Citation and Joinder re: Approach, the Joinder of Necessity and Third Party Notices

HH516-14 : CHEN WANG vs JOSEPH MANDIZHA and TAWANDA MAVHUNGA and TAFADZWA MAVHUNGA and DARNEL ENTERPRISES (PRIVATE) LIMITED
Ruled By: MATHONSI J

This is an application made in terms of Rule 94(2) of the High Court of Zimbabwe Rules 1971 for the leave of the court to make an application for an order joining the first respondent, the second respondent and the third respondent as parties in an action instituted by the fourth respondent against the applicant ...

The applicant would like to be given an indulgence to lodge that application within 14 days of the grant of the order and that the costs of the application be reserved for the main cause.

Surprisingly, the application has attracted a volley of opposing papers from virtually all the respondents including the fourth respondent which is already a party in the main proceedings, which proceedings have gone past the pre-trial conference stage and await set down for trial.

In HC10452/11, the fourth respondent sued the applicant by summons action alleging that it is the owner of a certain property known as Stand 1732 Prospect Township of Lot 359 of Prospect Harare which it held by Deed of Transfer No. 953/2008. It averred that Tawanda Mavhunga, who is the third respondent herein and a brother in law to its Managing Director, unlawfully and without the authority of its directors sold and transferred the property, a vacant Stand, to the present applicant who took transfer by Deed of Transfer No. 4339/2010. The fourth respondent craved for cancellation of that Deed of Transfer and the reinstatement of its own Deed, namely, 953/2008. The applicant contested the action and in his plea he denied that the fourth respondent's title deed was ever lost insisting that he had lawfully acquired the property through the medium of Tawanda Mavhunga who had the authority of the fourth respondent to alienate it. Having so acquired the property he had proceeded to construct a factory on it. He vehemently denied that the sale was fraudulent maintaining that all the fourth respondent wanted to do was to resell the property.

The pretrial conference in that matter was held before a Judge on 23 July 2013 but not before the presiding judge had directed the parties to hold a round table conference of their own to try and narrow the issues and possibly settle the matter.

The applicant says it was during the course of that conference that the fourth respondent produced, through its counsel, an affidavit signed by a Commissioner of Oaths in blank and pointed out that it had been uncovered at the house of the fourth respondent's directors where Tawanda Mavhunga used to live. He had left it behind. It was also revealed to him that the directors had not been in South Africa at the material time as alleged by the first respondent who executed the transfer ostensibly on the instructions of Tawanda Mavhunga duly authorised thereto by the fourth respondent. Realising that he was standing on sinking sand, the applicant saw the wisdom of joining the first, the second and the third respondents as parties to the action he is facing especially as he discovered then that the three of them have been jointly charged with conspiracy to fraudulently transfer the property to him.

When the fourth respondent's counsel forwarded the transcript of the Criminal Court proceedings in question to his legal practitioners, the applicant discovered that, according to the evidence, the second and the third respondents had confessed that the property had been transferred without authority and that a portion of the purchase price was paid into the account of the third respondent - hence the decision to include him as well.

It is for those reasons that he seeks an extension of the time during which to make an application for joinder.

The reason the application could not be made within the time allowed for the filing of a plea is that he only became aware of the facts requiring the joinder of the respondents during pre trial conference proceedings. The basis for their joinder being that if the second respondent was not authorized to pass transfer then he is entitled to be indemnified by the first respondent on the basis of the assurances he gave the applicant that the second respondent was duly authorized; he claimed that he had spoken to the fourth respondent's directors and confirmed not only that they were in South Africa at the time but also that they had given authority to the second respondent to pass transfer. The second and the third respondents are liable on the basis of their fraudulent activities.

In his opposing affidavit, the first respondent made a meal out of the fact that this application was filed out of time. In his view, it must fail on the basis that there has been no condonation of the late filing of the application for joinder.

I agree with counsel for the applicant that the first respondent has misconstrued the application as if it is the main application for joinder. It is not. It is merely an application for leave to file an application for joinder out of time as provided for in the Rules.

The first respondent confirms that the documents used to effect transfer have been challenged as being fraudulent. He however denies the allegations that he told the applicant that the fourth respondent's directors were known to him. To him, he was also a victim of the deceipt. He helpfully confirms that he is jointly charged in the Criminal Court with the second and the third respondents and that the matter is yet to be concluded, although maintaining that no basis has been laid for a claim for indemnity against him.

The second and the third respondents have also opposed the application.

In his opposing affidavit, the second respondent insists that he was authorized to transfer the property. He confirms having given the conveyancer the documents to effect transfer which have been challenged. He gratuitously adds that the fourth respondent's directors are now plotting against him in order to regain the property which has been developed by the applicant and is now worth millions of dollars. He would not want to be joined as a party because he acted lawfully and the third respondent should not be joined either because he did not participate.

Counsel for the second and the third respondent's submitted that joining the two would be prejudicial to them because the proceedings in the main action are almost complete.

With respect, I can conceive of no earthly basis of such prejudice, other than the human sense of self-preservation and fear of litigation.

The grounds upon which a defendant may apply to join a third party to an action are provided for in Rule 93 of the High Court of Zimbabwe Rules, 1971. It provides:

“Where, in any action, a defendant who has entered appearance claims as against any person not already a party to the action (in this order called the third party)…,;

(a) That he is entitled to contribution or indemnity;

(b) That he is entitled to any relief or remedy relating to or connected with the original subject matter of the action and substantially the same as some relief or remedy claimed by the plaintiff; or

(c) That any question or issue relating to or connected with the said subject matter is substantially the same as some question or issue arising between the plaintiff and the defendant, and should properly be determined, not only as between the plaintiff and the defendant, but as between the plaintiff and the defendant and the third party, or between any or either of them;

The defendant may make a court application to join that person as a third party in the action.”

I am aware that I am not being called upon to determine an application for third party joinder. My brief is merely to consider granting leave for the filing of such application out of time. It is an inquiry that involves the exercise of the wide discretion reposed in the court whether to grant an indulgence to a party that has failed to comply with the Rules. Such discretion must, however, always be exercised judiciously.

The application before me itself is made in terms of Rule 94(2) which provides:

“The application (for joinder) shall, unless otherwise ordered by a judge, be served within the time limited for filing the plea, or, where the application is served by a defendant to a claim in reconvention, the plea thereto, and with it there shall be served upon the third party a copy of the summons and of any pleadings filed in the action.”…,.

The applicant did not file the application for joinder within the time limited for the filing of a plea. In fact, in his plea, he strongly defended the first and the second respondents as having acted with probity in all they did resulting in him taking transfer - a clear indication that he was unaware of the facts that he now seeks to rely upon to make a claim against the three respondents. He only became aware of the facts forming the basis of his claim for indemnity at the pre-trial conference. This is the explanation given for the failure to act timeously, and, in my view, it is satisfactory.

At some point, this court will have to sit to resolve the dispute between the parties. It is a dispute in which the fourth respondent wants the court to reverse the gains made by the applicant in taking transfer of the property following payment of a substantial sum of US$150,000 and then proceeding to construct on the property a factory “worth millions of dollars” as the second respondent helpfully tells us. Clearly, a lot of legal issues arise from the situation the parties find themselves in but what should not escape the courts consideration is that they are issues substantially connected to the claim being made by the fourth respondent and they involve the first respondent who is said to have given some assurances which turned out to be baseless, the second respondent who was the main actor, and the third respondent, who is said to have benefited percuniarily from the transaction.

The function of the court, in resolving disputes, is to do justice between the parties. WESSELS J was emphatic on that point in Whittaker v Ross & Anor 1911 TPD 1092…, that:

“It is not a game we are playing, in which, if some mistake is made, the forfeit is claimed. We are here for the purpose of seeing that we have a true account of what actually took place and we are not going to give a decision upon what we know to be wrong facts.”

Perhaps one should add that the court will not, and indeed should not, give a decision upon the wrong parties or where other important players are missing.

In my view, considerations which should exercise the mind of the court in deciding whether to grant the indulgence requested by the applicant are the same as those for deciding whether to grant leave to amend a pleading. In our law, although the granting or refusal of such indulgence is discretionary in nature, a court will generally grant it where doing so would be necessary for the purpose of determining the real controversy between the parties; Copper Trading Co. (Pvt) Ltd v City of Bulawayo 1997 (1) ZLR 134 (S)…,.

I am satisfied that the applicant has given a good explanation for his failure to act timeously and that the application for joinder which he intends to make has good prospects of success in the circumstances in respect of the three respondents targeted for joinder. I am mindful of the fact that the object of the procedure is to avoid a multiplicity of actions dealing with substantially the same subject matter and involving the same evidence: Building Electrical & Mechanical Corp (Salisbury) Ltd v Johnson 1950 SR 142.

In the result, I make the following order, that:

1. The applicant be and is hereby granted leave to make an application to this Honourable Court for an order joining the first, the second and the third respondents as third parties in the action instituted by the fourth respondent against the applicant in HC10452/11 out of time.

2. The court application shall be filed within fourteen (14) days from the date of the granting of this order.

3. The costs of this application are reserved for determination in the main cause.

HH203-15 : ASSWELL GURUPIRA and JEAN GURUPIRA vs EARTHMOVING & CONSTRUCTION COMPANY PL and and SANDRA MUIR and REGISTRAR OF DEEDS and THE SHERIFF and THE DEPUTY SHERIFF
Ruled By: MTSHIYA J

This is an application for a joinder. The draft order attached to the application reads as follows:- “1. The 6th Respondent be and is hereby joined as the 6th Respondent in Case No. HC1393/08. 2. The 6th Respondent shall, if he wishes to defend the 1st and 2nd Applicants' claim, file a Notice of Opposition within (10) ten days of service ...

This is an application for a joinder. The draft order attached to the application reads as follows:-

“1. The 6^th Respondent be and is hereby joined as the 6^th Respondent in Case No. HC1393/08.

2. The 6^th Respondent shall, if he wishes to defend the 1^st and 2^nd Applicants' claim, file a Notice of Opposition within (10) ten days of service of the pleadings in Case No. HC1393/08 on him.

3. The rest of the pleadings shall be dealt with in accordance with the rules of the Court.

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

I give, here-below, a brief background to the relief sought.

On 7 March 2008 the applicants filed an application under case number HC1393/08 (the main matter) for the following relief:-

“IT IS ORDERED THAT:

1. The 1^st Respondent [the plaintiff herein] is hereby interdicted from transferring the property known as No. 98 Churchill Avenue, Harare, also known as a certain piece of land situate in District of Salisbury Township Lands measuring 3,066 square metres under Deed of Transfer 39/76 to anyone except the 1^st and 2^nd Applicants.

2. The property in paragraph 1 above be transferred to Asswell Africa Gurupira and Jean Jane Gurupira and the 2^nd Respondent [Sandra Muir] is directed to sign all the necessary documents to finalise the transfer within 10 days of the Order.

3. Should the 2^nd Respondent fail or refuse to sign the necessary documents to effect transfer, the 4^th or 5^th Respondent [Sheriff and Deputy Sheriff respectively] are hereby directed to sign all the necessary documents to effect the transfer by the 3^rd Respondent [Registrar of Deeds] to 1^st and 2^nd Applicants.

4. The 1^st and 2^nd Respondents shall bear all the costs of this application on attorney-client scale jointly and severally one paying the other to be absolved.”

On 21 May 2008, I granted the above order in default.

On 22 August 2008, the sixth respondent, in his capacity as the Managing Director of the first respondent, filed an application, under case number HC4211/08, for the rescission of the default judgment granted in favour of the applicant on 21 May 2008. I must mention that when the rescission application was filed, the default order had already been executed/enforced.

In paragraph 14 of the founding affidavit in the rescission application filed on 22 August 2008 in HC4211/08, the sixthrespondent averred as follows:-

“14. I humbly submit that the Applicant has got a prima facie right and a bona fide defence to the 1^st and 2^nd Respondents claim. Applicant bought all the shares from the 3^rd Respondent, through its Managing Director, and took transfer of the shares well before the 16^th of June 2008 when the 1^st and 2^nd Respondents took transfer of the immovable property. In fact, the Order granted by this Honourable Court, see Annexure “I”, was granted in error. The alleged Agreement of Sale between 1^st, 2^nd and 3^rd Respondents was not for the sale of the immovable property but for the sale of shares. In fact, it is quite doubtful that the same could have been granted if the 1^st and 2^nd Respondents' Legal Practitioners had been candid with this Honourable Court and included Annexure “H” which is the Notice of Opposition to the Court Application. As it is, 1^st and 2^nd Respondents Legal Practitioners saw it fit to cherry pick the information and omitted to mention or attach the Opposing Affidavit to Case No. HC6660/07. In a nutshell, the transfer of the immovable property to the 1^st and 2^nd Respondents is null and void as the company shares in the Applicant were bought and transferred to JOHN LEGGETT, who, in his capacity as the sole shareholder, became the owner of all assets owned by the Applicant well before it purported to take transfer of the immovable property on the 16^th of June, 2008.”…,.

The first and the second respondents referred to in the above passage are the first and the second applicants herein. The third respondent is the second respondent in this matter. John Leggett, referred to in the above passage, is the sixth respondent that the applicant herein seeks to join in the main matter (HC1393/08).

The contents of the above passage are further reinforced in the answering affidavit filed by the sixth respondent on 25 September 2008 in HC4211/08 on behalf of the applicant therein. In paragraphs 6 and 7 of the answering affidavit, the sixth respondent states as follows:

“6. Annexures “B1” and “B2” clearly show that 3^rd Respondent transferred her shareholding to John Leggett. I also attach hereto, as Annexure “A” a Share Certificate which clearly shows that John Leggett is the owner of 100 fully paid ordinary shares in the Applicant. It is true that the Applicant was the owner of all its assets, including the immovable property in dispute, and the same (Applicant) was owned by the 3^rd Respondent hence her power to sell and transfer the shares to John Leggett who became the owner of the Applicant. Simple logic testifies that the purpose of purchasing shares is to own and control that company and how 'the deponent did not become the owner of the Applicant's property by acquiring shares in it' is confusing (for want of a better word).

Is it being suggested that Applicant's shareholder (John Leggett) elected to buy the name of the company and did not want to become owner of Applicant's property by acquiring shares in it?

The averments in this paragraph by the 1^st and 2^nd Respondents is, with respect, confusing. Initially, it is alleged that “3^rd Respondent did not transfer any shares to the Applicant. Then a few lines down it is alleged that 'the deponent did not become owner of the Applicant's Property by acquiring shares in it.'

The issue is not who entered into an Agreement with 3^rd Respondent first. The issue is simply, who took transfer of the shares first.

As at 28^th May 2008, John Leggett was the new shareholder and owner of the Applicant.

Annexure “A”, attached hereto, clearly shows that the Share Certificate was issued to John Leggett on the 5^th of June 2008 and 1^st and 2^nd Respondents took transfer improperly of the immovable property on the 16^th of June 2008. The 1^st and 2^nd Respondents either deliberately or through a genuine error on their party overlooked the fact that the Applicant has a new shareholder who took transfer of the Shares from 3^rd Respondent, and, as such, has got a vested interest in the matter. The Applicant is the owner of the immovable property and other movable property and if it cannot be the Applicant who deposes to the Founding Affidavit who should then be?

7. The Applicant had new Shareholders who should have been cited by the respondents. The law is quite clear.”…,.

As per his own averments, the sixth respondent was actually the new sole shareholder of the first respondent in casu. The foregoing brings to the fore the sixth respondent's vested interest in the main matter. Clearly, the relief sought in paragraph 2 of the draft order in the main matter (HC1393/08) would adversely impact on the vested interest of the sixth respondent. That position requires no argument and would indeed form the legal basis upon which a joinder is being sought.

When the rescission application was placed before PATEL J…, he directed that, because of the disputes of fact in the matter, it should go to trial.

The matter eventually went to trial before MAFUSIRE J who granted the rescission on 19 March 2014. The rescission meant that the main matter, (HC1393/08), should now be heard in terms of the rules of this court. However, before the hearing of the matter, the applicants correctly deemed it necessary to join the sixth respondent who was not cited in the main matter.

Curiously, the application for joinder is opposed by the sixth respondent. This is despite the fact that, according to him, he is now the Managing Director and sole shareholder of the first respondent. Ownership of the property, which is really at the center of the dispute between the parties, is said to vest in the first respondent, whose total shares the sixth respondent now claims to own.

In his founding affidavit, in casu, the first applicant explains, in part, as follows:

“8. On the 7^th of March 2008, I together with 2^nd Applicant filed a Court Application before this Honourable Court, seeking an order for specific performance against the 1^st and 2^nd Respondents, among other things. The order was granted in default and has since been rescinded by this Honourable Court. Parties are back to the previous status quo.

I beg leave to refer to the pleadings in 1393/08 as if specifically traversed herein. At the time of the issuing of the said application the 2^nd Respondent had in her possession on the Share Certificates reflecting her as the sole shareholder of the 1^st Respondent, the Company owning Stand 12896 Salisbury Township measuring 3,066 square metres also known as No.98 Churchill Avenue, Gunhill, Harare. I together with 2^nd Applicant, entered into an agreement to buy the said shares to facilitate ownership and control of Stand 12896 Salisbury Township measuring 3,066 square metres also known as No.98 Churchill Avenue, Gunhill, Harare.

However, it subsequently came out that the 2^nd Respondent had later purported to issue and sell the same shares in the 1^st Respondent to the 6^th Respondent, John Legett, without our knowledge. Therefore, the said John Legett clearly has an interest in the outcome of the Case No. HC1398/08 which seeks to have us declared the true shareholder of the 1^st Respondent and subsequently, the process of Stand 12896 Salisbury Township measuring 3,066 square metres also known as No.98 Churchill Avenue, Gunhill, Harare at 6^th Respondent's expense.

9. The 2^nd Applicant and I insist that we are the rightful shareholders in 1^st Respondent and believe that the purported transfer to John Legett was improper and a legal nullity.

We would want the court to rule that purported sale of the shares to John Legett be deemed null and void and it is only proper that the 6^th Defendant/Respondent be given an opportunity to give his side of the story.

10. Therefore, it is necessary that the 6^th Respondent, John Legett, be joined in this case to enable us to enforce the order we are seeking before this Honourable Court. In fact, the Court can properly determine the issue of the purported sale of shares to the 6^th Respondent by the 1^st and 2^nd Respondents as all the interested parties would be before it.”

Indeed, the relief sought in the main matter is the one reproduced in full at page 2 of this judgment. In the main, the applicants pray for the transfer of the property in dispute to themselves.

In the main matter, (HC1393/08), the opposing affidavit sworn to by the sixth respondent states, in part, as follows:-

“(a)…,.

(b) The 2^nd Respondent's interest in this matter ceased on the 28^th of May 2008 when 2^nd Respondent sold and transferred to me her two shares in the 1^st Respondent. I must mention that by this date I already held 98 shares in the 1^st Respondent.

(c) As from 11 December 2007 I had been the majority shareholder in the 1^st Respondent as I had ninety eight shares. Following the agreement of 28 May 2008 I had then assumed 100% shares of the 1^st Respondent.

(d)…,.”

The above is consistent with other averments made in the rescission application (HC4211/08) and already quoted in this judgment.

Notwithstanding the sixth respondent's clear interest in the main matter, (HC1393/08), he remains opposed to the joinder.

In his opposing affidavit in the main matter the sixth respondent states as follows:-

“4. The First Applicant has deliberately misrepresented the relevant facts of this matter which facts are well known to him. Undoubtedly, he has chosen to adopt a course based on incorrect and incomplete facts in order to justify this extremely belated application for joinder.

5. It is correct that on 7 March 2008 the Applicants instituted a Court Application in Case No. HC1393/2008. I was not cited as a party in that application. In that matter, the Applicants sought an order, without any factual or legal basis, for the transfer of the property in Churchill Avenue from the name of the First Respondent into their personal names. There had not been any proper service of the papers in the matter on the First Respondent, but, notwithstanding, a judgment in default was granted.

6. As soon as I learnt to the default judgment, I caused an application for rescission of that default judgment to be made on behalf the First Respondent, which was Case No. HC4211/2008. It was an application brought, in the main, by the First Respondent, for the rescission of the judgment obtained without notice or proper service and without any basis for the transfer to the Applicants of the property belonging to the First Respondent.

7. However, that application was referred to trial by the Honourable Mr Justice Patel on 24 September 2009 and the parties were directed to file pleadings. Among the pleadings filed was one termed “1^st and 2^nd Defendants' Counterclaim', filed on behalf of the present Applicants on 2 November 2009. In the so-called Counter-claim I was cited as the Second Defendant, and the relief sought in that Counterclaim was, in essence, precisely the same relief as is now being sought through the application for joinder. I attach a copy of that so-called Counter claim as Annexure “A” for the benefit of this Honourable Court.

Objection was taken to the attempt to join me as a party as none of the original papers had been served on me, and the legal practitioners representing the present Applicants thereafter withdrew the so-called Counterclaim. When the trial took place earlier this year before the Honourable Mr Justice Mafusire there was no claim made by the present Applicants against me in my personal capacity.

8. The result of that trial, handed down on 19 March 2014, was that the judgment given in default was set aside. Subsequent thereto, on 2 April 2014, I caused to be filed on behalf of the First Respondent the necessary opposing papers to the application brought in Case No. HC1393/2008, together with a counter-application for the eviction of the Applicants from the property belonging to the First Respondent.

The response thereto, on behalf of the Applicants, was to file, on 8 May 2014, the Applicants filed an opposing affidavit to the counter-application. The delay in filing that opposing affidavit had been the subject of correspondence between Gill, Godlonton & Gerrans and Sawyer & Mkushi. As agreement had been reached to allow the late filing of the Opposing Affidavit I make nothing of that delay.

10. On 30 May 2014, Heads of Argument for the Applicants were filed in Case No. HC1393/2008. I am advised that these Heads of Argument were filed out of time and that issue will be raised at the hearing of the application. Some five business day later the present application for joinder was filed and served.

12. The papers in Case No HC1393/2008 are now closed and the matter ready for hearing, rendering it inappropriate to reopen all those papers simply because the Applicants have eventually decided to bring an application for joinder. Most certainly, the Applicants have had since 19 March 2014 to make any such application, but have delayed, I would suggest, deliberately, until 6 June 2014 to bring that application in order to extend their unlawful occupation of the house in Churchill Avenue. It is also intended to interfere with the administration of justice and the proper determination of the issues raised in Case No. HC1393/2008.

11.3 Furthermore, more than three years have elapsed since the Applicants knew that I had entered into two agreements relating to the shares of the First Respondent. Those details had been set out in the founding papers which I caused to be filed on behalf the First Respondent in Case No. HC1393/2008 as long ago as 22 August 2008. I am therefore advised that the claim purported to be brought by way of the joinder application is prescribed and cannot be pursued.”

I take note of the withdrawal of the counter-claim wherein the sixth respondent had been cited.

In addition to the above objections, which I have, for the purpose of clarity, quoted at length, during the hearing of this application the sixth respondent raised another issue. It was an issue of law and the submission was:-

“19. The Form 29 used to institute this present application for joinder specifically states that the application is made in terms of Order 13 Rule 85 of the High Court Rules 1971. This reads:

'85. Subject to Rule 86 two or more persons may be joined together in one action as plaintiffs or defendants whether in convention or in reconvention where -

(a) If separate actions were brought by or against each of them, as the case may be, some common question of law or fact would arise in all the actions; and

(b) All rights to relief claimed in the action, whether they are joint, several or alternative, are in respect of or arise out of the same transaction or series of transactions.

The Rule clearly applies solely to actions and not to applications. It is submitted that there has been no extension of this Rule in the procedure relating to applications. Therefore, the attempt to make an application in terms of Rule 85 in the present circumstances was ill-founded.

21. This is not to say that in application procedures and Order 32 the Court cannot order the joinder of an interested party. But it does mean that any such joinder cannot be to permit substantive relief different to that sought in the founding application to be claimed.”

I find myself in a situation where the party to be joined is clearly an interested party, and, to me, that is the major issue in this case.

The sixth respondent has indeed loudly pronounced his interest in the matter. However, for the detailed reasons given above, the interested party (i.e. the sixth respondent) does not want to be joined. To the extent that my finding, based on his own statements, is that he is indeed an interested party, it becomes difficult to accept the issue of delay as militating against the joinder. The main matter is yet to be set down and heard.

I also believe that the issue of prescription is a matter to be determined during the hearing of the main matter. The same applies to whether or not, because of disputes of fact, the matter should have been by way of action. That, in my view, is an issue to be determined by the judge who will deal with the main matter. It will be his/her prerogative to either dismiss the matter or give directions as happened in the first respondent's application for rescission (i.e. HC4211/08).

It is also important to understand the full import of the rescission order granted by MAFUSIRE J. The full order read as follows:-

“IT IS ORDERED THAT:

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

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

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

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

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

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

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

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

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

As can be seen under the Judge's directions, given under paragraph 3.2. of the order, the sixth respondent is brought into the main matter. Given the import of paragraph 3.2. of the court order, I do not see how the residual matters referred to in that order can be determined without the participation of the sixth respondent. My view is that the order indirectly called for the joinder of the sixth respondent.

With regards to the legal issue, I acknowledge the fact that both Rules 85 and 87 appear to confine themselves to actions. However, I take the view that a rigid construction of those Rules will result in a miscarriage of justice. I therefore believe that reference to “any cause” in Rule 87 should enjoy a wider and encompassing meaning. In that case, an interested party can join or be joined as long as the matter is yet to be determined i.e. at any stage. It would therefore, in the circumstances, be appropriate to invoke Rule 4C of the High Court Rules 1971 which provides as follows:-

“4C. Departures from Rules and directions as to procedure

The court or a judge may, in relation to any particular case before it or him, as the case may be –

(a) Direct, authorize or condone a departure from any provision of these Rules, including an extension of any period specified therein, where it or he, as the case may be, is satisfied that the departure is required in the interests of justice;

(b) Give such directions as to procedure in respect of any matter not expressly provided for in these Rules as appear to it or him, as the case may be, to be just and expedient.”

In view of the foregoing and given the fact that this court can manage its own Rules in order to render justice to litigants, I am unable to accept that an application for joinder cannot be made in a matter/cause brought by way of application. That, in my view, would be an unfair law.

It was correctly argued that pleadings had closed and the matter was ready for hearing. That may be the case, but this court has, in the interests of justice, a discretion which it can, without prejudice to the sixth respondent, use to accommodate the situation that the sixth respondent is uncomfortable with. That extends to the possibility of supplementary affidavits being filed subject to leave being granted by the court. I cannot, therefore, at this stage, pronounce on how the main matter will be handled upon the sixth respondent being joined. I can, however, boldly declare that the sixth respondent has a vested interest in the main matter and should therefore be joined as a party to the main matter. That move will enable the court to properly interrogate the issues to be addressed in the main matter.

The application must succeed.

IT IS ORDERED THAT:

1. John Leggett be and is hereby joined as the 6^th Respondent in Case No. HC1393/08.

2. The 6^th Respondent shall, if he wishes to defend the 1^st and 2^nd Applicants' claim, file a Notice of Opposition within (10) ten days of service of the pleadings in Case No. HC1393/08 on him.

3. The rest of the pleadings shall be dealt with in accordance with the Rules of the Court.

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

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

When the application was referred to trial and the parties were directed to file further pleadings with the application taking the place of the summons, the Gurupiras, through Manase and Manase, had purported to join John Legget to the matter and had gone on to claim a substantive relief against both him and the plaintiff. ...

HH241-18 : CLOVER LEAF MOTORS GROUP (PRIVATE) LIMITED vs BUTHOLEZWE ZHOU and PATRICE SHAYAMANO
Ruled By: CHITAKUNYE J

This is an application for the return of the applicant's motor vehicles that it had issued to the respondents during the tenancy of their employment with the applicant. The two respondents were employed by the applicant as Group Accountant and Branch Accountant respectively until 31 October 2015 when their services were terminated on notice. During the tenancy ...

This is an application for the return of the applicant's motor vehicles that it had issued to the respondents during the tenancy of their employment with the applicant.

The two respondents were employed by the applicant as Group Accountant and Branch Accountant respectively until 31 October 2015 when their services were terminated on notice. During the tenancy of their employment contracts, the respondents had been issued with motor vehicles for both business and private use on terms set out in their contracts as read with the applicant's motor vehicle policy.

The first respondent was issued with a Nissan Qushquai Registration No. ACX 4888 and the second respondent was issued with a Nissan Almera Registration No. ACU 6164. They were both obliged to return the motor vehicles upon termination of their contracts of employment.

When their contracts were terminated, on 31 October 2015, both respondents did not return the vehicles. Instead, they filed a complaint of unfair dismissal against the applicant. Their effort in that direction was unfruitful as the Labour Court, on the 23^rdof September 2016, held that the applicant was entitled to terminate the contracts on notice, and, instead, ordered that the respondents be paid compensation for loss of employment in terms of section 12(4b) as read with section 12C(2) of the Labour Act [Chapter 28:01] as amended.

Neither respondent appealed against the Labour Court judgement hence that decision remained extant to this day.

Despite not having appealed against the Labour Court judgment, the respondents refused to surrender the applicant's motor vehicle. It was, in such circumstances, that the applicant approached this court in this application seeking an order in the following terms:-

1. The respondents shall surrender to the applicant, or its authorised representative, a Nissan Qushquai registration No. ACX 4888 and a Nissan Almera registration No. ACU 6164, respectively, within 24 hours of service of this order.

2. Should the respondents fail or refuse to surrender the said vehicles, the Sheriff be and is hereby authorised to utilise the services of the police to repossess the said vehicles.

3. The respondents shall pay the costs of this application on a legal practitioner and client scale.

Upon being served with the application, the second respondent duly surrendered the vehicle that had been allocated to him. The first respondent, on the other hand, opposed the application.

The first respondent contended that after being appointed as Branch Accountant, on 1 March 2009, he was subsequently appointed Company Secretary for another company, Clover Leaf Panel Beaters (Pvt) Ltd (herein after referred to as CLPB) which appointment was made before he had completed his probation period with the applicant. This was done without cancelling his appointment as Branch Accountant with the applicant. The appointment as Company Secretary was, however, verbal. He averred that the applicant and Clover Leaf Panel Beaters (Pvt) Ltd are two different companies but with common ownership. When he was promoted to the position of Group Accountant he also continued as Company Secretary for Clover Leaf Panel Beaters (Pvt) Ltd (CLPB).

He further contended that when the vehicle was issued to him, he used it to carry out duties for the two companies. Upon termination of his contract with the applicant, he retained the vehicle as his terms of contract with Clover Leaf Panel Beaters (Pvt) Ltd (CLPB) also entitled him to a motor vehicle. According to the first respondent, it was not clear as to which company had issued him the vehicle.

In the light of the purported employment by Clover Leaf Panel Beaters (Pvt) Ltd (CLPB), the first respondent contended that the present application is fatally defective for non-joinder of Clover Leaf Panel Beaters (Pvt) Ltd as applicant was well aware of his issue with Clover Leaf Panel Beaters (Pvt) Ltd.

It is my view that this point in limine was without merit. The applicant made it clear, in its founding affidavit, that Clover Leaf Panel Beaters (Pvt) Ltd (CLPB) was its subsidiary and that by virtue of being the Group Accountant, the first respondent was required to provide secretarial duties to Clover Leaf Panel Beaters (Pvt) Ltd (CLPB). It was part of his duties and not that he was now separately employed by that subsidiary company….,.

It may also be noted that, in terms of Rule 87(1), the non-joinder of a party is not fatal. Rule 87(1) states that:

“No cause or matter shall be defeated by reason of the misjoinder or non-joinder of any party and the court may, in any cause or matter, determine the issues or questions in dispute so far as they affect the rights and interests of the persons who are parties to the cause or matter.”

In casu, the issue between the applicant and the first respondent can easily be decided without the involvement of Clover Leaf Panel Beaters (Pvt) Ltd (CLPB).

HH223-13 : HWANGE COLLIERY CO. LTD and HWANGE COAL GASIFICATION CO. PL vs HWANGE COAL GASIFICATION CO. PL and TENDAI SAVANHU and KINGDOM BANK LTD and STANBIC BANK LTD and GUO FENG and ORS
Ruled By: MAFUSIRE J

There has been ferocious litigation in a space of four months pitting several protagonists. The dispute was convoluted and the issues multi-faceted. At the centre was a company called Hwange Coal Gasification Company (Private) Limited. For ease of reference I shall refer to this company as the Coal Gasification Company. The one protagonist was a Chinese company by the name of Taiyuan Company Limited. The variants to that name, vehemently disputed by the other protagonists, were Taiyuan Sanxing Company Limited and Taiyuan Sanxing Economic and Trade Company Limited….,.Hereafter I shall refer to it as “Taiyuan”.

The other protagonists were two Chinese nationals and businessmen called Guo Feng (“Feng”) and Su Longmin (“Longmin”).

In the hearing before me, and for convenience, the two were referred to as the “Samukange faction”.The reason shall soon become apparent.

The next lot of protagonists were Zimbabwean nationals and businessmen Cephas Msipa (“Msipa”) and Gilbert Chahwanda or Chawanda (“Chawanda”). In the hearings they were referred to as the “Dzvetero faction”.

The next lot was Hwange Colliery Company Limited (“Hwange Colliery”). Three commercial Banks, Stanbic Bank Zimbabwe (“Stanbic”), Kingdom Bank Zimbabwe (“Kingdom”), and Allied Bank Zimbabwe (“Allied Bank”) were cited in some of the cases.

The last protagonist was one Tendai Savanhu (“Savanhu”).

Apart from the urgent chamber applications listed as cases 1 to 6 above there had been two others before them. They had pitted essentially the same parties. At the time of the hearing three other proceedings, in the form of a court application and two actions, were still pending.

The litigation related to the protagonists' investment in, and control of the two companies Taiyuan and the Coal Gasification Company.

The brief background is that in October 2006 some Chinese nationals, including Feng and Longmin, got associated in a joint venture with some Zimbabwean nationals that included Msipa, Chawanda and one Leo Mugabe (“Mugabe”). The object of the joint venture was to invest in various ventures. For that purpose, the Chinese nationals used Taiyuana as the special purpose vehicle. Both Feng and Longmin were directors. The special purpose vehicle used by the Zimbabwean nationals was a company called Stoat Mining (Private) Limited (“Stoat”) in which Mugabe, Msipa and Chawanda were directors.

In 2007, Taiyuan, now comprising both the Chinese and the Zimbabwean nationals, on the one part, and Hwange Colliery on the other, entered into a written agreement for the construction of a coke oven and a battery at Hwange Colliery on the basis of build, operate, own, and transfer (“the BOOT agreement”). In June 2011 the parties obtained an investment licence from the Zimbabwe Investment Authority (“the ZIA licence”). The ZIA licence stipulated a shareholding configuration of 75% for Taiyuan and 25% for Hwange Colliery.

The Coal Gasification Company was the special purpose vehicle formed by both Taiyuan and Hwange Colliery. The shares were held 75% by Taiyuan and 25% by Hwange Colliery.

The principal object of the Coal Gasification Company was the processing and carbonization of coal from resources within Zimbabwe. In terms of the BOOT agreement, the configuration of the Board of Directors for the Coal Gasification Company would be five (5) from Taiyuan and two (2) from Hwange Colliery. The chairman of the Board would be a Taiyuan appointee. Taiyuan's representatives on the first Board comprised Feng and Longmin as executive directors; Msipa and Chawanda as non-executive. Another Chinese national by the name of Zhang Jin Yuan (“JinYuan”) was the chairman. From Hwange Colliery came Savanhu and one Fred Moyo (“Fred Moyo”) then chairman and managing director respectively.

Taiyuan and Hwange Colliery soon clashed.

One of the points of contention by Hwange Colliery was that the Coal Gasification Company had breached the BOOT agreement. Hwange Colliery moved to cancel that agreement and to seek damages. Under HC537/13 it sued both Taiyuan and the Coal Gasification Company for damages amounting to $21 million. The matter was still pending at the time of the urgent chamber applications.

The other bone of contention by Hwange Colliery was that it had been induced to enter into an agreement with a non-existent company. This allegation stemmed from the confusion surrounding the identity of Taiyuan. The BOOT agreement and the ZIA licence identified Taiyuan as Taiyuan Sanxing Company Limited. However, Hwange Colliery alleged that such a company did not exist and that only after the BOOT agreement had been executed was a company called Taiyuan Sanxing Economic and Trade Company Limited formed in China.

Hwange's further bone of contention was that its BOOT partner, Taiyuan, was in turmoil. Its shareholders were at each other's throat. This allegation stemmed from the fact that the Chinese and the Zimbabwean nationals were bringing a series of applications against each other in the name of the Coal Gasification Company with both factions claiming to be the legitimate and authorised representatives of that company. Hwange Colliery was apprehensive that its investment in the Coal Gasification Company would be dissipated.

Hwange Colliery further claimed that Taiyuan had reneged on its pledge to bring into the country an amount of US$40 million as part of its injection into the joint venture. Therefore, Hwange Colliery was seeking cancellation of the BOOT agreement.

Within the Coal Gasification Company itself matters soon came to a head.

In March 2013 JinYuan, as chairman, called for the holding of an Annual General Meeting. It was scheduled for 24 April 2013. Feng and Longmin were vehemently opposed to that meeting. They moved to block it. On 19 April 2013 they filed an urgent chamber application under case no HC3003/13 in the name of Taiyuan Sanxing Economic and Trade Company Limited. Messrs G N Mlotshwa & Co represented the applicant. Hwange Colliery was cited as the substantive respondent. One Ananias Banda, the Company Secretary, and the Registrar of Deeds, were cited as nominal respondents.

The matter came before MAWADZE J.

A point in limine was taken that the Taiyuan as cited was not the Taiyuan as was recorded on the ZIA licence and with which Hwange Colliery had entered into an agreement. Mr Mlotshwa conceded. The application was dismissed with costs on the point in limine.

The Annual General Meeting (AGM) went ahead as scheduled. Among other resolutions, Feng and Longmin would be suspended from the Coal Gasification Company.

A day after the Annual General Meeting (AGM), i.e. on 25 April 2013, Feng and Longmin, in the name of Taiyuan Sanxing Economic and Trade Company Limited, filed an ordinary court application under HC3160/13 for an order nullifying the AGM and all the resolutions taken thereat. At the time of the hearings that application was still pending.

In May 2013 Feng and Longmin were formally suspended and called to a disciplinary hearing to answer various charges including one of fraud. The suspension letters were signed by Msipa as director. Feng and Longmin were eventually dismissed as executive directors in default of appearance at the disciplinary committee.

The Coal Gasification Company reconstituted its Board of Directors. The new Board wrote to the Banks, Stanbic, Kingdom and Allied Bank to “freeze” the company's accounts.

On 5 June 2013 Feng and Longmin, together with three other Chinese nationals, were barred access to some Harare premises rented by the Coal Gasification Company from Hwange Colliery. The one letter was signed by Chawanda. The other, in long hand, was signed by one Chininga who was said to be from Hwange Colliery. But this was disputed.

Feng and Longmin went on the attack.

They threatened the Banks and warned them not to take instructions from persons that were not signatories to the accounts. Feng reminded them that he was the signatory and that the signing instructions had been given by him. On 6 June 2013, before BERE J, Feng and Longmin obtained a spoliation order in the name of the Coal Gasification Company against Mugabe and Hwange Colliery. They were granted unhindered possession and control of the aforesaid premises. Mugabe and all those claiming rights through him were ordered to maintain peace and to allow undisturbed access to the applicant and to return any company documents and office keys. However, in subsequent proceedings, Hwange Colliery claimed that Feng and Longmin had been mala fide in that they had obtained the spoliation order not with any genuine intention to re-occupy the premises but merely to gain access in order to pilfer company assets such as office furniture and to cart them away to unknown destinations.

On 20 June 2013 Feng and Longmin filed two further urgent chamber applications (“the twin applications”). They were almost identical. They were both in the name of the Coal Gasification Company as the applicant. The applicant, in reality Feng and Longmin, was now represented by Venturas and Samukange. The one application was under HC4861/13. It is case no. 4 above. In that application it was sought to “unfreeze” the account at Kingdom Bank. The respondents were Kingdom, Chawanda and Msipa. Antonio & Dzvetero represented Chawanda and Msipa. Hwange Colliery was not cited. Kingdom remained neutral and sought to abide by the court order.

The other application was filed under HC4895/13. It is case no. 5 above. In that application the first respondent was Stanbic. That Bank also remained neutral and agreed to abide by the order of the court. Again, Hwange Colliery was not cited. HC4895/13 came before DUBE J. She heard it on 24 June 2013. The matter was settled by consent. The parties agreed to an interim order. The freeze on the Stanbic account would be uplifted. The authorised signatories would be Fred Moyo, one Tafara Gadzirai (“Gadzirai”) and Feng. These would have unconditional access to the account. Gadzirai would countersign for all withdrawals. The actual wording of the material portion of the order was as follows:

“That pending the final determination of this matter, Applicant is granted the following relief:

1. The 1^st Respondent be and is hereby ordered immediately and forthwith upon service of this order to unfreeze the Applicant's account being 0240057759001 held by the 1^st Respondent.

2. Applicant's authorised signatories named Fred Moyo, Tafara Gadzirai and Feng Guo shall have unconditional access to the account for the purposes of transacting on behalf of applicant provided that Tafara Gadzirai shall counter-sign for all payments.”

HC4861/13 came before MATHONSI J. He heard it on 26 June 2013. The parties also agreed to an interim order. It was almost identical to the one by DUBE J. However, before MATHONSI J could consider the application and the draft order by consent, Hwange Colliery applied to be joined to the proceedings. This was granted. The matter was postponed to the following week. As the Samukange faction filed the twin applications aforesaid the Dzvetero faction also filed its own. This was done on 21 June 2013, i.e. a day after the twin applications.

The Dzvetero application was filed under HC4897/13. It is case no.6 above. It was also in the name of the Coal Gasification Company as the applicant. The respondents were Feng, Longmin, Hwange Colliery, Allied Bank, Stanbic, Kingdom and a firm of chartered accountants called Welsa International Chartered Accountants. The Dzvetero application came before me. The basic relief sought was also to unfreeze the Bank accounts but to appoint the accountants as the sole administrators of those accounts pending the determination of the court application by the Samukange faction under HC3160/13. That was the application in which the validity of the Annual General Meeting (AGM) and the resolutions made thereat were being challenged.

It was upon perusal of the Dzvetero application that I became aware of the one Samukange application under HC4895/13 which had been placed before DUBE J. At that stage, I was neither aware of the other Samukange application under HC4891/13 that had been placed before MATHONSI J nor of the rest of the other proceedings referred to above. I did not immediately set down the Dzvetero application.

I had queries.

One of the averments in that application was that an Extraordinary General Meeting to resolve the entire shareholder issues in the Coal Gasification Company had been scheduled for 24 June 2013. Excluding the intervening weekend, the 24^thofJune 2013 was the next business day. So, in my view, there could have been no reasonable apprehension of an irreparable harm ensuing in that short space of time. Furthermore, it was common cause that it was the Dzvetero faction that had ordered the freeze on the Bank accounts. Therefore, I wondered why the intervention of the courts was being sought when the issue was now properly set for resolution in the boardroom by the “corporate parliament” of the company.

The supreme rule-making authority of a company rests with a general meeting of the members; see GOWER's Principles of Modern Company Law, 4^th ed…,.

At that stage, I was unaware that one of the issues that had triggered the twin Samukange applications was that the Banks had taken the position that given the apparent turmoil in the Coal Gasification Company, and that given the conflicting instructions and threats that they were receiving in respect of those accounts, the Banks would not unfreeze the accounts in the absence of a court order.

I called for the record of the one Samukange application under HC4895/13. But, by that time, the aforesaid order by consent by DUBE J had already been granted. However, I then became aware of the other Samukange application under HC4861/13 which had been placed before MATHONSI J and of the rest of the other applications referred to above. I then called for all the records.

Only thereafter did I get to appreciate the multifaceted disputes.

I set down the Dzvetero application for hearing on 27 June 2013. Mr T Mawere represented Hwange Colliery. Mr T Dzvetero represented the Dzvetero faction and the Coal Gasification Company. Mr J Samukange represented the Samukange faction and also the Coal Gasification Company.

At the hearing, Mr Mawere expressed concern that Hwange Colliery had not been cited in the twin Samukange applications and that the consent order by DUBE J had far reaching consequences that were prejudicial to Hwange Colliery in that, among other things, Fred Moyo, whom the two warring factions had selected as a co-signatory to the Bank accounts, was no longer employed by Hwange Colliery and that therefore he could not possibly represent it. It was further pointed out by Mr Mawere that the resolutions that the Samukange faction had used as authority to bring their twin applications in the name of the Coal Gasification Company had been signed by Savanhu - yet Savanhu had since been dismissed from the Board of Hwange Colliery.

In the premises, Mr Mawere gave notice that Hwange Colliery had filed, or would be filing, three urgent chamber applications;

(1) For an order that Hwange Colliery be joined to HC4895/13 and to vary the consent order by DUBE J so that Fred Moyo would be removed from the list of signatories and replaced by someone else properly appointed by Hwange Colliery;

(2) For an anti-dissipation interdict to prohibit the disposal of any of the assets of the Coal Gasification Company, especially the coal stocks, coking oven, and battery, by anyone purporting to act on behalf of that company until Hwange Colliery's claim for the cancellation of the contract and for damages under HC537/13 was determined; and

(3) For an interdict against Savanhu to stop him from masquerading as a director, representative, and appointee of Hwange Colliery on the Board of the Coal Gasification Company because he had been dismissed.

Mr Samukange vehemently opposed the intended applications.

Essentially, Mr Samukange's submission was that the choice of Fred Moyo as a co-signatory to the Bank accounts, in terms of the consent orders, was motivated not by his previous connection to Hwange Colliery but by the fact that he was a neutral person and that he was still a director of the Coal Gasification Company anyway even though he might have lost his employment with Hwange Colliery. Mr Samukange further submitted that, in terms of the agreement between the parties, Hwange Colliery would not be involved in the day to day management of the Coal Gasification Company; that the issue of signing on Bank accounts was one of management and that therefore Hwange Colliery was in effect seeking to sneak into the management of the Coal Gasification Company by the back door. He further submitted that the dispute between the two factions was not one for shareholders but one involving company management and that the interdict against Savanhu would be opposed on essentially the same basis, namely, that until Savanhu was properly removed from the Board of the Coal Gasification Company by that company itself Hwange Colliery had no right to do so especially given that it was just a minority shareholder.

The anti-dissipation order would be opposed on the basis that its effect would virtually paralyse and collapse the Coal Gasification Company the business of which was essentially the processing and disposal of coal.

Given the multi-faceted nature of the dispute and the issues between the parties, and given that they were so intertwined, it was readily agreed that all the matters would be consolidated and heard by a single judge.

Barring any unforeseen objections or complications it was agreed that I would hear the matters myself. The hearing was adjourned to a later date to be advised.

Hwange Colliery's three applications were subsequently filed under HC5171/13, being case no.1 above; HC5105/13, being case no.2 above and HC5331/13, being case no.3 above.

Eventually, I caused the matters to be set down for hearing on 5 July 2013.

Hwange Colliery was now represented by Advocate T Mpofu and Stanbic by Mr I Chagonda.

On that day, a new issue arose. It was on the consent order by DUBE J. It was for that single issue that Mr Chagonda was appearing. The new issue was this: it transpired that the parties could not agree on the interpretation of that order. Stanbic thought that the order could either mean that the three signatories Feng, Fred Moyo and Gadzirai had all to sign for any bank withdrawals but that the order could also mean that any two of them could sign for as long as one such signatory was Gadzirai.

The two factions favoured the interpretation that allowed any two to sign for as long as one of the signatories was Gadzirai. On the other hand, Hwange Colliery was vehemently opposed to that interpretation as it was feared that there could be connivance just to facilitate withdrawals. Consequently, Hwange Colliery favoured a restrictive interpretation that would allow withdrawals only when all the three signatories would sign.

On behalf of Stanbic, Mr Chagonda submitted that given the several threats for damages against it, the Bank would not permit any withdrawals until such time that the new signing arrangement was clarified.

The matter was adjourned to 11 July 2013 because Mr Samukange did not have some of the papers in the applications by Hwange Colliery. Before the resumption of the hearing on 11 July 2013 the Dzvetero faction had withdrawn its application under 4897/13. Therefore, the issue as to whether the interim management of the Bank accounts could be placed in the hands of the chartered accountants had automatically fallen away.

But, yet again, a new issue had arisen! It was also on the consent order by DUBE J.

Previously, on the day that the order had been granted, i.e. 24 June 2013, the Samukange faction had been represented by Advocate Firoz Girach. When the parties had come unstuck at Stanbic, as aforesaid, they had convinced themselves that what really they had consented to was the arrangement that any two of the three signatories could sign for any withdrawals for as long as one of such signatories was Gadzirai. Thus, the parties had then arranged to instruct Advocate Girach to approach DUBE J and seek an amendment of the consent order so that it would align with what allegedly was their true intention and true agreement. With Mr Dzvetero's consent, DUBE J had amended the order.

But there was a problem. Hwange Colliery had not been consulted.

Both factions had become aware, during the second sitting before me, that Hwange Colliery was disagreeing with such an interpretation and that not only would it be opposed to such an amendment but also that in its own application to be joined to those proceedings and for an amendment to that order it would move for an express provision that all the three signatories would have to sign for any withdrawals. Furthermore, since all the matters had been consolidated and would be heard by me, the propriety of pulling out the single record for purposes of amending the single order in terms which were disputed and in the absence of such an interested party as Hwange Colliery and without disclosing to both Advocate Girach and DUBE J that Hwange Colliery had in fact since filed its urgent chamber applications aforesaid was questioned.

Advocate Mpofu, for Hwange Colliery, expressed serious concern on the development....,.

However, before I grant that application, it is necessary to deal with the issue of joinder.

Hwange Colliery's application to be joined to the proceedings was sought as a final order. Strictly speaking, until it was joined it could not properly seek to interfere with the order to which it was not a party. Thus, it could not properly seek to have the consent order by DUBE J amended before it was joined.

However, I hold the view that this was merely a technical error in drafting. The relief sought as an interim order should first have sought the joinder and thereafter the rest of the orders sought. For the sake of expediency I am prepared to condone the error.

After all, the substantive relief being pursued is the removal of Fred Moyo from the list of the Bank signatories and his substitution thereof with someone else.

I also appreciate that the preparation of the papers could have been made in a rush in view of the perceived urgency.

Misjoinder or non-joinder of parties is governed by Order 13 Rule 87. The relevant provision is sub-rule (2)(b). It reads as follows:

“(2) At any stage of the proceedings in any cause or matter the court may on such terms as it thinks fit and just either of its own motion or on application –

[a]…,.

[b] Order any person who ought to have been joined as a party or whose presence before the court is necessary to ensure that all matters in dispute in the cause or matter may be effectually and completely determined and adjudicated upon, to be added as a party;”…,.

The purpose of joinder is largely convenience or necessity. Joinder saves time, effort, and costs.

HERBSTEIN & VAN WINSEN, The Civil Practice of the High Courts and the Supreme Court of Appeal of South Africa, 5^th ed…, state:

“A third party who has, or may have, a direct and substantial interest in any order the court might make in proceedings or if such an order cannot be sustained or carried into effect without prejudicing that party, is a necessary party and should be joined in the proceedings, unless the court is satisfied that such person has waived the right to be joined.”

Under Rule 87, the court is given a wide discretion. The court can order joinder even in the absence of an application by any person.

In this case, not only was there an application but also it was not opposed. The only mistake was that Hwange Colliery sought it as part of the final relief. Thus, Hwange Colliery is entitled to be joined as a party to the proceedings in HC4895/13. It is also entitled to have the consent order by DUBE J, on 24 June 2013, amended by the deletion of Fred Moyo's name therefrom and having it substituted thereof with that of Staford Ndlovu....,.

1. Hwange Colliery Company Limited be and is hereby joined as a party to the proceedings instituted in this court under the case references HC4861/13 and HC4895/13.

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....,.

The Non Joinder of TOC H Zimbabwe

In terms of Rule 87(1) of the High Court Rules, 1971 no cause of action or matter shall be defeated by reason of misjoinder on non-joinder of any party and the court may, in any cause or matter, determine the issues or questions in dispute so far as they affect the rights and interests of the persons who are parties to the cause or matter.

It is common cause that TOC H Zimbabwe is not party to these proceedings. The applicant has sought to rely on Rule 87(1) of the High Court Rules, 1971. The inescapable conclusion however is that the non-joinder of TOC H Zimbabwe is clearly fatal to these proceedings.

I say so because of a number of reasons.

It is clear from the applicant's founding affidavit that TOC H Zimbabwe, which is a juristic person, is intricately involved and implicated in the actions done by both the applicant and the respondents. The Constitution of TOC H Zimbabwe is in issue as well as the propriety of its operations. The resolutions made by TOC H Zimbabwe are put in issue either as illegal or as nullity. I have no doubt that TOC H Zimbabwe has a direct and substantial interest in this application. See Capital Alliance (Pvt) Ltd v Renaissance Merchant Bank Ltd & Ors 2006 (2) ZLR 232…,.

While the non-joinder of TOC H Zimbabwe, on its own, may not defeat this application, I am of the view that the cumulative effect of the non-joinder of TOC H Zimbabwe, coupled with the material dispute of facts, is fatal to this application.

HH213-15 : BERNARD DUMBURA vs CHIEF LANDS OFFICER (MASH CENTRAL) (NO) and GEORGE MANYAME
Ruled By: NDEWERE J

The applicant was issued with an offer letter, Annexure A on 7 October 2004 for Subdivision 2 of Pimento Farm in Bindura District measuring 46 hectares.

On 28 November 2014, the applicant received a note from the Provincial Chief Lands Officer advising him of a re-planning of the land carried out in 2007 which resulted in his offer being withdrawn on 17 June 2013 by a withdrawal letter signed by the then Minister of Lands and Rural Resettlement. The withdrawal letter of 17 June 2013 was attached to the note by the Provincial Chief Lands Officer.

The applicant is challenging the withdrawal of the offer through a court application HC10653/14 which is still pending.

On 2 December 2014, the applicant then filed the current urgent application seeking an interdict against the first and second respondents to stop interfering with his rights on the disputed land pending the determination of his court application in HC10653/14.

Both respondents opposed the application.

The first respondent raised a point in limine that the Minister of Lands and Rural Resettlement is the one who should have been cited as the first respondent and not the Chief Lands Officer....,.

I am..., persuaded by the arguments by the first respondent;..., firstly that the applicant should have cited the Minister of Lands and Rural Resettlement as the first respondent and not the Chief Lands Officer.

It is clear that the Chief Lands Officer, in his communication of 28 November 2014, which attached the withdrawal letter by the Minister of Lands and Rural Resettlement, was simply acting on behalf of the Minister. No legal justification was given to the court for citing the Chief Lands Officer, who has no legal role in matters of offer letters and their withdrawals, instead of the Minister of Lands and Rural Resettlement, who is the Acquiring Authority in terms of the Gazetted Land (Consequential Provisions) Act [Chapter 20:28].

The point in limine, that the Chief Lands Officer was wrongly cited, is therefore upheld.

HH396-18 : NELSON MAUREDE AND 16 OTHERS vs TREGER PRODUCTS (PVT) LTD
Ruled By: MANGOTA J

I dealt with this application on 19 February 2018. I delivered an ex tempore judgment in which I dismissed it with costs.

On 8 May 2018 the applicant addressed a letter to the High Court Registrar. It did so through its current legal practitioners. It requested for reasons for my decision. These are they…,.:

The applicant and the respondent appeared before the arbitrator, one C Mesikano, on 21 February 2013. He issued an arbitral award in favour of the applicant. He ordered the respondent to pay to the applicant the sum of $256,317.

The arbitral award gave birth to the current application. The applicant moved the court to register the same for purposes of enforcement. It advanced four reasons for the motion which it placed before the Court. These were that:

(a) The award was sounding in money;

(b) The amount awarded was within the monetary jurisdiction of the court;

(c) The award was certified in terms of Form LR9; and

(d) The applicants were a party to the arbitration award.

The respondent opposed the application. It raised two preliminary matters after which it dealt with the substance of the application. Its two in limine matters were that:

(i) HC3359/13, which the applicant filed on 3 May 2013, was pending at court; and

(ii) The cases of Ngonidzaishe Moliba and Julius Demo, who were managerial workers, were dealt with separately from that of Nelson Maurede and 16 others.

It stated, on the merits, that the parties did not agree on the quantum which the applicant sought to register. It submitted that the applicant misled the arbitrator on the mentioned issue. It said it registered its objection to the same and it urged the arbitrator to exercise his powers and correct the quantum so that it remained in sync with what it said was the correct position of the matter.

It submitted that it successfully applied for stay of execution of the arbitral award.

It stated, in its heads, that only Nelson Maurede withdrew his application for registration of the arbitral award under HC3359/13. It insisted that the other applicants did not. It said only fourteen (14) applicants were before the court.

It averred that Kelvin Makuva and Jonis Nyadzuwa, who passed on, were not before the court. It stated that there was no substitution of the dead persons. It said the court has not been told the amount which related to the two deceased persons.

It insisted that the arbitral award which did not identify the sixteen (16) others was invalid. It said there was no legal persona which answered to the name “Nelson Maurede and sixteen (16) others.” It submitted that the only person to whom the award related was Nelson Maurede. It averred that the award which was made against a non-existent entity was a nullity.

It moved the court to dismiss the application with costs.

Annexures D and E, which the respondent attached to its Notice of Opposition, are relevant.

The annexures are letters which it addressed to the learned arbitrator on 22 February 2013 and 20 March 2013. They state, in clear and unequivocal terms, that the respondent disagreed with the quantum which the applicant seeks to register.

The respondent did not hide its disagreement with the figure of $256,317. It copied the annexures to the applicant. The annexures state, in an undiluted manner, that what the arbitrator endorsed was the applicant's unilateral statement. One of the annexures urged the arbitrator to exercise his powers in terms of section 98(2) of the Labour Act as read with section 33 of the Arbitration Act and correct the figure of $256,317 which was, and is, the subject–matter of the parties dispute.

The applicant states, in response, that the respondent should refer the above mentioned matter to the arbitrator. It submits that it is not within the jurisdiction of the court to review the award.

Whilst the position which the applicant takes reflects the correct position of the law, it is not, at the same time, suggesting that the court which is faced with such a matter as the respondent raised should turn a blind eye to the same. It is not, in other words, moving the court to simply rubber stamp what it placed before it notwithstanding the unsatisfactory circumstances of the same.

Where, as in casu, parties are at cross purposes on the issue of the quantum which is sought to be registered and there is no evidence that their disagreement on the same was resolved, it is, in my view, ill-advised for the applicant to insist on registering the wrong quantum for purposes of enforcement.

The applicant knows, as much as I do, that, once registered, the order ceases to be that of the court a quo. It assumes the status of the order of this court. Its knowledge of that fact notwithstanding, it insists that the order should be registered in its uncorrected form.

That, with respect, increases litigation which clogs the court's roster unnecessarily.

It is, at any rate, not the function of the court to aid and abet disputes which parties place before it. Its sole function is to resolve such in the interests of justice.

It is, therefore, in the interests of justice that I took note of the parties' serious disagreement as to the issue of quantum which is sought to be registered and allowed them to resolve the same so that the agreed sum is placed before the court for registration.

The fact that the disputed quantum was adversely affected by the death of one Kelvin Makuva and one Jonis Nyadzuwa, whose estates remain un-joined to the application, adds another dimension to an already confused matter.

It is, in my view, pertinent for the parties to resolve their dispute at the appropriate forum before the applicant moves the court to register an arbitral award which is under such a serious challenge as the present award is. A fortiori when evidence filed of record points in the direction that the challenge which the respondent raised two years prior to the filing of the application remains un-addressed to date.

The applicant relied on the remarks which Bhunu J…, made in Ericson Mvududu v Agricultural & Development Authority HH286-11 wherein he spelt out three requirements which an applicant for registration of an arbitral award must satisfy for the award to be registered. The learned judge said:

“In order to qualify for registration, all what an applicant has to do is to satisfy the court that:

(i) He is a party to the arbitral proceedings;

(ii) The award relates to him;

(iii) The copy he is presenting for registration has been duly certified by the arbitrator in terms of subsection (13).”

The applicant's statement is that it satisfies the above-mentioned three requirements. It insists that the same must, therefore, be registered.

The award which is sought to be registered appears at page 20 of the record. It makes mention of Nelson Maurede only. It does not mention any other person apart from him. Those who are suing together with him are collectively described as “16 Others”. The names of the sixteen (16) remain unknown.

The absence of their names from the arbitral award dis-enables them from being parties to the arbitration proceedings. The award cannot relate to unknown and un-named persons.

Certainty is the hallmark of any judicial work. No judicial proceedings can validly be conducted by, or against, unknown or unidentified persons.

The applicant does not, therefore, satisfy paragraph(s) (a) and (b) of the above cited judgment upon which it places its reliance.

Apart from Nelson Maurede, whose name is specifically mentioned in the award, none of the other persons who sued together with him can show the registering court that:

(i) He or she is a party to the arbitration proceedings; or

(ii) The award relates to him or her.

The application is, to the above-stated extent, fatally defective....,.

The current application cites Treger Products (Pvt) Ltd as the respondent. The award which the learned arbitrator granted cites Treger Ltd as the applicant's employer.

There is a world of difference between the two cited names.

This application relates to a private company. The applicant's employer, on the other hand, is a public company. It remains unclear if registration is sought against Treger Products (Pvt) Ltd or against Treger Ltd. The applicant did not explain the anomaly. Nor did it explain how that anomaly came about.

The onus rests on it to state the correct position of the matter. The court cannot.

What the court can tell, however, is that it is impossible for the applicant to enforce an award against a non-existent entity. As the respondent correctly states, Treger Products (Pvt) Ltd was not a party to the proceedings which the learned arbitrator conducted. The award cannot, therefore, be registered against it.

The above described matter was succinctly clarified in Gariya Safaris (Pvt) Ltd v Van Wyk 1996 (2) ZLR 246 (H) which stated:

“A summons has legal force and effect when it is issued by the plaintiff against an existing legal or natural person. If there is no legal or natural person answering to the names written in the summons as being those of the defendant, the summons is null and void ab initio.”

SC62-20 : THANDO NCUBE vs FIDELITY PRINTERS AND REFINERIES (PRIVATE) LIMITED
Ruled By: MAKARAU JA

This is an application for leave to appeal against a decision of the Labour Court, handed down on 27 October 2014, dismissing with costs, an appeal to that court against a decision of the respondent dismissing the appellant from employment.

Leave to appeal was denied by the Labour Court on the premise that the intended appeal had no prospects of success.

The facts of this application are common cause.

The applicant was employed as a Senior Security Officer by the respondent. Prior to that, he was employed by the Reserve Bank of Zimbabwe which owed him money upon the termination of his employment. It was a condition of the Reserve Bank that for the applicant, and others similarly placed, to access the money owed, they had to make an application showing good cause. A death or illness in the family could constitute such good cause.

In an effort to access the owed amount, the applicant applied to the Reserve Bank for the amount of US$3,500 attaching a burial order of one Sidubi D Moyo, his grandfather. The burial order was fake. The Reserve Bank reported the matter to the respondent, a sister company, which, acting on the report, charged the applicant with an act of misconduct. The applicant was convicted and thereafter dismissed from employment. He appealed to the Labour Court which, as stated above, dismissed the appeal.

It is the applicant's intention to appeal against the decision of the Labour Court.

I cite here...,, the grounds of the intended appeal. They are framed as follows:

1. The court a quo erred on a point of law by upholding the charge against the appellant when such a charge was founded on the requirement by the Reserve Bank that its former employee apply to it for payment of their arrear salaries and terminal benefits, which condition is unlawful and nullity. (sic).....,.

The first ground is ill-conceived as it seeks to challenge the validity of an administrative policy by the Reserve Bank of Zimbabwe to limit access to the arrear salaries and benefits of its former employees. This issue, even though raised before the Labour Court, was not an issue properly before that court in appeal proceedings in which the Reserve Bank of Zimbabwe not only lacked interest, but was not a party.

SSC59-19 : PROSECUTOR-GENERAL OF ZIMBABWE vs INTRATREK ZIMBABWE PL and WICKNELL CHIVAYO and L. NCUBE N.O.
Ruled By: PATEL JA

This is an application for leave to appeal to the Supreme Court in terms of section 44(6) of the High Court Act [Chapter 7:06].

In particular, the applicant seeks leave to appeal against the decision of the High Court handed down on 20 March 2019 in Case No.11141/18 (as Judgment No. HH229-19).

The effect of that judgment was to quash the criminal charges against the respondents in Case No. CRB P 9114-5/18, and, consequently, to order their acquittal on those charges.

The Background

The applicant herein is the Prosecutor-General. The first respondent is a company styled Intratrek Zimbabwe (Pvt) Ltd (Intratrek), while the second respondent, Wicknell Munodaani Chivayo (Chivayo), is that company's Managing Director.

The respondents were charged with two counts of fraud and two counts of contravening local exchange control requirements. All four charges emanate from an Engineering, Procurement, and Construction Contract (the Contract) entered into between Intratrek, represented therein by Wicknell Munodaani Chivayo (Chivayo), and the Zimbabwe Power Company (Pvt) Ltd (the ZPC).

The Contract, which was concluded on 23 October 2015, was for the construction of a 100 megawatt solar power generation plant in Gwanda (the Project).

The first charge alleges fraud pursuant to misrepresentation by the respondents through the submission of invoices designed to fund a feasibility study for the Project. It is alleged that the Zimbabwe Power Company (Pvt) Ltd (ZPC) released a total of US$2,435,654 on the strength of those invoices and that the respondents converted those funds to their own use thereby causing actual prejudice in that amount.

The second charge also alleges fraud by misrepresentation through the presentation of invoices for pre-commencement works on the Project. Again, it is alleged that the Zimbabwe Power Company (Pvt) Ltd (ZPC) acted upon the misrepresentation and released funds to the respondents who converted those funds to their own use thereby causing actual prejudice in the sum of US$3,188,476=80.

The third and fourth charges pertain to alleged exchange control violations.

The third charge alleges that the respondents entered into an unlawful agreement with a company resident in the United States of America involving the payment of recurring fees amounting to US$849,479 without seeking prior approval from the Exchange Control Authority. The fourth charge alleges that the respondents were granted exchange control approval to load Wicknell Munodaani Chivayo's VISA cards with funds amounting to US$849,479 to import earthmoving equipment for civil construction purposes at the Project. It is alleged that the respondents failed to provide bills of entry to the CBZ Bank as proof of receipt of the imported goods for acquittal purposes within 90 days of effecting payment.

Magistrates Court and High Court Proceedings

In Case No. CRB P 9114-5/18, before the Magistrates Court, the respondents pleaded not guilty and excepted to all four charges in terms of section 171(2) of the Criminal Procedure and Evidence Act [Chapter 9:07].

The exception was premised on the assertion that the facts as alleged in the Charge Sheet and State Outline did not disclose any offence, whether as alleged or at all.

The learned magistrate found that the charges in question did capture the essentials expected of a charge to enable the accused persons to properly plead thereto. He accordingly dismissed the exception.

Aggrieved by that ruling, the respondents filed an application to the High Court for the review of the magistrate's decision on the ground that it was grossly unreasonable and patently contrary to law. The respondents also filed a separate application to the High Court for the stay of proceedings before the Magistrates Court pending the determination of the application for review.

The latter application was heard and determined in Case No. HC11205/18 (as Judgment No. 849-18 per MUSAKWA J) on 31 December 2018. The learned judge found that there were no formal defects in three of the four counts and that the applicants (the respondents herein) had no prospects of success on review in respect of those three counts. The third count was found to be defective. The court accordingly ordered that the criminal trial be suspended only in respect of the third count and that the trial could proceed in respect of the other three viable counts.

High Court Judgment on Review

In the judgment which the applicant seeks leave to appeal against, the High Court found that the learned magistrate had misdirected himself because he dealt with an issue that was not before him. In particular, he had been asked to adjudicate whether or not the facts alleged disclosed an offence, but, instead, decided that the charges against the respondents were properly framed and therefore disclosed an offence. The High Court held that this was a reviewable irregularity that went to the root of the matter. The court then proceeded to determine the question itself by way of considering, in great detail, the merits of the entire case against the respondents. I summarise its principal findings as follows:

(i) The payments made by the Zimbabwe Power Company (Pvt) Ltd (ZPC) were advance payments authorised by contract and this negated any intention to deceive or cause prejudice.

(ii) The Zimbabwe Power Company (Pvt) Ltd (ZPC) incurred its own loss by negligently paying the respondents before any performance bond or guarantee was put in place.

(iii) Where a contractual agreement provides effective redress, the dispute should be resolved contractually and liability should not be extended under the different remedial regime of Criminal Law.

(iv) The respondents did not commit any offence under the Exchange Control Regulations as the Guidelines in question were not made under the Exchange Control Act, and, in any event, the respondents could have sought exchange control approval after entering into the relevant contract.

(v) No criminal offence was established in relation to the non-acquittal of payments as the Authority in question was not promulgated under the Exchange Control Act and did not prescribe any offence.

(vi) Wicknell Munodaani Chivayo (Chivayo) merely represented Intratrek Zimbabwe (Pvt) Ltd (Intratrek) in his capacity as its Managing Director and was therefore wrongly charged in his personal capacity.

(vii) To the extent that section 277(5) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] (the Criminal Law Code) imputes vicarious liability to Wicknell Munodaani Chivayo in respect of an offence allegedly committed by Intratrek Zimbabwe (Pvt) Ltd, the charges in question breached the protective provisions of sections 49(1) and 56(1) of the Constitution and were therefore invalid.

(viii) On the totality of the facts and the merits, it was highly improbable that a criminal suit would succeed, and, therefore, its continuation would violate section 49(2) of the Constitution.

The learned judge concluded by reiterating that a Criminal Court does not have any jurisdiction to hear or determine any case of a civil nature as in casu. He then set aside the learned magistrate's ruling and substituted it with an order that the exception to the charges should succeed, resulting in all of the charges being quashed and both respondents being formally acquitted.

Preliminary Objections

As already stated, the applicant seeks leave to appeal against the judgment of the High Court in terms of section 44(6) of the High Court Act.

His intended appeal is premised on points of law and on the averment that the court acquitted the respondents on a view of the facts which could not reasonably be entertained.

Initially, the respondents raised several preliminary objections to the application relating, inter alia, to the failure to cite the learned magistrate a quo as a party and to the form and content of the of the notice of motion instituting the application as well as the content of the founding affidavit accompanying the application. The respondents consequently sought the dismissal of the application with costs on a legal practitioner and client scale. Subsequently, at the first hearing of the matter, on 17 April 2019, it was noted that the applicant's heads of argument were singularly deficient as to both form and content and that the respondents' heads of argument did not address the merits of the matter at all.

It was accordingly ordered, by consent, that the matter be postponed and that both parties should file fresh heads of argument. Thereafter, through Case No. SC253/19, the applicant sought condonation of his failure to comply with the Rules and leave to file a corrected notice of motion in Case No. SC177/19.

Again, the respondents, through their notice of opposition, raised several preliminary objections of a procedural nature and prayed that the application be struck off the roll with costs.

The respondents took the position that both applications remained fatally defective and that the applicant should abandon both and commence entirely new proceedings.

Thereafter, at the second hearing of both matters, on 8 May 2019, the parties agreed to proceed with the main application on condition that the applicant would meet the costs of the subsidiary application. It was consequently ordered, by consent, that the application for condonation and leave to file an amended notice of motion under Case No. SC253/19 be granted and that the applicant should pay the costs of that application on the ordinary scale by 31 May 2019, failing which the respondents were given leave to proceed against the applicant by way of proceedings for contempt of court.

As regards the main application in Case No. SC177/19, the respondents persisted with their position that the learned magistrate was the primary respondent in the review application before the High Court, and, having been properly cited in that matter, he should therefore also be cited in the application for leave to appeal against the judgment of that court.

Counsel for the applicant eventually deferred to this position and it was ordered, by consent, that the learned magistrate be joined as the third respondent and that the matter be further postponed to be heard on the merits on 15 May 2019.

HH485-16 : PUWAYI CHIUTSI LEGAL PRACTITIONERS vs THE REGISTRAR OF THE HIGH COURT and THE TAXING OFFICER
Ruled By: CHIGUMBA J

This application came before me on the unopposed roll for an order that the respondents refund the applicant the sum of USD$4,641=40 and pay costs of suit on a higher scale in the event that they oppose the granting of the order.

A report was filed on behalf of the first respondent in which the court was advised that the respondents would abide by the decision of the court. None of the respondents had any interest in the matter, except that guidance was sought from the court on the correct legal position.

The court dismissed the application with costs and stated that its reasons for so doing would follow. These are the reasons:

On 26 February 2016, a court application for a refund was filed of record, by Mr Puwayi Chiutsi, the applicant's sole partner. He averred that a bill of costs in case number HC7370-11 had been taxed by the second respondent, who had raised a taxing fee of USD$4,641=40. The taxation was subsequently set aside, on review, in case number HC9821-14 on 11 November 2014. The parties resolved the matter and the bill was withdrawn. On 6 January 2015, the applicant wrote a letter to the respondents seeking a refund of the taxing fee because the bill of costs had been set aside on review and the parties had subsequently settled the matter.

The respondents having refused to refund the taxing fee, we have now been asked to guide the parties on the correct legal position.

The issue that arises for determination is whether a taxing fee which was deducted at the instance of the Registrar of this court, by the taxing officer, is refundable in any circumstances, and/or more particularly, in these circumstances where the bill of costs which was taxed was subsequently set aside on review and the parties reached an amicable settlement?

The applicant submitted that the court should be guided by the case of PT Sigauke v ES Muswerakuenda & The Taxing Officer & Deputy Sheriff Harare HC93-053 as authority for the proposition that a taxing fee is refundable.

The respondents' opinion was that a taxing fee is not refundable because its basis is not dependent on execution. They referred the applicant to S.I.426 of 1992 which stipulates that any bill of costs which is taxed by the Registrar or the Taxing Master shall be subject to a taxing fee.

When the matter was initially set down on the unopposed roll, on 27 April 2016, the applicant was directed to serve a copy of its application on the Attorney General....,.

The Taxing Officer's powers of taxation emanate from the High Court Act, its Rules, and the Regulations which are promulgated by the Minister. Surely, the Minister ought to have been cited as a party to these proceedings. The taxing fee is levied on his authority.

SC91-20 : CONSTANTINE CHIMAKURE and ALPHA MEDIA HOLDINGS PL vs AMBASSADOR AGRIPPA MUTAMBARA and ESTER MUTAMBARA
Ruled By: GOWORA JA, MAKONI JA and BERE JA

BACKGROUND FACTSThe respondents are husband and wife. They are before this Court pursuant to a suit for defamation instituted by them in the High Court against the appellants herein. In the declaration, the first respondent is described as an Ambassador. It is a description which appears common cause. The first ...

BACKGROUND FACTS

The respondents are husband and wife. They are before this Court pursuant to a suit for defamation instituted by them in the High Court against the appellants herein. In the declaration, the first respondent is described as an Ambassador. It is a description which appears common cause. The first appellant is the editor of the Newsday Newspaper, with the second appellant being the publisher, printer and distributer of the publication.

On 19 May 2014, the respondents, as plaintiffs, instituted proceedings by way of summons claiming damages for defamation arising out of an article published by the second appellant on 6 July 2012.

On 23 November 2016, the High Court dismissed with costs an exception filed by the appellants in answer to the claim for defamation damages instituted by the respondents herein. The court also ordered the respondents to furnish the appellants with the particulars of the exact words being relied on in the defamation suit within a specified period from the date of judgment.

This appeal is against that judgment.

In their declaration in the suit described above, the respondents alleged that one Francis Mhere had, on 5 July 2012, written a letter to the first respondent imploring him to rein in his spouse, the second respondent. The letter alleged that the second respondent was meddling in, and involving herself in child custody issues between Francis Mhere and his wife.

The respondents alleged that, without establishing the veracity or truthfulness of allegations in the letter, the appellants had gone ahead and published an article on 6 July 2012 in the Newsday publication of that day. The respondents alleged that the article was defamatory of and concerning them. It is alleged that despite the falsity of the article, the appellants published the statements in the letter which were made with the intention of making a public spectacle of the first respondent in the office of Ambassador with the intention of injuring his reputation.

It was further alleged that the statements were understood by the ordinary reasonable man within the readership of the Newsday newspaper to mean that the second respondent was out of control, meddled in other people's affairs, was selfish and cruel, vindictive in nature, and was not a law abiding citizen, and lacked moral fibre.

Based on the above allegations, the respondents claimed damages for the article published by the appellants in the sums of USD120,000 and USD80,000 respectively.

The appellants did not plead. They jointly filed an exception and application to strike out in the form set out hereunder:

“A. No cause of action disclosed.

1.1. First Defendant is cited as Constantine Chimakure cited herein in his capacity as the Editor of Newsday Newspaper.

1.2 First Defendant as cited does not exist and no cause of action is consequently disclosed against first defendant. Alternatively, the proceedings are as against first defendant a nullity. (sic)

1.3 First plaintiff does not allege that the publication on which he sues and its unnamed words were published of and concerning him. No cause of action is consequently set out in favour of first plaintiff. (sic)

1.4 Second plaintiff does not allege that the publication of 6 July 2012 was made of and concerning her. No cause of action is consequently set out in favour of second plaintiff.

B. Vague and embarrassing

1.5 Plaintiff alleges in para 9 of the declaration that -

'Defendant went ahead and published a damning article on 6 July 2012 on page 2 of that publication to the Plaintiff's mortification and detriment'.

In paragraph 11 they allege -

'The article contained falsehoods of a venomous type'.

1.6 The words complained of which are alleged to appear in the said article are not set out and their effect cannot be ascertained.

1.7 The claim is consequently vague and embarrassing.

C. Application to strike out

1.8 Plaintiffs tell a story in a declaration made up of 21 paragraphs. The declaration is argumentative, superfluous, irrelevant is crafted in breach of the rules of court and must be struck out.(sic)

Wherefore, defendants pray, in the main, that the exception be upheld and the claim be dismissed with costs. Alternatively, defendants pray that the declaration be struck with costs.”

PROCEEDINGS BEFORE THE COURT A QUO

Before the court a quo, the parties made the following contentions. As regards the appellants, it was contended, firstly, that the summons and declaration did not disclose a cause of action primarily because the first appellant, as defendant, did not exist. It was argued that the improper citation rendered the proceedings a nullity.

It was also contended that the summons was vague and embarrassing because the exact words published were not set out in the declaration. It was argued, further, that the declaration told a story which was superfluous, irrelevant, and argumentative contrary to the rules of court. To that end, it was only right that the declaration be struck out as being vague and embarrassing.

Premised on the above arguments, the appellants prayed that the exception be upheld with the claim being dismissed with costs. In the alternative, the appellants prayed that the declaration be struck out with costs.

The respondents countered by arguing that the first appellant, a natural person, had been properly cited. The description of the first appellant, as Editor of the newspaper, did not render the citation defective in any manner.

As to the objection that the summons and declaration did not allege that the publication was made of and concerning the respondents, it was contended that the declaration alleged that the publication made reference to a letter wherein certain specific allegations were made of both respondents. It was argued that the exception to the summons and declaration should, as a consequence, be dismissed with costs.

Turning to the allegation that the summons was vague and embarrassing, it was argued that the claim was not vague or embarrassing. In this regard, it was argued that the prayer for the striking out of the declaration should be dismissed with costs.

It was further contended that the prayer for the dismissal of the claim, in the event of the exception being upheld, was misplaced. The proper course, it was argued, would be to afford the respondents an opportunity to amend the declaration.

The court a quo reasoned as follows:

“The defendants do not know which words are defamatory according to the plaintiff and this is 'embarrassing' to them. See National Union of Distributive Workers v Cleghorn & Harris Ltd 1946 AD 984; Sutton v Brown 1926 AD 155 @ 163; Demmers v Wylie & Ors 1980 (1) SA 835 @ 842D.

In the alternative, the objection taken is that the declaration is argumentative, superfluous, irrelevant, and is crafted in breach of the rules. The declaration tells a story, it is not a pleading. See Masukusa v National Foods Ltd & Anor 1983 (1) ZLR 232 (H) @ 236F-237A where it was held that;-

'Procedure, by way of notice of motion, though often convenient, is far less disciplined than procedure by action. A good novelist can write a series of exciting affidavits, and, at the end, claim large sums of money. It takes a lawyer to draw a declaration.'

Taruona v Zvarevadza & Ors HH87-12; Mwayisa v Jumbo & Ors HH03-10; Morris v Morris & Anor HH71-11.

Rule 99 (c) of the Rules of this court provides that:

'A pleading shall -

…,.

(c) Contain a statement, in a summary form, of the material facts on which the party pleading relies for his claim or defence, as the case may be, but not the evidence by which they are proved.'

It is trite that a pleading which is irrelevant must be struck out. See Stephens v De Wet 1920 AD 279 @ 282; Golding v Torch Printing & Publishing Co. (Pty) Ltd & Ors 1948 (3) SA 1067 (C) @ 1090.

It is my considered view that the defendants' remedy lies in an application for further particulars if they are of the view that the exact words relied upon by the plaintiff's ought to form part of the summons and declaration. This would cure the defendants' embarrassment, if any. An exception which goes to the root of the matter and is calculated to divest the plaintiffs of any vestige of a cause of action is ill conceived in these circumstances, and inappropriate.

We find merit in the submission made on behalf of the plaintiffs that the case law which is relied upon by the defendants is distinguishable from the circumstances of this case and inapplicable. That case implies that the court must exercise its discretion in the circumstances of the case before it, and in this case, it is my view that the defendants are not embarrassed by the plaintiff's claim to the extent that the plaintiff's case should be dismissed by the upholding of the exception. Rather than delay the resolution of this matter further, the court directs that the plaintiffs set out the exact words that they allege to be defamatory as they appear in the letter which they refer to in the declaration.”

The court a quo dismissed the exception with costs being made to be in the cause. The respondents were ordered to furnish the appellants within a period of ten days, with the particular words on which the claim for defamation was premised.

THE APPEAL

With the leave of this court, the appellants have noted an appeal on the following grounds:

“1. The court a quo erred in holding that the appellants' exception did not go to the root of the respondents' claim. At law, where a party fails to plead and set out actual allegedly defamatory statements upon which its claim for defamation is based, then such pleading is patently defective and cannot be amended.

2. The court a quo further erred in holding that the appellants' exception was without merit and worthy of dismissal. Such holding was, at law, anomalous on account of the finding by the same court that the respondents' pleadings were deficient and called for better particulars.

3. The court a quo erred in granting to the respondent's relief that was not sought or pleaded. There was no cause for the amendment of the respondents' pleadings, and, the court went beyond the purview of its jurisdictional mandate in ordering an amendment and particularizing the details of such amendment.

4. Additionally, the court, again, erred in disregarding the mis-citation of the first appellant. At law, a summons that cites a non-existent person or capacity is a nullity.

5. The court a quo grossly misdirected itself and erred in holding that the respondents' declaration was capable of being pleaded to. Once a declaration is vague and embarrassing the defendant ought not to be required or compelled to plead to it.”

Three issues for determination emerge from the grounds set out above;

(i) First and foremost is whether or not the citation of the first appellant is defective rendering the summons and declaration a nullity as contended by the appellants.

(ii) The last two issues are whether or not the summons and declaration do not establish a cause of action rendering them subject to an exception and also vague and embarrassing and liable to be struck out.

ARGUMENTS ON APPEAL

Counsel for the appellants abandoned the first ground. He was wise to do so.

To argue that the first appellant, as cited, is irregular would be an exercise to test human logic. The first appellant, cited by name, was further identified by the occupation in which he is sued. Such description cannot, by any stretch of the imagination, turn him into a non-existent person.

SC103-20 : VERITAS and FIRINNE TRUST ALSO KNOWN AS VERITAS vs ZIMBABWE ELECTORAL COMMISSION and MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS and ATTORNEY GENERAL OF ZIMBABWE
Ruled By: GOWORA JA, GUVAVA JA and BHUNU JA

The principle that the citation of a non-existent party results in a nullity was confirmed in Gariya Safaris (Pvt) Ltd v Van Wyk 1996 (2) ZLR 246 (H). At 253C-254B, MALABA J…, said:

“In this case, the person against whom the plaintiff thought it was proceeding as a defendant was non-existent at the time summons was issued. The proceedings and judgment that followed the summons were null and void. To try an action in which there is only one party is an exercise in futility. There were no two parties to give rise to the existence of a cause of action between them. There was nothing to be substituted by the respondent as a new judgment debtor. There was no old judgment debtor.

This proposition is not without authority.

In Van Heerden v Du Plessis 1969 (3) SA 298 (O) a summons was issued against a person who had already died. Application was made for an order of substitution of the executor testamentary for the deceased. The application, which was opposed, was refused on the ground that the summons was wholly invalid.

In Devonia Shipping Ltd v MV Luis (Yeoman Shipping Co Ltd Intervening) supra, the learned judge mentioned that cases in which the summons has been issued against a non-existent person are exceptions to the application of the general rule on the approach courts should adopt in deciding applications for orders of substitution. The learned judge, at 369J- 370A, had this to say:

'The correction of a mis-description of an applicant differs also from the cases where the courts have regarded a summons or notice of motion as ab initio invalid because the plaintiff or applicant was a non-existent person.'

In Fosa v Commercial Properties (Pty) Ltd & Anor [1996] 2 All SA 611 (D) the summons was issued in the name of a non-existent plaintiff. An application for substitution was refused by NILE-DUNER AJ on the ground that, the fact that the persona described in the summons did not exist at the date of issue of the summons, called into question the validity of the proceedings before him. The learned acting judge concluded, at p614, by saying:

'There is, in my opinion, no difference, in principle, between the situation in Van Heerden v Du Plessis supra and the present case. I accordingly take the view that the summons is a nullity and that I cannot, by the process of substitution, revive it to the date of its issue.'

See also Dawson (Bradford) Ltd & Ors v Dove & Anor [1971]1 All ER 554 (QB) where it was held that substituting the defendant for the deceased, against whom summons had been issued after his death, was not an act of substitution but of creation.”...,.

MATHONSI J…, in Nuvert Trading (Pvt) Ltd t/a Triple Tee Footwear v Hwange Colliery Company HH791-15 remarked:

“Those cases are clearly distinguishable from the present case and reliance on them is completely misplaced.

In both cases, there was no defendant at all and the court correctly found that no amendment could be made to a non-existent summons given that a summons is only valid if it has a defendant to answer to. In the present case, it cannot be said, by any stretch of the imagination, that the defendant does not exist because there is an entity answering to that name. The only omission is the word “Limited” which is an expression speaking to its limited liability status than anything. The amendment sought relates to completeness of the name as opposed to introducing a new persona to a summons originally without a defendant.”

A reading of that statement makes it clear that there must be a party to proceedings, viz, there must be a persona in one form or another....,.

The citation of a non-existent entity renders the proceedings a nullity.

I am fortified in these remarks by the dicta in J D M Agro-consult (Pvt) Ltd v Editor, The Herald & Anor 2007 (2) ZLR 71 (H)…, to the following effect:

“What is now before me is a point in limine dealing with the question of the citation of the parties. It is a legal issue in that the defendants aver that the summons is bad at law, in that no defendant has been brought before the court. They allege that the proceedings are a nullity as a result and no application launched by the plaintiff to amend the summons or substitute the defendants can cure the defect as the summons is a nullity.

It is pertinent to state, from the outset, that the application to amend the summons, by altering the name of the second defendant, which was granted at the pre-trial conference, was without effect. The party named as the second defendant did not exist at the time that the summons was issued and served.

The correct appellation for the publisher and owner of the newspaper is Zimbabwe Newspapers (1980) Limited. That is a registered company, duly incorporated under the laws of this country. Its coming into being is due to the process by which it was incorporated as such. It is then, after its incorporation, that it becomes a juristic person, capable of suing and being sued in its own right. Without that process it is non-existent.

The entity sued by the plaintiff, as the second defendant, is The Herald Newspaper. It is not a registered company and does not exist in any other form. Consequently, the plaintiff issued summons against a non-existent being. The amendment to the second defendant's name, therefore, was of no force and effect as the summons itself was a nullity.

In Gariya Safaris (Pvt) Ltd v Van Wyk, this court stated:

'A summons has legal force and effect when it is issued by the plaintiff against an existing legal or natural person. If there is no legal or natural person answering to the names in the summons as being those of the defendant, the summons is null and void ab initio.'”...,.

As argued by counsel for the first respondent, the jurisdiction of the court must be invoked properly and lawfully. It cannot be lawfully invoked at the instance of a non-existent party.

HH177-17 : GILBERT JONGA vs NYASHA CHABATA
Ruled By: CHATUKUTA J

The applicant seeks an interdict restraining the respondent from interfering with his farming operations at Subdivision 3 of Farm 45, Glendale (the farm).

This is not the first time that the parties are before this court. The parties are fighting over who has the right to occupy the farm which belongs to the State. On 6 December 2016, the respondent successfully approached this court in case number HC12380/16, on an urgent basis, seeking spoliatory relief. On 9 December 2016, MATANDA-MOYO J ruled in favour of the respondent in case number HC12380/16 and issued the following order:

“TERMS OF FINAL ORDER SOUGHT

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

1. The interim order be confirmed.

2. It be and is hereby declared that applicant, his representatives, employees and invitees are entitled to remain in peaceful and undisturbed possession, occupation and use of subdivision 3 of Farm 45 of Glendale in Mazowe District of Mashonaland Central measuring 36.21 hectares.

3. The respondent pays the costs of this (application) on the higher scale of legal practitioner and client.

TERMS OF THE INTERIM ORDER GRANTED

Pending the finalisation of this matter, the applicant is granted the following interim relief –

1. That the respondent restore to the applicant possession of subdivision 3 of Farm 45 Glendale in Mazowe District of Mashonaland Central measuring 36.21 hectares.

2. The Deputy Sheriff be and is hereby authorised and empowered to ensure that such restoration is done and that the applicant remain in peaceful and (undisturbed) occupation of the above property.

3. The respondent and all those claiming through him vacate the said property forthwith of which the Deputy Sheriff is authorised to evict same from the property.

4. That the respondent pays costs of suit.”

On 13 December 2016 the applicant noted an appeal against the judgment of MATANDA-MOYO J.

On 22 December 2016, the respondent destroyed part of the applicant's crop resulting in the present application.

The background to this application was articulated in case number HC12380/16 in which the court found that the respondent is a holder of an offer letter for a portion of the farm measuring 36.21 hectares. The offer letter was issued on 6 November 2015. The applicant produced documents proving that he was in occupation of the Remaining Extent of Farm 45 (Truro) Glendale and Plots 1, 4, and 5 of Dunmaglas Farm in Mazoe. The court found that the portions allocated to the two parties are different.

The applicant contended, in HC12380/16, and still contends in the present application, that the portions are one and the same and he has a 99 year lease over the entire farm. He has been in occupation of the entire portions since 2002 - well before the respondent was issued with the offer letter on 6 November 2015.

Believing that the court in case number HC12380/16 erred in holding that the portions are different and that he was not in possession of the farm, the applicant filed an appeal against that decision in SC771/16.

The applicant avers, in the present case, that, at the beginning of 3 October 2016, he entered into an agreement to grow 100 hectares of maize with the Government under the Special Programme on Maize Production for Import Substitution (popularly known as “the Command Programme”). He was given inputs under the Programme, and, during the first half of November 2016, and before the respondent had filed her application in case number HC12380/16, he planted his maize. On 13 December 2016 he filed the appeal against the decision. On 21 December 2016, the respondent returned to the farm and destroyed 7 hectares of the maize crop. Fearing that the respondent could proceed to destroy further hectarage, the applicant has approached this court on a certificate of urgency for an interdict.

At the commencement of the hearing, the respondent contended that the application was not urgent. The issue was abandoned during argument.

Thereafter, she raised four other preliminary points;

(i)...,.

(ii)...,.

(iii) Thirdly, it was argued that the applicant ought to have joined the Minister of Lands who is the acquiring authority. Failure by the applicants to join the acquiring authority in these proceedings was fatal to the application....,.

The applicant submitted, further, that it was not fatal not to join the acquiring authority as the court could determine the issues in terms of Rule 87 without citing the Minister....,.

Turning to the non-joinder of the Minister of Lands, I do not agree that the non joinder of the Minister was fatal to the application.

The issue before me is not who has the right to occupy the farm. The issue is how to protect the maize crop on the farm, which had been partly destroyed by the respondent, pending the determination of the appeal.

Assuming that it was necessary to cite the acquiring authority, Rule 87 of the High Court Rules permits the court to determine the issues as between the parties before it - even where such joinder is required.

Rule 87 provides:

“No cause or matter shall be defeated by reason of the misjoinder or non-joinder of any party and the court may, in any cause or matter, determine the issues or questions in dispute so far as they affect the rights and interests of the persons who are parties to the cause or the matter.”

See Rollex (Pvt) Ltd v Delta Beverages (Pvt) Ltd HH66-15.

Mis-joinder is not fatal to the current proceedings given my earlier observation that the dispute before me is about the respondent's conduct and is therefore resolvable without joining the acquiring authority.

HH04-10 : MYDALE INTERNATIONAL MARKETING (PVT) LTD vs DR ROB KELLY and HAMMER AND TONGUES (PVT) LTD
Ruled By: GOWORA J

The first respondent herein had, under Case No. HC1049/09, instituted proceedings against the applicant and second respondent herein. On 30 March 2009, OMERJEE J issued an order as follows:“IT IS ORDERED THAT:1. Mydale International Marketing (Pvt) Ltd is entitled to receive from the second respondent and have in its custody ...

The first respondent herein had, under Case No. HC1049/09, instituted proceedings against the applicant and second respondent herein. On 30 March 2009, OMERJEE J issued an order as follows:

“IT IS ORDERED THAT:

1. Mydale International Marketing (Pvt) Ltd is entitled to receive from the second respondent and have in its custody and under its control vehicles registration number no. AAU 8190, ABC 3354 and AAP 1952.

2. Mydale International (Pvt) Ltd shall record the mileage on each vehicle from the time of receipt from the second respondent.

3. Mydale International (Pvt) Ltd shall be entitled to ordinary use of the motor vehicles and shall not sell or otherwise alienate the said motor vehicles without an order of court.

4. Messrs Byron Venturas & Partners shall within 24 hours of the order surrender to the Registrar of the High Court, Harare the US$28,500 the proceeds for the sale of the six motor vehicles owned by Mydale International (Pvt) Ltd for retention by the Registrar pending the determination of any dispute over ownership of Mydale International Marketing (Pvt) Ltd.”

On 4 April 2009, the first respondent noted an appeal against the order, and, as a result, he did not surrender the money to the Registrar as had been ordered....,.

On 21 April 2009, the applicant launched these proceedings under a certificate of urgency for the grant of a Provisional Order....,.

The terms of the interim relief being sought were the following:

“INTERIM RELIEF GRANTED:

(a) Pending appeal, within 24 hours of the service of this order on him, the first respondent and his lawyers Messrs Venturas & Samukange shall comply with para 4 of the judgment by OMERJEE J in case HC1049/09 dated 3 April 2009.

(b) Failing compliance, the first respondent, and the said lawyers, shall, within a further 24 hours, appear before this honourable court to show cause why he/they should not be committed to prison for contempt of court.”...,.

In paragraph (b) of the draft order, it is sought that failing compliance, this court finds that the respondent and his legal practitioners (who have not been cited in these proceedings) appear before the court within 24 hours to show cause why they should not be committed to prison for contempt.

It would seem to have escaped the attention of the learned counsel for the applicant that a party against whom an order of contempt is sought must not only be personally cited but that process for such citation must be personally served on the respondent.

I do not have any party from the legal practitioners of the respondent cited personally and I will therefore not dwell further on this aspect.

HH283-17 : IGNATIUS MASAMBA vs THE SECRETARY – JUDICIAL SERVICE COMMISSION and MERCY GORONGOZA
Ruled By: CHITAPI J

On 7 November 2016, the applicant filed this chamber application....,.The chamber application purports to be founded on Rule 449(1)(b) of the High Court Rules, 1971. The Rule provides as follows:“449 Correction, variation and rescission of judgments and orders(1) The court or a judge may, in addition to any other power ...

HH318-15 : DAVID JACK and OTHERS vs LLOYD MUSHIPE (in his capacity as joint executor of Estate Late Keresia Jack) and OTHERS
Ruled By: CHITAKUNYE J

The applicants (David Jack, Theresia Jack and Theresa Jack) and the first to fourth respondents (Lloyd Mushipe, Simbarashe Mushipe, Jesca Mushipe and Keresia Mushipe) are children of the late Keresia Jack who died intestate on 15 March 1997. The late Keresia Jack's estate comprises an immovable property, namely, House Number 1935 Highfields Township, Harare.

The estate was initially registered under DRH1942/04 and Lloyd Cypran Mushipe was appointed executor. He however died before winding up the estate. His wife, Georgina Chidhakwa, was then appointed executor on 16 May 2006 at the Magistrate Court.

That registration and administration excluded the applicants.

Upon discovery of the administration that excluded them, the applicants alleged they approached court and that registration and appointment of Georgina Chidhakwa, as executor, was nullified, and, in its place, a new registration under DRH1602/06. Under DRH1602/06 Lloyd Takudzwa Mushipe and David Jack Mapurisa were appointed joint executors.

As a result of the new joint executorship, the property in question was awarded to all the children comprising the applicants and the first to fourth respondents in equal shares. They each were allowed to rent out a room and enjoy rentals therefrom. They alleged that that was the position till recently when the respondents moved out of the house and indicated that the applicants should move out as the house had been sold. The applicants further stated that they were never advised of the sale nor of the name of the buyer.

It is this occurrence that spurred them to file this application on 20 February 2015.

The applicants filed the application as self actors. Upon perusal of the papers I opined that the matters raised therein needed urgent attention. I thus had the matter set down for hearing.

On the date of the first hearing the applicants appeared in person as self-actors. The respondents' legal practitioner requested for a postponement of the hearing as he had just been served with the application on that day and so he was not ready to argue his clients' case. There was also no proof of service of the application on the fifth respondent.

As a result of the above the matter was postponed to 27 February 2015. I also advised the applicants to seek legal representation so that their case may be well presented and argued.

On 27 February 2015 the applicants came represented by counsel.

Counsel for the respondents raised three points in limine. These were that:

(i)...,.

(ii)...,.

(iii) The third point in limine was to the effect that as the dispute pertains to a deceased estate the Master should have been cited as a party. Failure to cite the Master and the executor of the estate is a fatal defect....,.

On the last point, counsel for the applicants contended that the Master, as custodian of deceased estates, could have been cited, but, failure to cite the Master was because no relief was being sought against the Master. The official cited is the Registrar of Deeds as relief was being sought against him....,.

Whilst accepting that in cases involving deceased estates it is important to cite the Master as the official entrusted with overseeing the administration of deceased estates, I am however of the view that the non-citation of the Master is not fatal to this case. This court can still make a determination as between the parties cited.

In this regard Rule 87(1) states that:-

“No cause or matter shall be defeated by reason of the misjoinder or non joinder of any party and the court may, in any cause or matter, determine the issues or questions in dispute so far as they affect the rights and interests of the persons who are parties to the cause or matter.”

See Moyo v Ncube & Others 2008 (2) ZLR 333 (H).

From the foregoing, it must thus be clear that the non-joinder of the Master is not fatal to the application.

It may also be noted that in terms of Rule 248, the Master may still be asked to file his report on the estate even if he has not been cited as a party. That Rule states that:-

“(1) In the case of any application in connection with -

(a) The estate of a deceased person; or

(b)…,.

A copy of the application shall be served on the Master not less than ten days before the date of set down for his consideration, and for report by him if he considers it necessary or the court requires such a report.”

The avenue for the Master to provide his input is thus available even if he has not been cited. Failure to cite the Master is thus not fatal especially where, as in this case, no relief is being sought against him.

HH417-18 : STUTTAFORDS REMOVALS (PVT) LTD vs ZIMBABWE ASSET MANAGEMENT CORPORATION (PVT) LTD and YCOB INVESTMENTS (PVT) LTD
Ruled By: CHIKOWERO J

I have no doubt at all that this application is not urgent.Upon receipt of the application, on 3 July 2018, I perused same and instructed that it be set down for hearing on 5 July 2018 at 9:00am.The second respondent was not cited. It was not a party to the ...

HH442-15 : DAVID WHITEHEAD TEXTILES LTD (represented by KNOWLEDGE HOFISI, in his capacity as Final Judicial Manager) vs JYOTSANAGEN KALA and LISTON CHAKUPA and MASTER OF THE HIGH COURT
Ruled By: MAFUSIRE J

In this application, one Knowledge Hofisi (“Hofisi”) was the final judicial manager of the applicant company, David Whitehead Textiles Limited, which was under final judicial management. The application was for an order that the applicant be joined as the second defendant in an action under the case reference number HC8549/13.

In that action, the first respondent herein (“Kala”) was the plaintiff therein. She sought an order that the sale to her of a certain immovable property in Kadoma (“the property”) be declared “legal and valid”. She claimed she bought the property through an estate agent and subsequently obtained transfer.

In the action, she also sought an eviction order against the second respondent. The second respondent counter-claimed that he was an employee of the applicant and the sitting tenant in occupation of the property on the applicant's rent-to-buy scheme with its employees. The applicant was not a party to that action.

In the present application, Knowledge Hofisi said the applicant was the original owner of the property. He said through a series of fraudulent transactions involving representatives of the purported majority shareholder, and the sham management in place at the time, the property, together with several other assets of the applicant, had unlawfully been disposed of.

Nothing had come to the applicant's coffers.

After his appointment as the final judicial manager he set about investigating the affairs of the applicant. He unearthed a massive scam by the fake majority shareholder and its sham executive management. Knowledge Hofisi said he wanted to reverse all the illicit transactions pertaining to the applicant's affairs. The sale and transfer of the property to Kala was one of them. Therefore, Hofisi said, the applicant had real and substantial interest in Kala's action.

Knowledge Hofisi's application was made in terms of Order 13 Rule 87 of the Rules of this court. The relevant portions of that Rule read:

“87 Mis-joinder or non-joinder of parties

(1)…,.

(2) At any stage of the proceedings in any cause or matter the court may, on such terms as it thinks just, and, either of its own motion or on application —

(a)…,.;

(b) Order any person who ought to have been joined as a party or whose presence before the court is necessary to ensure that all matters in dispute in the cause or matter may be effectually and completely determined and adjudicated upon, to be added as a party;…,.

(3) A court application by any person for an order under subrule (2) adding him as a defendant shall, except with the leave of the court, be supported by an affidavit showing his interest in the matters in dispute in the cause.”

Kala opposed the application.

Her argument was that she had innocently bought the property on the market. She had not been aware of the illicit dealings alleged in the application. She said Knowledge Hofisi had not demonstrated such cogent interest in her action as would warrant the applicant's joinder. Therefore, she wanted the application dismissed with costs.

The second respondent did not oppose the application. Counsel for the second respondent, who appeared for him at the hearing, said his was just a watching brief.

But, none of the parties said who the second respondent was, or what his interest in the matter was, or whether he was one of the parties in Kala's action.

The record for that action was not before me. I had to obtain, on my own, copies of the pleadings in the action to get these details.

Be that as it may, and given the manner the matter eventually panned out, this aspect, and many others, became unnecessary.

The matter panned out like this.

It turned out that Kala's heads of argument had been filed out of time. Therefore, she had automatically been barred in terms of Order 32 Rule 238, particularly sub-rule (2b) thereof.

The relevant portions of that Rule read:

“(2) Where an application, exception, or application to strike out has been set down for hearing in terms of subrule (2) of Rule 223 and any respondent is to be represented at the hearing by a legal practitioner, the legal practitioner shall file with the Registrar, in accordance with subrule (2a), heads of argument clearly outlining the submissions relied upon by him and setting out the authorities, if any, which he intends to cite, and immediately thereafter he shall deliver a copy of the heads of argument to every other party.

(2a) Heads of Argument referred to in subrule (2) shall be filed by the respondent's legal practitioner not more than ten days after heads of argument of the applicant or excipients, as the case may be, were delivered to the respondent in terms of subrule (1):

Provided that —

(i) No period during which the court is on vacation shall be counted as part of the ten-day period;

(ii) The respondent's heads of argument shall be filed at least five days before the hearing.

(2b) Where heads of argument that are required to be filed in terms of subrule (2) are not filed within the period specified in subrule (2a), the respondent concerned shall be barred and the court or judge may deal with the matter on the merits or direct that it be set down for hearing on the unopposed roll.”

The applicant's heads of argument having been filed and served during vacation, there was a dispute over the number of days by which Kala's heads had been filed out of time.

Counsel for the applicant said Kala's heads were twenty-four days out of time. Counsel for Kala argued that the number of days was fourteen only.

The difference was significant to counsel for Kala's two-pronged argument.

In his first line of argument, counsel for Kala maintained that Kala had in fact not been barred. He relied on the proviso to sub-rule (2a) that says that a respondent's heads of argument shall be filed at least five days before the hearing.

In Kala's case, the heads had been filed on 16 February 2015. The hearing of this matter had initially been scheduled for 31 March 2015. However, all the matters set down for that date had subsequently been rescheduled to 7 April 2015 owing to a sudden and unforeseen commitment on my part. So, the argument was that since Kala's heads of argument were filed well outside the five day period to the date of hearing, she was not barred.

It was evident the above argument was raised tongue in cheek.

The main sub-rules (2), (2a) and (2b) of Rule 238 direct, unequivocally, that a respondent who is to be represented by a legal practitioner at the hearing of, inter alia, an application, is to file heads of argument; that such heads are to be filed within ten days after the applicant's heads have been filed and served on him; and that where such heads have not been filed as such (or at all) the respondent “shall” be barred.

It is a command. It is peremptory.

Counsel for Kala was undoubtedly reading proviso (ii) to sub-rule (2a) out of context.

Courts need sufficient time to prepare for the hearing. They can only prepare adequately after all the relevant documents have been filed. In my view, the five day period is designed to give the court that much time to prepare. It is not to grant a respondent an extension of time beyond the designated ten days.

In my view, the significance of the five day rule in the proviso becomes apparent where, for example, the period between the date the respondent receives the applicant's heads of argument and the date the matter is scheduled to be heard is ten days or less, for the reason that, for example, the court was on vacation when the applicant's heads were served. The respondent cannot insist on ten days to file his own heads. If he does, he will run foul of the proviso. He has to ensure that his heads are filed at least five days before the hearing.

Furthermore, and at any rate, the barring of a respondent is mentioned in sub-rule (2b). The sub-rule refers to barring for failure to file heads of argument in accordance with the time stipulated in sub-rule (2). That time is ten days.

Therefore, in this case, whether Kala's heads of argument were filed twenty four days out of time or only fourteen days, was immaterial. When the ten days were up she became barred.

In practice, the above problem is largely moot.

A matter will not be set down for hearing unless the applicant has filed and served his heads of argument in accordance with sub-rules (1) and (1a) of Rule 238. These sub-rules provide as follows:

“238. Heads of Argument

(1) If, at the hearing of an application, exception or application to strike out, the applicant or excipient, as the case may be, is to be represented by a legal practitioner —

(a) Before the matter is set down for hearing, the legal practitioner shall file with the registrar heads of argument clearly outlining the submissions he intends to rely on and setting out the authorities, if any, which he intends to cite; and

(b) Immediately afterwards, he shall deliver a copy of the heads of argument to every other party and file with the registrar proof of such delivery.

(1a) An application, exception or application to strike out to which subrule (1) applies shall not be set down for hearing at the instance of the applicant or excipients, as the case may be, unless —

(b) His legal practitioner has filed with the registrar in accordance with subrule (1) —

(i) Heads of argument; and

(ii) Proof that a copy of the heads of argument has been delivered to every other party; and

(c) In the case of an application, the pages have been numbered in accordance with paragraph (c) of subrule (1) of Rule 227.”…,.

Thus, in practice, it is often more than ten days between the time the applicant's heads of argument are filed and the date the matter is set down for argument. So the respondent has ample time to comply with the ten-day rule.

For these reasons I dismissed counsel for Kala's argument.

Counsel for Kala changed tack.

He sought condonation for the late filing of the heads. He urged me to exercise my discretion in favour of hearing the matter on the merits rather than deciding it on a mere technicality. He invoked the provisions of Order 1 Rule 4C. They read:

“4C. Departures from rules and directions as to procedure

The court or a judge may, in relation to any particular case before it or him, as the case may be —

(a) Direct, authorize or condone a departure from any provision of these rules, including an extension of any period specified therein, where it or he, as the case may be, is satisfied that the departure is required in the interests of justice;

(b) Give such directions as to procedure in respect of any matter not expressly provided for in these rules as appear to it or him, as the case may be, to be just and expedient.”

In terms of Order 12 Rule 84, a party that has been barred can make a chamber application or an oral application at the hearing, for the removal of the bar. The judge or court may allow the application on such terms as to costs and otherwise as he or it may think fit.

In my view, a party seeking the removal of a bar, or condonation, in terms of Rule 4C, must show “good and sufficient cause.”

The court or judge hearing the application has a discretion to grant or reject the application. There must be a reasonable explanation for the default. The applicant must also show his defence on the merits.

Dealing with Rule 84 GARWE JA stated as follows in Grain Marketing Board v Muchero 2008 (1) ZLR 216 (S)…,:

“It is clear from the above provisions that, once a party is barred, the matter is treated as unopposed unless the party so barred makes an application before the court for the upliftment of the bar.

It is also clear that, in making the application to uplift the bar, the party that has been barred can either file a chamber (not court) application to uplift the bar, or, where that has not been done, the party can make an oral application at the hearing.

The practice in the High Court, so far as I am aware, is that only in very few instances have oral applications to uplift the bar been entertained by the court. This is because, in such a case, the applicant must explain the reason for the delay, and, thereafter, convince the court that he has a bona fide defence on the merits.”…,.

What constitutes wilful default and a bona fide defence depend on the merits of each case. In Netone Cellular (Private) Limited v Bacnet Trading (Private) Limited & Ors HH214-15 I said…,.:

“In my view, in bar situations, wilful default amounts to a deliberate failure or neglect to file process timeously, or to refrain from doing so altogether. Thus 'good and sufficient' cause is the sum total of all the facts explaining the default and merits of the defence. These facts are considered cumulatively. No single aspect is decisive.”

In the present case, counsel for Kala's application for condonation was doomed.

There was simply no explanation for the delay in filing Kala's heads of argument. All there was, by way of an explanation, was that the applicant's heads of argument had been received by some “functionary” at the offices of the legal practitioners acting for Kala. It was not explained who this “functionary” was; what he or she had done with the heads of argument; when had the legal practitioner of record become aware of the heads; what action he had taken, et cetera.

As for the merits of Kala's opposition to the application for joinder, they were practically non-existent.

That she was an innocent buyer of the property was not the point. Knowledge Hofisi gave cogent reasons why the applicant had to be joined to her action. He said the applicant had been defrauded. The sale and transfer of the property to her had been done following an illicit transaction. Thus, prima facie, her title to the property was defective. Those were issues for trial.

If she had excluded the applicant in her action, in HC8549/13, then she had fallen foul of Rule 87(2)(b). The applicant was a necessary party to that action.

Therefore, soon after argument, I dismissed Kala's application for condonation and granted the order sought by the applicant. The order was as follows:

“Whereupon, after reading documents filed of record, it is ordered that:-

1. The applicant be and is hereby joined as…, 2nd defendant in Case No. HC8549/13.

2. The applicant shall file its plea within twelve days of this order.

3. Costs shall be in the cause.”

Appealed
HH64-12 : SHADRECK MOYO AND 13 ORS vs J. LARRY HOFFMAN and CENTRAL AFRICAN BATTERIES (PVT) LTD
Ruled By: KUDYA J

The plaintiff's pleadings are a mess.

They do not comply with the strict requirements of the High Court rules. The face of the summons does not identify the 13 Others. The declaration does not do so either. In addition, it does not comply with the rules of court. It contains extraneous information and is argumentative in nature. A letter of suspension, three death certificates, a burial order and the Supreme Court judgment, SC66-02, concerning the plaintiff and the second defendant are attached to the declaration. It is in the format of a founding affidavit rather than a declaration.

When the defendants requested for further particulars, the plaintiff responded by applying for default judgment. The default judgment was refused and the plaintiff was directed to file the further particulars.

On receipt of the further particulars, on 11 January 2010, the defendants excepted on 13 January 2010. The plaintiff responded by excepting to the exception. It is unclear from the papers what became of the exception.

The defendants, however, proceeded to file a plea on 14 April 2010.

On 6 May 2010, the plaintiff filed a 23 paged document entitled “plaintiff's opposing affidavit to defendant's plea” and three further attachments. The plaintiff withdrew the notice of opposition in question on 24 May 2010 and proceeded to change what had been the opposing affidavit into a 23 paged replication.

Notwithstanding the state of the plaintiff's pleadings, the matter was referred to trial on 5 November 2010 on the defendants' pre-trial issues. The issues were:

1. Who are the plaintiffs in this matter.

2. Have they been lawfully dismissed.

3. If not, have they suffered any damages, and if so, in what amount and on what cause.

The pleadings are in such shambles because the plaintiff was not represented by a legal practitioner. Rather, he relied on his trade union styled Zimbabwe Federation of Trade Unions.

In order to determine the real issue between the parties, I condoned the state of the plaintiff's pleadings and proceeded with the trial.

At the commencement of trial, the only plaintiff in attendance was Shadreck Moyo. The other unnamed thirteen were in default. The trial proceeded on the basis that only one plaintiff was before the court.

This affected the claim in the summons.

On 16 November 2009, the plaintiff, Shadreck Moyo and 13 others, claimed damages and compensation and outstanding wages and salaries in the sum of US$3,5 million; a further sum of US$3,5 million for outstanding wages and salaries and compensation for loss of earnings for a period of 12 years, interest on these sums at the rate of 30 per centum per annum and costs of suit.

At the trial, the only plaintiff before me reduced the amounts claimed to US$275,375=08 for outstanding salaries and benefits and US$500,000 for general damages.

He set out the history of the matter, and, by consent, referred to exhibit 1, the 25-paged bundle of documents that the defendants intended to produce as an exhibit.

He was an employee of the second defendant.

On 3 and 4 December 1997, together with other employees, he participated in an illegal collective job action. On 5 January 1998, and in terms of section 3(1)(a) of the Labour Relations (General Condition of Employment) (Termination of Employment) Regulations S.I.371 of 1985, he was suspended from employment without pay or benefits pending an application to the Ministry of Labour for his dismissal.

On 6 January 1998, the second defendant, through its Chairman, the first defendant, applied to the Labour Relations Officer for an order terminating the employment of 15 employees amongst whom was the plaintiff.

A hearing was held, and, on 20 July 1998, the Labour Relations Officer ordered the reinstatement of all the 15 employees without loss of pay and benefits. The second defendant appealed to the Senior Labour Relations Officer. On 11 January 1999, the Senior Labour Relations Officer made the following determination:

“From the foregoing facts, the determination of the Labour Relations Officer is set aside in its entirety.

Appellant is granted permission to dismiss the 15 employees with effect from the date of suspension.

Appellant must pay the 15 employees all their terminal benefits within 14 days of receipt of this determination.”

The 15 employees appealed to the Labour Relations Tribunal.

On 25 September 2000, the Labour Relations Tribunal upheld the appeal of one of the 15 but dismissed the appeal of the other 14 - who included the plaintiff.

The 14 appealed to the Supreme Court, which dismissed their appeal in in its entirety on 18 June 2002 in the case of Shadreck Moyo and Thirteen Others v Central African Batteries (Pvt) Ltd SC66-02.

Shadreck Moyo averred that he only received a copy of the judgment on 3 September 2009 and not on any earlier date because his legal practitioner at the time, Mr Mabuye, of Mabuye and Associates, met an untimely death.

He alleged that, as he had not been dismissed from employment, he was entitled to damages in respect of lost earnings of US$275,375=08.

He produced exhibit 2 and 3 to justify his computation.

He averred that, by 30 October 2010, an employee in Grade 5 was in receipt of a salary of US$240=03. He used this salary to calculate what was due to him over the 155 months that he has been on suspension. He used the same salary to calculate his pay leave over the 12 years that he has been on suspension. He also used the same salary to calculate the thirteenth cheque bonus over 12 years. He stated that he was entitled to receive daily allowances at work for sadza, milk, tea and toiletries. He conservatively placed the cost at US$1 a day and multiplied this by the number of days he was supposed to be at work over the 12 year period.

On the general damages, he thumb sucked the figure of US$500,000 but based it on the prejudice that has visited the education of his children. He did not state the number of the children and how they were prejudiced....,.

At the close of the plaintiff's case, both defendants applied for absolution from the instance.

The first defendant based his application on the ground that the plaintiff failed to establish the basis for citing him in in his personal capacity. The plaintiff contended that the first defendant was the one who signed the letter of suspension. He, however, conceded that he did so as the Chairman of the second defendant.

The pleadings averred that he was the Chairman of and shareholder in the second defendant at the material time.

It is trite that a private company is separate and distinct from its shareholders and office bearers. The plaintiff has not shown the basis for citing the first defendant in these proceedings.

I am satisfied that there is no basis to place him on his defence and would grant him absolution from the instance.

HH47-08 : TSITSI MUZENDA vs PATRICK KOMBAYI and ZIMBABWE ELECTORAL COMMISSION
Ruled By: KUDYA J

At the management meeting held on 21 May 2005, four preliminary issues were referred to trial. These were;

(i) Whether or not the petition was served on time;

(ii) Whether there was proper service on the second respondent;

(iii) Whether security for costs was provided; and

(iv) Whether or not the second respondent was properly joined to the petition.

At the hearing, on noticing that the petition had been lodged with the Registrar of this Court on 15 April 2008, I raised the further issue of whether it was presented within the time limits set out in section 168(2) of the Electoral Act [Chapter 2:13], hereinafter called the Act.

The brief facts were these:

Tsitsi Veronica Muzenda, the petitioner, of the Zimbabwe African National Union (Patriotic Front) ZANU (PF) party, stood as a Senatorial candidate for the Gweru-Chirumanzu senatorial constituency during the harmonized elections held in Zimbabwe on 29 March 2008. She competed for office with Patrick Kombayi, the first respondent, of the Movement for Democratic Change-Tsvangirai party MDC-T. The election was run and conducted by the Zimbabwe Electoral Commission, the second respondent.

The petitioner became aware that the first respondent had won the seat on 5 April 2008 and filed the petition on 15 April 2008.

It was served on 6 May 2008, by the Deputy Sheriff, at Harvest House, the headquarters of the first respondent's political party. The return of service indicates that a court application was served on one Muzuva, a security officer, who accepted service on behalf of the first respondent.

Another copy was served on the second respondent at its place of business on the same day.

The petition did not show that security for costs had been furnished. The first respondent was not served with any recognizance.

Counsel for the petitioner was to advise the Court, from the bar, in argument, that the security for costs was paid in the sum set by the Registrar, and, out of an abundance of caution, recognizance entered at the same time on 23 April 2008.

The first respondent received the petition on 19 May 2008.

The petitioner provided minimal facts of the events that triggered the application. She did not provide the date on which the first respondent was declared the winner by the Constituency Election Officer in terms of section 66(1) of the Electoral Act. She referred to a recount of votes but did not provide any details on the date it was held and its outcome. Some of the facts that appear in her heads of argument were not pleaded in her founding affidavit.

The duty to present an election petition is cast on the losing candidate by section 167 of Electoral Act [Chapter 2:13].

Its format and period of presentation are set out in section 168 of the Electoral Act.

It has to be presented within 14 days after the date on which the declaration of the result in the last constituency for Senatorial elections is made.

The duty is placed by the Electoral Act on the petitioner to establish this fact. It is this fact alone which triggers this legal right for her. Failure by her to establish it would be fatal to her case for the reason that she would have failed to bring her self into the protective ambit of the Electoral Act.

The facts alleged in the affidavit deal with corrupt practices which occurred before and during the election but not after the elections.

It is only illegal practice, as defined, that occurred after the announcement by the Constituency Elections Officer in the last constituency that triggers the 30-day notice period from the date of the alleged illegal practice that is provided in the proviso to section 168(2) of the Electoral Act. The petitioner could only bring her petition within the 14 day period.

I, however, requested that the information that is required to initiate the petition be provided by the second respondent.

At the hearing counsel for the second respondent produced a document from the second respondent which showed that the declaration of the last result in a House of Assembly constituency had been made on 4 April 2008 for the Kariba constituency.

Counsel for the first respondent, correctly in my view, abandoned argument on whether or not the petition had been filed on time.

I accept his reasoning, that, if the result for the House of Assembly seat was announced in Kariba on 4 April 2008, it was unlikely that the result for the Senatorial constituency, which incorporated the Kariba constituency, would have been declared earlier given its size.

The effect of 4 April was that in terms of section 33(4) of the Interpretation Act [Chapter 1:01] the petitioner had at least until 21 April 2008 to present her petition as the 14-day period would have ended on 18 April, a public holiday, which was followed by a Saturday and Sunday: see Nyamapfeni v The Constituency Registrar for Mberengwa East & Others HH27-08 and the cases cited therein.

In casu, the petition, having been filed on 15 April 2008, was presented on time. The issue that I raised, therefore, falls away....,.

3. Whether the second respondent was properly joined as a party

Counsel for the second respondent objected to the citation of the second respondent in the petition. He relied on the definition of respondent found in Part XXIII in section 166 of the Electoral Act [Chapter 2:13]. The section reads as follows:

“166 Interpretation in Part XXIII

In this Part —

“'respondent' means the President, a Member of Parliament or Councillor whose election or qualification for holding the office is complained of in an election petition.
[Definition substituted by section 78 of Act 17 of 2007].”

He invoked the maxim expressio unius est exclusio alterius in aid of his objection.

According to FRANCIS BENNION in his book Statutory Interpretation, Butterworths, 1988…, the expression means “to express one thing is to exclude another.”

Counsel for the second respondent submitted that the legislature deliberately defined respondent in the Electoral Act so as to exclude the second respondent in circumstances where it would automatically have been included by virtue of its overarching role in running and conducting elections. He advanced six reasons upon which he based his submission that the exclusion was deliberate.

Counsel for the petitioner, on the other hand submitted that the second respondent was properly cited because it is an interested party which is charged with the responsibility of giving effect to the order of court. He based his submission on the common law principle of joinder and relied on Tsvangirai v Mugabe and The Electoral Supervisory Commission HH109-05.

He contended that the second respondent would have no obligation to give effect to the determination of Court arising from proceedings in which it did not participate.

He further argued that grave injustice would visit the petitioner if the second respondent's officials, who are implicated in electoral malpractice, are not called to testify.

He seemed to believe that they could only testify if the second respondent was cited as a respondent.

I am persuaded by the six reasons that were advanced by counsel for the second respondent. They clearly demonstrate that the legislature deliberately excluded the citation of the Zimbabwe Electoral Commission as a respondent in electoral petitions brought under Part XXXIII of the Electoral Act.

With the full knowledge of the second respondent's mandate in election matters, the legislature;

(i) Firstly, in section 166 of the Electoral Act did not include it as a respondent, obviously in a bid to guarantee its neutrality in the conduct of elections.

(ii) Secondly, the second respondent is excluded from the protective ambit of section 168(3).

(iii) Thirdly, in section171(3)(b)(ii) it mandated the Electoral Court to certify its determination to, amongst others, the second respondent, which, in itself, would be an anomalous method of alerting a respondent who is before it of its decision. In fact, the other persons who are notified are not respondents but public officials.

(iii) Fourthly, in section 171(a) and (b) the second respondent may be made to pay costs, or a portion thereof, for the culpable conduct of its officials, an obvious fate that befalls any losing or maligned respondent.

(iv) Fifthly, in section 158 as read with section 171(4)(b) any person alleged to have committed an electoral malpractice may be called to vindicate his or her name before such a finding is made against him or her.

In any event, “means” is the operative word in section 166 of the Electoral Act. It carries a different import from such words as “includes”. It is peremptory in nature.

I find that the force of reasoning in Movement for Democratic Change & Anor v Mudede N.O. & Others 2000 (2) ZLR 152 (S) is such that in defining respondent, in section 166 of the Electoral Act, the legislature intended to demonstrate, beyond doubt, the centrality of the winning candidate in election petitions.

The challenge is to him or her. His conduct is impugned in terms of section 167 of the Electoral Act and measured against the principles set out in section 3 of the Electoral Act.

Sections 155 to 157 make the winner liable for the acts of commission or omission that he or his agents or any other person commits with his or their knowledge and consent or approval.

A finding that the election was tainted to such an extent, as would materially affect its outcome, triggers, by operation of law, the holding of a new election.

The second respondent does not have the authority, luxury, or inclination to decline to hold such an election in those circumstances.

I therefore discern of no conceivable reason, in either law or logic, why the second respondent should be cited as a respondent under Part XXXIII of the Electoral Act.

MFALILA J was of the same view, at page 166E-H, in Pio v Smith 1986 (2) ZLR 12 (SC). He held that the predecessor functionaries of the second respondent could not be cited as a respondent under the then prevailing Electoral Act.

The reliance placed by counsel for the petitioner on Tsvangirai v Mugabe and The Electoral Supervisory Commission HH109-05, as authority for the proposition that the first respondent was properly cited, was misplaced.

HLATSHWAYO J…, based his decision for approving the joinder of the Electoral Supervisory Commission, the predecessor of the second respondent, on the common law principle of locus standi and Rules 85, 86 and 87 of the High Court Rules.

The only difficulty I have with reference to the common law is that an election petition is unknown to common law: see Hove v Gumbo SC143-04…,.

Further, it does not appear to me that the Rules of the High Court would supercede the definition of respondent set out in section 166 of the Electoral Act.

In any event, as was submitted by counsel for the second respondent, as his sixth reason, Tsvangirai v Mugabe and The Electoral Supervisory Commission HH109-05 is distinguishable from the present matter in that it concerned a Presidential election petition while the present involves a Parliamentary election petition.

The Electoral Act [Chapter 1:01], under consideration in that case, did not, in section 102, define respondent for Presidential petitions. Under that old Act, petitions were referred to the High Court and not, as at present, to the Electoral Court, a special court created under the Electoral Act No.25/2004.

Citing the second respondent, or, more correctly, its Chairman, is not permitted by the Electoral Act in election petitions.

I fail to see how citing the second respondent can be said to be in substantial compliance with the Electoral Act when the Act excludes it.

The citation of the second respondent, in name, is contrary to the provisions of section 18 of the Zimbabwe Electoral Commission Act which incorporates the modus operandi set out in section 3 of the State Liabilities Act [Chapter 8:14] for citing Government ministries and departments.

It directs that the Chairman of the second respondent be cited.

The citation of the wrong party renders the petition as against the second respondent void: see Savanhu v Post Master General 1992 (2) ZLR 455 and Sibanda v Post Master General HH263-90.

Thus, even if the second respondent were properly joined in the petition, I would still dismiss it on the basis that the wrong party was cited.

I, however, hold that the Zimbabwe Electoral Commission was improperly joined as a party in this petition....,.

It is declared that the Zimbabwe Electoral Commission was wrongly cited and is hereby removed as a party to this petition. The petitioner shall bear its costs.

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.

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

In this case, I also note that the applicant has raised serious concerns relating to the use of the Presidential Powers (Temporary Measures) Act and the constitutionality of the provisions enacted in both the Presidential Powers (Temporary Measures) (Amendment of Electoral Act) (No.2) Regulations 2008, S.I.43 of 2008 and the ...

HH551-15 : W AND D CONSULTANTS (PRIVATE) LIMITED vs SEAN THOMAS NIELSON DORAN
Ruled By: DUBE J

This dispute came before me as a trial matter. The parties agreed to dispense with the need to call oral evidence there being no disputes of fact arising from the facts. Thereafter, the parties filed heads of argument and a Statement of Agreed Facts. After argument, the court granted the ...

“IT IS ORDERED THAT:

1. The defendant shall give vacant possession of No.7 St. Michaels Lane, Borrowdale otherwise known as the remaining extent of Stand 10 Reitfontein Township of Lot 1AB Reitfontein measuring 4,714 square meters within (7) seven days from the date on which the order is served on the defendant.

2. If the respondent, or any person occupying the property through him, remains on the property after that date, the Sheriff is authorised to remove them and their possessions from the property.

3. Payment of holding over damages in the sum of US$2,000 dollars per month from the 7th of February 2013 to the date of ejectment.

4. Costs of suit.”

Brief reasons for the order were given. The court has now been requested for detailed reasons for its order.

The salient facts of this dispute are common cause.

On 12 July 2013, the plaintiff issued summons claiming the ejectment of the defendant and all persons claiming occupation through him from No.7 St Michael's Lane, Borrowdale, Harare and holding over damages at $3,000 per month from January 2013 to the date the defendant vacates the property.

The plaintiff is the registered owner of the property in dispute having bought it at a sale in execution and subsequently transferred it into its name. The defendant, who is in occupation of the property with his family, has refused to vacate the property.

The brief background of this case is aptly summarised in the Statement of Agreed Facts as follows;

“1. A judgment by default for the payment of an amount of US$415,951=91, under case number HC5917/10, was obtained by Kingdom Bank against the defendant, Dreibond Investments (Private) Limited (“Dreibond”) and 9 other defendants on the 14th of February 2011.

2. The judgment also provided that a certain piece of immovable property known as certain piece of land situate in the District of Salisbury called the Remaining Extent of Stand 10 Rietfontein Township of Lot 1AB Reitfontein measuring 4,714 square meters (“the Property”) be declared executable.

3. The Property was registered in the name of Dreibond. Dreibond is not a trading company.

4. The defendant holds all the issued shares in Dreibond.

5. The directors of Dreibond, as per the Company Office records, are Louise Nielson-Doran and the defendant.

6. A writ of execution against immovable property was issued in matter HC5917 on the 15th of April 2011.

7. The Property was attached into execution and duly advertised for sale by public auction on the 19th of October 2012.

8. The Plaintiff, represented by Tsitsi and Prince Zireva, bid for the Property, and the Sheriff for Zimbabwe, on the 7th of November 2012, duly declared the Plaintiff the highest bidder and purchaser of the Property at a purchase price of US$284,000.

9. The Property was transferred to and registered in the name of the Plaintiff on the 5th of February 2013.

10. On the 7th of February 2013, the Plaintiff demanded that the Defendant vacates the Property.

11. The Defendant has refused to vacate the Property and contends that he has the right to remain in occupation in terms of a lease agreement allegedly executed between Dreibond and his wife, Louise Nielsen Doran, on the 28th of September 2012. A copy of the alleged lease agreement is attached hereto marked Annexure “A”. The alleged lease agreement provides for the payment of rentals at the rate of US$1,500 per month.

12. The Defendant and/or his wife have not paid any rentals whatsoever to the Plaintiff. The Defendant tendered rent to the Plaintiff on the 24th of July 201.

13. The Defendant and the other 10 defendants applied for the rescission of the default judgment of the 14th of February 2011 under case number HC9634/11. The application was dismissed on the 17th of October 2013. Judgment HH363-13 refers.

14. On the 19th of March 2013, the Plaintiff obtained a report from Clipcrunt Real Estate which put market rentals for the property at US$3,000 per month. A copy of the report is attached hereto marked Annexure “B”.

15. Defendant obtained two (2) independent evaluation reports from Estate Agents which put the rentals for the Property at US$1,500. Copies are attached marked as Annexure “C” and “D”.

16. The Parties have agreed that a fair market rental for the Property is in the amount of $2,000 per month.”

At the hearing of this matter, the defendant raised preliminary points which I will deal with in seriatim....,.

The defendant further submitted that the defendant has the lawful right to remain in occupation of the premises through his wife, Louise Nielsen, who has a legal and binding lease with the former owners of the property thus, Dreibond Investment (Private) Limited.

The defendant submitted that the new owner, the plaintiff, is bound to observe and adhere to that lease agreement on the basis of the huur gaat voor koop concept.

Further, that the defendant's wife ought to have been joined to these proceedings on the basis that she is the holder of that lease.

I propose to deal with this point when I deal with the merits of this case as this point is intrinsically intertwined with the merits of this matter....,.

I now come to the merits of this matter.

I will deal, first, with issues related to the making of the lease agreement and the correctness of the parties before the court.

The ownership structure of the company reveals the following:

(i) The defendant is the sole shareholder of Dreibond Investments (Pvt) Ltd, the former owner of the property which is subject of this dispute.

(ii) The company is not a trading company.

(iii) The defendant and his wife are the only directors of that company.

(iv) The property was registered under the defendant's company and was sold in order to settle the defendant and his company's indebtedness to Zimbank Bank.

The cardinal principle is that a company is a separate entity which has a separate and distinct legal existence from that of its members: see Salomon v Salomon (1897) AC 22 (HL). There are exceptions to this rule and these are grounded on policy considerations.

In US v Milwaukee Refrigerator Transit Company (1905) 42 Fed 247…, the court said of exceptions to the rule;

“When the notion of a legal entity is used to defect public convenience, justify wrong, protect fraud, or defend crime, the law will regard the corporation as an association.”

In such cases, the courts will lift the corporate veil and investigate the activities of the company.

In Cape Pacific Ltd v Lubner Controlling Investment (Pty) Ltd and Others 1993 (2) SA 784 (C) the court held as follows;

“The general principle underlying this aspect of the law, of lifting the veil, is that, when the corporation is the mere ego or business conduit of a person, it may be disregarded. This rule has been adopted by the courts in those cases where the idea of the corporate entity has been used as a subterfuge and to observe it would work an injustice.”

In Waltersteiner v Moir; Moir v Waltersteiner and Others (1974) 3 ALL ER 217 (CA) DENNING MR was prepared to treat various companies through which the appellant, Dr Waltersteiner, had operated as if they were “just puppets of Dr Waltersteiner.” At 1013 of the judgment, LORD DENNING held as follows;

“He controlled their every movement. Each danced to his biding. He pelted the strings. No one else got within reach of them. Transformed into legal language, they were his agents to do as he commanded. He was the principal behind them. I am of the opinion that the court should pull aside the corporate veil and treat these concerns as being his creatures for whose doings he should be and is responsible.”

The evidence that emerged during the trial shows that the defendant and his wife have always been in occupation of the house. They then devised a scheme to save the property from the sale that was imminent. They entered into a lease agreement between themselves on the eve of a sale in execution of the house.

It is necessary to unwrap the lease agreement and reveal its true nature.

On 14 February 2011, Kingdom Bank obtained a default order against the defendant's company. A writ of execution against the property was issued on 15 April 2011 resulting in the property being attached. The property was advertised for sale by the Sheriff on 19 August 2011. The defendant tried to stop the sale by filing an urgent chamber application under HC12308. That application was not to yield any fruit.

The defendant's company states that he only got to know of the default judgment on 19 August 2011 when adverts appeared in the Herald Newspaper advertising the sale in execution. The property was going to be sold on 2 September 2011. The property was sold soon after the urgent chamber application on 7 November 2012.

On 28 September 2011, the defendant's company entered into an agreement of lease over the property. The defendant signed the agreement on behalf of his company. The defendant and his wife continued in occupation of the property.

The lease agreement was entered into after the Sheriff had indicated that the property was going to be sold.

The defendant and his wife were aware, from as far back as April 2011, when judgment was entered against them, that this property was going to be sold. The defendant's company and his wife entered into a lease agreement solely for purposes of defeating the sale in execution that was imminent and so that they could remain in occupation of the property after the sale.

The circumstances of the making of this lease agreement call for the court to pierce the corporate veil and investigate the activities taking place thereunder.

This case is akin to the Cattle Breeders Farm (Pvt) Ltd v Veldman (2) 1973 (2) RLR 261 case. This case involved a husband who used his company to try and evict his wife. The court ruled that the husband could not hide behind the company to seek eviction of his wife.

The defendant has tried to hide behind his wife and the company by leasing the property in issue to her and to escape eviction.

The lease agreement was deliberately offered to the wife even though there is no actual distinction between the wife, the defendant, and the company.

Our courts have held that a husband and wife hold a uniquely special relationship and that they normally have a common interest and household: see Warren Park Trust v Antony Ernest Pahwaringira and Others HH39-09 and Masiyiwa Cleopas Gonye v Stella Mavis Gonye SC15-09.

The facts of the case involved a company formed by the appellant which he, his wife, and sons were shareholders. The court held that the company was part of the matrimonial estate. The court held as follows:

“Stripped of the corporate veil, the proceeds of the farming operations belonged to the appellant. The company was nothing more than the applicant's alter ego. It had no greater rights to the money than he possessed.”

When one considers the defendant's position in the company, and that of his wife, one cannot avoid the conclusion that the property was, before the sale, part of the matrimonial estate of the defendant and his wife.

The transaction entered into is a simulated and dishonest transaction.

The court is not deceived by its form but is concerned about its substance. It appears to me that this is a mere paper agreement. It cannot become a real agreement.

In Kilburn v Estate Kilburn 1931 AD 501 the court held that;

“…, a court of law will not be deceived by the form of a transaction; it will rend aside the veil in which the transaction is wrapped and examine its true nature and substance.”

In Boots Company (Pvt) Ltd v Somerset West Municipality 1990 (3) SA 216 (C)…, the court set out the law on simulated contracts as follows:

“I take the law on this question from the case of Skjelbreds Rederi A/S and Others v Hartless (Pvt) Ltd 1982 (2) SA 710 (A) in particular, I cite the following passage from the (as he then was), reading from p732:

'The law relating to the question of simulated, or disguised, agreements is summed up in the well-known Roamanism, plus valet quod I agituraquam quod simulate concipitur. In Justiniaris Codex 4.22.1 the rule is briefly stated in the following terms: In Contractibusrei veritas debet, i.e. in contract the truth of the matter, rather than the writing, must be looked at.'”

In Zandberg v Van Zyl 1910 AD 302 INNES JA dealt with this subject and held that in a simulated contract, parties enter into such a contract in order to secure some advantage which otherwise the law would not give or escape some disability which the law would otherwise impose. He says, at 309, that such parties;

“Endeavour to conceal its (transaction) real character. They call it by a name, give it a shape intended not to express but to disguise its nature, and, when a court is asked to decide any rights under such agreement, it can only do so by giving effect to what the transaction really is and not what it, in form, purports to be.”

It is easy to detect this simulation.

This is to be done by considering the facts leading up to the contract and circumstances under which it was made.

It is apparent that the transaction, or agreement, was entered into simply to retain the property.

The defendant company and the defendant's wife entered into the lease agreement in order to thwart the sale of the house. They devised a plan wherein they would remain in occupation of the property despite the sale and defeating the sale in execution that was in progress. The agreement was entered into after the writ of execution had been issued and after the property had been placed under judicial management. They wanted to defeat the sale at all costs. They devised a strategy to defeat the sale.

The defence of huur gaat voor koop is being raised to frustrate the plaintiff's rights.

The defendant now resists the eviction on the basis of this lease agreement. He seeks to hide behind his wife. His partner in crime. It is clear that the lease agreement was made simply to save the property. The parties to the lease agreement were not bona fide when they entered into the lease agreement.

The court has considered, in coming up with this position, that the defendant is a sole shareholder and owner of the company. He is, in effect, the sole owner of the company. His company, represented by himself, entered this contract with his own wife, a director of the company. The defendant signed the lease agreement in the face of a pending execution. The defendant benefits from the existence of the lease. He is actually in occupation of the property with his wife. He was well aware that he would benefit from the agreement he was signing. The parties were in occupation of the property without a lease agreement prior to the sale.

One wonders why there was now a need for a lease agreement.

The defendant clearly sought to protect his property. Any threat to the property was a threat to him. This cannot be a genuine lease agreement. There is no doubt in my mind that the lease agreement was simulated.

The evidence reveals that the defendant entered into the lease agreement to evade a creditor who was pursuing his company and property. The lease agreement was fraudulently entered into.

This is a proper case in which to lift the corporate veil and investigate the activities of the company.

The defendant is the alter ego of the company. The defendant controlled the company as he was the sole shareholder. He and his wife were the only two directors of the company. The company is a one-man company. He is the company. The defendant's company is his. There is no separation between the defendant and his company. The company is simply a tool through which the defendant owned the property. He cannot be separated from the company. The defendant has involved in activities, through the company, which are irregular and fraudulent. The defendant used his company to justify wrong and protect fraud.

This lease agreement is irregular. This agreement cannot stand in the way of the plaintiff's claim. The lease agreement is a nullity and no rights flow from it.

The plaintiff is, on the basis of this reason alone, entitled to evict the defendant, his company, and his family from the house in issue.

The defendant contends that he has the right to remain in occupation of the property on the basis of a lease agreement executed between his company and his wife on 28 September 2012. This submission is premised on the argument that the plaintiff inherited an obligation to allow the defendant and his wife to continue in occupation of the property.

He relies on the concept of huur gaat voor koop.

The defendant contends that it is only his wife who can effectively respond to the issue regarding the terms and conditions of the lease agreement.

The defendant and his wife have always been aware of the plaintiff's title and claim in the property. The two are partners in the defendant's company and are in matrimony. The wife is presumed to be aware of this action.

The defendant pleaded that there has been a non-joinder of his wife as a party. No effort was made, either at pre-trial stage or any other subsequent stage, to join her as a party.

The defendant and his wife seem to be playing a hide and seek game with the plaintiff.

No explanation was given regarding the defendant's failure to apply for joinder to this action. The defendant and his wife seemed bent to frustrate the plaintiff's claim by not joining the wife to this claim. This is totally unacceptable. Mis-joinder does not operate as a defence. The rules of this court provide, in Rule 87, as follows:

“87. Misjoinder or nonjoinder of parties

(1) No cause or matter shall be defeated by reason of the misjoinder or non joinder of any party and the court may, in any cause or matter, determine the issues or questions in dispute so far as they affect the rights and interests of the persons who are parties to the cause or matter.”

In any case where there has been a non-joinder, the court may, in terms of Rule 87, determine the issues and questions in dispute in so far as they affect the rights and interests of the persons before it.

The defendant and his wife and family were in occupation of the property before the sale. What this essentially means is that the company, its shareholders, as well as its directors are still in occupation of the house and have not moved an inch since the sale of the property.

The defendant entered into a fraudulent lease agreement so that he would remain in the house.

Once it is accepted that the defendant is the alter ego of the company, and controlled all its activities, he should be responsible for its entire doings.

He and the company are still in occupation of the property and there seems to be sense in citing the defendant as a party to these proceedings.

The court has found that the lease agreement is simulated and a nullity, and, therefore, anyone in the premises may be cited for ejectment.

I cannot find fault with the plaintiff's citation of the defendant as a party to this action. The court will proceed and determine the dispute in so far as it affects the rights and interests of the persons before it.

Even assuming I am wrong in my approach, the rule of huur gaat voor koop does not assist the defendant's case or that of his wife.

The concept of huur gaat voor koop is found under Roman Dutch Law and simply means that hire takes precedence over sale. The doctrine was defined in Genna-Wae Properties (Pty) Ltd v MedloTronics (Natal) (Pvt) Ltd (435/13) (1995) ZA SCA 42 1995 (2) SA 926 AD, 1995 (2) ALL SA 410…, as follows;

“I hold that in terms of our law the alternation of leased property consisting of land or buildings, in pursuance of a contract of sale does not bring the lease to an end.

The purchaser (now owner) is substituted ex lege for the original lesser and the latter falls out of the picture.

On being so substituted, the new owner acquires, by operation of law, all the rights of the original lessor under the lease. At the same time, the new owner is obliged to recognise the lessee and to permit him to continue to occupy the leased premises in terms of the lease - provided that he (the lessee) continues to pay the rent and otherwise to observe the obligations under the lease. The lessee, in turn, is also bound by the lease, and, provided the new owner recognises his rights, does not have any option, a right of election, to resile from the contract.”

What the concept entails is that a tenant who entered into a lease agreement prior to the sale is protected from eviction where the property is sold to a third party. He is entitled to remain in occupation of the property until his lease expires. He must abide by the terms of the lease agreement: see One Naught Three Craighall Park (Pty) Ltd 1940 TPD 299, where the court held that a lessee of property transferred from the previous lesser is required to recognise and observe the terms of the lease after transfer.

For a tenant to benefit from the lease, the lease should not have been fraudulently entered into or entered into in bad faith.

In Genna-Wae Properties (Pty) Ltd v MedloTronics (Natal) (Pvt) Ltd (435/13) (1995) ZA SCA 42 1995 (2) SA 926 AD, 1995 (2) ALL SA 410, CORBETT J quotes from a passage from Voet 19.2.17 which states as follows;

“…, sive private venditio interveniat,sive publica, aut ex decreto magistratus adhibitis hastoe solennibus ad creditorum pettitionem; sic ut et jus retentionis conductor competat, si remanere in conductutione malit, quam post eeexpilsionem intempestivam ad id quod interest judio experiri, si modo bona fide, non in fraudem creditorum (pendent forte subhastationionis judicio, aut lite jam mota), location facta sit.”

The BEINART and ORMONDE's translation of that passage reads as follows;

“…, whether it be a private sale or a public one, or a formal judicial sale following on a decree of a magistrate at a petition of creditors; the result is that the lessee has a right of retention, if he wishes to remain in possession rather than bring an action for damages after he had been ejected with prejudice to himself, provided that the lease had been made in good faith and not in fraud of creditors (for instance, where process for judicial sale was pending, or the suit had already been brought)”…,.

The underlined part emphasizes the need for the tenant to be bona fide and the requirement that the lessee should not enter the contract of lease fraudulently and with a mind to evade creditors - especially where a sale in execution was pending.

A tenant wishing to rely on the concept should show that he entered into the lease agreement with the previous owner before the sale. He should show that he is bona fide and did not enter into a lease agreement fraudulently in order to avoid an imminent sale or a claim by creditors. He must also show that the new owner was aware of the lease agreement and bought the property with the knowledge of the lease agreement.

It is a requirement that the tenant should abide by all terms of the contact and continue to pay his rentals to the new owner. Failure to do so amounts to breach.

The new owner only has an obligation to adhere to the lease agreement if the tenant is willing to pay rentals - and does pay the rentals.

Where the tenant fails to pay rentals agreed to with the previous owner, he commits a breach and he is liable to the new owner: see Genna-Wae Properties (Pty) Ltd v MedloTronics (Natal) (Pvt) Ltd (435/13) (1995) ZA SCA 42 1995 (2) SA 926 AD, 1995 (2) ALL SA 410 for this proposition.

There are two schools of thought regarding whether this concept applies to sales in execution.

In Liquidators Union & D Rhodesia Wholesalers Ltd v Brown & Co 1922 AD 549…, KOTZE JA made the following remarks;

“While an ordinary arrest of property under the Roman-Dutch Law gives no preference, an arrest effected on property in execution of a judgment creates a pignus praetorium or to speak more correctly a pignus judiciale, over such property. The effect of such a judicial arrest is that the goods attached are thereby placed in the hands or custody of the officer of the court. They pass out of the estate of the judgment debtor so that in the event of the debtor's insolvency the curator of the latter's estate cannot claim to have the property attached delivered up to him to be dealt with in the distribution of the insolvent's estate.”

A similar approach was adopted in Maphosa and Anor v Cock and Others 1997 (2) ZLR 314 (HC) where the court, following on Liquidators Union & D Rhodesia Wholesalers Ltd v Brown & Co 1922 AD 549, held that in such an instance, the property could not be dealt with by the company as if it had not been attached. See also Simpson v Klein NO and Others 1987 (1) SA 405 (W).

In HERBSTEIN and Van WINSEN, Civil Practice of the Superior Courts in South Africa, 3ed state…,;

“A judgment creditor is entitled to attach and have sold in execution the property of his debtor notwithstanding that a third party has a personal right against such a debtor to the ownership or possession of such property which right arose prior to the attachment or even the judgment creditor's cause of action and of which the judgment creditor had notice when the attachment was made. An attachment in execution creates a judicial mortgage or pignus judici here are exceptions to this rule.”

In Graham v Local Overseas Investments (Pvt) Ltd 1942 AD 95 the court suggests that the concept is not available if insolvency is involved.

In Genna-Wae Properties (Pty) Ltd v MedloTronics (Natal) (Pvt) Ltd (435/13) (1995) ZA SCA 42 1995 (2) SA 926 AD, 1995 (2) ALL SA 410, the court took the view that the concept of huur gaat voor koop applies to judicial sales in execution. The court in that case remarked as follows;

“Whether the sale takes place privately or publicly or by order of a magistrate a petition of creditor is irrelevant.”

I am persuaded to follow the approach followed in Liquidators Union & D Rhodesia Wholesalers Ltd v Brown & Co 1922 AD 549. This is a decision of our own Appellate Division.

The concept of huur gaat voor koop does not apply to sales in execution.

In any case, where a property has been placed under judicial arrest, it falls into the hands and control of the Sheriff. It ceases to be part of the debtors' estate. It cannot be dealt with in any manner not sanctioned by the Sheriff. The previous owner and debtor are not at liberty to deal with the property as if it has not been attached. The debtor, at that moment, ceases to have any right to deal with the property in any manner not sanctioned or directed by the Sheriff. The debtor cannot deal with the property at his whims. To do so would be to defeat the judicial process underway.

The defendant company, the defendant, and his wife ought not to have dealt with the property as if it was still in under their control.

The defendant is a schemer.

His game plan is as plain as the nose on his face. His imagination ran riot when he and his company, being aware of this development, proceeded and entered into a lease agreement with his wife, a director of the same company, and un-authorised by the Sheriff. The defendant's company and its directors dealt with the property as if unaware that it had been attached.

It should not matter that the sale of the property had not actually gone through.

There is no doubt that the idea behind the principle of huur voor gaat koop was to protect litigants, who, prior to the attachment and sale of the property, had entered into a lease agreement for the lease of the property.

A judgment creditor who leases his property, which is subject of an attachment, in the hope that he can later rely on the lease agreement and remain in occupation of the property to frustrate the new buyer can only fantasize.

They were waiting to pull the carpet from under their feet.

The courts have no interest in aiding and abetting unscrupulous litigants.

The lease agreement is, for this reason, also irregular.

The defendant and his wife did not advise the Sheriff and the purchaser of the lease agreement. The Sheriff dealt with the sale as if it was free of a lease. The purchaser did not have knowledge of the lease. This was part of the game.

The defendant cannot benefit from the lease agreement.

The defendant, and his wife, never treated the lease agreement as such. It does not appear that they ever paid any rentals in lieu of the lease agreement. Although being aware that the plaintiff had bought the property, and his interest in it, the defendant and his wife never paid any rentals for it. The defendant and his wife have deliberately not been paying rentals for the leased property to the new owner, the plaintiff.

They are in breach of the lease agreement.

No evidence was led to show that the defendant and his wife tried to pay rentals to the plaintiff or that the plaintiff refused to accept such rentals as alleged.

Even assuming that the lease was valid, the defence of huur gaat voor koop can only avail a tenant who pays his rentals - and on time.

The plaintiff is entitled to eject the defendant from its property.

The payment plan and rentals payable and due was only discussed and agreed to at the hearing. The parties agreed that a reasonable and fair rental for the premises is $2,000.

The plaintiff became entitled to rentals the moment the property was transferred into its name.

The plaintiff is entitled to vindicate its property from whoever may be in occupation or possession of the property. The defendant and his company are in occupation of the property. They have not shown an entitlement to remain in the property. The plaintiff is entitled to the order sought.

It is for these reasons that I granted the order sought.

HH978-15 : IGNATIUS MASAMBA vs SECRETARY-JUDICIAL SERVICE COMMISSION
Ruled By: MUNANGATI-MANONGWA J

This is an exception by the defendant to the plaintiff's summons and declaration, as amplified by further particulars, on the grounds that the plaintiff's claim does not disclose a cause of action.

The defendant further avers that the claim is bad in law.

The background to this case is that the plaintiff had sued for damages in the Magistrates' Court in an action he had stated as “trespass on person-battery”. As no appearance to defend was entered, he sought default judgement. The magistrate threw out his application, and, in doing so, stated that the plaintiff had sued for “trespass on land”.

The plaintiff appealed against the decision and the appeal is pending in this court.

Arising out of those circumstances, the plaintiff has, in this matter, instituted an action for damages against the defendant, being Secretary–Judicial Service Commission.

The plaintiff relies on vicarious liability, and is suing the defendant in a representative capacity as the employer of the magistrate who dismissed his case.

The action is defended.

The plaintiff's claim is couched as follows:

“The failure or omission to read accurately all the plaintiff's documents filed of record at court by the plaintiff in this matter, that has a cause of action of 'Trespass to the person-battery' which the magistrate read as 'Trespass to land'…, inexplicably.”

The plaintiff further states that he is suing the defendant in contract and delict in her representative capacity.

The defendant requested for further particulars; upon being furnished with same, the defendant raised an exception to the plaintiff's summons.

The exception is premised on the following grounds:

(i) The summons do not reveal a cause of action for its claim against the defendant thus does not comply with the peremptory provisions of Order 3 Rule 11(c) of this court's rules which specifically provides that a summons shall contain “a true concise statement of the nature, extent, and grounds of the cause of action and of relief or remedies sought in the action.”

(ii) The summons are vague and embarrassing in that it is not clear whether the plaintiff's claim is in contract or in delict. The plaintiff has not averred any of the elements required to succeed in a claim either in delict or contract.

(iii) There is no action known as “professional negligence for mental suffering” which further points to the fact that the claim is vague and embarrassing.

The defendant sought dismissal of the plaintiff's claim with costs at a higher scale.

After service of the exception on the plaintiff, he filed a document headed “Notice of Amendment” in which he sought to amend the claim indicating that at the hearing he was to apply to amend the summons.

No such application was made on the day of the hearing.

Suffice to say, the notice of amendment would not have changed the state of papers as nothing materially changed apart from creating further confusion.

Before the hearing, the plaintiff raised issue that the defendant had not filed her heads of argument on time since they were filed after the plaintiff had filed a response to the exception and filed a notice to amend summons, hence, the defendant was barred.

The defendant's counsel disputed that assertion insisting there was no bar in operation against the defendant.

The court found no merit in the plaintiff's assertion.

Clearly, the defendant filed heads of argument on 2 November 2015 and served same on plaintiff; the plaintiff filed his on the 12th November 2015, hence, there is no issue of delay in that aspect and no bar operated against the defendant.

The court proceeded to hear the matter on the merits.

Counsel for the defendant argued that the plaintiff's summons did not satisfy the mandatory requirements set out in Rule 11(c) of the High Court Rules; that omission rendered them a nullity. She referred the court to the case of Bank of Credit & Commerce Zimbabwe Ltd v Jani Investments (Private) Limited 1983 (2) ZLR 317 (H)…, where, faced with similarly defective summons, the court remarked:

“It will be immediately realised, of course, by someone who runs very quickly as he reads, that the summons is wholly invalid since it discloses no cause of action whatever. Any exception to such summons can only succeed instantly and completely.”

She further argued that the summons was vague and embarrassing as it did not disclose whether the claim was based in delict or contract law.

In response, the plaintiff maintained that a reading of the summons and declaration, which documents were complimentary, made issues clear. Further, he had filed a notice of amendment.

The heads of argument filed by the plaintiff were not helpful as they contained a lot of historical evidence and did not further his case.

I agree with the submissions made by the defence counsel regarding the non-compliance and the inadequacy of the summons and declaration.

A reading of the summons, declaration, and further particulars, clearly reveals that these documents contain long winding explanations duly tainted with allegations of bribery, corruption, and political interference against different court officials.

There is no true and concise statement of the nature, extent, and grounds of the cause of action.

Facts and evidence are all mixed up and one gets to pains as to determine the facts upon which, at law, one can rely on to sustain a claim.

In ODGERS Principles of Pleading and Practice in Civil Actions in the High Court of Justice, 2nd Ed…, it is stated as follows;

“The object of pleadings is to ascertain, definitely, what is the question at issue between the parties and this object can only be attained when each party states his case with precision.”

It is this precision that, in my view, Rule 11(c) of this court's rules advocates for.

The reason behind Rule 11(c) is to ensure that a summons be a document that clearly and concisely sets out the facts that the plaintiff relies on which establish a cause at law for which specific relief can be sought. Compliance with the requirement would create or bring out a case to which the defendant is able to answer. It must be clear, to the defendant, what it is he is alleged to have done giving rise to the plaintiff, at law, to claim the relief sought.

Rule 99(c) of the High Court Rules, although not referred to by the defendant, comes to play. It states that;

“A pleading shall -

(c) Contain a statement, in summary form, of the material facts on which the party pleading relies for his claim or defence, as the case may be, but not the evidence by which they are to be proved.”

There has to be a summary of allegations of fact which, in law, give rise to a claim or justify the relief sought.

In casu, facts in the summons and declaration are so mixed up so as to cloud the case to which the defendant has to answer. In essence, they are vague and embarrassing so as to go to the root of the claim.

The court further agrees with the defendant's submissions that it is not clear under which branch of law the plaintiff is suing.

Be it in delict or contract, the plaintiff has failed to satisfy the elements that sustain a claim under either of the branches.

In purporting to claim delictual damages, the plaintiff's declaration reads as follows:

“(i) There was damage of mental suffering directly arising out of the magistrate's ruling to the plaintiff which is actionable under negligence law.

The plaintiff bases this averment on what he considers to be failure by the defendant to recruit a competent magistrate.”

The issue is: there is no cause of action like 'damage of mental suffering'.

Even if one can sue for mental distress, the facts alleged do not support liability.

The plaintiff appealed against the judgment granted in the Magistrates' Court.

Further, one cannot sue a magistrate for damages when he/she is acting in their professional capacity for mis-interpreting the law or the facts, hence the appeal and review processes.

Of note is the fact that the defendant in this matter is the Secretary–Judicial Service Commission; apart from not being the employer of Ms Dzikiti, the alleged magistrate (the employer being the Judicial Service Commission) the sitting magistrate herself was not cited.

HH159-12 : URMILLA GIGA vs ALBION PROPERTIES and MESSENGER OF COURT HARARE and APPLISET INVESTMENTS (PVT) LTD
Ruled By: UCHENA J

The applicant was the first respondent's tenant at Number 5 Albion House, 74 Harare. She was evicted from the premises without being given 48 hours notice as provided by Rule 4A(1) of Order 26 of the Magistrate's Court (Rules 1980).

She seeks an order of this court reinstating her into the premises pending the hearing of her application for the condonation of her late noting of an appeal against the decision of the magistrate on the strength of which the first respondent evicted her from the property.

The first respondent was the applicant's landlord for eleven (11) years. It sought and obtained an eviction order against the appellant. The order was enforced in the manner already explained above.

The second respondent is the Messenger of Court Harare. He is an officer of the Magistrate's Court entrusted with the responsibility of enforcing that court's orders.

The third respondent is the first respondent's new tenant with whom it entered into a lease agreement after this application had been issued and served on the first respondent. It has not yet taken occupation of the property in dispute.

The applicant was aware of the court's order for her eviction. She was then being represented by her erstwhile legal practitioners whom she instructed to appeal against the magistrate's decision. She, in her founding affidavit, said she was surprised when the Messenger of Court gave her notice and forthwith evicted her. She, on inquiring with her erstwhile legal practitioners, was advised that they had not filed the appeal as instructed as she had not paid them. She has since retrieved her file from them and instructed her current legal practitioners to note the appeal and file an application for condonation of the late noting of the appeal concurrently with this application.

The applicant's property was removed from the premises and is now stored outside her residential property and is exposed to the elements. She therefore filed this urgent application in which she seeks reinstatement mainly on the ground that her ejectment did not comply with Rule 4A(1) of Order 26 of the Magistrates Court Rules.

Counsel for the first respondent submitted that this application is not urgent because the applicant did not immediately act after her ejectment.

Counsel for the applicant submitted that she acted as soon as she could in the circumstances of this case.

She was surprised by the ejectment as she believed her erstwhile legal practitioners had attended to her appeal against the magistrate's decision, though she erroneously believed that the appeal would suspend the magistrate's decision. She was ejected without the requisite 48 hours notice. She had to retrieve her file from her erstwhile legal practitioners, and instruct her current legal practitioners. She had to do this in the circumstances she had been plunged into by the unprocedural eviction.

I am satisfied that the delay between 16 November 2011, when she was ejected, and her filing this urgent application, on 21 November 2011, has been adequately explained.

I am also satisfied her erstwhile legal practitioners failure to note the appeal, and the sudden unprocedural ejectment, justifies the hearing of the applicant's application on an urgent basis.

Her application is strengthened by her having been evicted without being given 48 hours notice.

Rule 4A(1) of Order 26 of the Magistrate's Court (1980) Rules, which provides for the notice, provides as follows;

“(1) Upon receiving —

(a) A warrant of execution against property; or

(b) A warrant of ejectment and execution against property; or

(c) A warrant of delivery and execution against property;
the Messenger shall, within twenty-four hours or as soon as circumstances permit, go to the house or place of business of the execution debtor and deliver to the debtor or leave at the house or place of business, a notice warning the debtor of the date of the proposed execution of the warrant, which date shall not be sooner than forty-eight hours after the notice was so delivered or left:

Provided that the Messenger need not deliver or leave such a notice in any case in which he has reasonable grounds for believing that immediate execution of the warrant is necessary in order to prevent the execution debtor from concealing or disposing of any property in order to avoid its attachment.”

The second respondent did not oppose this application, nor did he file any papers explaining why he executed without giving the requisite 48 hours notice.

Counsel for the first respondent submitted that the Messenger of Court's inadvertent failure to deliver or leave notice to the judgment debtor in terms of subrule (1) shall not invalidate the ejectment.

Counsel for the applicant submitted that the issue in this case is not on failure to deliver or leave the notice but giving inadequate notice contrary to subrule (1). Subrule (2), which the respondent's counsel relied on, provides as follows:

“(2) An inadvertent failure by the Messenger to deliver or leave a notice in terms of subrule (1) shall not invalidate any attachment, sale in execution, or ejectment effected in accordance with a warrant.”

The first respondent's submission cannot be accepted in view of the fact that there is no evidence that there was an inadvertent failure to deliver or leave the notice at the applicant's premises.

The applicant's case is in fact that she was given notice, but was evicted without being given 48 hours after that notice which would have given her time to take legal action against that notice. Her claim is that the second respondent acted unlawfully by not giving her 48 hours during which he should not have ejected her after the delivery of the notice.

That argument is supported by Rule 4A(1) of Order 26 which is couched in peremptory terms and provides exceptions which would justify failure to give 48 hours notice. The Rule requires the Messenger of Court to deliver notice “of the date of ejectment which date shall not be sooner than forty-eight hours after the notice was so delivered or left.”

The exceptions are provided in the proviso to subrule 4A(1) which deals with circumstances when a Messenger can justifiably not deliver or leave notice of ejectment or attachment.

The first respondent's opposing papers do not allege the existence of such circumstances.

The second respondent, who the proviso authorizes to make such a decision, did not file any papers to oppose this application nor did he file any papers supporting the first respondent's opposition of this application.

There is therefore no explanation before this court justifying the immediate ejectment of the applicant.

In the absence of such an explanation, I hold that the applicant was unlawfully ejected from the premises.

Counsel for the first respondent argued that as the horse has already bolted from the stable, the application should be dismissed as the premises have already been occupied by a new tenant.

Counsel for the applicant then applied for the joinder of the third respondent who was alleged to be the new tenant who had taken occupation of the premises.

The application for joinder and postponement was not opposed.

The third respondent and his legal practitioner appeared before the court and confirmed that it had entered into a lease agreement with the first respondent for the premises in dispute. It however told the court that it had not yet taken occupation of the premises, contrary to what the first respondent had told the court.

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

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

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

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

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

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

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

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

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

That paragraph 5 reads as follows:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

4. There be no other satisfactory remedy.

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

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

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

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

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

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

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

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

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

SC40-15 : INDIUM INVESTMENTS (PVT) LTD vs KINGSHAVEN (PVT) LTD and DANIEL SHUMBA and LINDA SHUMBA
Ruled By: CHIDYAUSIKU CJ, GWAUNZA JA, GOWORA JA, HLATSHWAYO JA and MAVANGIRA AJA

On 28 February 2008, under case no. HC1239/08, the appellant caused summons to be issued against the respondents seeking an order for the cancellation of a lease, and, consequent thereto, the eviction of the respondents from the leased premises.

On 10 December 2008, a second summons was issued by the appellant under case no.6969/08 wherein it sought the eviction of the respondents due to the expiry of the lease.

The High Court dismissed the claims with costs.

The appellant was aggrieved by the dismissal and has noted this appeal....,.

The basic facts surrounding the dispute are the following:

The appellant (hereinafter referred to as “Indium”) is the registered owner of certain immovable property, being Stand 450 Avondale West Township of Stand 390 Avondale West, also known as 108 West Road, Strathaven, Harare, (hereinafter referred to as “the premises”). The first respondent (hereinafter referred to as “Kingshaven”) is a private company registered as such under the laws of Zimbabwe. The second respondent (hereinafter referred to as “Shumba” and the third respondent, his wife, are the only shareholders of and directors in Kingshaven.

Kingshaven carries on business in the hospitality sector and is in occupation of the premises by virtue of a lease concluded on 14 December 2007 with Indium. Notwithstanding the date of signing, the agreement was to come into force on 10 December 2007 and was to endure for a period of 365 days, terminating automatically on 9 December 2008.

Shumba and his wife are shareholders in a Close Corporation, ERF Bryanstan Cc, which is duly registered as such under the laws of South Africa.

ERF Bryanstan is the registered owner of an immovable property, being Portion 2 of ERF 825 Bryanstan Township also known as 17 Portman Road, Bryanstan Sandton, Johannesburg.

In 2007, ABSA Bank, in whose favour ERF Bryanstan had registered a mortgage against the property, called up the mortgage and executed against the same.

In an effort to save the property, Shumba approached Jayesh Shah (hereinafter referred to as “Shah”) for financial assistance, and this culminated in a number of agreements.

The first agreement consists of a loan between Shah, on the one part, as lender, and Shumba and ERF Bryanstan Cc, on the other, as borrowers. The loan amount is UD$500,000.

The second agreement is for the sale of the entire shareholding in Indium concluded by Shumba and his wife, on the one part, as sellers, and Jayesh Shah and Shaleetha Mahabeer, on the other, as purchasers.

The last agreement is the lease agreement concluded between Indium, as lessor, and Kingshaven, as lessee on 14 December 2007.

The two matters instituted by Indium were, by consent of the parties, consolidated for trial before the High Court.

In dismissing the claims, the court a quo stated:

“He intended to secure a windfall by all means legally possible. His legal practitioner advised a web of agreements to ensure he remained within the realms of the law. A loan here, a purchase of shares there and a lease with a buy-back option to crown it all, was all it took to secure apparent control of the debtor's immovable property in Zimbabwe without any reference to its true value.

Clearly, whatever the parties decided to call it, the agreement to take over control of the plaintiff company from Shumba, without paying for it, amounted, in my view, to a pactum commissorium.

It is the substance, not the form, to which the court looks when deciding the true nature of an agreement.

Consequently, therefore, the second issue, whether annexure “C” amounts to a pactum commissorium is determined in defendants' favour.

I have already found that the payment, in South Africa, by Shah, was intended as a loan, as pleaded by plaintiff; therefore, there is no evidence to suggest that the same payment doubled as payment for shares in Indium Investments (Private) Limited.

That issue is resolved in favour of the defendants as well.

The transactions were clearly in fraudum legis. The law in this jurisdiction is clear. Where the contract which is in fraudum legis is performed, the court cannot come to either party's assistance.”

The appeal is premised on the following grounds:

1. That, the court a quo erred in not finding, that, in the absence of a plea for rectification of a contract, the parole evidence rule operates to exclude extrinsic evidence to disprove the contents of a written contract. (sic)

2. The court a quo erred in not finding, that, returns lodged with the Registrar of Companies are prima facie proof of the correctness thereof, and the same cannot be impugned without the joinder of the Registrar of Companies.

3. Consequently, and for the stronger reason in view of grounds of appeal 1 and 2 above, the court a quo erred in holding that the respondents had discharged the onus of justifying possession of the appellant's property within the context of the actio rei vindicatio.

4. The court a quo erred in fact and in law in holding that the agreements in question were simulated agreements which “mimicked” the South African agreements.

5. The court a quo erred in any event in holding, that, the agreements the subject of the litigation were in fraudem legis in that they sought to evade the exchange control legislation, in view of the fact that free funds were paid to the credit of a South African resident, and in not finding, that, the fact that such South African resident was a citizen of Zimbabwe and did not give rise to the need for exchange control approval.(sic)

6. The court a quo erred in fact and in law in holding, that, the agreements the subject of the litigation a quo were a pactum commissorium.

Counsel for the appellant urged us to find, that, the learned judge in the court a quo had not dealt with the case that was placed before him.

It was his contention, that, the matter before the court was principally for the cancellation of the lease agreement between Indium and Kingshaven and consequential relief. He argued that it was essentially a rei vindicatio.

What the court a quo did, however, it is argued, was to turn its focus on a completely different issue which it could not competently determine and made findings which cannot be supported.

It is contended, that, the court thereby misdirected itself.

In my view, the dispute can be resolved by this court having regard to the manner in which the court a quo dealt with what it referred to as the simulated agreements, and, secondly, dealing with the actio rei vindicatio in accordance with the claims in the summons....,.

In answer to the claim for the eviction of Kingshaven from the premises, the respondents raised various defences, namely, that Shumba and his wife had borrowed a specified sum of money from Shah, and that, as security for their due performance thereon, the latter had demanded security in Zimbabwe in the form of shares in Indium. They pleaded, further, that the parties entered into a simulated agreement for the sale of shares in Indium which ultimately resulted in the lease agreement providing for a buy-back option in favour of Shumba and his wife.

There is no suggestion on the papers that Indium participated in any of the agreements except the lease.

It then begs the question which parties the court a quo referred to when it concluded that the agreements were fraudum legis.

It is common cause, that, the loan agreement was between ERF 825 Bryanston Cc, in which Shumba and his wife owned shares, and Shah.

ERF Byanston Cc was not cited as a party to the proceedings before the court a quo.

Shah only appeared in the proceedings in the court a quo as a witness on behalf of Indium.

In the circumstances, the court could not have properly considered the loan agreement, or its legality, in the absence of the parties thereto.

I turn next to the “share sale” agreement in relation to the shares in Indium.

The parties to the sale of the shares were, on the one part, Shumba and his wife, as sellers, and, on the other part, Jayesh Shah and Shaleetha Mahabeer.

The last two were never before the court as parties and the agreement for the sale of shares could therefore not be scrutinised to any extent by a court in their absence.

Consequently, the determination by the court of the issues related to the lease agreement concluded by Indium and all the respondents in reference to the share sale agreement was highly irregular.

It follows, therefore, that, any issues referred to the trial court for determination in relation thereto would be irregular. It is therefore logical to conclude that the court a quo dealt with matters and issues that were not before it.

This leaves Indium, Kingshaven, Shumba and his wife.

They were parties to a document, being the lease agreement, which is the only document properly before the court.

Those were the parties that were before the court, and, therefore, the only dispute for determination was that arising from the lease agreement in respect of which the court had to determine the respective rights and obligations of the parties before it.

In the absence of a counter-claim for declarations of invalidity in respect of the agreements discussed above, the court could not grant relief to the effect that the agreements were invalid. At best, it was argued, the court ought to have granted absolution from the instance.

I think the criticism is well taken.

At p8 of the cyclostyled judgment, the learned judge in the court a quo stated:

“In my view of the facts, the defendants have adduced sufficient evidence to rebut the presumption of legality of the transactions described above. Generally, one of the most common forms of tax avoidance is where the parties to a contract attempt to disguise its true nature in order to qualify for a tax benefit that would not be available if the true contract between them were revealed. The courts require no statutory powers to ignore pretence of this kind and the law will always give effect to the real transaction between the parties.”

The court a quo then went on to consider the agreements in question, and, at p11 of the judgment, concluded:

“In my view, the true nature of the Zimbabwean agreements was that they were additional securities to the South African loan despite the fact that they in effect apparently passed ownership and control to Shah. The buy-back option as well as the fact that the loan had been secured by a mortgage bond gave Shumba the belief (that) these agreements will be respected by the parties as pledged to the underlying loan agreement. I therefore find for the defendant in respect of the first issue.

As to whether annexure “C” amounts to a pactum commissorium, it follows from my reasoning, that, once the interpretation given by the defendant is upheld, the court must find in his favour on this point as well.

I do so for the following reasons:

A pactum commissorium has been defined as a 'pact by which the parties agree that if the debtor does not, within a certain time, release the thing given in pledge by paying the entire debt, after the lapse of the time fixed, the full ownership in the thing will invariably pass to the creditor in payment of the debt:' see Chimutanda Motor Spares (Pvt) Ltd v Musare & Another 1994 (1) ZLR 310; Van Rensberg v Wieblen 1916 OPD 247 at 252.”

Undoubtedly, the court was correct in its statement of the principle of a pactum commissorium.

However, it was incorrect in applying that principle to the facts of this case.

It gave the respondents far reaching relief which they had neither sought nor prayed for....,.

It is common cause, that, in their plea to the claim for eviction, the respondents raised the issue related to the loan between Shah and Shumba and his wife, the agreement for the sale of shares in respect of Indium, and the lease agreement in terms of which Kingshaven, and through it, Shumba and his wife occupied the premises.

A plea is a defence, and, as such, can be likened to a shield. It is not a weapon or a sword. No relief can attach to a party through a plea.

In the same plea, the respondents averred, that, by separate process, Shumba and his wife would approach the High Court for a declaration of invalidity of the two Zimbabwean agreements.

No such process was ever launched.

Clearly, the court a quo misdirected itself in that it resolved a dispute that was not before it.

Some of the parties to the dispute in question were not before it and they were denied the right to be heard in their own cause.

The ratio of the decision of the court strikes at the rights of Jayesh Shah and Shaleetha Mahabeer without affording them the right to be heard.

I say so for the reason, that, a judgment in which the court stated that the acquisition of shares by the two was a nullity could not be made in their absence and in proceedings in which they have not been cited as parties.

The question that arises for determination is whether such a judgment can be said to be valid and binding as against Jayesh Shah and Shaleetha Mahabeer.

In Hundah v Murauro 1993 (2) ZLR 401, the point was made, that, for a party who has a real interest in the matter in dispute before a court to be bound by a judgment of the court, such party should be cited. At p404E-G the court stated:

“We have drawn attention to this point previously on a number of occasions: see e.g. Munemo v Muswera 1987 (1) ZLR 20 (S) at 21G-H; often in conjunction with the other important point that the local authority should be cited in proceedings of this kind since it has real interest in the property in dispute: see e.g. Ncube v Mkandla SC123-89. If it indicates, in writing, beforehand, that, it is happy to accept whatever the court decides, well and good. But, otherwise, it should be cited, if only to ensure that it is bound by whatever judgment is given. Such an order does not bind it if it was not a party.”

SC46-17 : ANDREW MAGARASADZA and 34 OTHERS vs FREDA REBECCA GOLD MINE HOLDINGS LTD t/a FREDA REBECCA GOLD MINE and ASSOCIATED MINE WORKERS UNION OF ZIMBABWE
Ruled By: MAVANGIRA JA

In chambers in terms of Rule 5 of the Rules of the Supreme Court, 1964.

For the sake of completeness, the following observation is noted:

Despite being served with all the relevant papers, the second respondent did not file any papers in response to this application. It was therefore barred. It also did not attend the hearing in chambers.

Two men, who claimed to be former employees of the first respondent and also to be represented by the second respondent, appeared in chambers and indicated that their attendance was solely for the purpose of listening to the proceedings.

Counsel for the applicants and the first respondent indicated that they had no objection to the presence of the two.

This is a chamber application in which the applicants seek an order in the following terms:

“1. The application for substitution of Respondent in case number SC570/14 be and is hereby granted.

2. That the Applicants substitute the 2nd respondent and be listed in their individual capacity and names as 2nd-35th Respondents and the 2nd Respondent be listed as the 1st Respondent in the appeal under case number SC570/14 in place of 2nd Respondent.

3. That all pleadings, documents and papers under SC570/14 filed with the honourable court, from the date of this order, shall reflect this substitution.

4. That there be no order as to costs.”

BACKGROUND

Part of the background to this matter may conveniently be extracted from the judgement of the Labour Court LC/H/272/2012 which prompted the appeal in SC570/14.

The parties before the Labour Court were Freda Rebecca Mine Holdings Limited as the appellant and Amalgamated Mine Workers Union as the respondent.

What was before the Labour Court, in LC/H/272/2012, was an appeal against an arbitral award, the operative part of which read:-

“The Award

Having carefully considered the evidence, and both oral and written submissions from parties, I hereby declare, that, Respondent indeed made unilateral variation in the new contract of employment.

1. I therefore declare the new contract of employment null and void.

2. As a remedy, I hereby order parties to seriously engage themselves in fresh negotiations before a new contract of employment is introduced at Freda Rebecca Mine.”

The following is stated at pp1-2 of the cyclostyled judgment of the Labour Court:

“The material background facts to the matter are as follows:

The appellant operates a mine known as Freda Rebecca Gold Mine situated in Bindura. The respondent is a Trade Union representing mine workers in Zimbabwe. Sometime in 2009, the appellant introduced a revised contract of employment which was, according to the Appellant, signed by a majority of its employees. There were some employees who refused to sign the revised contracts of employment who were consequently dismissed from employment. These workers challenged the lawfulness of their dismissal through the Labour Official. When the conciliation failed, the matter was referred to an arbitrator and is still pending.

The present matter, however, concerns an unspecified number of employees on whose behalf the Respondent lodged a complaint to the Labour Officer. The matter was referred to the Arbitrator with the term of reference being “whether the Respondent could unilaterally vary the terms of contracts of employment with its employees.” The Arbitrator handed down an award in the terms as referred to supra. Dissatisfied with the award, the Appellant then lodged the present appeal.”…,.

The Labour Court struck the appeal off the roll on a technicality.

It opined, that, Freda Rebecca had “thrown itself out of court” by failing to comply with the arbitral award, or, alternatively, failing to apply for the suspension of the operation of the award before instituting the appeal.

Freda Rebecca appealed to the Supreme Court against this decision - Appeal No. SC570/14.

On the date set for its hearing, the said appeal was postponed sine die by the Supreme Court. The postponement was apparently due to issues that arose regarding the citation and/or representation of the parties, which issues were to be sorted out during the period of the postponement. The issues apparently arose due to misunderstandings that developed between the applicants and the second respondent.

The applicants thus instituted the instant application with the anticipation that their success in this application will enable their participation, in their individual capacities, in the appeal in SC570/14, which appeal is expected to be re-set down for hearing after the determination of this application.

SUBMISSIONS IN CHAMBERS BY THE APPLICANTS

Counsel for the applicants moved for the granting of the order sought on a number of bases:

He submitted, that, the applicants are the individuals whose contracts were summarily varied and that it is these same contracts that have been the subject matter of the dispute since 2012. He submitted, that, contrary to what the first respondent contended in its opposing papers, this is not an application for joinder but one for substitution of the second respondent by the applicants. He further submitted, that, whilst the workers' committee has no legal persona and therefore cannot represent workers, a trade union can do so as it has statutory ability to represent workers. He also submitted, that, in any event, as the appeal by the first respondent in SC570/14 deals with a procedural and not a substantive issue, there could be no prejudice to the respondents.

Counsel for the applicants went on to submit, that, in any event, if the applicants are successful in SC570/14, the matter will be remitted to the Labour Court where the first respondent can make another complaint about or raise the issue of the representation of the parties, if they so wish.

Furthermore, that the cause of action or justification for this application was the fact, that, the relationship between the applicants and the second respondent had become discordant.

He submitted, that, the applicants' position is that if there are other employees (former employees) who want to continue to be represented by the second respondent they may continue to be so represented, but they (the 34) now want to ventilate their cause without the second respondent.

It was also counsel for the applicant's submission, that, the second respondent has always acted in a representative capacity and did not at any time supplicate for its own rights. There has thus never been any confusion as to who the parties were.

He submitted that section 29(4)(d) of the Labour Act put to rest the question whether or not the applicants (and others) in their collective complaint, could be represented by the second respondent.

Counsel for the applicants also submitted, that, the application is not one for joinder as it does not seek the joining of a party who was not a party before. It is rather the “unpacking” of the real respondents in that matter that is sought.

There has not been any dispute, he submitted, that these 34 applicants had their contracts unilaterally varied or that they are former employees of the first respondent. They cannot, therefore, be said not to have sufficient interest in the matter.

The applicants want the opportunity to respond to the first respondent's appeal in which it is appealing against the striking off of their appeal in the Labour Court.

In the applicants' view, the first respondent has adopted the wrong procedure by appealing against the striking off of their appeal by the Labour Court.

It was also his further submission, that, the applicants want to be substituted because they were already part of the proceedings but they now want to extricate themselves from the one who was representing them.

The substitution, he submitted, is in terms of the common law, and, section 85 of the High Court Rules, referred to by the respondent, does not and cannot apply. He cited Zimbank Ltd & Anor v Consolidated Piping & Fitting 2000 (1) ZLR 672…, as the guideline in the determination of this application.

RESPONDENT'S SUBMISSIONS

In response, counsel for the first respondent made submissions to the following effect:

From an examination of the draft order sought, it is clear, that, what is being sought is not substitution but joinder. The High Court Rules relating to substitution must therefore come into play as the Supreme Court Rules do not provide for such an application.

Rules 85 and 85A of the High Court Rules ought to apply to the instant application.

An examination of the stated Rules will show, that, the application is defective as the order sought does not provide for the removal of a party and the replacement thereof with another, but, instead, seeks joinder of the applicants to the parties already cited in SC570/14.

The application is vague and embarrassing and bad at law and ought to be dismissed. The case of Trop v SA Bank 1992 (3) SA 208…, was cited in support of the submission.

It was also submitted, that, in terms of sections 29 and 30 of the Labour Act, a trade union has the ability and capacity to represent its members in legal proceedings.

However, that must be distinguished from being a party to the proceedings. The sections do not provide that a trade union becomes party in proceedings in which they represent their members.

In addition, the parties who appeared before the Labour Officer for conciliation are the same parties cited in SC570/14 and the applicants were not cited as parties thereto.

It was also submitted, that, as the applicants were not parties in pertinent proceedings before the Labour Officer, the arbitrator, the Labour Court, and, finally, the Supreme Court where an appeal is pending, it does not make sense for them to now, at this stage, seek to be made parties to the litigation.

Counsel for the first respondent further highlighted, that, when the first respondent raised the issue of the second respondent's locus standi before the arbitrator no action was taken to have the applicants joined at that stage, yet, the applicants now want to be parties to an appeal whose origin was birthed in those proceedings.

Neither the arbitrator's award nor the Labour Court judgement cite or speak of the applicants.

He submitted, that, the law does not countenance this as this would be tantamount to allowing them to enter the proceedings through the back door.

Counsel for the first respondent quoted remarks, though obiter, made in TelOne (Pvt) Ltd Communications & Allied Services Workers Union 2006 (2) ZLR 136…, where CHIDYAUSIKU CJ stated:

“…,. Mr Hwacha's contention is that a party that was not privy to the original proceedings cannot apply for the review of such proceedings. I recognise the cogency of this submission. The proposition that only parties to the proceedings can challenge, on review or appeal, the outcome of such proceedings admits of little doubt.”

He submitted, that, applied in reverse, quoted remarks buttress his argument.

He described the applicants' quest as an “ambush” of the point of law that had been raised by the first respondent in the earlier proceedings. He prayed for the dismissal of the application.

WHAT IS THE NATURE OF THIS APPLICATION?

The applicants have labelled it an application for substitution. The respondents, on the other hand, argue, that, it is in effect an application for joinder.

The Concise Oxford English Dictionary of Current English 7ed, 1982 provides the following, amongst others, definition for the word 'substitute':

“(person or thing) acting in place of another; make (person or thing) fill a place or discharge a function for or for another; put in exchange (for).”

For 'joinder' it provides:

“joining, union.”

The import of paragraph 2 of the order sought is, that, while the second respondent remains, as is the case already, a respondent in SC570/14, the applicants are also made additional respondents.

The effect of the order, if granted, would be to alter the numbering order, with the previously lone respondent becoming the first respondent while the applicants become the second to the 35th respondents.

Thus, the applicants do not seek to substitute the second respondent. Rather, they wish to be added as co-respondents. There is no removal of one party and replacement with another, as should happen in a substitution.

On the face of it, this is a clear case in which joinder, and not substitution, is being sought.

On the other hand, counsel for the applicants repeated and categorical submission, in which he maintained that the relief sought by the applicants in not joinder but substitution, is contradictory of the terms of the order that is being sought before me.

For that reason, the applicants' papers do not seek to meet the requirements of an application for joinder and they do not do so. In the same breath, the effect of the terms of the order sought is in effect a joinder and not substitution.

In these circumstances, the aptness of counsel for the first respondent's citation of the case of Trope & Ors v The South African Reserve Bank 1992 (3) SA 208…, becomes self-evident. Importantly, the Appeal Court quoted with approval the lower court's statement that:

“And, if the pleadings lack sufficient clarity to enable the defendant to determine those facts and hence the case he has to meet, the pleadings are vague and embarrassing.”

Counsel for the first respondent's submission, that, at the arbitration proceedings, the first respondent raised the issue of the second respondent's locus standi but no action was taken then to have the applicants joined at that stage, was not disputed by counsel for the applicants.

Counsel for the applicants submission, in response, was merely, that, the applicants were only praying for an order to be granted in their favour only in relation to the appeal in SC540/14 and not to any other case.

This stance, in my view, tends to lend credence to counsel for the first respondent's argument, that, the applicants seem to want to want to circumvent a legal point earlier raised by seeking to now individually enter the fray at this stage.

This court, not being a court of first instance, is not the proper forum for such an application.

In any event, for reasons discussed above, the applicants seek to participate in the appeal in SC570/14 by way of an application that defies a specific description recognised at law.

The nature of the application before me is unascertainable by reason of the pleadings filed being vague and embarrassing.

THE LAW

The aptness of the case of Tel One (Pvt) Ltd v Communications & Allied Services Workers' Union 2006 (2) ZLR 136 (S)…, also cited by counsel for the first respondent, comes to the fore.

As a party who was not privy to the original proceedings cannot appeal against or challenge, on review, those earlier proceedings, it is only logical that a party who was not privy to the original proceedings cannot become a party to the appeal emanating from those proceedings in the manner sought by the applicants.

In casu, the second respondent substituted itself for the applicants and other employees entirely. It did not cite itself in a representative capacity. There was no reference at all to the applicants and the other employees. This is so despite the fact, that, the rights that may accrue when the fairness or otherwise of their dismissals is finally determined would affect them individually.

The effect of the non-citation or the lack of reference to the applicants is that the award by the arbitrator ordered that there be negotiations between the employer and the Trade Union in circumstances where the contracts to be entered into would be between the employer and the individual employees.

This is an untenable result. I daresay it is an incompetent order.

It is trite, that, for a party who has a real interest in the matter in dispute before a court to be bound by a judgement of the court, such party should be cited: see Indium Investments (Pvt) Ltd v Kingshaven (Pvt) Ltd & Ors SC40-15…,.

It is also trite, that, a judgment may not be made affecting a person or entity that was not a party to the proceedings: see Mashingaidze v Chipunza & Ors HH688-15; Women & Law in Southern Africa Research & Education Trust v Shongwe & Others HH202-03.

The application in casu is bad at law. It is vague and embarrassing.

In addition, on the facts of this matter, whether it be an application for substitution or for joinder, this court is not the proper forum before which to make it. It cannot therefore succeed.

It is accordingly ordered as follows:-

“The application is dismissed with costs.”

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....,.

Personal Liability of Second Appellant

The remaining seventh and eighth grounds of appeal impugn the judgment a quo for having mis-applied the doctrine of piercing the corporate veil, and, consequently, visiting personal liability on the second appellant to pay damages as an alternative to the order for specific performance.

Counsel for the appellants submits, in this regard, that questions of fraud or dishonesty are relevant to lifting the corporate veil.

The only basis for citing the second appellant was that he is the director of the first appellant and responsible for the administrative affairs of the company. There was no evidence, whatsoever, to justify the citation of the second appellant in his personal capacity or lifting the corporate veil to render him personally liable.

Counsel for the first respondent submits that the courts can pierce the corporate veil in the interests of justice.

The founding affidavit clearly lays out the basis for piercing the corporate veil in casu and there is no specific attempt to contradict this in the opposing affidavit. The second appellant was the administrator of the company who took all the monies paid by the first respondent's members. The failure to hold him accountable would result in manifest injustice.

In response, counsel for the appellants reiterates that there is no basis for imputing liability to a director as opposed to a shareholder. It is only if the company was run grossly negligently that a director can be held personally liable. In casu, the doctrine of piercing the corporate veil simply does not apply.

In its founding affidavit, the first respondent avers that the first appellant is a family business with the second appellant being the sole active director for all practical purposes. According to the history of directorship in the company, as per the records availed in the Company's Registry, it is no more than the second appellant's alter ego. It is a one-man company with all its equipment, assets, and income belonging to the second appellant. Accordingly, the court a quo was urged to pierce the corporate veil to ensure that justice is done. The second appellant must not be allowed to benefit from his improper conduct by hiding behind the first appellant's corporate personality.

In his opposing affidavit, the second appellant does not dispute that he has been a director of the first appellant since 1980 and that the other directors, at different times, were or are his personal relations.

However, he denies that these allegations constitute an acceptable basis for lifting the corporate veil and disregarding the separate personality of the company. He contends that the first respondent does not cite a single incident in which the distinction between himself and the company was diluted. Consequently, none of the legal requirements for piercing the corporate veil have been pleaded or established. The first respondent's averments in this regard are characterised by nothing more than surmise and conjecture.

In its answering affidavit, the first respondent restates the averment that the second appellant is the sole active director of the first appellant and is responsible for taking up its administrative affairs. This reveals the capacity in which he was cited.

In any case, his citation was to ensure compliance with any order that the court a quo might have granted.

In Mkombachoto v CBZ Ltd & Anor 2002 (1) ZLR 21 (H)…, it was observed that the courts may lift the corporate veil and disregard the separate legal personality of a company in limited circumstances, for instance, so as to avoid manifest injustice.

Again, in Cape Pacific Ltd v Lubner Controlling Investments (Pty) Ltd 1995 (4) SA 790 (A), at 802, it was held that a court would be justified, in certain circumstances, in disregarding a company's separate personality and lifting or piercing the corporate veil. The focus then shifts from the company to the natural person behind it or in control of its activities. Personal liability is then attributed to someone who misuses or abuses the principle of corporate personality. Each case involves a process of enquiring into the facts which may be of decisive importance.

However, at 803-804, it was cautioned that the courts should not lightly disregard a company's separate personality but should strive to give effect to and uphold it. But, where fraud, dishonesty, or other improper conduct is found to be present, the need to preserve the separate corporate identity would, in such circumstances, have to be balanced against policy considerations which arise in favour of piercing the corporate veil. A court would then be entitled to look to substance rather than form in order to arrive at the true facts, and, if there has been a misuse of corporate personality, to disregard it and attribute liability where it should rightly lie.

The decision in Cape Pacific Ltd v Lubner Controlling Investments (Pty) Ltd 1995 (4) SA 790 (A) was followed in Deputy Sheriff Harare v Trinpac Investments (Pvt) Ltd & Anor HH121-11, and, more recently, by this Court in Chris Stylianou & Ors v Moses Mubita & Ors SC07-17.

In the latter case…, it was noted that no allegation of fraud, dishonesty, or other improper conduct was levelled against the first appellant which might have justified the lifting of the corporate veil of the other two appellants.

Indeed, no good explanation was given to justify the citation of the first appellant save to state that he was the owner of the two appellant companies.

In the instant case, the court a quo found that the second appellant had been properly cited in his personal capacity because he was solely responsible for the first appellant's administrative affairs.

On this basis, the court proceeded to hold the former jointly liable with the latter to fully service the residential areas in question, and, alternatively, to pay damages in the sum of US$192,901,995 within 30 days, failing which the appellants' property was to be attached and sold in execution in satisfaction of the damages.

In principle, the fact that the second appellant is the sole active director in charge of the first appellant's administrative affairs does not, per se, constitute an adequate basis for lifting the corporate veil.

There is no clear evidence on record to indicate that the second appellant was involved in any fraudulent or dishonest activity or other improper conduct. In the absence of such evidence, this Court should not lightly disregard the first appellant's separate corporate personality.

In this regard, I am mindful of the salutary caveat expressed in Cape Pacific Ltd v Lubner Controlling Investments (Pty) Ltd 1995 (4) SA 790 (A)…, that, to do so “would negate or undermine the policy and principles that underpin the concept of separate legal personality and the legal consequences that attach to it.”

However, the enquiry does not necessarily end there, as “each case involves a process of inquiring into the facts which, once determined, may be of decisive importance: and, in determining whether or not it is legally appropriate, in given circumstances, to disregard corporate personality, one must bear in mind 'the fundamental doctrine that the law regards the substance rather than the form of things'…,.”– ibid, at 802.

In casu, given the history of the first appellant's corporate directorship from 1980 to the present, it is relatively clear that the second respondent is its sole active director. He is quite evidently its alter ego and its paterfamilias, so to speak.

He was and continues to be the principal protagonist in the administrative and contractual arrangements underlying the development of Knowe Suburb.

In these circumstances, it becomes difficult to sustain the juridical dichotomy between the two appellants and to uphold the façade of their separate legal personality.

I am persuaded to agree with the first respondent's submission, that, citing the second appellant in the proceedings a quo was the only way of ensuring compliance with any order that might have been granted against the first appellant. Any such order would otherwise have constituted nothing more than a brutum fulmen.

Moreover, in the exceptional circumstances of this case, it would be manifestly unjust if the members of the first respondent, having timeously fulfilled their contractual obligations, by paying the full purchase price, were to be deprived of the ability to secure the effective enforcement of any judgment granted in their favour.

In the event, I am satisfied that the court a quo, in the exceptional situation before it, quite correctly pierced the corporate veil of the first appellant so as to attribute its liability jointly to the second appellant, not only for the performance of its contractual obligations but also in respect of any damages payable in the alternative.

It follows that the seventh and eighth grounds of appeal cannot be upheld. They are accordingly dismissed.

View Appeal
HH220-11 : THE GOSPEL OF GOD CHURCH INTERNATIONAL 1932 vs SIMBA MUKAMBIRWA and OTHERS
Ruled By: MAVANGIRA J

These two matters were heard at the same time for the purposes of convenience.

In the first matter, HC5403/09, the applicant seeks rescission of an order issued by this court on 28 October 2009 in HC4101/09.

In the second matter, HC976/10, the applicants seek an order be found to be in contempt of court and for their committal to prison for such contempt.

The first application, being HC5403/09, will be dealt with first.

The parties are the same as in HC4010/09. In HC4010/09 the applicant, the Gospel of God Church International 1932 sought an order in the following terms:

“It is hereby ordered:

1. That the respondent and its followers are interdicted from using the name THE GOSPEL OF GOD CHURCH INTERNATIONAL in any manner and form. (sic)

2. That the respondent and his followers are interdicted from entering Gandanzara Shrine, Rusape in the Manicaland Province.

3. That the respondent and its followers should vacate immediately and forthwith from Number 140 St. Patrick's Road, Hatfield, Harare failure which the Deputy Sheriff is authorized to evict them. (sic)

4. That the operation of this order shall not be suspended from the noting of an appeal by the respondent. (sic)

5. That the respondent pays costs on an attorney and client scale.”

The first respondent therein, Simba Mukambirwa, deposed to an opposing affidavit in which immediately after para 43 thereof, he prays for the dismissal of the application with costs.

Immediately after this prayer, the following heading appears:

“Counter-Application for Peace Order and Interdict”

Paragraph 44 then follows in which the deponent states that he wishes to make a counter application for a peace order and an interdict.

After paragraph 53 appears his prayer for dismissal of the applicant's application and for an order in terms of the draft. The order that he seeks is in the following terms:

“IT IS ORDERED THAT:

1. Respondents be and are hereby declared to have a right to peacefully visit and worship at the shrine.

2. Sister Dazi Dhliwayo be and is hereby declared the lawful President.

3. All church members who recognize Era Tapera as the President, including Zeburon Pedzisai Nengomasha, be and are hereby ordered not to unlawfully prohibit the respondents and other church members from visiting at the shrine.

4. All the applicant's purported office bearers listed in the application be and are hereby ordered to maintain peace towards the respondents.

5. Each party to meet its own costs.”

The respondents thereafter proceeded to cause the counter application to be set down on the unopposed roll on the basis that the applicant had not filed any opposing papers to the counter-application and was therefore barred.

The matter was set down for 28 October 2009, and, on that date, an order was issued by this court as prayed for in the counter application in the terms already quoted immediately above.

It is this order whose rescission the applicant now seeks.

The main contention, on the part of the applicant, is that the default judgment in favour of the respondents was granted in error as the purported counter-application was fatally defective and that this is therefore a proper matter for the court to rescind its order in terms of Rule 449.

It is permissible for a respondent to a court application to file a counter application. This is so because Rule 229(a) provides:

“(1) Where a respondent fills a notice of opposition and opposing affidavit, he may file, together with those documents, a counter-application against the applicant in the form, mutatis mutandis, of a court application or a chamber application, whichever is appropriate.”…,.

Sub rule (2) of the same Rule, further provides:

“(2) This order shall apply, mutatis mutandis, to a counter application under sub rule (1) as though it were a court or a chamber application, as the case may be, and, subject to sub rule (3) and (4), it shall be dealt with at the same time as the principal application unless the court or a judge orders otherwise.”…,.

In terms of sub-rule (1), as quoted above, the counter-application ought to have been made in the form of a court application.

Rule 230 requires a court application to be in Form No.29 which shall be supported by one or more affidavits setting out the facts upon which the applicant relies.

The purported counter application did not meet or satisfy the requirements stipulated by the Rules.

There was no compliance with the Rules.

There was thus no valid counter-application before the court and the order sought in the purported counter application ought not to have been granted.

Had the purported counter application been dealt with at the same time as the principal application, as stipulated in sub-rule (2), this non-compliance with the Rules would, in all probability, have been exposed or bought to the court's attention by the applicant's legal practitioner.

But, as it turned out, the applicants were unaware of the date set for the hearing of the purported counter-application.

For the above reasons, the application for rescission of the order granted on 28 October 2009, in HC4101/09, must succeed.

It is now intended to deal with the application in HC976/10 by the respondents for contempt of court alleged to have arisen from alleged non-compliance with the order of 28 October 2009 in HC4101/09 by the parties cited therein.

In HC4101/09, the main application, the Gospel of God Church International 1932 was the only applicant. It must therefore also follow that it was the only respondent in the purported counter application.

Thus, the parties cited as respondents in HC976/10 were not parties to the proceedings in HC4101/09. As they were not parties to the matter in HC4101/09 there would be no justification for them being cited as respondents in the application for contempt of court.

If there is any justification for so citing them it would still be necessary for them to each be personally served with the order and the application.

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

The plaintiff (Meikles) issued summons against the two defendants, Zimbabwe Stock Exchange (ZSE) and Alban Chirume (Chirume) claiming a declaratur and damages in the sum of $50,000,000.

The background to the matter is that on 16 February 2013, the defendants suspended the trading of Meikles shares on the Zimbabwe Stock Exchange.

The suspension was done without affording Meikles an opportunity to make representations before such a serious adverse action was taken.

On 26 February, the defendants placed an advert in the Herald Newspaper cautioning the public to “exercise caution in dealing with the plaintiff's shares.”

The suspension was eventually lifted.

The defendants entered appearance to defend and filed an exception on behalf of both defendants and a special plea in bar in respect of Alban Chirume.

I must, at the onset, deal with the nature of pleadings before me.

The plaintiff's summons and declarations is ten pages and to it is attached two letters as annexures. The defendants' exception is three pages and the second defendant's plea in bar is one page.

Order 3 Rule 11 of the High Court Rules 1971 on this issue provides:

“Before issue, every summons shall contain -

(a)…,.

(b)…,.

(c) A true and concise statement of the nature, extent, and grounds of the cause of action and the relief or remedies sought in the action.”

The author, ISAACS. in Beck's Theory and Principles of Pleading in Civil Actions, 5ed…, had this to say:

“17. Before the court is asked to decide any question which is in controversy between litigants it is in all cases necessary (except as hereinafter indicated) that the matter to be submitted to it for decision shall be clearly ascertained.

The plaintiff shall state, in concise terms, what facts he intends to rely on and to prove and the defendant shall do the same so that on the day of trial neither party shall be taken by surprise and that it may not be necessary to have the case adjourned, thereby causing wasted expense both litigants from which the State and the lawyers alone derive profit.

It has therefore often been stated by our courts, and it cannot be too often stated, that, the object of requiring the parties to file pleadings is to enable each side to come to trial prepared to meet the case of the other.”

The authors HERBASTEIN and Van WINSEN in The Civil Practice of the High Courts of South Africa, 5th ed…, stated the following about pleadings:

“The requisites of good pleading are said to be that it should contain a statement of -

(1) Fact, not law;

(2) Material facts only;

(3) Facts not evidence; and

(4) Facts stated in a summary form and that 'material facts' are all facts which must be proved in order to establish the ground of claim or defence.”

MATHONSI J, in Fungai Nhau v Memory Kipe and Anor HH73-15, confronted with what he terms long winding special plea in bar/abatement, had this to say:

“By definition, pleadings must be concise and to the point.

They must identify the branch of the law under which the claim or defence to it is made and should not contain evidence.

Pleadings which are long-winding and argumentative should not find their way to these courts. It is a serious dereliction of duty for legal practitioners to continue, presenting such offensive pleadings when they have the aid of literature guiding the drafting of pleadings. I associate myself fully with the sentiments of MAKARAU JP (as she then was) in Chifamba v Mutasa & Ors HH16-08 (unreported) that:-

'Legal practitioners are urged to read on the law before putting pen to paper to draft pleadings in any matter is that what they plead is what the law requires their clients to prove to sustain the remedy they seek…,.. Litigation in the High Court is serious business and the standard of pleadings in the court must reflect such.'”

I associate myself fully with the above remarks.

Maybe if the legal practitioners in this matter had taken heed of the advice, the present application might not have been made....,.

The Special Plea in Bar

Alban Chirume avers the claim against him, in his personal capacity, is bad in law and ought not to have been instituted. This is based on the fact that it is common cause that Alban Chirume is employed by the Zimbabwe Stock Exchange (ZSE) as its Chief Executive officer (CEO).

At all times relevant to the plaintiff's claim, he acted as an official on behalf of his employer, the Zimbabwe Stock Exchange (ZSE).

In response, the plaintiff contends that Alban Chirume does not object to misjoinder in his official capacity. In his personal capacity, he acted ridiculously in breach of the plaintiff's right.

After the consent to the upliftment of the suspension, he went on to place an advert cautioning the public regarding trading in Meikles' shares.

The Law

The authors, HERBSTEIN and Van WINSEN, in The Civil Practice of the High Court of South Africa 5th ed…, stated that a special plea is one that does not raise a defence on the merits of the case, but, as its name implies, sets up some special defence which has, as its object, either to delay the proceedings (a dilatory plea) or to object to the jurisdiction of the court (a declaratory plea) or to quash the action altogether (a peremptory plea).

The defendants, in casu, are raising a peremptory plea.

The question is whether the issues, or defences, that they have raised can quash the action in respect of the second defendant altogether.

Counsel for the plaintiff made a correct observation that Alban Chirume is not taking issue with the joinder of the second defendant in his official capacity. A reading of the special plea will confirm that position. He is only taking issue with the claim against him in his personal capacity.

In paragraph 22 of the declaration, Meikles sets out the basis ofAlban Chirume's liability.

In summary, Meikles's complaint is that it was suspended in breach of their common law right to be dealt with in accordance with the rules of natural justice. In so doing, the defendants were negligent. The defendants breached a duty of care arising from both statute and administrative law that they discharge.

There is no allegation that Alban Chirume acted wilfully, maliciously, and deliberately ignored the law which he must uphold. There are no facts pleaded that suggest that he went beyond the scope of his calling of the CEO of the Zimbabwe Stock Exchange (ZSE). He is therefore entitled to protection in his personal capacity.

In the result, the special plea, in as far as it relates to Alban Chirume, in his personal capacity, is upheld....,.

(1)...,.

(2) The special plea in bar is upheld in respect of the second defendant in his personal capacity.

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

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

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

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

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

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

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

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

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

(h) Costs of suit.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Counsel for the defendants opposed this application, and counter-claimed that the second and third defendants had been erroneously joined to the proceedings.

I will deal with the second issue for trial first, because, in my view, it can be disposed of more easily than the first issue for trial, that of the exception.

In considering whether or not the second and third defendants have been erroneously joined to these proceedings, the court had regard to the reason for their citation in the declaration to the summons first.

On p3 of the declaration, the plaintiffs state that:

“1st defendant is A. Adam & Company, a corporate body established in terms of the laws of the republic…,. 2nd and 3rd defendants are…, adult Zimbabweans who control the activities of the 1st defendant and through whose agency it acts.”

Order 13 Rule 87 sub-rule (2) of the High Court Rules 1971 provides as follows:

“87. Misjoinder or nonjoinder of parties

(1)…,.

(2) At any stage of the proceedings, in any cause or matter, the court may, on such terms as it thinks just, and either of its own motion or on application —

(a) Order any person who has been improperly or unnecessarily made a party or who has for any reason ceased to be a proper or necessary party, to cease to be a party;

(b)…,.

(3)…,.”

It was submitted, on behalf of the plaintiffs, that it is trite law, that “…, a court will not pierce the corporate veil of a company because, as a registered company, it is a legal persona in its own right and endowed with its own legal persona, which is distinct from its shareholders.”

See Salomon v Salomon & Co Ltd [1897] AC (HL); Dadoo Ltd & Ors v Krugersdorp Municipal Council 1920 AD 530…,.

The plaintiffs submitted, however, that there are exceptions to this principle, which are based and grounded in policy considerations; that, when the notion of a legal entity is used to defeat public convenience, justify wrong, protect fraud, or defend crime, the law will regard the corporation as an association: see US v Milwaukee Refridgerator Transit Co 42 Fed 247 (1905)…,.

It was submitted, further, that, when the corporation is the mere alter ego or business conduit of a person, it may be disregarded, and that where fraud, dishonesty, or other improper conduct is found, the need to preserve the separate corporate identity would have to be balanced against policy considerations which arise in favour of piercing the corporate veil.

The plaintiffs relied on the case of Deputy Sheriff v Trinpac Investments (Private) Limited & Anor 2011 (1) ZLR 548…, as authority for this proposition.

It is my considered view, that, whilst counsel for the plaintiffs correctly cited this case as authority for the proposition that, in proper cases, depending on the merits of each case, the corporate veil can be pierced, mero motu by the court, this case does not advance the plaintiffs case any further.

It is of persuasive import, being a judgment of my brother judge.

However, the case, in my view, turned on its peculiar facts, and, it cannot be said that the corporate veil should be pierced willy-nilly at the court's instance in every case.

The question for determination is whether the second and third defendants were properly joined to the proceedings.

The court must consider the question of joinder or mis-joinder, not, in my view, that of the piercing of the corporate veil which is being raised for the first time and was not pleaded....,.

In Deputy Sheriff v Trinpac Investments (Private) Limited & Anor 2011 (1) ZLR 548, the court found that the control exercised by the holding company over its subsidiaries justified the treatment of the Group as a single economic entity. In deciding whether it was necessary to apply for upliftment of the corporate veil, the court found, that, in the circumstances of the case before it, such application was not necessary as the conclusion would be the same.

That is not so in this case before me.

Each case depends on its merits and on the facts.

There is no evidence that the second and third defendants exercised the same level of control over the first defendant. There is no evidence that out of all the officers of the first defendant, the second and third defendants caused the eviction of the first plaintiff.

I accept the submission made by counsel for the defendants, that, in order for the corporate veil to be uplifted, in the circumstances of this case, an application for piercing the veil ought to be made and considered.

It was not up to the plaintiffs to merely include the second and third defendants as parties to the proceedings in the absence of sufficient legal basis to do so. This imputes personal liability to them for the first defendant's actions. No justification for imputing personal liability was proffered in the summons or in the declaration.

Accordingly, in terms of Order 13 Rule 87(2)(a), I order, that, the second and third defendants cease to be parties to these proceedings. Costs shall remain in the cause. The plaintiffs may have recourse against those defendants in terms of section 318 of the Companies Act [Chapter 24:03], or may make a proper application for piercing of the corporate veil.

The summons shall be amended accordingly, as provided by Order 13 Rule 88....,.

It is ordered, that, the first and second defendants be removed as parties to these proceedings...,.

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

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

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

“TERMS OF FINAL ORDER SOUGHT

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

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

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

INTERIM RELIEF

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

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

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

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

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

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

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

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

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

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

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

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

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

I will deal with the position of the fourth respondent first.

The fourth respondent contended that it does not have any interest in this matter and had been wrongly joined as a party. No relief is being claimed against it. It had been unnecessarily dragged to defend this matter in which it had no real interest. It prayed for costs on a higher scale.

The applicants contend that it was made clear in the applicants' papers that no order was being sought against the fourth respondent. It had been cited as an interested party. The fourth respondent had, in the past, demanded that it be made part of the 2015 wage negotiation process. It had been cited out of an abundance of caution.

It is trite that a party who has a direct or substantial interest in the result of any litigation and whose interest might be prejudicially affected thereby must be afforded the opportunity to be joined as a party: see Capital Alliance (Pvt) Ltd v Renaissance Merchant Bank Ltd and Others HH108-06; see also Burdock Investments (Pvt) Ltd v Time Bank of Zimbabwe Ltd & Ors 2003 (2) ZLR 437 (H)…,.

In casu, the issue is whether or not the fourth respondent had a direct and substantial interest in the subject matter of the action, i.e. legal interest in the subject matter of the litigation which might be affected prejudicially by the judgment of the court.

The only reference to the fourth respondent in the applicants founding papers is in paragraphs 10, 18 and 19.

In paragraph 10, the fourth respondent is identified. In paragraphs 18 and 19, the fourth respondent is mentioned, in passing, as a rival union to the first respondent and that the unions have clashed over the membership of the applicants' employees.

A perusal of the Provisional Order will reflect that no relief is being sought by the respondent.

There is no averment in the applicants, as submitted, papers, that no order is being sought against the fourth respondent and that it had been cited as an interested party.

It is clear from the above that the fourth respondent has no direct and substantial legal interest in the subject matter of the judgement that this court might make. The applicants can carry into effect the judgment without adversely affecting the position of the fourth respondent.

This is a typical case of misjoinder where a party who is not necessary is joined to proceedings.

The applicants cannot escape an order to indemnify the fourth respondent for the expenses to which he has been put through having to defend this application. This could have been avoided by averring in the founding papers that no relief was being sought against the fourth respondent and has been cited as an interested party. The fourth respondent would not have filed papers in opposition.

The point in limine is upheld and the applicants are to pay the fourth respondent's costs.

Appealed
SC14-21 : MAXWELL SIBANDA vs ZAMBE NYIKA GWASIRA and NZ INDUSTRIAL and MINING SUPPLIES and REGISTRAR OF DEEDS and SHERIFF OF ZIMBABWE
Ruled By: GOWORA JA, GUVAVA JA and BHUNU JA

THE FACTSOn 13 July 2011, under Case No HC6750/11, the appellant caused summons to be issued out of the High Court against NZ Industrial and Mining Supplies as defendant to the suit. In the summons he claimed the following relief:(a) A declaration that the parties did enter into a valid ...

THE FACTS

On 13 July 2011, under Case No HC6750/11, the appellant caused summons to be issued out of the High Court against NZ Industrial and Mining Supplies as defendant to the suit. In the summons he claimed the following relief:

(a) A declaration that the parties did enter into a valid agreement for the harvesting of timber in respect of a portion of an area known as Glen Forest, Gairezi, Nyanga.

(b) Delivery of 1,120m3 of sawn timber to the plaintiff.

(c) Alternatively, payment of USD$392,000 being the equivalent of 1,120m3 of timber at USD$350 per cubic metre.

(d) Payment of USD$4,000 being the balance payable in respect of the agreement.

(e) Interest on the above amounts at the prescribed rate of interest with effect from 1 May 2010 to the date of final payment.

(f) Costs of suit on the scale as between client and legal practitioner.

The second respondent duly entered appearance to defend the suit. It was not legally represented and the first respondent, who was its Managing Director, signed the papers indicating an intention to defend the action. He also filed a plea on the merits of the claim.

Thereafter, the parties were summoned to attend a pre-trial conference before a judge in chambers.

The first respondent was advised by the presiding judge that he could not represent the second respondent in the suit as he was not a registered legal practitioner. It was suggested that he should obtain the services of a legal practitioner to represent the company. He undertook to do so.

The pre-trial conference was postponed sine die.

The first respondent engaged one Kaseke to represent the second respondent in the suit.

Subsequent to this, on a date not stated in the papers, the first respondent's immovable property was attached in execution. An investigation revealed that the legal practitioner engaged to represent the second respondent had defaulted when summoned to appear at a resumed pretrial conference.

The appellant had, as a consequence, obtained a default judgment against the second respondent, and, somehow, the first respondent's name had been added as a defendant together with that of the second respondent.

It transpired that the appellant had filed an amended draft order which reflected the defendant to the suit as Zambe Nyika/Gwasira NZ Industrial & Mining Supplies. The record however shows that the declaration described the defendant, the second respondent herein, as a company duly registered as such in accordance with the laws of Zimbabwe.

The appellant was unable to execute against the writ of execution. He, therefore, filed an application under Case No. HC7244/14 in which he sought the following relief:

“IT IS ORDERED AS FOLLOWS:

1. That the application for a mandament restraining the first respondent from disposing of or otherwise alienating the immovable property be and is hereby granted.

2. That the immovable property known as Stand 13552 Salisbury Township of Salisbury Township lands held by the first respondent under Deed of Transfer Number 5750/94, dated 21 September 1994, be and is hereby declared especially executable.

3. That the first respondent shall pay costs of suit.”

The first respondent opposed the application.

In his opposing papers, he also sought, as a counter-application to the relief sought by the appellant, to have the default judgment rescinded.

The court was of the view that the counter application for rescission had not been brought in accordance with the rules of court.

The first respondent's wife also opposed the application.

She contended that she had a personal interest in the immovable property by virtue of her marriage to the first respondent.

The court a quo was disinclined to uphold the opposition, and, on 28 November 2014, it granted the order described above in favour of the appellant.

Consequent to the issuance of this order, on 27 January 2015, a writ of execution was issued in which the property described above was placed under attachment at the instance of the appellant. The record is silent as to the fate of the writ.

On 29 July 2015, Everjoy Meda, the estranged wife to the first respondent, filed an application with the Constitutional Court alleging a violation of her rights in the immovable property arising from the suit and the writ of attachment in execution.

The application was dismissed with costs on a higher scale.

The view of the court was that she should have appealed the judgment of the High Court instead of bringing a constitutional application when no constitutional issue fell for determination before the High Court and the Constitutional Court itself.

On 22 February 2016, under Case number HC1655/16, Everjoy Meda and her son filed an application for the rescission of the judgments granted under Case Numbers HC6750/11 and HC7244/12 respectively, on the grounds that they were issued in error.

They approached the court in terms of Rule 449 of the High Court Rules 1971.

On 2 November 2016, the High Court dismissed the application with an order of costs on the high scale. The court concluded, that, they had not shown that they had any legal interest in the validity of the judgments in question.

On 10 November 2016, the first respondent filed a chamber application in terms of Rule 449 for the rescission of the judgments granted under Case Numbers HC12599/11 and 7244/12 on the premise that they were judgments granted in error.

PROCEEDINGS BEFORE THE COURT A QUO

Before the court a quo, the first respondent contended, that, the appellant had erroneously added his name as a party to the suit when, in reality, he had not been cited when the summons was issued.

He argued, further, that, the court a quo, labouring under the mistaken apprehension that the first respondent was a party to the proceedings, had granted a default judgment whose enforcement was being implemented by the appellant.

He argued, that, the appellant had not proferred a meaningful explanation as to why he had joined the first respondent without due process.

He concluded, that, his joinder to the proceedings was in error, which error should be corrected by the rescission of the two judgments.

The thrust of the argument by the appellant, in opposing the relief sought in the court a quo, was that the first respondent had not been diligent in pursuit of his rights.

In making this argument, the appellant sought reliance on Grantully (Pvt) Ltd & Anor v UDC Ltd 2000 (1) ZLR 361 (S).

The argument made was that various applications had been brought to court by the first respondent and his wife and son. All these applications had been ill-conceived.

It was argued, that, in relation to the application in which the immovable property was declared especially executable, the first respondent was present during the proceedings and he could not, therefore, avail himself of relief under Rule 449.

It was further contended, that, the court had dismissed his bid for rescission and the judgment in question had not been appealed against.

Thus, it was contended, the matter was res iudicata and could not be re-opened through an application under Rule 449.

To that end, the judgment refusing leave for rescission was extant and he was disabled from relief under Rule 449.

On 26 July 2017, the High Court rendered its decision in the matter.

As regards the rescission of the judgment under Case Number HC6750/11, the default judgment, the court observed that:

“In casu, it is not disputed that when the default judgment was granted in HC12599/11 or HC6750/11 the second respondent was not in attendance. It had defaulted at the pre-trial conference.

Again, it is not disputed that when the summons was issued in the matter, the applicant was not a party to the proceedings.

From nowhere, his name was only included, for the first time, at replication stage in the replication by the first respondent who was the plaintiff in the matter.

At the pre-trial conference, when N.Z. Industrial and Mining Supplies did not attend, a court order with the applicant's names was obtained by the first respondent.

The first respondent failed to explain, in his opposing papers in the present matter, how the name of NZ Industrial and Mining Supplies metamorphosed to include the name of the applicant.

The applicant has therefore made a good case for this court to rescind the default judgment that was granted in HC6750/11 initially erroneously granted under case number HC12599/11 as it is clear that it was erroneously sought and granted in the absence of the applicant and it affects his rights and interests.”

The court a quo also adverted to the question of the delay in bringing the application under Rule 449.

The court considered, on the principle set out in Grantully (Pvt) Ltd & Anor v UDC Ltd 2000 (1) ZLR 361 (S) that the delay was inordinate but that, notwithstanding the delay, the circumstances were such that the first respondent had made out a good case for the grant of the relief he sought. The court said:

“It was only after 4 years 8 months of the default judgment having been granted that the applicant woke up from his slumber and brought this application. The delay is inordinate. However, in view of the nature of the error that prompted the making of the application, this is an exceptional case where I am inclined to grant the rescission despite the inordinate delay. The error goes to the root of the matter because judgment ended up being granted against a person who is different from the one who had been sued.

In the summons and declaration, the defendant was cited as N.Z. Industrial and Mining Supplies which is a company. At replication stage, the first respondent, who was the plaintiff, simply changed the name of the defendant to Zambe Nyika/ Gwasira N.Z Industrial & Mining Supplies.

The name of the defendant was now a combination of the applicant's name and his company's name.

I believe the first respondent was taking advantage of the fact that N Z Industrial and Mining Supplies was being represented by the applicant, who is a layperson, and not by a legal practitioner.

Upon N.Z. Industrial and Mining Supplies defaulting court, at pretrial conference, the first respondent prepared a draft order with the name of the defendant as Zambe Nyika/ Gwasira N.Z Industrial & Mining Supplies and obtained an order bearing these names.

Such a defendant, who is a combination of an individual and a company, is non-existent.

The judgment cannot, therefore, be allowed to stand. I will thus grant the application for rescission in HC6750/11.”

The court a quo was, however, disinclined to grant rescission in respect of the judgment granted in HC7244/12, which judgment declared the first respondent's immovable property to be especially executable.

The court a quo was of the view that the applicant had failed to satisfy the requirements provided for in Rule 449.

The court a quo found, that, the first respondent was present at the hearing and had filed papers in opposition to the application.

On that premise, the court a quo considered that the first respondent was disabled from arguing that it was a judgment granted in error in his absence. The court a quo found that the application fell foul of Rule 449.

I do not think, that, to that extent, the reasoning of the court a quo can be faulted.

ARGUMENTS ON APPEAL

The appellant appeared in person.

Prior to the matter being set down for hearing the appellant had the benefit of legal representation. Those representing him at the time had filed extensive heads of argument on his behalf.

He submitted that he would abide by these heads of argument.

He maintained, that, the court a quo should not have granted rescission due to the inordinate delay that preceded the filing of the application for rescission.

In the heads of argument, the contention made is that the first respondent had acquiesced to the default judgment in which the court dismissed the application brought by his wife and son under Rule 449.

It was contended, further, that, the court a quo should have upheld the defence of res iudicata raised by the appellant in that the dispute had been determined and the first respondent had participated fully.

Based on the agreement executed by the parties, it was contended, that, there was no error in the description of the defendant to the default judgment.

The appellant made reference to Tiriboyi v Jani & Anor 2004 (1) ZLR 470 (H).

Counsel for the first respondent argued as follows:

The default judgment was granted in error. The appellant's legal practitioners had themselves acknowledged this error in a letter addressed to the Registrar of the High Court. The letter had attached to it an amended draft order in which the defendant was a merger of the company and the first respondent as the defendant to the suit.

With regard to the immovable property, she contended that the appellant had fraudulently launched an application to have the property declared especially executable based on the erroneous order.

As it pertained to the application brought by the first respondent's wife and son, it was clear that the application was dismissed on the premise that the two did not have legal interest in the matter. It was not decided on the merits. As a consequence, the argument that the principle of res iudicata was applicable to the facts of this appeal was misplaced and should be discounted by the court.

As regards the judgment issued under Case Number HC7244/12, it was her further argument that the judgment was based on a nullity. The judgment granted in default was granted against a party that did not exist and a party who was not a litigant to the lis.

The setting aside of that judgment affected the status of the later judgment.

The latter had its genesis firmly on the first, and, once the earlier judgment was no more, there could be no life breathed into the second judgment.

She urged the court to exercise its review powers under the Supreme Court Act [Chapter 7:13] and set it aside as being irregular.

ISSUES FOR DETERMINATION

The disposition of this appeal hinges on the construction of Rule 449. The critical questions in that determination are the following:

(i) Whether indeed there was an error in the judgment; and

(ii) Secondly, what is the meaning to be ascribed to “absence” in the said Rule.

ANALYSIS OF THE FACTS

The appellant has never denied, that, when summons was issued, the first respondent was not cited as a party. He has also not denied, that, the first respondent's name was improperly added to the proceedings.

He cannot say how this happened.

The first respondent was not joined as a party. The appellant does not argue that the first respondent was not properly joined as a party.

HERBSTEIN & Van WINSEN…, 5ed, Civil Practice of the High Courts of South Africa, state:

“In an application for a default judgment, the impression was created that a division of ABSA Bank purported, in its own right, to have instituted various actions. The court was satisfied that the party which instituted the actions was ABSA Bank which had locus standi, but was wrongly described in the summons.

As there was no possibility of any prejudice to the defendants, the court granted the amendments applied for.

In another case in which there was an incorrect citation of parties, the court granted an amendment, as it did not involve the substitution of one legal entity for another, but merely corrected an incorrect description of the original plaintiff.

An amendment will not, however, be granted when a defendant's name has been omitted from the summons, or when a summons has been issued in the name of a plaintiff who was no longer alive at the time of issue.

Where the named plaintiff is not a legal persona, the summons is invalid.”

In this case, there was no joinder of the first respondent as a party to the proceedings nor was there even an application to amend the citation of the parties to the suit.

There was an addition of the name of the first respondent - which addition created a non-existent party.

In L & G Cantamessa v Reef Plumbers: L & G Cantamessa (Pty) Ltd v Reef Plumbers: 1935 TPD 56, the court had to consider whether or not a summons can be amended to include a defendant who was not cited in the original summons. At pp59-60, TINDALL J stated as follows:

“The magistrate, in his reasons, stated, that, he allowed the amendment to the summons under sec.105 of the Magistrates Court Act; that he regarded the name of the defendants in which they were sued, viz; L & G Cantamessa as a mere misnomer, and that the mistake was covered by sub-sec. 3 of sec 105 of the Magistrates Court Act.

In my opinion, it is quite plain, that, in taking that view, the magistrate erred.

This is not a case of a mere misnomer. The effect of the amendment was to introduce a new defendant into the case. The original defendant, L & G Cantamessa was either a partnership or two individuals. It would seem that it was intended to cite L & G Cantamessa as a partnership because the summons was served only on one of the parties under Order VI.

In any event, whether the summons was against a partnership or two individuals, it is clear that the limited company is an entirely different persona in law and that it was not merely a matter of a misnomer. A different persona was introduced into the proceedings, and, in my opinion, that was not permissible under sec.105.”

And later at pp60-61:

“…,. That being so, in my opinion, there was no satisfactory answer to the review that there was a gross irregularity that a defendant who had not been cited and was not before the court, had been introduced into the action as the defendant at the conclusion of the case.”

It seems to me, that, those remarks apply with equal force to the facts of the case in the appeal before the court.

The principle set out above was confirmed in the later case of Greef v Janet en'Ander 1986 (1) SA 647. The judgment is in Afrikaanse but the headnote reads:

“There would appear to be no authority for the proposition, that, a court, upon application by a plaintiff, can oblige a non-party to a dispute, without the latter's consent (and by way of an amendment of the summons), to replace the defendant. If the plaintiff suspects that he has sued the wrong party, he can either, in appropriate circumstances, attempt to have the right party joined, or issue summons anew against him.”

I respectfully associate myself with that statement.

The first respondent was never a party, was not joined, and should not have been added to the process in the manner done in this case.

If he had been joined, he would have been a separate party to the company.

What is clear is that the defendant appearing on the order granting default judgment does not exist. There is no such person.

This a clear irregularity as found by the court a quo.

Whether or not the first respondent participated in subsequent proceedings does not change the substance of the irregular order issued in default against him.

In Tiriboyi v Jani & Anor 2004 (1) ZLR 470 (H), MAKARAU J…, said:

“The purpose of Rule 449 appears to me to enable the court to revisit its orders and judgments to correct or set aside its orders and judgments given in error, and, where to allow such to stand, on the excuse that the court is functus officio, would result in an injustice and will destroy the very basis upon which the justice system rests. It is an exception to the general rule and must be resorted to only for the purposes of correcting an injustice that cannot be corrected in any other way.

The Rule goes beyond the ambit of mere formal, technical, and clerical errors and may include the substance of the order or judgment: see Grantully P/L 2000 (1) ZLR 361 (SC).

Rule 449 is a procedural step to correct an obviously wrong judgment or order.”

There can be no doubt, in this case, that, the first respondent's interests were affected by the judgment granted in default against him.

There is no doubt that he was not cited as a party to the suit, was not served with the summons, and, even when his name was added, he was not notified.

The judgment given fits all the requisites of a judgment granted in the absence of a party.

When considering whether or not the first respondent should succeed, the court a quo set out the requirements under Rule 449 as being:

“Rule 449(1)(a) reads as follows:

'449 Correction, variation, and rescission of judgments and orders

(1) The court or a judge may, in addition to any other power it or he may have, mero motu or upon the application of any party affected, correct, rescind, or vary any judgment or order —

(a) That was erroneously sought or erroneously granted in the absence of any party affected thereby.”

For relief under Rule 449(1)(a) to be granted, the following requirements have to be met:

(a) The judgment must have been erroneously sought or granted;

(b) The judgment must have been granted in the absence of the applicant; and

(c) The applicant's rights or interests must be affected by the judgment.'

See Mashingaidze v Chipunza & Others HH688-15.

It is therefore clear from these requirements that a party can only seek to rescind a judgment in terms of Rule 449(1)(a) if he was absent when the judgment he seeks to rescind was granted.

If the party was present, he cannot seek rescission.”

In casu, no attempt was made to bring the first respondent before the court. He was absent from the proceedings.

The contention made in the heads of argument, that, he had acquiesced to the judgment by participating in the processes launched by his wife and son cannot sway the court.

The initial proceedings were marred by serious irregularities in the manner in which the appellant sought to bring the first respondent before the court and the first respondent cannot be considered as having acquiesced to a process that amounts to an irregularity.

In the circumstances of this case, the appellant cannot be heard to argue that the court misdirected itself.

The first respondent was never heard. He was not present.

The default judgment was not only granted in error - it was also granted in his absence in every respect.

In my view, the appeal is devoid of merit and must be dismissed.

View Appeal
HH677-14 : MAXWELL SIBANDA vs ZAMBE NYIKA/GWASIRA and REGISTRAR OF DEEDS and EVERJOY MEDA
Ruled By: MATANDA-MOYO J

The applicant obtained default judgment against the first respondent in case No. HC12599/11 on 7 March 2012 in the sum of $4,000, delivery of 1,120m3 of sawn timber, or, alternatively, $392,000 together with interest at the prescribed rate plus costs of suit.The applicant has not executed on the judgment to ...

HH298-17 : ZAMBE NYIKA GWASIRA vs MAXWELL SIBANDA and N.Z. INDUSTRIAL & MINING SUPPLIES and REGISTRAR OF DEEDS and SHERIFF OF ZIMBABWE
Ruled By: MATANDA-MOYO J

This is a chamber application for dismissal of an application for stay of execution for want of prosecution in terms of section 236(3)(b) of the High Court Rules, 1971.

The first respondent filed an application for stay of execution pending the determination of an application for rescission on 18 November 2016 - case no. HC11759/16 refers. The applicant filed a notice of opposition on 1 December 2016: such notice of opposition was served upon the first respondent the same day.

On 25 January 2017 the applicant filed this application.

After receiving the application for dismissal, the first respondent immediately filed answering affidavits and heads of argument in case HC11759/16. That main matter was set down for hearing.

It was at such hearing that the court was advised of the existence of this present application.

The parties agreed that this current application be referred to me for determination before dealing with the application for stay of execution.

Rule 236(3) of the High Court Rules provides;

“Where the respondent has filed a notice of opposition and an opposing affidavit, and, within one month thereafter, the applicant has neither filed an answering affidavit nor set the matter down for hearing, the respondent, on notice to the applicant, may either -

(a) Set the matter down for hearing in terms of Rule 223; or

(b) Make a chamber application to dismiss the matter for want of prosecution, and the judge may order the matter to be dismissed with costs or make such other order on such terms as he thinks fit.

(c)…,.”

From a reading of the above it is clear that a judge has a wide discretion in a matter for want of prosecution in deciding whether to dismiss or not. The remedy is not available on asking.

Obviously, this Rule is designed to ensure that there is finality to litigation.

This Rule serves to ensure, that, once a litigant has instituted proceedings by way of application, matters are swiftly disposed. The Rule is meant to ensure that litigants are serious in the disposal of their application brought before the court. Matters must not be left stagnant before the court.

A respondent to the application has a choice to either set the matter down for hearing or to apply for its dismissal.

The respondent herein opted for dismissal.

As reiterated above, whether to grant the application or not is in the discretion of the court after scrutinising factors such as;

(i) The length of delay in fling an answering affidavit and setting the matter down;

(ii) The explanation thereof; and

(iii) Prospects of the respondent's success in the main matter.

It is common cause that the first respondent was served with the applicant's papers on 1 December 2016. In terms of Rule 236(3) of the High Court Rules, the first respondent was supposed to file his answering affidavit a month later, that is, by the third of January 2017. He did not.

This application was filed some three weeks after the deadline.

The first respondent's response to the application was that he had already filed his answering affidavit as well as heads of argument at the time of this application.

I have perused the file dealing with the application for stay of execution, HC11759/16, and found, that, the answering affidavit was filed on 31 January 2017 after the application for dismissal had been filed on 25 January 2017. According to the stamp on the application, the respondent's legal practitioners received same on 25 January 2017.

It is therefore not correct that the answering affidavits were filed before the respondents were aware of this present application.

However, once they received this application, the first respondent immediately filed his answering affidavit and heads of argument. Same matter had been set down for hearing before this application was set down.

In the main matter, the first respondent's complaint is that he was not a party to the proceedings which culminated in the attachment of his immovable property.

It is his submission that when the matter initially came before the court, in 2011, that is under HC case no. 6750/11, the parties before the court then were Maxwell Matsvimbo Sibanda and NZ Industrial and Mining Supplies. Under paragraph 2 of the declaration, the plaintiff therein wrote;

“2. The defendant is a company duly incorporated in terms of the laws of the Republic whose given address for service is at No.48 Dam Judson Road Milton Park, Belvedere, Harare.”

The default order, the first respondent claimed, suddenly introduced him as a defendant. He has challenged that order under Rule 449. He believes the court made an error by suddenly adding him as a defendant therein.

The applicant argued that there have been several applications wherein the first respondent was party to. He never raised the issues he is raising now. Instead, the first respondent even used his customary wife to try and stop the sale of the house. The matter went as far as the Constitutional Court, CCZ31/15 refers, wherein the Constitutional Court's view was that the property must be sold.

The applicant's view is that the first respondent is abusing the courts in a bid to save his property from execution.

It is the applicant's case, that, from the time he got judgment up till now, he is being forced to defend spurious litigation. To date, he has expended over $30,000 in legal fees. The property in question is likely to sell for $90,000 and most of the proceeds may be wasted on legal fees.

The applicant called upon this court to stop this abuse by granting this application and thus refusing to hear further applications from the first respondent.

Unfortunately, the court has, so far, not been able to locate the file culminating into the order by default.

The court has had sight of the summons which only bears the company name as the respondent. The court has also had sight of the default judgment where the first respondent was now a party to the matter.

The court could not ascertain how the first respondent's name came to appear on that order.

Whether there was an application for joinder or not, the court is only left to guess.

In view of the above matter, it may be an in justice for the court, at this stage, to refuse to hear the first respondent on the matter.

It is only for the above reason that the court reluctantly dismissed the application for dismissal for want of prosecution. It is in the interest of justice that the above issue be interrogated.

It is my view, though, that, that issue is capable of resolution by hearing the application in terms of Rule 449 of the High Court Rules.

I am aware of other applications pending before this court. Hearing those applications may only increase legal costs. Such increase in legal costs can benefit neither of the litigants, moreso the applicant who continues to suffer costs in defending these numerous litigations.

In the result, it is ordered as follows;

1. The application for dismissed of HC Case No.11759/16 for want of prosecution be and is hereby dismissed.

2. Costs to be in the cause.

SC16-22 : CHURCH OF GOD OF PROPHECY(INTERNATIONAL) vs CHURCH OF GOD PROPHECY AND OTHERS
Ruled By: BHUNU JA, MATHONSI JA and CHITAKUNYE JA

This is an appeal against the whole judgment of the High Court (the court a quo) sitting at Harare which dismissed the appellant's application for joinder as the fourteenth defendant on 16 January 2020 under case number HC3499/14 (the main case).

At the close of submissions by counsel we dismissed the appeal with costs and indicated that our reasons for judgment would be delivered in due course.

I now proffer the reasons for the court order delivered on 20 July 2021.

BRIEF SUMMARY OF THE CASE

The substantive dispute between the parties in the main case before the court a quo has to do with succession and ownership of church property between the local church based here in Zimbabwe and a sister church based in the United States of America: that is to say, the first respondent and the appellant respectively.

It is common cause that sometime in 1976 the late Bishop Kenneth Nyamhuka founded and incorporated the first respondent (the church) as a universitas with its own Constitution. The affairs of the church are regulated by the 1979 Constitution filed of record.

As fate would have it, Bishop Nyamhuka fell ill and succumbed to death on 4 April 2014. Following his death, a dispute arose relating to positions of leadership, possession, and ownership of church property amongst the local leadership of the church cited in the main case.

The appellant sought to intervene and be joined to the main case on the basis that the Church is an affiliate of the appellant church which is the mother body based in America.

In its founding affidavit, it claimed that it is responsible for the appointment of the church's leadership and financial support. For that reason, it claimed the right to appoint the church's leaders and to ownership of the disputed property.

On that score, it claimed that it had a direct and substantial interest to wade into the succession battles among the local membership of the church.

The appellant's assertions, to the effect that it is the mother body of the church responsible for the succession process and ownership of the church's property, was strenuously disputed by the respondents. They maintained that the church is independent of the appellant save that they share the same Christian doctrine. To that extent, they asserted that the church has the right to appoint its own leadership and has sole ownership of all its property.

THE LAW

The law on joinder of parties to judicial proceedings was eloquently articulated by MAKARAU J…, in Burdock Investments (Private) Limited v Time Bank Limited & Ors 2003 (2) ZLR 437…, where the learned judge had occasion to remark that:

“Before a party may be joined or may be allowed to intervene in proceedings before the court, he or she must establish a direct and substantial interest in the subject matter of the judgment. The interest must be such that the judgment cannot be carried into effect without adversely affecting the legal position of the party mis-joined and in circumstances where the defence of res judicata will not be raised against that party in future proceedings to protect that interest.”

THE ISSUE FOR DETERMINATION

The crisp issue for determination in this appeal is whether or not the appellant discharged the onus of proving that it has a direct and substantial interest in the subject matter for determination in the main matter.

APPLYING THE LAW TO THE FACTS

The respondents produced cogent empirical documentary evidence in the form of annexures C1 and C2. The evidence shows that the appellant has affiliates in 40 African countries under the administration of its General Presbyter, Masilela, but, Zimbabwe is not one of them.

The learned judge a quo's summation, which discredits the appellant's claim, cannot be faulted. It completely discredits the appellants' claim that the church is its affiliate. The learned Judge's sentiments…, bear repetition where he says:

“The Applicant (appellant) offered no explanation for the absence of Zimbabwe from the list of African countries which are, as it were, affiliated to the applicant. Counsel for it stammered at the question which related to Zimbabwe's absence from the list of countries which fall under its administration. He eventually honed (sic) (owned) up and stated that he did not know why Zimbabwe was not one of the countries which fall under the applicant's administration in Africa.”

The learned judge a quo found, that, the appellant lay dormant without asserting its purported rights for five (5) years from May 2014 to June 2019. It only belatedly filed its claim for joinder in aid of the ninth respondent after he filed his plea. The ninth respondent, Joshua Nyamhuka, is the late Bishop Kennedy Nyamhuka's son who was the appellant's acquaintance.

DISPOSAL

A perusal of the parties' respective pre-trial conference memoranda shows that this is a succession battle being fought amongst the local membership of the church. The appellant is a total stranger with no real and substantial interest in the dispute among Zimbabweans. It has merely sought to dishonestly intervene in the main case to prop up its acquaintance's son.

It is surprising that counsel for the appellant had the temerity to approach this Court, on appeal, in the face of such credible damning evidence against his client. Such “Dutch” courage can only amount to an abuse of court process.

Counsel for the appellant has now asked for the reasons for judgment to pave way for him to approach the Constitutional Court.

It is for the foregoing reasons that we dismissed the appeal with costs.

SC20-21 : TIMOTHY MUYAMBO vs HORTBAC PL t/a LITTLE FLOWER ENTERPRISES and JAMES CHIYANGWA and RONALD KITULI and TENDAI BONGA and MINISTER OF LANDS, AGRICULTURE AND RURAL RESETTLEMENT
Ruled By: CHITAKUNYE AJA

This is an application for joinder wherein the applicant seeks to be joined in two appeals pending before this Court, that is, SC304/20 and SC326/20.

The facts leading to this application may be summarised as follows:

The applicant was a holder of an offer letter in respect of Plot 4 of Glebe Farm, Goromonzi. The second, third, and fourth respondents were also holders of offer letters in respect of separate plots on the same farm. The fifth respondent is the authority which issued the offer letters to the applicant and the second, third, and fourth respondents.

The first respondent, on the other hand, claimed title to the farm in question.

Sometime in 2015, the first respondent approached the High Court at Harare in HC7006/15 seeking the setting aside of the applicant's offer letter and declaring such offer letter null and void. It also sought that the fifth respondent issue an offer letter in favour of the first respondent.

The applicant was cited, together with the fifth respondent, as respondents.

On 25 October 2016, the High Court granted an order setting aside and declaring null and void the offer letter issued to the applicant by the fifth respondent. The fifth respondent was ordered to issue an offer letter to the first respondent in respect of the said piece of land.

It is pertinent to note that whilst it was alleged that the order was granted in default of the fifth respondent, it was apparent that the applicant was represented by a legal practitioner in those proceedings.

After the issuance of the order on 25 October 2016, in the presence of the applicant's legal practitioner, no challenge was raised against that order till February 2018 when the fifth respondent belatedly applied for rescission of the default judgment granted against it.

Upon realising that it was out of time, the fifth respondent sought the court's indulgence through an application for condonation for late filing of an application for rescission which application was granted on 16 October 2019.

The fifth respondent's application for rescission was thereafter set down for 14 November 2019.

On that date, the matter was apparently postponed to 28 November 2019. On 28 November, the matter was removed from the roll.

The applicant alleged that the removal from the roll was to await the determination of a matter at Masvingo High Court, HC380/18, involving the first respondent, on the one hand, and the second, third, fourth, and fifth respondents on the other hand, which pertained to the second to fourth respondents' offer letters for Plots at Glebe Farm.

To buttress this point, the applicant tendered a Notice of Set Down for 14 November 2019 and a letter from the Registrar of the High Court.

The two documents did not, however, state the reason for the removal from the roll.

In fact, the Registrar's letter was simply a reminder to the Civil Division of the Attorney General's Office, as the fifth respondent's legal practitioners, that failure to set down the matter removed from the roll within three (3) months would lead to the matter being deemed abandoned in terms of paragraph 10 of Practice Direction 3/13.

As fate would have it, the application at Masvingo High Court did not go in the second to fifth respondents' favour.

The second to fourth respondents noted an appeal to this Court in SC304/20. The fifth respondent also noted an appeal in SC326/20.

The two appeals are in respect of the same judgment.

In September 2020, the Registrar wrote to the appellants inviting them to file their heads of arguments within 15 days.

It was only after the above invitation to the appellants to file their heads of arguments, that, on 25 September 2020, the applicant filed this application seeking to be joined in the two appeals as third respondent in SC304/20 and as fifth respondent in SC326/20 and that he be allowed to file his heads of arguments within 10 days of such order.

In this application, the applicant alleged that he has a direct and substantial interest in the matter as he is a holder of an offer letter for a plot at Glebe Farm. He averred that if he is not joined he may be prejudiced as he would not have been heard yet his rights and interest will be affected by the decision of this Court.

The first respondent opposed the application.

It contended that the application is improper as the applicant no longer has any such interests to protect. The decision in HC380/18 against which the second to fifth respondents have appealed does not relate to the subdivision or Plot that the applicant had been offered as that was determined on 25 October 2016 in HC7006/15 and the applicant has not challenged that determination to date.

The first respondent further contended, that, from the applicant's own averment he has always been aware about the Masvingo HC380/18 matter but had not sought to be joined in that matter only to seek such joinder at the appeal stage.

Counsel for second to fourth respondents indicated that they were willing to comply with any order granted by the court.

The fifth respondent, in its response, indicated that it had no objections to the joinder.

As the applicant had not indicated the Rule under which the application was being made; on the date of hearing, counsel for the applicant submitted that the application was in fact being brought in terms of Rule 54 of the Supreme Court Rules 2018.

He also argued that the application was also premised on the common law principle of natural justice.

In this regard, he argued, that, as the applicant will be affected by the determination of the appeals he ought to be heard. It was his contention that the applicant has an interest in the subject of the appeal.

Rule 54 of the Supreme Court Rules 2018 upon which counsel for the applicant said the application was premised states that:

“(1) If, prior to the hearing of an appeal, it appears to a judge, or at the hearing it appears to the court, that a person who is not a party to the appeal may be so affected by an order made in it that he or she must be heard, notice may be given to that person to enable him to apply to intervene in the appeal if he or she so wishes.

(2) If notice is given in terms of subrule (1) the person to whom notice is given may apply to the judge or to the court, as the case may be, for permission to enable him or her to intervene in the appeal.

(3) The judge or the court hearing an application in terms of subrule (2) may refuse the application or grant it upon such terms and conditions as may seem just.”…,.

It is apparent that the Rule provides for the intervention by a third party at the instance of a judge or court. It is that initiative that enables a third party to apply to a judge or to the court to intervene in order to protect his rights and interests that may be affected by the judgment to be rendered.

In casu, the application was not initiated by a notice given by a judge or court. It was at the applicant's own initiative to be joined as a party to the appeal.

Equally, the applicant is not seeking to merely intervene as a third party but to be joined as a party to the appeal proceedings.

It was upon counsel for the applicant's failure to address the requirements of Rule 54 of the Supreme Court Rules 2018 that he then resorted to the right to be heard principle arguing that the applicant has an interest that may be adversely affected by the determination of the appeal.

It is apposite to point out that the applicant, in his founding affidavit, did not refer to Rule 54 of the Supreme Court Rules 2018 or to any of its requirements.

It is trite that an application stands or falls on the averments made in the founding affidavit: see Austerlands P/L v Trade and Investment Bank & Others SC92-05 and Muchini v Adams & Others SC47-13.

The founding affidavit should have stated in terms of which Rule the applicant was approaching the court to be joined on appeal and made reference to the requirements of the procedure adopted.

It is clear that reference to Rule 54 of the Supreme Court Rules 2018 was an ill-informed afterthought, and, in any case, that Rule is inapplicable in the circumstances of this case.

The other argument by counsel for the applicant, premised on what he referred to as the common law principle of natural justice, was equally ill informed.

This argument was premised on paragraph 3.7 of the applicant's founding affidavit in which he stated:

“My interest in the matter is obvious. As exhibited by the offer letter which I have attached as annexure A, I have a real and substantial interest to the land, and any decision to be made affecting me adversely has to be made in compliance with the laws of natural justice, including the audi alteram partem rule. The order sought by the 1st respondent is one such example. Clearly, the interests of justice, fairness, and equity demand that I be given audience before a decision on the land is made, hence the need for my joinder as a party to the proceedings.”

In asserting the above, the applicant chose to ignore the High Court's extant order of 25 October 2016 which nullified the offer letter he is making reference to.

He also chose to ignore the fact that in HC7006/15 he was given audience, and, despite his participation, the court granted the order against him.

His greatest undoing in protecting what he deemed to be his rights and interests was in his failure to challenge the order in HC 7006/15.

Whilst it is true that a party with a direct and substantial interest may seek joinder in terms of appropriate Rules to court proceedings, such joinder should relate to rights and interests that are subsisting and are subject of the proceedings.

In Marais & Another v Pongola Sugar Milling Co. & Ors 1961 (2) SA 698 (N), a two tier approach was formulated in the determination of a joinder as follows:

“(1) That a party must have a direct and substantial interest in the issues raised in the proceedings before the court; and

(2) That his rights may be affected by the judgment of the court.”

In casu, the founding affidavit shows that the applicant premised his direct and substantial interest on the offer letter for Plot 4, Glebe Farm.

In that vanity, he seeks to ignore the extant order of 25 October 2016 which declared that offer letter null and void.

It is common cause, that, after that order was granted the applicant never challenged it up to this date - yet it is the order which affected his rights and interests.

This application, in my view, is a subtle plot to be heard by the Appeal Court in a matter the applicant never appealed against.

The applicant cannot certainly have interests in issues to do with the Plots of other offerees.

As the extant order of 25 October 2016 was given with his participation and presence, he cannot ignore its consequences which are that his rights and interests, deriving from his offer letter, were nullified.

It is erroneous to contend, that, if the appeals are heard without his participation he would have been denied the opportunity to be heard. Such opportunity was afforded him before the order against him was issued. After that order, he had the right to challenge that judgment but he chose not to.

He cannot seek to ride on his neighbours' appeal to pursue his own case.

In any event, no relief was granted against him in HC380/18. He therefore has no basis for attacking or challenging that judgment. His grievance should be with the order in HC7006/15 which nullified his offer letter.

Consequently, the applicant has lamentably failed to make a case for joinder.

The first respondent asked for costs. Upon considering the circumstances of the matter and the lack of merit in the applicant's case I find no reason why costs should not follow the cause.

Accordingly, it is ordered that:

1. The application be and is hereby dismissed with costs.

HB04-15 : BULAWAYO CITY COUNCIL vs TRISHUL PROPERTIES
Ruled By: TAKUVA J

This is an application for summary judgment in terms of Order 10 Rule 64 of the High Court Rules 1971.

The applicant, a local authority is obliged by the law to provide certain services to residents of the City of Bulawayo which services include the provision of road maintenance, refuse collection, and water and sewer services.

The respondent is a resident of the City of Bulawayo and is the registered owner of a certain immovable property otherwise known as Number 58A Robert Mugabe Way, Bulawayo.

In fulfillment of its legal obligations, the applicant provided the services stated above to the respondent and raised service charges amounting to US$20,126=40.

The respondent failed and/or refused to pay the above mentioned service charges and the applicant issued a summons on 10 December 2013 claiming:

(a) Payment of $20,126=40 being the total service charge due and payable;

(b) Interest a tempore morae, at the prescribed rate, from the 30th day of January 2011 to the date of payment;

(c) Costs of suit.

The summons was served on the respondent on 13 December 2013 and it entered appearance to defend on 17 December 2013. On 10 January 2014, the respondent's legal practitioners requested for further particulars as follows:

“To enable the defendant to plead, plaintiff should supply the following particulars;

1. It is alleged in para 3 of plaintiff's declaration that it provided services to defendant, and, as such, is entitled to levy; rates; road levy; water, and other services; of the $20,126=40, how much is for:

(i) Rates;

(ii) Road levy;

(iii) Water; and

(iv) Other services.

2. The said sum is $20,126=40 is for which period (sic), a full itemized breakdown is requested.

3. The claimed sum is said to have a component of rates:

(a) How much is the monthly rates in respective of the property;

(b) Since the rates are a percentage of the value of the property, how much is the property valued at.”

The applicant supplied its further particulars on 18 March 2014 as follows:

“Plaintiff replies to defendant's request for further particulars as follows:

1. Ad paragraph 1 thereof

(i) The charges vary from month to month but charges are calculated as shown from Annexure “A” hereto which represent the charges for 30th November 2013 totalling $770=36 and for 31st December 2013 in the sum of $699=27.

(ii) For the period 30th January 2011 to the 30th November 2013 amounting to $20 215=50. See Annexure “B” hereto”.

2. Ad paragraph 2 thereof

See Annexure “B” hereto.

3. Ad paragraph 3 thereof

(a) $500 see Annexure “A” hereto.

(b) Land valued at $393,500 and improvements valued at $65,000. See Annexure 'A' hereto.”

The respondent, who was supposed to have filed his plea on or before 3 April 2014 in terms of the Rules of this Court, failed to do so.

The applicant applied for summary judgement on 17 April 2014 on the ground that the respondent has no bona fide defence and that the appearance to defend, and the request for further particulars, were nothing more than ways of buying time.

The application was vigorously opposed on the following grounds:

1....,.

2....,.

3. Fatal Non-Joinder

The respondent argued, that, a proper interpretation of sections 279 and 281 of the Urban Councils Act is that it is obligatory on the part of the applicant to sue any occupiers and agents, if any, together with the owner of the premises.

In casu, it was submitted, that, the applicant ought therefore to have joined Dawn Properties, the respondent's property managers or agents, as second respondent in this suit....,.

Section 279 and 281 of the Urban Councils Act read:

“281 Legal proceedings for recovery of rates

No legal proceedings for the recovery of rates shall be instituted against any person referred to –

(a) In subsection 2 of section two hundred and seventy-nine unless the council has complied with that subsection and the owner has failed, within fourteen days, to comply with the demand served on him in terms of that subsection requiring him to pay the amount stated therein; or

(b) In subsection (3) of section two hundred and seventy nine unless he has failed, within thirty days, to comply with the demand served on him in terms of that subsection requiring him to pay the amount stated therein, subject to the maximum amount provided for in that subsection.

279 Liability to pay rates

1. The person who is the owner of any property on the date on which any rate fixed and levied by the council becomes due and payable shall be primarily liable for that rate.

2. If, on the date on which a rate becomes due and payable, the owner primarily liable has failed to pay that rate, a demand in writing may be served on him requiring him to pay the amount stated therein within fourteen days of the service of the demand.

3. If the owner primarily liable for a rate fails to comply with the demand referred to in subsection (2) then any person who, at any time during the period in respect of which such rate was fixed and levied –

(a) Is the occupier of the property concerned, shall, if a demand in writing is served on him by the council, be liable for such rate together with any other unpaid rates in respect of such property, not exceeding the amount of any rent in respect of such property due by him but not yet paid at the time of the demand and shall thereafter continue to pay such rents to the council until the amount of the unpaid rates has been paid off;

(b) As agent or otherwise, receives any rent in respect of such property, shall, if a demand in writing is served on him by the council, be liable for such rate, together with any other unpaid rates in respect of that property, not exceeding the amount of any such rent paid to him subsequent to that demand, subject to the deduction by the agent of commission due to him for the collection of that rent.

(c) The persons referred to in paragraphs (a) and (b) of subsection (3) shall be liable for the rates to the amount specified therein jointly and severally with each and with the owner primarily liable.

4….,.”...,.

The fourth and last line of defence relates to the alleged fatal non-joinder. Once more, I find the respondent's argument difficult to follow.

Section 279(1) of the Urban Councils Act is very clear in that it states that the person who is the owner “shall be primarily liable for that rate.”

In terms of subsection (2) of section 279 of the Urban Councils Act, the applicant is allowed to institute legal proceedings against the landlord after 14 days notice to pay while in respect of tenants and agents a notice of 30 days has to be given.

Quite clearly, if it was intended that they be sued jointly, there would have been no need for the difference in the notice period.

In any case, subsection (3) of section 279 of the Urban Councils Act makes it clear that occupiers and agents only become liable “if the owner primarily liable for a rate fails to comply with the demand referred to in subsection (2).”

These provisions, if considered contextually do not mean that failure to sue the owner jointly with occupiers and/or agents is fatal to the proceedings.

In any event, it would be unreasonable to expect the applicant to know that there were tenants occupying the building without being notified by the respondent of the presence of such tenants and what their particulars were. Equally so, how would the applicant be expected to know that there was an agent who was receiving any rent in respect of the property, if the respondent had not informed the applicant of that fact?

I find, for these reasons, that there was no mis-joinder in this case.

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

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

Appealed
HH405-20 : ROBIN VELA vs AUDITOR GENERAL OF ZIMBABWE N.O. and BDO ZIMBABWE CHARTERED ACCOUNTANTS (whose partners are Ngoni Kudenga, Gladman Sabarauta, Martin Makaya, Gilbert Gwatiringa and Jonas Jonga)
Ruled By: CHINAMORA J

Introduction: This is an application brought in terms of section 3(1)(a) as read with section 4 of the Administrative Justice Act [Chapter 10:28] (“the AJA”); as read with sections 26 and 27 of the High Court Act [Chapter 7:06], together with the common law.The applicant alleges infringement of his fundamental ...

Introduction: This is an application brought in terms of section 3(1)(a) as read with section 4 of the Administrative Justice Act [Chapter 10:28] (“the AJA”); as read with sections 26 and 27 of the High Court Act [Chapter 7:06], together with the common law.

The applicant alleges infringement of his fundamental right to administrative conduct that is lawful, prompt, efficient, reasonable, proportionate, impartial, and both substantively and procedurally fair as enshrined in section 68(1) of the Constitution.

The applicant seeks before this court relief sought set out as follows:

“IT IS ORDERED THAT:

1. The forensic audit of the National Social Security Authority [“NSSA”] for the period 1 January 2015 to 28 February 2018, produced on behalf of the Auditor General of Zimbabwe by BDO Chartered Accountants, be reviewed and set aside in all those respects that pertain, whether directly and/or indirectly to the applicant.

2. Costs of suit shall be borne by the second respondent on the higher sale of legal practitioner and own client.”

The first and second respondents opposed the application.

A brief chronology of the events culminating in the present application is provided by way of background.

Background

The facts of the matter are discernible from the affidavits filed by the parties. Where matters are contentious, I have set them out under separate headings.

It is common cause, however, that the applicant was board chairman of NSSA from 12 July 2015 to 27 March 2018. When he left, the first respondent appointed the second respondent to conduct a forensic audit of NSSA, which culminated in a report with findings/conclusions some of which relate to the applicant.

The report was served on the applicant on 2 August 2019.

Subsequently, he was given a questionnaire to which he gave some responses. The applicant advised that his responses to the questionnaire should be read together with the consents of a dossier dated 11 May 2018 and housing transaction supplement (and annexures) dated 16 July 2018, which he had prepared.

I will now set out the respective submissions of the parties, beginning with the applicant's case.

The Applicant's submissions

The applicant asserted that he was aggrieved by the adverse findings and conclusions relating to him that were made in the Auditor General's report. In summary, he identifies the matters of concern as follows:

1. Metbank investments were not above board and had yielded losses to NSSA.

2. The off-take agreements were irregular and had resulted in losses to NSSA.

3. The applicant caused agreements between NSSA and Housing Corporation of Zimbabwe (Private) Limited (HCZ) to be concluded, and they caused losses to NSSA.

4. The conduct of interviews for people recruited into senior management was shrouded in mystery, with no accountability.

5. Board fees were overpaid. The report recommended: “NSSA should seek legal counsel on how to deal with the involvement of the former board chairman in the overpayment of board fees.”

6. The applicant interfered in management issues.

The detailed grounds of challenge

Elaborating the basis of the application, the applicant stated that he was unhappy with both the forensic audit's processes and conclusions. The grounds which found the challenge to the report are detailed below:

Acting beyond remit of powers

The applicant asserted that the first respondent exceeded the powers given to her by section 9(2) as read with paragraph 10 of the Sixth Schedule to the Constitution, as read with section 2(1) of the Audit Office Act [Chapter 22:18]. He stated the respondent's constitutional function as being to audit accounts, financial systems, and financial management of public accounts, and concluded that any audit beyond this remit was unlawful.

The report is not a forensic report

For the applicant, it was argued that public power cannot be exercised for a purpose other than that for which it has been given. Once the decision was made, by the first respondent, to conduct a forensic investigation, it was that investigation that had to be undertaken. The applicant submitted that, to the extent that none of the people who produced the report are qualified or accredited as forensic investigators, the report is invalid and could not be relied on by the first respondent.

The report is incompetent

The applicant averred that the report was incompetently prepared as it relied on wrong or speculative information. He cited the figure of US$4,968 used to show that Board fees were unlawfully paid, yet there was an actual approved sum. Also disputed was the conclusion that Board fees were not approved, because same were approved by the Permanent Secretary and implemented by NSSA's management.

In relation to the Africom issue, the applicant disputed the alleged loss to NSSA of $300,000, and said a profit restatement of $15,5m to NSSA was ignored.

He disagreed with the sum of $104 million given as potential loss to NSSA on the Housing Corporation of Zimbabwe (Private) Limited (HCZ) issue, as the auditors wrongly assumed that the completed houses would have no takers.

He argued that, had he been given a right to be heard, he would have cleared any concerns and obviated reliance on the arbitrary figures.

The applicant submitted that conclusions were reached on unjustified comparisons between the HCZ and NBS housing schemes without considering key significant differences. It was contended, that, a forensic report would have noticed this.

My attention was drawn to the judgment in Housing Corporation of Zimbabwe (Pvt) Ltd v Zimnat Assurance Company (Pvt) Ltd HH579-18, delivered on 22 February 2019.

The applicant averred, that, the second respondent released the report disregarding that the judgment affects the conclusions in the report.

In that case, NSSA had demanded that Zimnat pays it under the performance bond alleging breach by HCZ for failing to deliver housing units in terms of the off-take agreement. In response, HCZ sought an interdict against the payment on the basis that NSSA's demand was fraudulent as it had delivered some housing units. The interim interdict was granted pending the outcome of arbitration proceedings. In due course, an award was made to HCZ.

In light of the High Court judgment, and subsequent arbitral award, the applicant contended that no basis, other than incompetence and malice, existed for the second respondent's negative finding and conclusion.

The applicant complained that the report was never updated to reflect the judgment and the award.

In addition, he asserted that no evidence was shown of any meeting between him and HCZ representatives to substantiate the conclusion that he caused the agreements between NSSA and HCZ to be concluded.

Contrary to the conclusion that HCZ was a week-old company which had obtained a US$304 million contract without tender, the applicant argued, that, it was a subsidiary of Housing Africa Corporation (HAC). He added that HAC approached NSSA, as early as February 2017, and that HAC incorporated HCZ as a special purpose vehicle for its housing projects in Zimbabwe.

Bias on the part of the auditors

The applicant averred that questions put to him via a questionnaire were framed in a biased way. When he provided answers, he submitted that no reasons were given in instances where the auditors disagreed with him. He argued that his responses were either ignored or his explanations not followed through.

Additionally, the applicant stated that no attention was paid to three (3) dossiers of information that he provided, without any reasons for ignoring them.

He argued that the process was tainted and compromised and that his answers were not considered, and he surmised that this was because they did not tally with the auditors' desired outcome.

The applicant argued that the information he provided confirmed there was Board approval for the projects allegedly not properly approved. He added that collective responsibility was taken by the Board, as appears from supporting minutes and e-mail correspondence. If his explanations been taken into account, the applicant stated that they would have affected the conclusions arrived at in the report.

He also highlighted the undesirability of Mr Kudenga's continued involvement in the audit despite attacks on him by a Member of Parliament since he was owing the applicant money.

The applicant argued that the allegation of bias, or its likelihood, made it imperative for Mr Kudenga to recuse himself from the audit process. The argument continued that everything he did beyond the point that he should have recused himself is invalid.

To demonstrate the second respondent's double standards, or discriminatory approach, the applicant referred the court to notable events which happened during the period covered by the audit. These are as follows:

(i) Former minister, Ms Petronella Kagonye, against resolutions of NSSA and NBS boards, appointed one Lameck Danga as managing director of NBS, after coming second in the interviews. He pointed out that the report did not criticize Ms Kagonye for this.

(ii) The second one relates to the Permanent Secretary, Mr Ngoni Masoka, who directed Mr Danga's salary to be paid at a rate higher than that of his seniors in NSSA. Again, the applicant argued that the report did not condemn this.

(iii) A third one involves an amount of US$598,000 ascribed to cost of “unfair dismissals” in the report. The applicant stated that the report omitted to mention that former minister, Mr Patrick Zhuwao, forced NSSA, against a Board resolution, to pay a Mr Chikuni Mtiswa the sum of US$400,000.

(iv) Next is the issue of Ms Petronella Kagonye who forced the termination of Mr David Makwara's contract of employment as general manager of NSSA on the ground that he was too close to the applicant.

He complained that the losses arising from these decisions were unjustifiably blamed on the applicant.

(v) The additional case involved Ms Petronella Kagonye forcing NSSA to sponsor a sum of US$200,000 to a disability conference in her Caledonia constituency, and another US$200,000 to a school in Ruwa before the 2018 elections.

The applicant lamented that the auditors did not criticize the minster for the abuse of pensioners' funds for “vote buying” for a private benefit.

(vi) A final issue raised by the applicant is that the report unfairly criticized him for decisions taken before he joined NSSA..

As further proof of bias, he protested that the report incorrectly ascribes to him loss of US$4 million in a debt swap deal involving Metbank's property, and US$2 million through properties bought from Metbank at inflated prices before his appointment.

The applicant argued that the second respondent was not an impartial auditor and drew the court's attention to the agreement letter dated 15 May 2018 where the following appears:

“We understand that the results of our work may be used in disciplinary hearings or criminal proceedings. If you wish to retain us as an expert witness in connection with this matter, those services will be billed separately based on the actual time spent at our standard hourly charge out rates.”

If the second respondent was a neutral auditor, the applicant wondered how it would give objective testimony in any subsequent proceedings arising out of the report.

Inaccurate and inconsistent report

The applicant contended that the report is inaccurate to the extent that it alleges that some investments were made without Board approval.

He referred to a Board resolution of September 2012 which authorized management to implement decisions of the Board Investment Committee.

Additionally, he submitted that the report was inconsistent, particularly, with regard to the HCZ issue where it gave loss figures varying from US$16 million to US$104 million then to US$304 million. He argued that, at any rate, the amount of US$16 million paid by NSSA to HCZ was secured by a Zimnat insurance guarantee of US$16 million and a land bond of US$32 million.

The applicant stated that the Board's view was that off take agreements did not require to go through a tender board, and a Mr Charles Nyika, employed to ensure compliance with procurement regulations, did not raise any alarm. He therefore argued that the suggestion that he pushed the projects without tender approval was malicious.

The applicant also denied authorizing Metbank to utilize US$37.75 million of NSSA treasury bills in their custody, since the authority was granted in the name of the General Manager, Ms Liz Chitiga, but, a letter in her name had been signed by her Executive Assistant, Mr James Chiuta. Even so, he submitted that the criticism was unwarranted since NSSA had the Reserve Bank of Zimbabwe clearance on the good standing of Metbank.

Conflict between the Auditor General and the Accountants

The applicant submitted that the auditors' findings conflict with the first respondent's earlier work. In this regard, the applicant contended that if a loss of US$104 million existed, it would have been flagged in the December 2018 results as a contingent liability and published in her annual report. The argument continues, that, the second respondent's figure is arbitrary and false.

The Respondents' submissions

The respondents raised some points in limine:

(i) The first is that the report was not a decision, but contained factual findings, and, consequently, was not reviewable.

(ii) Secondly, it was argued, that, the second respondent was not an administrative authority whose decision can be subject to judicial review.

It was further argued that the grounds relied on by the applicant did not constitute grounds for review contemplated by section 27 of the High Court Act.

On its part, the second respondent submitted that the application did not comply with Rule 257 insofar as the grounds of review were not stated in the application but in the founding affidavit.

It further contended that no adverse action has been taken against the applicant on the basis of the report, and, as such, the process leading to the issuance of the report is not reviewable.

A further preliminary point raised was that there had been a material misjoinder of the second respondent as it was a private party which had been engaged by the first respondent.

It denied exercising any public power and should not have been joined to the proceedings as it was a mere agent of the first respondent who was the principal.

The second respondent argued that it was not covered by the definition of administrative authority in section 2(1) of the Administrative Justice Act (AJA), and urged the court to dismiss the application.

Thus, the respondents urged the court to dismiss the application on those preliminary points....,.

The issues that confront this court for determination are as follows:

1. Whether, when the second respondent acted under the authority of the Auditor General, it exercised administrative or public power....,.

Whether BDO Accountants exercised administrative power

I identified the first issue for determination as whether, when the second respondent acted under the authority of the Auditor General, it exercised administrative or public power.

In dealing with this application, I have to define the legal status of the second respondent vis-a-vis the audit process. It is only through doing so that the jurisdiction of this court is engaged.

I am mindful of the point in limine challenging this court's jurisdiction.

The first respondent's functions are set out in section 309(2) of the Constitution as follows:

“2. The functions of the Auditor-General are -

(a) To audit the accounts, financial systems, and financial management of all departments, institutions, and agencies of government, all provincial and metropolitan councils, and all local authorities;

(b) At the request of the Government, to carry out special audits of the accounts of any statutory body or Government-controlled entity;

(c) To order the taking of measures to rectify any defects in the management and safeguarding of public funds and public property; and

(d) To exercise any other functions that may be conferred or imposed on him or her by or under an Act of Parliament.”

As an agency of Government, NSSA is subject to audit by the first respondent.

By virtue of section 8(1) of the Audit Office Act, the first respondent's powers can be delegated.

Section 9 of the Audit Office Act permits the first respondent to carry out contracted audits, which are defined as follows:

“9 Contracted audits

(1) The Comptroller and Auditor General may, by notice in the Gazette, appoint a person registered as a public auditor in terms of the Public Accountants and Auditors Act [Chapter 27:12] to inspect, examine, and audit the accounts, records, or stores that are required by this Act or by any other enactment, to be inspected, examined, or audited by the Comptroller and Auditor–General and report the results of the inspection, examination, or audit.

(2) The person appointed in terms of subsection (1) may carry out an economy, efficiency, and effectiveness audit of the operations, or specified operations, of a designated statutory body, and report the results of the audit to the Comptroller and Auditor General.”

It is common cause that the second respondent was contracted to carry out an audit of NSSA under the statutory framework described above.

In this regard, the Administrative Justice Act (AJA) defines administrative authority to include:

“(d) Any other person or body authorized by any enactment to exercise or perform any administrative power or duty; and who has the lawful authority to carry out the administrative action concerned.”

From the foregoing framework, I find it beyond argument that the second respondent performed a public function and made findings and recommendations in this regard.

It follows, that, by carrying out the forensic audit, the second respondent fell squarely within the definition of administrative action contemplated by the Administrative Justice Act (AJA).

It can hardly be open to dispute that the decision to recommend vested in the second respondent, while the decision to accept the recommendations lay with the first respondent.

However, what is particularly relevant to the issue before me was articulated in counsel for the applicant's submission, that, upon being adopted, ownership in the recommendations shifted to repose in the first respondent. Once that happened, it is naive of the auditors, or the Auditor General, to deny that the second respondent effectively exercised administrative power.

I dismiss the point in limine raised for lack of merit.

Whether the audit constitutes reviewable action/conduct or decision

The second issue was whether the audit constitutes reviewable action/conduct or decision.

This question cannot be answered without looking at the architecture of section 3(1) and (2) of the Administrative Justice Act (AJA). Those provisions make it evident that the exercise of public power should not be arbitrary, but must conform to the principles of legality, fairness, and reasonableness.

I agree with counsel for the applicant's submission, that, what is reviewable is not merely a decision of an administrative body - but administrative action. There are a number of cogent reasons which render it a woeful folly to conflate administrative action with administrative decision:

(i) Firstly, section 2(1) of the Administrative Justice Act (AJA) is clear that the two concepts are different, and should be so treated, since it defines 'administrative action' to mean any action taken or decision made by an administrative authority. Clearly, the use of the elective conjunction suggests that this court can review either an action or a decision of an administrative functionary.

(ii) Secondly, it is instructive to consider the purpose of the Administrative Justice Act (AJA), whose preamble provides a clue to why action and decision should neither be confused nor be used interchangeably. It is in the following terms:

“AN ACT to provide for the right to administrative action and decisions that are lawful, reasonable, and procedurally fair; to provide for the entitlement to written reasons for administrative action or decisions; to provide for relief by a competent court against administrative action or decisions contrary to the provisions of this Act; and to provide for matters connected with or incidental to the foregoing.”…,.

That this court can examine the purpose of legislation to aid statutory interpretation has judicial precedent. NCOBO J, in Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs and Tourism and Others 2004 (4) SA 490 (CC)…, eloquently stated the position thus:

“…, the words and expressions used in a statute must be interpreted according to their ordinary meaning is the statement that they must be interpreted in the light of their context. But, it may be useful to stress two points in relation to the application of this principle. The first is that 'the context', as here used, is not limited to the language of the rest of the statute regarded as throwing light of a dictionary kind on the part to be interpreted. Often of more importance is the matter of the statute, its apparent scope and purpose, and, within limits, its background.”…,.

(iii) Thirdly, section 68(1) of the Constitution, though using the word 'conduct', confirms that action is different from, and was not intended to mean decision. It provides that every person has a right to lawful, prompt, efficient, reasonable, proportionate, impartial, and procedurally fair “administrative conduct”.

Similarly, section 68(2) of the Constitution gives anyone who has been adversely affected by “administrative conduct” the right to be given reasons in writing for such conduct.

The word 'decision' was avoided (I dare say, deliberately), buttressing the argument that a decision per se is not a causa sine qua non for the remedy of judicial review to be tenable.

(iv) Fourthly, the Constitution provides a further rationale for not construing action to mean decision, and section 46(2) is a must read. It is couched as follows:

“When interpreting any legislation, and when developing the common law or customary law, every court, tribunal, or body must promote and be guided by the spirit and objectives of this Chapter.”

It must be borne in mind that section 46(1) of the Constitution enjoins this court to give full effect to the rights and freedoms enshrined in this Chapter.

It follows, in my view, that the best way to achieve this is to interpret the definition of “administrative action” in the Administrative Justice Act (AJA) in a way which does not subsume action and decision into one. Such an approach would enhance the process of review by not confining it to decisions to the exclusion of examining the process and actions taken in the lead up to those decisions.

In fact, the use of the formulation 'administrative conduct' as opposed to decision, in section 68 of the Constitution, makes it imperative for a wider interpretation to be given. In this respect, the Cambridge English Dictionary defines 'conduct' as meaning “to organize and perform a particular activity”, while the Collins English Dictionary has a similar meaning.

At any rate, this issue was settled in the South African case of Oudekraal Estates (Pty) Ltd v City of Cape Town 2004 (6) SA 222 (SCA), which held that recommendations constitute administrative action which remains valid until reviewed and set aside.

In the jurisprudence of this court, the obiter dicta remarks in Kazingizi v Dzinoruma HH106-06, are persuasive as MAKARAU J and PATEL J…, appositely stated:

“The integrity of the order lies in the procedure used to reach that order and the reasoning employed to opt for that particular result.”

In view of the foregoing, contrary to the position taken by the respondents, my view is that the forensic investigation undertaken by the second respondent, and report produced by that exercise, are reviewable.

Accordingly, the preliminary objection has no basis and is dismissed....,.

I would add that insofar as the integrity of the order lies in the procedure used to reach that order, it cannot be gainsaid that the process giving rise to an executive decision is reviewable.

HH272-22 : SLASHWOOD MINING (PVT) LTD and ZENIT GROUP LIMITED vs ONTAGE RESOURCES (PVT) LTD
Ruled By: ZHOU J

This is an application for the revival of an order by consent that was granted in Case Number HC13123/12 and for costs of suit.

The order in question was granted on 5 December 2012.

The application is opposed by the respondent.

The background facts to this application are as follows:

On 5 December 2012, this court granted an order pursuant to an application instituted by the respondent herein under Case Number HC13123/12. The applicants herein are the respondents in that case. The order granted incorporated the terms of a Deed of Settlement which had been signed by the parties on 19 November 2012. The applicant's case is that the order granted in HC13123/12 has superannuated and therefore must be revived by order of this court.

The respondent opposes the application on the following grounds:

(a) That the provision pertaining to superannuation of judgements and their revival was repealed, which means that the application is unnecessary;

(b) That the order that is being sought to be revived has itself been overtaken by events, and. in any event, was superseded by another Deed of Settlement which was executed by the parties on 20 December 2012 under Case Number HC14382/12;

(c) That the deponent's directorship of the first applicant is being challenged on the basis that he was fraudulently appointed as director.

The respondent raised the further point that the second applicant is not properly before the court as it has not authorised its participation in the proceedings.

The applicant, through counsel, conceded this point in argument.

The concession was proper, since there is no resolution by the second applicant authorising the proceedings.

Even the deponent to the founding affidavit does not claim to represent it.

Properly, it should have been cited as a respondent since it is a party to the order which is being sought to be revived.

In the premises, in the absence of an application to join it to the instant application or authority for it to participate in the proceedings, the second applicant's name is struck out.

The other objection by the respondent, to the non-joinder of Tapiwa Gurupira, is meritless.

The said Tapiwa Gurupira is not a party to the order in Case Number HC13123/12.

The objection is dismissed.

HB09-15 : LEAST SUPPLIES (PVT) LTD t/a L.S. CELLULAR and L.S. CAPITAL vs T.I.B. INSURANCE BROKERS and HERITAGE INSURANCE COMPANY
Ruled By: TAKUVA J

This is an application for joinder of parties in terms of Order 13 Rule 87(2)(b) of the High Court Rules 1971.

The facts are simple and largely undisputed. They are:

The applicant is involved in the business of buying and selling cell phones and cell phone accessories which it normally imports from Dubai. Sometime in 2012, the applicant approached the first respondent, who are the second respondent's insurance brokers, and requested insurance cover for possible losses that could arise during importation of cell phones from Dubai.

The second respondent then undertook to indemnify the applicant.

In September 2012, the applicant lost a consignment of cell phones valued at US$57,285 (fifty seven thousand two hundred and eighty-nine United State dollars) whilst being transported from Dubai to Bulawayo.

The applicant then duly completed claim forms and submitted them to the second respondent.

Subsequently, the applicant's lawyers wrote to the first respondent pointing out that the applicant did not, at any time, sign any policy document and that none was ever availed to the applicant by the first respondent.

This letter was written after the first respondent submitted a report from New Generation Loss Assurers which indicated that the applicant was not entitled to be indemnified because it allegedly breached some conditions relating to the declaration, conditions, terms and conditions relating to packaging and warranties, and clauses therein.

After the second respondent refused to compensate the applicant, the latter issued summons under case number HC364/13 claiming payment of US$57,285 being the value of the cell phones.

The parties have closed pleadings and a round table conference was held wherein it emerged that most of the triable issues centre around the role played by the first respondent, as an insurance broker, in the contract.

The applicant then applied for joinder of the first respondent as a second defendant under case number HC364/13.

The first respondent has opposed the application.

Consequently, the broad issue is whether or not the first respondent should be joined as a defendant under case number HC364/13.

The applicant relies on Rule 87(2)(b) of the High Court Rules, 1971 which provides as follows:

“(2) At any stage of the proceedings, in any cause or matter, the court may, on such terms as it thinks just, and either of its own motion or on application –

(a)…,.

(b) Order any person who ought to have been joined as a party or whose presence before the court is necessary to ensure that all matters in dispute in the cause or mater may be effectually and completely determined and adjudicated upon, to be added as a party; but no person shall be added as a plaintiff without his consent signified in writing or in such other manner as may be authorized.

(3) A court application by any person for an order under sub-rule (2) adding him as a defendant, shall, except with the leave of the court, be supported by an affidavit showing his interest in the matters in dispute in the cause or matter.”

The applicant also relied on the following cases:

(i) Henri Viljoen (Pvt) Ltd v Awerbuch Bros 1953 (2) SA 151; and

(ii) Anabas Services (Pvt) Ltd v Ministry of Health and 2 Ors HB21-03.

The principle in these cases is that a party who has a direct or substantial interest in the result of any litigation, and whose interests might be prejudicially affected thereby, must be afforded an opportunity to be joined as a party thereto.

It was also submitted by the applicant, quoting MFB REINECRE and SWJ Van Der MERWE, General Principles of Insurance…, that:

“An agent who is guilty of a misrepresentation is personally liable for the damage caused by him.”

On the facts, the applicant submitted that the fact that the second respondent denies, in case number HC364/13, that the first respondent was its agent in the insurance contract means that there is a real chance that a decision prejudicial to the first respondent might be made - especially if a finding of misrepresentation on its part is made.

Also, it was submitted, that, the fact that the principal is known is not a bar to joining an agent to proceedings in that what should be considered is whether the party which is sought to be joined has a direct or substantial interest.

Finally, it was submitted, that, the presence of the first respondent before the court is necessary to ensure that all matters in dispute in the cause may be effectively and completely determined and adjudicated upon.

The first respondent opposed the application on the following grounds:

(a) The first respondent has no interest in the matter under case number HC364/13 because the cause of action arises from a contract to which it is not a party.

(b) The first respondent, being an agent, cannot be liable based on the insurance contract per se where no relief is sought against it.

In its heads of argument, the first respondent insisted that an agent cannot be sued and submitted that the first respondent is the second respondent's agent and not the applicant's agent; therefore, the applicant cannot sue the first respondent in line with the decision in Smith v Len's Agencies (Pvt) Ltd SC117-92 and Fowler v Hollings (1872) LR 7 & B 6.6…, where a broker was defined as “an agent employed to make bargains and contracts between persons in matters of trade, commerce, and navigation. Properly speaking, a broker is a mere negotiator between other parties…,.”

Finally, the first respondent submitted, that, Anabas Services (Pvt) Ltd v Ministry of Health and 2 Ors HB21-03 is distinguishable from the one in casu in that the first respondent will not be affected by the order that the court will make as it has no direct and substantial interest in that order.

In order to resolve the above issue, it is necessary to examine the status and role of a broker in an insurance contract.

R. H. CHRISTIE, Business Law in Zimbabwe, at page 33, defines a broker as “a middle man or intermediary whose office it is to negotiate between two parties until they are ad idem as regards the terms upon which they are prepared to buy and sell.”

In Glass v Hendrie & Co (Pvt) Ltd 1957 R & N 44 48 it was held that “a person described in a contract as a broker will normally be taken to be the agent of both parties;…, but, his capacity as agent of both parties must not be pushed to extremes, as it cannot be presumed that he had the power to bind both parties to the contract. He is, in fact, an intermediary rather than a business plenipotentiary.”…,.

At pages 232–233, the same author, in the same work, states:

“The business of an insurance broker (who must be registered under the Insurance Act [Chapter 196] section 27) is to familiarize himself with the details of the policies offered and premiums charged by different insurers and obtain appropriate insurance cover for his clients at competitive rates.

It must not be assumed that because he is described as a broker he is the agent of both parties; and, in fact, he commits a breach of his duty to his principal, the insured, if, without his consent, he acts on instructions from the insurer.

He owes a duty to his principal to obtain a policy in accordance with his instructions, and, if he obtains one that is not in accordance with his instructions he will be liable for a breach of his contract of agency, even if he has sent the policy to the insured and the insured has not complained about its terms.

The insured is under no obligation to read the policy, but is entitled to rely on the skill and efficiency of the broker. The broker must make the necessary inquiries of the insured to ascertain all material facts and must disclose them to the insurer. Failure to discharge this duty renders him liable to the insured or the insurer, which ever has suffered loss through his failure.”…,.

In Syfin Holdings Ltd v Pickering 1982 (1) ZLR 10 (S), 1982 SA 255, it was held that “the insured's cause of action in such a case does not arise until he suffers damage…,.”

Applying these principles to the case in casu, I find that it is outright mischievous for the first respondent to claim that it has no interest in the matter.

The notice of opposition constitutes a devious act in my view.

Contracts of insurance, from their very nature, require utmost good faith (uberrima fides) on each side. Failure to disclose material facts entitles a party to avoid the policy. It is for this reason that the first respondent's role in the formation of the contract must be exposed fully.

On the facts of this matter, it is accepted by the first respondent, that, it negotiated the terms and conditions of the policy in its capacity as an insurance broker.

It is this insurance contract which contains the rights and obligations of the parties. It is the same contract whose interpretation and formation are now in dispute.

Further, there is a serious allegation that the first respondent breached its duty to the applicant (the insured) by failing to disclose material facts relating to the applicant's rights and obligations under the contract.

Also, it appears from the papers, that, while the first respondent admits that it acted as agent of the second respondent, the latter denies this fact casting doubt on whose mandate the first respondent was fulfilling.

It is surprising that the first respondent has chosen not to deal with this aspect in its opposition; choosing, instead, to just generalize its role as an agent, without specifically indicating whose agent it is.

It is baffling to note that the written contract the first respondent harps on is not even attached to its opposing papers.

All that the first respondent did was to give a broad and unsubstantiated averment in paragraph 7.2 of its opposing affidavit to the effect that the policy was reduced into writing and forwarded to the applicant who then paid premiums.

It does not say how this was done or why the contract was not signed by the parties.

For these reasons, I am of the view that the presence of the first respondent in proceedings under case number HC364/13 is necessary to ensure that all matters in dispute in the cause may be effectually and completely determined and adjudicated upon.

Accordingly, it is ordered that:

1. The first respondent be and is hereby joined as second defendant in the proceedings under case number HC364/13.

2. The first respondent be and is hereby ordered to file its defence to the claim under case number HC364/13 in terms of the Rules of this court with the claim calculated from the date of granting of this order.

3. Costs shall be in the cause.

Appealed
HH287-20 : PENELOPE STONE and RICHARD BEATTIE t/a THE STONE/BEATTIE STUDIO vs CENTRAL AFRICAN BUILDING SOCIETY and RESERVE BANK OF ZIMBABWE and MINISTER OF FINANCE & ECONOMIC DEVELOPMENT
Ruled By: ZHOU J

This is an application for an Order that:

1. The first Respondent pays a sum of US$142,000 together with interest thereon at the rate of 5% per annum from 28 November 2016 to the date of payment within seven days from the date of this order.

2. In the alternative, the Applicants ask that the first and second Respondents be ordered to pay the said sum of money jointly and severally the one paying the other to be absolved.

3. The further alternative relief is for the Exchange Control Directive No. RT120/2018 to be declared a nullity, or, in the further alternative, that section 44B(3) and (4) of the Reserve Bank of Zimbabwe Act [Chapter 22:15] be declared unconstitutional.

4. Costs of suit are, in the main, sought against the first Respondent, and, in the alternative, against all the Respondents jointly and severally the one paying the others to be absolved.

The application is opposed by all the respondents.

The factual background to this matter is as follows:

The applicants are partners in a firm of architects trading under the name The Stone/Beattie Studio. The partnership has a savings account, number 1005428905, with the first respondent, which was opened in 2011. This account was opened after the introduction of the multi-currency system which became operational in February 2009.

The account was a United States Dollar account.

On 4 May 2016, the Governor of the second respondent issued a press statement under the title: “Measures to deal with cash shortages whilst simultaneously stabilising and stimulating the economy.”

In that statement, the Governor of the second respondent acknowledged the prevailing shortage of cash, the factors contributing to such shortage, and the impact that these factors had had on the economy, among other issues. He announced some monetary policy measures instituted to address the challenges which he highlighted as afflicting the multi-currency system.

In paragraph 13 of the written statement, the Governor announced that the Reserve Bank had established a USD200 million foreign exchange and export incentive facility which was supported by the African Export-Import Bank (Afreximbank) to provide cushion on the high demand for foreign exchange and to provide an incentive facility of 5% on all foreign exchange receipts, including tobacco and gold sale proceeds.

He proclaimed that in order to guard against possible abuse of the facility through capital flight, the facility was to be granted to qualifying foreign exchange earners in bond coins and notes which would continue to operate alongside the currencies within the multi-currency system and at a par with the United States Dollar.

The statement also promised the introduction of the Zimbabwe Bond Notes of denominations of $2, $5, $10…, to facilitate portability given the magnitude of the USD200 million backed facility. The facility would, further, be used to discount trade-related paper in order to provide liquidity for business trading operations.

The BOND currency was made part of the family of currencies in the multi currency basket.

In the same statement, the Governor announced that the process to configure the RTGS system into the multicurrency was already underway.

It did come - in that on 31 October 2016, the Presidential Powers (Temporary Measures) Regulations, 2016 which were contained in Statutory Instrument 133 of 2016, SI133 of 2016, were enacted in terms of section 2 of the Presidential Powers (Temporary Measures) Act [Chapter 10:20].

As at the end of October 2016, the applicants account number, 1005428905, had a credit balance of US$142,000.

In response to the enactment of the Presidential Powers (Temporary Measures) Regulations 2016, S.I.133 of 2016, referred to above, the applicants wrote a letter, dated 28 November 2016, to the first respondent. The material portions of the letter are as follows:

“RE: The STONE/BEATTIE STUDIO Savings Account No. 1005428905

The attached printed statement of the above account, dated today's date, records that CABS is the custodian of US$142,000 (one hundred and forty two thousand United States Dollars) deposited and held on behalf of The Stone/Beattie Studio.

You are advised there will be no further deposits into or withdrawals from this account after today's date until written instruction is given to you by the partners, named below, being the authorized signatories, or their successors.

Yours faithfully
P.D. STONE/R.H.S. BEATTIE”

The letter is signed by the two applicants.

A statement showing a credit balance which was attached to the letter is part of the documents attached to the founding affidavit.

The applicants have also adduced proof of delivery of that letter.

On 4 October 2018, the second respondent issued the Exchange Control Directive RTl20/2018 which separated what was therein referred to as the RTGS Foreign Currency Account from a Nostro Foreign Currency Account based on the source of funds.

The effect of this was to categorise the applicants account as an RTGS Foreign Currency Account.

Money from the applicants account could only be paid in the Bond note (and bond coin) - but not in the United States dollar which was the currency in which it is denominated.

By letter dated 17 October 2018, written on their behalf by their legal practitioners, to the first respondent, the applicants asked to withdraw the sum of US$142,000 from their account, or, alternatively, to have it transferred into a Nostro Foreign Currency Account.

The concept of the Nostro Foreign Currency Account came into existence following the second respondent's Monetary Policy Statement of 1 October 2018.

According to the applicants, their letter of demand was written after they were advised by the first respondent that they could only be paid their money in the Bond note currency.

The Applicants case

The applicants case is that they are entitled to payment of the sum of US$142,000 on the basis of the banker/customer relationship that exists between them and the first respondent.

In the alternative, should this court find that the first respondent is excused from paying the money in the currency of the United States in which it was reflected in their account by reason of the Exchange Directive No. RT l20/2018, issued by the second respondent, that, that Directive be found to be unconstitutional for being unlawful and grossly irrational and ultra vires the provisions of the enabling Act.

In the further alternative, the applicants contend that section 44B(3) and (4) of the Reserve Bank Act contravene the provisions of section 71 and section 56 of the Constitution of Zimbabwe, Amendment (No.20) Act 2013 which, respectively, protect property rights and equality before the law and the right to equal protection and benefit of the law.

The First Respondent's case

The first respondent contends that the applicants cause is founded upon a falsehood in that they allege that they instructed the first respondent to preserve their balance in the currency of the United States, yet the letter relied upon does not state so.

A second argument raised in limine in the opposing affidavit, but does not appear to have been pursued in argument, is that the application was not one for an order ad pecuniam solvendam but for a declaratur, and, further, that the requirements for declaratory relief were not met.

The first respondent states, that, its obligation as the banker, is "to pay on demand the equivalent of the money deposited by the applicants."

The first respondent advances the further contention, that, it could not be enjoined to pay the applicants in the currency of the United States because such payment would be contrary to the Exchange Control Directive RT120/18, issued by the second respondent on 4 October 2018, by which all credit balances were to become RTGS balances unless they were converted into Nostro Foreign Currency Accounts.

In this respect, the respondent's case is that, at law, it is under obligation to comply with the terms and conditions of its registration as a Banking institution. For these reasons, the first respondent's case is that the amount in the applicants account is payable in the RTGS or Bond currencies.

Second Respondent's case

The second respondent's case is that it exercised its powers in terms of the law by issuing the Directive referred to above.

It also states, that, the Bond note (and coin) is not a currency, and, further, that Bond notes are legal tender in Zimbabwe. The second respondent states that there is "no such thing as an RTGS balance in our law, in much the same way as there is no currency in Zimbabwe known as the bond note (or coin).”

The second respondent's averments, that the Bond note (or coin) is not a currency, are contradictory because the impugned Directive talks of making the Bond note part of the family of currencies in the multi-currency basket.

Third Respondent's case

The third respondent's case is that the dispute in this case is a contractual one between the applicants and the first respondent and that he was improperly joined in this matter. He therefore objected to his joinder.

According to the third respondent, the dispute revolves upon an interpretation of the contractual terms arising out of the agreement between the applicants and the first respondent.

Issues for determination

The following issues are material to the determination of this matter:

1. Whether the third respondent was improperly joined in this application, and, if so, the effect of such joinder on the proceedings.

2. The nature of the relationship between the applicant and first respondent and the implications thereof on the relief which is being sought.

3. Whether the Exchange Control Directive RT120/2018 is unconstitutional, and, if so, the implications thereof.

4. Whether section 44B(3) and (4) of the Reserve Bank of Zimbabwe Act [Chapter 22:15] are unconstitutional; and, if so, the implications thereof....,.

The Joinder of the Third Respondent

The third respondent states, that, he was improperly joined in this matter because he was not a party to the contractual relationship between the applicants and first respondent.

A party may be joined in proceedings before a court if that party has a direct and substantial interest in the subject matter and outcome of the application. The authorities show, that, what is required is a legal interest as opposed to a financial or commercial interest which is only an indirect interest in such litigation: see Zimbabwe Teachers Association & Ors v Minister of Education 1990 (2) ZLR 48 (HC)…, and the cases cited therein.

The third respondent's objection to his joinder is based on the relief which is sought, in the main, by the applicants; but, the alternative relief seeks the annulment of a Directive issued by the second respondent as well as a declaration that cited sections of the Reserve Bank of Zimbabwe Act are invalid for contravening the Constitution.

The Administration of that Reserve Bank of Zimbabwe Act has been assigned to the third respondent who has a lot of powers in relation to the appointment of the Governor, Deputy Governors, and Directors of the second respondent: see, for example section 14(1); section 15(2); section 17(1)(a); section 17(2); section 17(3); section 18(1); section 18(2); section 19(1); section 22(1); section 24(1)(a) and section 64.

He, in fact, is the authority responsible for supervising the second respondent.

He therefore has a direct and substantial interest in the subject matter and outcome of the instant application. The fiscal powers and policies of the third respondent inform the monetary powers of the second respondent which are impugned herein.

Accordingly, he has been properly joined in this matter.

The objection to the joinder is therefore dismissed.

View Appeal
HH534-18 : RIOZIM (PVT) LTD vs TRUST BANK CORPORATION LTD (IN LIQUIDATION)
Ruled By: KWENDA J

This is application made in terms of section 213 of the Companies Act [Chapter 24:03] for leave to institute proceedings against the respondent, a company in liquidation.

Should leave be granted, the applicant intends to file an application in terms of Rule 449 of the High Court Rules 1971, for correction of a default judgment entered against it in favour of the respondent on 12 March 2014 (the respondent was placed under provisional liquidation on 8 October 2014).

A draft of the application to be filed once the anticipated leave be granted was submitted with the applicant's papers.

The application, should leave be granted, will be a second bite since an earlier attempt, in the year 2015, succeeded initially but collapsed on appeal in the Supreme Court on 26 January 2018.

At the hearing, I complained that the applicant's case was difficult to follow.

The founding affidavit is unnecessarily long and winding. It contains information largely irrelevant. The error necessitating the intervention of the court, in terms of Rule 449, is not clearly decipherable since it is not correctly articulated.

The impression created in the applicant's founding affidavit, as read with the prayer in the application to be filed, is that the judgment debt was overstated because the respondent applied an inflated rate of interest of 45 percent per annum as opposed to 15 percent per annum: see paragraph 7 of the applicant's founding affidavit and the draft order at page 89 of 1 case No. HC1405/13 of the consolidated papers.

However, that position cannot be reconciled with the applicant's assertion in an earlier case that the correct rate of interest is 25% per annum.

At the hearing, a lot of energy and time was expended on extracting from the huge mass of documents submitted with the application what it is that the applicant says went wrong in case No. HC1405/13 which needs correction by this Court.

After lengthy deliberations, it turned out the applicant's case could be stated clearly and concisely.

I will summarise it below:

On 7 May 2015, the applicant filed an application for the variation of the default judgment. The application was filed and prosecuted without the leave of this court notwithstanding the provisional order for liquidation.

In addition to that, the applicant failed to cite the Deposit Protection Corporation despite its direct and substantial interest as liquidator: Final liquidation was confirmed by this Court on 19 May 2016 whereupon the Deposit Protection Corporation was appointed liquidator.

Be that as it may, the application succeeded and the judgment in case HC1405/13 was rescinded on 27 May 2015.

Subsequently, the Deposit Protection Corporation approached the court, in terms of Rule 449(1) for rescission of judgment on the grounds that the applicant had erred in failing to cite it in the case yet it was clearly an interested party.

This court granted the application and rescinded the judgment in case No. HC4155/15.

The effect of the rescission of judgment was that the original court order in case no. HC1405/13 entered against the applicant for the payment to the respondent of $1,824,505=05 popped up again and became operational: prior to provisional liquidation, on 12 March 2014, this Court had entered default judgment against the applicant in favour of the respondent for the payment of $1,824,505=05.

HH390-17 : DEPOSIT PROTECTION CORPORATION (as Provisional Liquidator of TRUST BANK CORPORATION LTD) vs RIOZIM LIMITED
Ruled By: CHIWESHE JP

This is an application for rescission of judgment in terms of Rule 449(1)(a) of the High Court Rules 1971.Rule 449(1)(a) of the High Court Rules provides as follows:“449 Correction, variation and rescission of judgments and orders(1) The court or a judge may, in addition to any power it or he ...

This is an application for rescission of judgment in terms of Rule 449(1)(a) of the High Court Rules 1971.

Rule 449(1)(a) of the High Court Rules provides as follows:

“449 Correction, variation and rescission of judgments and orders

(1) The court or a judge may, in addition to any power it or he may have, meru motu or upon the application of any party affected, correct, rescind or vary any judgment or order -

(a) That was erroneously sought or erroneously granted in the absence of any party affected thereby; or

(b)…,.

(c)…,.”

The requirements for such an application to succeed are clearly spelt out in the wording of the Rule;

The judgment must have been erroneously granted, being granted in the absence of the applicant, where the applicant's rights or interests must be affected by the judgment: see Motor Cycle (Pvt) Ltd v Old Mutual Property Investments Corporation Pvt Ltd HH45-07; and Kaiser Engineering (Pvt) Ltd v Makeh Enterprises Pvt Ltd HB06-12.

In Theron NO v United Democratic Front and Others 1984 (2) SA 532, wherein the South African equivalent of our Rule 449(1)(a) was under consideration, VIVIER J had this to say at p536E:

“Rule 42(1) entitles any party affected by a judgment or order erroneously sought or granted in his absence, to apply to have it rescinded. It is a procedural step designed to correct an irregularity and to restore the parties to the position they were before the order was granted.”

And, at p536G, the learned judge proceeded to explain that the court has a discretion whether or not to grant the application:

“In my view, the court will normally exercise that discretion in favour of any applicant, where, as in the present case, he was, through no fault of his own, not afforded an opportunity to oppose the order granted against him, and when, on ascertaining that an order has been granted in his absence, he takes expeditious steps to have the position rectified.”

In Banda v Pitluk 1993 (2) ZLR 60 (H)…, ROBINSON J distinguished an application for rescission made under Rule 449(1)(a) and an application for rescission of a default judgment under Rule 63.

The latter requires the court “before it sets aside a judgment under it, to be satisfied that there is good and sufficient cause to do so;” whilst the former enjoins the court, once it finds that the judgment was erroneously granted against the defendant, to rescind the judgment without further ado.

Similarly, in HH309-15, it was stated…, as follows:

“In the case of Grantully (Pvt) Ltd and Anor v UDC Ltd, GUBBAY CJ ably and lucidly outlined the purpose of Rule 449 when he ruled, that, once it is established that a relevant fact which ought to have been placed before the court was not placed before it, there is no need for further inquiry for there is no requirement for an applicant seeking relief under Rule 449 to establish good cause. In my view, Rule 449 is availed to cater for situations where a judgment erroneously sought or issued in error, if allowed to stand, would occasion an injustice.”

Does the applicant meet the requirements for an order premised under Rule 449(1)(a)?

The facts upon which the test must be applied are as follows:

The founding affidavit is sworn to by the applicant's Chief Executive Officer, one John Mafungei Chikura. It is to the following effect:

On 12 March 2014, under case number HC1405/13, Trust Bank Corporation Limited obtained a court order against the respondent in terms of which the respondent was ordered to pay the sum of $1,824,505=05 plus interest on this sum, being the amount outstanding in respect of a loan which Trust Bank had advanced to the respondent. On 8 October 2014, Trust Bank was placed under provisional liquidation by order of this court given under case number HC2636/14. The applicant in the present case, represented by its Chief Executive Officer, the deponent to the founding affidavit in casu, was appointed the provisional liquidator in terms of section 57(1)(b) of the Banking Act [Chapter 24:20].

On 7 May 2015, the respondent, without leave of court, filed an application for variation of the court order which Trust Bank had earlier obtained against it to recover the sum of $1,824,505=05.

The application for variation cited Trust Bank and the deponent to the founding affidavit in casu, John Mafungei Chikura.

The applicant in casu was not cited, despite, according to Mr Chikura, it having a direct and substantial interest in the matter; moreso, as it was the duly authorized representative of Trust Bank.

A default judgment was subsequently obtained on 27 May 2015, in the absence of the applicant, varying the order as prayed. The original order was varied by the deletion of the sum of $1,824,505=05 and the substitution thereof with the sum of $634,336=14 and by the deletion of interest at the rate of 45 percent per annum and the substitution thereof with interest at the rate of 25 percent.

The applicant avers, that, in terms of section 213 of the Companies Act [Chapter 24:03] “no action or proceeding shall be proceeded with or commenced against a company in liquidation or provisional liquidation except by leave of court and subject to such terms as the court may impose.”

Accordingly, so argues the applicant, the application for variation having been made against a Bank which was under provisional liquidation, without leave of the court, the resultant order was, for that reason, void ab origine and therefore of no legal force or effect.

If the respondent had informed the court that the Bank was under provisional liquidation, and that leave of court had not been obtained, the variation order would not have been granted.

For that reason, the variation order was issued in error, and must, in terms of Rule 449(1)(a), be set aside accordingly.

I agree with that submission.

The error that the applicant relies on relates to an application filed against Trust Bank when it was under provisional liquidation. Specifically, the error arises because leave of court had not been obtained to so file process against Trust Bank.

In addition, the deponent alludes to a further error, namely, that, the applicant in casu had not been cited in that process. It should have been cited because it is the provisional liquidator, and that the deponent, though appointed provisional liquidator, was only so appointed in a representative capacity, representing the applicant.

The deponent insists that he was not appointed in his personal capacity.

In short, the argument advanced by the applicant is two-fold, viz:

(i) The respondent filed the court application for variation without the leave of the court; and

(ii) The applicant was not cited as the provisional liquidator.

Had these facts been disclosed to the court, the application for variation would not have been granted. Accordingly, the variation order was granted in error.

Further, the deponent correctly observes, that, the Master of the High Court should have been cited because the respondent company was under provisional liquidation thus placing it under the supervision of the Master of the High Court.

The opposing affidavit is sworn to by Gerry Mubata, the respondent company's Group Financial Controller, duly authorized to do so by a company resolution dated 9 May 2016.

The respondent has raised points in limine:...,.

Further, it is argued by the respondent, that, the applicant has no direct and substantial interest in the proceedings and therefore there was no need to cite it.

It was sufficient to cite the Provisional Liquidator, Mr Chikura himself, so argues the respondent....,.

A look at section 57(1) of the Banking Act [Chapter 24:20] will shed light as to the validity of the respondent's arguments vis a vis whether Mr Chikura has authority to represent the applicant and whether the applicant has locus standi to institute the present proceedings.

Section 57 of the Banking Act [Chapter 24:20] reads:

“57 Special provisions relating to winding up or judicial management of Banking institutions

(1) Notwithstanding anything to the contrary in the Insolvency Act [Chapter 6:04] or the Companies Act [Chapter 24:03] -

(a) The Reserve Bank shall have the right to apply to the High Court for ?

(i) The winding up of any banking institution; or

(ii) An order placing any banking institution under judicial management or provisional judicial management in terms of the Companies Act [Chapter 24:03]; and the Reserve Bank shall have the right to oppose any such application made by any other person;

(b) The Reserve Bank shall appoint the Deposit Protection Corporation as the provisional liquidator, provisional judicial manager, liquidator, or judicial manager of a banking institution;

(c) The claims of…,.

(i) Depositors; and

(ii) The Reserve Bank and the Deposit Protection Corporation, in respect of any fees and expenses incurred in the exercise of their functions under this Act or any other enactment; against a banking institution that is being wound up shall enjoy such priority as may be prescribed.”

The powers bestowed upon the Reserve Bank are wide and far reaching.

Most importantly, for purposes of this application, the Reserve Bank is required to appoint the applicant as provisional liquidator, provisional judicial manager, liquidator, or judicial manager of a Banking institution.

The provision is mandatory.

The Reserve Bank must appoint the applicant to act in those capacities. It cannot appoint any other person.

It is clear, therefore, that, the applicant will always have locus standi in all matters involving the liquidation or judicial management of all Banking institutions that fall under the purview of the Banking Act.

Indeed, the orders of this court of 8 October 2014 (provisional liquidation) and 19 May 2016 (confirmation of provisional order) confirm this position.

The respondent's argument to the contrary must be dismissed in the face of these clear statutory provisions.

Mr Chikura is the Chief Executive Officer of the applicant. By virtue of holding that appointment, he must be deemed to be authorised to act on behalf of the applicant.

In any event, his authority was confirmed by order of this court dated 8 October 2014 in terms of which he was appointed provisional liquidator representing the applicant: see case No. HC2636/14. That provisional order was confirmed on 19 May 2016.

The respondent's opposition to this application has no merit.

SC93-21 : RINOS TERERA vs GEORGE LOCK and CK HOLLAND t/a HOLLAND ESTATE AGENT and ZIMBABWE HOUSING COMPANY (PVT) LTD and THE REGISTRAR OF DEEDS
Ruled By: CHITAKUNYE AJA

This is an opposed chamber application for condonation of non-compliance with the Supreme Court Rules 2018 and for extension of time within which to appeal.

Though at the outset the applicant did not state the Rule that was not complied with and the Rule under which this application is brought, it is apparent from the founding papers that the Rule not complied with is Rule 38(1)(a) and the application is in terms of Rule 43(1) of the aforesaid rules.

The intended appeal is against a judgment of the High Court handed down on 29 October 2020 upholding special pleas and dismissing the applicant's claim.

The applicant seeks an order in the following terms:

1. The application for condonation for non-compliance with the Supreme Court Rules 2018 be and is hereby granted.

2. That the application for extension of time within which to file and serve the appeal in terms of the Rules be and is hereby granted.

3. The appeal shall be deemed to have been filed on the date of this order.

4. There will be no order as to costs.

BACKGROUND

The applicant issued summons against the respondents on 9 June 2020 seeking an order:

(a) That the agreement of sale between the applicant and the first respondent be declared valid and still operational;

(b) Declaring the agreement of sale that was entered into between the first, second, and third respondents null and void;

(c) Nullifying the transfer of title of land by the fourth respondent into the third respondent's name; and

(d) That respondents pay costs of suit.

The facts giving rise to the above claim may be encapsulated as follows:

The applicant entered into an agreement of sale with the sellers of an immovable property described as Lot Number 17 Weirmouth Small Holdings of Weirmouth on 23 June 2014, namely, Laureen Tatenda Mvududu and Maureen Mazviita Middleton.

The first and second respondents acted as agents for the sellers in the transaction.

The agreement was in the names of the sellers.

The agreement of sale was subsequently cancelled and the applicant was advised of the same on 14 September 2015.

On 22 January 2016, that same property was sold to the third respondent through the agency of the first and second respondents.

Transfer was subsequently effected to the third respondent in that same year.

In his suit, the applicant did not cite the sellers upon whose mandate the first and second respondents acted.

The three cited respondents filed special pleas seeking the dismissal of the applicant's claim.

The first and second respondents sought the dismissal of the claim on the grounds, that, the claim had prescribed, that they had been wrongly cited, that the matter was res judicata and lis pendens.

The third respondent also sought the dismissal of the claim on the grounds, that, the claim had prescribed, the matter was res judicata, and that the applicant was estopped from claiming the setting aside of the third respondent's title deeds.

The applicant argued, that, the claim has not prescribed and that the matter was neither res judicata nor lis pendens.

He also argued, that, the sale to the third respondent was not above board. He alleged that the sale to the third respondent was fraudulent since there was no proper cancellation or termination of the sale agreement between him and the sellers.

The issues for determination on the special pleas were as follows:

(i) Whether or not the claim had prescribed;

(ii) Whether or not the matter was res judicata;

(iii) Whether or not the matter is lis pendens;

(iv) Whether or not the non-joinder of the former registered owners who sold the immovable property to the third respondent was fatal to the claim; and

(v) Whether or not the applicant was estopped from claiming the setting aside of the third respondent's title deeds.

After hearing submissions on the special pleas, the court a quo noted, that, the issue of lis pendens was not persisted with as the case that had given rise to it, namely, HC67/2020, had since been withdrawn by the applicant.

The court a quo proceeded to make a determination on the other grounds.

It held that the first and second respondents, being the agents who facilitated the sale and subsequent transfer of property to the third respondent for and on behalf of their principals, were unnecessarily joined to the action procedure.

The sellers and transferors having been known, their non-joinder in the case was thus fatal.

The non-joinder was coupled with misjoinder of the first and the second respondents who were discharging legal functions for and on behalf of their principals; there was therefore no valid claim against them.

HH94-16 : THE MILTON GARDENS ASSOCIATION and SYRIL MUPANGURI vs TECLA MVEMBE and CHAMPION CONSTRUCTORS (PVT) LTD and REGISTRAR OF DEEDS, HARARE and THE SURVEYOR GENERAL
Ruled By: DUBE J

This is an application for rescission of a default judgment granted under HC7398/11.The application is brought in terms of Rule 449.

The first applicant is an association of members and will hereinafter be referred to as The Association.

Its members purchased Stands at a property known as Newark of Hilton of Subdivision in Waterfalls, (hereinafter referred to as Newark). The second applicant is the chairperson of The Association.

The first respondent is the original owner of Newark and will hereinafter be referred to as Mrs. Mvembe.

The second respondent is Champion Constructors (Pvt) Ltd, a land developer.

The third and fourth respondents are cited in their official capacities.

The facts of this matter reveal a drawn out battle for the control of Newark.

On 6 November 2000, Mrs. Mvembe sold Newark to Max Management (Pvt) Ltd (hereinafter referred to as Max). The company obtained a subdivision permit and created Stands and sold them.

Mrs. Mvembe was to be paid from proceeds of the sale of the Stands. Mrs. Mvembe retained some of the Stands.

The applicant's members began construction on the Stands. Max Management (Pvt) Ltd delayed in servicing and passing transfer of the Stands sold. There were allegations of double allocation of Stands and complaints of gross mal-administration resulting in numerous legal suits between the Stand holders and Max Management (Pvt) Ltd.

The problems resulted in the formation of the first applicant which was mandated to deal with the management of Newark.

Some 40 Stand holders issued summons against Max Management (Pvt) Ltd and Mrs. Mvembe, under HC5065/06, seeking an order compelling Mrs. Mvembe to complete servicing the Stands.

Mrs. Mvembe was to accept payment from the plaintiff. The matter was withdrawn.

Prior to this order, The Association had obtained a provisional order, under HC7312/06, against Max Management (Pvt) Ltd, Sandriver Properties, the Registrar of Deeds, and Mrs. Mvembe.

Mrs. Mvembe did not oppose the application.

A consent order was entered into between The Association and Max Management (Pvt) Ltd on 11 March 2008.

Mrs. Mvembe was not part of the consent order.

The parties agreed that Max Management (Pvt) Ltd would release and transfer the respective Stands to the purchasers upon payment of certain sums of money and The Association would take over the development project from Max Management (Pvt) Ltd.

On 15 April 2010, Max Management (Pvt) Ltd and the Association entered into an agreement of assignment wherein Max Management (Pvt) Ltd agreed to cede its rights, title, and interest in certain Stands in Newark to the first applicant.

Mrs. Mvembe was not involved in this arrangement.

Max Management (Pvt) Ltd struggled to pay the full purchase price for Newark.

On 1 May 2007, Mrs. Mvembe issued a notice to Max Management (Pvt) Ltd to remedy the breach. If it failed to pay outstanding monies from the purchase of Newark, within 30 days of the date of the letter, Mrs. Mvembe would cancel the agreement of sale.

Champion Constructors claims that it bought Newark from Mrs. Mvembe after she cancelled the agreement of sale in September 2007.

On 14 November 2011, Champion Constructors filed an application seeking transfer of Newark to it.

The applicants were not joined to the proceedings.

Mrs. Mvembe did not oppose the application resulting in default judgment being granted against her, the third, and fourth respondents under HC7398 /11.

The default judgement ordered the Registrar of Deeds to pass transfer of ownership from Mrs. Mvembe to Champion Constructors and the Surveyor General was ordered to cancel a general plan issued by him in respect of Newark whereby Stands were created and sold to members of the Association.

The order was premised on the supposed sale agreement of Newark between Mrs. Mvembe and Champion Constructors.

As soon as the applicants became aware of the default judgment, they instituted an urgent application for a provisional order, under HC10716/11, which was granted in their favor. The provisional order interdicted Mrs. Mvembe, the Registrar, or the Deputy Sheriff from signing and accepting any documents passing transfer of Newark. The Surveyor General and Director of Urban Planning were interdicted from implementing a new plan in place of the previous plan.

Sadly for the applicants, the provisional order was discharged, on 22 January 2014, on the basis of the following:

(a) That there was no evidence to rebut Mrs. Mvembe's allegation that she had cancelled the agreement of sale by virtue of a notice of cancellation to Max Management (Pvt) Ltd for non-payment.

(b) That Mrs. Mvembe was not a party to the consent order under HC7312/06 for the release and transfer of Stands to the purchasers of the Stands and takeover of the development project by the Association. Further, that the arrangement did not confer any obligations on Mrs. Mvembe - the owner of the property concerned.

(c) The assignment entered into by Max Management (Pvt) Ltd and the Association did not bind Mrs. Mvembe as transfer of the property was never made to Max Management (Pvt) Ltd and that it could not transfer or assign any rights to anyone in respect of the property. That Max Management (Pvt) Ltd could not legally transfer any rights to the first applicant's members without it having acquired ownership first.

(d) That there was nothing to prevent the resale to Champion Constructors.

(e) The default judgment of 14 September 2011 remained extant.

(f) That the Association and its members had no rights or interest to enforce against Mrs. Mvembe and Champion Constructors, the subsequent purchaser.

The applicants appealed the decision to the Supreme Court on the basis, mainly, that, the application before the court was an application for rescission of judgment and that the court had erred in refusing to rescind the default order of 14 September 2014. The applicants also intended to lead further evidence on appeal.

The matter was subsequently struck off the roll.

In this application, the applicants seek rescission of the default judgment of 14 September 2014.

The applicants claim that they and their members rights were adversely affected by the default judgment and seek its rescission and also seek to be joined to the matter.

They aver that both Mrs. Mvembe and Champion Constructors were aware that the default judgement would affect the applicants and that they had an interest in Newark and yet they were not cited and served with the application.

The applicants aver, that, since the default judgment, new and additional evidence has come to light, which, if it had been disclosed in HC7398/11, the order would not have been granted.

The applicants have attached to this application affidavits from legal practitioners who attended to the transfer of Newark to Max Management (Pvt) Ltd. The applicants contend that the affidavits reveal that the purchase price had been paid in full prior to the alleged cancellation of the agreement of sale and that the Mvembe/Champion Constructor's agreements of sale are fictitious.

The applicants submitted, that, they derive rights from the cession agreement that they entered into with Max Management (Pvt) Ltd.

The applicants further aver, that, its members are affected by the default judgment and that they have an interest in Newark that they can enforce against Champion Constructors (Pvt) Ltd and Mrs. Mvembe.

They submitted, that, had the applicants and its members been cited and served they would have opposed the application.

The applicants maintain, that, they have shown a case for rescission of judgment and for them to be joined in HC7398/11.

Only the second respondent defends the application.

The respondent challenged the fact that this application is being brought three and a half years after the default judgment. The respondent submitted, that, the applicants have always known about the order and that the purpose of Rule 449 is to expeditiously vacate an obviously erroneous order and that the applicants ought to have applied for condonation of late filing of the application for rescission of judgment.

It argued, that, the failure to seek condonation of the late filing of the application for rescission of judgement is fatal to the application and urged the court to dismiss the application.

On the merits, the respondent argued, that, the applicants have no cause of action against the respondent.

The respondent submitted, that, the applicants maintain that they derive rights from Max Management (Pvt) Ltd arising out of an assignment and yet Max Management (Pvt) Ltd is not a party to these proceedings or those sought to be re-opened.

The respondent maintained, that, for the applicants to bring themselves within the rubric at Rule 449, they must have a direct and substantial interest in the subject matter of the litigation and not merely a financial interest.

That the applicants have not shown that they have anything more than a financial interest in Newark.

The respondent submitted, that, the owner of the land did not participate in the assignment and she cannot be bound by it when she was not a party to it.

Further, that Max Management (Pvt) Ltd did not challenge the cancellation of the sale agreement, and, moreover, that the applicants do not have any rights against Champion Constructors (Pvt) Ltd but merely a personal right against Max Management (Pvt) Ltd.

The respondent further submitted, that, the applicants have sought rescission before and have not been granted that relief. They approached the Supreme Court arguing that the court should have allowed their application for rescission. The respondent did not pursue the challenge related to prescription....,.

I find that the delay in making this application was unreasonable. The applicants have, in the result, non-suited themselves.

Even if I am wrong in this approach, the applicants are going nowhere slowly as they seem not to have a cause of action against the respondents.

I find myself in an invidious position where I am required to go over the same issues as did MTSHIYA J.

The merits of this application have already been dealt with.

However, my view is that the applicants have not met the requirements of the application.

The purpose of the Rule is to allow a court to correct a judgment or order erroneously sought or granted, to apply to have it rescinded: see Theron NO v United Democratic Front and Ors 1984 (2) SA 532; Matambanadzo v Goven 2004 (1) ZLR 399 (S); Mutebwa v Mutebwa 2001 (2) SA 193.

One of the requirements of Rule 449 is that an applicant shows that he is “affected” by the judgment or order.

The authors HERBSTEIN and Van WINSEN, in The Practice of the High Courts of South Africa, 5th ed…, state, that, it is only a limited class of persons who are entitled to bring an application for an order setting aside or varying a judgment of court. The authors rely for this proposition on the case of United Watch and Diamond Co (Pty) Ltd and Ors v Disa Hotels Ltd and Anor 1922 (4) SA 409…, where the court said the following on locus standi:

“In my opinion, an applicant for an order setting aside or varying a judgment or order of court must show, in order to establish locus standi, that he has an interest in the subject matter of the judgment or order sufficiently direct and substantial to have entitled him to intervene in the original application upon which the judgment was given or order granted.”

MTSHIYA J was of the same view, that, the applicants have no direct and substantial interest entitling them to intervene in HC7398/11.

In his judgment, MTSHIYA J relies on SILBERBERG and SCHOEMAN, The Law of Property (Lexis Nexis-Butterworths) 5th ed for the requisites of transfer and he quotes from p73 as follows:

“The seller of a thing which does not belong to him or her must first acquire it for him or herself to then transfer it to the buyer…,.: in other words 'nobody gives something he does not have' (nemo dat qui non habet). This rule is based on the old Roman Law maxim 'no one can transfer more rights to another than he himself has (nemo plus iuristransferrepotest quam ipse habet)'. This may be described as the 'golden rule' of the law of property.”

The court relied on this position at law as the main basis of his judgment.

He observed, that, transfer of Newark was never made to Max Management (Pvt) Ltd and that Max Management (Pvt) Ltd could not transfer or assign any rights to anyone in respect of the property.

I agree with the concerns raised by MTSHIYA J in HH20-14 with respect to Max Management (Pvt) Ltd's and the applicants rights and interests. On p14 of the cyclostyled judgment, he notes the following:

“It should further be noted, that, the consent order of 11 March 2008 was the final position prior to this court's order of 14 September 2011.

The consent order took note of what had transpired up to that date. That order, in my view, cancelled all previous arrangements, except that it failed to recognise that Max had no rights to assign to anyone. It was only the second respondent who could assign rights. However, notwithstanding the fact that the parties knew that the second respondent held title to the property, no responsibility/obligation was placed on her.

Without the participation of the second respondent the said consent order could not be implemented.

The same applied to the purported agreement of assignment of 15 April 2010 concluded between Max and the applicant. In the absence of title and clear rights, Max had nothing to cede.

That point should have been revealed to the court before the consent order was granted. The applicant acknowledges that Max, a developer of the property, had no title…,.: the applicant's members have no relationship whatsoever with the second respondent (Mrs. Mvembe). They are at liberty to claim their monies from Max.”

The applicants allege that they derive rights from Max Management (Pvt) Ltd through the assignment.

The agreement of sale was entered into between Max Management (Pvt) Ltd and Mrs. Mvembe. The owner of the property is Mrs Mvembe - and remains so. Nevertheless, when the agreement of assignment was entered into, the owner of the property was not involved.

An assignment of rights can only be valid if it involves the creditor, who, in this instance, is the owner of the property concerned.

The assignment could only have any legal standing with the involvement of the owner of the property concerned. The assignment cannot bind the owner, and, hence, there is no relationship between the applicants and the owner.

The property had not been transferred to Max Management (Pvt) Ltd and it had no rights with respect to the property which it was capable and entitled to cede or transfer because it had not received transfer from the original owner.

Ownership of property can only be transferred where the transferor has title - the applicants have no legal rights arising out of the assignment. They have no rights to enforce and they have not established any justification for the relief sought.

What complicates this application is that Max Management (Pvt) Ltd has not contested the cancellation of the agreement of sale and Mrs Mvembe has not opposed this application.

I am alive to the fact, that, the first applicant's members, were, at the time of the default judgment, in occupation of some of the undivided Stands and that members of the applicant bought Stands in Newark and paid for them.

This interest amounts to merely a financial interest.

They have a personal right against Max Management (Pvt) Ltd which they can enforce against Max Management (Pvt) Ltd.

I am unable to find, that, the applicants have shown the existence of sufficiently direct and substantial interest to warrant rescission of the default order.

Having found that the applicants have no substantial interest in the subject matter of these proceedings, I will not delve into the merits of this application.

In the result, it is ordered as follows:

The application is dismissed with costs on an attorney client scale.

SSC111-21 : MUNYARADZI KEREKE vs THE STATE and FRANCIS MARAMWIDZE
Ruled By: MWAYERA JA

On 4 August 2021, after considering all documents filed of record and having been orally addressed by counsel, I issued an order admitting the applicant to bail, and indicated that I would avail written reasons for my disposition. The reasons are captioned herein.THE PARTIESThe applicant was convicted by the Regional ...

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Citation and Joinder re: Approach, the Joinder of Necessity and Third Party Notices

HH516-14 : CHEN WANG vs JOSEPH MANDIZHA and TAWANDA MAVHUNGA and TAFADZWA MAVHUNGA and DARNEL ENTERPRISES (PRIVATE) LIMITED Ruled By: MATHONSI J

HH203-15 : ASSWELL GURUPIRA and JEAN GURUPIRA vs EARTHMOVING & CONSTRUCTION COMPANY PL and and SANDRA MUIR and REGISTRAR OF DEEDS and THE SHERIFF and THE DEPUTY SHERIFF Ruled By: MTSHIYA 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

HH241-18 : CLOVER LEAF MOTORS GROUP (PRIVATE) LIMITED vs BUTHOLEZWE ZHOU and PATRICE SHAYAMANO Ruled By: CHITAKUNYE J

HH223-13 : HWANGE COLLIERY CO. LTD and HWANGE COAL GASIFICATION CO. PL vs HWANGE COAL GASIFICATION CO. PL and TENDAI SAVANHU and KINGDOM BANK LTD and STANBIC BANK LTD and GUO FENG and ORS Ruled By: MAFUSIRE 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

HH213-15 : BERNARD DUMBURA vs CHIEF LANDS OFFICER (MASH CENTRAL) (NO) and GEORGE MANYAME Ruled By: NDEWERE J

HH396-18 : NELSON MAUREDE AND 16 OTHERS vs TREGER PRODUCTS (PVT) LTD Ruled By: MANGOTA J

SC62-20 : THANDO NCUBE vs FIDELITY PRINTERS AND REFINERIES (PRIVATE) LIMITED Ruled By: MAKARAU JA

SSC59-19 : PROSECUTOR-GENERAL OF ZIMBABWE vs INTRATREK ZIMBABWE PL and WICKNELL CHIVAYO and L. NCUBE N.O. Ruled By: PATEL JA

HH485-16 : PUWAYI CHIUTSI LEGAL PRACTITIONERS vs THE REGISTRAR OF THE HIGH COURT and THE TAXING OFFICER Ruled By: CHIGUMBA J

SC91-20 : CONSTANTINE CHIMAKURE and ALPHA MEDIA HOLDINGS PL vs AMBASSADOR AGRIPPA MUTAMBARA and ESTER MUTAMBARA Ruled By: GOWORA JA, MAKONI JA and BERE JA

SC103-20 : VERITAS and FIRINNE TRUST ALSO KNOWN AS VERITAS vs ZIMBABWE ELECTORAL COMMISSION and MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS and ATTORNEY GENERAL OF ZIMBABWE Ruled By: GOWORA JA, GUVAVA JA and BHUNU JA

HH177-17 : GILBERT JONGA vs NYASHA CHABATA Ruled By: CHATUKUTA J

HH04-10 : MYDALE INTERNATIONAL MARKETING (PVT) LTD vs DR ROB KELLY and HAMMER AND TONGUES (PVT) LTD Ruled By: GOWORA J

HH283-17 : IGNATIUS MASAMBA vs THE SECRETARY – JUDICIAL SERVICE COMMISSION and MERCY GORONGOZA Ruled By: CHITAPI J

HH318-15 : DAVID JACK and OTHERS vs LLOYD MUSHIPE (in his capacity as joint executor of Estate Late Keresia Jack) and OTHERS Ruled By: CHITAKUNYE J

HH417-18 : STUTTAFORDS REMOVALS (PVT) LTD vs ZIMBABWE ASSET MANAGEMENT CORPORATION (PVT) LTD and YCOB INVESTMENTS (PVT) LTD Ruled By: CHIKOWERO J

HH442-15 : DAVID WHITEHEAD TEXTILES LTD (represented by KNOWLEDGE HOFISI, in his capacity as Final Judicial Manager) vs JYOTSANAGEN KALA and LISTON CHAKUPA and MASTER OF THE HIGH COURT Ruled By: MAFUSIRE J

Appealed HH64-12 : SHADRECK MOYO AND 13 ORS vs J. LARRY HOFFMAN and CENTRAL AFRICAN BATTERIES (PVT) LTD Ruled By: KUDYA J

HH47-08 : TSITSI MUZENDA vs PATRICK KOMBAYI and ZIMBABWE ELECTORAL COMMISSION Ruled By: KUDYA J

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

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

HH551-15 : W AND D CONSULTANTS (PRIVATE) LIMITED vs SEAN THOMAS NIELSON DORAN Ruled By: DUBE J

HH978-15 : IGNATIUS MASAMBA vs SECRETARY-JUDICIAL SERVICE COMMISSION Ruled By: MUNANGATI-MANONGWA J

HH159-12 : URMILLA GIGA vs ALBION PROPERTIES and MESSENGER OF COURT HARARE and APPLISET INVESTMENTS (PVT) LTD Ruled By: UCHENA J

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

SC40-15 : INDIUM INVESTMENTS (PVT) LTD vs KINGSHAVEN (PVT) LTD and DANIEL SHUMBA and LINDA SHUMBA Ruled By: CHIDYAUSIKU CJ, GWAUNZA JA, GOWORA JA, HLATSHWAYO JA and MAVANGIRA AJA

SC46-17 : ANDREW MAGARASADZA and 34 OTHERS vs FREDA REBECCA GOLD MINE HOLDINGS LTD t/a FREDA REBECCA GOLD MINE and ASSOCIATED MINE WORKERS UNION OF ZIMBABWE Ruled By: MAVANGIRA JA

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

View Appeal HH220-11 : THE GOSPEL OF GOD CHURCH INTERNATIONAL 1932 vs SIMBA MUKAMBIRWA and OTHERS Ruled By: MAVANGIRA J

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

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

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

Appealed SC14-21 : MAXWELL SIBANDA vs ZAMBE NYIKA GWASIRA and NZ INDUSTRIAL and MINING SUPPLIES and REGISTRAR OF DEEDS and SHERIFF OF ZIMBABWE Ruled By: GOWORA JA, GUVAVA JA and BHUNU JA

View Appeal HH677-14 : MAXWELL SIBANDA vs ZAMBE NYIKA/GWASIRA and REGISTRAR OF DEEDS and EVERJOY MEDA Ruled By: MATANDA-MOYO J

HH298-17 : ZAMBE NYIKA GWASIRA vs MAXWELL SIBANDA and N.Z. INDUSTRIAL & MINING SUPPLIES and REGISTRAR OF DEEDS and SHERIFF OF ZIMBABWE Ruled By: MATANDA-MOYO J

SC16-22 : CHURCH OF GOD OF PROPHECY(INTERNATIONAL) vs CHURCH OF GOD PROPHECY AND OTHERS Ruled By: BHUNU JA, MATHONSI JA and CHITAKUNYE JA

SC20-21 : TIMOTHY MUYAMBO vs HORTBAC PL t/a LITTLE FLOWER ENTERPRISES and JAMES CHIYANGWA and RONALD KITULI and TENDAI BONGA and MINISTER OF LANDS, AGRICULTURE AND RURAL RESETTLEMENT Ruled By: CHITAKUNYE AJA

HB04-15 : BULAWAYO CITY COUNCIL vs TRISHUL PROPERTIES Ruled By: TAKUVA J

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

Appealed HH405-20 : ROBIN VELA vs AUDITOR GENERAL OF ZIMBABWE N.O. and BDO ZIMBABWE CHARTERED ACCOUNTANTS (whose partners are Ngoni Kudenga, Gladman Sabarauta, Martin Makaya, Gilbert Gwatiringa and Jonas Jonga) Ruled By: CHINAMORA J

HH272-22 : SLASHWOOD MINING (PVT) LTD and ZENIT GROUP LIMITED vs ONTAGE RESOURCES (PVT) LTD Ruled By: ZHOU J

HB09-15 : LEAST SUPPLIES (PVT) LTD t/a L.S. CELLULAR and L.S. CAPITAL vs T.I.B. INSURANCE BROKERS and HERITAGE INSURANCE COMPANY Ruled By: TAKUVA J

Appealed HH287-20 : PENELOPE STONE and RICHARD BEATTIE t/a THE STONE/BEATTIE STUDIO vs CENTRAL AFRICAN BUILDING SOCIETY and RESERVE BANK OF ZIMBABWE and MINISTER OF FINANCE & ECONOMIC DEVELOPMENT Ruled By: ZHOU J

View Appeal HH534-18 : RIOZIM (PVT) LTD vs TRUST BANK CORPORATION LTD (IN LIQUIDATION) Ruled By: KWENDA J

HH390-17 : DEPOSIT PROTECTION CORPORATION (as Provisional Liquidator of TRUST BANK CORPORATION LTD) vs RIOZIM LIMITED Ruled By: CHIWESHE JP

SC93-21 : RINOS TERERA vs GEORGE LOCK and CK HOLLAND t/a HOLLAND ESTATE AGENT and ZIMBABWE HOUSING COMPANY (PVT) LTD and THE REGISTRAR OF DEEDS Ruled By: CHITAKUNYE AJA

HH94-16 : THE MILTON GARDENS ASSOCIATION and SYRIL MUPANGURI vs TECLA MVEMBE and CHAMPION CONSTRUCTORS (PVT) LTD and REGISTRAR OF DEEDS, HARARE and THE SURVEYOR GENERAL Ruled By: DUBE J

SSC111-21 : MUNYARADZI KEREKE vs THE STATE and FRANCIS MARAMWIDZE Ruled By: MWAYERA JA

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HH516-14 : CHEN WANG vs JOSEPH MANDIZHA and TAWANDA MAVHUNGA and TAFADZWA MAVHUNGA and DARNEL ENTERPRISES (PRIVATE) LIMITED
Ruled By: MATHONSI J

HH203-15 : ASSWELL GURUPIRA and JEAN GURUPIRA vs EARTHMOVING & CONSTRUCTION COMPANY PL and and SANDRA MUIR and REGISTRAR OF DEEDS and THE SHERIFF and THE DEPUTY SHERIFF
Ruled By: MTSHIYA 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

HH241-18 : CLOVER LEAF MOTORS GROUP (PRIVATE) LIMITED vs BUTHOLEZWE ZHOU and PATRICE SHAYAMANO
Ruled By: CHITAKUNYE J

HH223-13 : HWANGE COLLIERY CO. LTD and HWANGE COAL GASIFICATION CO. PL vs HWANGE COAL GASIFICATION CO. PL and TENDAI SAVANHU and KINGDOM BANK LTD and STANBIC BANK LTD and GUO FENG and ORS
Ruled By: MAFUSIRE 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

HH213-15 : BERNARD DUMBURA vs CHIEF LANDS OFFICER (MASH CENTRAL) (NO) and GEORGE MANYAME
Ruled By: NDEWERE J

HH396-18 : NELSON MAUREDE AND 16 OTHERS vs TREGER PRODUCTS (PVT) LTD
Ruled By: MANGOTA J

SC62-20 : THANDO NCUBE vs FIDELITY PRINTERS AND REFINERIES (PRIVATE) LIMITED
Ruled By: MAKARAU JA

SSC59-19 : PROSECUTOR-GENERAL OF ZIMBABWE vs INTRATREK ZIMBABWE PL and WICKNELL CHIVAYO and L. NCUBE N.O.
Ruled By: PATEL JA

HH485-16 : PUWAYI CHIUTSI LEGAL PRACTITIONERS vs THE REGISTRAR OF THE HIGH COURT and THE TAXING OFFICER
Ruled By: CHIGUMBA J

SC91-20 : CONSTANTINE CHIMAKURE and ALPHA MEDIA HOLDINGS PL vs AMBASSADOR AGRIPPA MUTAMBARA and ESTER MUTAMBARA
Ruled By: GOWORA JA, MAKONI JA and BERE JA

SC103-20 : VERITAS and FIRINNE TRUST ALSO KNOWN AS VERITAS vs ZIMBABWE ELECTORAL COMMISSION and MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS and ATTORNEY GENERAL OF ZIMBABWE
Ruled By: GOWORA JA, GUVAVA JA and BHUNU JA

HH177-17 : GILBERT JONGA vs NYASHA CHABATA
Ruled By: CHATUKUTA J

HH04-10 : MYDALE INTERNATIONAL MARKETING (PVT) LTD vs DR ROB KELLY and HAMMER AND TONGUES (PVT) LTD
Ruled By: GOWORA J

HH283-17 : IGNATIUS MASAMBA vs THE SECRETARY – JUDICIAL SERVICE COMMISSION and MERCY GORONGOZA
Ruled By: CHITAPI J

HH318-15 : DAVID JACK and OTHERS vs LLOYD MUSHIPE (in his capacity as joint executor of Estate Late Keresia Jack) and OTHERS
Ruled By: CHITAKUNYE J

HH417-18 : STUTTAFORDS REMOVALS (PVT) LTD vs ZIMBABWE ASSET MANAGEMENT CORPORATION (PVT) LTD and YCOB INVESTMENTS (PVT) LTD
Ruled By: CHIKOWERO J

HH442-15 : DAVID WHITEHEAD TEXTILES LTD (represented by KNOWLEDGE HOFISI, in his capacity as Final Judicial Manager) vs JYOTSANAGEN KALA and LISTON CHAKUPA and MASTER OF THE HIGH COURT
Ruled By: MAFUSIRE J

Appealed
HH64-12 : SHADRECK MOYO AND 13 ORS vs J. LARRY HOFFMAN and CENTRAL AFRICAN BATTERIES (PVT) LTD
Ruled By: KUDYA J

HH47-08 : TSITSI MUZENDA vs PATRICK KOMBAYI and ZIMBABWE ELECTORAL COMMISSION
Ruled By: KUDYA J

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

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

HH551-15 : W AND D CONSULTANTS (PRIVATE) LIMITED vs SEAN THOMAS NIELSON DORAN
Ruled By: DUBE J

HH978-15 : IGNATIUS MASAMBA vs SECRETARY-JUDICIAL SERVICE COMMISSION
Ruled By: MUNANGATI-MANONGWA J

HH159-12 : URMILLA GIGA vs ALBION PROPERTIES and MESSENGER OF COURT HARARE and APPLISET INVESTMENTS (PVT) LTD
Ruled By: UCHENA J

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

SC40-15 : INDIUM INVESTMENTS (PVT) LTD vs KINGSHAVEN (PVT) LTD and DANIEL SHUMBA and LINDA SHUMBA
Ruled By: CHIDYAUSIKU CJ, GWAUNZA JA, GOWORA JA, HLATSHWAYO JA and MAVANGIRA AJA

SC46-17 : ANDREW MAGARASADZA and 34 OTHERS vs FREDA REBECCA GOLD MINE HOLDINGS LTD t/a FREDA REBECCA GOLD MINE and ASSOCIATED MINE WORKERS UNION OF ZIMBABWE
Ruled By: MAVANGIRA JA

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

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HH220-11 : THE GOSPEL OF GOD CHURCH INTERNATIONAL 1932 vs SIMBA MUKAMBIRWA and OTHERS
Ruled By: MAVANGIRA J

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

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

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

Appealed
SC14-21 : MAXWELL SIBANDA vs ZAMBE NYIKA GWASIRA and NZ INDUSTRIAL and MINING SUPPLIES and REGISTRAR OF DEEDS and SHERIFF OF ZIMBABWE
Ruled By: GOWORA JA, GUVAVA JA and BHUNU JA

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HH677-14 : MAXWELL SIBANDA vs ZAMBE NYIKA/GWASIRA and REGISTRAR OF DEEDS and EVERJOY MEDA
Ruled By: MATANDA-MOYO J

HH298-17 : ZAMBE NYIKA GWASIRA vs MAXWELL SIBANDA and N.Z. INDUSTRIAL & MINING SUPPLIES and REGISTRAR OF DEEDS and SHERIFF OF ZIMBABWE
Ruled By: MATANDA-MOYO J

SC16-22 : CHURCH OF GOD OF PROPHECY(INTERNATIONAL) vs CHURCH OF GOD PROPHECY AND OTHERS
Ruled By: BHUNU JA, MATHONSI JA and CHITAKUNYE JA

SC20-21 : TIMOTHY MUYAMBO vs HORTBAC PL t/a LITTLE FLOWER ENTERPRISES and JAMES CHIYANGWA and RONALD KITULI and TENDAI BONGA and MINISTER OF LANDS, AGRICULTURE AND RURAL RESETTLEMENT
Ruled By: CHITAKUNYE AJA

HB04-15 : BULAWAYO CITY COUNCIL vs TRISHUL PROPERTIES
Ruled By: TAKUVA J

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

Appealed
HH405-20 : ROBIN VELA vs AUDITOR GENERAL OF ZIMBABWE N.O. and BDO ZIMBABWE CHARTERED ACCOUNTANTS (whose partners are Ngoni Kudenga, Gladman Sabarauta, Martin Makaya, Gilbert Gwatiringa and Jonas Jonga)
Ruled By: CHINAMORA J

HH272-22 : SLASHWOOD MINING (PVT) LTD and ZENIT GROUP LIMITED vs ONTAGE RESOURCES (PVT) LTD
Ruled By: ZHOU J

HB09-15 : LEAST SUPPLIES (PVT) LTD t/a L.S. CELLULAR and L.S. CAPITAL vs T.I.B. INSURANCE BROKERS and HERITAGE INSURANCE COMPANY
Ruled By: TAKUVA J

Appealed
HH287-20 : PENELOPE STONE and RICHARD BEATTIE t/a THE STONE/BEATTIE STUDIO vs CENTRAL AFRICAN BUILDING SOCIETY and RESERVE BANK OF ZIMBABWE and MINISTER OF FINANCE & ECONOMIC DEVELOPMENT
Ruled By: ZHOU J

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HH534-18 : RIOZIM (PVT) LTD vs TRUST BANK CORPORATION LTD (IN LIQUIDATION)
Ruled By: KWENDA J

HH390-17 : DEPOSIT PROTECTION CORPORATION (as Provisional Liquidator of TRUST BANK CORPORATION LTD) vs RIOZIM LIMITED
Ruled By: CHIWESHE JP

SC93-21 : RINOS TERERA vs GEORGE LOCK and CK HOLLAND t/a HOLLAND ESTATE AGENT and ZIMBABWE HOUSING COMPANY (PVT) LTD and THE REGISTRAR OF DEEDS
Ruled By: CHITAKUNYE AJA

HH94-16 : THE MILTON GARDENS ASSOCIATION and SYRIL MUPANGURI vs TECLA MVEMBE and CHAMPION CONSTRUCTORS (PVT) LTD and REGISTRAR OF DEEDS, HARARE and THE SURVEYOR GENERAL
Ruled By: DUBE J

SSC111-21 : MUNYARADZI KEREKE vs THE STATE and FRANCIS MARAMWIDZE
Ruled By: MWAYERA JA