Urgency re: Approach iro Time, Consequent and Remedial Alternative Considerations of Urgency

HB18-12 : ALECS HWEKWETE and JUDY HWEKWETE vs RENAISSANCE MERCHANT BANK LTD
Ruled By: NDOU J

The applicants seek a provisional order in the following terms:“Terms of the final order soughtThat you show cause why a final order should not be granted in the following terms:1. The sale in execution of immovable property, namely, Lot 8 of Lot 37A Lochview situate in the district of Bulawayo ...

The applicants seek a provisional order in the following terms:

“Terms of the final order sought

That you show cause why a final order should not be granted in the following terms:

1. The sale in execution of immovable property, namely, Lot 8 of Lot 37A Lochview situate in the district of Bulawayo measuring 5,427 square metres in pursuance of the judgment under case number HC237/11 be and is hereby stayed pending the final determination of case number HC221/12 and the subsequent applicant for suspension of sale of an immovable property.

2. The 1st respondent pays the costs of this application.

Interim order granted

That pending the final determination of this application, it is ordered that:

3. The 1st and 2nd respondents, or any of their authorized officers, be and are hereby ordered to stop the sale in execution of the immovable property described in paragraph 1 herein pending the final conclusion of this application.”

The salient facts of the matter are the following:

On or about 5 November 2009, at the instance and request of CMS Leather (Pvt) Ltd trading as Footwear and Rubber Industries (“Footwear and Rubber Industries”), the first respondent lent/and advanced a sum of US60,000 to the former. That loan was secured by a special hypothecation over Lot 8 of Lot 37A Lochview (“Lot 8”) also known as Number 3 Hill Road Lochview, Bulawayo. The applicants were also guarantors to the loan, and, to that effect, signed unlimited guarantees in favour of the first respondent.

Based on the agreement between the parties, a bond was registered over Lot 8 with the consent and acceptance of the applicants which bond provided for foreclosure proceedings should the loan remain unpaid.

On the basis of that, the loan was then disbursed to Footwear and Rubber Industries.

When Footwear and Rubber Industries defaulted, the first respondent called up the bond and issued summons against the guarantors in January 2011 claiming the sum of US$73,447=69 with interest at the rate of 42,5% compounded daily and an order declaring Lot 8 executable.

The applicants filed an appearance to defend on 10 February 2011 leading to an application for summary judgment on 28 March 2011. That application was not opposed, and, on 21 April 2011, judgment was granted in favour of the first respondent against the applicants.

On 18 July 2011, Lot 8 was attached by the Deputy Sheriff pursuant to a warrant of execution that had been issued by the first respondent.

Thereafter, the applicants approached their erstwhile legal practitioners. Nothing was done by the applicants from July 2011 to December 2011. The applicants only sprung into action on 15 December 2011 when they saw that Lot 8 was advertised for sale for 16 December 2011.

They filed an application in terms of Rule 348A(5a) to suspend and/or stop the sale on the basis that a reasonable offer had been made of US$1,500 a month with effect from 31 December 2011 and that the sale would cause undue hardship to them.

That application was opposed the very next day as it was improperly before the court.

The sale was however cancelled by the Deputy Sheriff for some other reason unrelated to that application. That application was withdrawn by the applicants on 3 January 2012.

Thereafter, Lot 8 was once more advertised for sale by the Deputy Sheriff on 5 January 2012 for 27 February 2012.

From 5 January 2012 to 20 January 2012, the applicants did nothing. It was only on 20 January 2012 that they filed an application for condonation for the late filing of their intended application in terms of Rule 348A(5a). The application was served on the first respondent on 20 January 2012.

On 24 January 2012, the present urgent chamber application was issued and served on the first respondent.

The first respondent raised points in limine which I propose to consider in turn.

(i) The first point is whether the application is urgent.

The applicants seek an interdict under a certificate of urgency. In CABS v Ndlovu HH03-06, CHATUKUTA J rightly pointed out that:

“Applicant is required to satisfy the court that irreparable harm may be suffered by the applicant if the matter is not dealt with urgently and that applicant should have treated the matter urgently.”

See also Triangle Ltd v ZIMRA HB12-11 and Kuvarega v Registrar General 1998 (1) ZLR 188 (H).

It is not the arrival of the date of reckoning that matters.

As alluded to above, the applicants were served with the notice of execution on 18 July 2011. The latter was, therefore, the time to act. They did nothing from July until 15 December 2011. They only acted a day before the date of the advertised sale.

When the sale was cancelled, they once more did nothing until 3 January 2012 when they withdrew their flawed application of 15 December 2011. They did not simultaneously, or soon thereafter, file another application until the first respondent re-advertised the sale of Lot 8.

After the latter sale was advertised, on 5 January 2012, they waited for several days before filing the current application on the eleventh hour.

It is evident that all along the applicants were acting in snail's pace, so to speak, and were only prompted into action by the arrival of the date of reckoning. They simply did not treat their matter urgently.

The attempt to blame their erstwhile legal practitioners is not helpful as such dilatoriness persisted even under the current legal practitioners.

The applicants have all along been represented by legal practitioners and even brief an advocate at some point yet there was no urgency shown on their part. There is no explanation proffered for the non-timeous action: Kuvarega v Registrar General 1998 (1) ZLR 188 (H) and Mutizhe v Ganda & Ors SC17-09.

In the absence of such acceptable explanation, the matter cannot be treated as urgent whatever the prospects of success may be: see also Bosman Transport Works Committee & Ors v Piet Bosman Transport (Pty) Ltd 1980 (4) SA 794 (A)…, and Viking Woodwork (Pvt) Ltd v Bluebells Enterprises (Pvt) Ltd 1998 (2) ZLR 249 (S)…,.

Taking all the above factors into consideration, the applicants failed to make a case for the matter to be dealt with urgently.

On this point alone, without going into the merits, the application is dismissed with costs.

SC46-16 : HWANGE COLLIERY COMPANY LTD vs TENDAI MAKUTE and DEPUTY SHERIFF, HWANGE
Ruled By: CHIDYAUSIKU CJ, GOWORA JA and HLATSHWAYO JA

After perusing papers filed of record and hearing counsel in this matter we allowed the appeal with costs. We indicated therein that our reasons would follow in due course. These are they.

The respondent was formerly employed by the appellant. Sometime in September 2012, the appellant obtained approval from the Ministry of Labour to send a number of employees on retrenchment.

The respondent was one of those affected by the exercise.

On 23 August 2012, the parties agreed a retrenchment package to be paid to the employees. The appellant, for reasons not germane to these proceedings, did not pay out.

On 19 March 2014, the respondent, under Case No. HC627/14, filed a chamber application to have the retrenchment package thus agreed registered by the High Court in Bulawayo. On 3 April 2014, the High Court issued an order against the appellant as follows:-

1. The Registrar of the High Court is directed to register the Retrenchment Award made in favour of the applicant as an order of this court.

2. The respondent shall pay to the applicant the sum of US$34,318=52 due to him in terms of such award.

3. The respondent shall pay the costs of this application.

The respondent then caused a writ of execution to be issued by the High Court. The Deputy Sheriff executed the writ and attached properties belonging to the appellant in satisfaction of the debt.

Upon service of the writ, the appellant attempted negotiations with the respondent to stay execution of the writ - to no avail. On 9 May 2014, seven days after being served with the writ, the appellant filed an urgent application to have the writ of execution stayed.

The application was dismissed by the High Court on the grounds that it was not urgent.

This appeal lies against that dismissal.

In sum, the appellant attacks the judgment on the grounds that the Court erred in the following respects:

(a) In holding, that, the appellant was aware of the registration of an award when in fact there was no such award;

(b) In failing to appreciate, that, the writ was premised on an order obtained ex parte without notice to the appellant;

(c) In failing to appreciate, that, the appellant only became aware of the order on 2 May 2014 upon service of the writ, and, that, consequently, the appellant had acted speedily in filing the application for stay of execution;

(d) In holding, as it did, that the application was prompted by, firstly, the imminent removal of its goods, and, secondly, the appellant's inability to pay its obligations in terms of the award when there was no award;

(e) In holding, as it did, that, the fact that the appellant might have owed the respondent was the only decisive factor and that the procedure by which the payment was sought was inconsequential.

The court a quo concluded, that, the application for a stay of execution of the writ was not urgent on two bases:

(i) The first was the appellant was aware, not only of the existence of “the award” but also of its registration and yet took no action in relation thereto.

(ii) The second basis was that the appellant had, as far back as September 2012, been aware of its financial obligations viz a vis the retrenchment packages and had made no effort whatsoever to pay the retrenchees.

The court therefore reasoned, that, due to the above circumstances, the only motive for the application was the appellant's inability to pay and its desire to postpone the imminent removal of its property in execution of the writ.

I intend to dispose, first, of the question of the registration of the award.

The order in relation to the said award was issued by the High Court on 3 April 2014. The order was premised on a chamber application filed on 19 March 2014.

It is common cause, that, the application itself was never served on the appellant.

The contention is made, that, the learned judge who granted the application had raised a query on the failure to serve the application on the appellant. It is further common cause, that, in answer to the query the respondent's legal practitioner informed the judge that the application was procedural and therefore there was no need to serve the application.

As is evident from the record, this was inaccurate.

The order granted dealt with substantive issues, including an order for the payment of a specified sum of money to the respondent. Thus, the application could not, in any circumstance, be termed procedural.

Although an application for the rescission of the order in question has been filed and is still pending, the court a quo made certain findings relating to the order in disposing of the application for a stay which make it necessary to comment briefly on the order.

The first relates to the conclusion that the appellant was aware of the retrenchment award.

There was in fact no award.

What was in place was an agreed retrenchment package which was subsequently approved by the Retrenchment Board in the Ministry of Public Service Labour and Social Planning. It was this package that was placed before the High Court for registration as an award.

It is this registration that the appellant contends was irregular.

Indeed, from the record, it is not clear upon what premise the High Court was requested to register the said award, and, in addition, how it was empowered to do so.

In basing the perceived lack of urgency on the said award, the High Court misdirected itself.

I turn next to the finding by the court a quo that there was no urgency in the application due to the awareness by the appellant, as far back as September 2012, of its financial obligations, and, that, as a result, there was no urgency.

The retrenchment package in question does not reflect the name of the respondent.

It was an agreement between the representatives of the appellant, as employer, and the representatives of non-managerial employees of the appellant. The agreement sets out the modalities of calculating the packages. It does not set out specific amounts for payment as retrenchment dues. Nor does it spell out any individual packages for payment by the appellant.

The monetary value for payment to the respondent appears to have been compiled by ZIMRA.

No explanation for its origin is evident on the application.

It therefore begs the question how the appellant could have been aware of a specific obligation to the respondent personally, or any of its employees, under these circumstances.

Lastly, the issue that falls for resolution is whether or not the appellant delayed in instituting the application to have the writ stayed.

The order in terms of which the award “was registered” was granted on 3 April 2014, but, in view of the lack of notice, the appellant only became aware of it on 2 May 2014 when the Deputy Sheriff served it with a writ. On 9 May 2014, the chamber application to stay execution was filed and served on the respondent.

The matter was set down for hearing on 15 May 2014 but could not proceed on that date because the parties' legal practitioners advised the judge that they were exploring an out of court settlement, which, unfortunately, came to naught.

The matter was heard on 6 June 2014, on which date the learned judge dismissed the application.

He reasoned, that, the matter could not be urgent merely because the applicant said it was urgent.

He indicated, that, the application had been filed solely to delay and frustrate the writ of execution sought to be enforced by the Deputy Sheriff.

I am convinced, that, the learned judge erred and misdirected himself.

All the facts point to the order having been obtained in an irregular manner. There was no award made in favour of the respondent which was capable of being registered.

The High Court is a superior court with inherent jurisdiction but does not have the power to register a retrenchment award in the circumstances under which this order was made.

The order itself was obtained without notice to the appellant.

The Rules of the High Court 1971 provide, in Rule 226, for the nature of an application and the circumstances when such application is permissible.

Rule 226 reads:

“226. Nature of applications

(1) Subject to this rule, all applications made, for whatever purpose, in terms of these rules or any other law, other than applications made orally during the course of a hearing, shall be made -

(a) As a court application, that is to say, in writing to the court on notice to all interested parties; or

(b) As a chamber application, that is to say, in writing to a judge.

(2) An application shall not be made as a chamber application unless -

(a) The matter is urgent and cannot wait to be resolved through a court application; or

(b) These rules or any other enactment so provide; or

(c) The relief sought is procedural or for a provisional order where no interim relief is sought only; or

(d) The relief sought is for a default judgment or a final order where -

(i) The defendant or respondent, as the case may be, has previously had due notice that the order will be sought, and is in default; or

(ii) There is no other interested party to the application; or

(iii) Every interested party is a party to the application; or

(e) There are special circumstances which are set out in the application justifying the application.”

The chamber application filed by the respondent, for the registration of the retrenchment award, was not permitted under the Rules.

The matter was not filed under a certificate of urgency, and could not, therefore, be said to be urgent.

The relief sought was not a default judgment.

The appellant had not previously had notice that the respondent would be seeking the order in question. Nor could the appellant be said to have been in default after due notice to itself.

The appellant was an interested party.

There were no special circumstances cited justifying the application.

It cannot be over-emphasised, that, in proceeding as he did, the respondent was in clear breach of the Rules.

The failure to bring a court application instead of a chamber application could have been forgiven had the respondent given notice of the application to the appellant by ensuring that it was served upon the latter.

The respondent's legal practitioner, in clear breach of the Rules, then proceeded to have the matter referred to a judge in chambers without service of the same on the appellant.

The learned judge before whom the application was placed was alive to the need for service of the chamber application upon the appellant.

In my view, the learned judge ought not to have so easily accepted the explanation from the respondent's legal practitioner, that, the matter was of a procedural nature, and that, consequently, service of the application was not required.

The Rules provide that a chamber application shall be served upon all interested parties.

The Rules then set out the circumstances under which service may be dispensed with.

Rule 242 is pertinent and reads in relevant part:

“242. Service of chamber applications

(1) A chamber application shall be served on all interested parties unless the defendant or respondent, as the case may be, has previously had due notice of the order sought and is in default or unless the applicant reasonably believes one or more of the following -

(a) That the matter is uncontentious in that no person other than the applicant can reasonably be expected to be affected by the order sought or object to it;

(b) That the order sought is -

(i) A request for directions; or

(ii) To enforce any other provision of these Rules in circumstances where no other person is likely to object; or [Paragraph substituted by S.I.25 of 1993]

(b) That there is a risk of perverse conduct in that any person who would otherwise be entitled to notice of the application is likely to act so as to defeat, wholly or partly, the purpose of the application prior to an order being granted or served;

(d) That the matter is so urgent and the risk of irreparable damage to the applicant is so great that there is insufficient time to give due notice to those otherwise entitled to it;

(e) That there is any other reason, acceptable to the judge, why such notice should not be given.

(3) Where an applicant has not served a chamber application on another party because he reasonably believes one or more of the matters referred to in paragraphs (a) to (e) of subrule (1) -

(a) He shall set out the grounds for his belief, fully, in his affidavit; and

(b) Unless the applicant is not legally represented, the application shall be accompanied by a certificate from a legal practitioner setting out, with reasons, his belief that the matter is uncontentious, likely to attract perverse conduct, or urgent for one or more of the reasons set out in paragraphs (a), (b), (c), (d) or (e) of subrule (1).”

In casu, the nature of the relief sought and obtained was not “uncontentious.”

The order granted by the court affected the rights of the appellant as it made provision for the payment of a sum of money. The appellant would reasonably be expected to object to it. It was not an order for directions nor was its purpose to enforce a provision of the Rules. Finally, there was no allegation that service of the application upon the appellant would result in perverse conduct on the part of the appellant.

In sum, therefore, there was no explanation on the papers for the decision not to serve the application upon the appellant.

This, again, constituted a serious and grievous breach of the Rules of the High Court.

In addition to being a breach of the Rules, the failure to serve the application was also a fundamental breach of the audi alteram partem rule, which requires that every person must be afforded an opportunity to be heard in his own cause.

This Court, like the High Court, has powers of review which are exercisable when it comes to the notice of the court, or a judge, that, an irregularity has occurred during proceedings before a lower court or tribunal or in the making of a decision by such lower court or tribunal.

The court's powers of review are spelt out in section 25 of the Supreme Court Act [Chapter 7:13] which reads:-

“25 Review powers

(1) Subject to this section, the Supreme Court, and every judge of the Supreme Court, shall have the same power, jurisdiction, and authority as are vested in the High Court, and judges of the High Court, respectively, to review the proceedings and decisions of inferior courts of justice, tribunals and administrative authorities.

(2) The power, jurisdiction, and authority conferred by subsection (1) may be exercised whenever it comes to the notice of the Supreme Court, or a judge of the Supreme Court, that, an irregularity has occurred in any proceedings or in the making of any decision notwithstanding that such proceedings are, or such decision is not the subject of an appeal or application to the Supreme Court.

(3) Nothing in this section shall be construed as conferring upon any person any right to institute any review, in the first instance, before the Supreme Court or a judge of the Supreme Court, and provision may be made in rules of court, and a judge of the Supreme Court may give directions, specifying that any class of review or any particular review shall be instituted before or shall be referred or remitted to the High Court for determination.”

The application for the registration of the retrenchment award was fraught with irregularities.

It was filed as a chamber application when the respondent should more properly have filed a court application. It was not served upon the appellant who was the party with a clear interest in grant of the order. Lastly, the nature of the award itself is such that it was not capable of registration.

It is not evident, from the High Court, what nature of jurisdiction it was exercising in registering the award.

The registration of the award was not only irregular, the manner in which the registration was sought was also irregular.

It is trite, that, this court is not a court of first instance, and, therefore, its review powers can only be exercised within the context of section 25 of the Supreme Court Act above.

As the powers in question were exercised in the determination of an appeal it is only appropriate that the remedy be provided in terms of section 22 of the Supreme Court Act [Chapter 7:13].

Section 22 of the Supreme Court Act reads:

“22 Powers of Supreme Court in appeals in civil cases

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

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

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

(i) n/a;

(ii) n/a;

(iv) n/a;

(v) n/a;

(vi) n/a;

(vii) n/a;

(viii) n/a;

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

In terms of section 22(1)(ix) of the Supreme Court Act, this Court is empowered to take a course which is aimed at achieving a just, speedy, and inexpensive settlement of the case.

It was evident to both parties to the dispute, and the Court, that, the irregularities were such that to subject the appellant to further litigation to have the registration of the retrenchment package set aside would be unjust.

In the exercise of the powers of the Supreme Court, in terms of section 25 and section 22 of the Supreme Court Act [Chapter 7:13], it is only just and proper, that, the order for registration be set aside. The writ is also set aside as having been premised on an irregular order.

What was before the High Court was an application for the grant of a provisional order. The applicant thereto merely had to establish a prima facie case.

However, it is evident, that, in considering the chamber application, the High Court went beyond an examination of the dispute on a prima facie basis. It went to the root of the dispute and made findings of fact and conclusions of law. In the event, it would have served no purpose to issue a provisional order under these circumstances. The merits of the entire application having been considered, it was only proper, that, in allowing the appeal, an order setting aside the writ be granted.

It was for these reasons that we allowed the appeal with costs and granted an order in favour of the appellant.

The appellant filed its application a mere seven days after becoming aware of the default judgment. In my view, there were more than ample grounds for the grant of an order staying execution of the writ on an urgent basis.

In the premises, the following order will issue:

“IT IS ORDERED THAT:

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

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

(i) The registration of the retrenchment award with the High Court, under case No HC627/14, is hereby set aside as being irregular.

(ii) The warrant of execution against the appellant's property, issued under case No HC627/14, is hereby set aside as it is based on an order granted in an irregular manner.

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

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

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

“Terms of the provisional order granted

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

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

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

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

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

“Terms of the final order sought

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

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

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

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

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

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

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

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

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

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

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

This application is opposed.

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

(i)...,.

(ii)...,.

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

Urgency

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

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

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

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

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

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

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

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

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

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

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

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

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

The subsequent correspondence between the parties is instructive.

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

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

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

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

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

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

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

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

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

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

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

In that context, therefore, one may be inclined to rule that the matter is indeed urgent.

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

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

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

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

That is a non-issue.

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

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

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

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

HHH242-13 : LEE WAVERLEY JOHN vs THE STATE and SIMON RODGERS KACHAMBWA N.O.
Ruled By: MAFUSIRE J

This is an urgent chamber application. The applicant seeks a provisional order for a stay of the criminal trial against him in the Magistrate's Court pending the determination of his application for review which is pending in this court.

The applicant was charged with fraud as defined in section 136 of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. It was alleged that he had unlawfully misrepresented that he was the new owner or director of a certain company - the original owners and directors of which had emigrated. The applicant was alleged to have fraudulently drawn up certain company documents and filing them with the Registrar of Companies. The prejudice was said to have been caused to the good reputation and good administration of the Registrar of Companies.

At the close of the State case, the applicant applied for a discharge in terms of section 198(3) of the Criminal Procedure and Evidence Act [Chapter 9:07] (the CP & E Act). The application was based on alleged glaring defects in the charge and the evidence led.

The application was refused. That was on 22 May 2013.

On 9 July 2013, the applicant filed the application for review challenging the magistrate's decision to put him on his defence.

On 16 July 2013, the trial magistrate, who in these proceedings is cited as the second respondent, filed an opposing affidavit. He simply stated that the application was opposed in its entirety and that the review application could not stop the continuation of the trial. Reference was made to the Supreme Court case of Attorney-General v James Chafungamoyo Makamba SC74-04, a judgment of ZIYAMBI JA, a copy of which the magistrate apparently intended to attach. However, he inadvertently attached the cyclostyled judgment by CHEDA JA in the other Supreme Court case of Attorney–General v James Chafungamoyo Makamba SC41-04.

On 18 July 2013, the applicant applied to the magistrate for a stay of the trial pending the determination of the review application.

That application was also refused. The magistrate ruled that he would not stop the proceedings unless an order to that effect was obtained from this court. He directed that the trial would continue on 14 August 2013.

On 24 July 2013, the applicant filed this urgent chamber application. The interim relief sought was that the trial proceedings in the Magistrate's Court be stayed pending the determination of the application for review.

I heard the application on 1 August 2013. Both parties were agreed that the matter was urgent.

SC83-21 : DOMBO CHIBANDA and PINGO KANDORORO and JOHN KANDWE vs CITY OF HARARE
Ruled By: HLATSHWAYO JA

When a party brings an unsavoury situation upon himself, by taking a lackadaisical approach to litigation in which he is involved, and showing utter disinterest for a long time, the arrival of the day of reckoning does not create a calamity in respect of which the court should drop everything ...

SC101-21 : EQUITY PROPERTIES (PVT) LTD vs ALSHAMS GLOBAL BVI LIMITED and REGISTRAR OF DEEDS
Ruled By: BHUNU JA, UCHENA JA and KUDYA AJA

This is an appeal against part of the judgment of the High Court of Zimbabwe sitting at Harare on 20 November 2019 granting an interim interdict in favour of the first respondent.THE FACTSThe appellant and the first respondent have been engaged in a flurry of litigation, and, at other times, ...

This is an appeal against part of the judgment of the High Court of Zimbabwe sitting at Harare on 20 November 2019 granting an interim interdict in favour of the first respondent.

THE FACTS

The appellant and the first respondent have been engaged in a flurry of litigation, and, at other times, with Interfin Banking Corporation Ltd in liquidation (the Bank) in both the High Court and in this Court. Some of the cases have been concluded while others are still pending.

The facts relevant to this appeal are narrow.

On 16 March 2018, in HC2463/18, the appellant brought motion proceedings against the first respondent seeking vindication of its original title deed no. 9068/2008, which pertains to Lot 3 of Bannockburn (the immovable property), within 10 days of the grant of the order failing which the second respondent was to issue a duplicate replacement deed within 90 days of that order.

The order was granted, purportedly in default of the first respondent, on 6 June 2018.

On 18 July 2018, while the application for rescission of the default judgment was pending, the appellant obtained the duplicate replacement title deed from the second respondent.

The first respondent filed three urgent chamber applications to stop the second respondent from issuing the replacement deed and one court application to prevent the appellant from using it.

The three urgent applications were all removed from the roll for lack of urgency while the court application was withdrawn.

The default judgment, upon which the replacement deed was issued, was rescinded a quo, in terms of Rule 449 of the High Court Rules 1971, on 21 November 2018.

The appellant duly appealed against the rescission of the judgment of the court a quo to this Court. The appeal was dismissed with costs on the higher scale on 7 October 2019 in case number SC924/18 for two reasons:

(i) The first was that the substituted service, upon which the rescinded judgment was based, had been effected on legal practitioners who did not have the mandate to represent the first respondent.

(ii) The second was that the order for substituted service had, by consent of the parties, been rescinded by this Court in SC733/18 on 25 March 2019.

It was common cause that the appellant used the duplicate title deed to subdivide an undisclosed number of Stands on Lot 3 of Bannockburn. He also used it to conclude an undisclosed number of agreements of sale with purchasers such as Conradie Tinofirei Mutumbuki, the third respondent in the application for rescission, on 11 October 2019, and to transfer title thereof to three purchasers, one of which was David Madyausiku who took transfer on 12 April 2019.

On 21 October 2019, the first respondent filed the urgent chamber application which has given rise to this appeal. It sought, in the interim, the return of the replacement deed to the second respondent; its cancellation by the second respondent; and the setting aside of all transactions based on it.

On the return date, it sought confirmation of the interim relief and costs de bonis propriis on the higher scale against the appellant's legal practitioner of record, one Mr Kwaramba.

On 29 October 2019, the appellant opposed the application.

It also filed a counter urgent chamber application in terms of Rule 229A of the High Court Rules, 1971. It raised five preliminary points. These were;

(i) That one of the urgent chamber applications that had been removed from the roll was lis pendens;

(ii) There was material non-disclosure of all the urgent applications that had been removed from the roll and the court application that had been withdrawn;

(iii) The application was not urgent;

(iv) There was non-joinder of third parties who had benefited from transactions based on the replacement title deed; and

(v) Lastly, that the relief in the interim order was the same as the one in the final order.

On the merits, it sought the dismissal of the application.

In the counter application, the appellant sought the retention of the replacement deed in the interim and determination of the lawfulness of the first respondent's possession of the original title deed on the return date.

It indicated its avowed intention to utilize the replacement deed to conduct further subdivisions, conclude more agreements of sale, and transfer the subdivisions that had been sold.

One such purchaser was Conrad Tinofirei Mutumbuki, who was joined in the proceedings on his own motion as the third respondent at the hearing on 29 October 2019 and made common cause with the appellant.

The first respondent also raised the preliminary point of lack of urgency against the counterclaim and sought its dismissal on the merits.

THE FINDINGS A QUO

The court a quo dismissed all the preliminary points raised by the appellant.

While it regarded one of the urgent chamber applications that had been removed from the roll to be pending at the instance of the first respondent, it found the cause of action and relief sought to be different from those before it.

It found the non-disclosure of prior urgent chamber applications and court application irrelevant to the determination of whether the main application was urgent.

It held, that, as the appellant had only impugned the interim relief pertaining to the setting aside of all transactions based on the replacement deed, and not the surrender and cancellation relief as final in effect, it could exercise its Rule 240 discretion to grant interim relief that was not final in effect.

It proceeded to do so by suspending, rather than cancelling, all the transactions predicated upon the replacement deed.

The court a quo further determined, that, the relief sought did not seek to stop past events but “recent and ongoing events.”

It also relied on the provisions of Rule 87 to find that the non-joinder of the third parties who purchased or took transfer of the purchased subdivisions was not inimical to their rights and interests as they were not involved in the procurement of the impugned replacement deed.

Lastly, it found that the first respondent had acted with speed after the decision of this Court of 7 October 2019 to launch the urgent chamber application after the subsequent ten-day negotiations for the voluntary surrender of the replacement deed failed.

Under the consequence factor, it held, that, the first respondent had established that the failure to intervene on an urgent basis would result in the attenuation and dissipation of the immovable property to the detriment of the first respondent's rights in the security pending litigation in HC8113/16, the consolidated case under which the application for rescission had also been incorporated.

Regarding the counter-application, it upheld the preliminary point of lack of urgency that was raised by the first respondent and struck it off the roll with costs on the higher scale.

On the merits of the main application, the court a quo was cognisant of the fact that the issue before it concerned the legality of the possession of the duplicate title deed by the appellant and not the legality of the possession of the original title deed by the first respondent.

It held, that, the appellant had fraudulently procured the duplicate title deed through a deliberate omission of the timeous opposition to its application in HC2463/18 from the bundle of documents for default judgment and the improper appeal against the rescission of the default judgment.

It reasoned that the appellant had done so for the twin purposes of obtaining and utilizing the duplicate deed to undertake the transactions it could not do without the original title deed; such as, the advertisements for the sale of Stands, the conclusion of agreements of sale, and the transfer of the Stands.

It also determined, that, the rescission of the default judgment restored the status quo ante, thereby effectively maintaining and preserving the first respondent's possession of the original deed and preventing the appellant from utilizing the duplicate deed to attenuate and dissipate the security by subdividing, selling, and transferring any subdivisions.

Lastly, it held that the first respondent had established all the requirements for a mandamus.

It therefore granted the provisional order for the return of the duplicate deed to the second respondent for cancellation and suspended all pending activities founded on the subdivisions, agreements of sale, and transfers of title predicated upon the duplicate title deed.

The appellant was accordingly estopped from effectuating all activities based on the duplicate title deed.

The court a quo reserved the nature and level of costs for the return day.

GROUNDS OF APPEAL

Aggrieved by the determination a quo, the appellant sought the setting aside of the order in the main application only and its substitution by a dismissal of the urgent chamber application with costs on the following four grounds of appeal:

“1. The court a quo erred in concluding that the 1st respondent's application was urgent when the 'time' and 'consequence' factors of urgency were not satisfied.

2. The court a quo erred in granting the relief of an interdict when all the requirements of an interdict were not met.

3. The court a quo grossly misdirected itself by granting a final interdict on an interim basis.

4. The court a quo grossly misdirected itself by purporting to interdict past events done pursuant to the replacement title deed.”

It is noteworthy that the appellant did not appeal against the striking off order against its counter urgent chamber application.

THE ISSUES

It was common cause that the issues for determination that arise from the grounds of appeal are:

1. Whether the court a quo correctly determined that the matter was urgent.

2. Whether the requirements of an interim interdict were satisfied.

3. Whether or not the court a quo granted a final interdict when the first respondent had sought an interim order....,.

On the merits, the appellant contended that the court a quo erred in holding;

(i) Firstly, that, the time to act commenced soon after this Court's judgment of 7 October 2019 rather than 18 July 2018, when the replacement title deed was issued by the second respondent; and

(ii) Secondly, that, the continued use of the replacement deed to subdivide, sell, and transfer the subdivisions constituted an irreversible dissipation of the immovable property secured by the collateral held by the first respondent.

It submitted, that, the previous attempts, in HC5466/19 and HC7769/19, to stop the use of the replacement deed negated the “time and consequence” based urgency by the time the provisional order was sought on 21 October 2019, since the dissipation of the immovable property, which began in 2008, was known to the first respondent from March 2012 when it took possession of the original deed.

On the consequent aspect, the appellant argued, that, the failure a quo to determine whether the tender of security in lieu of the original deed negated any irremediable harm arising from the indebtedness claimed in HC8113/16, which had been fully ventilated by the parties, constituted a fatal misdirection warranting interference with its discretion on appeal.

The appellant further submitted, that, as the immovable property was not hypothecated, it could not constitute security for the Bankers Acceptances.

It strongly contended, that, the absence of irreparable harm therefore negated the finding a quo of urgency.

The appellant further impugned the finding that the first respondent had established a prima facie case for granting the provisional order.

It assailed the existence of a prima facie entitlement, though open to some doubt, to possess the original title deed pending determination of HC8113/16, on four grounds:

(i) Firstly, the absence of a debtor-creditor relationship;

(ii) Secondly, the absence of a cession between the two protagonists;

(iii) Thirdly, that the appellant had discharged its obligations in full to the Bank; and

(iv) Lastly, that possession of the original title deed was contrary to the Security Trust Deed and Assignment Agreement between the first respondent and the Bank.

The appellant also emphasized, that, as the title deed was not the subject of the claim in HC8113/16, nor encumbered, the purported tender of the bond of security countervailed the existence of actual or reasonable apprehension of harm.

It further argued, that, the balance of convenience favoured the appellant in that it had earned US$15 million from the sale of 300 stands on which third parties had invested a further US$18m, which, in aggregate, significantly eclipsed the claim of US$2.3m in HC8113/16.

It boasted of its ability to pay the claimed amount in the event liability was established.

Lastly, the appellant contended, that, the court a quo improperly granted final relief on an interim basis on a lower onus, which did not protect its rights pending HC8113/16.

Per contra, the first respondent contended, that, the court a quo had correctly found that the first respondent established both the “time and consequence” factors of urgency and all the four requirements for the grant of an interim interdict.

Counsel for the first respondent further argued, that, the provisional order was not final in form or substance as it was premised on the determination of HC8113/16, which was pending before the High Court.

THE LAW

The treatment of whether an application is urgent is a matter in the discretion of the court a quo.

This Court has very limited grounds upon which it can interfere with the exercise of that discretion. It can do so where the lower court makes a mistake on the law or the facts; acts upon a wrong principle; allows extraneous considerations to influence its decision; fails to take into account relevant facts; or, more generally, makes a decision that is irrational: see Hama v National Railways of Zimbabwe 1996 (1) ZLR 664 (S)…,; Barros & Anor v Chimpondah 1999 (1) ZLR 58 (S)…,; and Econet Wireless (Pvt) Ltd v Trust Co Mobile (Pty) Ltd & Anor SC43-13.

The law on what constitutes urgency is settled.

Urgency is manifested by either a time or consequence dimension: see Kuvarega v Registrar-General & Anor 1998 (1) 188 (H)…,; Document Support Centre (Pvt) Ltd v Mapuvire 2006 (2) ZLR 240 (H); Gwarada v Johnson & Ors 2009 (2) ZLR 159 (H); and Sitwell Gumbo v Porticullis (Pvt) Ltd t/a Financial Clearing Bureau SC28-14…,.

In addition, in Econet Wireless (Pvt) Ltd v Trust Co. Mobile (Pty) Ltd & Anor SC43-13…, GARWE JA,…, further suggested that an urgent chamber application in which the interim relief is similar to or has the same effect as the final relief prayed for may justifiably be found to be not urgent.

While he generally approved the position articulated in Kuvarega v Registrar General & Anor 1998 (1) 188 (H), at 193A-C, he underscored that such an application could not be regarded as a nullity and stated that:

“Whilst no hard and fast rule can be laid down, there may well be cases where a court would be justified in holding, in such a situation, that the application is not therefore urgent and that it should be dealt with as an ordinary court application. There may also be cases where the court, as it is empowered to do…, may amend the relief sought in order to grant…, interim protection (and) obviate a situation where final relief is granted by way of a provisional order.”

It is apparent, that, the consequence dimension pre-supposes that the harm sought to be protected in an impending matter would be amorphously irremediable without the interim indulgence.

In Chiwenga v Mubaiwa SC86-20…, this Court further highlighted the incongruence of noting an appeal against a finding of urgency for the basic reason that the finding of urgency is a mere procedural device used by an applicant to jump the queue of other pending matters for a consideration of the merits. This Court reasoned that:

“Looked at differently, an order granting the urgent hearing of a matter is generally not appealable. This is for the simple reason that the order has no bearing on the merits of the application or judgment. This is akin to a bank customer who is, rightly or wrongly, allowed to jump the queue. His or her transaction cannot be impugned or rendered unlawful solely on the basis that he or she has jumped the queue. By the same token, a correct judgment cannot be impugned or rendered incorrect by the mere fact that the matter was improperly heard as an urgent application.”

In Nyakutombwa Mugabe Legal Counsel v Mutasa & Ors SC28-18…, this Court held that a finding of urgency by a court, on its own, cannot constitute a substantive ground of appeal.

In our law, a pledge vests real rights of security in the property pledged to the pledgee. This was pertinently pronounced by MFALILA J in Hughes v Lotriet 1985 (2) ZLR 179 (H)…, thus:

“This valid pledge, therefore, had the effect of conferring on the applicant (the pledgee) a real right in the articles pledged and this right can only terminate when the pledge is extinguished. The pledge is extinguished only after the original or principal obligation is discharged….,. Until this is done, the respondent, as pledgor, has no right of action either for their return or damages for their loss.”

The requirements and purpose of an interim interdict are also well settled in this jurisdiction.

It seeks to protect an existing right from unlawful infringement that is either continuing or reasonably anticipated: see Mayor Logistics (Pvt) Ltd v Zimbabwe Revenue Authority CC07-14; Setlogelo v Setlogelo 1914 AD 221…,; and Tribac (Pvt) Ltd v Tobacco Marketing Board 1996 (2) ZLR 52 (S).

In the latter case, this Court stated…, that:

“An application for a mandamus or 'mandatory interdict' as it is often termed, can only be granted if all the requisites of a prohibitory interdict are established: see Lipschitz v Wattrus NO 1980 (1) SA 662 (T) at 673C-D; Kaputuaza & Anor v Executive Committee of the Administration for the Hereros & Ors 1984 (4) SA 295 (SWA) at 317E. These are:

1. A clear or definite right - this is a matter of substantive law.

2. An injury actually committed or reasonably apprehended - an infringement of the right established and resultant prejudice.

3. The absence of a similar protection by any other ordinary remedy. The alternative remedy must -

(a) Be adequate in the circumstances;

(b) Be ordinary and reasonable;

(c) Be a legal remedy; and

(d) Grant similar protection.”

In respect of an interim interdict, where the right sought to be protected is not clear “a right which 'though prima facie established, is open to some doubt'” suffices: see Eriksen Motors (Welkom) Ltd v Warrenton & Anor 1973 (3) SA 685 (A)…,.

Where a clear right is established, the applicant is precluded from establishing a well-grounded apprehension of irreparable harm, but must do so where only a prima facie right open to some doubt is established: see Pinkstone Mining (Pvt) Ltd & Ors v Lafarge Cement (Pvt) Ltd & Anor HH118-18…,.

Bankers Acceptances (BAs) meet the definition of a bill of exchange espoused in the Bills of Exchange Act [Chapter 14:02] (section 3(1)): A bill of exchange is an unconditional order in writing, addressed by one person to another, signed by the person giving it, requiring the person to whom it is addressed to pay on demand, or at a fixed or determinable future time, a sum certain in money to, or to the order of, a specified person, or to bearer.

The Bills of Exchange Act also defines certain correlative terms to a bankers acceptance such as 'acceptance' 'bearer' 'delivery' 'endorsement holder' and 'payment in due course'.

“acceptance” means an acceptance completed by delivery or notification;

“bearer” means the person in possession of a bill or note which is payable to bearer;

“delivery” means transfer of possession, actual or constructive, from one person to another;

“endorsement” means an endorsement completed by delivery;

“holder” means the payee or endorsee of a bill or note, who is in possession of it, or the bearer thereof;

“payment in due course” means payment made at or after the maturity of a bill to the holder thereof in good faith and without notice that his title to the bill is defective.

APPLICATION OF THE LAW TO THE FACTS

The appellant submitted, that, the court a quo mis-applied the time aspect and failed to consider the “consequence” factor.

The ratio of the court a quo on these two aspects is delineated on p13 of the appealed judgment in these words:

“Notwithstanding that the order that enabled the first respondent to procure a duplicate title deed was effectively nullified by the Supreme Court on 7 October 2019, the first respondent (appellant) is still refusing to return the replacement copy of the title deed in terms of which it subsequently subdivided and sold parts of the property as evidenced by the agreement of sale in the third respondent's (Mutumbuki) notice of opposition, hence, first respondent is effectively in the process of developing and dissipating Stands to individual purchasers.

From the papers, applicant engaged the first respondent from 7th to 17th October 2019 but first respondent has made it clear that it wants to hold onto the replacement title deed at all costs to further its apparent unlawful activities of dissipating the immovable property before resolution of case HC8113/18 (sic).

It becomes prudent for this court to intervene, on an urgent basis, to force the first respondent to return the duplicate title deed and for the duplicate title deed to be cancelled, if necessary, to prevent first respondent from alienating the property or disposing of its title in the said immovable property pending litigation between the parties before MUSHORE J.”

The above sentiments are unassailable.

Before the order of this Court of 7 October 2019, all prior urgent applications to stop the issuance and use of the replacement deed by the second respondent were hamstrung by the extant default judgment that permitted the appellant to obtain the replacement deed.

The patently erroneous default judgment had been given a lease of life by the improper appeal lodged by the appellant against the order of rescission.

Notwithstanding that the service by substitution order upon which the default judgment was based was, by consent, rescinded by this Court on 25 March 2019, the appellant brazenly utilized the replacement deed to transfer a Stand on the immovable property to Madyausiku on 12 April 2019.

And, despite the confirmation, again by this Court, of the rescission of the default judgment, on 7 October 2019, which, by operation of law, rendered the replacement deed inefficacious, the appellant perverted the default judgement and the replacement deed by concluding an agreement of sale for a Stand on the immovable property with, amongst others, Mutumbuki, on 11 October 2019.

In its opposing affidavit, the appellant persisted with its avowed intention to continue using the replacement deed to subdivide, sell, and transfer Stands on the immovable property.

We are satisfied that the court a quo properly applied both the time and consequent factors of urgency.

The exercise of its discretion, on the question of urgency, is unassailable.

Again, on the authority of this Court in Nyakutombwa Mugabe Legal Counsel v Mutasa & Ors SC28-18 and Chiwenga v Mubaiwa SC86-20, the first ground of appeal is not only ill-conceived and misplaced but also devoid of merit.

HH02-21 : ERNEST MHAMBARE vs ALFRED MWAZHA and OTHERS
Ruled By: MUREMBA J

Following a leadership dispute in the African Apostolic Church (VaApostora VeAfrica) which is the tenth respondent in this matter, the applicant approached this court, by way of a court application in case number HC2402/20 for a relief.

He petitioned the court, in his capacity as an interested party, reverend and church member, for a declaratur to set aside the purported appointment of the first respondent, Alfred Kushamisa Mwazha as the successor to the founder and Archbishop of the church, Paul Ernest Mamvuru Mwazha (Paul Mwazha) now a centurion at 102 years.

The first respondent (Alfred Mwazha) together with the second, third and fourth respondents (Ngoni Mwazha, Masimba Mwazha and James Mwazha) are sons of Paul Mwazha.

Whilst the first (Alfred Mwazha) and fourth (James Mwazha) respondents are bishops in the church, the second respondent (Ngoni Mwazha) is a former member and bishop of the church.

The third respondent (Masimba Mwazha) is a Seventh Day Adventist.

The rest of the respondents, from the fifth to the ninth respondents (Richard Juru, Elson Tafa, Charles Tekeshe, Lovemore Mharadze and Norman Siyamuzhombwe), hold high ranking positions in the church, the tenth respondent (African Apostolic Church (VaApostora VeAfrica)).

I must particularly mention that the fifth respondent (Richard Juru) is the General Secretary of the church....,.

In HC2402/20, it was the applicant's contention, that, the first respondent (Alfred Mwazha) usurped power by seeking to ascend to the position of Archbishop and leader of the tenth respondent (African Apostolic Church (VaApostora VeAfrica)) unconstitutionally, contrary to the provisions of the tenth respondent's Constitution.

He contended, that, the first respondent acted in connivance with the second to ninth respondents (Ngoni Mwazha, Masimba Mwazha, James Mwazha, Richard Juru, Elson Tafa, Charles Tekeshe, Lovemore Mharadze and Norman Siyamuzhombwe) in usurping power.

The applicant contended, that, the first respondent was purporting to have been appointed by the Archbishop as his successor.

Although the respondents opposed the application, CHITAPI J made a finding, that, the note the respondents were relying upon did not support their claim that the Archbishop nominated or appointed the first respondent as successor. He granted the following order on 3 December 2020:

“1 The purported nomination and/or appointment of the first respondent, as the Archbishop or successor to the Archbishop of the tenth respondent, presently Ernest Paul Mamvura Mwazha, is unconstitutional vis–a-vis the 10th respondent's Constitution, and, resultantly, is null and void.

2. Any appointments and re-assignments of personnel made by the 1st respondent, and other actions which changed the administration of the church made by the 1st respondent, in the purported position of Archbishop, are null and void.

3. The respondents are each and all of them ordered to comply with the provisions of clause 9.2.2 of the 10th respondent's Constitution in regard to the succession dispute bedeviling the 10th respondent. The respondents must comply with this order within seven (7) days of the date of this order.

4. The 1st to 9th respondents, jointly and severally, the one paying the other to be absolved, shall pay costs of this application on a party and party scale.”

Dissatisfied or aggrieved by the judgment of this court, the respondents noted an appeal, under SC552/2020, on 11 December 2020.

In turn, the applicant, on 17 December 2020, filed the present urgent chamber application for leave to execute pending appeal.

It is the applicant's contention, that, since noting the appeal, the first to ninth respondents (Alfred Mwazha, Ngoni Mwazha, Masimba Mwazha, James Mwazha, Richard Juru, Elson Tafa, Charles Tekeshe, Lovemore Mharadze and Norman Siyamuzhombwe) have been harassing him and other members of the church. They have been violently disrupting church services together with their followers. They have taken over the church structures and have been influencing their followers to disrupt church gatherings and places of worship.

He then referred to some specific incidents which I will refer to later on in the judgment.

The applicant averred, that, he wants peace and tranquillity.

In response to the application, the respondents raised two (2) points in limine....,.

I now revert to the points in limine raised by the respondents. As I have already stated elsewhere above, the respondents raised two (2) points in limine:

(i) Firstly, that the matter is not urgent....,.

Urgency

The respondents averred that the matter should not be treated as urgent because the applicant is seeking leave to execute an order that was granted in an ordinary application on an urgent basis.

They averred, that, although the face of the judgment speaks of an urgent application, the matter was brought as an ordinary court application which shows that the applicant himself accepted that the matter was not urgent at the time that he filed it.

The applicant did not dispute that the matter was brought as an ordinary application and not as an urgent application.

The respondents averred, that, the certificate of urgency does not demonstrate the urgency of the matter save to make bald allegations of urgency. They averred, that, the applicant did not, in the founding affidavit, demonstrate how and when the urgency arose. The respondents averred, that, more importantly, no evidence was placed before the court to show that there was violence and what the form of violence was. They contended that it seems that the applicant is bent on having an application for leave to execute on an urgent basis when there is no such urgency.

In the certificate of urgency, it is stated, that, the respondents filed the appeal with the aim of abusing, victimising, and harassing members of the church.

The applicant, and over a hundred thousand members of the church, have been suffering the brunt of the respondents continuous violence and illegal actions and there is nowhere to run.

It was further averred, that, the applicant acted with urgency.

The notice of appeal was filed on 11 December 2020 and the said infractions had happened during the course of the previous week. There is imminent danger to the applicant's rights, most importantly the right to gather, freedom of assembly, and freedom of conscience. If the respondents are allowed to persist with their unlawful conduct it will lead to further violence, injury, and destruction of property.

In the founding affidavit, the applicant averred, that, the first to ninth respondents have been waging a war against church members.

They have been using groups of supporters to ferment violent habits, disrupt church services, and alienate church property. The places of worship have been turned into places of conflict. Vulnerable members, such as orphans, widows, the aged, and children are now unable to attend church services because of the violence. Their rights to freedom of assembly, association, and conscience as enshrined in sections 58 and 60 of the Constitution of Zimbabwe Act 2013 need to be protected and preserved pending appeal.

The applicant contended, that, there is danger of irreparable prejudice to him and hundreds of thousands of other church members in several countries and the ill Archbishop.

The applicant averred that he acted at the earliest opportunity in bringing this application.

Counsel for the applicant submitted, that, the applicant did not waste time in protecting his rights because the disruption of churches happened from 4 December 2020 up to 10 December 2020. The notice of appeal was filed on 11 December 2020 and the violence continued up to 14 December 2020. The application was then filed on 17 December 2020.

She further submitted, that, by noting the appeal, the respondents wanted to disobey the court order as it is frivolous and vexatious.

I find merit in the objection by the respondents.

The certificate of urgency, and the founding affidavit, do not inform why the application for leave to execute has to be heard on an urgent basis given that the main matter giving rise to this application was brought and heard as an ordinary application.

The judgment thereof by CHITAPI J shows that the hearing started on 31 July 2020 and the judgment was handed down on 3 December 2020. In between the two dates, the matter was heard on 5 August and 14 August 2020.

The question that comes to mind is how then can execution thereof become urgent all of a sudden?

A matter is urgent, if, at the time the need to act arises, the matter cannot wait: see Kuvarega v Registrar General & Anor 1998 (1) ZLR 188 (H).

In other words, time being of the essence in urgent matters, the applicant should act when the need to act arises.

The certificate of urgency, and the founding affidavit, must therefore exhibit urgency in the manner that the applicant reacted to the events or situation complained of.

If the situation complained of has been existing for a significant time before the application is made, the matter is not urgent: see Gwarada v Johnson & Ors 2009 (2) ZLR 159 (H).

In casu, the anarchy in the church is what necessitated the filing of the present application.

The applicant is basically complaining about physical violence in the church, disruption of church services, and alienation of church property.

Despite his founding affidavit being 16 pages long, he only referred to three (3) specific incidents.

The rest are generalised averments about people fighting in the church over public address systems and other property of the church.

There are also averments about people having resorted to leaving children, wives, and the sick at home fearing violence at church.

It is not stated where and when this happened. The specific perpetrators thereof are not mentioned.

The following are the specific incidents that the applicant referred to:

On 5 December 2020, there was violence at Hopely Circuit, Zone 6, Harare. One Chikono came with a group of people to disrupt church service. They claimed to be acting for and on behalf of the first respondent. A case of assault was opened under RRB4620501 by the victim.

In Mutare, the weekend after the judgment was delivered, all church services were disrupted. People appointed into leadership positions by the first respondent tried to forcefully take control of church proceedings, resulting in resistance from the congregation. This led to violence erupting. Police had to be called to maintain peace and order during services.

The applicant also referred to an assault incident that allegedly happened on 27 October 2020 at Caledonia Farm African Apostolic Church, Eastview Circuit. One Onias Sibanda assaulted one Hatidani Maphosa and a police report was made at Mabvuku Police station under RRB4539885.

These incidents show, that, the anarchy in the church has been ongoing since October 2020 - well before the judgment was delivered on 3 December 2020. It continued even after the judgment had been passed and before the appeal was noted on 11 December 2020.

The incident of 5 December 2020 is pertinent.

Even after the appeal was noted, the anarchy is said to have continued. This has been a continuing state of affairs, with the bulk of the incidents complained of having happened before the appeal was noted on 11 December 2020.

The matter cannot therefore be urgent.

The applicant did not act when the need to act arose, as far back as October 2020, right up to the time the appeal was noted on 11 December 2020.

His application does not exhibit urgency in the manner that he reacted to the events or situation complained of.

The events or situations complained of were in existence for a significant time before the application was made. The matter cannot therefore suddenly become urgent because the respondents have filed an appeal.

To make matters worse, other than generalised averments, the applicant refers to no specific incident that happened after the 11th of December 2020 - after the appeal was filed.

Therefore, the applicant has not laid any foundation for his contention, that, since noting the appeal, the first to ninth respondents, together with their followers, have been harassing him and other members of the church by violently disrupting church services and taking over the church structures.

The matter cannot therefore be urgent.

Appealed
SC126-21 : PATRICIA DARANGWA vs JULIET KADUNGURE and ANDERSON KADUNGURE and NERIA KADUNGURE and MASTER OF THE HIGH COURT OF ZIMBABWE
Ruled By: MAKONI JA, MATHONSI JA and MWAYERA JA

This is an appeal against the whole judgment of the High Court, delivered on 5 March 2021, interdicting the appellant, in the interim, from administering the estate of the late Genius Kadungure among other relief.After hearing submissions from counsel, we dismissed the appeal with costs and stated that the reasons ...

This is an appeal against the whole judgment of the High Court, delivered on 5 March 2021, interdicting the appellant, in the interim, from administering the estate of the late Genius Kadungure among other relief.

After hearing submissions from counsel, we dismissed the appeal with costs and stated that the reasons for doing so would follow. What follows hereunder are those reasons.

THE FACTS

During his lifetime, Genius Kadungure was a colourful and prominent businessman with business interests in Zimbabwe, Botswana, and South Africa. He died tragically in a motor vehicle accident on 8 November 2020 at the age of 36.

At his funeral, the appellant, who is an administrator of deceased estates at Regional Executors & Trust (Pvt) Ltd, approached the first, second, and third respondents brandishing an unsigned “Will” allegedly prepared by herself on the instructions of the deceased a few weeks before he died.

The first and third respondents are the sisters of the deceased while the second respondent is his father. They shall be referred to either as the deceased's relatives or as the respondents.

The appellant persuaded the relatives of the deceased to accept the unsigned document as the last will and testament of the deceased. She also persuaded them to accept her appointment as the executrix of the deceased estate.

In due course, and following a meeting convened by the Master of the High Court, who is the fourth respondent herein, the appellant was appointed as the executrix. She was issued with Letters of Administration on 1 December 2020.

Meanwhile, the unsigned “will” was also accepted and registered by the fourth respondent.

The deceased estate of the late Genius Kadungure was then to be administered and wound up in terms of that document.

The appellant hit the ground running as she immediately entertained a claim of a Lamborghini Aventador Roadster Motor Vehicle, registration number ZM03, belonging to the estate, from one Nomatter Zinyengere.

I mention, in passing, that, that name does not appear anywhere in the unsigned will. In fact, that motor vehicle, which for some unclear reason is the only property specifically mentioned in that document, was bequeathed to one “Kit Kat”.

Without reference to the Master of the High Court, and without submitting any liquidation and distribution account for approval by the Master, the appellant sent what she called the “first interim liquidation and distribution account” to Nomatter Zinyengere's lawyers in which she demanded a payment of $48,230 from him in return for the release of the Lamborghini motor vehicle.

That interim account only contained the Lamborghini motor vehicle and no other property of the deceased. It also did not take into account any liabilities of the estate.

Nomatter Zinyengere must have paid the appellant what she demanded, because, by letter dated 27 January 2021, addressed to one Michael Mubaiwa at the deceased's mansion in Domboshava, the appellant directed that the motor vehicle be handed over to his lawyer.

It is then that the deceased's relatives sought legal advice.

As up to then, they had not been furnished with a copy of the Will, they unsuccessfully requested one from the appellant, including the minutes of the meeting held on 25 November 2020 at the Master's Office. They only got copies from the fourth respondent.

PROCEEDINGS IN THE COURT A QUO

The respondents brought an urgent application before the court a quo for interim relief interdicting the appellant from dealing with or administering the estate. On the return date, they seek a review of the fourth respondent's decision to accept the unsigned document as the Will of the deceased. They also seek the reversal of the appellant's appointment as the executrix testamentary of the estate.

The respondents case was that the appellant used undue influence to persuade them to accept the unsigned document as the deceased's will and to accept her appointment as the executrix. She had dissuaded them from seeking legal counsel regarding the will. She had claimed to be their lawyer who would handle the estate when she is not even a lawyer.

According to the respondents, they reluctantly worked with the appellant even though they had questions about the Will.

Their fears were confirmed when the appellant had, with indecent haste, proceeded to attempt to dispose of the Lamborghini motor vehicle during the lockdown period without following due process. The whole exercise was suspicious given that there was no detailed inventory of the estate property and no distribution account was submitted and approved by the Master of the High Court.

The respondents also complained about the manner in which the appellant was handling the estate in Botswana.

To them, the matter was urgent as the appellant had to be stopped in her tracks before causing more damage, especially as there are trucks in South Africa belonging to the estate which were in danger of disappearing if the issue of executorship remained unresolved.

In opposing the application, the appellant's case was that the matter was not urgent because the facts complained of occurred four months earlier. Her contention was that the respondents voluntarily consented to the Master's decision to accept the unsigned document as the deceased's will knowing it did not meet the requirements of the Will's Act [Chapter 6:06]. The appellant insisted that the respondents also consented to her appointment as the executrix of the estate.

In her view, the requirements of an interim interdict were not met.

Regarding the issue of the Lamborghini motor vehicle, while admitting that she had initially approved its release, the appellant contended, that, she later realized that she had not advertised the interim distribution account. For that reason, she had rescinded her decision to release the motor vehicle. The appellant admitted, further, that, her decision to do so was also informed by the reprimand she got from the fourth respondent.

It was the appellant's contention that the application was without merit. She sought its dismissal with costs.

The court a quo acknowledged, that, the respondents should have filed a separate application for review. It however took the view that the matter was so urgent that the court had to dispense with most of the formalities provided for in the Rules. This was so because of the then prevailing Covid 19 lockdown and Practice Direction Number 4 of 2021 which proscribed the filing of new cases and only permitted the filing of urgent cases.

The court a quo's view was that urgency stemmed from the appellant's rush to conclude part of the administration of the estate. In addition, she had advertised the estate in newspapers which action amounted to legal processes with legal consequences in the event of failure to act upon them.

Given the nature of the document being used to administer the estate, its emergence at the funeral, and the circumstances of its acceptance raised a red flag; the court a quo found that the respondents had a cause of action against the appellant. It found that, by her own admission, the appellant had tried to jump the gun in allowing the release of the Lamborghini motor vehicle.

Accordingly, the risk of irreparable harm was palpable and the balance of convenience favoured the beneficiaries. The court a quo then granted interim relief aforesaid.

PROCEEDINGS ON APPEAL

The appellant was riled by the judgment of the court a quo. She noted this appeal on the following grounds:

1. The court a quo erred in determining that the first to third respondents cause was deserving of an urgent hearing when the facts actuating the first to third respondents complaint had subsisted for well over 4 months.

2. The court a quo also erred in granting the first to third respondents an interdict in circumstances where such respondents had other satisfactory remedies available to them in terms of section 8 of the Wills Act and section 30 of the Administration of Estates Act.

3. The court a quo further erred in granting audience to a party which had, by express words and direct acts, accepted the appointment of the appellant and decision of the fourth respondent. In consequence, the court a quo erred in exercising jurisdiction in a matter redolent with material disputes of fact not resoluble on the papers.

4. The court a quo grossly misdirected itself in holding, that, it had the jurisdiction to bar the appellant from the administration of the estate of the late Genius Kadungure in South Africa when the court a quo has no jurisdiction over the South African assets of the deceased.

5. The court a quo erred in finding that the appellant used undue influence to compel the first to third respondents to accept the deceased's null absent any evidence disputed by the appellant. (sic)

6. On a point of law, the court a quo erred in its formulation of the order it handed down on the 5th of March 2021. In the court a quo's reasoning, it postulates the granting of interim relief. However, the order handed down is final in nature.

On the foregoing grounds, the appellant moved for the success of the appeal with costs and dismissal of the application a quo with costs....,.

ISSUES FOR DETERMINATION

Although there are six grounds of appeal, only two (2) issues commend themselves for determination in this appeal. They are:

1. Whether the court a quo erred in finding that the application was urgent....,.

The question of urgency cannot possibly be a live issue on appeal. This is so because the judge a quo was imbued with judicial discretion whether to hear the matter as urgent or not. Having exercised her discretion in favour of the respondents, given the appellant's conduct of disposing of the property of the estate without following the proper liquidation process, that became water under the bridge.

Without satisfying the requirements for interference, on appeal, with the exercise of discretion, the appellant cannot pursue the question of urgency before this Court.

Happily, counsel for the appellant did not motivate that issue at all before this Court.

View Appeal
HH85-21 : JULIET KADUNGURE and ANDERSON KADUNGURE and NERIA KADUNGURE vs PATRICIA DARANGWA and MASTER OF THE HIGH COURT OF ZIMBABWE (N.O.)
Ruled By: CHIRAWU-MUGOMBA J

This matter was placed before me as an urgent chamber application having been filed on the 23rd of February 2021. Upon receipt, I gave directions for the filing of notices of opposition and opposing affidavits as well as heads of argument.

The second respondent did not file a notice of opposition, and, as a result, the court took it that he will abide by the decision rendered.

The applicants, through the urgent chamber application, seek an interdict, and, on the return date, a review.

Ordinarily, an application for review should be filed separately, but, given the prevailing COVID lockdown and Practice Direction Number 4, under which ordinary applications were not accepted for filing, I accepted the urgent application hence gave directives.

Let me hasten to say, that, this case is peculiar and should not be viewed as setting a precedent that review applications can be commenced through an urgent chamber application.

The first to the third applicants are, respectively, sister, father, and sister of one Genius Kadungure who passed away on the 8th of November 2020 (hereinafter the deceased).

The factual background to the application can be summarised as follows:

The deceased was a well to do person who had business interests in Zimbabwe, Botswana, and South Africa. The first respondent approached the family of the applicants, at the funeral, with a document that she purported was a Will of the deceased though it was not signed. Using undue influence, the applicants accepted the document as the last will and testament of the deceased and recommended the appointment of the first respondent as the executrix of the estate of the deceased.

The first respondent dissuaded the applicants from seeking legal advice indicating that she was also their lawyer.

The second respondent accepted the document as the last Will and testament of the deceased in terms of the Wills Act and also appointed the first respondent as the executor. This was followed by the issuance of Letters of Administration to the first respondent dated the first of December 2020.

The applicants reluctantly worked with the first respondent though they had questions over the will - a copy of which was never furnished to them.

After seeking legal advice, they approached the first respondent who refused to furnish them with a copy of the Will and minutes of a meeting held on the 25th of November 2020. They only managed to obtain copies from the second respondent.

To note is that the Will, which was drafted by the first respondent, confers executorship on her.

She, during the lock down period, attended to disposal of the deceased's Lamborghini motor vehicle in what they term 'hazy' circumstances. This was despite the fact, that, there was no detailed inventory and there was no confirmed distribution account.

FNB Bank in Botswana, where the deceased held an account for his company called Quick Gases (Pvt) Ltd, had extended a loan that had been unpaid since the demise of the deceased. He also left assets in South Africa, in the form of trucks, that were in danger of disappearing if the issues of executorship remained unresolved.

The first respondent had, on the 5th of February 2021, advertised an interim distribution account stating, falsely, that such was lying for inspection at the offices of the second respondent. The latter admonished the first respondent over her false claim.

There is litigation in Botswana over the legitimacy of the first respondent's executorship.

The applicants seek an interim interdict prohibiting any administration of the deceased's estate pending the return date upon which a review of the second respondent's decision to appoint the first applicant as the executrix, and to accept the document in question, will be sought.

The grounds for review are framed as illegality/absence of jurisdiction; fraud; speculation; malpractice; and gross irregularity.

The applicants are further concerned by the following acts which cast the authenticity of the Will in doubt:

(i) The haste with which the first respondent seeks to dispose of the Lamborghini without following due process;

(ii) The invitation by the first respondent for members of the public to inspect an estate account when she has already authorised disposal of the said vehicle;

(iii) The Will makes reference to some persons without stating their actual identities;

(iv) The vehicle arrived in Zimbabwe around the 30th of September 2020, and, its inconceivable that the deceased would have a Will drafted bequeathing it to a third party 23 days after its arrival;

(v) The deceased had a large fleet of vehicles and it is surprising that only the Lamborghini was mentioned in the will;

(vi) The first respondent falsely claimed that she is an attorney and she never wanted to avail the Will to the applicants.

The Will is therefore fake and the estate of the deceased should proceed under intestacy.

The matter is urgent and cannot wait because the applicants are the surviving blood relatives of the deceased and have a prima facie right to protect their interests.

The acceptance of the Will is a legal nullity and there is need to stop the first respondent in her tracks. She is already in the process of disposing of some assets of the deceased estate during the lock down period, more specifically, a Lamborghini motor vehicle, using a distribution account that was never availed nor approved by the second respondent.

Quick Gases (Pvt) Ltd, in which the deceased was the sole director, is in danger of being liquidated after F.N.B Bank in Botswana froze the company's bank account.

The applicants have been given up to the 31st of March 2021 to attend to issues relating to the appointment of the first applicant as executrix.

The first applicant is dissipating the deceased's estate to the permanent and irreparable harm of the applicants in circumstances when her appointment as executrix is a nullity; she has not furnished security to the second respondent for due administration of the estate; and she has not furnished the second respondent with a comprehensive inventory.

Waiting to prosecute a review application during the lockdown period without knowing when it will end will prejudice the applicants who are at risk of losing many assets.

The first respondent continues to take the law into her own hands to the detriment of the applicants.

There is no other alternative remedy to protect the rights of the applicants.

There is real risk that the first respondent, in the absence of a court order, will continue to alienate and dispose of the deceased's assets, and, accordingly, only an interdict will protect the rights of the applicants pending the return date.

The second and third applicants deposed to supporting affidavits in support of the first applicant's averments.

They thus seek a provisional order in the following terms:

“TERMS OF THE FINAL ORDER SOUGHT

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

1. The application is hereby granted.

2. The provisional order granted in this matter is hereby confirmed.

3. It be and is hereby declared that:

3.1 The document registered with the 2nd respondent on 25 November 2020 under DR. No.1771/20 as the will of the later Genius Kadungure ('the deceased') (who died on 8 November 2020) is null and void; and

3.2 The deceased died intestate.

4. The decision of the 2nd respondent, to register and accept the aforesaid document as the last will for purposes of administration of the estate of the deceased in terms of section 8(5) of the Wills Act (6:06) be and is hereby set aside.

5. The 2nd respondent's appointment of the 1st respondent, on 2 December 2020, as the testamentary executrix of the estate of the deceased, and all acts done by the 1st respondent (personally or by other persons at her direction) under and by virtue of such appointment be and are hereby declared null and void.

6. The letters of administration issued by the 2nd respondent, on 2 December 2020, in favour of the 1st respondent, under DR No.1771/20, appointing her as testamentary executrix, be and are hereby revoked.

7. The 2nd respondent shall convene another meeting to appoint an executor of the estate of the deceased which meeting shall be presided over by an official other than the official who presided over the meeting of the 25th of November 2020 or any of the officials who previously dealt with the estate of the deceased; and

8. The 1st respondent shall bear costs of suit on attorney-client scale (in the event that she opposes the application).

INTERIM RELIEF GRANTED

Pending the return date, the applicants are hereby granted the following interim relief:

1. Pending the return date, the 1st respondent is hereby interdicted from, in any way, administering, or dealing in the estate of Genius Kadungure ('the deceased') in Zimbabwe, Botswana or South Africa; and

2. The 2nd respondent, or any other person acting on his behalf, be and is hereby interdicted from (without the leave of this court) accepting for filing any document by, or acceding to any request from, the 1st respondent under DR. No.1771/20 save and except for the purposes of relinquishing the letters of administration issued hereunder.”

The first respondent strenuously opposes the application and raises several points in limine as follows:

(1) The matter is not urgent because the facts complained of have existed for 4 months and 8 days. The applicants voluntarily consented to the decision by the second respondent to accept a document that did not meet all the formalities of a will on the 25th of November 2020. In terms of the Wills Act, they had 30 days within which to appeal against the decision....,.

The test for what constitutes urgency has been set out in a plethora of cases with the oft cited case of Kuvarega v Registrar General 1998 (1) ZLR 188 (H) being the locus classicus.

In my view, the matter placed before the court is urgent regard especially being had to the events that are taking place, more specifically, the rush to conclude administration of part of the estate of the deceased and the placing of an advert for an interim distribution account in both the Government Gazette and a newspaper.

The adverts are legal processes and failure to act on them has legal consequences.

Whilst it is accepted, that, in terms of section 8(6) of the Wills Act [Chapter 6:06] any person aggrieved by the acceptance of a document that does not meet all the formalities of a will has 30 days within which to appeal, what the applicants seek is a review which has different considerations from an appeal.

HH974-15 : GUGULETHU HURASHA vs CENTRAL AFRICAN BUILDING SOCIETY and FIRST CAPITAL PLUS and ITAYI MUNYEZA and SHERIFF OF ZIMBABWE and MASTER OF THE HIGH COURT
Ruled By: NDEWERE J

The applicant and the third respondent divorced on 16 January 2014 in Case No. HC7328/13.

In terms of a consent paper concluded on 14 November 2013, which became part of the divorce order of 16 January 2014, the applicant and the third respondent agreed to give their matrimonial home, Stand No.17074 Giraffe Crescent, Borrowdale West, Harare to their two minor children in equal shares.

Paragraph E.5 of the Consent Paper stated as follows:

“E. Division of Matrimonial Property

5. Stand No.17074 Giraffe Crescent, Borrowdale West, Harare shall be awarded to the two minor children in equal shares. The property shall be transferred and registered in the said minor children's names within one year of the order. The parties shall sign all relevant papers to effect transfer to the minor children, failing which, the Sheriff Harare shall sign all such papers as if it were the plaintiff and defendant. The plaintiff shall pay the cost of the transfer. In addition, the defendant shall exercise the rights (usufruct) of use and occupation until she dies or remarries whichever occurs sooner.”

Stand No.17074 Giraffe Crescent was not transferred and registered in the children's names within one year, contrary to what was ordered by the court.

The court was not told of any steps which were taken by the applicant and the third respondent towards complying with the Divorce Order.

It also appears, that, the Sheriff, who was supposed to sign all the papers, for purposes of transfer and registration, if the applicant and the third respondent failed to do so, was never approached.

The property thus remained in the third respondent's name, in contravention of the divorce order.

It is common cause, that, in August, 2015, the above property was attached by the first respondent in order to satisfy a debt by the second respondent where the third respondent had signed as surety.

The applicant says she became aware of the attachment on 21 August 2015. On 2 September 2015 the applicant filed an urgent chamber application for stay of execution of the writ of attachment.

There was a delay of more than 10 days from the date of the attachment to the date of filing of the urgent application. That delay is not explained, contrary to case authorities which indicate that any delay in approaching the court urgently should be explained since an applicant in an urgent application should herself treat the matter urgently.

The first respondent opposed the urgent application.

It said the applicant had no locus standi; that she should have instituted inter-pleader proceedings; and that the application is not urgent....,.

As regards urgency, I have already criticised the applicant for not explaining her delay in approaching the court after the attachment.

In addition to that, the first respondent argued, that, the applicant was aware that the first respondent was searching for assets to attach for the same debt as far back as December 2014 because the first respondent once attached her movables but released them after she proved that the goods were hers and not the second respondent's.

The first respondent submitted, that, her cry now was a matter of self-created urgency.

There is merit in the first respondent's argument on the lack of urgency of the application. However, in view of the minor children who have an interest in this matter, I have decided to exercise my discretion in favour of the applicant and treat the application as urgent.

HH91-09 : SANANGURAI GWARADA vs KEVIN JOHNSON and MR WILLIAMSON and BERNARD CHOTO
Ruled By: GOWORA J

This matter came before me by way of an urgent chamber application.

At the initial set down date, the legal practitioners indicated that they wished to file written submissions and the matter was accordingly postponed for that purpose.

In view of the legal issues that were apparent from the affidavits, and that had not been canvassed, I required the legal practitioners to file supplementary heads of argument, which counsel did, and, I am indebted to counsel for the same.

I had also requested a copy of a translation of a South African judgment referred to by the applicant's counsel, but, unhappily, that was not given to me expeditiously, with the result that this judgment was then delayed.

The facts relevant to this dispute are as follows:

The dispute centers around Dana Farm. This farm is now owned by the State after it was gazetted for resettlement under the land reform program.

The first and second respondents are referred to on the papers as former owners of the farm, although the exact nature of that ownership has not been stated nor is it relevant for present purposes.

What is relevant is that they were in occupation at the time the farm was acquired.

The third respondent is a beneficiary of the land reform program but he occupies a neighbouring farm. He is, however, a majority shareholder in a company in which the first and second respondents also own shares and which is undertaking certain farming operations on Dana A Farm.

According to the papers, the first and second respondents occupy subdivisions 2 and 3 of the farm.

The applicant was issued with an offer letter for subdivision 1 which he occupies.

The applicant seeks an interdict, both in interim and final terms, against the respondents from use and occupation of subdivision 1 of Dana Farm. In addition, he seeks their eviction from the same.

After he and counsel for the respondents had made submissions on the application, counsel for the applicant moved for an amendment to the draft order.

Counsel for the respondents did not object to its amendment.

The new draft order merely sought an interim interdict against the three respondents with the eviction being reserved for the final relief.

I find it difficult to comprehend the logic of seeking an amendment of that nature, at that stage, as counsel for both sides had argued the matter fully on the merits as related to the interdict and the eviction.

In my view, no prejudice will occur to any of the litigants if I dispose of the matter on the merits as if it were an opposed application rather than for relief in interim terms.

Although the applicant sought to file an amendment to the draft order, the application to amend the same was only introduced after both parties had addressed the court in argument on the basis of the original draft order. It seems to me, therefore, that the dispute between the parties has been ventilated in full and it does not assist either of the parties for this court to ignore that fact.

I also agree with the submission in the respondents heads of argument that the nature of relief sought is in final terms.

Even if I considered the matter on the basis of the amended draft order, it would not change much as the relief being sought is not materially different in the two draft orders....,.

I turn next to the issue of urgency...,.

It was contended, on behalf of the respondents, that, the applicant's papers did not exhibit urgency.

The leading case within this jurisdiction, in relation to urgency, is Kuvarega v Registrar General & Anor 1998 (1) ZLR 188 (H), a judgment by CHATIKOBO J. The learned judge had the following to state…,:

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

When an applicant files an urgent application, the Rules require, where such an applicant is legally represented, that a certificate of urgency be filed setting out why, in the opinion of the legal practitioner, the matter should be treated as urgent and not await set down in normal course.

The certificate of urgency filed on behalf of the applicant suggested an infringement on the part of the respondents and an interference with his occupation of the piece of land that he was in occupation of. There was also a statement that the applicant was being denied access to a borehole.

On the face of it, therefore, the matter appeared to be urgent and an impression was created that the applicant should be allowed, through this court, unhindered access to the borehole and the homestead.

It is not stated, in the certificate, when precisely the alleged interference commenced.

It is only when the respondents papers are examined that it becomes clear that there is no urgency in the application.

The applicant has been on the farm since 2008. He has not given a precise date, but, going by the averment that he moved onto the farm in order to comply with the requirements on the offer letter, that obliged him to take occupation within 30 days of the acceptance of the offer, it is safe to assume that he had moved onto the farm soon after the month of April 2008 when the farm was offered to him.

He alleges, that, soon after he moved onto the farm, the respondents started interfering with his activities in that they began to construct permanent structures on the farm, guarded the borehole (sic), refused to surrender the farmhouse, and occupied the pigsty that is located on his portion of the farm.

Since this application was launched in June 2009, the applicant had waited a full year before approaching this court on an urgent basis for relief over happenings that had taken place on the subdivision.

Given that the situation that the applicant seeks this court to reverse has been in existence for the better part of a year, it is mischievous in the extreme for a legal practitioner to issue a certificate that a matter is urgent in circumstances such as the above.

A matter does not assume urgency because a litigant has plans, the fulfillment of which require an immediate solution.

Urgency, in my view, arises when an event occurs which requires contemporaneous resolution the absence of which would cause extreme prejudice to the applicant.

The existence of circumstances which may, in their very nature, be prejudicial to the applicant, is not the only factor that a court has to take into account, time being of the essence in the sense that the applicant must exhibit urgency in the manner in which he has reacted to the event or the threat - whatever it may be.

In the matter before me, there is no urgency established.

I wish to respectfully associate myself with the comments by GILLESPIE J in the case of General Transport & Engineering P/L v Zimbank Corp P/L 1998 (2) ZLR 301…, wherein the learned judge stated:

“It is therefore an abuse for a lawyer to put his name to a certificate of urgency where he does not genuinely hold the situation to be urgent. Moreover, as in any situation where the genuineness of a belief is postulated, the good faith can be tested by the reasonableness or otherwise of the purported view.

Thus, where a lawyer could not reasonably entertain the belief that he professes in the urgency of a matter, he runs the risk of a judge concluding that he acted wrongfully, if not dishonestly, in giving his certificate of urgency.”

There is a duty incumbent upon a legal practitioner, before he files a certificate that a matter is urgent, to carefully examine the case that his client puts to him and to satisfy himself that indeed the matter is urgent.

As was stated by BERE J, in Dodhill P/L and Anor v Minister of Lands and Anor HH40-09 there is no formula which determines what constitutes urgency, nevertheless, a legal practitioner should be diligent in certifying the urgency of a matter.

Sufficient thought ought to be given to the instructions from the client as regards the issue of urgency and an opinion expressed clearly to the applicant as regards the lack of cogent grounds to justify urgency.

An applicant who has his matter dealt with on an urgent basis steals a march on other litigants and it is a facility which should be accorded only to a few deserving cases.

On the facts presented, this case did not merit such an accommodation.

In the premises, I find that the application was not well-founded and the application is therefore dismissed with costs.

HH118-18 : PINKSTONE MINING (PVT) LTD and TIMOTHY MATANGI and AFRICAN MILLS & MINERALS (PVT) LTD vs LAFARGE CEMENT ZIMBABWE LTD and MINISTER OF MINES AND MINES DEVELOPMENT
Ruled By: ZHOU J

This is an urgent application for an order interdicting the first respondent from carrying on mining operations on the applicant's mineral claims described in the papers as Contrica 9 Registered Number 23331BM; Contrica 21 Registered Number 24482BM; Contrica 45 Registered Number 24866BM; and Contrica 46 Registered Number 24867BM.

The order also seeks the barring of the first respondent from coming within two hundred metres of the mining claims referred to above.

The terms of the final order, in addition to seeking the interdict as recited above and costs of suit, asks the court to set aside the first respondent's mining claims under Registration numbers 41334BM and 42332BM.

The mining claims in dispute are in an area falling under the Pfura Rural District Council.

The application is opposed by the first respondent.

The second respondent, through his legal practitioner, advised that he would abide by this court's decision.

The brief facts upon which the application is founded are as set out below:

The third applicant is the holding company in the first applicant. The first applicant is the holder of the mining claims described above. It registered the claims in 1996. The current certificates of registration and inspection are attached to the applicants papers.

At some point, the applicants and the first respondent had business dealings involving minerals from those claims. It appears that the agreement was not pursued.

The respondent went on to register mining claims over a piece of land which included the claims already registered under the applicants names.

The applicants became aware of the first respondent's intention to carry on mining operations on the claims in dispute on 19 February through an article which appeared in The Herald newspaper of 14 February 2018.

The first respondent does not dispute that it has registered the claims in dispute. It, however, contests the relief being sought in this application.

The first respondent, in its opposing affidavit, took the point, that, the matter should not be heard on an urgent basis.

No submissions were made in support of that objection at the hearing.

Clearly, this is a matter which is urgent.

The applicants acted quickly by instituting the instant application within four days after becoming aware of the applicant's claims to the disputed mining claims.

Further, if the matter is not dealt with urgently, and the applicant ultimately succeeds, there will be irreparable prejudice as the first respondent has not stated that it will not proceed with carrying on mining activities on the disputed claims.

The fact that it has not yet started carrying on the mining work is not relevant as there is no undertaking that mining activities will not be undertaken pending the determination of the dispute.

The matter is therefore urgent.

HH11-17 : ANDREW PASCOE vs MINISTRY OF LANDS AND RURAL RESETTLMENT and W. BUNGU and THE ATTORNEY GENERAL N.O.
Ruled By: CHITAPI J

In this application, the applicant seeks the following relief as set out in the provisional order:“TERMS OF FINAL ORDER SOUGHT1. That it be and is hereby declared that second respondent's dispossession of certain land and buildings in respect of applicant's offer letter for a certain piece of land described as ...

In this application, the applicant seeks the following relief as set out in the provisional order:

“TERMS OF FINAL ORDER SOUGHT

1. That it be and is hereby declared that second respondent's dispossession of certain land and buildings in respect of applicant's offer letter for a certain piece of land described as Subdivision 2 of Ivordale in the Goromonzi district of Mashonaland East Province measuring approximately 449.792ha in extent dated 16 July 2014 (hereinafter called “the property”) which physical dispossession took place on or about the 5th December 2016 and on subsequent days thereafter is and was unlawful on account that this was done without the consent of the applicant and without following due process and therefore in circumstances amounting to spoliation.

2. That it be and is hereby declared that the applicant, his agents, representatives, employees and invitees are entitled to peaceful and undisturbed possession of the property until such time as the respondents or one or other of them applies for and obtains an order of ejectment against applicant having final effect from a competent court.

3. That Respondents jointly and severally pay the costs of this application.

INTERIM RELIEF

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

(a) That applicant's possession of the property referred to in his offer letter dated 16 July 2014 called Subdivision 2 of Ivordale in the Goromonzi District of Mashonaland East Province measuring approximately 449.792ha in extent (“the property”) be and is hereby restored in its entirety; and

(b) That second respondent and all other persons acting through or in common purpose with him remove all and any impediments on the property so as to permit free and unimpeded access by the applicant, his agents, employees, and invitees in and to the property and of all improvements on it; and

(c) That the second respondent and all persons acting through or in common purpose with him shall forthwith, upon the grant of this order, vacate the property, including any buildings and that all movable assets and property including livestock that may have been introduced by them onto the property also be removed. Failing vacation and removal, that the Sheriff or his Deputy be and is hereby authorised and empowered to attend to the ejectment of the second respondent and of all other persons claiming occupation and use of the property through him.

SERVICE OF THE PROVINCIAL ORDER

That leave be and is hereby granted to applicant's legal practitioners or the Sheriff or his Deputy to attend to the service of this order forthwith upon the Respondents in accordance with Rules of the High Court.”

On 16 December 2016, which was the set down date, the respondents sought a postponement of the hearing. The respondents had not had enough opportunity to peruse the application and to prepare and file their responses.

I postponed the hearing, and, following submissions by the applicant who was concerned that he could not access his planted crop, I asked the second respondent whether he had any problems with allowing the applicant to attend on his planted crop. The second respondent did not have a problem with this. I then granted an interim order pending the final disposal of the matter by myself.

I consequently granted an interim order in the following terms:

“IT IS ORDERED THAT:

1. The hearing of the application be postponed to 19 December 2016 at 2:30pm and ruling on wasted costs is reserved.

2. In the intervening period, the 2nd respondent, his agents or any other person so inclined is hereby ordered not to interfere with or impede in any manner the applicant or his workers access to and tending his crop of maize, groundnuts, and soya beans and already planned on the disputed land, subdivision 2 of Ivordale in Goromonzi as described in the applicant's founding affidavit.

3. The applicant shall not plant any new crops and the 2nd respondent shall not do or suffer to be done anything either by himself of through his agents on the disputed land as may affect the status quo which should remain so until the application is determined.

4. The respondents to file any opposing papers if they oppose the relief sought by no later than 12noon on 19 December 2016 and to serve the applicant's legal practitioner by no later than 1:00pm on the same date.”

The first and second respondents filed their responses.

The first respondent responded on the merits through an affidavit deposed to by the Permanent Secretary of the relevant Ministry. The first respondent's position was set out in the relevant paragraphs of her affidavit as follows:

“3. I have read the applicant's founding affidavit and wish to respond as follows;

4. All due processes leading to the downsize of the applicant's farm size were observed and adhered to and the applicant was left with enough land to conduct his dairy farming activities and other operations.

5. The Ministry policy permits the applicant to wind up any operations and harvest any crops that he might have planted without any interference from the incoming beneficiary.

6. In essence, the 2nd respondent is to allow the applicant to wind up operations with no interference from himself and/or any others that claim occupation through him.

7. In the premise, we abide with the court's ruling.”

The first respondent's position was therefore that the Minister did not oppose the interim relief sought. This much appears clearly from an analysis of paragraphs 5 and 6 of the first respondent's affidavit.

The Ministry does not allow an incoming beneficiary to interfere with operations of the incumbent operative who is given an opportunity to wind up his or her operations without interference.

The second respondent, on the other hand, was opposed to the application on three (3) grounds;

(i) Firstly, that the application was defective and therefore a nullity;

(ii) Secondly, that the matter was not urgent; and

(iii) Thirdly, on the merits.

I deal with the issues raised in turn....,.

Counsel for the second respondent's next point in limine, as I have indicated, was that the application was not urgent.

The second respondent contended, in paragraphs 10.1 to 10.3 of his opposing affidavit, the applicant had created the urgent situation by ploughing on the second respondent's farm without the second respondent's consent.

The second respondent averred, that, he accepted an offer letter for the disputed piece of land and took possession of the piece of land on 16 November 2016. He argued that it was the applicant who had now invaded his piece of land by ploughing on it.

I noted, however, that the second respondent did not file a counter application to assert his rights.

The first respondent, in his affidavit, appeared to support the applicant's right to wrap up his operations without hindrance from the second respondent or the new beneficiary.

Counsel for the first respondent indicated that he had no submissions to make on the issue.

I took it that he was relying on the point in limine.

I should, in passing, indicate that it does not really assist a court or a judge for a legal practitioner to stand up and say he or she has no submissions. It assists the court if a legal practitioner takes a position because the party whom such legal practitioner represents cannot be said or held not to have a position on a point which arises in a matter in which such party has an interest.

By not taking up the issue of urgency, it can only mean that the first respondent accepted that the application was urgent. Had he been disposed otherwise, he would have argued the point.

Counsel for the applicant submitted, that, there was no self-created urgency.

She argued, that, the applicant's case was not based on when the applicant purported to have taken possession of the piece of land allocated to him. She submitted that the application was for a spoliation order arising from acts of spoliation as detailed in paragraphs 17 and 18 of the founding affidavit.

The allegations made by the applicant in these paragraphs were that the second respondent and some youths, had, on 8 December 2016, come in a combi vehicle around 9:20am to the applicant's field area where a tractor was spraying chemicals on a soya land. The second respondent is said to have ordered that all activities being carried out by the applicant or on his behalf be stopped. The second respondent proceeded to the applicant's occupied homestead and offloaded his belongings which included a bed, mattress, 5 chairs, and other household effects. The goods were then put in the applicant's security managers occupied house. The security manager was ordered to vacate the house, remove his belongings, and the second respondent fitted his own padlock to the main entrance.

On 9 December 2016, the second respondent reportedly threatened to bring five herd of cattle, some goats, as well as dogs to a cattle kraal within the applicant's occupied piece of land. He also reportedly threatened to bring some of his farm workers to take up residence near the cattle kraal.

The second respondent reportedly ordered that the applicant's mother should vacate her occupied residence within the disputed piece of land so that the second respondent takes over possession and occupation of the same.

The applicant filed the spoliation application before me on 9 December 2016.

It is clear, therefore, that the applicant did not wait a day longer after the acts complained of had taken place to petition the court for appropriate relief.

Whether or not a matter is urgent is a value judgment which a judge reaches upon a consideration of all the objective facts and circumstances surrounding the matter to be determined.

The celebrated judgment of CHATIKOBO J of Kuvarega v Registrar General & Anor 1998 (1) ZLR 189, has become the bible or leading case followed in this jurisdiction in so far as it sets out the factors which determine whether or not a matter qualifies for urgent hearing.

The learned judge stated as follows…,:

“What constitutes urgency is not only the imminent day of reckoning. A matter is urgent, if, at the time the need to act arises, the matter cannot wait. Urgency which stems from a deliberate or careless abstention from acting until the deadline draws near is not the type of urgency contemplated by the Rules.”

The upshot of the remarks of CHATIKOBO J, as above quoted, boil down to the need for an applicant, whose rights have been infringed or are about to be infringed, to assert such rights immediately and not wait for harm to draw near or eventuate before acting.

The remarks of GOWORA J…, in Triple C Pigs & Anor v Commissioner General, Zimbabwe Revenue Authority 2007 (1) ZLR 27…, put the icing on the cake by further ventilating CHATIKOBO J's remarks in Kuvarega v Registrar-General & Anor 1998 (1) ZLR 189. The learned judge stated:

“Naturally, every litigant appearing before these courts wishes to have their matter heard on an urgent basis, because, the longer it takes to obtain relief, the more it seems that justice is being delayed and thus denied. Equally, the courts, in order to ensure delivery of justice, would endeavour to hear a matter as soon as is reasonably practicable. This is not always possible, however, and, in order to give effect to the intention of the courts to dispense justice fairly, a distinction is necessarily made between those matters that ought to be heard urgently and those to which some delay would not cause harm which would not be compensated by the relief eventually granted to such litigant.

As courts, we therefore have to consider, in the exercise of our discretion, whether or not a litigant wishing the matter to be treated as urgent has shown the infringement or violation of some legitimate interest, and whether or not the infringement of such interest, if not redressed immediately, would not be the cause of harm to the litigant which any relief in the future would render brutum fulmen.”

The remarks of GOWORA J sums up the second consideration in determining urgency.

A party should act immediately when the need to act arises, and, in addition, must demonstrate irreparable harm, actual or potential, arising from the infringement of the party's legitimate rights or interests. The infringement must be such that failing immediate redress, there would be nothing left to redress and/or any other future redress would not provide adequate remedy to correct the wrong.

In casu, the applicant acted immediately upon the wrong, as perceived by him, having been committed.

He alleged acts of spoliation. A spoliation is an act that the court will not countenance. It smacks of anarchy whereby persons take the law into their hands. To allow spoliation a place in society, or condone it, will lead society back to pre-civilization days where the maxim 'each man for himself; and an eye for an eye' were the order of the day.

A court will therefore, as a matter of practice and routine, treat spoliation applications to be dealt with as urgent matters provided of course that the other procedural requirements have been met.

HH391-17 : ANDREW PASCOE vs MINISTRY OF LANDS & RURAL RESETTLEMENT and W. BUNGU and THE ATTORNEY GENERAL N.O.
Ruled By: FOROMA J

This is an urgent chamber application in terms of which the applicant seeks the following relief as set out in the provisional order:“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. That, it be and ...

This is an urgent chamber application in terms of which the applicant seeks the following relief as set out in the provisional order:

“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. That, it be and is hereby declared, that, the letter of Mr A Tsimba, in his capacity as Acting Provincial Resettlement Officer, Mashonaland East Province drawn on the 10 May 2017 for the Ministry of Lands and Resettlement providing an eviction/vacate date and cessation of possession, occupation, use and all farming activities on Plots 3 and 5 of Ivordale Farm by 30 June 2017 is null and void and of no force or effect on account that, in its effect and implementation, it violates sections 68 and 69 of the Constitution of Zimbabwe and section 3 of the Administrative Justice Act [Chapter 10:28].

2. That, it be and is hereby declared that applicant, his agents, representatives, invitees and employees are entitled to the continued possession, occupation and use of the whole of subdivision 2 of Ivordale in the Goromonzi District of Mashonaland East Province measuring approximately 449.792ha (“the property”) until such time as a final determination has been rendered with regard to applicant's review proceedings and relief in HC12727/16.

3. That respondents, jointly and severally, the one paying the other to be absolved, pay the costs of this suit.

INTERIM RELIEF

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

(a) That first and second respondents and all other persons acting through them be and are hereby interdicted from interfering with applicant's farming operations, possession, and control of movable and immovable property including livestock on Subdivision 2 of Ivordale in the Goromonzi District of Mashonaland East Province measuring approximately 449.792ha, as reflected in applicant's offer letter dated 16 July 2014, incorporating as it does newly depicted Plots '3' and '5' as set out in a subdivision plan drawn by officers in the 1st respondent Ministry and fresh offer letters in favour of 2nd respondent and an unknown person.

(b) That, it be and is hereby declared that the interim relief granted by his Lorship, Mr Justice Chitapi, in favour of the applicant, on 11 January 2017, in HC12511/16, shall continue to apply until such time as a final determination is made by the High Court in regard to the validity of the withdrawal of applicant's offer letter and downsizing of applicant's property.”

The application was opposed and was heard before me on 5 June 2017....,.

Counsel for the first and third respondents then raised a point in limine in regard to urgency arguing that the matter was not urgent considering that the applicant was served the letter complained about on 12 May 2017 and had not done anything until 1 June 2017.

He therefore urged that the application be dismissed.

Counsel for the applicant opposed the respondents application for dismissal (on the basis that the matter was not urgent) pointing to the fact, that, what triggered the urgency was the position conveyed to the applicant by the first respondent's representatives at the meeting of 29 May 2017 at the Provincial Minister for Mashonaland East at Marondera, which, as recounted in paragraph 29 of applicant's affidavit says:

“29 They also emphasized, that, in their view, the notice to cease operations constituted an eviction order/notice and that should l fail to cease operations by 30 June 2017, I would be arrested and evicted without further ado and charged under the Gazetted Land (Consequential Provisions) Act [Chapter 20:28]. I explained to the Committee, that, my understanding of the law was that an eviction order had to be issued by a judge or Magistrate in a court of law. I was told, in no uncertain terms, that, my understanding was incorrect and that they stood by their view that the notice to cease operations constituted an eviction sanctioned by law…,.”

Counsel for the applicant further argued, that, the threat uttered, as contained in paragraph 29, as quoted, grounded a reasonable fear of unlawful eviction by the respondents hence the urgent resort to seek interdictory relief pending the determination of the pending application for review per case no. HC12727/16.

Even though l considered the matter to be urgent, I was concerned with the procedure adopted and invited counsel for the applicant to address the issue i.e. whether the correct procedure in casu was an urgent court application as opposed to an urgent chamber application.

My concern was based on the fact, that, the applicant had more than one and half months as at 12 May 2017 to 30 June 2017 in the Rules of Court.

Counsel for the applicant did not consider that there was any scope for an urgent court application and brought my attention to Order 32 Rule 244 which she considered as authority for an urgent chamber application until I brought her attention to Rule 223A.

For the avoidance of doubt, the Rules of this court explicitly provide for urgent court applications and here is how:

Order 32 Rule 232 of the High Court Rules, dealing with the time for opposition to a court application, provides as follows:

“232 The time within which a respondent in a court application may be required to file a notice of opposition and opposing affidavit shall be not less than ten days, exclusive of the day of service, plus one day for every additional 200km…,: provided that, in urgent cases, a court application may specify a shorter period for the filing of opposing affidavits if the court, on good cause shown, agrees to such shorter period.”

The court's agreement to a shorter period would obviously be easily obtained, if, in the certificate of urgency, in terms of Rule 223A of the High Court Rules, the applicant addresses the issue of the shortened dies induciae.

Once an opposing affidavit is filed within the shortened dies induciae, the matter can be set down in terms of Rule 223(2)(a) as read with Rule 238(i)(a) and (b) which provides for setting down of urgent applications for hearing.

The respondent's heads of argument, in an urgent court application, have to be filed in terms of Rule 238(2a)(ii) which provides as follows;

“Provided that -

(i)…,.

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

There is, therefore, an obligation for the applicant, in an urgent court application, to afford the respondent at least five days to the hearing for purposes of filing heads of argument, as, in terms of Rule 238(2)(b), a party who fails to file heads of argument in terms of Rule 238(2)(a) shall be barred.

It is clear, that, when diligently applied, the Rules provide an alternative to the floodgate of urgent chamber applications that this court has to reckon with.

I dare say, that, an urgent court application can easily be disposed of within a period of about 15 working days.

Thus, a lot of urgent chamber applications are needless avoidance of urgent court applications.

In fact, l dare say, that, an urgent application should be made as an urgent court application unless as provided in Rule 226(2) of the High Court Rules, the matter is so urgent that it cannot wait to be resolved through an urgent court application.

This interpretation to Rule 226(2)(a) is as consistent with reference to a court application under the said Rule.

By its very nature, a court application, whether urgent or ordinary, provides litigants with an equal and proper opportunity to ventilate their positions on a matter in dispute unlike an urgent chamber application where a party may simply appear before a judge without any opposing papers and make submissions not supported on any evidence before the judge.

Urgent Chamber Applications, by their nature, are time-consuming as one has to content with at least two court appearances i.e. initially to obtain a provisional order, and, subsequently, at confirmation of the provisional order on the return date; whereas, an urgent court application will guarantee a final judgment based on one hearing thus reducing the court's workload through duplication as the papers have to be read at least twice.

There obviously are more advantages in adopting the urgent court application procedure than the urgent chamber application procedure.

It however is not proposed to provide an exhaustive list of the advantages at this stage. It is clear, therefore, that, in light of the foregoing, the applicant ought to have brought his application as an urgent court application.

HB58-15 : TRIANIC INVESTMENTS (PVT) LTD and MEYER DRAY vs NQOBILE KHUMALO and FRANCESCA MUFAMBI and OFFICER-IN-CHARGE (FILABUSI) ZIMBABWE REPUBLIC POLICE
Ruled By: MOYO J

This is an urgent application. The interim relief sought is couched in the following manner:

“(1) That, execution of case number 2167/14 be and is hereby stayed pending the finalization of the application for rescission of judgment under HC141/15.

(2) The respondents be and are hereby interdicted from interfering with the mine in question and the mining equipment thereof.

(3) The respondents be and are hereby interdicted from interfering with the mine in question and executing the order under HC2167/14 pending the application for rescission of judgment under HC141/15.”

The facts of the matter show, that, the dispute between the applicants and the respondents centre on a mine situated in Filabusi.

Apparently, in September 2014, the respondents filed an urgent chamber application and served it on the applicants legal practitioners. The applicants legal practitioners filed a notice of opposition thereto. The file was taken to a judge in chambers and he granted the provisional order without setting the matter down as he was at large, in terms of the Rules, regarding the set down or otherwise of the matter.

The respondent claims, that, upon receipt of the provisional order, they served same on the applicants legal practitioners and that no notice of opposition was filed to the confirmation of the provisional order leading them to confirm same on 15 January 2015.

In the confirmation proceedings, they filed a certificate of service confirming that indeed the provisional order had been served on the applicants.

Prior to the confirmation of the provisional order, the applicants legal practitioners were served, by the respondents legal practitioners, with an affidavit of evidence and a notice of set down of the matter on the unopposed roll. Such service was effected on 9 January 2015.

The applicants filed an application for rescission of judgment on 21 January 2015.

This is an application to rescind the confirmation of the provisional order.

The applicants now seek to stay execution of the provisional order pending the hearing of their application for rescission of judgement.

They seek rescission on the basis, that, they were not served with the provisional order, and that they would want to be given an opportunity to challenge same. They further contend, that, the relief that was in the provisional order and the one that was obtained upon confirmation of same were materially different.

The terms of the final order in the provisional order that was originally issued read as follows:

“(a) The respondents be and are hereby ordered not to sale the mine in question.

(b) The respondents be and are hereby interdicted from selling mining equipment situate on the mine in question or anywhere else unless in terms of the law.

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

The terms of the final order granted on confirmation read as follows:

“(1) The respondents be and are hereby ordered not to sell the mine in question.

(2) The respondents be and are hereby ordered not to interfere with the applicant's operations at the mine and not to interfere with the equipment thereat.

(3) The respondents be and are hereby interdicted from selling mining equipment situate on the mine in question or anywhere else unless in terms of the law.

(4) The respondents be and are hereby interdicted from going to the mine known as Eric 21, Trianic Investments Filabusi.

(5) The respondents pay costs at an attorney and client scale.”

The interim relief, as per the provisional order that was granted on 20 November 2014, is as follows:

“(a) The respondents be and are hereby ordered not to interfere with the mine in question and the mining equipment thereof.

(b) The second respondent to fourth respondents be and are hereby interdicted from interfering with whatever nature of threats upon their persons or their family.”

The respondents have challenged the order sought on the basis that the matter is not urgent.

I now turn to look at the issues in this application....,.

The other issue is that of urgency.

The applicants got to know of the imminent confirmation of the provisional order they were apparently not served with on 9 January 2015. They did nothing despite knowledge that the matter had been set on the unopposed roll since they had been served with a notice of set down.

It is important to note, that, the application for rescission of judgment was filed on 21 January 2015. However, the urgent application was filed on 16 February 2015 - almost a month later.

Counsel for the applicants sought to bring up the issue of the placement under curatorship of the firm Cheda and Partners. This, however, he submits, occurred on 30 January 2015, more than 9 days after the filing of the rescission of judgment, which itself was filed almost two weeks after the applicants lawyers had been served with a notice of set down.

The applicants have not sought to explain, in the founding affidavit, why no action was taken from 9 January.

In the case of Kuvarega v Registrar General 1998 (1) ZLR 188 (HC) the position regarding the undesirability of delaying to launch urgent applications was cogently stated…,. This is what the learned judge had to say:

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

In my view, the applicants inaction, from 9 January 2015 to 16 February 2015, is found wanting.

There is no explanation, either in the certificate of urgency or the founding affidavit, for this very long delay.

The application does not, in my view, meet the test on urgency. It has to fail on that basis as well.

SC28-14 : SITWELL GUMBO vs PORTICULLIS (PVT) LTD T/A FINANCIAL CLEARING BUREAU
Ruled By: GWAUNZA JA

In chambers in terms of Rule 5 of the Supreme Court Rules.

This is an application filed in terms of Rule 31(2) of the Supreme Court Rules.

On 9 of December 2013, and upon reading documents filed of record, I dismissed the application with no order as to costs. No opposing papers were filed by the respondent.

The applicant has requested that I furnish him with reasons for the judgment, and these are provided herein.

The applicant filed an application in the High Court, on a certificate of urgency. The court a quo, on 26 June 2013, issued the following decision:

“There is no urgency in this matter warranting this matter to be allowed to jump the queue. The applicant has had all the time in the world to take the initiative to clear his name. I decline to treat this matter as urgent.”

Upon a request from the applicant, the court a quo provided written reasons for the decision not to hear the matter on an urgent basis.

The court a quo, in this respect, relied on the case of Kuvarega v Registrar-General and Anor 1998 (1) ZLR 188 (H)…, in which the following principle was set out:

“What constitutes urgency is not only the imminent arrival of the day of reckoning: a matter is urgent, if, at the time the need to act arises, the matter cannot wait. Urgency which stems from a deliberate or careless abstention from action until the deadline draws near is not the type of urgency contemplated by the rules.”

The learned Judge's assessment of the evidence before him indicated, that, the genesis of the applicant's problems with the respondent dated back to 2003, spilled over to 2007, and then to 2009 and thereafter.

The Judge found, that, the applicant had been fully aware of the conduct of the respondent towards him and that he had always had the opportunity to take the initiative to clear his name. He had chosen not to do so and had only rushed to court, on an urgent basis, on 24 June 2013.

The court concluded, that, the applicant's conduct, in this respect, was not what the whole concept of urgent applications contemplated.

The applicant, on 16 September 2013, then sought the leave of the court a quo to appeal to this court against the decision declining to hear his matter on an urgent basis.

The court a quo having dismissed that application, the applicant then filed the present application before me.

It is essentially an application where the applicant is seeking my leave to appeal to this court, against the decision of the judge a quo that his matter before that court was not urgent.

To properly determine this matter, I consider it pertinent to consider two main issues. These are:

(i) Firstly, the reasoning of the court a quo which led to the decision that it reached: and

(ii) Secondly, the question of whether or not the intended appeal has any prospects of success.

It is my view, that, the requirement for the applicant to file a copy of his Notice and Grounds of Appeal together with an application of this nature, is to enable this court to make a proper assessment of the applicant's prospects of success on appeal.

Having considered the papers before me, which included the reasoned judgment of the court a quo as well as the applicant's affidavits, I find myself in full agreement with the judge's reasoning and determination.

I find, more to the point, that, the applicant did not place before the court a quo, nor before me, any evidence to show that there was, in his application, the type of urgency that would have merited a hearing on an urgent basis.

In other words, he failed to show, that, at the time the need to act arose, the matter could not wait.

I would therefore have dismissed the application to hear the matter on an urgent basis, in the same manner that the court a quo did, and for the same reasons.

As already indicated, I proceeded to do the same in casu.

The applicant properly filed a copy of his notice and grounds of appeal. A synopsis of his grounds of appeal shows that he intends to premise his appeal on two main grounds, both essentially factual:

(i) Firstly, the applicant seems to argue that the court a quo improperly interposed and considered together, two cases that had different HC numbers and were therefore unrelated.

This was in reference to the fact, that, the urgent chamber application was given the number HC4997/13 while the chamber application for leave to appeal was given the number 5794/13.

A perusal of the latter shows that both numbers are, properly, in my view, endorsed on the right hand corner of the document entitled “Chamber Application for Leave to Appeal” clearly showing that the two cases were related.

Apart from this ground of appeal, indicating what seems to me to be a mis-appreciation, by the applicant, of the HC numbering system and its implications in related cases, it is evident that the issue has no bearing on the merits of whether or not the case merited an urgent hearing a quo.

I find, therefore, that, there is little, if any, prospect of success on appeal based on this ground.

The applicant alleges, in his other main ground of appeal, that, there was evidence on record to show, that, contrary to the finding by the court a quo, he had in fact timeously made the effort to clear his name over the period stretching from 2003.

I have already associated myself with the reasoning of the judge a quo and his assessment of the evidence that led to the decision that he reached on this point and will therefore not repeat my reasons for doing so.

This ground of appeal, in my view, lacks merit and carries with it no prospects of success on appeal.

It was for these reasons that I dismissed the application, on the papers, and with no order as to costs.

It should be noted, however, that, the dispute between the applicant and the respondent is still pending before the High Court. It will take its place in the “queue” of ordinary court applications and be set down for hearing when its turn comes.

It occurs to me, that, by pursuing the course of action that he has in casu, the applicant might possibly have delayed, or may delay progress in the finalization of the matter.

HH24-19 : MOHAMMED ISMAIL (as the guardian of X - a minor) vs SAINT JOHNS COLLEGE and CAVALIERE COORRADO TRINCI N.O. and STEVE MARTIN N.O. and MINISTRY OF PRIMARY AND SECONDARY EDUCATION
Ruled By: CHITAKUNYE J

This is a chamber application brought on a certificate of urgency. The provisional order the applicant seeks was couched as follows:“FINAL ORDER1. That, the conduct of the 1st, 2nd and 3rd respondents consisting of ordering X, a minor enrolled as an Upper Six student at the 1st Respondent, to shave ...

This is a chamber application brought on a certificate of urgency. The provisional order the applicant seeks was couched as follows:

“FINAL ORDER

1. That, the conduct of the 1st, 2nd and 3rd respondents consisting of ordering X, a minor enrolled as an Upper Six student at the 1st Respondent, to shave his beard as a pre-condition to the continuation of his studies at the 1st Respondent, be and is hereby declared null and void and of no force or effect as an infringement of his right to freedom of religion protected by section 60 of the constitution of Zimbabwe.

2. That, the conduct of the 1st, 2nd and 3rd respondents consisting of ordering X, a minor enrolled as an Upper Six student at the 1st respondent, to shave his beard as a pre-condition to the continuation of his studies at the 1st respondent, be and is hereby declared null and void and of no force or effect as an infringement of his right not to be discriminated against on account of religion, such right being protected by section 56 of the Constitution of Zimbabwe.

3. That, the minor, X, be and is hereby allowed to remain a student of the 1st respondent while at the same time keeping his beard in accordance with the Islamic religion.

4. The respondents who oppose this order shall pay the costs of this application on a legal practitioner and client scale.

INTERIM RELIEF:

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

It is ordered that:

1. That, the 1st, 2nd, and 3rd respondents be and are hereby interdicted from barring X from entering the premises of the 1st respondent for purposes of continuing with his Upper Sixth Form studies notwithstanding the fact that the aforesaid Yusuf Ismail is not shaving his beard.

2. That, the 1st, 2nd and 3rd respondents be and are hereby interdicted from insisting, directly or indirectly, that X shaves his beard as a pre-condition to him continuing with his Upper Sixth Form studies at the 1st respondent.

3. That, the respondents who oppose this order shall pay the costs of this application on a legal practitioner and client scale.”

The basic facts leading to this application were that:

The applicant enrolled his son, X (hereinafter referred to as the minor), at St Johns College in 2013. At the time of enrolment, the applicant signed a contractual document 'Acceptance of Entry' in which were stated the conditions for the acceptance of the minor at St. Johns College. Amongst the terms and conditions that the applicant unequivocally accepted were clauses 2 and 3 which stated that:

“2. That, the student will be bound by all rules and requirements as laid down by the college from time to time in both academic and extra-curricular activities.

3. That, in particular, the student will be bound by the St. Johns College Code of Conduct as amended from time to time.”

The Code of Conduct stipulated the conduct that was expected from all the students without discrimination.

The particular aspect that led to this case pertains to the requirement that all students be cleanly shaven.

At the time of enrolling at the college, the minor had not yet developed a beard. However, towards the end of 2018, he developed a beard.

It is common cause, as between the parties, that, in terms of the Code of Conduct, the minor was expected to shave the beard.

In recognition of this regulation, and as the minor had already been advised to be cleanly shaven in terms of the regulation if he was to continue at the school, on the 1st of October 2018 the applicant wrote a letter to first respondent requesting that the minor be allowed to grow his beard. That letter stated, inter alia, that:

“This letter serves as a humble request to allow my son, X (L6S), to keep his beard. It is imperative that he does not shave his beard for religious purposes. X leads congregational prayers at the mosque, and, it is not permissible for those who lead the prayer to remove their beards.”

After acknowledging the valuable role played by the Regulations, in moulding boys into responsible men, the applicant proceeded to say:

“Allowing Yusuf to keep his beard will permit him to practice his faith without it interrupting his education.”

On the 3rd of October, the first respondent responded to the request with a clear NO in, inter alia, these words:

“Please note, that, we no longer grant exemptions to these requests under any circumstances, and, hence, your appeal for X to keep facial hair on religious grounds is denied. He has to shave and follow our regulations to the letter as outlined in the code of conduct.”

Despite what should have been a clear response, on the 28th of December 2018, the applicant, through his legal practitioner, wrote to the first respondent inquiring if the first respondent would carry out what he termed its threat to bar the minor from attending school if he did not shave his beard.

That letter did not yield a positive response as the first respondent indicated it was yet to refer the applicant's letter to its legal practitioners for a response as the college had been closed as from 14 December and had just opened and so was yet to consult its legal practitioners.

As the 2019 first school term drew closer, the applicant paid school fees for the minor but the school would not allow the minor to attend school without complying with the requirement to be cleanly shaven.

As a consequence, the applicant launched this application.

It is pertinent to note, that, the fact that the applicant and the minor are Muslims is common cause. In this application, the applicant emphasised the fact, that, there is a family tradition in their family to be an Imam. In this regard, the minor is studying to be an Imam hence he is now leading a congregation in prayers. It is in that respect that he said the minor has to strictly adhere to the Islamic requirement for male persons not to shave the beard. The applicant alleged, that, by refusing to allow the minor to attend school without shaving, the school is effectively asking the minor to abandon his religion.

He also alluded to the infringement of the minor's freedom to religion, protected by section 60 of the Constitution, by ordering him to shave his beard before he can be allowed into the school premises.

Other sections he said were infringed include sections 56 and 75 of the Constitution.

The first to third respondents opposed the application.

A point in limine on the issue of urgency was raised and I decided it in the applicant' favour as I was of the view, that, though the applicant could easily have approached court in October 2018 when the school made it clear that the minor had to adhere to the school's Code of Conduct and that no exemption would be granted, as this involved the rights of a child, it ought to be dealt with expeditiously so that an appropriate decision is made on the future of the child's education.

HMA47-19 : TRIANGLE LIMITED and HIPPO VALLEY ESTATES LIMITED vs ZIMBABWE SUGAR MILLING INDUSTRY WORKERS UNION (ZSMIWU) and OTHERS
Ruled By: WAMAMBO J

The applicants filed an Urgent Chamber Application on 26 September 2019. The first to seventh respondents (Zimbabwe Sugar Milling Industry Workers Union, Godfrey Katerere, Brawl Chikandiwa, Tavonga Vandirai, Lucia Chirilele, Nokhutula Dube and Faster Gono) filed opposing papers on the date of the hearing.

The 8th to 14th respondents (Berrington Zvanyanya, Samule Jijinka, P.Chikami, Z. Manara, A. Sibanda, J. Gwanyanya and Admore Hwarare) did not file any papers and their position is that they do not oppose the application, if the terms thereof are broadened to encapsulate their interests.

Mr K. Shamuyarira, a trade unionist representing the 15th respondent (Zimbabwe Federation of Trade Unions) is opposed to the application. He also did not file opposing papers.

The relief sought was amended at the eleventh hour.

The first to seventh respondents (Zimbabwe Sugar Milling Industry Workers Union, Godfrey Katerere, Brawl Chikandiwa, Tavonga Vandirai, Lucia Chirilele, Nokhutula Dube and Faster Gono) opposing papers were predicated upon the original relief sought.

The relief that is now sought reads as follows;

“1. INTERIM RELIEF SOUGHT

1.1 It is ordered that pending the final resolution of this matter either in the court of first instance or an appeal;

(a) The applicants are to deposit the 'Trade Union Dues' for the Zimbabwe Sugar Milling Industry Workers Union into the Master of the High Court Trust Account until the final resolution of SC518/19.

2. FINAL TERMS OF THE PROVISIONAL ORDER

2.1 The interim order is confirmed.

2.2 The 1st to 14th respondents shall pay costs of suit on an Attorney and client scale.”

The background of the matter can be traced back to a matter adjudicated upon by MAFUSIRE J in HMA38-19 referred to as Zvanyanya and Others v ZISMIWU and Others.

This matter was heard on 23 May 2019 and 27 June 2019 and the date of written reasons is 28 August 2019.

In HMA38-19 the applicants therein, who are members of a faction of a trade union, sought to have three respondents (namely 2nd, 3rd and 4th respondents, Godfrey Katerere, Brawl Chikandiwa and Tavonga Vandirai)) to be disqualified from membership of the trade union, and, flowing therefrom, to be disqualified from holding positions in the trade unions National Executive Committee. The applicants in HMA38-19 also sought an order to hold elections to choose members of the National Executive Committee and to hold annual general meetings in terms of its Constitution.

MAFUSIRE J resolved the issues by way of an order which reads as follows;

“(i) The second, third, and fourth respondents ceased being members of the first respondent upon the termination of their contracts of employment with the seventh respondent.

(ii) By reason of paragraph (i) above the second, third, and fourth respondents are hereby disqualified from holding any positions in the first respondents national executive committee.

(iii) The first respondent shall hold elections to choose members of the national executive committee within sixty (60) days of the date of this order, or within such other time frame as may be agreed upon.

(iv) The first respondent shall hold an annual general meeting in terms of its Constitution by no later than the 31st December 2019.

(v) The costs of this application shall be borne by the first, second, third, and fourth respondents, jointly and severally.”

The first to sixth respondents (Zimbabwe Sugar Milling Industry Workers Union, Godfrey Katerere, Brawl Chikandiwa, Tavonga Vandirai, Lucia Chirilele and Nokhutula Dube) have since appealed against the whole, final and definitive judgment under HMA38-19 to the Supreme Court. The appeal appears under cover of SC518/19.

It would appear that specifically because of the order under HMA38-19, and the developments thereafter, the acrimony between the parties intensified.

It may be necessary to identify the parties at this stage.

The first and second applicants (Triangle Ltd and Hippo Valley Estates Ltd) are the employers.

The first respondent (Zimbabwe Sugar Milling Industry Workers Union) is a registered trade union in terms of the laws of Zimbabwe.

The second to seventh respondents (Godfrey Katerere, Brawl Chikandiwa, Tavonga Vandirai, Lucia Chirilele, Nokhutula Dube and Faster Gono) are members of a faction of the first respondent while the eigth to fourteenth respondents (Berrington Zvanyanya, Samule Jijinka, P.Chikami, Z. Manara, A. Sibanda, J. Gwanyanya and Admore Hwarare) are members of the second faction.

The two factions are involved in a fierce battle to control the first respondent.

The fifteenth respondent (Zimbabwe Federation of Trade Unions) is ostensibly the mother body of the first respondent (Zimbabwe Sugar Milling Industry Workers Union) while the fourteenth respondent (Admore Hwarare) is cited in her official capacity.

The employer is, by virtue of the law, enjoined to transmit union dues to the first respondent.

The situation has been complicated by the fights and disagreements between the two factions set on wrestling and winning control over the first respondent.

The applicant is of the view, that, in order to safeguard the union dues they should be transmitted to a trustworthy and secure institution, namely, the Master of the High Court. This is to prevent the funds being misused or to stop or prevent the various warring factions seeking to apportion a slice of the cake to themselves.

As is usual in such applications, points in limine were raised.

Some of the points in limine seem to have been abandoned while others were seemingly overtaken by events.

Points in limine raised by the first to seventh respondents were;

Firstly, that the matter is not urgent.

Counsel for the first to seventh respondents referred to principles on urgency and various case law. She pointed out, that, the applicant filed heads of argument on 30 September 2019 as well as an amended draft order. These two sets of documents were only served on her, as counsel for the first to seventh respondents, ten minutes before the scheduled time for the hearing of this application. No warning was given of the amended draft order.

Counsel for the first to seventh respondents avers, that, in HMA38-19 the applicants chose to abide by the decision of the Court. She sought to demonstrate, that, the various cases relied upon by the applicants are either misplaced, irrelevant, or misunderstood. She averred, that, the applicants should not have approached the court without notifying all the parties.

In a long line of cases, the issue of urgency has been defined and traversed. Among other cases, see: Kuvarega v Registrar General and Another 1988 (1) ZLR 188 (HC); Shandong Taishon Sunlight Investments Limited v Yunnan Linkun Investments Group Company Limited & Others HH06-16…,.; Triple C Pigs (Partnership and Colcom Foods Limited) v The Commissioner General of Zimbabwe Revenue Authority HH07-07…,.; Document Support Centre (Private) Limited v T.F. Mapuvire HH117-06…,.

Counsel for the applicants argued, that, the matter is indeed urgent. He strongly based his argument on the fact that the applicants are enjoined, at law, to disburse union dues to the trade union every month lest they face civil or criminal liabilities.

He further pointed out, that, there has been a lot of infighting between the two factions of the first respondent. To that end, the two factions are battling, through the employer, and either faction is demanding union dues from the applicants.

A lot more was traversed by counsel for the applicants which spoke more to the merits of the case.

I am, however, of the view that urgency has been proved.

There is clear acrimony between the alleged factions. Pursuant to the judgment in HMA38-19 the fighting for control of the first respondent intensified. The appeal launched against the decision did not help matters either. The legal obligation of the applicants, to disburse union dues to the first respondent, is common cause.

The need to clarify how the disbursement, and to whom it should be made, is clearly an urgent matter.

I am satisfied, that, when the need to act arose, the applicants did act expeditiously in the circumstances of this case.

HMA55-19 : GREAT ZIMBABWE UNIVERSITY vs NESBERT MAREVERWA
Ruled By: WAMAMBO J

The applicant seeks a rei vindicatio order. It seeks to recover its property retained by the respondent.

The applicant is a body corporate duly constituted in terms of the Great Zimbabwe University Act [Chapter 25:24].

The respondent was an employee of the applicant holding the position of Chief Security Officer.

The respondent holds property belonging to the applicant, which property the respondent was holding by virtue of his being an employee of the applicant. The property consists of guns, a security motor vehicle and office and gun cabinet keys.

The respondent's contract of employment with the applicant has been terminated.

As is usual in such applications, respondent raised a number of points in limine.

The respondent contends, that, there is no proper certificate of urgency filed; that the matter is not urgent; that the draft order is defective and unlawful.

I will briefly deal with these points in limine....,.

On urgency, the respondent avers, that, the founding affidavit does not reflect urgency.

It is deposed to by the Vice Chancellor, Professor Rungano Jonas Zvobgo. A number of complaints are raised by the respondent. I find the complaints unmeritorious. The founding affidavit gives the background of the matter in detail. It spans almost 3 pages. The detailed background is essential for one to appreciate what steps the applicant took in the matter, what options were open to it, and whether or not there are alternative remedies.

For an appreciation of what the founding affidavit establishes, I will delve into some detail on the founding affidavit. This might illuminate issues, particularly on the raised issue of lack of urgency.

The facts, as per the founding affidavit, are as follows:

The respondent's employment with the applicant was terminated with the effective date of termination being 31 October 2019. The respondent retained the keys to the office housing the gun cabinet and the keys to the gun cabinet. The respondent also retained a motor vehicle used in the Security Department. As matters would have it, as will become clearer in due course, the three guns are lodged in the gun cabinet - effectively, the applicant cannot access its office and its three guns.

The applicant took steps to recover the property at the centre of the dispute to no avail.

The applicant sought the help of the police. To achieve this, the applicant wrote a letter, dated 23 October 2019, directed to the police seeking recovery of, inter alia, the property in contention in this case. The letter further emphasises the urgency of the matter citing that the State President would preside over a graduation ceremony at the applicant's premises on 1 November 2019.

The police responded to the request through a letter dated 29 October 2019 and indicated, that, the matter is more civil than criminal. In paragraph 4 of the said letter, the Officer Commanding, Police Masvingo Central District who penned the response indicated that his office is open “for further assistance should you legally require it.”

The invitation to assist culminated in the police taking custody of the guns and ammunition in question on 31 October 2019.

On 4 November 2019, the police returned the guns and ammunition to the gun cabinet.

Counsel for the applicant argued that there were efforts to calm the situation and the return of the guns and ammunition marked the point when the applicant acted by filing this application a day later.

I am satisfied in the circumstances, that, the applicant did act when the need to act arose and that he did so expeditiously. To that end, I dismiss this point in limine.

View Appeal
HH236-18 : MFUNDO MLILO vs THE PRESIDENT OF THE REPUBLIC OF ZIMBABWE
Ruled By: MANGOTA J

This is an ordinary opposed application which the applicant turned into an urgent one. He did so through a letter which he addressed to the Registrar of this court. The letter is dated 20 February 2018. It reads, in part, as follows:“2. As you will be aware, the application, among ...

“2. As you will be aware, the application, among other things, seeks to challenge the constitutionality of the Presidential Powers (Temporary Measures) Act [Chapter 10:20] amended to Electoral Act Regulations 2016 published in Statutory Instrument 117/2017.

3. As you are aware of, the regulations we (sic) enacted on 15 September 2017 and therefore they will naturally expire by 15 March 2017.

4. In order to avoid a situation where arguments will be academic on aspects of the regulations, and given the fact that both parties have filed heads of argument in this matter, we seek that the matter be determined urgently.”…,.

It is evident, from the foregoing, that, the applicant was rushing against time.

However, the application was, in my view, not urgent. It was more of self-created urgency than it was urgent in the sense which the rules of court contemplate.

The Regulations were published on 15 September 2017. The applicant did not apply, as he should have done, shortly after the publication of the Regulations. He only filed his application some thirty-five (35) days after the event. He filed it on 20 October 2017. He did not explain the cause of the delay.

The form which he employed showed, that, the application should not have been enrolled on applications which fall under Rule 244 of the High Court Rules 1971. It did not have a certificate from a legal practitioner. It did not give reasons for its urgency. It was filed under Form 29 instead of under Form 29B of the rules of this court.

Urgency was, therefore, created by the applicant himself.

He suddenly became aware of the date of the expiration of the Regulations. He, accordingly, requested the Registrar to draw the court's attention to his predicament, and, in the process, he moved the court to hear the application before the period of the expiration of the Regulations.

The applicant used the Regulations as his point of entry into the substance of the application.

HH335-14 : ZUWA DAMSON vs LINCOLN USHAMBA
Ruled By: TSANGA J

This urgent application turned upon the issue of whether an order of maintenance from the Magistrate Court, that is currently pending review, can be varied, even provisionally, by the High Court through an urgent chamber application.

My immediate legal view was that this was not possible.

However, since the parties were self-actors, and since on the affidavit of urgency, the matter involved a young child who had been sent home for non-payment of fees, as upper guardian, I did set down the matter down for hearing as an urgent application so as to determine more fully the circumstances and nature of the urgency expressed in the affidavit.

However, having heard the parties on the circumstances of the urgency, I declined to grant the order sought by the applicant and dismissed the matter as not urgent.

This judgment captures the full reasons for so holding.

From the applicant's founding affidavit, the basis of her claim was that a child whom she has with the respondent, who is doing Grade One at Cornway College, had been thrown out of school for outstanding payment of fees. Under an existing Maintenance Order, from 2010, the respondent has been paying $150 a month as maintenance and $670 a term as fees. The applicant applied for a variation upward in February 2014 from $150 to $600 for child's upkeep and from $670 to $1,550 for school fees.

She obtained a default judgment in Bulawayo for these amounts on 24 April 2014.

However, on May 19, 2014 (ruling stamped 9 June 2014), this default judgment was rescinded and the Maintenance Court ordered that the maintenance should revert back to $150 for upkeep and $670 for the school fees. The respondent, though, was also ordered to repay a sum of $248 constituting various expenses for settling the child at Cornway College.

The applicant's affidavit of urgency, as well as her founding affidavit, indicated that she had brought the proceedings of the Magistrate Court for review under HC4663/14, which matter was still pending.

The basis of the urgent application brought before me was the insufficiency of the maintenance amount to meet the child's costs and the fact that the child had been thrown out of the school for owing the sum of $1,021 in fees.

The applicant's contention was that the sum of US$670 represented the fees for when the minor was still at pre-school.

What was gleaned from a letter attached from the school, regarding the amount owing to Cornway, where the child is now doing Grade One, was that of the sum owing, $571, was a balance from the 1st term. The fees for the second term was stated as $1,100 and US$650 had been paid thus bringing the total amount outstanding to $1,021.

The applicant's averment was that the respondent, who owns KWMM Investments (Pvt) Ltd, and is said to operate a fleet of 16 haulage trucks, is able to pay. She therefore sought an order couched as follows:

"TERMS OF FINAL ORDER SOUGHT

(i) That you show cause to this Honourable court why a final order should not be made in the following terms.

(ii) That pending the finalisation of case HC4663/14, Respondent be ordered to maintain the minor in terms of Annexure C.

(iii) That Respondent bears the cost of this application.

INTERIM RELIEF GRANTED

Pending determination of this matter there is granted the following relief:

(i) That Respondent is ordered to pay all the school arrears forthwith and to provide $500 for the upkeep of the minor child per month.

(ii) That this provisional order be served upon the Respondent by Sheriff."

There were three primary reasons for my rejecting the matter as urgent once the urgency had been ventilated and the circumstances surrounding it:

(i) The first was that the order of maintenance granted at $150 per month for upkeep and $670 for fees per month remains extant.

(ii) Secondly, the review of the matter by the magistrate, ordering that the maintenance revert to the original amount stated above, is still pending.

(iii) Thirdly, the applicable Constitutional provisions call into play the participation of both parents towards their children's needs. As such, where an order already exists that governs a particular parent's contribution, a matter cannot be rendered urgent by unilaterally upping that party's contribution and subsequently seeking to have that endorsed, when not honoured, by way of an urgent application.

The urgency, under such circumstances, becomes self-created.

HH636-15 : SALTLAKES HOLDINGS (PVT) LTD and TEMBA MLISWA vs CBZ BANK LIMITED and THE SHERIFF OF ZIMBABWE N.O.
Ruled By: CHIGUMBA J

This is an urgent chamber application for stay of execution pending the determination of an application for rescission of judgment.

The certificate of urgency was signed by Mr. Takunda Samuel Gumbo, who stated that the applicants property had been attached by the second respondent, at the instance of the first respondent, and that, the applicants stood to be irreparably prejudiced if the relief sought was not granted.

Goods were attached on 29 June 2015 and the application was filed a day later. Execution was due on the 2nd of July 2015.

The applicants had applied for the rescission of the default judgment obtained against them by the first respondent under case number HC6111/15.

It was submitted, that, a normal court application would render the outcome of the application for rescission of judgment irrelevant - a brutum fulmen.

Mr. George Marere, a director of the first applicant, deposed to the founding affidavit in which he averred the following:

(i) Firstly, on urgency: that the relief sought renders this matter 'inherently urgent'.

(ii) Execution of the writ would cause irreparable harm to the applicants.

(iii) There is no cause of action against the applicants in the main matter so the application for rescission of judgment has good prospects of success.

(iv) The first respondent fraudulently inflated the principal sum claimed and that is a triable issue which can only be resolved by the adducing of evidence.

(v) The first respondent is not entitled to the amount it is claiming, in that, it is charging usurious interest, amongst other things.

(vi) If the default judgment is executed, the applicants stand to lose their livelihood.

Mr. Thomas Tsvangirai Gambiza deposed to the opposing affidavit on behalf of the first respondent.

He averred, that, this matter was not urgent because no evidence was adduced to buttress the requirements of urgency. A matter is not rendered urgent simply because an application for rescission of judgment has been filed and is pending resolution.

He attached a letter dated 3 December 2014, addressed to the applicants legal practitioners, which was a warning to them that default judgment was about to be obtained because the appearance to defend was defective as it was filed out of time. He submitted, that, the application for rescission of judgment has no prospects of success.

The test for urgency is settled. It has been held that:

“Applications are frequently made for urgent relief. What constitutes urgency is not only the imminent arrival of the day of reckoning; a matter is urgent, if, at the time the need to act arises, the matter cannot wait. Urgency which stems from a deliberate or careless abstention from action until the deadline draws near is not the type of urgency contemplated by the Rules.”

See Kuvarega v Registrar General and Anor 1998 (1) ZLR 189.

It has also been held that:

“For a court to deal with a matter on an urgent basis, it must be satisfied of a number of important aspects. The court has laid down guidelines to be followed. If, by its nature, the circumstances are such that the matter cannot wait, in the sense that, if not dealt with immediately, irreparable prejudice will result, the court can be inclined to deal with it on an urgent basis. Further, it must be clear that the applicant did, on his own part, treat the matter as urgent. In other words, if the applicant does not act immediately and waits for doomsday to arrive, and does not give a reasonable explanation for that delay in taking action, he cannot expect to convince the court that the matter is indeed one that warrants to be dealt with on an urgent basis….,.”

See Mathias Madzivanzira & 2 Ors v Dexprint Investments (Private) Limited & Anor HH145-02; Church of the Province of Central Africa v Diocesan Trustees, Diocese of Harare 2010 (1) ZLR 364 (H); Williams v Kroutz Investments (Pvt) Ltd & Ors HB25-06; and Lucas Mafu & Ors v Solusi University HB53-07.

In my view, which I previously expressed in the case of Finwood Investments (Private) Limited & Anor v Tetrad Investment Bank Limited & Anor (an unreported HH-2014 case. See also Denenga v Ecobank HH177-14, in order for a matter to be deemed urgent, the following criteria, which have been established in terms of case law, must be met:

“A matter will be deemed urgent if:

(a) The matter cannot wait at the time when the need to act arises.

(b) Irreparable prejudice will result if the matter is not dealt with straight away without delay.

(c) There is prima facie evidence that the applicant treated the matter as urgent.

(d) Applicant gives a sensible, rational, and realistic explanation for any delay in taking action.

(e) There is no satisfactory alternative remedy.”

It is my view, that, the requirements of urgency were not met in this matter because the evidence supports the conclusion, that, the applicants failed to act when the need to act arose on 3 December 2014.

No explanation has been proffered at all as to why the applicants did not respond to the letter in which they were advised that their appearance to defend was defective. No explanation at all has been proffered as to why no application was made to uplift the automatic bar. We have not been favored with an explanation as to why the appearance to defend was filed outside the prescribed time period. We have not had the courtesy of being favored with a reasonable explanation as to why the notice of entry of appearance to defend was not served on the first respondent's legal practitioners of record within the prescribed time period.

The matter could not wait in December 2014 when the need to act arose.

In the absence of any explanation from the applicants, which is sensible, rational, or realistic, we conclude that there was deliberate, if not careless, abstention from acting when the need to act arose.

There is no evidence that the applicant acted when the need to act arose.

The urgency is self-created, and it is not the type of urgency envisioned by the Rules of this court which would operate in favor of allowing the applicants to shortchange other litigants by being allowed to jump the queue.

There is no prima facie evidence that the applicants treated the matter as urgent.

Prejudice which might be occasioned from the loss of money is not irreparable; the applicants can always be restituted. There is nothing 'inherently urgent' about these circumstances.

However, out of abundance of caution, I will address the merits of the matter.

HH125-17 : GRANDWELL HOLDINGS vs ZIMBABWE CONSOLIDATED DIAMOND COMPANY LTD and COMMISSIONER GENERAL, ZIMBABWE REPUBLIC POLICE and MBADA DIAMONDS (PVT) LTD
Ruled By: TSANGA J

In March 2016, the applicant, Grandwell Holdings (Grandwell), which owns a 50% shareholding in Mbada Diamonds [Private] Limited (Mbada), a joint venture initiative for diamond mining in Chiadzwa, obtained an interim order under HC1977/16 (HH193-16).

The other 50% shareholding in Mbada is owned by Marange Resources [Private] Limited (Marange), a Government-owned company.

According to the applicant, the elements of the order which was granted entitled its security personnel, and its entire chain, to return to Chiadzwa in order to safeguard its assets. Among these are said to be diamond ore and unprocessed diamonds that are kept in a vault. The diamond ore, which has been crushed, awaits removal of diamonds.

What is not in dispute is that from March last year, the applicant's security personnel went on site as per the order by the court in HC1977/16.

What has brought the applicants back to court, on an urgent basis, is its allegation that their security personnel at the diamond site have now been removed and that massive looting of their diamond ore has taken place at the instance of the first respondent, Zimbabwe Consolidated Diamond Company Limited (ZCDC), and continues to take place - aided and abetted by the Zimbabwe Republic Police (the police), as the second respondent.

The ore is said to being loaded without any recording or chain of command making it impossible to ascertain what is being taken.

With the core mingling of the diamond ore with that being mined by the Zimbabwe Consolidated Diamond Company Limited (ZCDC), the fear is that it would be impossible to tell which diamonds come from which ore and that therein lies the irreparable harm.

Mbada Diamonds [Private] Limited's security personnel have been sterilised by these actions of ZCDC.

To compound the problem, the Zimbabwe Consolidated Diamond Company Limited (ZCDC) is said to have brought onto the mining site security personnel previously hired by Mbada Diamonds [Private] Limited who know how to open the vault locks. As such, a real fear is that of the diamonds being stolen.

Further, if the ore and the diamonds are taken, an equally real fear is that the pending appeal before the Supreme Court would be rendered nugatory.

Having invested US$100m in Mbada Diamonds [Private] Limited, Grandwell Holdings says it has a real and substantial interest in protecting the interests of Mbada Diamonds and its own investment.

An attempt is said to have been made to file the application on behalf of Mbada Diamonds [Private] Limited, but, it had failed to secure the signatures of representatives on the Board of Mbada Diamonds who represent Marange Resources [Private] Limited.

Grandwell Holdings, being a 50% shareholder in Mbada Diamonds [Private] Limited had therefore brought a derivative action to enforce the rights of Mbada Diamonds and to seek a possessory remedy to restore possession.

The basis upon which Grandwell Holdings says that Mbada Diamonds [Private] Limited has been despoilt is paragraph 7 of the Order that was granted in HC1977/16. The paragraph was couched as follows:

“Paragraph 7

For the purposes of safeguarding assets, all of the fifth respondent's security personnel, with all their chain of command, shall be entitled, authorised, and empowered to remain at the fifth respondent's mining site at Chiadzwa Diamond Concession, as directed in paragraph 2 of the order of this court on 29 February 2016, until the resolution of this matter.”

The police, as second respondents, were said not to have appealed against the order, whilst the Zimbabwe Consolidated Diamond Company Limited (ZCDC) which had indeed appealed, had only done so against the finding that it had committed acts of spoliation.

The appeal was therefore said to be in part, leaving paragraph 7, in essence, extant.

In addition, the fact, that, there was no appeal against the presence of security personnel, as per the court order, which is said to be extant, was said to be supported by the fact, that, for almost a year Mbada Diamonds [Private] Limited's security personnel remained firmly on site even as the appeal was pending.

However, the Zimbabwe Consolidated Diamond Company Limited's position is that any removal that has taken place has been as per the court order and arises from the fact, that, the mining grants which were acknowledged to have expired in the said order of the court have not been renewed.

Spoliation per se is denied.

The police say they are there in terms of their constitutional mandate, in section 219 of the Constitution, to maintain peace and order and safeguard property. They have asserted, that, they cannot be interdicted from carrying out a lawful mandate. Furthermore, their standpoint is that no police report was made regarding any theft to diamonds.

They too, essentially, deny despoiling Mbada Diamonds [Private] Limited.

Points in Limine

Several technical points in limine were raised on behalf of the Zimbabwe Consolidated Diamond Company Limited (ZCDC) and the Commissioner of Police....,.

The urgency of the matter was also queried on account that Grandwell Holdings had written, in January, to another set of practitioners with the same complaint. As such, it was said that urgency had arisen then and not at this point.

With the removal of ore, and the denial of security personnel at the site having been said to be ongoing, I cannot see how the matter ceases to be urgent.

As highlighted in the case of Telecel Zimbabwe (Pvt) Ltd v Portraz & Ors HH446-15, the essence of an urgent application is that if the court fails to act, the position would be irreversible to the prejudice of the applicant.

As was also pointed out in that case, by MATHONSI J, the issue of the urgency vis a vis the time taken to bring an application has tended to be blown out of proportion.

In that, case 22 days was said not to be inordinate.

In casu, where the violation is said to be ongoing, I cannot see how the matter loses its urgency simply because a letter was written some 18 days prior.

HH709-15 : ODAR HOUSING DEVELOPMENT CONSORTIUM vs SENSENE INVESTMENTS (PVT) LTD and MINISTER OF LOCAL GOVERNMENT, PUBLIC WORKS AND NATIONAL HOUSING and ATTORNEY–GENERAL
Ruled By: MAFUSIRE J

This was an urgent chamber application. At the end of the hearing, I dismissed it with costs on a legal practitioner-and-client scale. I deprecated the conduct of the applicant's legal practitioners.

The purported urgent chamber application was not only bad in many respects, it was incurably bad.

What I was particularly concerned with were the patent falsehoods in the applicant's papers.

Furthermore, there was an apparent disconnection between the order sought, the facts laid out in support thereof, and the allegations in the certificate of urgency.

Here are the details....,.

(c) The Relief Sought

The applicant's draft order was couched thus:

“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. That, the 1st and 2nd Respondents be and are hereby interdicted from interfering with Applicant's operations on the Remainder of the Farm Ordar situate in the district of Salisbury pending determination of an application seeking the setting aside of title transfer under Deed No.2807/2015;

2. That, the 1st Respondent and 2nd Respondents (sic) shall bear the costs of this application on a legal practitioner and client scale.

INTERIM RELIEF GRANTED

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

1. That, the 1st Respondent be and is hereby interdicted from harassing Applicant's members and/or beneficiaries in any way whatsoever in respect of the Remainder of the Farm Odar immediately upon service of this order.”

The background to this case, in summary, and in my own words, as I understood it, and avoiding much of the contentious stuff, was that the applicant was a consortium or joint venture of some 56 members, comprising, among many others, companies, and State enterprises.

The first respondent was a private company fronted by one Phillip Chiyangwa (“Chiyangwa”).

The second respondent represented the Government.

It was said, in 2006, the Government, in terms of two written agreements, allocated to the applicant some 605,8092 hectares of a property known as Ordar Farm (“the property”).

The allocation was so that the consortium could develop, at its own cost, housing units for its members.

One important feature of the joint venture agreement was that the consortium would, through the Government, pay compensation to the former owner of the land at levels pegged by Government.

This former owner was identified in the agreements as the Zimbabwe Tobacco Association (“ZTA”).

Another feature of the agreements was that the parties to the joint venture would establish a partnership whose members contributions to the capital costs and whose entitlement to the individual land units would be in the proportions as set out.

The day to day management of the partnership would be entrusted to a committee of twelve persons appointed by the partners.

In due course, the Government would pass title to the owners of the individual units of land.

The applicant's case before me, again in my own words, and largely staying clear of the hotly contested facts, was that it had kept its side of the agreement.

Among other things, the relevant developmental permits had been put in place. The property had substantially been developed.

Yet, the Government had blatantly reneged on virtually every other undertaking that it had made to the applicant.

Among other things, the Government had surreptitiously surrendered the property to Phillip Chiyangwa, through his company, the first respondent herein.

A week before the application, the Government had, nicodemously, executed a Deed of Grant over the property in favour of Phillip Chiyangwa's company.

The applicant's members were now at Phillip Chiyangwa's mercy.

They were facing constant harassment from him as he relentlessly pursued compensation from them in return for individual title to the individual units occupied by them in terms of the agreements with the Government.

He was busy flighting malicious adverts in the media and making malicious reports to the police against the applicant's Management Committee.

The applicant did not recognise Phillip Chiyangwa or his alleged rights or title to the property.

In separate proceedings before this court, the applicant said it was challenging Government's actions. In particular, the applicant wanted the title to Phillip Chiyangwa's company reversed.

So. the applicant's case before me was that pending determination of the main case, it wanted a temporary interdict.

It was the nature of that temporary interdict that was the bone of contention.

Prima facie, the applicant had made out a case of double-dealing by the Government.

The Government's conduct was put into serious question.

It had acquired the property; it had allocated it to the applicant; the applicant had expended vast sums of money in line with the agreements; the applicant's members anticipated getting title to the individual units of land over which they had taken occupation, or were in the process of doing so; the level of compensation was, or had to be assessed by the Government.

Then, Phillip Chiyangwa zooms from nowhere, brandishing a title deed issued by the same Government - over the same property.

And the same Government was now tossing the applicant's members to Phillip Chiyangwa to whom payment of the compensation had to be made.

Thus, the Government was in the dock. It owed an explanation.

It was its secret execution of the title deed in favour of Phillip Chiyangwa's company that had prompted the applicant to approach the court on an urgent basis.

That, basically, was the applicant's case.

Unfortunately, it was not the one before me.

It was the case pending before this court for determination at another time and by another judge.

The case before me, as summarised in the interim relief sought, was that I should interdict Phillip Chiyangwa's company from “…, harassing Applicant's members and/or beneficiaries in any way whatsoever….,.”

But, there was a problem with that.

From the papers, it was not Phillip Chiyangwa's company that was doing the harm complained of - it was him personally.

But, he was not a party to the application.

Secondly, and more importantly, what really was being sought was an interdict to stop Phillip Chiyangwa from making police reports against the applicant's Management Committee.

There was attached to the founding affidavit, a document headlined “WANTED BY POLICE”.

Below were pictures of six named individuals and six other names without pictures to them. The six pictures included that of the deponent to the founding affidavit, one Benny Tangai Matenga (“Matenga”).

According to the applicant, the pictured and named individuals were the applicant's Management Committee.

The document offered a reward to anyone who reported them to the police.

However, before me, there was no telling whether the document had been from Phillip Chiyangwa himself or the police.

Also attached to the applicant's papers was another document headlined “PUBLIC NOTICE - WARNING MBAVHA KU SOUTHLEA PARK.”

“Mbavha” is Shona for thief or thieves.

In essence, the document informed the public, that, it had come to the attention of the first respondent that the named individuals, and other “unscrupulous” elements, were illegally selling residential Stands to unsuspecting members of the public.

The document said a report had been made to the police and that only the company could legitimately issue title deeds over the property.

In his affidavit, Phillip Chiyangwa said those individuals were the so-called land barons who had illegally sold off pieces of land from his company's property and whom he had reported to the police.

The point is: it is everyone's right to report what they may perceive to be criminal conduct.

The interim order sought was manifestly incompetent.

In substance, it was sought to gag someone from exercising his right or freedom.

Although not really conceding the point, counsel for the applicant seemed to appreciate the difficulty.

She sought to amend the draft order so that the interdict would read something like this:

“…, to restrain the first respondent from interfering with the applicant's operations at the property; or disposing of any Stands thereon and from harassing the applicant's members and from publishing any false statements pending the determination of the main case….,.”

The first respondent opposed the proposed amendment.

Among other things, counsel for the first respondent pointed out, that, it was the applicant, not the respondents, that was selling off units of land.

In my view, the proposed amendment still amounted to the same thing.

The applicant's real case was that it was for Government to answer why it was ditching its members.

But, no relief was being sought against the Government.

Furthermore, other than the two documents aforesaid, and the single allegation in the founding affidavit to the effect, that, such documents had been flighted in the media by the first respondent, there was nothing else said or shown that amounted to harassment.

There was simply a disconnection between what the application said or highlighted in its application, and the relief sought in the draft order.

Such defect was incurable.

That was yet another reason why I refused to deal with the application.

(d) Falsehoods or material facts concealed

The applicant blatantly neglected to take the court into its confidence. Material facts were omitted from the founding papers.

This was fully exposed and exploited by the first respondent - with fatal consequences.

One example stuck out prominently.

As summarised above, the applicant condemned the Government for, as it were “selling” out to Phillip Chiyangwa.

The applicant did not recognise Phillip Chiyangwa or his company.

The applicant's position was that its members would pay compensation to no one else other than the Government.

The applicant's case, particularly that for urgency, was that it was only after the Government had surreptitiously issued title to Phillip Chiyangwa's company, on 8 July 2015, that it had finally become aware of the Government's sinister dealings.

That was what had triggered the urgent chamber application a week later.

To expose the falsehoods, the first respondent produced several correspondence and documents.

These showed, that, as far back as December 2014, the Government had written to the first respondent, inter alia, confirming its resolution to hand over the property back to it and advising that the first respondent would now receive its compensation directly from the applicant.

The first respondent, had, in turn, copied that letter to the applicant some five days later.

In answer to that, the applicant claimed not to have received the correspondence.

However, it admitted that it had received an agreement, dated 15 April 2015, between the Government and the first respondent.

That agreement was to the same effect as the correspondence.

In fact, it was more elaborate.

It explained the background to the devolution of the property from the Zimbabwe Tobacco Association (ZTA) to the first respondent. It explained how the first respondent would develop the property and receive compensation directly from the applicant, and how the Government would issue a Deed of Grant over the property in favour of the first respondent to facilitate the raising of capital for the developments intended, etc.

All that the applicant challenged, in the answering affidavit, was some inconsequential aspect of that agreement.

Its major argument was that the Government was dealing with the first respondent at its own risk because it had an agreement with the applicant over the property.

But, that was not the point.

The point was that such communication or documents had been concealed from me.

Furthermore, if the applicant had become aware of the Government's intention, inter alia, to issue a title deed over the property in favour of the first respondent as far back as, according to the applicant itself, mid-April 2015; how could the matter then suddenly become urgent only in mid-July 2015 when the applicant finally filed the urgent chamber application?

HH269-15 : ELIZABETH MAPURISA and ENESIA GUTU and SIMBA MOYO and RAISHEN MOYO vs NEHANDA HOUSING COOPERATIVE and SUNGAMBERI HOUSING COOPERATIVE
Ruled By: BERE J

In launching this urgent application, the applicants have urged this court to grant them interim relief couched as follows:“INTERIM RELIEF GRANTED1. 1st Respondent be and is hereby interdicted from selling Stands to any person either natural or juristic.2. 1st Respondent's management shall not dispose of any asset belonging to 1st ...

In launching this urgent application, the applicants have urged this court to grant them interim relief couched as follows:

“INTERIM RELIEF GRANTED

1. 1st Respondent be and is hereby interdicted from selling Stands to any person either natural or juristic.

2. 1st Respondent's management shall not dispose of any asset belonging to 1st Respondent or purchased using 1st respondent members contributions.

3. 2nd Respondent shall not threaten nor interfere with administration of 1st Respondent's activities.”

This application is premised on the first applicant's other application pending in this court filed under HC9842/14 on 6 November 2014. I will refer to this particular application as the main application for ease of reference.

The first applicant's main application was filed in terms of section 85(1)(c) of the Constitution of the Republic of Zimbabwe, and, in that application, the first applicant appears as the only applicant, who, on 9 September 2014, was suspended by the first respondent.

In that main application, the first applicant sought, inter alia, to challenge the general meeting of 27 September 2014 which appears to have ushered in the Management Committee whose coming into being she was not happy with. She also sought the disqualification of this Management Committee.

There is no doubt that the applicant has problems with the Management Committee of the first respondent.

A date of hearing is yet to be provided in the main application.

The final order desired by the applicants, in the instant matter, is to bar the first respondent from operating until such time the main matter is determined.

The urgent application filed by the applicants has been strenuously opposed by the two respondents on the basis, that, there is nothing that has been placed before this court to justify the urgency of this matter given that the main issue that triggered the applicant's concern were the election of office bearers for the first respondent on 27 September 2014.

The position of the first respondent, and supported by the second respondent, is that from September 2014 the applicants did nothing really to protect their interests and that they have had to wait until the filing of this urgent application on 10 March 2015.

There is no bona fide explanation as to why action was not taken immediately the first respondent's management was put in place to avoid the potential prejudice now being faced by the second respondent which has projected itself as an innocent party in its dealings with the first respondent.

The applicants have, instead, gauged the computation of their time to file this urgent application from the 8th and 9th of March 2015.

The 8th of March 2015 is alleged to be the date when the applicants learnt of the transaction between the first respondent and the second respondent concerning the disposal of certain land in which the first applicant has an interest. The significance of 9th of March 2015 is the date when the applicants were notified of their eviction from the co-operative's houses by the first respondent.

The view that this court takes is that the coming into office of the new office bearers of the first respondent, on 27 September 2014, was with the full knowledge of the applicants; and, it ought to have dawned on the applicants, that, the new Management Committee was going to embark in running the affairs of the first respondent in a manner they considered to be in the best interest of the first respondent.

The transactions involving the first respondent and the second respondent must clearly be looked at within this context.

The casual approach adopted by the applicants does not justify urgency in this case.

The eviction of the applicants by the first respondent, initiated on the 9th of March 2015, cannot, in my view, be looked at as the most opportune time to bring the instant application to court on an urgent basis, because, if the applicants feel very strongly that they have a good defence to that eviction process they have all the time, as prescribed by the court Rules, to deal with that process.

That process can be dealt with independent of the order desired in the first applicant's main application pending in this court.

There is a plethora of authorities which condemn litigants who want to benefit from self created urgency, and, this is one classic example of such a scenario: see Kuvarega v Registrar-General and Anor.

HMT24-20 : MATCHES CHADENGA vs MAGISTRATE MANHIBI N.O. and THE PROSECUTOR GENERAL
Ruled By: MUZENDA J

In Telecel Zimbabwe (Pvt) Limited v Postal and Telecommunications Regulatory Authority of Zimbabwe Others 2015 (1) ZLR 651 (H) per MATHONSI J…, the learned judge held that:“Urgent applications are those where, if the courts fail to act, the applicants may well be within their rights to dismissively suggest ...

HMT24-20 : MATCHES CHADENGA vs MAGISTRATE MANHIBI N.O. and THE PROSECUTOR GENERAL
Ruled By: MUZENDA J

This urgent chamber application was brought before me on 19 February 2020 in chambers. I adjudged that the application was not urgent.

On 11 February 2020, the applicant's counsel wrote to the Registrar seeking audience with the court and address it on the aspect of urgency.

The matter was set down for hearing on 17 February 2020.

On the date of hearing, the first respondent indicated, that, it was more concerned about the order of costs being prayed against the cited magistrate.

The second respondent opposed the application, arguing that the matter was no longer urgent given the background of the application.

The applicant is seeking the following relief:

“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. That the criminal matter under case number MTC129/18 be and is hereby stayed pending outcome of the review application under case number HC30/20.

2. That the respondents shall pay costs of this application jointly and severally the one paying the other to be absolved in the event of anyone of them opposing the application.

INTERIM RELIEF GRANTED

Pending finalisation of this matter, an interim order is hereby granted on the following terms:

3. Pending the finalisation of the matter, the respondents be and are hereby interdicted from continuing with the trial under case number MTC129/18 scheduled for the 10th of March 2020.”

BACKGROUND OF THE APPLICATION

The background of the matter, preceding the commencement of the urgent chamber application, is contained in the founding affidavit of the aggrieved applicant from paragraph 5.2 following:

“5.2 The trial proceedings started on the 15th of December 2018 and the State led one witness. Unfortunately, the second State witness was not available and the matter was postponed to the 18th December to allow the State to bring its witness.

5.3 On the 18th December 2018, the second witness was in default and the matter was postponed to the 22nd of January 2019, nonetheless, the second State witness was in default again.

5.4 My legal representative made an application for my removal from remand, which was declined, and the matter was postponed to the 12th of February 2019. First respondent ruled that she was affording the State a final opportunity to call its witness. This was the third postponement occasioned by the State. These postponements were made in order to ensure that the State would bring its second witness.

5.5 On the 12th February 2019, unfortunately, my legal representative, Mr Zviuya, was unable to attend court due to a personal emergency which resulted in him travelling to South Africa on that morning. On the day of the hearing, Mr Zviuya sent a junior lawyer, Ms Cresentia Tatenda Gutuza, to seek a postponement. Notwithstanding that it was the first time I sought a postponement, it was declined. The matter was stood down to 2:15 for continuation. At 2:15pm, first respondent allowed the second State witness to testify. After the State finished leading evidence, Ms Gutuza again applied for a postponement to enable Mr Zviuya, my legal practitioner of choice, an opportunity to cross-examine the witness. I did not understand why the first request for a postponement was refused given that my legal representative was absent due to reasons beyond my control.

5.6 Due to the fact that Ms Cresentia Tatenda Gutuza is not a criminal lawyer and does not have experience to cross-examine, she sought a postponement to allow Mr Zviuya to attend to the cross examination. The application was again declined and the 1st respondent indicated that the trial was to continue the following day with or without my legal representative notwithstanding that when the matter was postponed on the 18th December 2018 it was never agreed that the matter would roll over onto the 13th February 2019.

5.7 On the 13th of February 2019, Ms Cresentia Tatenda Gutuza could not attend due to other commitments. I was assisted by Mr Jakazi from Maunga Maanda and Associates to seek a postponement. I also furnished the 1st respondent with a letter attached herein marked 'A'. Again, the application for a postponement was declined and the matter was stood down to 11:15am.

5.8 In the meantime, Mr Zviuya dictated a letter from South Africa to the Provincial Magistrate in a bid to stop the injustice which was taking place in my case. I annexed hereto the letter marked 'B'.

5.9 I returned to court at 11:15am; however, the court only resumed at 12:45 and the matter, surprisingly, without any application for a postponement, was postponed to the 22nd February 2019.”

The applicant then instructed his lawyers to refer the matter to the Constitutional Court based on the violation and impartial court.

The applicant indicates, in his founding affidavit, that, he instructed his lawyers to apply for the recusal of the magistrate due to the manner she had conducted the applicant's trial.

On 12 March 2019, an application for the recusal of the magistrate was dismissed.

The applicant also requested for transcription of the record.

The first respondent informed the applicant that the matter was going to be proceeded with on 27 March 2019 whether the applicant had a lawyer or not.

In March 2019, the applicant filed an urgent chamber application for stay of proceedings pending an application for review of the proceedings within a period of 30 days.

The matter was continuously postponed, the last date of postponement was 5 February 2020.

The transcribed record was availed to the applicant on an unspecified date in December 2019 and the applicant filed an application for review.

Meanwhile, the initial urgent chamber application, under HC77/19, was withdrawn after it had been initially removed from the roll of urgent matters.

The reference for the application for review is HC30/20.

The criminal trial has now been set for 10-11 March 2020.

According to the applicant, the given dates are still not ideal for him for Mr Zviuya will be engaged in the High Court on that date.

In his view, the first respondent is no longer fit to deal with the trial; to him, the first respondent has ceased to be neutral and objective in her conduct of the trial proceedings.

On the aspect of urgency, the applicant avers, that, the matter is set to proceed on 10 March 2020 as is ordered by the first respondent. If not postponed, it will render the pending application for review purely academic.

To him, the first respondent will not preside fairly over his case and that is tantamount to a betrayal of his interests and justice. It is his constitutional right to be tried by an independent and impartial court.

The certificate of urgency, signed by Mr Peter Makombe, on 16 February 2020, contains a repetition of what the applicant contends in his founding affidavit, word by word, and need no repletion.

On the date when the court granted audience to the applicant to address it on the aspect of urgency, Ms Chimwawadzimba, counsel for the applicant, submitted, that, the matter was urgent and cited the matter of Telecel Zimbabwe (Pvt) Limited v Postal and Telecommunications Regulatory Authority of Zimbabwe & Others 2015 (1) ZLR 651 (H) per MATHONSI J…, where the learned Judge held that:

“Urgent applications are those where, if the courts fail to act, the applicants may well be within their rights to dismissively suggest to the court that it should not bother to act subsequently as the position would have become irreversible and irreversibly so, to the prejudice of the applicant. Too often, the issue of whether urgency is self-created is blown out of proportion. A delay of 22 days cannot be said to be inordinate as to constitute self created urgency.”…,.

The above words were originally echoed by MAKARAU JP in the case of Document Support Centre (Pvt) Ltd v T.M. Mapuvire HH117-06 dealing with an obiter in Kuvarega v Registrar General & Anor 1998 (1) ZLR 188 (H) per CHATIKOBO J.

In that case, the case had been delayed for 25 days. Nevertheless, Justice MAKARAU, in Document Support Centre (Pvt) Ltd v T.M. Mapuvire HH117-06 ruled, that, the matter was not urgent and dismissed the application.

The applicant's counsel also referred the court to the matter of Lee Waverley John v S HH242-13, an urgent chamber application where the applicant had applied for stay of proceedings pending review where the applicant's application for a discharge at the end of the State case had been dismissed by the trial court.

The facts in Lee Waverley John v S HH242-13 are different from those before me.

There was no evidence adduced by the State to implicate Lee Waverly John, and, MAFUSIRE J granted the application.

The applicant's counsel went on to refer the court to the matter of Robert Dombodzvuku and Another v Sithole N.O. and Another HH174-04 per MAKARAU J…, to advance an argument, that, a High Court has powers to intervene in incomplete proceedings where injustice and unfairness are apparent.

The court is not dealing with a review, it is looking at the aspects of urgency before delving into the merits of the matter.

It is important to note, that, in Robert Dombodzvuku and Another v Sithole N.O. and Another HH174-04 the learned Judge ruled, that, the matter was not urgent and dismissed the urgent chamber application.

Counsel for the second respondent contended, that, the cause of action which triggered the application occurred in mid-March 2019 and the applicant has failed to lay good and sufficient grounds for an urgent chamber application; she added, that, the applicant has failed to demonstrate that he will suffer prejudice or irreparable harm if the relief sought is not urgent.

As crisply pointed out by MAKARAU JP in Document Support Centre (Pvt) Ltd v T.M. Mapuvire HH117-06:

“In my view, urgent applications are those, where, if the courts fail to act, the applicants may well be within their rights to dismissively suggest to the court that it should not bother to act subsequently as the position would have become irreversible and irreversibly so to the prejudice of the applicant.”

See also Telecel Zimbabwe (Pvt) Limited v Postal and Telecommunications Regulatory Authority of Zimbabwe & Others 2015 (1) ZLR 651 (H).

I am satisfied, that, the applicant can safely have alternative remedy in appealing against any outcome of the matter before the first respondent; his rights cannot be said to be irretrievably lost.

Given the history of this application, and the date when the applicant detected causes that would require an application for an urgent chamber application, the certificate of urgency also failed to meet the expected analysis and judgment reposed on a legal practitioner before such a certificate is prepared.

See General Transport & Engineering (Pvt) Ltd & Ors v Zimbabwe Banking Corporation Ltd 1998 (2) ZLR 301 (H) per GILLESPIE J.

The preferential treatment, of allowing a matter to be dealt with urgently, is only extended if good cause is shown for treating the litigant in question differently from most litigants.

The applicant seems to rely on the excuse that the record was availed in December 2019 and then corrected in January 2020 – but, from March 2019 he had been inactive and all the push for acting urgently had completely fizzled out.

An application for review, in my view, is not what triggered the urgent application. It is the alleged manner of the magistrate which unnerved the applicant, and, the computations of delay, in this case, should start from March 2019 to date, which, in my view, is inordinate.

As per MAKARAU J in Robert Dombodzvuku and Another v Sithole N.O. and Another HH174-04:

“It has been stressed in this court, that, a matter does not become urgent as the date of reckoning looms. Rather, a matter is urgent when the facts giving rise to the cause of action arise and the matter cannot wait then. Pleas by legal practitioners, that, if the matter is not treated urgently because the date of reckoning is fast approaching are misplaced and un-impressive.”

In any case, Ms Chinwawadzimba openly admitted during the submission, that, the applicant has two available remedies open to him, but still contended, that, this court can still order the stay of proceedings.

I see no logic in that argument, and I dismiss it.

The matter is not urgent and struck off the roll of urgent matters.

HH446-15 : TELECEL ZIMBABWE (PVT) LTD vs POSTAL AND TELECOMMUNICATIONS REGULATORY AUTHORITY OF ZIMBABWE (POTRAZ) and MINISTER OF INFORMATION TECHNOLOGY, POSTAL AND COURIER SERVICES N.O. and OTHERS
Ruled By: MATHONSI J

After hearing arguments from counsel on 7 May 2015, I granted the provisional order and said the reasons would follow. These are they.

This matter has got a chequered history indeed.

The applicant is an incorporation which provides national cellular telecommunications service in Zimbabwe, among other services, by virtue of a licence issued in terms of the Postal and Telecommunications Act [Chapter 12:05] (the Act) by the first respondent (the Postal and Telecommunications Regulatory Authority), which is the statutory authority established in terms of the Postal and Telecommunications Act to superintend the licencing and regulation of telecommunication service in this country under the watchful eye of the second respondent (the Minister of Information, Technology, Postal and Courier Services), the Minister charged with the administration of the Postal and Telecommunications Act.

The applicant was initially issued with a national cellular telecommunications licence in May 1998. It was issued with a revised licence on 26 June 2002, a licence which, in terms of its clause 4 was, valid for 15 years from the date of its signing. That licence contains the terms and conditions under which the applicant is required to provide the service.

I have said that the relationship between the parties has had its fair share of problems.

At some point, because of the squabbles relating to the applicant's shareholding, which the regulatory authority insisted did not comply with the country's indigenisation laws, and, more importantly, with the terms of the licence, the authority cancelled the licence on 9 August 2007.

The applicant appealed that cancellation to the responsible Minister, in terms of section 96 of the Postal and Telecommunications Act, on 10 August 2007, and approached this court by urgent application in HC4301/07 for interim relief. This court, per MUSAKWA J, issued a consent order on 15 August 2007 to wit:

“It is hereby ordered that:

1. Pending the determination of the appeal by the second respondent, the order cancelling the licence and directing the applicant to switch off its telecommunications issued by the first respondent be and is hereby suspended.

2. There is no order as to costs.”

Just as well the applicant had the presence of mind to seek the suspension of the cancellation order, because it was not until 29 April 2010 that the Minister finalised the appeal - almost three (3) years later.

The Minister's decision, communicated by the Secretary for Transport, Communications and Infrastructural Development, on that date, is helpful:

“RE: TELECEL ZIMBABWE LICENCE

Your minute AM/mn/342/10 dated 28 April 2010 refers. The Ministry holds the view, that, cancelling Telecel Zimbabwe's licence is not tenable vis-a-vis the thousands of subscribers the mobile operator now has and the many negative messages such action would convey to potential investors, both in the sector and across the whole economy.

Thus, at a meeting between Honourable Minister N T Goche (MP) and Telecel's chief, Mr Kia Uebech, on 1 April 2010, Government's requirement that Telecel Zimbabwe reverts back to its original 60:40 position in respect of its local: foreign shareholding was stated/indicated.

Telecel undertook to address this challenge.

Clearly, it will be difficult for the Government to support the renewal of the licence come 2013 should Telecel fail to comply with Government's pre-condition. In our view, the ball is now in Telecel Zimbabwe's court.”

That way, the licence was reinstated on the understanding, that, the shareholding would be regularised to meet Government requirements.

Since 2010, the parties have been engaged in dialogue over the shareholding which went on and on with no end in sight. A lot has happened, including an agreement signed by the parties on 6 August 2013.

However, not happy with what the applicant had done, the first respondent, again, cancelled the applicant's licence, on 28 April 2015, on the basis that the applicant had failed to comply with the Postal and Telecommunications Act.

It then set about issuing a raft of provisions in its final regulatory order which reads:

“11. REGULATORY ORDER

HAVING REGARD to the provisions of the Act, Telecel licence conditions, persistent compliance default, all relevant evidence, and the submissions made by Telecel Zimbabwe Limited, POTRAZ hereby makes the following order in the exercise of its power under the Act.

11.1 Telecel's licence to provide National Cellular Telecommunications Service is hereby cancelled with effect from the date of this order.

11.2 Telecel immediately notifies its subscribers and relevant stakeholders of the termination of its licence upon receipt of this order.

11.3 Telecel ceases to operate its cellular telecommunications network and ceases to offer any communication service upon receipt of this order.

The effect of the cancellation is as follows:

(a) Radio frequency spectrum allocated to Telecel for the provision of cellular telecommunication services are hereby withdrawn with effect from the date of receipt of this order (see Annex 01 for the detailed spectrum information).

(b) Radio frequency spectrum allocated to Telecel for the establishment of Microwave Fixed Links in 7, 8, 13, 18, 22 and 23 GHz bands are hereby withdrawn with effect from the date of receipt of this order.

(c) Radio frequency spectrum allocated to Telecel for the establishment of a C-band VSAT Earth Station are hereby withdrawn with effect from the date of receipt of this order.

(d) The number resources used by Telecel Zimbabwe Limited to offer telecommunication services are hereby withdrawn with effect from the date of this order.

12. SPECIAL DISPENSATION TO TELECEL

NOTWITHSTANDING the provisions of subparagraphs 11.2 and 11.3 above, however, and being mindful of the disruptive effect of an immediate cessation of operations upon the subscribers and other stakeholders of Telecel, POTRAZ hereby grants a special dispensation to Telecel for it to continue with its operations for a period of thirty (30) days from the date of receipt of this order. The purpose of the dispensation will be to afford Telecel an opportunity, among other things, to:

12.1 Facilitate the migration of subscribers from Telecel to other licenced telecommunications operators.

12.2 Notify its employees and agents of the cancellation of its operating licence.

12.3 Notify its stakeholders in the mobile financial services sector of the cancellation of its licence.

12.4 Notify the general public of the cancellation of its licence.

12.5 Begin the process of decommissioning its telecommunications equipment, which process has to be completed within ninety (90) days calculated from the date of receipt of this order.”

Hence, on the stroke of the pen, and by Regulatory decree, scores of employees had lost employment and a number of subscribers had lost a service, never mind other stakeholders and never mind the labour laws of this country dealing with notice of termination of employment.

The applicant has now come to court, on an urgent basis, seeking the following relief:

“TERMS OF FINAL ORDER SOUGHT

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

1. That, pending determination of the finalisation of the appeal by the applicant pursuant to the provisions of section 96 of the Posts and Telecommunications Act [Chapter 12:05] that Regulatory Order No.1 of 2015 and special licence and concomitant dispensations imposed by the Postal and Telecommunications Regulatory Authority of Zimbabwe (POTRAZ) be and are hereby suspended.

2. That, pending finality to the appeal process, as provided by the Posts and Telecommunications Act [Chapter 12:05] applicant shall not dispose of any movable assets or infrastructure without notice to the 1st, second, and third respondents.

3. That, there be no order as to costs.

INTERIM RELIEF (GRANTED)

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

(a) That, first to third respondents be and are hereby interdicted from in any way of (sic) interfering with the normal business activities of the applicant pursuant to the provision of its telecommunication services and related business activities to the public and its subscribers in Zimbabwe.

(b) The dispensation time periods mentioned in Regulatory Order No.1 of 2015 and the cancellation of applicant's licence be and are hereby suspended until such time as there has been a final determination of (sic) a final order sought in terms of this application.”

In its founding affidavit, deposed to by Angeline Vere, its General Manager, the applicant states, that, after all its attempts to reduce its foreign shareholding to a level acceptable to the first respondent were rejected by the latter, which retains the exclusive right of approval in terms of clause 12 of the licence, the first respondent resorted to the drastic action of cancelling the licence on terms set out in the Regulatory Order aforesaid.

Clause 12 of the licence provides:

“12.1 Ownership

12.1.1 Foreign Investment and Shareholding Structure

1. The holder of this licence must be incorporated in Zimbabwe. The licencee shall ensure that the foreign ownership shall be limited to forty-nine percent (49%).

2. Changes in the shareholding structure, at any stage, must be approved by the Authority before it is effected.

3. In the event that the licencee's initial shareholding structure does not conform to the provisions of clause 12.1.1.1 the licencee shall, within five (5) years from date of signing of the licence, ensures (sic) that the foreign ownership is reduced to forty nine percent (49%.).”…,.

Over the years, the applicant has tried to comply by introducing a new partner to assume ownership of the 11 per cent balance of the 60 per cent shareholding held by the foreign partner, Telecel International Limited (TIL), but, the first respondent either rejected the proposed partner or insisted it had to be approved by the Minister.

At one stage, the applicant was told the 11 per cent shareholding could only be sold to the fourth respondent (Empowerment Corporation (Pvt) Ltd) which holds the other 40 percent stake.

The applicant introduced an Employees Share Ownership Scheme (ESOP) in terms of which its employees would own the 11 per cent shares currently in the hands of Telecel International Limited (TIL) in order to move the shareholding to indigenous people.

This was rejected.

It proposed listing on the Zimbabwe Stock Exchange as another option which was also rebuffed.

Instead, the first respondent cancelled the licence.

The reason given for the cancellation appears in paragraph 1 of the first respondent's “judgment” of 28 April 2015 which reads:

“1. INTRODUCTION

This case concerns Telecel Zimbabwe Limited (hereinafter referred to as 'Telecel') non-compliance with licence conditions, provisions of the Postal Telecommunications Act [Chapter 12:05] (hereinafter referred to as 'the Act') as read with Indigenisation and Economic Empowerment laws. The Postal Telecommunications Regulatory Authority of Zimbabwe (hereinafter referred to as 'POTRAZ') has to determine whether the licence issued to Telecel to provide National Cellular Telecommunication Services should be cancelled or not and issue an appropriate order.”

The applicant stated, that, following the cancellation and the “appropriate order” it has appealed to the second respondent (the Minister of Information, Technology, Postal and Courier Services), the responsible Minister, but, meanwhile, the Regulatory Order remains extant as the appeal does not have the effect of suspending the order appealed against.

Whichever way, it is unlikely that the Minister will dispose of the appeal before the expiration of the period of 30 days it has been given to close shop; a period which is unreasonable in the circumstances given that it employs more than 700 direct employees (at the hearing, counsel for the employees corrected that figure, there are 820 direct employees) whose employment contracts would have to be terminated.

In addition, in terms of the Postal and Telecommunications Act, they are entitled to 28 days during which to lodge an appeal.

The applicant therefore craves the interim relief aforesaid.

While the other respondents did not oppose the application; in fact, counsel for the fourth respondent (Empowerment Corporation (Pvt) Ltd) supported it, and counsel for the second and third respondents (Minister of Information, Technology, Postal and Courier Services N.O. and Chief Secretary in the Office of the President and Cabinet N.O.) had no submissions to make except that the Minister would await the appeal, the first respondent surprisingly opposed the application, vehemently, as if everything depended on the cancellation of the licence and the closure of the applicant.

Counsel for the first respondent contested the validity and urgency of the application....,.

He submitted, that, the applicant should not be entertained on an urgent basis because the matter is simply not urgent; in fact, this is self-created urgency.

The applicant was aware of the intention to cancel its licence as at 5 March 2015 when the first respondent advised it of that intention by letter of that date. It should have taken remedial action then, instead of waiting until 30 April 2015 to file this application. For that reason, the matter is not urgent and the applicant should be turned away for that reason alone.

In my view, there is no merit whatsoever in that point in limine.

I find myself having to repeat what I stated in The National Prosecuting Authority v Busangabanye & Anor HH427-15…,:

“In my view, this issue of self-created urgency has been blown out of proportion. Surely, a delay of 22 days cannot be said to be inordinate as to constitute self created urgency. Quite often, in recent history, we are subjected to endless points in limine centered on urgency which should not be made at all. Courts appreciate that litigants do not eat, move, and have their being in filing court process. There are other issues they attend to, and, where they have managed to bring their matters within a reasonable time they should be accorded audience. It is no good to expect a litigant to drop everything and rush to court even when the subject matter is clearly not a holocaust.”

I agree with counsel for the applicant, that, raising the issue of urgency by respondents finding themselves faced with an urgent application is now a matter of routine.

Invariably, when one opens a notice of opposition these days, he is confronted by a point in limine challenging the urgency of the application, which should not be made at all. We are spending a lot of time determining points in limine which do not have the remotest chance of success at the expense of the substance of a dispute.

Legal practitioners should be reminded, that, it is an exercise in futility to raise points in limine simply as a matter of fashion.

A preliminary point should only be taken where:

(i) Firstly, it is meritable; and

(ii) Secondly, it is likely to dispose of the matter.

The time has come to discourage such waste of the court's time by the making of endless points in limine by litigants afraid of the merits of the matter, or legal practitioners who have no confidence in their client's defence viz-a-viz the substance of the dispute, in the hope that, by chance, the court may find in their favour.

If an opposition has no merit it should not be made at all.

As points in limine are usually raised on points of law and procedure, they are the product of the ingenuity of legal practitioners.

In future, it may be necessary to reign in the legal practitioners who abuse the court in that way, by ordering them to pay costs de bonis propiis.

A matter is urgent, if, when the need to act arises, the matter cannot wait. That is the simple test for urgency.

While there is a catena of authorities pronouncing on urgency, it all boils down to the remarks of MAKARAU JP…, in Document Support Centre (Pvt) Ltd v Mapuvire 2006 (1) ZLR 232 (H)…, where the learned judge pronounced:

“Some actions, by their very nature, demand urgent attention and the law appears to have recognized that position. Thus, actions to protect life and liberty of individuals, or where the interests of minor children are at risk, demand that the courts drop everything else, and, in appropriate cases, grant interim relief protecting the affected rights. The rationale of the courts acting swiftly where such interests are concerned is, in my view, clear….,. It is now accepted, that, in some cases, even purely commercial interests can be protected urgently in appropriate cases.

In Silvers Trucks (Pvt) Ltd & Anor v Director of Customs & Excise 1999 (1) ZLR 490 (H), SMITH J considered the matter of the release of certain attached imports on the basis that the applicant would face bankruptcy and its 67 employees would lose their jobs as a result.

In my view, the reasoning adopted by SMITH J in this regard is still in line with the objective test, that, had the courts waited, there would have been no need for the court to act subsequently. The applicant would have been liquidated and the return to it of the attached imports would not have reversed the effect of non-timeous action by the court. It would be of no further benefit to the applicant to pursue the legal interest.

In my view, urgent applications are those where, if the courts fail to act, the applicants may well be within their rights to dismissively suggest to the court, that, it should not bother to act subsequently as the position would have become irreversible, and irreversibly so, to the prejudice of the applicant.”…,.

See also Triple C Pigs & Anor v Commissioner General, Zimbabwe Revenue Authority 2007 (1) ZLR 27 (H)…,.

It is not factually correct for counsel for the first respondent to suggest, that, the applicant did not do anything from 5 March 2015.

On that date, the first respondent gave notice of an intent to cancel the licence and invited the applicant to make representations as to why such cancellation should not be effected.

This was as it should have been in terms of the procedure set out in section 43(2) of the Postal and Telecommunications Act.

The applicant made those representations, which did not find favour with the first respondent, and, it duly cancelled the licence, on 28 April 2015, issuing an order which ignored, completely, the applicant's right of appeal to the Minister.

In my view, the need to act arose when the applicant received the notice of cancellation dated 28 April 2015.

It obliged by filing this application on 30 April 2015 – two (2) days later.

There can be no possibility of self-created urgency. For that reason, I dismissed the point in limine as being fanciful and without merit.

HMT29-20 : THE TRUSTEES OF THE ARDA-TRANSAU RELOCATION DEVELOPMENT TRUST vs ZIMBABWE ELECTRICITY TRANSMISSION AND DISTRIBUTION COMPANY (ZETDC) (PVT) LTD
Ruled By: MWAYERA J

A raft of measures meant to comply with the World Health Organisation (WHO) guidelines on the prevention, containment, and treatment of Coronavirus disease, commonly known as COVID 19, prompted the Minister of Health and Child Care, and, indeed, the Government of Zimbabwe to make an order for National lockdown under Statutory Instrument 83 of 2020, SI83 of 2020, on 28 March with effective date of operation 30 March 2020.

The Order, among other important provisions, provides that the supply of water and electricity services are critical and essential services.

The virus is real and indeed a menace as evidenced by reports of the numbers of the infected and dead. Zimbabwe has not been spared by this invisible but real enemy wreaking havoc among the rich and the poor without distinction by colour, creed, or age.

At the time of hearing, nine (9) recorded cases had been confirmed and one (1) death recorded in Zimbabwe. South Africa had 1,505 positive cases and 9 deaths. Globally, there were 1,051,697 positive cases and 56,986 deaths: see Situation Report 75 - World Health Organisation www.who.int/emergencies/diseases/novel-coronavirus-2019/situation-reports

Bearing in mind the emphasis on personal hygiene, anchored on the need to regularly wash hands with clean running water and soap, the applicants jostled into action.

The applicants had no water supply since the Zimbabwe Water Supply pumps supplying the household with water for community consumption had been rendered dry by disconnection of electricity.

World over, including our neighbour South Africa, news reported increase in numbers of infected people and deaths due to the formidable pandemic.

The applicants, faced with COVID-19 outbreak and threat without running tap water due to ZESA power cut to the ZINWA outlet which supplies them with water, approached this court through the urgent chamber book. The applicant sought:

“TERMS OF THE FINAL ORDER SOUGHT

1. That the Respondent provides electricity supply services to the Zimbabwe National Water Authority water pumps within Arda–Transau community for the duration of the state of disaster subject to the load shedding schedule.

2. No order as to costs.

TERMS OF THE INTERIM ORDER SOUGHT

1. That the Respondent immediately restores electricity supply services to the Zimbabwe National Water Authority water pumps within Arda–Transau community.”

The respondents were properly served but did not respond or appear.

The brief history of the matter is as follows:

The applicant (trustees of the Trust) represent the interests and rights of the Trust; its members and beneficiaries relocated from Chiadzwa diamond fields in Marange and now reside in ARDA TRANSAU.

The relocation occurred between 2010 and 2016.

From inception of relocation up to 2019 December, the mining companies that relocated their families have been responsible for paying for electricity supply to the respondent. The electricity supply powered water pumps installed by the Zimbabwe National Water Authority for water supplies to the relocated families. The mining companies, namely, Anjin Diamond Mining Company, Mbada Diamonds Housing, Jinan Mining, Marange Resources, and Zimbabwe Consolidated Diamond Company paid in full for the power utility bills.

Upon the ceasation or discontinuity of the complete subsidization of power utility bills by the mining companies, the community struggled to pay for the electricity consumption bills.

This culminated in a cumulative debt of ZW$30,000 owing to the respondent, ZESA.

Consequently, the respondent rightfully discontinued the supply of electricity to the community for none payment of electricity bills. The disconnection inevitably means no supply of tap water to the community.

On the face of it, this is self-created urgency stemming from non-payment of ZESA bills; but, the question is:

Is it really self created urgency given the background history of being relocated and having mining companies pay the ZESA bills and then stopping?

The problem was not the villagers own making.

Upon considering whether or not a matter is urgent, the settled factors which fall for consideration should never be looked at in isolation, neither should they be dissociated from the history and all circumstances of the cause.

Looking at requirements of urgency in isolation would lead to erroneous view of the status of the matter.

The immediate factors giving rise to this urgent application fall under scrutiny.

On 30 January 2020, the World Health Organisation (WHO) declared Coronavirus Disease – 2019, generally known as COVID19, a Public Health Emergency of International Concern: see http//:www.who.int

Pursuant to the declaration, the World Health Organisation (WHO) set guidelines for all countries to curb and control the outbreak of the disease, and, among other important measures, is the critical requirement that individuals must regularly wash hands with clean running water and soap-based substances, and, further, that people must maintain social distancing for about a metre from the next person in order to minimize the risk of transfer of the virus disease.

The Zimbabwean Government, in response, is no exception as it declared, through Presidential action, a State of Disaster (the Civil Protection (Declaration of State of Disaster) Rural and Urban Areas of Zimbabwe (COVID 19) Notice 2020), and, consequently, a National Lockdown, to contain the spread of COVID19 (the Public Health (COVID-19 Prevention, Containment and Treatment (National Lockdown) Order 2020).

In an effort to give effect to the World Health Organization (WHO) guidelines to contain the spread of COVID 19 and protect citizens, the Government of Zimbabwe, in terms of S.I.83 of 2020 banned gatherings of more than two persons in public places and declared water and electricity supply services as essential services….,.

Water and electricity are critical services; however, at the time of hearing, both are lacking to the applicants despite being also part of all the other citizens in the declared state of disaster occasioned by the outbreak of COVID 19.

The circumstances are clear, that, the applicants do not have clean and regular water supply because of electricity disconnection to the Zimbabwe National Water Authority (ZINWA). This naturally poses a threat to personal hygiene during the lockdown period, and, worse still, spells doom to the intended containment of the national disaster, and would be further obstructive to the global efforts to successfully fight against this deadly scourge pandemic, COVID 19.

The case cries out for urgent redress, and, indeed, spells out and clearly meets the requirements of urgency as contemplated by the Rules of this court.

The applicant acted with agility as they set out to file the application upon the publication of water and electricity as an essential commodity. The publication was on 28 March 2020 and 3 April the applicants were at court.

They undoubtedly treated the matter as urgent: see Madzivanzira and Ors v Dexprint (Pvt) Ltd and Anor HH245-02.

Secondly, there is no other remedy except seeking redress with the court for connection of electricity to the Zimbabwe National Water Authority (ZINWA) pipes for water to be availed.

SC49-22 : NGWARU MASANZA (Informa pauperis) and PRISCILLA ZUNGUZA (Informa pauperis) vs LUKE RWAFA and PLACXEDAS RWAFA and MESSENGER OF COURT
Ruled By: CHIWESHE JA

In this urgent chamber application, the applicants seek a provisional order couched as follows:“TERMS OF THE FINAL ORDER SOUGHTThat you show cause to this Honourable Court why a final order should not be made in the following terms:(1) That a stay of execution of the order given in CHN286/19 be ...

In this urgent chamber application, the applicants seek a provisional order couched as follows:

“TERMS OF THE FINAL ORDER SOUGHT

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

(1) That a stay of execution of the order given in CHN286/19 be granted pending application in the High Court for condonation for late filing of leave to appeal.

(2) In the event that this matter is opposed, that the Respondents be and are hereby ordered to pay costs.

INTERIM RELIEF GRANTED

Pending finalisation of this matter, an interim order is hereby granted in the following terms:

IT IS ORDERED THAT:

1. This application succeeds and a stay of execution of the judgment in the Chinhoyi Magistrates Court, under case number CHN286/19, be and is hereby granted to the applicants pending application in the High Court for condonation for late filing of leave to appeal to the Supreme Court.”

FACTUAL BACKGROUND

In early 2000, at the height of the land reform programme, the applicants and many others moved to occupy Heydon Farm on the outskirts of Harare. They proceeded to build family homes and to engage in agricultural activities.

Subsequently, the whole of Heydon Farm was compulsorily acquired by the State and a notice to that effect was published in the Government Gazette in terms of the Land Acquisition Act [Chapter 20:10].

Contrary to their expectations, none of the occupiers were favoured with either offer letters, permits, or lease agreements which documents would have regularised their stay at Heydon Farm.

Instead, part of the farm was subdivided into residential Stands with title deeds and sold to various persons.

This formalised part of the farm is referred to as Heydon Township.

The respondents, who are husband and wife, bought one of these residential stands, described as Stand 2915 Haydon Township, measuring 2193 square metres, and received title.

It is common cause, that, at the time of sale and transfer the applicants were resident at what became the respondents residential Stand. It is also common cause that the applicants have no legal basis to occupy Heydon Farm in general or the respondents Stand in particular.

In order to assert their proprietary rights, the respondents approached the Magistrates Court at Chinhoyi seeking an eviction order against the applicants. Their application succeeded and an order for the eviction of the applicants from Stand 2915 Haydon Township was granted under case number CHN286/19.

Aggrieved with that outcome, the applicants noted an appeal with the High Court (the court a quo). The court a quo dismissed the appeal and confirmed the eviction order granted by the Magistrates Court.

The respondents then noted an appeal with this Court under case number SC277/20 which appeal suspended the order of the court a quo.

Undeterred, the respondents filed an application for leave to execute pending appeal. The application was granted by CHITAPI J under case number HC3097/20.

The applicants noted an appeal against that judgment under case number SC441/20. The appeal was struck off the roll on the grounds that leave to appeal ought to have been sought in the court a quo.

In the meantime, pursuant to the order by CHITAPI J, the applicants were served with a notice of attachment and eviction from the respondents Stand. The notice is dated 28 February 2022.

It is that notice that has triggered the present urgent chamber application wherein stay of execution is sought.

The application is opposed.

The respondents have raised two preliminary issues, namely:

(i) That the matter is not urgent; and

(ii) That the application has since been overtaken by events on the ground.

It is argued that the urgency is self-created as the applicants failed to act when the need to act arose on 15 February 2022 when the applicants appeal under case number SC441/20 was struck off the roll.

The applicants should have known, that, as a result, the respondents would, in the absence of a pending appeal, proceed with eviction.

Instead of acting there and then, the applicants waited till they were served with the notice of attachment and eviction, dated 28 February 2022, thirteen days after SC441/20 was struck off.

I am of the view that the criticism levelled against the applicants in this regard is not warranted.

A delay of thirteen days cannot, in the circumstances of this case, be regarded as inordinate.

The applicants had been to this Court on appeal. They were not sitting on their laurels. The appeal was not dismissed but struck off the roll on a technicality. They are attending at the High Court seeking leave to appeal.

Whilst awaiting the results, they were served with the notice of eviction.

They have reacted swiftly to that notice by filing the present application. I would, for those reasons, dismiss the preliminary issue and hold that the matter be treated as urgent.

View Appeal
HB102-22 : EXMIN SYNDICATE vs LUKE DUBE and THE PROVINCIAL MINING DIRECTOR, MATABELELAND SOUTH N.O. and OTHERS
Ruled By: MAKONESE J

This is an application for spoliation.The first respondent has opposed the application and raised several preliminary objections, which, if sustained, would be dispositive of the matter.The order sought by the applicant is in the following terms:“IT IS ORDERED THAT:1. The first respondent and all persons claiming occupation, rights, title and ...

This is an application for spoliation.

The first respondent has opposed the application and raised several preliminary objections, which, if sustained, would be dispositive of the matter.

The order sought by the applicant is in the following terms:

“IT IS ORDERED THAT:

1. The first respondent and all persons claiming occupation, rights, title and interest through him, shall remove or cause the removal of themselves and all such persons occupying the mining claims Tigress held under registration number 10098BM and as identified by the 2nd respondent.

2. Failing such removal, the Sheriff of this Honourable Court (5th respondent) be and is hereby authorised and directed to evict 1st respondent and all persons claiming occupation, rights, title and interest through and under him from the mining claim being Tigress number 10098BM as identified by the 2nd respondent.

3. 2nd respondent shall identify the mining location Tigress number 10098BM for 5th respondent to enable him to serve and execute this order on the correct mining location.

4. The 3rd and 4th respondents (Officer in Charge Zimbabwe Republic Police, Filabusi and Officer Commanding Zimbabwe Republic Police, Matabeleland South) be and are hereby directed to provide an escort and any other physical assistance necessary for the 5th respondent (Sheriff of Zimbabwe) during the service and execution of this order.

5. The 1st respondent and all those claiming with or through them are barred from carrying out any mining activities on the mining claim Tigress registration number 10098BM.

6. The 1st respondent is ordered to pay the costs of suit on an attorney and client scale.”

FACTUAL BACKGROUND

The applicant and the first respondent are engaged in litigation in various cases under case numbers HC261/21; HC274/21; HC826/21; HC884/21; HC1024/21; HC127/22; HC127/22; HC131/22; HC190/22; HC373/22; HC325/22.

In the midst of this flurry of cases filed in this court, the applicants have filed this Urgent Chamber Application for a spoliation order.

The first respondent has been conducting mining operations on claims situate in Insiza District, Matebeleland South, on claims known as Lion West 25, registration number 9133BM and extracting gold ore from these claims since 2005 when the claim was registered with the Ministry of Mines.

It is not disputed that the applicant is the holder of mining claims known as Tigress, registration number 10098BM.

The two mining locations are adjacent to each other.

Sometime in February 2022 a dispute arose between the applicant and the first respondent. The first respondent insisted that he was carrying out mining operations on his mining claims, Lion West 25 for the past 17 years without interruption and that there was no encroachment. On 8 March 2022, the second respondent wrote to the parties indicating that they had adjudicated on the dispute and made a finding that the first respondent had encroached onto the applicant's mining claims.

The first respondent has taken the matter to this Honourable Court.

The second respondent advised that the applicant should seek an interdict from this court since the matter was pending in this court.

Under case number HC325/22, the applicant has instituted contempt of court proceedings in respect of an earlier order of this court. The matter is still pending.

Under case number HC373/22, the first respondent instituted a Court Application for a Declaratory Order seeking an order declaring that its title to Lion West 25 is valid and lawful. This matter is pending in this court.

The applicant contends, that, he was lawfully handed possession of the mining claims in issue by the Deputy Sheriff on 1 February 2022. The applicant further contends, that, on 16 February 2022, the first respondent recruited a mob of 15 to 20 individuals who forcibly removed the applicant from its mining claims.

This version is disputed by the first respondent who contends, that, under case number HC190/2022 he obtained an order to evict persons who had violently taken over his mining claims.

The first respondent contends, that, he carried out the removal of invaders on his claims in accordance with a court order obtained in this court.

The first respondent denies that he dispossesed the applicant's employees of the (Tigress) mining claims.

In response to the specific allegations of spoliation, the first respondent denies that he despoiled the applicant and contends that he is still operating from the same mining location he has been working on since 2005.

In any event, the first respondent avers that it is trite law that a holder of Base metal registration certificates, such as the applicant, cannot seek to interfere with exclusive gold mining rights held by the first respondent. In that regard, the first respondent points out that he has filed an application for a declaratur which is currently pending under case number HC373/2022.

Before dealing with the merits of the application, it is necessary to address the preliminary points raised by the first respondent.

POINTS IN LIMINE

URGENCY

Spoliation proceedings are, by their very nature, urgent. An order for a mandament van spolie seeks the restoration of property that has been despoiled and the restoration of the status quo ante.

The first respondent avers, that, the applicant did not treat this matter with the urgency that it deserves.

It is stated by the first respondent, that, the certificate of urgency is defective in that it does not assist the court as far as formulating an opinion on whether or not the matter is urgent. The certificate of urgency does not state when the need to act arose which is the point of departure in ascertaining the urgency of the matter.

It is alleged that the applicant failed to act from the date of the purported “spoliation” being 16 February 2022. The applicant only approached this court, a month later, on an urgent basis.

The applicant, instead, chose to file a Chamber Application for Contempt of Court under case number HC325/22 on 23 February 2022. This matter has not been set down for hearing. Opposing papers have been filed in that matter but the applicant has not taken steps to have the matter concluded.

It would seem that this matter was filed on an urgent basis as an afterthought.

The law on urgency has been well established in Kuvarega v Registrar General & Anor 1998 (1) ZLR 188 (H).

I am satisfied, that, the applicant did not sit on its laurels in seeking to enforce its perceived rights. The applicant treated the matter with urgency at all times. The urgency envisaged by the Rules is met by the averments in the certificate of urgency and the founding affidavit.

This point in limine is dismissed.

View Appeal
HH209-19 : ELLIOT RODGERS vs PUWAYI CHIUTSI and TENDAI MASHAMAHANDA and REGISTRAR OF DEEDS and SHERIFF OF ZIMBABWE and BARIADE INVESTMENTS (PVT) LTD and LAW SOCIETY OF ZIMBABWE
Ruled By: MANZUNZU J

This is an urgent application in which the applicant sought a provisional order in the following terms:“Terms of Final Order SoughtIt is ordered that;4.1 That Puwayi Chiutsi be and is hereby is struck off from the roll of legal practitioners.4.2. That Puwayi Chiutsi and the Sheriff of Zimbabwe each paying ...

This is an urgent application in which the applicant sought a provisional order in the following terms:

“Terms of Final Order Sought

It is ordered that;

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

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

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

Terms of Interim Order Sought

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

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

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

(iii) Puwayi Chiutsi be and is hereby suspended from the practise of the legal profession.”

On 28 February 2019 I heard submissions on the issue of urgency.

The first respondent argued that the matter was not urgent.

In an ex tempore ruling, I ruled that the matter was not urgent in so far as it relates to the relief sought to compel the Law Society to place the law firm of Puwayi Chiutsi under curatorship and in respect to the suspension of Puwayi Chiutsi from practice as a legal practitioner.

This was, in my view, a cause which can be pursued in an ordinary application since no irreparable harm was shown to be suffered by the applicant if the matter was not treated as urgent.

Furthermore, that the second part of the relief sought could by no means meet the requirements of urgency as set out in case law; see Kuvarega v Registrar General and Anor 1998 (1) ZLR 188....,.

Counsel for the applicant applied for the amendment of the Provisional Order by removal of that part of the prayer for which the court had ruled could not proceed on urgency.

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Urgency re: Approach iro Time, Consequent and Remedial Alternative Considerations of Urgency

HB18-12 : ALECS HWEKWETE and JUDY HWEKWETE vs RENAISSANCE MERCHANT BANK LTD
Ruled By: NDOU J

SC46-16 : HWANGE COLLIERY COMPANY LTD vs TENDAI MAKUTE and DEPUTY SHERIFF, HWANGE
Ruled By: CHIDYAUSIKU CJ, GOWORA JA and HLATSHWAYO JA

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

HHH242-13 : LEE WAVERLEY JOHN vs THE STATE and SIMON RODGERS KACHAMBWA N.O.
Ruled By: MAFUSIRE J

SC83-21 : DOMBO CHIBANDA and PINGO KANDORORO and JOHN KANDWE vs CITY OF HARARE
Ruled By: HLATSHWAYO JA

SC101-21 : EQUITY PROPERTIES (PVT) LTD vs ALSHAMS GLOBAL BVI LIMITED and REGISTRAR OF DEEDS
Ruled By: BHUNU JA, UCHENA JA and KUDYA AJA

HH02-21 : ERNEST MHAMBARE vs ALFRED MWAZHA and OTHERS
Ruled By: MUREMBA J

Appealed
SC126-21 : PATRICIA DARANGWA vs JULIET KADUNGURE and ANDERSON KADUNGURE and NERIA KADUNGURE and MASTER OF THE HIGH COURT OF ZIMBABWE
Ruled By: MAKONI JA, MATHONSI JA and MWAYERA JA

View Appeal
HH85-21 : JULIET KADUNGURE and ANDERSON KADUNGURE and NERIA KADUNGURE vs PATRICIA DARANGWA and MASTER OF THE HIGH COURT OF ZIMBABWE (N.O.)
Ruled By: CHIRAWU-MUGOMBA J

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Ruled By: NDEWERE J

HH91-09 : SANANGURAI GWARADA vs KEVIN JOHNSON and MR WILLIAMSON and BERNARD CHOTO
Ruled By: GOWORA J

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Ruled By: ZHOU J

HH11-17 : ANDREW PASCOE vs MINISTRY OF LANDS AND RURAL RESETTLMENT and W. BUNGU and THE ATTORNEY GENERAL N.O.
Ruled By: CHITAPI J

HH391-17 : ANDREW PASCOE vs MINISTRY OF LANDS & RURAL RESETTLEMENT and W. BUNGU and THE ATTORNEY GENERAL N.O.
Ruled By: FOROMA J

HB58-15 : TRIANIC INVESTMENTS (PVT) LTD and MEYER DRAY vs NQOBILE KHUMALO and FRANCESCA MUFAMBI and OFFICER-IN-CHARGE (FILABUSI) ZIMBABWE REPUBLIC POLICE
Ruled By: MOYO J

SC28-14 : SITWELL GUMBO vs PORTICULLIS (PVT) LTD T/A FINANCIAL CLEARING BUREAU
Ruled By: GWAUNZA JA

HH24-19 : MOHAMMED ISMAIL (as the guardian of X - a minor) vs SAINT JOHNS COLLEGE and CAVALIERE COORRADO TRINCI N.O. and STEVE MARTIN N.O. and MINISTRY OF PRIMARY AND SECONDARY EDUCATION
Ruled By: CHITAKUNYE J

HMA47-19 : TRIANGLE LIMITED and HIPPO VALLEY ESTATES LIMITED vs ZIMBABWE SUGAR MILLING INDUSTRY WORKERS UNION (ZSMIWU) and OTHERS
Ruled By: WAMAMBO J

HMA55-19 : GREAT ZIMBABWE UNIVERSITY vs NESBERT MAREVERWA
Ruled By: WAMAMBO J

View Appeal
HH236-18 : MFUNDO MLILO vs THE PRESIDENT OF THE REPUBLIC OF ZIMBABWE
Ruled By: MANGOTA J

HH335-14 : ZUWA DAMSON vs LINCOLN USHAMBA
Ruled By: TSANGA J

HH636-15 : SALTLAKES HOLDINGS (PVT) LTD and TEMBA MLISWA vs CBZ BANK LIMITED and THE SHERIFF OF ZIMBABWE N.O.
Ruled By: CHIGUMBA J

HH125-17 : GRANDWELL HOLDINGS vs ZIMBABWE CONSOLIDATED DIAMOND COMPANY LTD and COMMISSIONER GENERAL, ZIMBABWE REPUBLIC POLICE and MBADA DIAMONDS (PVT) LTD
Ruled By: TSANGA J

HH709-15 : ODAR HOUSING DEVELOPMENT CONSORTIUM vs SENSENE INVESTMENTS (PVT) LTD and MINISTER OF LOCAL GOVERNMENT, PUBLIC WORKS AND NATIONAL HOUSING and ATTORNEY–GENERAL
Ruled By: MAFUSIRE J

HH269-15 : ELIZABETH MAPURISA and ENESIA GUTU and SIMBA MOYO and RAISHEN MOYO vs NEHANDA HOUSING COOPERATIVE and SUNGAMBERI HOUSING COOPERATIVE
Ruled By: BERE J

HMT24-20 : MATCHES CHADENGA vs MAGISTRATE MANHIBI N.O. and THE PROSECUTOR GENERAL
Ruled By: MUZENDA J

HMT24-20 : MATCHES CHADENGA vs MAGISTRATE MANHIBI N.O. and THE PROSECUTOR GENERAL
Ruled By: MUZENDA J

HH446-15 : TELECEL ZIMBABWE (PVT) LTD vs POSTAL AND TELECOMMUNICATIONS REGULATORY AUTHORITY OF ZIMBABWE (POTRAZ) and MINISTER OF INFORMATION TECHNOLOGY, POSTAL AND COURIER SERVICES N.O. and OTHERS
Ruled By: MATHONSI J

HMT29-20 : THE TRUSTEES OF THE ARDA-TRANSAU RELOCATION DEVELOPMENT TRUST vs ZIMBABWE ELECTRICITY TRANSMISSION AND DISTRIBUTION COMPANY (ZETDC) (PVT) LTD
Ruled By: MWAYERA J

SC49-22 : NGWARU MASANZA (Informa pauperis) and PRISCILLA ZUNGUZA (Informa pauperis) vs LUKE RWAFA and PLACXEDAS RWAFA and MESSENGER OF COURT
Ruled By: CHIWESHE JA

View Appeal
HB102-22 : EXMIN SYNDICATE vs LUKE DUBE and THE PROVINCIAL MINING DIRECTOR, MATABELELAND SOUTH N.O. and OTHERS
Ruled By: MAKONESE J

View Appeal
HH209-19 : ELLIOT RODGERS vs PUWAYI CHIUTSI and TENDAI MASHAMAHANDA and REGISTRAR OF DEEDS and SHERIFF OF ZIMBABWE and BARIADE INVESTMENTS (PVT) LTD and LAW SOCIETY OF ZIMBABWE
Ruled By: MANZUNZU J

Categories

Law Portal Zimbabwe

Urgency re: Approach iro Time, Consequent and Remedial Alternative Considerations of Urgency

HB18-12 : ALECS HWEKWETE and JUDY HWEKWETE vs RENAISSANCE MERCHANT BANK LTD Ruled By: NDOU J

SC46-16 : HWANGE COLLIERY COMPANY LTD vs TENDAI MAKUTE and DEPUTY SHERIFF, HWANGE Ruled By: CHIDYAUSIKU CJ, GOWORA JA and HLATSHWAYO JA

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

HHH242-13 : LEE WAVERLEY JOHN vs THE STATE and SIMON RODGERS KACHAMBWA N.O. Ruled By: MAFUSIRE J

SC83-21 : DOMBO CHIBANDA and PINGO KANDORORO and JOHN KANDWE vs CITY OF HARARE Ruled By: HLATSHWAYO JA

SC101-21 : EQUITY PROPERTIES (PVT) LTD vs ALSHAMS GLOBAL BVI LIMITED and REGISTRAR OF DEEDS Ruled By: BHUNU JA, UCHENA JA and KUDYA AJA

HH02-21 : ERNEST MHAMBARE vs ALFRED MWAZHA and OTHERS Ruled By: MUREMBA J

Appealed SC126-21 : PATRICIA DARANGWA vs JULIET KADUNGURE and ANDERSON KADUNGURE and NERIA KADUNGURE and MASTER OF THE HIGH COURT OF ZIMBABWE Ruled By: MAKONI JA, MATHONSI JA and MWAYERA JA

View Appeal HH85-21 : JULIET KADUNGURE and ANDERSON KADUNGURE and NERIA KADUNGURE vs PATRICIA DARANGWA and MASTER OF THE HIGH COURT OF ZIMBABWE (N.O.) Ruled By: CHIRAWU-MUGOMBA J

HH974-15 : GUGULETHU HURASHA vs CENTRAL AFRICAN BUILDING SOCIETY and FIRST CAPITAL PLUS and ITAYI MUNYEZA and SHERIFF OF ZIMBABWE and MASTER OF THE HIGH COURT Ruled By: NDEWERE J

HH91-09 : SANANGURAI GWARADA vs KEVIN JOHNSON and MR WILLIAMSON and BERNARD CHOTO Ruled By: GOWORA J

HH118-18 : PINKSTONE MINING (PVT) LTD and TIMOTHY MATANGI and AFRICAN MILLS & MINERALS (PVT) LTD vs LAFARGE CEMENT ZIMBABWE LTD and MINISTER OF MINES AND MINES DEVELOPMENT Ruled By: ZHOU J

HH11-17 : ANDREW PASCOE vs MINISTRY OF LANDS AND RURAL RESETTLMENT and W. BUNGU and THE ATTORNEY GENERAL N.O. Ruled By: CHITAPI J

HH391-17 : ANDREW PASCOE vs MINISTRY OF LANDS & RURAL RESETTLEMENT and W. BUNGU and THE ATTORNEY GENERAL N.O. Ruled By: FOROMA J

HB58-15 : TRIANIC INVESTMENTS (PVT) LTD and MEYER DRAY vs NQOBILE KHUMALO and FRANCESCA MUFAMBI and OFFICER-IN-CHARGE (FILABUSI) ZIMBABWE REPUBLIC POLICE Ruled By: MOYO J

SC28-14 : SITWELL GUMBO vs PORTICULLIS (PVT) LTD T/A FINANCIAL CLEARING BUREAU Ruled By: GWAUNZA JA

HH24-19 : MOHAMMED ISMAIL (as the guardian of X - a minor) vs SAINT JOHNS COLLEGE and CAVALIERE COORRADO TRINCI N.O. and STEVE MARTIN N.O. and MINISTRY OF PRIMARY AND SECONDARY EDUCATION Ruled By: CHITAKUNYE J

HMA47-19 : TRIANGLE LIMITED and HIPPO VALLEY ESTATES LIMITED vs ZIMBABWE SUGAR MILLING INDUSTRY WORKERS UNION (ZSMIWU) and OTHERS Ruled By: WAMAMBO J

HMA55-19 : GREAT ZIMBABWE UNIVERSITY vs NESBERT MAREVERWA Ruled By: WAMAMBO J

View Appeal HH236-18 : MFUNDO MLILO vs THE PRESIDENT OF THE REPUBLIC OF ZIMBABWE Ruled By: MANGOTA J

HH335-14 : ZUWA DAMSON vs LINCOLN USHAMBA Ruled By: TSANGA J

HH636-15 : SALTLAKES HOLDINGS (PVT) LTD and TEMBA MLISWA vs CBZ BANK LIMITED and THE SHERIFF OF ZIMBABWE N.O. Ruled By: CHIGUMBA J

HH125-17 : GRANDWELL HOLDINGS vs ZIMBABWE CONSOLIDATED DIAMOND COMPANY LTD and COMMISSIONER GENERAL, ZIMBABWE REPUBLIC POLICE and MBADA DIAMONDS (PVT) LTD Ruled By: TSANGA J

HH709-15 : ODAR HOUSING DEVELOPMENT CONSORTIUM vs SENSENE INVESTMENTS (PVT) LTD and MINISTER OF LOCAL GOVERNMENT, PUBLIC WORKS AND NATIONAL HOUSING and ATTORNEY–GENERAL Ruled By: MAFUSIRE J

HH269-15 : ELIZABETH MAPURISA and ENESIA GUTU and SIMBA MOYO and RAISHEN MOYO vs NEHANDA HOUSING COOPERATIVE and SUNGAMBERI HOUSING COOPERATIVE Ruled By: BERE J

HMT24-20 : MATCHES CHADENGA vs MAGISTRATE MANHIBI N.O. and THE PROSECUTOR GENERAL Ruled By: MUZENDA J

HMT24-20 : MATCHES CHADENGA vs MAGISTRATE MANHIBI N.O. and THE PROSECUTOR GENERAL Ruled By: MUZENDA J

HH446-15 : TELECEL ZIMBABWE (PVT) LTD vs POSTAL AND TELECOMMUNICATIONS REGULATORY AUTHORITY OF ZIMBABWE (POTRAZ) and MINISTER OF INFORMATION TECHNOLOGY, POSTAL AND COURIER SERVICES N.O. and OTHERS Ruled By: MATHONSI J

HMT29-20 : THE TRUSTEES OF THE ARDA-TRANSAU RELOCATION DEVELOPMENT TRUST vs ZIMBABWE ELECTRICITY TRANSMISSION AND DISTRIBUTION COMPANY (ZETDC) (PVT) LTD Ruled By: MWAYERA J

SC49-22 : NGWARU MASANZA (Informa pauperis) and PRISCILLA ZUNGUZA (Informa pauperis) vs LUKE RWAFA and PLACXEDAS RWAFA and MESSENGER OF COURT Ruled By: CHIWESHE JA

View Appeal HB102-22 : EXMIN SYNDICATE vs LUKE DUBE and THE PROVINCIAL MINING DIRECTOR, MATABELELAND SOUTH N.O. and OTHERS Ruled By: MAKONESE J

View Appeal HH209-19 : ELLIOT RODGERS vs PUWAYI CHIUTSI and TENDAI MASHAMAHANDA and REGISTRAR OF DEEDS and SHERIFF OF ZIMBABWE and BARIADE INVESTMENTS (PVT) LTD and LAW SOCIETY OF ZIMBABWE Ruled By: MANZUNZU J

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Law Portal
Zimbabwe

HB18-12 : ALECS HWEKWETE and JUDY HWEKWETE vs RENAISSANCE MERCHANT BANK LTD
Ruled By: NDOU J

SC46-16 : HWANGE COLLIERY COMPANY LTD vs TENDAI MAKUTE and DEPUTY SHERIFF, HWANGE
Ruled By: CHIDYAUSIKU CJ, GOWORA JA and HLATSHWAYO JA

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

HHH242-13 : LEE WAVERLEY JOHN vs THE STATE and SIMON RODGERS KACHAMBWA N.O.
Ruled By: MAFUSIRE J

SC83-21 : DOMBO CHIBANDA and PINGO KANDORORO and JOHN KANDWE vs CITY OF HARARE
Ruled By: HLATSHWAYO JA

SC101-21 : EQUITY PROPERTIES (PVT) LTD vs ALSHAMS GLOBAL BVI LIMITED and REGISTRAR OF DEEDS
Ruled By: BHUNU JA, UCHENA JA and KUDYA AJA

HH02-21 : ERNEST MHAMBARE vs ALFRED MWAZHA and OTHERS
Ruled By: MUREMBA J

Appealed
SC126-21 : PATRICIA DARANGWA vs JULIET KADUNGURE and ANDERSON KADUNGURE and NERIA KADUNGURE and MASTER OF THE HIGH COURT OF ZIMBABWE
Ruled By: MAKONI JA, MATHONSI JA and MWAYERA JA

View Appeal
HH85-21 : JULIET KADUNGURE and ANDERSON KADUNGURE and NERIA KADUNGURE vs PATRICIA DARANGWA and MASTER OF THE HIGH COURT OF ZIMBABWE (N.O.)
Ruled By: CHIRAWU-MUGOMBA J

HH974-15 : GUGULETHU HURASHA vs CENTRAL AFRICAN BUILDING SOCIETY and FIRST CAPITAL PLUS and ITAYI MUNYEZA and SHERIFF OF ZIMBABWE and MASTER OF THE HIGH COURT
Ruled By: NDEWERE J

HH91-09 : SANANGURAI GWARADA vs KEVIN JOHNSON and MR WILLIAMSON and BERNARD CHOTO
Ruled By: GOWORA J

HH118-18 : PINKSTONE MINING (PVT) LTD and TIMOTHY MATANGI and AFRICAN MILLS & MINERALS (PVT) LTD vs LAFARGE CEMENT ZIMBABWE LTD and MINISTER OF MINES AND MINES DEVELOPMENT
Ruled By: ZHOU J

HH11-17 : ANDREW PASCOE vs MINISTRY OF LANDS AND RURAL RESETTLMENT and W. BUNGU and THE ATTORNEY GENERAL N.O.
Ruled By: CHITAPI J

HH391-17 : ANDREW PASCOE vs MINISTRY OF LANDS & RURAL RESETTLEMENT and W. BUNGU and THE ATTORNEY GENERAL N.O.
Ruled By: FOROMA J

HB58-15 : TRIANIC INVESTMENTS (PVT) LTD and MEYER DRAY vs NQOBILE KHUMALO and FRANCESCA MUFAMBI and OFFICER-IN-CHARGE (FILABUSI) ZIMBABWE REPUBLIC POLICE
Ruled By: MOYO J

SC28-14 : SITWELL GUMBO vs PORTICULLIS (PVT) LTD T/A FINANCIAL CLEARING BUREAU
Ruled By: GWAUNZA JA

HH24-19 : MOHAMMED ISMAIL (as the guardian of X - a minor) vs SAINT JOHNS COLLEGE and CAVALIERE COORRADO TRINCI N.O. and STEVE MARTIN N.O. and MINISTRY OF PRIMARY AND SECONDARY EDUCATION
Ruled By: CHITAKUNYE J

HMA47-19 : TRIANGLE LIMITED and HIPPO VALLEY ESTATES LIMITED vs ZIMBABWE SUGAR MILLING INDUSTRY WORKERS UNION (ZSMIWU) and OTHERS
Ruled By: WAMAMBO J

HMA55-19 : GREAT ZIMBABWE UNIVERSITY vs NESBERT MAREVERWA
Ruled By: WAMAMBO J

View Appeal
HH236-18 : MFUNDO MLILO vs THE PRESIDENT OF THE REPUBLIC OF ZIMBABWE
Ruled By: MANGOTA J

HH335-14 : ZUWA DAMSON vs LINCOLN USHAMBA
Ruled By: TSANGA J

HH636-15 : SALTLAKES HOLDINGS (PVT) LTD and TEMBA MLISWA vs CBZ BANK LIMITED and THE SHERIFF OF ZIMBABWE N.O.
Ruled By: CHIGUMBA J

HH125-17 : GRANDWELL HOLDINGS vs ZIMBABWE CONSOLIDATED DIAMOND COMPANY LTD and COMMISSIONER GENERAL, ZIMBABWE REPUBLIC POLICE and MBADA DIAMONDS (PVT) LTD
Ruled By: TSANGA J

HH709-15 : ODAR HOUSING DEVELOPMENT CONSORTIUM vs SENSENE INVESTMENTS (PVT) LTD and MINISTER OF LOCAL GOVERNMENT, PUBLIC WORKS AND NATIONAL HOUSING and ATTORNEY–GENERAL
Ruled By: MAFUSIRE J

HH269-15 : ELIZABETH MAPURISA and ENESIA GUTU and SIMBA MOYO and RAISHEN MOYO vs NEHANDA HOUSING COOPERATIVE and SUNGAMBERI HOUSING COOPERATIVE
Ruled By: BERE J

HMT24-20 : MATCHES CHADENGA vs MAGISTRATE MANHIBI N.O. and THE PROSECUTOR GENERAL
Ruled By: MUZENDA J

HMT24-20 : MATCHES CHADENGA vs MAGISTRATE MANHIBI N.O. and THE PROSECUTOR GENERAL
Ruled By: MUZENDA J

HH446-15 : TELECEL ZIMBABWE (PVT) LTD vs POSTAL AND TELECOMMUNICATIONS REGULATORY AUTHORITY OF ZIMBABWE (POTRAZ) and MINISTER OF INFORMATION TECHNOLOGY, POSTAL AND COURIER SERVICES N.O. and OTHERS
Ruled By: MATHONSI J

HMT29-20 : THE TRUSTEES OF THE ARDA-TRANSAU RELOCATION DEVELOPMENT TRUST vs ZIMBABWE ELECTRICITY TRANSMISSION AND DISTRIBUTION COMPANY (ZETDC) (PVT) LTD
Ruled By: MWAYERA J

SC49-22 : NGWARU MASANZA (Informa pauperis) and PRISCILLA ZUNGUZA (Informa pauperis) vs LUKE RWAFA and PLACXEDAS RWAFA and MESSENGER OF COURT
Ruled By: CHIWESHE JA

View Appeal
HB102-22 : EXMIN SYNDICATE vs LUKE DUBE and THE PROVINCIAL MINING DIRECTOR, MATABELELAND SOUTH N.O. and OTHERS
Ruled By: MAKONESE J

View Appeal
HH209-19 : ELLIOT RODGERS vs PUWAYI CHIUTSI and TENDAI MASHAMAHANDA and REGISTRAR OF DEEDS and SHERIFF OF ZIMBABWE and BARIADE INVESTMENTS (PVT) LTD and LAW SOCIETY OF ZIMBABWE
Ruled By: MANZUNZU J