong procedure.

The course of action taken by the learned judge a quo finds support in the dictum of MULLER JA in Tamarillo (Pty) Ltd v BN Aitken (Pty) Ltd 1982 (1) SA 398 (AD)…, quoted with approval in Masukusa v National Foods Ltd & Anor 1983 (1) ZLR 232 (HC) where he observed that:

“A litigant is entitled to seek relief by way of notice of motion. If he has reason to believe that the facts essential to the success of his claim would probably be disputed, he chooses that procedure at his peril; for the court, in the exercise of its discretion, might decide neither to refer the matter for trial nor to direct that oral evidence on the disputed facts be placed before it, but, to dismiss the application.”

The first applicant had previously engaged the first respondent and they had failed to reach an amicable settlement.

He therefore knew, as a matter of fact, that, the respondents were disputing his claim that he was the owner of any shares in the company. By extension, he knew, or ought to have known, that, they were also disputing his documentary evidence tending to prove that he had a 30% shareholding in the company otherwise they would not have disputed his claim.

The first applicant's conduct, in providing fraudulent evidence, as demonstrated elsewhere in this judgment, could only aggravate matters to his detriment.

This is, therefore, a proper case where the naivety of the applicants lawyers was properly visited on their clients as the applicants were not entirely free from blame.

In the final analysis, no fault or misdirection can be laid at the learned judge a quo's door in his treatment of the substantive issues and verdict.

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.

The applicant's attempt to justify this rate of interest was convoluted.

It did not nail its colours to the mast, as, in one breath, it alleged the 6% rate of interest was per annum yet annexure “A” to the supporting affidavit clearly shows that it was being levied per month - which is clearly illegal.

In the heads of argument, in paragraphs 15 and 16, the applicant contended thus:

“15. The applicant is charging 6% interest per annum on outstanding arrears in terms of section 274(2) of the Urban Councils Act. Section 274(2) reads as follows:

“…, the council may charge and recover interest thereon reckoned from the due date at such rate as may be fixed by the Council which is not more than one per centum per annum above the rate of interest charged by the State in respect of loans made to local authorities at the time the rate was fixed in terms of subsection (1).”

16. In the premises, the applicant is charged 5% interest per annum by the State in respect of loans made to local authorities. Accordingly, it is entitled to charge 6% per annum on outstanding arrears.”

However, in paragraph 14 of its Heads, the applicant had contended, that, the 6% interest per annum was levied in terms of its by-laws.

Given the exitant contradictions regarding this issue, coupled with the fact that section 274(2) of the Urban Councils Act was never pleaded in the summons, and that the rate of interest levied by Government on loans advanced to the applicant is not trite, there is a material factual dispute which cannot be determined at this stage no matter how bold the approach the court takes.....,.

On the Merits

It is trite, that, in an application for summary judgment, all that a respondent has to show “in order to succeed in having the application dismissed is that there is a mere possibility of his success; he has a plausible case; there is a triable issue; or there is a possibility that injustice may be done if summary judgment is granted.”

See Jena v Nechipote 1986 (1) ZLR 26 (SC).

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.

Over and above what has been dealt with, and proven, under points in limine supra, which is interwoven with the respondent having a bona fide defence in casu, there are two issues raised by the respondent which clearly engender material disputes of fact which cannot be resolved on the papers.

(i) The first relates to the averment, that, via publication in the press, the applicant offered a special dispensation whereby if the respondent paid off half the amount owed, the balance would be written off.

The respondent accepted the offer, the arrangement became binding between the parties, and that agreement has not expired.

It is not enough for the applicant to simply allege, in passing, that the respondent has not furnished such proof, as alleged, in an endeavour to dispute the allegation.

If the applicant could not have been aware of this allegation, at the time of filing the application, then, in terms of Rule 67(c) of the High Court Rules 1971 the applicant should have applied to supplement its affidavit with a further affidavit to cover that lacuna.

The fact it did not do so can safely be inferred to mean that the averment was not being disputed.

(ii) The second, and more cogent, relates to the exact amount the respondent allegedly owes the applicant if account is had to annexure “A”.

The claim avers, that, the amount owed is for rates arrears in the sum of $86,927=90 from June 2012 up to June 2014.

However, a perusal of annexure “A” reveals that the applicant's computation of the amount claimed is effective from February 2009 up to July 2014.

Over and above that, ex facie annexure “A” it is apparent that the applicant factors in water levy, road levy, sewerage, solid waste, and the monthly interest of 6% in addition to the rates.

As correctly argued by the respondent, this brings into sharp focus the question of whether or not part of the claim has not prescribed and also the accuracy of the computation of the exact amount that is due.

Given the forgoing material disputes of facts, it is quite clear, that, the respondent has a bona fide defence to the applicant's claim, and, in the result, the application for summary judgment is dismissed with costs.

HMA02-19 : JETINOS ZIVANOMOYO vs HELLEN DINGANI
Ruled By: MAWADZE J and MAFUSIRE J

This was an appeal from a decision of the Magistrate's Court. We dismissed it soon after argument and gave reasons ex tempore. The appellant has now sought written reasons.

In the court a quo, the respondent, hereafter referred to as “the purchaser” where appropriate, sued for specific performance in respect of a property that she had bought from the appellant in terms of a written agreement of sale.

She proceeded by way of a court application.

The draft order, apart from costs, sought an order directing the appellant, hereafter referred to as “the seller” where appropriate, to sign forthwith all the documents necessary to enable transfer of the property to herself, failing which the Messenger of Court should be empowered to stand in his stead and sign.

She said, in terms of the agreement, the parties had consented to the jurisdiction of the Magistrate's Court.

In his notice of opposition, the appellant took a point in limine, that, the remedy sought was not one contemplated by the Agreement of Sale. He said in terms of it, in the event of a breach by himself, the only remedy available to the respondent was cancellation of the agreement upon a prior demand to make good the breach within 14 days, and that this had not been done.

He said specific performance was a remedy alien to the written agreement.

An adjunct to the above objection was that, in terms of the Magistrates Court Act [Chapter 7:10], a Magistrates Court has no jurisdiction to grant specific performance in the absence of an alternative claim for damages. He cited section 14(1)(d) of the Magistrates Court Act.

On the merits, the appellant's basic defence was that the respondent had only paid part of the purchase price; that, as such, she was in breach of the Agreement of Sale; and that therefore she was not entitled to specific performance. He prayed for the dismissal of the application with costs.

The court a quo felt there was a dispute of fact that was incapable of resolution on the papers. It referred the matter to trial.

After a full scale trial, the court a quo found in favour of the respondent and granted specific performance.

The appellant appealed.

We felt the appeal had no merit. We dismissed it as aforesaid.

HH128-06 : DOBROCK HOLDINGS (PVT) LTD and TURNER AND SONS (PVT) LTD vs TURNER AND SONS (PVT) LTD and ANTHONY TURNER and MARTIN KING and ZAMBEZI PADDLE STEAMER (PVT) LTD and DOBROCK (PVT) LTD
Ruled By: KUDYA J

An order for the consolidation of these two matters was granted by UCHENA J, by consent, with no order as to costs, on 2 June 2006, for hearing before me on 7 June 2006 in Case Number 3157/06.

The first application, Case No. HC5186/05, concerns an order for specific performance while the second one, Case No.5264/05 seeks an order for the provisional liquidation of Zambezi Paddle Steamer (Pvt) Ltd (hereinafter called ZPS).

On 7 June 2006, at the request of the parties, I postponed the hearing to 13 July 2006.

When the hearing resumed, Mrs Wood, for Turner and Sons (Pvt) Ltd, applied for the forced recusal of Mr de Bourbon, for Dobrock (Pvt) Ltd, on the basis that he had been an arbitrator between these parties in 1994.

She referred to Pertisilis v Calaterra & Anor 1999 (1) ZLR 70 (H) as authority for the proposition that the legal practitioner who acted for a former client is precluded from representing a different client in circumstances where a conflict of interest is likely to arise between the former and present client. SMITH J set out the basis of the rule…, as being that:

“A legal practitioner who represents the adversary of his own client in litigation would clearly be violating his or her duty of loyalty and the common law rules against conflict of interest.”

He proceeded to survey American, English, South Africa, and Zimbabwean decided cases on the point at pages 74C–77F.

While he held that neither a partner nor his employee could represent an opponent of a former client in order to fulfill the adage that justice must not only be done but that it must manifestly and undoubtedly be seen to be done, he nevertheless permitted a partner to represent the opponent on the basis that there was no allegation that the other partner had acquired information from the papers in the possession of his firm which could be used to the former client's disadvantage.

Mrs Wood contended, that, justice will not be seen to be done if Mr de Bourbon was allowed to represent Dobrock (Pvt) Ltd, especially on the liquidation case, where Turner and Sons allege a deadlock has manifested itself between the joint shareholders, a fact found by Mr de Bourbon, as arbitrator, to exist in his 25 June 1994 ruling.

She further foresaw a need to call Mr de Bourbon on the deadlock issue in the liquidation case.

Mr de Bourbon countered by contending that he did not represent either Dobrock (Pvt) Ltd or Turner and Sons (Pvt) Ltd but acted in a quasi-judicial capacity.

He knew of no law which debarred him from representing either party as long as he had not possessed confidential information which could be used to the detriment of his client's adversary. He referred to Benmac Manufacturing (Pvt) Ltd v Angelique Enterprises (Pvt) Ltd 1988 (2) ZLR 52 (H).

In that case, Mr de Bourbon accepted a general retainer from Angelique Enterprises in a matter in which that company was involved in a dispute with Albco. He was, at that time, already seized with a retainer for Benmac Manufacturing in its contest with Angelique Enterprises, supra. He had accepted the retainer in the matter against Albco after assurance from his instructing attorney that there would be no conflict of interest.

It was accepted, in that case, by that attorney, that, he had not come into contact with any confidential information which would prejudice Angelique Enterprises in its contest with Benmac. The Law Society, and two other counsel, had absolved him of any impropriety, but, the Managing Director of Angelique Enterprise, Mr Holland, was not satisfied with their findings and advice.

REYNOLDS J held, that, Angelique Enterprises had not shown that Mr de Bourbon had in fact become acquainted with information that could be used to its detriment which would result in real mischief and real prejudice if he continued to act for Benmac Manufacturing. He did express his reservation on a legal practitioner acting for and against his client in the same or different matters.

Mr de Bourbon submitted that he had not acquired any information that he could possibly utilize to the prejudice of Turner and Sons (Pvt) Ltd and that his impartiality in 1994 had not been impugned by any of the parties.

I went through the arbitral award.

It concerned and dealt with the share of each joint shareholder in the extra costs, which were above the original cost of construction of the large commercial houseboat which Zambezi Paddle Steamer (Pvt) Ltd (ZPS) was to own.

Turner and Sons (Pvt) Ltd was not able to show what information Mr de Bourbon accessed which could prejudice its present defence and claim. If anything, I was satisfied that the arbitral award stands on its own and there would be no need to call the arbitrator to testify on it.

I accordingly dismissed the application for the forced withdrawal of Dobrock (Pvt) Ltd's counsel.

I also postponed the hearing sine die and granted, by consent, authority to Turner and Sons (Pvt) Ltd to file a further affidavit in response to Dobrock (Pvt) Ltd's supplementary affidavit.

I further reserved the question of costs in the provisional liquidation claim to which these additional affidavits pertained.

I eventually set down the matter for hearing on 1 November 2006. I directed that the parties argue the specific performance case first and thereafter proceed to argue the liquidation case.

On 12 October 2005, Dobrock (Pvt) Ltd filed the court application for specific performance against Turner and Sons (Pvt) Ltd and two others. It sought the following order:

“1. That, the respondents, jointly as well as severally, the one paying the other to be absolved shall forthwith undertake all that is necessary and required, including making all payments and completion and signing all documents required in order to procure transfer, without delay, by first respondent to applicant of first respondent's entire shareholding in Zambezi Paddle Steamer (Pvt) Ltd.

2. That, immediately upon registration of transfer in the share register of Zambezi Paddle Steamer (Pvt) Ltd (ZPS) applicant shall pay to first respondent the balance of the purchase price for the said shares; such balance being the sum of $138 million.

3. That, the respondents, jointly as well as severally, the one paying the other to be absolved, shall pay the costs of this application on the scale of legal practitioner and own client.”

The application was served on the three respondents on 13 October 2005 (see Peter Dobson's opposing affidavit of 9 November 2005 for which this averment was accepted by Antony Turner on 2 December 2005).

The three respondents filed their opposition papers on 27 October 2005 and prayed for the dismissal of the applicant's case with costs on the higher scale and made reference to the liquidation claim, case number HC5264/2005.

Case number 5264/05 is a court application brought on 17 October 2005 by Turner and Sons (Pvt) Ltd against Zambezi Paddle Steamer (Pvt) Ltd and Dobrock (Pvt) Ltd. It prayed for the winding up of Zambezi Paddle Steamer (Pvt) Ltd and that a liquidator be appointed in the following terms:

“1. That, first respondent, Zimbabwe Paddle Steamers (Pvt) Ltd be provisionally wound up pending the granting of an order in terms of paragraph 3 hereof or the discharge of this order.

2. That, Mrs Theresa Grimmel, of KPMG Chartered Accountants, Mutual Gardens, 100 The Chase, Emerald Hill, Harare be appointed as provisional liquidator of first respondent company with the powers set out in section 221 of the Act.

3. Any interested party appear before this court sitting at Harare on (a date sixty days from the date of the order) to show cause why an order should not be made placing first respondent's company in liquidation and order that the costs of these proceedings all be costs of the liquidation.

4. That, this order shall be published once in the Government Gazette and once in the Herald Newspaper. Publication shall be in the short form annexed to this order.

5. Any person intending to oppose or support the application on the return day of this order shall:

5.1. Give due notice to the applicant at Messrs Byron Venturas & Partners, 2nd Floor Tanganyika House, Corner 3rd Street/Kwame Nkrumah Avenue, Harare.

5.2. Serve on the applicant, at the address given above, a copy of any affidavit which he files with the Registrar of the High Court.”

The application for provisional liquidation was served on the respondents on 17 October 2005, who entered opposition on 31 October 2005 and filed, on that day, their opposing affidavit by fascimile. The actual opposing affidavit was filed on 9 November 2005.

These two applications were consolidated on the bases that the principal parties were the same and that the fundamental issue in each matter related to the ownership and management control of Zambezi Paddle Steamer (Pvt) Ltd (ZPS).

The pleadings in these consolidated matters are voluminous.

The founding, opposing, answering and supplementary affidavits are reinforced by an assortment of attachments which consists of the Memorandum of Association of Zambezi Paddle Steamer (Pvt) Ltd, electronic mail between the parties, and other documents raised by various people who worked for the parties in various capacities.

I have read all these documents.

It is apparent from these documents that there are areas in which the parties agree and others where they are at variance.

It is appropriate that I first deal with the facts as I have determined them to be from the wealth of information that is set out in the pleadings in both these cases.

The preliminary details on the formation of Zambezi Paddle Steamer (Pvt) Ltd (ZPS), on 3 April 1989, are set out in detail by Anthony Turner (Antony) in his founding affidavit in the liquidation matter, case HC5264/05 (Case No.2). Those details were admitted to by Peter Jameson Dobson (Peter) in his opposing affidavit in that case.

Turner and Sons (Pvt) Ltd agreed with Dobrock (Pvt) Ltd, in 1988, on a joint venture to construct and thereafter operate a 'Mississippi River Boat' for commercial use on Lake Kariba.

The concept of the “Southern Belle” was created by Turner and Sons (Pvt) Ltd who approached Dobrock (Pvt) Ltd.

Dobrock (Pvt) Ltd agreed to become its joint partner in the venture and to provide working capital and investment in the project.

Zambezi Paddle Steamer (Pvt) Ltd was incorporated as the special purpose vehicle through which the large commercial houseboat, MV Southern Belle, would be owned and operated.

Zambezi Paddle Steamer (Pvt) Ltd was incorporated in terms of the Companies Act [Chapter 24:03] with an issued share capital of $30,000 divided into 30,000 shares of $1 each fully paid up. Each of the two joint partners subscribed to 15,000 shares of $1 each in Zambezi Paddle Steamer (Pvt) Ltd.

The joint shareholders agreed that Turner and Sons (Pvt) Ltd would first build a model of the craft, and, thereafter, carryout the necessary construction work and interior design of the vessel at a contracted price. Dobrock (Pvt) Ltd would source both local and foreign raw materials for this construction. The total costs of both these operations would be the total cost of the vessel and would be met equally by the joint shareholders.

The agreement was reduced to writing and signed on 31 May 1991.

The arbitral award, of 15 June 1994, indicated that the vessel was completed in 1994. The original construction price was set at $5,950,000.

The issue before the arbitrator centred on the amount by which the original contract price increased, which issue he resolved.

Zambezi Paddle Steamer (Pvt) Ltd was run for 18 months, from the completion of the vessel in 1994, by Turner and Sons (Pvt) Ltd. Dobrock (Pvt) Ltd thereafter took over the management control of Zambezi Paddle Steamer (Pvt) Ltd and appointed a Managing Director, Adamson, to run it.

It was common cause, that, from 2000, the tourism industry went into decline and this affected the bottom line of the MV Southern Belle operations of Zambezi Paddle Steamer (Pvt) Ltd.

There is evidence, in the form of electronic mail exchanged between Peter Jameson Dobson and Anthony Turner, the principal shareholders in Dobrock (Pvt) Ltd and Turner and Sons (Pvt) Ltd, respectively, between 19 January 2003 and 7 April 2004, that, the joint shareholders were prepared to sell their respective shareholdings in Zambezi Paddle Steamer (Pvt) Ltd to the right suitor - if one came along.

On 4 May 2004, Zambezi Paddle Steamer (Pvt) Ltd Managing Director presented a report which highlighted the difficult circumstances the commercial houseboat operations were in. It required urgent maintenance and refurbishment to attain its former glittering glory.

On 6 June 2004, Anthony Turner indicated his decision to sell his shares in the commercial houseboat to Peter Jameson Dobson. This was a clear pointer to his unwillingness to inject funds for maintenance and refurbishment of the houseboat.

On 18 June 2004, Peter Jameson Dobson indicated his willingness to inject $250 million, for this purpose, provided his shareholding in Zambezi Paddle Steamer (Pvt) Ltd increased by 10% while that of Anthony Turner was reduced by the same percentage. He suggested that the houseboat was valued at approximately $3.5 billion. He followed up this by another e-mail of 25 June 2004.

He received a response on that same day (contained in an email wrongly dated as 6 June 2004) from Anthony Turner in which he offered him his shareholding in Zambezi Paddle Steamer (Pvt) Ltd for the sum of $250 million.

Peter Jameson Dobson duly accepted the offer.

He came to Harare, and, during the period 28 June to 14 July 2004, discussed with Anthony Turner on the terms of payment of Antony's entire shareholding.

He agreed to procure payment where and when Anthony Turner wanted.

The purchase price was agreed at $250 million. It was to be paid by Peter Jameson Dobson into the account of Antony's daughter, Jenny, in the United Kingdom, the bank account details of which he received.

The following day, after the terms of payment had been agreed, Anthony Turner requested part payment of the purchase price in local currency.

Peter Jameson Dobson alleged that he made out cheque payments to Chitekeshe of $115 million and to Vretto of $25 million, as part payment, a total of $140 million which Anthony Turner used to buy a pick-up truck.

This averment was not disputed by Anthony Turner, yet, he maintained, in his other affidavits, that, he was paid $138 million and $112 million remained outstanding.

Peter Jameson Dobson, in his prayer, and in Mr de Bourbon's submissions on behalf of Peter's company, accepted that the outstanding purchase price was $112 million.

No cheques or proof of payment in the sum of $140 million was produced.

I am therefore prepared to hold, that, Peter Jameson Dobson paid $138 million and had an outstanding balance of $112 million.

Anthony Turner averred, in his opposing affidavit, that, he required £12,000 to import a new engine for the craft that he was building, known as the “Zambezi Trader”. This craft would not be in competition with the houseboat at all and he was building it for his own account with the moral support and blessing of Peter Jameson Dobson.

Peter Jameson Dobson agreed to pay this amount into his daughter's bank account in the United Kingdom.

He repeated this allegation in paragraphs 31 and 32 of his founding affidavit in Case No. HC5264/05.

This was to be in lieu of the balance of the purchase price of $112 million.

In Case No. 5264/05, in paragraphs 26 and 27 of his opposing affidavit, Peter Jameson Dobson did not respond to these averments in so far as they refer to the alleged mode of payment in foreign currency.

That payment was to be in foreign currency is clear from Peter Jameson Dobson's own founding affidavit.

In paragraph 18, he averred, that, even when he met Anthony Turner, per chance, at the Borrowdale Race Course, in November 2004, he reassured him, that, notwithstanding the fall in the value of the Zimbabwean dollar against the Pound Sterling, the amount outstanding as the purchase price remained £12,000 being the amount in pounds in July 2004.

The two gentlemen agreed, that, the accountant and company secretary of Zambezi Paddle Steamer (Pvt) Ltd, Paul Turner (Paul), a partner in Ernst and Young Chartered Accountants, would effect the share transfer and receive Anthony Turner's letter of resignation as a director therein.

There was a delay in the transfer of the shares which was occasioned by Paul Turner's attempts to structure a tax avoidance scheme for the benefit and at the insistence of Antony Turner.

I make this finding based on Antony Turner's deliberate failure to respond to Paul Turner's affidavit, which was filed in support of Peter Jameson Dobson's founding affidavit.

It was agreed, that, on 3 August 2004 and 21 August 2004, Peter Jameson Dobson wrote to Anthony Turner enquiring whether or not he had signed the necessary transfer documents and resigned as a director of Zambezi Paddle Steamer (Pvt) Ltd - the two factors which would trigger the payment of the balance of the purchase price by Peter.

It also appears, that, even on 5 November 2004, a date disputed by Athony Turner, who put it as being sometime in September 2004, when the two met at Borrowdale Race Course, Antony intimated that he had been too busy to visit Paul Turner. The parties re-affirmed, that, despite an adverse movement of the Zimbabwe dollar since July 2004, the balance of the purchase price would be paid into Antony's daughter's account in the United Kingdom at the exchange rate agreed in July 2004.

On 17 January 2005, Antony Turner proceeded to appoint Peter Drummond and Martin King as directors of Turner & Sons (Pvt) Ltd, in his stead, who were charged with the responsibility of overseeing Turner & Sons (Pvt) Ltd's interests in the Southern Belle.

A flurry of e-mails followed which attempted to resolve the issue of the sale of Antony Turner's shares in Zambezi Paddle Steamer (Pvt) Ltd, who was claiming, that, the failure by Peter Jameson Dobson to pay the balance of the purchase price timeously amounted to repudiation of the contract.

He therefore regarded himself released from the contract.

The negotiations by the parties culminated in a letter of 23 August 2004 by Turner & Sons (Pvt) Ltd's erstwhile legal practitioners to Dobrock (Pvt) Ltd's legal practitioners which set out the history of their association.

In that letter, Turner & Sons (Pvt) Ltd indicated that it would seek an order to wind up the company in terms of section 206(g) of the Companies Act [Chapter 24:03].

Dobrock (Pvt) Ltd held the firm belief that it had purchased Turner & Sons shareholding and was therefore the sole shareholder in Zambezi Paddle Steamer (Pvt) Ltd.

These disagreements resulted in the two applications, for specific performance and liquidation, that are now before me....,.

THE PROVISIONAL LIQUIDATION CLAIM CASE 5264/05

Turner & Sons (Pvt) Ltd seeks the liquidation of Zambezi Paddle Steamer (Pvt) Ltd on the basis that the two shareholders, in Turner & Sons (Pvt) Ltd and Dobrock (Pvt) Ltd, have had a disharmonius and tumultuous working relationship.

It set out the history of that relationship, from the period of the construction of the vessel, which culminated in arbitration. Thereafter, Turner & Sons (Pvt) Ltd ran the project until 1996 when Dobrock (Pvt) Ltd took over and appointed a Managing Director who ran the affairs of Zambezi Paddle Steamer (Pvt) Ltd.

The tourism industry suffered a downturn after 2000 and the profitability of Zambezi Paddle Steamer (Pvt) Ltd plummeted.

Antony Turner and Peter Jameson Dobson were desirous of disposing of their shareholding.

It is correct, as submitted by Dobrock (Pvt) Ltd, that the problems that beset the parties, which culminated in arbitration, were not catastrophic. The parties operated Zambezi Paddle Steamer (Pvt) Ltd in fits and starts up to the conclusion of the illegal oral agreement of July 2004. Until January 2005, it appeared that Turner & Sons (Pvt) Ltd had given up on the management control of Zambezi Paddle Steamer (Pvt) Ltd and had no interest in what was going on. It is also true that the e-mail exchanged showed decorum and civility until matters came to a head in 2005 as a result of the ill-fated agreement of sale.

In 2005, Turner & Sons (Pvt) Ltd earnestly sought to be appraised, as a shareholder, of its interest in Zambezi Paddle Steamer (Pvt) Ltd. Dobrock (Pvt) Ltd stonewalled and took the attitude that Turner & Sons no longer had any interest in the joint venture to warrant its revived attention.

The shareholding battle brought out the worst in the two personalities involved.

They maligned each other's personalities and managerial competencies (see Dobrock's letter of 6 October 2005).

That the affairs of Zambezi Paddle Steamer (Pvt) Ltd were not being run with the full participation of both shareholders is clear from the contents of the letter of 28 November 2005 which was written by Turner & Sons (Pvt) Ltd's erstwhile legal practitioners requesting copies of all bank statements from 1995 to date and details of all passengers who travelled on the houseboat; how much it was paid; and in what currency.

There were insinuations of financial misappropriations which were denied by Dobrock (Pvt) Ltd.

A supplementary affidavit was filed by Turner & Sons (Pvt) Ltd, in order to strengthen its application, on 23 June 2006.

That supplementary affidavit is replete with allegations of diversion of foreign currency proceeds from Zambezi Paddle Steamer (Pvt) Ltd to other sister companies of Dobrock (Pvt) Ltd, a fact vehemently denied by Dobrock. It also demonstrated a reluctance by Dobrock to release administrative records in regard to passenger information. It averred the possible mis-appropriation of foreign currency receipts due to Zambezi Paddle Steamer (Pvt) Ltd.

The documentation was eventually supplied to Ernst and Young, by Dobrock (Pvt) Ltd, on 7 July 2006.

It was filed with the leave of this court, on 19 October 2006, in the form of an answering affidavit in response to the supplementary affidavit.

The documentation supplied showed that foreign currency generated by Zambezi Paddle Steamer (Pvt) Ltd was utilised to pay an offshore loan of Intercontinental Trading (1992) (Private) Limited.

Dobrock (Pvt) Ltd denied that Zambezi Paddle Steamer (Pvt) Ltd had not operated successfully in the 10 years between 1994 and 2004. It alleged that the relationship between Peter Jameson Dobson and Antony Turner was friendly, harmonius, cordial, and constructive up to January 2005. It denied managerial deadlock and denied stealing operating revenue, principally, foreign revenue, from Zambezi Paddle Steamer (Pvt) Ltd.

Its view was that the failure to complain, since 1997 to the date of application, showed Turner & Sons (Pvt) Ltd had been satisfied.

It proposed a full audit of all cruises, foreign and local revenue, from the records between 1999 to 2004 since those going back beyond a period of 7 years were no longer in existence.

It took the view, that, there were disputes of facts which could not be resolved on the papers.

It prayed for the dismissal of the application.

It seems to me, that, notwithstanding the dispute of facts, I can make a robust determination of the two issues before me which are:

(i) Whether there is a deadlock; and

(ii) Whether Zambezi Paddle Steamer (Pvt) Ltd should be wound up.

After all, Turner & Sons (Pvt) Ltd need only to establish, on a prima facie basis, that it is just and equitable that the company be provisionally wound up.

It seems to me that a deadlock exists - especially after the ill fated contract of sale.

Clearly, there is a justifiable lack of confidence in the conduct of the company's affairs. There are accusations, supported by documentary evidence, that foreign currency generated by Zambezi Paddle Steamer (Pvt) Ltd has not been utilized for the benefit of Zambezi Paddle Steamer (Pvt) Ltd business activities.

Zambezi Paddle Steamer (Pvt) Ltd is a small domestic company.

In accordance with the principal guidelines set out in Sultan v Fryfern Enterprises (Pvt) Ltd & Another 2000 (1) ZLR 188 which approved the remarks of the House of Lords in Ebrahimi v Westbourne Galleries [1972] 2 ALL ER 492, I find that it is just and equitable that Zambezi Paddle Steamer (Pvt) Ltd be provisionally wound up on that ground.

There does not appear to me to be any realistic, sufficient, and reasonable remedy other than provisional liquidation. The bickering that has gone on can only be resolved by protracted negotiations whose outcome is uncertain. There is no alternative remedy, in my estimation, to winding up.

The applicant has thus discharged the onus on it to justify the order sought.

I accordingly grant the order sought by Turner & Sons (Pvt) Ltd in case No. HC5264/05....,.

1....,.

2. In case HC5264:

2.1 The first respondent company, Zambezi Paddle Steamers (Private) Limited, is provisionally wound up pending the granting of an order in terms of paragraph 2.3 or the discharge of this order.

2.2 Mrs Theresa Grimmel of KPMG Chartered Accountants, Mutual Gardens, 100 The Chase, Emerald Hill, Harare be appointed as Provisional Liquidator of the First Respondent Company with the powers set out in section 221 of the Companies Act [Chapter 24:03].

2.3 Any interested party may appear before this court sitting at Harare on the 14th day of February 2007 to show cause why an order should not be made placing the first respondent company in liquidation and the costs of these proceedings all be costs of liquidation.

2.4 This order shall be published once in the Government Gazette and once in the Herald Newspaper. Publication shall be in the short form approved by the Registrar of this Honourable Court.

2.5 Any person intending to oppose or support the application on the return day of this order shall:

2.5.1 Give due notice to the applicant at Messrs Byron Venturas & Partners, 2nd Floor Tanganyika House, corner 3rd Street/Kwame Nkurumah Avenue, Harare.

2.5.2 Serve on the applicant, at the address given above, a copy of any affidavit which he files with the Registrar of the High Court.

View Appeal
HH310-11 : CHINA SHOUGANG INTERNATIONAL vs STANDARD CHARTERED BANK ZIMBABWE LTD
Ruled By: BERE J

The facts, which are fairly straightforward and common cause in this matter, can safely be summarised as follows:

The applicant is a company duly registered and incorporated in terms of the laws of Zimbabwe. The respondent is a registered commercial bank with a number of branches in Zimbabwe.

The applicant runs two distinct corporate bank accounts with the respondent's Kwekwe branch. As of October 2007, the applicant's two accounts had an aggregate credit balance of forty-seven thousand seven hundred and thirty nine dollars and eighty six cents (US$47,739=86).

The applicant's accepted position is that it is a foreign investor company which is legally in Zimbabwe carrying out a specific purpose, viz, the refurbishment of the blast furnaces of a Zimbabwean Company called Zisco Steel.

The applicant maintained it was not involved in any “foreign exchange” activities.

In October 2007, the applicant's two corporate accounts were debited with an aggregate amount of forty seven thousand seven hundred and thirty nine dollars and eighty six cents (US$47,739=86) without its consent and approval.

The applicant engaged the respondent with a view to recovering its money, to no avail, hence the instant application.

The Respondent's Position

The respondent has offered a two-pronged defence to the application filed by the applicant for the recovery of its money:

(i) Firstly, the respondent has contended, as a point in limine, that, it is improper for the applicant to file a Court Application to recover a debt that is due to it. The correct position is that the applicant ought to have instituted proceedings by way of summons, so the argument went.

(ii) The second point raised in limine is that the applicant has targeted the wrong respondent. It was contended, on behalf of the respondent, that, since the funds in issue are held by the Reserve Bank of Zimbabwe, it is against the Reserve Bank of Zimbabwe that this application should have been directed.

Intricably linked to the second point in limine is the argument, that, by debiting the applicant's corporate foreign currency account, the respondent was merely complying with a directive issued by the Reserve Bank of Zimbabwe to so act.

In elaboration, the respondent's position is that in October 2007, the respondent, together with all other Commercial Banks in Zimbabwe, were directed, by the Reserve Bank of Zimbabwe, to lodge all foreign currency accounts balances in respect of corporate and non-governmental organization accounts with the Reserve Bank of Zimbabwe and to maintain mirror accounts in its own books for purposes of keeping track with these accounts....,.

Was it competent for the applicant to institute proceedings by way of motion proceedings as opposed to issuing out summons?

It is not a rule of thumb that proceedings to recover a debt due must be instituted by way of summons as opposed to motion proceedings. It is clear to me, that, what determines the nature of the proceedings to initiate is whether or not there are material disputes of facts in the action contemplated.

Where the action contemplated is likely to have material disputes of facts, motion proceedings would be incompetent. Institution of proceedings would have to be by way of summons.

With respect, it is not the correct position of law, that, a creditor, in a proper case for a claim sounding in money owing to him, cannot initiate its recovery by way of notice of motion as argued by the respondent's counsel in the instant case.

DE VILLIERS J summed up the correct legal position in Regal Trading Co. (Pvt) Ltd v Coetzee 1956 (1) SA 766 after carrying out a survey of a number of South African decisions when he stated as follows:

“I have come to the conclusion, that, legally, it is not incompetent for a creditor, in a proper case, to claim money owing to him by way of notice of motion, provided, at least, that, the facts are not in dispute. This does not, however, refer to un-liquidated claims for damages. The court has a discretion whether it will allow a creditor to depart from the more usual procedure of rauw actie, and that discretion will depend upon all the circumstances of the case….,.”

It is correct that application procedure is inappropriate where disputes of facts exist.

Where a party alleges the existence of dispute of facts, one is expected to clearly spell out the basis of such dispute as it must be distinct from an “illusory dispute of fact”: see Zimbabwe Bonded Fibreglass (Pvt) Ltd v Peech 1987 (2) ZLR 338 (SC)…,.

That explanation must be rooted in the respondent's opposing papers as opposed to giving them a magnified stature in the heads of argument like what seems to have happened in this case.

I am unable to locate any dispute of facts in this matter except that the parties are unable to agree on the legal implications of the directive given to the respondent. That is certainly not a dispute of facts but a legal issue that must be determined on the papers.

HB29-17 : CLAUDIOUS MANAMELA and BRIGHTON NANGA and SAZIWE DUBE and ENOCK MARUME vs COMMISSIONER GENERAL ZIMBABWE REPUBLIC POLICE and OFFICER ON CHARGE NJUBE POLICE STATION and APOSTOLIC FAITH MISSION OF AFRICA
Ruled By: KAMOCHA J

The interim relief sought in this matter was couched in the following fashion:“Pending determination of this matter, the applicant (sic) is granted the following relief:1. All 3rd respondent members are interdicted from barring or blocking any other church member from entering the 3rd respondent premises wherever situated.2. All 3rd respondent ...

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Law Portal
Zimbabwe

Disputes of Fact or Conflict of Facts re: Approach, Factual, Non-Factual, Questions of Law and Material Resolutions

SC22-09 : MAXMUS SAVANHU vs MAGNET MARERE N.O. and MASTER OF THE HIGH COURT and THE REGISTRAR OF DEEDS
Ruled By: MALABA DCJ, CHEDA JA and GARWE JA

HH196-15 : G CHIPARAUSHE and 66 OTHERS vs TRIANGLE LIMITED and TRIANGLE SENIOR STAFF PENSION FUND
Ruled By: CHIGUMBA J

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

HH480-18 : MILMATH SECURITY PL vs TABATANA MINING SYNDICATE and PAUL CHENJERAI and ISAAC JIRI and EARTHROW INVESTMENTS PL and PROSPER MACHEKERA and ORS
Ruled By: MANGOTA J

HH204-15 : THUTHANI MOYO vs JOHN BOWMAN and PONDS PHIRI and BERYL WATSON and MARGARET JAMES and ABEL DENHERE and OTHERS
Ruled By: MAWADZE J

HH223-15 : ZIMBABWE SUGAR MILLING INDUSTRY WORKERS UNION (ZSMIWU) vs ALFRED MAKWARIMBA and KENNIAS SHAMUYARIRA and ELIAS MADZIVA and FREEDOM MUDUNGWE and OTHERS
Ruled By: MANGOTA J

HH213-18 : BULCHIMEX GmbH IMPORT-EXPORT CHEMIKALIEN und PRODUKTE and TECHNOIMPEX SOFIA BULGARIA JSC vs BULCHIMEX GMBH IMPORT EXPORT CHEMIKALIEN und PRODUKTE PL and SARAH HWINGWIRI and R. JOGI
Ruled By: MANGOTA J

HB81-18 : FRANK MUTEZO and OTHERS vs ZIMBABWE SCHOOL EXAMINATIONS COUNCIL and THE MINISTER OF PRIMARY AND SECONDARY EDUCATION
Ruled By: MOYO J

HH124-18 : MIKE VELAH and ALBERT NYAMURONDA and JOSEPH PEDZAYI and BRENDA HATINAHAMA vs THE MINISTER OF PRIMARY & SECONDARY EDUCATION and ZIMBABWE SCHOOL EXAMINATIONS COUNCIL
Ruled By: ZHOU J

HH99-10 : CRAIG ROBINSON vs ROBERT ROOT PROPERTY CONSULTANTS and HAMMER AND TONGUES (PVT) LTD
Ruled By: MAKARAU JP

HH95-10 : TIISO HOLDINGS (PTY) LIMITED vs ZIMBABWE IRON & STEEL COMPANY LIMITED
Ruled By: PATEL J

SC54-06 : VIGOUR FUYANA vs NTOMBAZA MOYO
Ruled By: CHIDYAUSIKU CJ

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

View Appeal
HH113-06 : JOSHUA KADENGU and LAMECK KADENGU and ROSA KADENGU vs OLGA KADENGU (In her personal capacity and as guardian of her two minor children) and RICHARD CHIMBARU and MASTER OF THE HIGH COURT
Ruled By: KUDYA J

HB189-18 : CLAUDIUS MANAMELA and BRIGHTON NANGA and SIBONGILE MANAMELA vs ROSEWELL ZULU and APOSTOLIC FAITH MISSION OF AFRICA INTL and CLEMENT NYATHI and APOSTOLIC FAITH MISSION OF AFRICA
Ruled By: MABHIKWA J

HH49-09 : DYNAMOS FOOTBALL CLUB (PRIVATE) LIMITED and DYNAMOS FOOTBALL CLUB vs RICHARD CHIMINYA and OTHERS
Ruled By: CHATUKUTA J

SC39-00 : E. FILON vs THE PUBLIC SERVICE COMMISSION and THE MINISTER OF LANDS AND WATER RESOURCES
Ruled By: GUBBAY CJ, McNALLY JA and EBRAHIM JA

HH32-08 : LOVENESS SENGEREDO vs ERIC CABLE N.O.
Ruled By: MAKARAU JP

HH92-09 : SUPA PLANT INVESTMENTS (PVT) LTD vs EDGAR CHIDAVAENZI
Ruled By: MAKARAU JP

SC02-21 : EDDIES PFUGARI (PVT) LTD and EDWARD NYANYIWA vs KNOWE RESIDENTS AND RATEPAYERS ASSOCIATION and NORTON TOWN COUNCIL
Ruled By: PATEL JA, BHUNU JA and BERE JA

HH458-19 : KNOWE RESIDENTS AND RATEPAYERS ASSOCIATION vs EDDIES PFUGARI (PVT) LTD and EDWARD NYANYIWA and NORTON TOWN COUNCIL and REGISTRAR OF THE HIGH COURT
Ruled By: FOROMA J

HH63-16 : ASWEL NYANZARA vs MBADA DIAMONDS (PRIVATE) LIMITED
Ruled By: CHITAPI J

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

HB10-15 : INTRO-WISE CATERING (PVT) LTD vs COSIRA COMMUNICATIONS GLOBAL and COSIRA AFRICA (PTY) LIMITED and ZIMBABWE PLATINUM MINES (PVT) LTD
Ruled By: MAKONESE J

SC37-09 : EDDIES PFUGARI (PVT) LTD vs KNOWE RESIDENTS ASSOCIATION and NORTON TOWN COUNCIL
Ruled By: SANDURA JA, ZIYAMBI JA and GARWE JA

SC60-21 : LEATHOUT INVESTMENTS (PVT) LTD vs FUTURE MUVIRIMI and PETRONELLA MUVIRIMI
Ruled By: GOWORA JA, PATEL JA and BERE JA

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

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

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

SC68-21 : SIBONILE DUBE vs PAUL MUREHWA and MINISTER OF LOCAL GOVERNMENT, PUBLIC WORKS AND NATIONAL HOUSING N.O.
Ruled By: GUVAVA JA, MAVANGIRA JA and KUDYA AJA

SC144-21 : FARAI MATSIKA and FAIRGOLD INVESTMENTS (PRIVATE) LIMITED vs MOSES CHINGWENA and 38 OTHERS
Ruled By: BHUNU JA

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

HMA02-19 : JETINOS ZIVANOMOYO vs HELLEN DINGANI
Ruled By: MAWADZE J and MAFUSIRE J

HH128-06 : DOBROCK HOLDINGS (PVT) LTD and TURNER AND SONS (PVT) LTD vs TURNER AND SONS (PVT) LTD and ANTHONY TURNER and MARTIN KING and ZAMBEZI PADDLE STEAMER (PVT) LTD and DOBROCK (PVT) LTD
Ruled By: KUDYA J

View Appeal
HH310-11 : CHINA SHOUGANG INTERNATIONAL vs STANDARD CHARTERED BANK ZIMBABWE LTD
Ruled By: BERE J

HB29-17 : CLAUDIOUS MANAMELA and BRIGHTON NANGA and SAZIWE DUBE and ENOCK MARUME vs COMMISSIONER GENERAL ZIMBABWE REPUBLIC POLICE and OFFICER ON CHARGE NJUBE POLICE STATION and APOSTOLIC FAITH MISSION OF AFRICA
Ruled By: KAMOCHA J

Categories

Law Portal Zimbabwe

Disputes of Fact or Conflict of Facts re: Approach, Factual, Non-Factual, Questions of Law and Material Resolutions

SC22-09 : MAXMUS SAVANHU vs MAGNET MARERE N.O. and MASTER OF THE HIGH COURT and THE REGISTRAR OF DEEDS Ruled By: MALABA DCJ, CHEDA JA and GARWE JA

HH196-15 : G CHIPARAUSHE and 66 OTHERS vs TRIANGLE LIMITED and TRIANGLE SENIOR STAFF PENSION FUND Ruled By: CHIGUMBA J

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

HH480-18 : MILMATH SECURITY PL vs TABATANA MINING SYNDICATE and PAUL CHENJERAI and ISAAC JIRI and EARTHROW INVESTMENTS PL and PROSPER MACHEKERA and ORS Ruled By: MANGOTA J

HH204-15 : THUTHANI MOYO vs JOHN BOWMAN and PONDS PHIRI and BERYL WATSON and MARGARET JAMES and ABEL DENHERE and OTHERS Ruled By: MAWADZE J

HH223-15 : ZIMBABWE SUGAR MILLING INDUSTRY WORKERS UNION (ZSMIWU) vs ALFRED MAKWARIMBA and KENNIAS SHAMUYARIRA and ELIAS MADZIVA and FREEDOM MUDUNGWE and OTHERS Ruled By: MANGOTA J

HH213-18 : BULCHIMEX GmbH IMPORT-EXPORT CHEMIKALIEN und PRODUKTE and TECHNOIMPEX SOFIA BULGARIA JSC vs BULCHIMEX GMBH IMPORT EXPORT CHEMIKALIEN und PRODUKTE PL and SARAH HWINGWIRI and R. JOGI Ruled By: MANGOTA J

HB81-18 : FRANK MUTEZO and OTHERS vs ZIMBABWE SCHOOL EXAMINATIONS COUNCIL and THE MINISTER OF PRIMARY AND SECONDARY EDUCATION Ruled By: MOYO J

HH124-18 : MIKE VELAH and ALBERT NYAMURONDA and JOSEPH PEDZAYI and BRENDA HATINAHAMA vs THE MINISTER OF PRIMARY & SECONDARY EDUCATION and ZIMBABWE SCHOOL EXAMINATIONS COUNCIL Ruled By: ZHOU J

HH99-10 : CRAIG ROBINSON vs ROBERT ROOT PROPERTY CONSULTANTS and HAMMER AND TONGUES (PVT) LTD Ruled By: MAKARAU JP

HH95-10 : TIISO HOLDINGS (PTY) LIMITED vs ZIMBABWE IRON & STEEL COMPANY LIMITED Ruled By: PATEL J

SC54-06 : VIGOUR FUYANA vs NTOMBAZA MOYO Ruled By: CHIDYAUSIKU CJ

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

View Appeal HH113-06 : JOSHUA KADENGU and LAMECK KADENGU and ROSA KADENGU vs OLGA KADENGU (In her personal capacity and as guardian of her two minor children) and RICHARD CHIMBARU and MASTER OF THE HIGH COURT Ruled By: KUDYA J

HB189-18 : CLAUDIUS MANAMELA and BRIGHTON NANGA and SIBONGILE MANAMELA vs ROSEWELL ZULU and APOSTOLIC FAITH MISSION OF AFRICA INTL and CLEMENT NYATHI and APOSTOLIC FAITH MISSION OF AFRICA Ruled By: MABHIKWA J

HH49-09 : DYNAMOS FOOTBALL CLUB (PRIVATE) LIMITED and DYNAMOS FOOTBALL CLUB vs RICHARD CHIMINYA and OTHERS Ruled By: CHATUKUTA J

SC39-00 : E. FILON vs THE PUBLIC SERVICE COMMISSION and THE MINISTER OF LANDS AND WATER RESOURCES Ruled By: GUBBAY CJ, McNALLY JA and EBRAHIM JA

HH32-08 : LOVENESS SENGEREDO vs ERIC CABLE N.O. Ruled By: MAKARAU JP

HH92-09 : SUPA PLANT INVESTMENTS (PVT) LTD vs EDGAR CHIDAVAENZI Ruled By: MAKARAU JP

SC02-21 : EDDIES PFUGARI (PVT) LTD and EDWARD NYANYIWA vs KNOWE RESIDENTS AND RATEPAYERS ASSOCIATION and NORTON TOWN COUNCIL Ruled By: PATEL JA, BHUNU JA and BERE JA

HH458-19 : KNOWE RESIDENTS AND RATEPAYERS ASSOCIATION vs EDDIES PFUGARI (PVT) LTD and EDWARD NYANYIWA and NORTON TOWN COUNCIL and REGISTRAR OF THE HIGH COURT Ruled By: FOROMA J

HH63-16 : ASWEL NYANZARA vs MBADA DIAMONDS (PRIVATE) LIMITED Ruled By: CHITAPI J

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

HB10-15 : INTRO-WISE CATERING (PVT) LTD vs COSIRA COMMUNICATIONS GLOBAL and COSIRA AFRICA (PTY) LIMITED and ZIMBABWE PLATINUM MINES (PVT) LTD Ruled By: MAKONESE J

SC37-09 : EDDIES PFUGARI (PVT) LTD vs KNOWE RESIDENTS ASSOCIATION and NORTON TOWN COUNCIL Ruled By: SANDURA JA, ZIYAMBI JA and GARWE JA

SC60-21 : LEATHOUT INVESTMENTS (PVT) LTD vs FUTURE MUVIRIMI and PETRONELLA MUVIRIMI Ruled By: GOWORA JA, PATEL JA and BERE JA

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

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

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

SC68-21 : SIBONILE DUBE vs PAUL MUREHWA and MINISTER OF LOCAL GOVERNMENT, PUBLIC WORKS AND NATIONAL HOUSING N.O. Ruled By: GUVAVA JA, MAVANGIRA JA and KUDYA AJA

SC144-21 : FARAI MATSIKA and FAIRGOLD INVESTMENTS (PRIVATE) LIMITED vs MOSES CHINGWENA and 38 OTHERS Ruled By: BHUNU JA

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

HMA02-19 : JETINOS ZIVANOMOYO vs HELLEN DINGANI Ruled By: MAWADZE J and MAFUSIRE J

HH128-06 : DOBROCK HOLDINGS (PVT) LTD and TURNER AND SONS (PVT) LTD vs TURNER AND SONS (PVT) LTD and ANTHONY TURNER and MARTIN KING and ZAMBEZI PADDLE STEAMER (PVT) LTD and DOBROCK (PVT) LTD Ruled By: KUDYA J

View Appeal HH310-11 : CHINA SHOUGANG INTERNATIONAL vs STANDARD CHARTERED BANK ZIMBABWE LTD Ruled By: BERE J

HB29-17 : CLAUDIOUS MANAMELA and BRIGHTON NANGA and SAZIWE DUBE and ENOCK MARUME vs COMMISSIONER GENERAL ZIMBABWE REPUBLIC POLICE and OFFICER ON CHARGE NJUBE POLICE STATION and APOSTOLIC FAITH MISSION OF AFRICA Ruled By: KAMOCHA J

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Law Portal
Zimbabwe

SC22-09 : MAXMUS SAVANHU vs MAGNET MARERE N.O. and MASTER OF THE HIGH COURT and THE REGISTRAR OF DEEDS
Ruled By: MALABA DCJ, CHEDA JA and GARWE JA

HH196-15 : G CHIPARAUSHE and 66 OTHERS vs TRIANGLE LIMITED and TRIANGLE SENIOR STAFF PENSION FUND
Ruled By: CHIGUMBA J

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

HH480-18 : MILMATH SECURITY PL vs TABATANA MINING SYNDICATE and PAUL CHENJERAI and ISAAC JIRI and EARTHROW INVESTMENTS PL and PROSPER MACHEKERA and ORS
Ruled By: MANGOTA J

HH204-15 : THUTHANI MOYO vs JOHN BOWMAN and PONDS PHIRI and BERYL WATSON and MARGARET JAMES and ABEL DENHERE and OTHERS
Ruled By: MAWADZE J

HH223-15 : ZIMBABWE SUGAR MILLING INDUSTRY WORKERS UNION (ZSMIWU) vs ALFRED MAKWARIMBA and KENNIAS SHAMUYARIRA and ELIAS MADZIVA and FREEDOM MUDUNGWE and OTHERS
Ruled By: MANGOTA J

HH213-18 : BULCHIMEX GmbH IMPORT-EXPORT CHEMIKALIEN und PRODUKTE and TECHNOIMPEX SOFIA BULGARIA JSC vs BULCHIMEX GMBH IMPORT EXPORT CHEMIKALIEN und PRODUKTE PL and SARAH HWINGWIRI and R. JOGI
Ruled By: MANGOTA J

HB81-18 : FRANK MUTEZO and OTHERS vs ZIMBABWE SCHOOL EXAMINATIONS COUNCIL and THE MINISTER OF PRIMARY AND SECONDARY EDUCATION
Ruled By: MOYO J

HH124-18 : MIKE VELAH and ALBERT NYAMURONDA and JOSEPH PEDZAYI and BRENDA HATINAHAMA vs THE MINISTER OF PRIMARY & SECONDARY EDUCATION and ZIMBABWE SCHOOL EXAMINATIONS COUNCIL
Ruled By: ZHOU J

HH99-10 : CRAIG ROBINSON vs ROBERT ROOT PROPERTY CONSULTANTS and HAMMER AND TONGUES (PVT) LTD
Ruled By: MAKARAU JP

HH95-10 : TIISO HOLDINGS (PTY) LIMITED vs ZIMBABWE IRON & STEEL COMPANY LIMITED
Ruled By: PATEL J

SC54-06 : VIGOUR FUYANA vs NTOMBAZA MOYO
Ruled By: CHIDYAUSIKU CJ

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

View Appeal
HH113-06 : JOSHUA KADENGU and LAMECK KADENGU and ROSA KADENGU vs OLGA KADENGU (In her personal capacity and as guardian of her two minor children) and RICHARD CHIMBARU and MASTER OF THE HIGH COURT
Ruled By: KUDYA J

HB189-18 : CLAUDIUS MANAMELA and BRIGHTON NANGA and SIBONGILE MANAMELA vs ROSEWELL ZULU and APOSTOLIC FAITH MISSION OF AFRICA INTL and CLEMENT NYATHI and APOSTOLIC FAITH MISSION OF AFRICA
Ruled By: MABHIKWA J

HH49-09 : DYNAMOS FOOTBALL CLUB (PRIVATE) LIMITED and DYNAMOS FOOTBALL CLUB vs RICHARD CHIMINYA and OTHERS
Ruled By: CHATUKUTA J

SC39-00 : E. FILON vs THE PUBLIC SERVICE COMMISSION and THE MINISTER OF LANDS AND WATER RESOURCES
Ruled By: GUBBAY CJ, McNALLY JA and EBRAHIM JA

HH32-08 : LOVENESS SENGEREDO vs ERIC CABLE N.O.
Ruled By: MAKARAU JP

HH92-09 : SUPA PLANT INVESTMENTS (PVT) LTD vs EDGAR CHIDAVAENZI
Ruled By: MAKARAU JP

SC02-21 : EDDIES PFUGARI (PVT) LTD and EDWARD NYANYIWA vs KNOWE RESIDENTS AND RATEPAYERS ASSOCIATION and NORTON TOWN COUNCIL
Ruled By: PATEL JA, BHUNU JA and BERE JA

HH458-19 : KNOWE RESIDENTS AND RATEPAYERS ASSOCIATION vs EDDIES PFUGARI (PVT) LTD and EDWARD NYANYIWA and NORTON TOWN COUNCIL and REGISTRAR OF THE HIGH COURT
Ruled By: FOROMA J

HH63-16 : ASWEL NYANZARA vs MBADA DIAMONDS (PRIVATE) LIMITED
Ruled By: CHITAPI J

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

HB10-15 : INTRO-WISE CATERING (PVT) LTD vs COSIRA COMMUNICATIONS GLOBAL and COSIRA AFRICA (PTY) LIMITED and ZIMBABWE PLATINUM MINES (PVT) LTD
Ruled By: MAKONESE J

SC37-09 : EDDIES PFUGARI (PVT) LTD vs KNOWE RESIDENTS ASSOCIATION and NORTON TOWN COUNCIL
Ruled By: SANDURA JA, ZIYAMBI JA and GARWE JA

SC60-21 : LEATHOUT INVESTMENTS (PVT) LTD vs FUTURE MUVIRIMI and PETRONELLA MUVIRIMI
Ruled By: GOWORA JA, PATEL JA and BERE JA

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

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

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

SC68-21 : SIBONILE DUBE vs PAUL MUREHWA and MINISTER OF LOCAL GOVERNMENT, PUBLIC WORKS AND NATIONAL HOUSING N.O.
Ruled By: GUVAVA JA, MAVANGIRA JA and KUDYA AJA

SC144-21 : FARAI MATSIKA and FAIRGOLD INVESTMENTS (PRIVATE) LIMITED vs MOSES CHINGWENA and 38 OTHERS
Ruled By: BHUNU JA

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

HMA02-19 : JETINOS ZIVANOMOYO vs HELLEN DINGANI
Ruled By: MAWADZE J and MAFUSIRE J

HH128-06 : DOBROCK HOLDINGS (PVT) LTD and TURNER AND SONS (PVT) LTD vs TURNER AND SONS (PVT) LTD and ANTHONY TURNER and MARTIN KING and ZAMBEZI PADDLE STEAMER (PVT) LTD and DOBROCK (PVT) LTD
Ruled By: KUDYA J

View Appeal
HH310-11 : CHINA SHOUGANG INTERNATIONAL vs STANDARD CHARTERED BANK ZIMBABWE LTD
Ruled By: BERE J

HB29-17 : CLAUDIOUS MANAMELA and BRIGHTON NANGA and SAZIWE DUBE and ENOCK MARUME vs COMMISSIONER GENERAL ZIMBABWE REPUBLIC POLICE and OFFICER ON CHARGE NJUBE POLICE STATION and APOSTOLIC FAITH MISSION OF AFRICA
Ruled By: KAMOCHA J