Cause of Action and Draft Orders re: Approach, Timing, Framing and Legal Basis for Invoking Jurisdiction of the Court

Appealed
SC18-11 : RIO TINTO (AFRICA) PENSION FUND vs AFARAS M. GWARADZIMBA (in his capacity as Liquidator of Sagit Stockbrokers PL) and AFARAS M. GWARADZIMBA (in his personal capacity)
Ruled By: MALABA DCJ, SANDURA JA and GARWE JA

The third issue that falls for determination is whether the court a quo should have found that the respondents were equitably estopped from denying the appellant its right to the shares after having undertaken to deliver the same.This submission, in my view, is without merit. As the first respondent has correctly observed in his heads ...

HHH106-12 : THE STATE vs LOVEMORE KUROTWI and DOMINIC MUBAIWA
Ruled By: BHUNU J

Section 146 of the Criminal Procedure and Evidence Act prescribes the essentials of a valid and competent charge. It states that:“146 Essentials of indictment, summons, or charge(1) Subject to this Act, and except as otherwise provided in any other enactment, each count of the indictment, summons, or charge shall set ...

SC30-08 : DANAI GURUVA vs TRAFFIC SAFETY COUNCIL OF ZIMBABWE
Ruled By: SANDURA JA, CHEDA JA and GWAUNZA JA

The appellant is employed by the Traffic Safety Council of Zimbabwe as a Regional Manager. He was based at their Gweru office from where he was transferred to the Masvingo office.

The dispute which led to this case arose from his lateral transfer from Gweru to Masvingo.

On 14 November 2003, the respondent's Deputy Director, Finance and Administration, wrote a memorandum to the appellant advising him that he is transferred to Masvingo on a lateral transfer with effect from 1 January 2004 as result of a meeting which had been held by the Directorate of the respondent on 10 November 2003.

Reasons for the transfer were given, in the memorandum, as follows:

1. Training of managers through job rotation and enrichment.

2. That the Masvingo office was performing better than the Gweru office, though the Masvingo office was apparently smaller.

3. That the transfer had been necessitated by a thorough consideration of the likely impact on production and consequent benefits thereto.

The appellant wrote back to the Director of Finance making his submissions against the transfer.

The reasons that he gave were personal. He requested that the transfer to Masvingo be put on hold - but did not say for how long.

It is common cause, that, after the appellant had made his submissions, a meeting of the Directorate was held on Wednesday 19 November 2003 to deliberate on the representations made by the appellant.

On 20 November 2003, the Deputy Director wrote to the appellant advising, among other things, as follows:

“The directorate held a meeting at 11:00hrs to deliberate on the issues on Wednesday 19 November 2003. We sympathise with the personal circumstances in which you are. Also, we note, that, you are doing some publications concerning Traffic Safety work which could be made easier in Gweru. Nevertheless, the directorate realizes that each of us, forty seven (47) employees in all, have different personal circumstances, some of them could be much more taxing than yours. The directorate considers each case on its own merits but guided by the fact that the individual needs and goals are subordinate to those of Traffic Safety Council.”

The letter ended with the following statement:

“Having made a thorough consideration of your submissions, the directorate resolves that the earlier decision to transfer you to Masvingo, with effect from 1 January 2004, still stands.”

On 27 November 2003, the appellant wrote a long letter to the respondent appealing against the decision to transfer him to Masvingo and asking that it be reversed.

He did not succeed.

He took the matter to the Labour Relations Office alleging victimization and unfair transfer.

The Labour Officer referred the matter to Arbitration.

The arbitrator held, that, the respondent had not observed the dictates of the audi alteram partem rule and declared that the transfer was unlawful and should be reversed.

The Traffic Safety Council of Zimbabwe appealed against that decision at the Labour Court. The Labour Court upheld the appeal and confirmed the decision to transfer the appellant.

The appellant now appeals against the decision of the Labour Court.

The appellant's grounds of appeal are as follows:

1. The Labour Court made a total error of law in its interpretation of clause 8.5 of the Traffic Safety Council of Zimbabwe's conditions of service as regards the transfer of employees....,.

There is nothing in the Labour Court's judgment which points at a wrong interpretation of clause 8:5 to 8:5.3. of the appellant's conditions of service.

That clause deals with transfer costs, and it is not the appellant's case that he was denied such costs.

That ground of appeal is baseless.

Appealed
SC25-12 : MINING INDUSTRY PENSION FUND vs DAB MARKETING (PRIVATE) LIMITED
Ruled By: ZIYAMBI JA, GARWE JA and MAKARAU JA

I note, in passing, that in view of the fact that the respondent voluntarily left the leased premises sometime in 2010, the appellant appears to be no longer seeking an order cancelling the lease agreement and holding over damages as these two prayers have been omitted from the notice of appeal.

HH47-10 : MUNYARADZI CHIKUMBU vs VIOLET NHAMO
Ruled By: BERE J

Throughout these proceedings, it has not been easy for the plaintiff to state with clarity his cause of action. It is trite that he who drags someone to court must himself or herself bear the onus. DAVIS AJA admirably summed up the position when he stated as follows - “But there is a third rule which VOET ...

HH56-12 : ELIAS KASEKE and WAFAWANAKA KUCHERA and SIBUSISO NCUBE vs MASTER OF THE HIGH COURT and MAVIS CHIZENGENI (as Executrix Dative of Estate Late Jessie Zengeya)
Ruled By: MAWADZE J

This is a chamber application in which the first applicant seeks an order in the following terms:“IT IS ORDERED THAT:1. Case Number HC5867/10 be and is hereby dismissed for want of prosecution; and2. The plaintiff be and is hereby ordered to pay costs of suit.”There is need to set out ...

This is a chamber application in which the first applicant seeks an order in the following terms:

“IT IS ORDERED THAT:

1. Case Number HC5867/10 be and is hereby dismissed for want of prosecution; and

2. The plaintiff be and is hereby ordered to pay costs of suit.”

There is need to set out the brief facts of the matter which give rise to this chamber application.

Background Facts

The first, second, third, and fourth applicants herein are the first, second, third, and fourth defendants respectively in the main action in which the respondent herein is the plaintiff. This chamber application is made by the first applicant, Elias Kaseke, only and the second to fourth applicants have not made any application….,.

In the main action, the respondent (plaintiff in the main action) issued summons out of this court on 25 August 2010 claiming the following relief against the first to fourth applicants (the first to fourth defendants in the main action):

“Wherefore the plaintiff claims against the defendants;

(a) An order declaring the sale and transfer of 1458 shares in Kennedine Investments (Pvt) Limited together with attendant rights in property known as Number 22 Kennedine Court, corner 7th and Central Avenue, Harare, from the third defendant to the second defendant and subsequent sale and transfer of same shares and rights from the second defendant to the first defendant held under share certificate number 98 to be null and void, and of no force or effect.

(b) An order setting aside the sale and transfer of 1458 shares in Kennedine Investments (Pvt) Limited under share certificate number 98, together with attendant rights in property known as Number 22 Kennedine Court, corner 7th Street and Central Avenue, Harare, from the third to second defendant, and the subsequent sale and transfer of the same shares and rights from the second defendant to the first defendant held under share certificate number 98.

(c) An order for eviction, forthwith, of the first defendant and any persons claiming occupation through him from certain premises known as Stand Number 22 Kennedine Court, corner 7th Street and Central Avenue, Harare.

(d) Costs of suit.”

The basis of the claim, in the main action, is that the respondent (the plaintiff in the main action) was appointed the Executrix Dative of the Estate of the Late Jessie Zengeya who died on 22 September 1992 as per Letters of Administration Number 2597/92.

In casu, the first applicant (the first defendant in main action) resides at Number 25 Armadale Road, Borrowdale, Harare. The second applicant (the second defendant in the main action) is a male adult residing at Number 5 Plymouth Road, Chadcombe, Hatfield, Harare. The third applicant (the third defendant in the main action) is a female adult residing at Number 34 Longford Road, Queensdale, Harare and the fourth applicant (the fourth defendant in the main action) is the Master of the High Court cited in his official capacity.

The dispute in this matter involves certain immovable property known as Number 22 Kennedine Court situated at corner 7th Street and Central Avenue, Harare. It is a unit within a block of flats which block is registered in the name of Kennedine Investments (Pvt) Ltd and is fully known as a certain piece of land situate in the District of Salisbury called No.1137 Salisbury Township measuring 892 square metres and ownership therein being evidenced by the issue of a share certificate in the aforementioned company corresponding to a particular unit in the block.

The property in dispute belonged to the late Jessie Zengeya, who, during her lifetime, did not dispose of this property according to the respondent (the plaintiff in the main action) who was later appointed the Executrix Dative of the same estate and also did not dispose of the property (hereinafter known as No.22 Kennedine Court).

On 26 September 2006, the third applicant (the third defendant in the main action), claiming to be the rightful owner of shares and rights pertaining to No.22 Kennedine Court, purported to sell the share and rights in question to the second applicant (the second defendant in the main action) as per an agreement of sale Annexture D to the respondent's (the plaintiff in the main action) declaration.

The respondent (the plaintiff in the main action) contends that the third applicant (the third defendant in the main action) did not have authority of the Executrix Dative (the respondent) of the Estate of the late Jessie Zengeya to dispose of the property hence her purported sale of the shares and rights of the property pertaining to No.22 Kennedine Court was not only unlawful but fraudulent.

Further, the respondent contends (the plaintiff in the main action) that the relevant consent from the fourth applicant (the fourth defendant in the main action), the Master of the High Court, was not obtained for the disposal of the shares and rights in the property in issue.

The point made by the respondent in the main action is that the third applicant (the third defendant in the main action) had no title in the shares and therefore could not pass title to the second applicant (the second defendant in the main action).

In fact, the first and final administration and distribution account was filed by the respondent (the plaintiff in the main action) in DR5597/92 on 23 September 1994 indicating that the property, No.22 Kennedine Court, was still the property of Estate Late Jessie Zengeya.

On 15 July 2007, the second applicant (the second defendant in the main action) purported to sell the rights, title, and interests in the property, No. 22 Kennedine Court, to the first applicant (the first defendant in the main action) for Zimbabwe dollars $450,000 as per an agreement of sale marked Annexture D to the respondent's (the plaintiff in the main action) declaration.

As a result, a share certificate (Annexture B) was produced in favour of the first applicant (the first defendant in the main action) purportedly showing that the first applicant had purchased 1458 shares in Kennedine Investments (Pvt) Ltd which shares correspond to the use and enjoyment of No.22 Kennedine Court.

As already stated, the respondent (the plaintiff in the main action) contends these shares belong to the Estate of Late Jessie Zengeya and the third applicant (the third defendant in the main action) could not pass title to the second applicant (the second defendant in the main action) who also consequently could not pass title to the first applicant (the first defendant in the main action).

The respondent (the plaintiff in the main action) stated, that, she only became aware of these illegal transactions involving the first, second, and third applicants (the first, second, and third defendants in the main action) sometime in July 2010 upon attempting to serve a notice of eviction on the current occupant of the property. This compelled the respondent (the plaintiff in the main action) to issue summons out of this court against all the applicants (the defendants in the main action) on 25 August 2010.

It is common cause, as per the record, that the second, third, and fourth applicants (all the defendants in the main action) did not enter an appearance to defend in terms of the Rules and the presumption therefore is that they are all barred.

It is only the first applicant (the first defendant in the main action) who entered an appearance to defend on 17 September 2010 after being served with summons on 30 August 2010.

It would appear from the record the respondent (the plaintiff in the main action) did not seek any order against the second and third applicants (the defendants in the main action) after their failure to enter any appearance to defend.

The first applicant filed his plea in terms of the Rules which was served on the respondent (the plaintiff in the main action) on 27 September 2010. The respondent (the plaintiff in the main action) in turn filed her replication on 11 October 2010. No further action was taken in the main matter/action.

This means, that, from 11 October 2010 until 25 October 2011, a period of about 12 months, nothing was done on the main action.

This then prompted the first applicant to file this chamber application, on 25 October 2011, seeking the dismissal of the respondent's (the plaintiff in the main action) claim in the main action for want of prosecution and costs of suit.

I was allocated the chamber application on 21 November 2011 and I directed the first applicant to file proof of service of the application and to cite the relevant Rule/Rules of this court upon which the application is premised.

Counsel for the first applicant only responded to the issues raised on 20 January 2012 and attached the relevant proof of service. In relation to the issue of the Rules of the Court relied upon the response filed is as follows:

“We refer to your letter dated 5 December 2011 wherein the honourable Justice MAWADZE wanted clarification and confirmation of two issues, viz:

(a) Cite the Rule or Rules relied upon; and

(b) Proof of service of this application.

In terms of Order 32 Rule 226, all applications, for whatever purpose, in terms of the High Court Rules, shall be made;

226(a)…,.

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

226(2) An application shall be not be made as a chamber application unless -

(a)…,

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

(c) The relief sought is procedural…,.

The relief that is being sought is procedural.

The plaintiff issued summons out of this honourable court and were served on the applicant on 30 August 2010. The applicant filed a notice of appearance to defend on 17 September 2010. The application was subsequently filed on 24 September 2010. The plaintiff, to date, only filed a replication and no other pleadings in order to advance action.

In terms of Order 9 Rule 61, the defendant is given a right to make a chamber application to dismiss the action for want of prosecution.

We respectfully submit that this matter falls within the provision of the Rules cited above and we pray for an order dismissing the court action for want of prosecution. The plaintiff won't suffer any prejudice as it can relaunch the court action when it feels like.”…,.

I received the above quoted response on 25 January 2012, and, in view of the ambiguity with which counsel for the first applicant had responded to the query raised I directed the first applicant's counsel to approach me in chambers and make further submissions.

Counsel for the first applicant was only able to do so on 30 January 2012.

Counsel for the first applicant…, had no meaningful submissions to make except to insist that her response, as filed of record, was in order. She conceded that she was only representing the first applicant and was unable to explain why she had cited the second to fourth applicants as the applicants.

Let me now deal with the merits of the chamber application.

This chamber application has been filed by the first applicant only, and, therefore, it is improper and irregular for counsel for the first applicant to proceed to cite the second to fourth defendants in the main action as the applicants in this matter.

The second to fourth defendants in this main action has not filed any application before the court nor any supportive affidavits.

As already said, the second and third defendants in the main action may, for all intents and purposes, be barred for failure to enter an appearance to defend: see Order 7 Rule 50.

It would therefore be incompetent, in my view to cite the second to fourth defendants in the main action as applicants in this chamber application which is only made by the first defendant in the main action.

The first applicant cannot stampede the second to fourth applicants to be part to the proceedings to which they have not expressed any interest.

I now turn to the response filed by the first applicant's counsel.

It is disheartening to note, that, in many chamber applications filed with the court legal practitioners do not seem to appreciate the need to cite the relevant Rules of the Court upon which such an application is premised.

Such an approach, in my view, would ensure that the legal practitioner, from the onset, is conversant with the Rules of the Court applicable. This would, in turn, save a lot of time wasted when queries are raised by the court on such mundane issues.

In casu, the first applicant's response is that this application is made in terms of Order 9 Rule 61 of the High Court Rules which provides as follows:

“Where the plaintiff has been duly barred from declaring or making a claim, the defendant may, without notice to the plaintiff, make a chamber application to dismiss the action for want of prosecution, and the judge may order the action to be dismissed with costs or make such other order on such terms as he thinks fit.”

I totally disagree with the first applicant.

The plaintiff in the main action has not been barred hence Order 9 Rule 61 of the High Court Rules is inapplicable in the circumstances of the case.

HH31-12 : STEPHEN MKIWA vs MAGRET MUUSHA
Ruled By: MAWADZE J

This is an urgent chamber application for a provisional order whose interim relief is couched as follows: "INTERIM RELIEF GRANTED Pending the confirmation of the Provisional Order, it is ordered that: (a)... (b)... (c) The respondent and those who may act on her behalf are interdicted from causing threats of whatsoever nature and harassment on the person of the applicant." ...

HH07-09 : CATHERINE CHIWAWA vs APOSTOLOS MUTZURIS and PANAYOTA MUTZURIS and GRAMMATIKI MUZTURIS and IRENE MUTZURIS and THE REGISTRAR OF DEEDS
Ruled By: MAKARAU JP

The term “cause of action”…, has been the subject of many court decisions. It is now the settled position in our law, in my view, that the term refers to when the plaintiff is aware of every fact which it would be necessary for him or her to prove in order to support his or her prayer ...

SC18-12 : RONI MASEKESA vs KINGDOM FINANCIAL HOLDINGS
Ruled By: ZIYAMBI JA

The PRAYER to the Notice of Appeal deserves mention. It is in three parts. The first is for an order that the applicant be reinstated by the respondent into “his 'job' without loss of salary or benefits with effect from 26 February 2009 being the date of unfair dismissal”. The point to be made here is ...

SC200-97 : MUWENGA vs PTC
Ruled By: GUBBAY CJ, KORSAH JA and MUCECHETERE JA

This is an appeal against the decision of the Labour Relations Tribunal, brought under section 92(2) of the Labour Relations Act [Chapter 28:01] ("the Act"), in which it was held, that, the omission of the respondent ("the PTC") to promote the appellant to the post of superintendent did not amount to an unfair labour practice.

The factual background giving rise to the dispute, and upon which the question of law has been debated before this court, was succinctly outlined by the learned Chairman in his judgment. It may be restated as follows:

On 10 October 1984, the PTC invited applications for the post of Telephone Superintendent at its Gateway exchange in Gweru. Four such posts were to be filled by the lateral transfer of serving superintendents, or, if not available, by promotion from the grade of supervisor. The respondent was a Supervisor.

He applied.

After undergoing a two week training course, in April 1985, the appellant, and one Mahachi, a fellow Supervisor, were transferred, permanently, to Gateway Exchange with effect from 28 June 1985.

In April 1986, the appellant, and Mahachi, having by then acted for nine months, wrote to the Regional Telecommunications Manager requesting that they be appointed superintendents, as the two substantive posts at Gateway Exchange had not been filled. The immediate response to their veiled complaint was to offer them the choice of remaining in an acting capacity or being relieved of their positions.

Both resolved to continue as Acting Superintendents.

During February 1987, the appellant, and Mahachi, raised with the Senior Superintendent, Gweru, their concern at still awaiting substantive appointments; but to no avail. New posts, vacancies, and re-gradings were under freeze pending a review of the PTC's establishment.

Later that year, when the freeze was lifted, an exercise was undertaken by the PTC to fill the vacant substantive posts of superintendent at Gateway Exchange. Candidates were required to have attained five "O" level passes, including english language and mathematics, in the General Certificate of Education examination. There were no applicants with the stated qualification.

Neither the appellant, nor Mahachi, had obtained an "O" level pass in mathematics.

In January 1988, the Promotions Board of the PTC requested, and was granted, a waiver of the mathematics requirement for the post of Superintendent. The appellant, and Mahachi, thus qualified for promotion.

In the event, it was Mahachi, alone, who was appointed. The appellant was not, because, at that point in time, he was under investigation on charges of misconduct.

In September 1990, the PTC decided to advertise several posts, one of which was for a Superintendent at Gateway Exchange. The notice issued by it stated, explicitly, that, "O" level passes in english language and mathematics were required of the applicants.

The appellant applied, notwithstanding that he still lacked the mathematics qualification.

A supervisor from Harare Main Exchange also applied. He happened to satisfy the educational requirements: and so, it was he who secured the appointment.

Shortly, thereafter, on 5 February 1991, the appellant was informed, that, as a superintendent had now been appointed to Gateway Exchange, he was no longer needed to act in that capacity and was to be transferred back to Harare Main Exchange as a supervisor.

This was indeed a bitter pill for the appellant to swallow.

He had acted as superintendent at Gateway Exchange for a period of five years and seven months and was not prepared to comply meekly with the instruction that he revert to the grade of Supervisor. He immediately referred what he believed to be an unfair labour practice to a Labour Relations officer in terms of section 93(1) of the Labour Relations Act [Chapter 28:01]. A hearing was convened on 8 February 1991. The Labour Relations officer came to the conclusion that:

"The person who was appointed to fill the vacant post at Gateway Exchange was eligible for the post in terms of the Postmaster General's Circular No.8 of 1986, and in terms of the vacancy notice No.45 of 1990; the PTC acted within the parameters of its laid down policy, and, it was thus not guilty of an unfair labour practice in this regard."

Thereafter followed appeals to the Regional Hearing Officer and from him to the Labour Relations Board.

Section 8 of the Labour Relations Act specifies those acts or omissions which constitute an unfair labour practice by an employer.

Under section 10 of the Labour Relations Act, the Minister of Public Service, Labour and Social Welfare is empowered to prescribe, by statutory instrument, acts and omissions which constitute unfair labour practices and may vary, amend of repeal any such notice. Initially, such provision was made by the Minister in the Third Schedule to the Labour Relations (General) Regulations 1985 (S.I.368 of 1985); and, more recently, in the Second Schedule to the Labour Relations (Settlement of Disputes) Regulations 1993 (S.I.30 of 1993).

Those, then, are the particular acts or omissions deemed to be unfair labour practices which a Labour Relations Officer is mandated, by section 93 of the Labour Relations Act, to deal with.

It was not in contention, and rightly so, that the omission by the PTC to promote the appellant to the post of Superintendent, despite his long and good service when acting in that capacity, was one of the unfair labour practices specified in the legislation.

Nonetheless, the argument advanced was that the PTC had created a situation which caused the appellant to legitimately expect that he would be promoted to the post in which he was acting.

View Appeal
HH65-10 : RIO TINTO (AFRICA) PENSION FUND vs AFARAS M. GWARADZIMBA (in his capacity as Liquidator of Sagit Stockbrokers PL) AND AFARAS M. GWARADZIMBA (in his personal capacity)
Ruled By: MTSHIYA J

The second issue for determination is whether or not the second respondent, in his personal capacity, acted in bad faith and can therefore be held personally liable. In the absence of any fraudulent act relating to the manner in which the account was confirmed by the Master of the High Court, I see no need to ...

HH37-08 : MOVEMENT FOR DEMOCRATIC CHANGE and MORGAN TSVANGIRAI vs CHAIRPERSON, ZIMBABWE ELECTORAL COMMISSION and CHIEF ELECTIONS OFFICER, ZIMBABWE ELECTORAL COMMISSION
Ruled By: UCHENA J

The first applicant, the Movement for Democratic Change, is a political party, commonly known as the (“MDC”). It will be referred to as the first applicant. The second applicant, Mr Morgan Tsvangirai, is its President. He was the first applicant's Presidential candidate in the just ended harmonized elections held on 29 March 2008. He will be referred to as the second applicant.

The first respondent is the Chairman of the Zimbabwe Electoral Commission, a Commission established in terms of section 61(1) of the Constitution of Zimbabwe. He was appointed in terms of section 61(1)(a) of the Constitution. He will be referred to as the first respondent. The Zimbabwe Electoral Commission is commonly known as (“ZEC”), in reference to the abbreviation of its name. It will be referred to as ZEC in this judgment.

The second respondent is the Zimbabwe Electoral Commission's (ZEC) Chief Elections Officer appointed in terms of section 11 of the Zimbabwe Electoral Commission Act [Chapter 2:12], hereinafter called the Zimbabwe Electoral Commission Act. He will be referred to as the second respondent.

The Facts

The first respondent, through the Zimbabwe Electoral Commission (ZEC), conducted harmonised elections which were held on 29 March 2008. The elections were contested by candidates aspiring for the following positions, Councilors of local authorities, Members of the House of Assembly and the Senate, and President of the Republic of Zimbabwe.

It is common cause that the contestants of the first three positions now know the results of their elections. The results were announced at the Ward Constituency, House of Assembly and Senatorial constituency levels. The winners were declared by the respective Ward and Constituency Elections Officers. House of Assembly and Senatorial results have also been announced by the National Collation Centre presided over by the second respondent.

It is conceded, by the respondents, that this was merely for the benefit of the general public as the legal requirements had been satisfied at constituency level.

The applicants, who have an interest in Presidential election results, filed an urgent application seeking this court's provisional order, compelling the respondents to announce the results.

The respondents, while conceding that Presidential results have not yet been announced, contented that they will announce them when they are ready....,.

After the court's ruling on the issue of jurisdiction, counsel for the applicants submitted that the application was urgent and outlined the facts establishing the urgency. In response, counsel for the respondents submitted that the application is not urgent and should have been brought by way of ordinary application....,.

Urgency

After the ruling on the issue of jurisdiction, counsel for the applicants made submissions on the urgency of the application.

He submitted that section 110(3) of the Electoral Act [Chapter 2:13] hereinafter called the Electoral Act, provides, for a re-run within 21 days after the previous election in the event of no candidate obtaining a clear majority in the election. This, he submitted, means a delay in announcing the election results will deprive candidates of sufficient time to prepare for the re-run. He also submitted that the respondents would not have enough time to prepare for the re-run.

Counsel for the respondents submitted that there was no urgency in the applicant's application because its cause of action was based on the announcement of the results of the Presidential poll. He argued that those results where not due as the provisions of the Second Schedule have not yet been complied with. He therefore reasoned that the cause of action would arise when the provisions of the Second Schedule of the Electoral Act would have been complied with. He summed up by submitting that the applicants cause of action, as stated in Tendai Biti's founding affidavit, has not yet arisen hence the absence of urgency in the application.

Counsel for the applicants, in response, disputed counsel for the respondents submission that the cause of action had not yet risen. He submitted that Tendai Biti's affidavit complains of delays and the respondent's wasting time on already declared election results instead of doing what they are mandated to do; that is, the collation and verification of Presidential results and their announcement.

A reading of Tendai Biti's founding affidavit confirms that though he, in some paragraphs, emphasised the announcement of results he clearly brought out a case against the general delay. That was in fact the theme of the applicants' complaint in paragraphs 5, 11, 12, 13, 14, 16, 17, 24, 26 and 27.

I am therefore satisfied that the applicants' application is premised on delays and the respondents' wasting time doing everything else other than what they should have been doing. Therefore, the cause of action has arisen though the wording of the provisional draft order seeks the announcement of results within four hours of the service of it on the respondents.

This can be corrected by a variation in terms of Rule 246(2) of the High Court Rules, 1971 which provides as follows:

“(2) Where, in an application for a provisional order, the judge is satisfied that the papers establish a prima facie case he shall grant a provisional order either in terms of the draft filed or as varied.”

This means an application for a provisional order which has been prima facie proved cannot be dismissed because of a poorly drafted order. The court can vary it and grant a correctly formulated provisional order consistent with the prima facie case proved.

In fact, on being granted, the order becomes the court's order. The court must therefore be satisfied by its formulation before granting it.

It was for these reasons, that I found the application was urgent and proceeded to hear it on the merits.

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

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

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

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

(iii) Whether security for costs was provided; and

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

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

The brief facts were these:

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

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

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

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

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

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

The first respondent received the petition on 19 May 2008.

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

SC03-09 : JESTINA MUKOKO vs COMMISSIONER GENERAL OF POLICE and MINISTER OF STATE SECURITY and ATTORNEY-GENERAL and COMMISSIONER OF PRISONS and MISHROD GUVAMOMBE
Ruled By: CHIDYAUSIKUCJ

In this Chamber application, the applicant seeks an order to depart from the Supreme Court Rules in regard to the set down of a Constitutional Court application made in terms of section 24(1) of the Constitution of Zimbabwe (hereinafter referred to as “the Constitution”). In other words, this is an ...

Appealed
SC28-10 : JONATHAN MOYO and MOSES NDLOVU and PATRICK DUBE and SIYABONGA NCUBE vs AUSTIN ZVOMA N.O., CLERK OF PARLIAMENT and LOVEMORE MOYO
Ruled By: CHIDYAUSIKU CJ, MALABA DCJ, SANDURA JA, ZIYAMBI JA and GARWE JA

CHIDYAUSIKU CJ: This is an appeal against the judgment of the High Court wherein PATEL J dismissed the appellants' application to have set aside the election of the second respondent as the Speaker of Parliament (hereinafter referred to as "the Speaker").The appellants, as the applicants in the court a quo, ...

CHIDYAUSIKU CJ: This is an appeal against the judgment of the High Court wherein PATEL J dismissed the appellants' application to have set aside the election of the second respondent as the Speaker of Parliament (hereinafter referred to as "the Speaker").

The appellants, as the applicants in the court a quo, sought the following relief set out in the draft order:

"WHEREUPON after perusing the documents filed of record and hearing counsel, it is hereby declared that:-

1. The election of (the) second respondent as the Speaker of the Parliament of Zimbabwe on 25 August 2008 is null and void and set aside.

2….,.

3. That the respondents jointly and severally pay the costs of suit."

(The applicants abandoned the relief set out in paragraph 2).

The appellants' main contention in the court a quo, and in this Court, is that the election of the Speaker was null and void because it was not conducted in terms of section 39 of the Constitution of Zimbabwe (hereinafter referred to as "the Constitution"), as read with Standing Order 6 of the Standing Orders of Parliament of Zimbabwe (hereinafter referred to as "the Standing Orders").

PATEL J dismissed the application. The appellants now appeal against that judgment....,.

MALABA DCJ: I have read the opinion expressed by the learned CHIEF JUSTICE. I regret that I am unable to agree with the decision that section 39(2) of the Constitution, as read with Standing Order No.6 of the House of Assembly Standing Orders ("Standing Order 6"), by implication, compels the nullification of the election upon proof that the Clerk of Parliament ("the Clerk"), who was under the obligation to conduct the election of the Speaker of the House of Assembly ("the Speaker") by a secret ballot, unlawfully counted invalid votes as secret ballots.

This case came to the Supreme Court by way of an appeal against the judgment of the High Court. The court a quo dismissed with costs an application for an order declaring that the election of the second respondent as the Speaker of the House of Assembly ("the House") on 25 August 2008 is null and void and set aside.

The applicants, who are members of the House who had taken part in the election of the Speaker, disavowed the application as an application for review. The substance of the relief sought and the reliance on the provisions of section 4(1) of the Administration of Justice Act [Chapter 10:28], however, show that it was an application for review.

The applicants alleged, in effect, that the Clerk who, as the administrative authority, was given the power to conduct the election of the Speaker by a secret ballot, in accordance with the machinery prescribed under section 39(2) of the Constitution, as read with Standing Order 6, failed to act in accordance with the requirements of the rule against counting invalid votes as secret ballots, and, as a result, affected their rights or legitimate expectation in the election.

A perusal of the papers filed in support of the application shows that the relief was sought on two grounds:

(i) The first ground was that there was "noise, utter chaos, and disorder" in the Chamber of the House at the time appointed by the Clerk for the holding of the election of the Speaker such that the environment never became conducive for conducting the election by a secret ballot.

(ii) The second ground was that, in violation of the secrecy of the ballot, and in defiance of the procedure laid down by the Clerk, some members of the MDC-T party came out of the polling booth with ballot papers, on which they had marked their votes, unfolded. The allegation was that they displayed the ballot papers to others to disclose for whom they had voted before folding the ballot papers and depositing them in the ballot boxes.

As part of the second ground, it was alleged that the Clerk was under a duty to stop or prevent the members of the MDC-T party from doing what they did, but, in disobedience of his duty, failed to do so.

It was not the applicants' case that the election of the second respondent, as the Speaker of the House, should be declared null and void because the Clerk counted invalid votes as secret ballots, thereby distorting the result of the election. The reason is that to do so would have involved an admission by the applicants of the fact that there was counting of secret ballots produced by the electoral process the applicants alleged had not taken place....,.

My view of the case is that the application ought to have been dismissed or granted on the grounds on which the applicants made it.

HH103-09 : U-TOW TRAILERS (PRIVATE) LTD vs CITY OF HARARE and SUPERLUX (PRIVATE) LIMITED
Ruled By: MAKARAU JP

The brief background facts to this matter are largely common cause. I set them out as follows:

In 1994, the applicant entered into a lease agreement with the first respondent in respect of certain premises situate at Number 9 Market Street, Eastlea, Harare (“the premises”).

The lease agreement was constantly renewed over the years with the last renewal being agreed upon on 20 June 2007 for a further three years. Thus, the lease agreement between the parties is due to expire by effluxion of time on 31 March 2010.

It was a specific term of the agreement between the applicant and the first respondent that the applicant would not sublet the premises without the written consent of the lessor.

In 2008, the applicant and the second respondent reached an understanding in terms of which the second respondent moved onto and took occupation of part of the premises….,.

In January 2009, the first respondent wrote to the applicant, summarily terminating the lease agreement and seeking the ejectment of the applicant from the premises. This was on the allegation that the applicant was subletting the premises to the second respondent without the prior written consent of the lessor and in breach of the specific term of the lease agreement against sub-letting.

When the applicant tendered rentals for the month of February 2009, these were rejected on the basis that the lease agreement had been cancelled.

This, in turn, prompted the applicant to approach this court seeking;

(i) Firstly, an order holding the first respondent to the lease agreement on the basis that it was not sub letting to the second respondent as alleged; and

(ii) Secondly, an order ejecting the second respondent from the premises.

The application was opposed by both respondents.

In opposing the application, the first respondent contended that it had proceeded in terms of the lease agreement to summarily cancel the lease agreement as the applicant was in breach. It justified its action by relying on clause 21 of the lease agreement which provides that:

“If the lessees shall fail to pay the rent on the due date or at the latest within ten days thereafter or if the lessees shall commit any other breach of the terms or conditions of this lease then the Municipality shall have the right, in its discretion, summarily to terminate this lease and retake possession of the Stand without payment of any compensation whatsoever and without prejudice to any claim which it may have against the lessees for rent already due or for any damages which it may suffer by reason of such breach or termination.”

The second respondent's opposition to the application is, in my view, somewhat curious.

The second respondent is the alleged sub-lessee and it objects to the continuation of the lease agreement between the applicant and the first respondent. While admitting, as contended by the applicant, that it took occupation of the premises in anticipation of a joint venture between itself and the applicant, the second respondent does not proffer any defence as to why it should not be evicted from the premises at the instance of the applicant.

Instead, and curiously so as I have observed above, it adopts and pleads the case of the first respondent that the applicant was in breach of the lease agreement, indeed, epitomizing the proverbial stranger who mourns louder than the bereaved.

It further avers, that, in February 2009, when the applicant's rentals were turned down, this was because it had paid these in respect of the property. It however falls short of alleging that it is now the tenant in respect of the property.

In its opposing affidavit, the first respondent does not admit any formal relationship with the second respondent. It simply maintains that the applicant's rentals for February 2009 were not accepted as its lease had been cancelled.

I believe it is pertinent, at this stage, that I dispose of the issue between the applicant and the second respondent.

As observed above, the applicant is seeking the eviction of the second defendant from the premises on the basis that the proposed joint venture between the parties has failed.

This is not disputed by the second respondent which then proceeds to aver, that, after the joint venture had failed to materialize, the applicant demanded rentals from it, thereby creating the sublease.

The totality of the averments made by the second respondent, even if proved, do not constitute a defence to an order for eviction at the instance of the applicant. Thus, in the event that I find for the applicant and hold the first respondent to the agreement, I must perforce order the eviction of the second respondent from the premises on the basis that the second respondent has failed to proffer a defence to the applicant's claim.

The issue that remains for my determination is between the applicant and the first respondent: it is whether the first respondent was justified in summarily cancelling the lease agreement without first affording the applicant a chance to respond to the allegations that it was sub-letting the premises to the second respondent.

It is trite that even where a lease agreement grants the lessor the right to cancel the lease on account of breach and to re-take possession of the leased premises, as was the position between the applicant and the first respondent, such cancellation is always subject to the control of and confirmation by the court.

The lessor has to approach court for the confirmation of its cancellation of the agreement and for the eviction of the tenant. The right to summary termination of the lease agreement, no matter how clearly worded, does not oust the jurisdiction of the court to grant the eviction order.

The existence of the grounds for and the validity of the cancellation of the lease agreement are always subject to validation and confirmation by the court which alone can order the eviction of the defaulting tenant.

The lessor cannot exercise self-help and retake possession of the property without a court order - even where the agreement specifically provides so: see Livingstone v Solomon 1924 SR 117; Joubert v Bester 1977 (2) SA 641 (T); Towers v Chipata 1996 (2) ZLR 261 (HC): and Bater and Another v Muchengeti 1995 (1) ZLR 80 (SC)…,.

In casu, the first respondent did not independently approach the court for the eviction of the applicant after it became aware of the alleged breach in the form of subletting.

After being served by this application, it did not seek to counter apply for the confirmation of its cancellation of the lease agreement and the eviction of the applicant.

The validity of its actions, in cancelling the lease agreement and its threat to re-take possession of the premises, have been brought before the court by the applicant, not for its confirmation but for it to be set aside on the basis that the first respondent did not give the applicant an opportunity to respond to the allegations before it acted summarily.

Thus, it appears to me that even if I were to find that the purported cancellation of the lease agreement by the first respondent was justified in the circumstances, that finding would not automatically translate into an order evicting the applicant from the premises as there is no prayer before me for the eviction of the applicant from the property.

In my view, such a finding, if I were to make it, would simply lay the foundation for the issuance of an eviction order against the applicant at the instance of the first respondent whenever it is moved to seek such an order.

It is on the basis of the above, that, in my view, it is not necessary that I make a finding as to whether or not the applicant was subletting to the second respondent and was therefore in breach of the lease agreement.

In my view, to do so would be to tie down the court that may be approached by the first respondent for an order evicting the applicant from the property.

In my view, the legal issue that must be resolved in this matter is whether, in light of the promulgation of the Administrative Justice Act [Chapter 10.28] (“the Act”), the powers of the first respondent, as a local authority, to act summarily as it did, has been modified.

Hence, at the hearing of the matter, I directed the parties to make reference to the provisions of the Administrative Justice Act which came into operation on 3 September 2004.

My anxiety not to overlook the provisions of the Administrative Justice Act was prompted by the admitted fact that the first respondent acted strictly in terms of the lease agreement between the parties and did not afford the applicant a chance to be heard before it summarily cancelled the lease agreement on the allegation that the applicant was sub-letting the premises to the second respondent.

I have now received extensive heads of argument from both counsel in this matter and I appreciate the assistance rendered me in this regard....,.

Before I dispose of this matter, I need to deal with a point in limine taken by the first respondent in this matter and arising out of adjectival law.

The first respondent contends that the applicant did not approach this court for relief under the Administrative Justice Act and thus I cannot apply the provisions of the Administrative Justice Act to its advantage.

Section 4 of the Administrative Justice Act provides that any person who is aggrieved by the failure of an administrative authority to comply with section three may apply to the High Court for relief.

It is common cause that the applicant filed this application challenging the decision of the first respondent to summarily cancel the lease agreement. It filed a court application in terms of the Rules.

While the application does not make any reference to the provisions of the Administrative Justice Act, in my view it makes allegations that fall squarely within the provisions of the Act.

I was satisfied, before I referred the question to the parties for further argument, that the allegations and contentions made by the applicant in its court application fell within the purview of the Administrative Justice Act even if the Act was not specifically invoked.

In my view, generally, it is not necessary for an applicant to specifically plead the law that it seeks to rely on as long as the necessary averments are made therein to sustain a cause of action under the applicable law unless the law under which he or she is proceeding requires that certain averments be specifically pleaded.

The court is not a slave to the form of the law. It is always a slave to justice whom it must always serve.

For the avoidance of doubt, if I have erred in allowing the applicant to bring a deformed application before the court and the correct position is that it was necessary for the applicant to specifically invoke the provisions of the Administrative Justice Act, I will condone that oversight in terms of section 4(c) of High Court Rules, 1971.

As correctly pointed out by the first respondent, this is not an application for review. It is an application for the setting aside of an administrative decision on the basis that it was not arrived at fairly and thus, at law, contravenes the Administrative Justice Act.

HH119-09 : ISAAC MANDI vs GRACE MCHICHWA (as Executrix Dative Estate Late Peter Kandeya) and RUWA LOCAL BOARD and MINISTRY OF LOCAL GOVERNMENT
Ruled By: GOWORA J

On 15 October 2009, after hearing counsel, I dismissed this application with costs. The applicant's legal practitioners have now indicated that they require reasons for the dismissal and these are they:During his lifetime, Peter Kandeya entered into an agreement with the third respondent in terms of which he, Peter Kandeya, leased from the respondent certain premises known ...

During his lifetime, Peter Kandeya entered into an agreement with the third respondent in terms of which he, Peter Kandeya, leased from the respondent certain premises known as Stand 1124 Samaita Crescent, Ruwa. The lease was concluded on 18 August 1999 but was effective from July 1999 and would endure for a period of six years.

On 2 December 2003, Peter Kandeya entered into an agreement with Aston Musunga in terms of which the latter purchased a piece of land called Stand 3408 Gora Crescent, Ruwa. Although there seems to be a difference in the Stand numbers and the street address it is clear from the lease agreement between Peter Kandeya and the third respondent that it is in fact the same Stand. On the same day that the two concluded an agreement of sale, they also entered into an agreement of lease wherein Peter Kandeya leased the property in question from Aston Musunga. The lease was to expire after six months.

According to the founding affidavit deposed to by the applicant, on 21 June 2005, Aston Musunga then donated Stand 3408 Gora Crescent, Ruwa to him.

The Deed donating the property to the applicant has not been produced.

I do not doubt that indeed such donation took place. It is on the basis of this donation that the applicant seeks that the first respondent cede and transfer her right, title and interest in Stand 3408 Gora Crescent, Ruwa to himself.

The third respondent has opposed the granting of the relief on the basis that, as the owner of the Stand, his written consent to the alienation had not been sought prior to Peter Kandeya entering into any agreement for the transfer of rights that Peter Kandeya had in the lease agreement.

The first respondent contends that the Agreement of Sale being alleged by the applicant is null and void ab initio due to the provisions of clause 12 of the lease agreement governing the relationship between the deceased and the third respondent.

In Nkomo v Mujuru1997 (1) ZLR 155, ROBINSON J found that an agreement of sale in respect of premises subject to an agreement of lease with the Government as lessor wherein the prior written consent of Government was required before rights therein could be alienated, whilst not being void ab initio, was, nevertheless, unenforceable against the Government at the instance of the seller or purchaser of rights accruing from the lease.

In my view, this clear legal position and the stance adopted by the third respondent herein, that it would not consent to the order being sought, should have alerted the applicant and his legal practitioner that there would be very little mileage to be made in pursuing this court application further.

It should have occurred to the applicant and his legal practitioners that Aston Musunga had to obtain cession of rights from Peter Kandeya before the donation could be effective in favour of the applicant in which case a real right would have been donated. However, wiser counsel did not prevail and the applicant proceeded regardless.

Despite the fact that the applicant did not conclude an agreement with the first respondent or the deceased, the applicant seeks an order for specific performance for the cession of rights in the Stand to himself.

I have not been addressed on the legal premise on which I should find that the first respondent is obligated to transfer rights in the Stand to the applicant. There is no agreement between the two parties, and, as such, the applicant has not advanced any cause for this court to find that he is entitled to the relief that he is seeking.

When I questioned the applicant's counsel on the issue I was advised that the practice was that a party in the shoes of the applicant could sue for the transference of such rights. Her response was indicative of knowledge that this practice was not grounded on any principle in law. Nevertheless, she persisted to argue that the applicant was entitled to an order of specific performance.

I was unable to understand the submission, as it was not backed by legal principle.

There is no privity of contract between the applicant and the first respondent. In the circumstances, I find myself unable to accede to the applicant's prayer for relief in the terms sought.

HH142-09 : JOVITA SANYANGOWE vs ELVIS CHALIMBA
Ruled By: MUSAKWA J

The applicant is seeking an order that she be appointed the legal guardian of Tinashe Esther Chalimba, born on 17 August 1996 and Anesu Esther Chalimba, born on 29 July 1999, plus costs of suit.

In her founding affidavit, the applicant states that she cohabited with the respondent from 1995. As a result of such cohabitation, she gave birth to Tinashe Constance Chalimba on 17 August 1996 and Anesu Esther Chalimba on 29 July 1999. Due to the violent nature of the respondent the two separated. The applicant obtained an order for the custody of the minor children in the Magistrates Court. She also sought a binding over order against the respondent in the Magistrates Court. In addition, she filed two applications for maintenance for the minor children.

In 2003, the applicant secured employment in New Zealand. With her mother having passed away she had no alternative but to leave the children with the respondent. She intended to collect the children later.

In 2005, she informed the respondent on the need for the children to join her but he refused.

Later, she learnt that the respondent had taken the children to South Africa. She subsequently visited them and she was allowed limited access to them.

In 2007, she established that the children were back in Zimbabwe and attending school in Rusape where she visited them. She concludes by stating that since she was never married to the respondent she is the legal guardian of the children. She then prays for an order in terms of the draft.

In his opposing affidavit, the respondent states that the South African High Court ruled that the children should stay with him, with the applicant having access. He contends that the applicant applied for custody of the children in the local courts but she did not prosecute the matter to finality. He also contends that he never agreed that the children would return to the applicant. He was never told that the applicant intended to leave the country. There was no communication from the applicant between January 2003 and June 2005. The applicant is said to have filed an application for custody of the children in the South African High Court and the matter had not yet been determined at the time of filing of the opposing affidavit.

Counsel for the applicant submitted that it is trite that an unregistered customary law union does not bestow guardianship on the father. He prayed for the order sought despite the issue taken up by counsel for the respondent regarding the propriety of such an order. It was further his submission that nothing turns on the criticism aimed at the draft order as it seeks to confirm the legal position that the applicant is the legal guardian of the children. He also urged the court to dispose of the matter notwithstanding that there is pending litigation between the parties in the South African courts.

On the other hand, counsel for the respondent submitted that the present proceedings are substantially similar to the matter that was pending before the South African courts. He thus urged this court to exercise its discretion by declining to determine the present matter as the applicant has not finalized the matter that is before the South African courts. It was his submission, that, as a matter of public policy, a litigant should not hop from one court to the other without good cause. In truth and substance, the present application is said to be exactly the same as the one pending before the South African courts, so counsel for the respondent further argued.

On the merits, counsel for the respondent submitted that it is incompetent to grant the order sought. This is because the law recognizes two types of orders. There is what is termed a constitutive order which confers rights to one party and imposes obligations on the other party. The other order is declaratory as it does not confer rights but states what the position of the law is regarding a particular issue.

Counsel for the respondent further submitted that a litigant's case stands or falls on its founding affidavit. Thus, the founding affidavit sets out the applicant's cause of action. If it is accepted that the father of children born out of wedlock has no rights regarding those children then that can only be the subject of a declaratory order as opposed to a constitutive one.

Counsel for the respondent further pointed out paragraph 31 of the applicant's founding affidavit in which she seeks to be appointed guardian of her children. If that is the case she does not require such an appointment as she is the natural guardian by operation of law.

Counsel for the respondent also submitted that the court must endeavor to look at the substance of the application as opposed to its form. In his view the substance of the present application is captured in paragraphs 13 to 28 of the founding affidavit. In essence, the applicant is said to be seeking custody under the guise of an application for an order for guardianship. This, according to counsel for the respondent, is evidenced by what is contained in the founding affidavit.

Finally, counsel for the respondent submitted that the case of Katedza v Chunga 2003 (1) ZLR 470 (H) in which SMITH J granted a declaratory order in favour of the applicant to the effect that she was the guardian of her child was wrongly decided....,.

As regards the merits of the application, I agree with counsel for the respondent's submission that the substance of the applicant's founding affidavit deals with her quest to have custody of the minor children.

It is quite clear that the applicant relinquished custody of the children to the respondent and wants it restored. But she is seeking that in an indirect manner. If she was awarded custody by the Magistrates Court, it is not clear why she is not seeking the appropriate relief if such order has been violated.

There is no doubt that the mother of a child born out of wedlock has sole rights of custody and guardianship. In this respect see such authorities as D v M 1986 (1) ZLR 188 (HC); Katedza v Chunga 2003 (1) ZLR 470 (H); and Paul Cruth v Michele Thora Manuel 1999 (1) ZLR 7 (S).

However, in my view, this is not the real issue between the parties as can be noted from the papers. The crux of the applicant's founding affidavit is that she wants the children to join her in New Zealand but the respondent has refused to release the children.

I do not agree with counsel for the respondent's submission that the case of Katedza v Chunga 2003 (1) ZLR 470 (H) was wrongly decided. I am mindful that that was an unopposed application; but, in my view, it sets out the law clearly.

In that case, the applicant and the first respondent stayed in an unregistered customary law union for three years which resulted in the birth of a son. The applicant had the child's surname changed to hers by Notarial Deed. Thereafter, her legal practitioners sought the issuance of a new birth certificate by the Registrar-General who declined on the basis that the consent of the father of the child was required. Despite the applicant's legal practitioners pointing out that the father's consent was not a requirement as the child was born out of wedlock, the Registrar General maintained his objection. It was also pointed to the applicant's legal practitioners that the child's father was opposed to the issuance of a new birth certificate without his consent and that he was prepared to fight the issue in the courts.

Neither the father of the child nor the Registrar opposed the application.

In Katedza v Chunga 2003 (1) ZLR 470 (H) the applicant sought a declaratory order to the effect that she was the guardian of her child and for an order that the Registrar General issue the child with a new birth certificate in the applicant's name.

Contrast that with the relief being sought in the present application.

The applicant cannot be appointed guardian of her children when the law already bestows her with such a right. There is no allegation that such rights have been violated. In short, the relief sought is not supported by the facts disclosed in the founding affidavit.

Therefore, the application is dismissed with costs.

HH144-09 : NEGOWAC SERVICES (PRIVATE) LIMITED vs 3D HOLDINGS (PRIVATE) LIMITED AND GIFTCARE ELECTRICAL (PVT) LTD t/a REG ELECTRICAL WHOLESALERS
Ruled By: MTSHIYA J

It was counsel for the defendants' submission that since the parties agreed that there was a rent dispute which remained unresolved in terms of the law then the matter should be dismissed on that basis. He said it was not the court's duty to fix rent for the parties. This was the duty of the Commercial ...

He said it was not the court's duty to fix rent for the parties. This was the duty of the Commercial Rent Board, as provided in section 7 of the Commercial Premises (Rent) Regulations (S.I.676 of 1983).

An analysis of the facts in this case leads me to the conclusion that from January 2009 the rent payable by the defendants became a totally unknown entity.

It was mentioned that, on 1 January 2009, a proposal of rental in fuel coupons was made. There were, however, no details of that proposal, and no information as to how the defendants responded to the proposal. It is clear, however, that as from February 2009, the plaintiff was no longer accepting payment of rentals in Zimbabwe dollars.

In March 2009, having failed to get the defendants' acceptance of the proposed rental of US$5= per square metre, the plaintiff suspended the defendants accounts. The defendants had counter-offered US$2= per square metre. The pleadings refer to US$1= per square metre but evidence in court confirmed the offer of US$2= per square metre. That offer was rejected as being too low, and from that time up to the issuance of summons, there was no agreement on the rent payable.

The rentals fixed in Zimbabwe dollars ceased to be payable from 31 December 2008. There was, therefore, no question of the defendants continuing to pay the rentals previously agreed. That point finds confirmation in the suggestion that the defendants' could have at least continued to pay the rental they proposed.

That rental, though, could not, in the absence of an agreement, constitute a fair rental.

Clearly, therefore, it was incumbent upon both parties to approach the Commercial Rent Board, or an Arbitrator, for the fixation of rent from January/February 2009.

It is clear to me that up to the date of the hearing of this matter there was no agreed position on rent. The dispute over rent still persists.

Instead of approaching the Commercial Rent Board, the plaintiff has chosen to issue summons seeking confirmation of the cancellation of the lease agreements and ejectment of the defendants' from its premises. Apart from stating that the defendants are in breach of not paying rent the plaintiff's summonses do not disclose what rent was payable.

This is so because there was, indeed, never any agreement on the reviewed rentals.

Whilst I agree that there was indeed a rent dispute, I am, however, not persuaded to agree that the plaintiff's action should be dismissed on that ground.

My view is that as long as the defendants' wanted the tenancy to continue, they had an obligation to continue paying rent. They should have continued to pay what they believed was a reasonable rent. I do not believe that the plaintiff would have refused to accept receipt of rent paid in American dollars. I believe that statements were indeed sent to the defendants' and, notwithstanding the dispute, the defendants' ought to have paid what they believed to be reasonable...,.

HB71-09 : ROSEMARY CHIGANZE (as the guardian of LEWIS DUBE, a minor) vs PATIENCE MAPHOSA (personally and as a guardian of..., a minor) and THABANI LIHLE SIZIBA N.O. and ASSISTANT MASTER OF THE HIGH COURT
Ruled By: NDOU J

The applicant approached this court, under a certificate of urgency, seeking a provisional order in the following terms:- “Terms of Final Order Sought It is ordered that:- That (sic) you show cause to this honourable court why a final order should not be made in the following terms: (a) That the third respondent be interdicted from dealing with the estate of ...

HH06-10 : HARLAND BROTHERS (PVT) LIMITED and RAYMOND FINAUGHTY vs THE MINISTER OF LANDS AND RURAL RESETTLEMENT and MRS WINNIE MUSHIPE
Ruled By: MUSAKWA J

One other aspect deserves to be commented on. In their draft order, the applicants have sought the assistance of the police in the enforcement of the draft order. They did not cite the relevant police officers or police station, and it would be inappropriate to grant that order.

HH22-10 : FORRESTER ESTATE (PVT) LIMITED vs EDGAR CHIDAVAENZI
Ruled By: MAKONI J

In casu, the applicant, in his founding papers, did not make and prove the two allegations which constitute what can be termed the essential elements for a spoliatory order. The applicant did not aver that it was in peaceful and undisturbed possession of the silo. In my view, this is fatal to the applicant's case. ...

HH35-10 : RUTH MUSONZA (nee MTANAUKWA) vs ESHMAEL MUSONZA
Ruled By: GUVAVA J

In the case of Mutenure v Mutenure HH300-90 the court stated as follows:"…, court proceedings are not a game where one inflates one's claim in order to allow for an element of reduction. Claims must be genuine, realistic and substantiated in order that the court can make a proper assessment ...

HH90-10 : LOCAL AUTHORITIES PENSION FUND vs F & R TRAVEL TOURS AND CAR SALES (PVT) LTD and FREEJOY CHIGWIDA and RAPHAEL MAKWARA
Ruled By: MAKARAU JP

The applicant and the first respondent are landlord and tenant respectively. Their relationship commenced when they concluded a written agreement in respect of certain commercial premises situate at Throgmorton House, Samora Machel Avenue, in Harare. The agreement was for a period of one year, commencing on 1 July 2006 and terminating on 30 June 2007.

The second and third defendants, as directors of the first respondent, bound themselves as co–principal debtors under the lease agreement.

In July 2009, the applicant filed this application seeking an order evicting the respondents from the rented premises. In its founding affidavit, it averred that the respondents had breached the written lease agreement by failing to pay rentals and operating costs for the premises since January 2009. The amount of arrear rentals and outstanding operating costs was also prayed for in the order.

It is pertinent, in my view, that, at this stage, before I detail the opposition that was filed by the respondents, I comment on the manner in which the applicant proceeded to frame its cause of action against the respondents.

The applicant has alleged that the respondents are in breach of the written lease agreement of 2006.

It is common cause that the written lease agreement between the parties terminated by the effluxion of time in June 2007. As at the time of the filing of the application, it was no longer binding upon the parties and could thus not found a cause of action for the applicant.

Its terms and conditions may have continued to afford the respondents protection against eviction under the operation of the provisions of the Commercial Rent Regulations S.I. 276/83(“the Regulations”), under what is commonly referred to as statutory tenancy.

This is however not part of the averments made by the applicant in its founding affidavit.

In my view, statutory tenancy is not an issue that the court should take judicial notice of mero motu. It must be specifically pleaded as it brings into play different considerations regarding the respective rights of the parties. It is a separate cause of action, apart from the terminated lease agreement.

I shall avert to the provisions of the Commercial Rent Regulations S.I.276 of 1983 (“the Regulations”) in detail below.

At this stage, the point I am making is that the applicant could not validly seek to rely on an agreement that had terminated without first laying a legal basis for its revival so to say. As I shall show later, this may have fatally compromised the applicant's quest to recover its property from the tenant.

In opposing the application, the respondents argued, that, the written agreement between the parties provided for payment of rent in local currency, and, when that currency lost favour with traders and generally, the applicant sought to impose a rental in United States currency with the parties failing to reach agreement on the amount payable.

Again, I pause to make the point, that, the respondents were clearly relying on the protection against eviction afforded them by the Commercial Rent Regulations but did not specifically raise that defence in their papers.

In moving for the granting of the order sought in the draft, the applicant urged me to find that the parties had a written lease agreement, that, in terms of that lease agreement, the first respondent was obliged to pay rentals and operating costs monthly and in advance and that in breach of that agreement, the first respondent failed to pay any rent or operating costs from January 2009 to the date of the filing of the application.

As indicated above, the applicant's argument is flawed in one or two respects and does not flow from the facts that are common cause:

(i) Firstly, the written lease agreement terminated in July 2007. As from that date, the first respondent became a statutory tenant and the expired lease agreement can no longer found a cause of action between the parties.

The first respondent, in my view, can now only be competently evicted in terms of the provisions of the Rent Regulations.

It is common cause that the applicant is not proceeding in terms of the Rent Regulations, but is proceeding ex contractu, alleging breach of the written agreement.

(ii) Secondly, and assuming that the written lease agreement between the parties is still subsisting, then, in that event, the first respondent's obligation is to pay rentals monthly in advance in local currency. The obligation to pay rentals monthly in advance must have been imposed by some other agreement which has not been pleaded.

The applicant has urged me to find that the agreement to levy rentals in foreign currency, and in the sum of US$700 per month, was reached between the parties at a meeting that was held on 12 May 2009.

I cannot agree.

It is common cause, that, on 8 May 2009, the applicant addressed a letter of demand to the first respondent, claiming payment of the sum of US$4,497=75 as arrear rentals and the sum of US$1,772=81 as unpaid operating costs.

The parties met on 12 May 2009 to discuss the demand.

On the same day of the meeting, the first respondent responded to the letter of demand in writing, acknowledging the letter of demand and advising that at the meeting held with the applicant's representatives, it had been agreed that the first respondent would pay one thousand dollars towards the arrear rentals and the balance over two or three weeks.

It is worth noting that the meeting of 12 May 2009 was in response to the applicant's letter of demand. By then, the amount of the arrear rentals had already been calculated. In other words, the breach had already occurred.

It appears to me, that, by January 2009 the parties had not yet agreed on the rental payable for the premises.

As detailed above, the applicant seeks to rely on the alleged agreement concluded on 12 May 2009 - some five months after the alleged breach.

If the parties had agreed to the rentals in January 2009, why would they need to meet over the same issue in May?

Similarly, if the parties had not reached agreement on the rentals in January 2009, on what basis can they be held to have breached the contract before the parties had reached agreement on it?

These are questions that will go begging for an answer, as, in my view, the applicant has placed its cart before the horse. It has proved the breach before proving the agreement breached!

Assuming that I have erred in concluding that the applicant has placed its cart before the horse and that by application of some other legal principle, not argued before me, the applicant could prove that the agreement reached on 12 May 2009 could apply retrospectively, then, the denial of the agreement by the respondent would raise a material dispute incapable of resolution on the basis of the papers filed of record.

I have considered whether I can convert the proceedings before me into an action by referring the matter to trial.

In view of the reservations that I have regarding the cause of action that the applicant has pleaded in this matter, I am of the view that such exercise of discretion will not have the effect of saving to expedite the resolution of this matter or of saving costs.

Before I dispose of this matter, it is important, in my view, that I remark on the submissions made on behalf of the respondents.

They have argued, that, the first respondent is a statutory tenant and is protected against eviction. In this regard, they have relied on the provisions of section 22(2) of the Commercial Rent Regulations S.I.276 of 1983 (“the Regulations”) which provide as follows:

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

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

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

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

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

While the section specifically limits the right of landlords to recover their properties where leases have terminated by expiration for the reason given in the Commercial Rent Regulations S.I.276 of 1983 (the Regulations), it simultaneously creates the right in favour of the tenant to remain in occupation of the leased premises provided the tenant pays the rent that is due in terms of the lease within seven days of the due date and performs all the other conditions of the lease.

The provisions of the section seek to protect the genuine tenant, who is not in breach of any of the terms of the lease agreement, from being at the mercy of a landlord who may wish to let out the premises to another tenant.

The issue that exercises my mind in this application is whether the statutory tenancy remains viable where the rentals payable were fixed in local currency, in view of the lack of value now attaching to that currency.

It is trite that for a statutory tenancy to be created and thus earn protection, the tenant has to continue to pay the rent due within seven days of due date and perform the other conditions of the lease.

The practical difficulty that arises is that where the tenant's obligation is to pay in local currency, how does such a tenant remain protected when the rentals are neither payable nor constitute a valuable exchange for the right to use the landlord's tenant?

While it is not necessary for me to make a specific finding on this issue, I would venture to suggest, that, in circumstances similar to the facts before me, where the obligation in terms of the written agreement of sale was in local currency, the protection afforded by the statutory instrument, S.I.276 of 1983, becomes doubtful or of limited value as payments for rentals in local currency are ludicrous, and may, in some instances, be impossible to effect.

Finally, I wish to refer to the case of Negowac Services (Private) Limited v 3D Holdings (Private) Limited and Others HH144-09 in which MTSHIYA J was faced with facts similar to the ones before me.

In that case, in upholding the landlord's right to evict the tenant, the learned judge was of the view, that, the obligation of the tenant to continue paying rent on due date imposed by the Commercial Rent Regulations S.I.276 of 1983 (the Regulations), in turn, imposes an obligation on statutory tenants to pay “reasonable rentals” in respect of the property leased where the parties fail to reach agreement on the amount of rentals payable.

Counsel for the applicant urged me to follow the decision in that case.

Again, it is not necessary, in my view, that I distinguish this case from the application before me. It is my finding above that the applicant has not pleaded statutory tenancy as its cause of action. It has instead alleged breach of a specific written agreement and I have disposed of the matter on that basis.

Had the applicant approached the court on an action in rem, seeking to recover its property from the tenant on the basis that the parties had failed to reach agreement on a material term of the lease, I would have found the reasoning by MTSHIYA J very attractive in the general sense that the sine qua non for enjoying the use of the property of another is the payment of rent and one cannot hope to have that enjoyment for nothing.

In the absence of proof of payment of anything, a tenant would have no defence, in my view, to resist the enforcement of the right of an owner to recover their property. As PATEL J observes, a tenant is not entitled to withhold rentals except in a few and very limited instances: see Parkside Holdings (Private) Limited v Londoner Sports Bar HH66-05.

As I indicated above, the applicant has approached court alleging breach of a specific term of the lease agreement. It is my finding that the averred lease agreement is no longer binding on the parties, and, even if it were, it cast an obligation upon the first respondent in a currency that is now redundant.

On the basis of the foregoing, it is my view, that, the applicant has pleaded a cause of action that is not competent and cannot therefore succeed.

In the result, I make the following order:

1. The application is dismissed.

2. The applicant shall pay the respondents' costs.

HH92-10 : MUDZIMUUNOERA APOSTOLIC CHURCH BOARD OF TRUSTEES vs MUDZIMUUNOERA APOSTOLIC CHURCH –GURUVE DIVISION and THE DEPUTY SHERIFF-MT DARWIN
Ruled By: MAKARAU JP

In his submissions, counsel for the applicant defined the issue before me as being the question whether or not the applicant had the right to bar the respondent from congregating at the farm which allegedly hosts the shrine of the applicant Church. He urged me to grant the application as to allow the two ...

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

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

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

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

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

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

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

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

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

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

(a)...,.

(b) Whether the plaintiff has locus standi to claim any interest beyond the assigned capital amount....,.

Claim for Interest

In terms of clause 1.1 of the Deed of Assignment, KFW transferred to the plaintiff, by way of assignment, “the claim for payment of the Assignor under the loan agreements Nos. F2971 and F3040…, up to an amount not exceeding EUR6,640,295.94 against Zimbabwe Iron & Steel Company…, as awarded by the judgment of the District Court in Frankfurt am Main dated July 25, 2006.”

In the instant case, the plaintiff claims the entirety of the Frankfurt award, i.e. the capital sum of EUR6,640,295=94 as well as interest at varying rates on diverse amounts from 30 December 1999.

It is axiomatic that a litigant is only entitled to claim that in which he has a legal right or interest.

The plaintiff herein clearly has no locus standi whatsoever to claim anything more than the assigned amount of EUR6,640,295=94....,.

Accepting the..., claim for interest...,, involves granting to the plaintiff more than what it owns....,.

The plaintiff...,. must be confined to the amount awarded by the Frankfurt court as recast and transferred to it through the Deed of Assignment....,.

Counsel for the plaintiff quite correctly conceded this point and abandoned the plaintiff's claim for interest as set out in the Summons and Declaration.

HH98-10 : FIONA EVELYN TAISEKWA JIRIRA vs ZIMCOR TRUSTEES LIMITED and REGISTRAR OF DEEDS
Ruled By: MAKARAU JP

On 16 October 2009, the applicant filed this application seeking an order cancelling the Agreement of Sale entered into between herself and the first respondent, and, instead, confirming an Agreement of Loan between the parties. The applicant has sought an order compelling the first respondent to return to her the Deed of Transfer in respect ...

Sometime in March 2009 she borrowed the sum of US$15,000= from the first respondent. It was a condition of the loan agreement that she would surrender the Deed of Transfer in respect of her property in Hatfield, Harare to the first respondent – which she duly did. She was, however, made to sign an Agreement of Sale in terms of which she was selling her property for the sum of US$10,000=. She was made to sign this agreement by means of deceit. Again, through deceit, she was made to sign a Power of Attorney to pass transfer of the property and a Stamp Duty Declaration Form presumably declaring that she had sold the property to the first respondent. She completed a Loan Agreement Form, copies of which were all retained by the first respondent. When she heard rumours that the first respondent was in the habit of transferring properties whose Deed had been given to him as security for loans she had a caveat placed against the title to the property to safeguard her interests. She then approached this court for the relief that I have outlined above. The above is a summary of the applicant's story.

The application was opposed.

While the term “deceit” may have an everyday-use meaning, it is not a cause of action and has no special meaning at law. One can think of a number of legal situations that may loosely be termed as deceitful by lay persons. All frauds are deceits. Some negligent misrepresentations may amount to deceit. Some innocent misrepresentations may amount to deceit. Unilateral mistakes leading to a contract may, in some cases, be loosely described as being deceits by the party who knew the correct position but did not disclose because they had no duty to do so. The list is endless.

There is, in my view, no cause of action disclosed in the papers at this stage. In the result, I make the following order:

1. The application is dismissed.

2. The applicant will bear the respondent's costs.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

I am not so satisfied.

(i) Firstly, I am not satisfied that the applicant has established the second element for a spoliation order. He has not shown, in his founding affidavit, in which all the necessary averments have to be made, that he was illicitly deprived of possession. He makes an attempt to do so in the answering affidavit after the first respondent had taken specifically alleged that the applicant consented to the removal of the property to the auctioneers.

It is trite, that, in the circumstances, I cannot pay regard to the averments in the answering affidavit as laying out the applicant's cause of action.

HH105-10 : THE CHURCH OF THE PROVINCE OF CENTRAL AFRICA vs THE DIOCESAN TRUSTEES FOR THE DIOCESE OF HARARE
Ruled By: MAVANGIRA J

It was submitted that the respondent's stance had been based on an incorrect premise that the application before this court is for an interdict. It was submitted that the order that is being sought is an order to stop the operation of an order which in effect, is an application to stay execution. The ...

HH37-09 : CENTRAL AFRICAN BUILDING CONSTRUCTION COMPANY (PVT) LTD vs CONSTRUCTION RESOURCES AFRICA (PVT) LTD AND THREE OTHERS
Ruled By: CHATUKUTA J

The respondents' contention that this matter would not have been before me had the applicants diligently prosecuted their action finds favour with me. The matter was referred to trial on 15 June 2007. The matter was set down for trial for 16 July 2007, a month after it was referred to trial. The matter could ...

HH164-10 : KENNETH PATRICK McCOSH vs PIONEER CORPORATION AFRICA LIMITED
Ruled By: KUDYA J

The plaintiff, a former financial director of the defendant company, filed summons on 8 July 2009 seeking payment of the capital sum of US$72,334 and interest at the rate of 10% per annum from the date when the amount fell due to the date of the issue of summons in the sum of US$12,658, payment of interest on the capital amount at the rate of 10% from the date of the issue of summons to the date of payment in full and costs of suit.

The defendant contested the matter.

The plaintiff's cause of action was disclosed in paragraphs 3, 4 and 5 of its declaration in these terms:

“3. The defendant became indebted to the plaintiff in respect of arrear salaries and other benefits arising from a contract of employment concluded between the parties on or about 21 September 2004 that was terminated by the plaintiff's resignation from employment on 7 March 2007.

4. During the month of April 2007, the defendant partly liquidated the amount claimed by the plaintiff by delivering to the plaintiff a motor vehicle and a laptop computer whose agreed values totalled US$30,000.

5. On or about 18 July 2007, the Group Chief Executive Officer of the defendant, Mr Hamish Rudland acknowledged liability for the sum as at that date of US$70,000 which would attract interest at the rate of 10% per annum.”

The defendant raised a plea in bar based on two grounds before pleading over to the merits. Its plea reads as follows:

“1. As appears from the plaintiff's declaration:-

1.1 The cause of action is predicated on a contract of employment concluded by the parties on 21 September 2004.

1.2 The claim is for payment of alleged arrear salaries and benefits consequent upon resignation.

1.3 The payment of salaries and benefits during and upon termination of a contract of employment is governed by the provisions of the Labour Act [Cap 28:01].

1.4 Accordingly, and in terms of section 89(6) of the Labour Act, this Honourable Court has no jurisdiction to hear and determine this claim.

2. Additionally, but without prejudice to the above, the defendant avers that:

2.1 The contract of employment between the parties provided for payment of salaries and benefits in Zimbabwe dollars, being the lawful legal tender.

2.2 The plaintiff's claim is denominated in foreign currency, namely, the United States dollars.

2.3 At the material time, the payment of salaries and benefits in foreign currency, without exchange control approval, was illegal and unenforceable by virtue of:

2.3 1. The Exchange Control Act [Cap 27:05].

2.3.2. Exchange Control Regulations, 1996, SI 110/1996.

2.3.3. The Labour Act [Cap 28:01].

2.4. In the premises, the plaintiff's claim is bad and unsustainable at law and ought therefore to be dismissed with costs.”

In pleading over to paragraphs 3, 4 and 5 of the plaintiff's declaration, the defendant denied these averments and put the plaintiff to the proof thereof and reiterated that the mode of payment sought was unlawful.

In his replication, the plaintiff averred that his cause of action was premised on an acknowledgment of debt signed by a representative of the defendant and not on the terms of employment.

He also averred that the defendant was obliged to obtain the necessary foreign currency exchange approvals to pay him in foreign currency using its free funds.

At the pre-trial conference that was held on 8 April 2010, the following four issues were referred to trial:

(a) Whether or not this Honourable Court, and in the light of section 89(6) of the Labour Act [Chapter 28:01], has jurisdiction to adjudicate over the dispute between the parties;

(b) Whether the contract of employment between the parties provided for payment to the plaintiff in United States dollars and the amount thereof;

(c) Whether the plaintiff's claim was lawful at the material time; and

(d) What amount, if any, is due to the plaintiff.

The trial in this matter was held on 14 June 2010. The plaintiff called the evidence of two witnesses and produced a 40-paged bundle of documents as exhibit 1.

After the close of the plaintiff's case, the defendant elected to open and close its case without calling any evidence.

My findings of fact are based on those aspects of the evidence called by the plaintiff that survived cross examination.

The plaintiff holds a Bachelor of Law (Honours) degree from the University of Zimbabwe (1983) and is a Chartered Accountant (1988). He was the Group Financial Director of the defendant from 1 June 2004 until his resignation on 7 March 2007. His contract of employment with the defendant is covered in pages 2 to 6 of exhibit 1. The relevant sections fall under the headings Remuneration and Benefits. I set them out below:

“3. REMUNERATION

As remuneration for services rendered, the Contractor shall pay the contracted person, during the subsistence of this agreement, the sum of $21 million per month, payable monthly in arrears. The salary will be subject to taxation in line with the rules and regulations of the Zimbabwe Revenue Authority. As you are on a fixed term contract, the company is not liable to pay any further sums of money which may be required of you by operation of law. This shall be reviewed every quarter.

4. BENEFITS

In addition to the salary stated above, you will be entitled to the following:

4.1 Cimas Medexec Medical Aid for you and your family.

4.2 Use of a company vehicle and 200 liters per month. Such allowance is for monthly usage and shall not accrue.

4.3 School fees for two children, but any change in school requires the authority of the CEO.

4.4 Cafeteria/entertainment allowance to be agreed annually by CEO.

4.5 Any other amounts will be deducted from the cafeteria allowance.”

The plaintiff indicated that his claim was based on the contents of pp7 and 8 of exhibit 1. It is an e-mail dated 13 July 2006 which the plaintiff dispatched to himself and copied to his website. It was signed and dated at the bottom of each page by Hamish Rudland, the acting Chief Executive Officer of the defendant at the time. The purported acknowledgment of debt was sandwiched between a set of seven action plans on the first page and another set of seven action plans on the second page. The acknowledgments read:

“HR acknowledges outstanding balance to KPM of US70K subject to update of figures.

HR acknowledges 10% interest per annum calculated monthly.

HR acknowledges salary US6K per month inclusive of local salary.”

The plaintiff stated that HR referred to Hamish Rudland while KPM referred to the plaintiff.

He stated that the defendant was to promote a company in Mauritius which would be used as the vehicle to pay top management in Zimbabwe in foreign currency and pay his outstanding debt.

It was common cause that the vehicle and laptop were sold to the plaintiff as indicated in the letter by Hamish Rudland (HR) of 10 September 2007 on p18 of exhibit 1. He averred that the two items were valued at US$30,000 and abated the outstanding capital sum and interest.

On pages 19 and 20 are the purported minutes that he wrote on 15 January 2008 of a meeting he held with Hamish Rudland (HR) and the plaintiff's wife in which he recorded, inter alia, his demand for payment of the outstanding debt by Pioneer Corporation Africa (PCA) and the reluctance to pay by Hamish Rudland (HR) until he had received a return on his investment and an undertaking that payment would be made at a later date.

He was the only one who signed those minutes.

He also relied on the minutes he authored on 18 March 2009 between Hamish Rudland (HR), EM Warhurst (EMW) and himself on pp 29-30 of exhibit 1. They were signed by EM Warhurst (EMW) and the plaintiff only.

They indicate that Pioneer Corporation Africa (PCA) owed EM Warhurst (EMW) US$15,000 and the plaintiff just over US$80,000.

While they show that Hamish Rudland (HR) was unwilling to pay the debt, they record that he had signed the plaintiff's contract of employment and acknowledgment of debt in July 2006.

Pages 38-39 show that, from October 2003 to February 2007, the plaintiff was entitled to receive from the defendant US$215,000 in salary. He was paid a total of US$157,251 between October 2003 and March 2007. The capital outstanding in salary arrears was US$57,749. The amount due as interest, from December 2005 to June 2009 was in the sum of US$26,462.

He was cross-examined.

He based his claim on an acknowledgement of debt of 17 July 2006. The acknowledgment arose from the failure to pay salaries during the period extending from October 2003 to February 2007.

He stated that he did not sue the defendant for arrear salaries that were incurred between October 2003 and July 2006 because during that period he was a member of the plaintiff's management team.

He accepted that, at that time, legal tender in Zimbabwe was the local dollar.

He was referred to section 12A of the Labour Act.

He was evasive on whether his claim was founded on a contract of employment or not. He was evasive on whether payment in United States dollars was payment in kind or not. He stated that in 2006 there were no exchange control prohibitions against the payment of salaries in foreign currency but conceded that during the period of his employment with the defendant he was never paid in United States dollars. He further acknowledged that at that time the defendant did not pay any of its employees in foreign currency.

He said the United States dollar was used to index the payment in kind in the form of air tickets that he received for holidays outside Zimbabwe.

He admitted that he could not claim in United States dollars before February 2009.

He accepted that the email of 18 July 2006 was made when Hamish Rudland (HR) had taken over as the Acting Chief Executive Officer of the defendant but denied that it was a mere update of the company's affairs and hand over/take over summary sheet. He said it was not an exchange of information document but a contract between the plaintiff and the defendant.

He accepted that it was not in the usual mode of an acknowledgement of debt that is drawn up by legal practitioners.

He averred, that, at the time, the defendant was obliged to pay him in the Zimbabwe dollar equivalent of US$70,000 at the prevailing parallel market rate of exchange.

He called Edward Mark Warhurst, a practicing legal practitioner, who, at the time, was the Group Company Secretary and Managing Director of Clan Transport (Pvt) Ltd, one of the subsidiaries of the defendant.

Edward Mark Warhurst confirmed the accuracy of the minutes written by the plaintiff at the meeting of 18 March 2009 found in exhibit 1. He said Hamish Rudland (HR) sought to refute indebtedness on the basis that the plaintiff had given poor service to the defendant but he accepted that the defendant owed the plaintiff arrear salaries in foreign currency for which it was unable to pay.

He was cross examined.

He was a workmate of the plaintiff during the period 2003 to 2006 when he worked for the defendant. He was owed arrear salaries in foreign currency for the period September 2005 to August 2006. He was invited by the plaintiff to the meeting of 18 March 2009 because both were creditors to the defendant.

He confirmed that his salary was paid in local currency.

It is on the basis of the evidence led that I proceed to determine the issues referred to trial.

(a) Whether or not this Honourable Court, and in the light of section 89(6) of the Labour Act [Chapter 28:01] has jurisdiction to adjudicate over the dispute between the parties

Counsel for the defendant submitted that this court did not have the jurisdiction to deal with this matter as it is a labour dispute. The plaintiff conceded, in his replication, that, were the present matter a labour dispute, he would have had to file it out of the Labour Court.

It seems to me, notwithstanding that this court is a superior court imbued with inherent jurisdiction, that all labour disputes must be dealt with in terms of the relevant provisions of the Labour Act.

It was common cause that section 89(6) of the Labour Act ousts the inherent jurisdiction of this court to hear labour disputes in the first instance. Put in other words, the High Court cannot be the first port of call to any party in a labour dispute.

The dispute, being one of right and not interest, would perforce be dealt with in terms of section 93 of the Labour Act by a labour officer who could refer it to arbitration from whence it would find its way to the Labour Court.

Counsel for the plaintiff submitted that this court had the jurisdiction to determine this matter because the plaintiff's case was found on an acknowledgment of debt and not on a contract of employment.

It is correct that, in our law, an acknowledgment of debt can found a cause of action: see Chimutanda Motor Spares (Pvt) Ltd v Musare & Anor 1994 (1) ZLR 310 (H)…,; Gondwe v Bangajena 1988 (1) ZLR 1 (H)…,; and Salisbury Municipality v Partington & Anor 1961 (3) SA 218 (SR)…,.

Counsel for the defendant contended that the plaintiff pleaded his cause of action as the contract of employment. He argued that reference to an acknowledgment of liability by the defendant's acting Chief Executive Officer in the declaration did not shift the cause of action to that of an acknowledgment of debt. He further contended that the document purported by the plaintiff to be an acknowledgment of debt was merely an update of the company's affairs and a hand over/take over sheet.

Counsel for the plaintiff contended that the statements sandwiched between other unrelated action plans constitute an acknowledgment of debt.

His contention appears to be borne out by the sentiments expressed by McNALLY J in S v Manyere 1984 (1) ZLR 104 (H)…, to the effect that an “I owe you” left in a cash box would constitute an acknowledgment of debt.

It is correct that the defendant did not call evidence to dispute the facts set out by the plaintiff and his witness or offer an alternative version of events.

It is also correct, that, subsequent to the acknowledgement of debt, two sets of minutes were written by the plaintiff, that the defendant's acting Chief Executive Officer refused to sign, which show that he acknowledged the defendant's indebtedness to the plaintiff in the amount claimed.

Again, the plaintiff's version was supported by Edward Mark Warhurst who was a forthright and credible witness.

It seems to me, notwithstanding the failure by the defendant to lead evidence, that counsel for the defendant's contention that the plaintiff's cause of action was predicated on a contract of employment is correct.

In my view, paragraphs 4 and 5 of the plaintiff's declaration are explanatory averments of how he arrived at the capital sum and interest claimed. The legal foundation of the claim lies in the contract of employment. Paragraph 3 of the declaration is the basis of the plaintiff's claim.

I understand him to be averring that the debt for which he seeks redress arose from unpaid salary arrears.

This is confirmed in the further particulars supplied by the plaintiff as read with the information supplied to the defendant's chairman on pages 31 to 39 of exhibit 1 in which he collated the outstanding salaries from October 2003 to February 2007 and outstanding interest due from December 2005 to June 2009.

The failure by the plaintiff to plead that his claim was based on an acknowledgment of debt executed on 18 July 2006 further confirms that he found his claim on unpaid arrear salaries.

Accordingly, I uphold the exception raised by the defendant and dismiss the plaintiff's claim on the basis that this court lacks the jurisdiction to determine the matter by virtue of the provisions of section 89(6) of the Labour Act [Chapter 28:01].

However, in the event that I am wrong, and the cause of action was properly pleaded in terms of paragraph 5 of the declaration, I proceed to deal with the other issues that were referred to trial.

HH19-09 : RACHEL T DUBE vs RHODA MUCHETWA and THE REGISTRAR OF DEEDS
Ruled By: MAKARAU JP

Taking into account the facts of this matter, and the alternative arguments raised orally by counsel for the applicant, to the effect that the first respondent has been unjustly enriched by keeping both the purchase price and the property - an issue that does not require determination in these proceedings - it is necessary, in ...

HB17-11 : JONATHAN M. GAPARE and TLP AGENCIES (PVT) LTD t/a ALPHA PROPERTIES DEVELOPERS vs FARAI MUSHIPE and THE DEPUTY SHERIFF, BULAWAYO
Ruled By: MATHONSI J

This matter came before me on a certificate of urgency. The applicant seeks the following relief: ''TERMS OF FINAL ORDER SOUGHT That the provisional order granted by this Honourable Court be confirmed in the following manner: 1. That the 2nd Respondent is permanently interdicted from executing and selling 1st Applicant's immovable property, being Stand Number 14959 Impala ...

HH230-10 : KWIK-PAK (PRIVATE) LIMITED vs EDWARD MASHIRINGWANI and SHEPHERD MAKONI
Ruled By: KUDYA J

In Airfield Investments (Pvt) Ltd v Minister of Lands Ors 2004 (1) ZLR 511 (S)…, MALABA JA…, held that an interim interdict as a remedy for unlawful conduct could not be granted for the protection of the illegal activities of the appellant. Paragraph 2 of the interim relief sought is in the nature of ...

HB23-10 : SANITA CONSTRUCTION (PVT) LTD vs OBERT MPOFU and DRASTIC CONSTRUCTION COMPANY (PVT) LTD
Ruled By: NDOU J

In the founding affidavit, the applicant did not aver or outline the terms of the verbal agreement. The cause of action is not clear save the above allegations that the first respondent acted unlawfully and wrongfully.

HB27-10 : PATIENCE MOYO and ZIVANAYI MWEDZI and ANDREW BALENI and MARGRET MREWA and EDMORE VETERAI and OTHERS vs BULAWAYO KNITWEAR (PVT) LTD and MESSENGER OF COURT, BULAWAYO DISTRICT
Ruled By: KAMOCHA J

It is common cause that there was no certificate issued by the appropriate Board to the effect that the requirement that the lessees vacate the flats was fair and reasonable. While the first respondent accepted that any order for eviction issued without the said certificate would be void ab initio it, nevertheless, contended that it did not only rely on the fact that it required the flats for its employees but was relying on the points that the tenants had failed to pay rentals and operational costs.

That contention has its own problems too in the light of the fact that the application for eviction was filed in the Magistrates' Court on 28 July 2009 when the Rent Board had not yet determined what the fair rental for the flats was. The Rent Board only made that determination on 7 August 2009. When the application was launched the cause of action had not yet arisen. It only arose after the application had been filed. Thus, at the time process was issued no cause of action had accrued to the first respondent. The rentals and operational costs only became due after the Rent Board had determined fair rentals for the flats and not before. In relation to this proposition, I can do no better than what KORSAH JA had to say in Ngani v Mbanje & Anor 1987 (2) ZLR 111…, quoting with approval from the case of Paddock Motors (Pty) Ltd v Igesund 1976 (3) SA 16 at 23 -

“It seems to me that the process initiating action in the court, whether it be by the issue of a writ of summons or notice of motion, has the effect of freezing the rights of the parties at the time that it is filed in the registry. So that, if at the time action was instituted, a right of action had not accrued to the plaintiff or applicant, as the case may be, then no cause of action is established by the initiating process. Put another way, the plaintiff or applicant should, at or before filing the initiating process, have a complete cause of action against the defendant or respondent.

It is clear from the record that the notice of motion proceedings initiated by the respondents on 27 April 1987 were commenced before their right to eject the appellant on 1 May 1987 accrued to them. Therefore, the respondents had no cause of action against the appellant at the time the initiating process was filed at registry, and the fact that the application was entertained some six days after a right of action had accrued to the respondents does not affect the relative positions of the parties at the time of commencement of the action. 'There can be no action before anything is due and owing.' VOET, Book 5, 1.27…,.

This objection in limine is, in my view, not a mere technical point affecting some provisions of adjectival law; it strikes at the very root of the action. It is so fundamental as to render the initiating process a nullity. If there is no cause of action then a judgment pronouncing that a non-existence cause exists is void and of no effect. As LORD DENNING observed in Macfoy v United Africa Co Ltd [1961] 3 All ER 1169 (Pc) at 1172 l:

'If an act is void, then it is, in law, a nullity. It is not only bad, but incurably bad. There is no need for an order of the court to set it aside. It is automatically null and void without more ado, though it is sometimes convenient to have the court declare it to be so. And every proceeding which is founded on it is also bad and incurably bad. You cannot put something on nothing and expect it to stay there. It will collapse. So will this judgment collapse if the statement of claim was a nullity.'”…,.

The learned judge of appeal, at page 117B, concluded thus -

“I am of opinion that the commencement of action before a cause of action accrued to the respondents renders the default judgment void and of no effect.”

Similarly, the default judgments entered in favour of the first respondent against all the tenants suffer the same fate. They are void and of no force or effect. The first respondent shall bear the costs of this application.

The resolution of this matter also disposes of the following cases which were founded on it:

1. Case No. HC1944/09 with the first respondent bearing the costs of suit;

2. Case No. HC188/10 with the first respondent paying the costs;

3. Case No. HC524/10 with the first respondent paying costs of suit; and

4. Case No. HC544/10 with the first respondent paying the costs of suit.

HB56-10 : GRACE KHUMALO vs PARIS MPOFU and THE DEPUTY SHERIFF
Ruled By: MATHONSI J

The final order that the applicant seeks also poses some difficulties. It reads as follows - “A. TERMS OF THE FINAL ORDER SOUGHT That you should show cause to this Honourable Court why a final order should not be made in the following terms:- (i) First Respondent be and is hereby ordered to pay R64,810= as compensation for damages caused ...

HB87-10 : METALLION GOLD ZIMBABWE vs EUROTECH PLANT & EQUIPMENT (PVT) LTD and THE DEPUTY SHERIFF
Ruled By: MATHONSI J

When the urgent application was filed, it was filed with an incomplete draft of the provisional order which did not have the reverse page of Form 29C. The application was therefore filed without the terms of the final order sought and a prayer for interim relief.

HB110-10 : HIGHLANDERS FC vs DYNAMOS FC and PREMIER SOCCER LEAGUE and BANC ABC (PRVIATE) LIMITED and CUTHBERT CHITIMA and DON MOYO, Chairman, Ad Hoc Arbitrators Committee and KENNEDY NDEBELE, PSL, C.E.O
Ruled By: NDOU J

Irreparable Damage The issue raised here is that the applicant merely averred that the applicant will suffer irreparable damage without disclosing the nature of such damage. The articulation by the applicant may be lacking in clarity but the damage can easily be inferred from the applicant's papers i.e. the applicant will be prevented from further participating in ...

HH02-13 : RUMBIDZAI SHAAMANO vs JABULANI NKOSI
Ruled By: CHITAKUNYE J

This case epitomises the need for legal practitioners to have clarity of mind in deciding on a cause of action they wish to rely on. Such clarity of mind would serve to curtail pursuing untenable positions. In casu, the plaintiff seemed unsure of the cause of action to rely on.

HH25-11 : THIRDLINE TRADING (PRIVATE) LIMITED t/a ZITAC and ONCLASS INVESTMENTS (PRIVATE LIMITED) vs BOKA INVESTMENTS (PRIVATE) LIMITED
Ruled By: MAVANGIRA J

The relief sought in paragraph (d) is, in effect, a review of an order issued by this court on 24 December 2010. It does not appear to me to be a competent order for this court to grant. In any event, in answer to the court's question as to the competency of such an order, the ...

HH25-13 : YEMANE BERHE WELDESLASSIE vs MORDORIC MARKETING (PVT) LTD and MOLLIE MUCHABAIWA and SHAMSTER INVESTMENTS (PVT) LTD
Ruled By: MATHONSI J

The applicant has approached this court on an urgent basis 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:- (a) First and second respondents be and are hereby interdicted from removing or disposing of any stock of goods from Bay ...

The applicant has approached this court on an urgent basis 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:-

(a) First and second respondents be and are hereby interdicted from removing or disposing of any stock of goods from Bay 1 of Number 483 Hawthorn Road, Lochnivar, Harare until finalisation of ownership dispute.

(b) First and second respondents be and are hereby ordered to return forthwith 70 (seventy) boxes of floor tiles removed by the respondents from Bay 1 of Number 483 Hawthorn Road, Lochnivar, Harare.

(c) First and second respondents be and are hereby ordered to return forthwith any other goods that they removed from Bay 1 of Number 483 Hawthorn Road, Lochnivar, Harare.

TERMS OF INTERIM RELIEF SOUGHT (SIC)

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

(b) First and second respondents be and are hereby ordered to return forthwith 70 (seventy) boxes of floor tiles removed by the respondents from Bay 1 of Number 483 Hawthorn Road, Lochnivar, Harare.

(c) First and second respondents be and are hereby ordered to return forthwith any other goods that they removed from Bay 1 of Number 483 Hawthorn Road, Lochnivar, Harare.”

The interim relief sought by the applicant is exactly the same as the final relief that it seeks.

This is undesirable in that the applicant seeks to virtually obtain final relief without having proved its case. This obtains from the fact that in an urgent application, the applicant is granted relief merely on establishing a prima facie case. See Kuvarega v Registrar General and Anor 1998 (1) ZLR 188 (H)…,; Qalisa (Pvt) Ltd v Zimra and Anor HB106-11….,; and Chisina and Ors v Minister of National Housing and Social Amenities HH443-12…,.

Confronted with that issue, counsel for the applicant conceded the irregularity and sought to amend the interim relief sought submitting that the papers had been drafted in a hurry owing to the exigencies of the matter.

HH44-13 : DULLY HUNI vs GEORGE PEDZISAI FICHANI
Ruled By: MATHONSI J

This court cannot baby sit over-cautious litigants who approach it when clearly there is no need to do so. The applicant already enjoys the benefit of the status quo. Having appealed against the decision, the applicant is entitled to continue with his activities as the order has been suspended. Having come to the conclusion that the ...

HH48-13 : MELINA MATSHIYA (In her capacity as Executrix testamentary for Estate late ETTORE FUMIA) vs GEORGE FUMIA and ELLEN FUMIA and FALCON HAULIERS (PRIVATE) LIMITED
Ruled By: MAWADZE J

I am on the view that a party to any litigation should have clarity of mind as to which Rule is applicable in any given case, and not, like in this case, seek rescission of judgment in terms of Rule 63 in the initial application but then seeks to rely on Rule 449(1) in ...

HH69-11 : WALTER CHIGWADA and PATRICIA CHIGWADA vs THE OFFICER COMMANDING C.I.D. SERIOUS FRAUDS and THE COMMISSIONER GENERAL, ZRP and OTHERS
Ruled By: KARWI J

The Zimbabwe Association of Church Related Hospitals further stated that the founding affidavit did not disclose a valid cause of action….,. The application for an interdict is on the basis of the applicants' ownership of the vehicle. There is no doubt in my mind that if Raymond Gallufa Chidanyika is convicted (likely if it is to ...

HH63-13 : BLESSMORE Z. MABVURAMITI vs ALTFIN INSURANCE COMPANY
Ruled By: MAFUSIRE J

The plaintiff's argument seems to suggest that it would be iniquitous if he is left “empty handed.” That implies a claim for damages. However, the plaintiff's current claim is one based in contract. If his position is probably that he had paid his instalments faithfully except for the last premium, then he ought to set ...

HH72-13 : FIDELIS MHASHU vs WELLINGTON ASANI and ALFRED MAMVURA and THE DEPUTY SHERIFF
Ruled By: MATHONSI J

The applicant has approached this court on a certificate of urgency seeking a provisional order in the following terms: “TERMS OF THE FINAL ORDER (SIC) (a) That execution of the order by consent entered on the 26th of November 2012 be and is hereby stayed. (b) The applicant is hereby granted leave to file application for recession (sic) of judgment ...

The applicant has approached this court on a certificate of urgency seeking a provisional order in the following terms:

“TERMS OF THE FINAL ORDER (SIC)

(a) That execution of the order by consent entered on the 26^th of November 2012 be and is hereby stayed.

(b) The applicant is hereby granted leave to file application for recession (sic) of judgment of the order within five (5) days after the grant of this order.

TERMS OF INTERIM ORDER (SIC)

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

(a) The third respondent be and is hereby interdicted from executing order by consent entered on the 26^th of November 2012.

(b) In the event that this order is granted after attachment the third respondent be and is hereby ordered to restore position (sic) of the motor vehicles in the applicant's custody.”

Apart from the obvious grammatical frailties in the wording of the relief sought by the applicant it is apparent that the couching of the provisional order is at variance with the Rules of this court. Rule 247(1) of the High Court of Zimbabwe Rules, 1971 is of peremptory application. It provides:

“Subject to subr (3), a provisional order shall -

(a) Be in Form 29C; and

(b) Specify upon whom copies of the provisional order and the application, supporting documents, shall be served and if service is not to be effected in terms of these rules, how service is to be effected; and

The draft provisional order which I have cited above is not in Form 29C and the applicant's counsel appears to have invented his own form in complete disregard of the Rules. Indeed, the bulk of urgent applications being filed in court of late contain varying types of draft provisional orders not provided for in the Rules. Legal practitioners now believe that they are at liberty to come up with their own inventions of Form 29C ignoring the peremptory provisions of Rule 247(1).

It is amazing how so many can fail to simply reproduce or copy what is provided to them by the Rules. The time has come to remind legal practitioners of the need to adhere to the Rules in formulating draft orders, and, indeed, in drafting other processes. The forms provided for in the Rules are there for a purpose and not decorative in nature.

HH91-11 : BENEDICT AMON CHIKWANHA vs VICTORIA MUKUNDADZVITI and CITY OF HARARE and DEPUTY SHERIFFand MKWANILA SYLVESTER MATEO
Ruled By: MTSHIYA J

With respect to the order sought, the first respondent argued that it was improper for the applicant to seek to obtain the following reliefs in one application (order): 1. Rescission; 2. Leave to defend the respondent's claim; 3. Leave to file notice of opposition to first respondents application; and 4. Cession of property. It was the first respondent's view that separate ...

HH92-11 : MHANYAMI FISHING AND TRANSPORT CO-OPERATIVE SOCIETY LIMITED and OTHERS vs THE DIRECTOR GENERAL PARKS AND WILDLIFE MANAGEMENT AUTHORITY N.O. and PARKS AND WILDLIFE MANAGEMENT AUTHORITY
Ruled By: MAKONI J

I also agree with counsel for the first and second respondents that no adequate information is available to the court for it to be able to grant paragraph 2 of the draft order.Before granting a permit, the respondents would look into such issues as the size of the nets, fish population, the number of operators ...

HH109-13 : HARARE AND DISTRICT HELLENIC COMMUNITY vs CREMION MAPFUMBA and ZIMBABWE ELECTRICITY AND TRANSMISSION AND DISTRIBUTION COMPANY and CITY OF HARARE
Ruled By: BERE J

It has never ceased to amaze me how some of our citizens have developed this insatiable desire for litigation - even in circumstances where clearly the odds are heavily stacked against them. This is one such a case and such conduct must be discouraged.

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Cause of Action and Draft Orders re: Approach, Timing, Framing and Legal Basis for Invoking Jurisdiction of the Court

Appealed SC18-11 : RIO TINTO (AFRICA) PENSION FUND vs AFARAS M. GWARADZIMBA (in his capacity as Liquidator of Sagit Stockbrokers PL) and AFARAS M. GWARADZIMBA (in his personal capacity) Ruled By: MALABA DCJ, SANDURA JA and GARWE JA

HHH106-12 : THE STATE vs LOVEMORE KUROTWI and DOMINIC MUBAIWA Ruled By: BHUNU J

SC30-08 : DANAI GURUVA vs TRAFFIC SAFETY COUNCIL OF ZIMBABWE Ruled By: SANDURA JA, CHEDA JA and GWAUNZA JA

Appealed SC25-12 : MINING INDUSTRY PENSION FUND vs DAB MARKETING (PRIVATE) LIMITED Ruled By: ZIYAMBI JA, GARWE JA and MAKARAU JA

HH47-10 : MUNYARADZI CHIKUMBU vs VIOLET NHAMO Ruled By: BERE J

HH56-12 : ELIAS KASEKE and WAFAWANAKA KUCHERA and SIBUSISO NCUBE vs MASTER OF THE HIGH COURT and MAVIS CHIZENGENI (as Executrix Dative of Estate Late Jessie Zengeya) Ruled By: MAWADZE J

HH31-12 : STEPHEN MKIWA vs MAGRET MUUSHA Ruled By: MAWADZE J

HH07-09 : CATHERINE CHIWAWA vs APOSTOLOS MUTZURIS and PANAYOTA MUTZURIS and GRAMMATIKI MUZTURIS and IRENE MUTZURIS and THE REGISTRAR OF DEEDS Ruled By: MAKARAU JP

SC18-12 : RONI MASEKESA vs KINGDOM FINANCIAL HOLDINGS Ruled By: ZIYAMBI JA

SC200-97 : MUWENGA vs PTC Ruled By: GUBBAY CJ, KORSAH JA and MUCECHETERE JA

View Appeal HH65-10 : RIO TINTO (AFRICA) PENSION FUND vs AFARAS M. GWARADZIMBA (in his capacity as Liquidator of Sagit Stockbrokers PL) AND AFARAS M. GWARADZIMBA (in his personal capacity) Ruled By: MTSHIYA J

HH37-08 : MOVEMENT FOR DEMOCRATIC CHANGE and MORGAN TSVANGIRAI vs CHAIRPERSON, ZIMBABWE ELECTORAL COMMISSION and CHIEF ELECTIONS OFFICER, ZIMBABWE ELECTORAL COMMISSION Ruled By: UCHENA J

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

SC03-09 : JESTINA MUKOKO vs COMMISSIONER GENERAL OF POLICE and MINISTER OF STATE SECURITY and ATTORNEY-GENERAL and COMMISSIONER OF PRISONS and MISHROD GUVAMOMBE Ruled By: CHIDYAUSIKUCJ

Appealed SC28-10 : JONATHAN MOYO and MOSES NDLOVU and PATRICK DUBE and SIYABONGA NCUBE vs AUSTIN ZVOMA N.O., CLERK OF PARLIAMENT and LOVEMORE MOYO Ruled By: CHIDYAUSIKU CJ, MALABA DCJ, SANDURA JA, ZIYAMBI JA and GARWE JA

HH103-09 : U-TOW TRAILERS (PRIVATE) LTD vs CITY OF HARARE and SUPERLUX (PRIVATE) LIMITED Ruled By: MAKARAU JP

HH119-09 : ISAAC MANDI vs GRACE MCHICHWA (as Executrix Dative Estate Late Peter Kandeya) and RUWA LOCAL BOARD and MINISTRY OF LOCAL GOVERNMENT Ruled By: GOWORA J

HH142-09 : JOVITA SANYANGOWE vs ELVIS CHALIMBA Ruled By: MUSAKWA J

HH144-09 : NEGOWAC SERVICES (PRIVATE) LIMITED vs 3D HOLDINGS (PRIVATE) LIMITED AND GIFTCARE ELECTRICAL (PVT) LTD t/a REG ELECTRICAL WHOLESALERS Ruled By: MTSHIYA J

HB71-09 : ROSEMARY CHIGANZE (as the guardian of LEWIS DUBE, a minor) vs PATIENCE MAPHOSA (personally and as a guardian of..., a minor) and THABANI LIHLE SIZIBA N.O. and ASSISTANT MASTER OF THE HIGH COURT Ruled By: NDOU J

HH06-10 : HARLAND BROTHERS (PVT) LIMITED and RAYMOND FINAUGHTY vs THE MINISTER OF LANDS AND RURAL RESETTLEMENT and MRS WINNIE MUSHIPE Ruled By: MUSAKWA J

HH22-10 : FORRESTER ESTATE (PVT) LIMITED vs EDGAR CHIDAVAENZI Ruled By: MAKONI J

HH35-10 : RUTH MUSONZA (nee MTANAUKWA) vs ESHMAEL MUSONZA Ruled By: GUVAVA J

HH90-10 : LOCAL AUTHORITIES PENSION FUND vs F & R TRAVEL TOURS AND CAR SALES (PVT) LTD and FREEJOY CHIGWIDA and RAPHAEL MAKWARA Ruled By: MAKARAU JP

HH92-10 : MUDZIMUUNOERA APOSTOLIC CHURCH BOARD OF TRUSTEES vs MUDZIMUUNOERA APOSTOLIC CHURCH –GURUVE DIVISION and THE DEPUTY SHERIFF-MT DARWIN Ruled By: MAKARAU JP

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

HH98-10 : FIONA EVELYN TAISEKWA JIRIRA vs ZIMCOR TRUSTEES LIMITED and REGISTRAR OF DEEDS Ruled By: MAKARAU JP

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

HH105-10 : THE CHURCH OF THE PROVINCE OF CENTRAL AFRICA vs THE DIOCESAN TRUSTEES FOR THE DIOCESE OF HARARE Ruled By: MAVANGIRA J

HH37-09 : CENTRAL AFRICAN BUILDING CONSTRUCTION COMPANY (PVT) LTD vs CONSTRUCTION RESOURCES AFRICA (PVT) LTD AND THREE OTHERS Ruled By: CHATUKUTA J

HH164-10 : KENNETH PATRICK McCOSH vs PIONEER CORPORATION AFRICA LIMITED Ruled By: KUDYA J

HH19-09 : RACHEL T DUBE vs RHODA MUCHETWA and THE REGISTRAR OF DEEDS Ruled By: MAKARAU JP

HB17-11 : JONATHAN M. GAPARE and TLP AGENCIES (PVT) LTD t/a ALPHA PROPERTIES DEVELOPERS vs FARAI MUSHIPE and THE DEPUTY SHERIFF, BULAWAYO Ruled By: MATHONSI J

HH230-10 : KWIK-PAK (PRIVATE) LIMITED vs EDWARD MASHIRINGWANI and SHEPHERD MAKONI Ruled By: KUDYA J

HB23-10 : SANITA CONSTRUCTION (PVT) LTD vs OBERT MPOFU and DRASTIC CONSTRUCTION COMPANY (PVT) LTD Ruled By: NDOU J

HB27-10 : PATIENCE MOYO and ZIVANAYI MWEDZI and ANDREW BALENI and MARGRET MREWA and EDMORE VETERAI and OTHERS vs BULAWAYO KNITWEAR (PVT) LTD and MESSENGER OF COURT, BULAWAYO DISTRICT Ruled By: KAMOCHA J

HB56-10 : GRACE KHUMALO vs PARIS MPOFU and THE DEPUTY SHERIFF Ruled By: MATHONSI J

HB87-10 : METALLION GOLD ZIMBABWE vs EUROTECH PLANT & EQUIPMENT (PVT) LTD and THE DEPUTY SHERIFF Ruled By: MATHONSI J

HB110-10 : HIGHLANDERS FC vs DYNAMOS FC and PREMIER SOCCER LEAGUE and BANC ABC (PRVIATE) LIMITED and CUTHBERT CHITIMA and DON MOYO, Chairman, Ad Hoc Arbitrators Committee and KENNEDY NDEBELE, PSL, C.E.O Ruled By: NDOU J

HH02-13 : RUMBIDZAI SHAAMANO vs JABULANI NKOSI Ruled By: CHITAKUNYE J

HH25-11 : THIRDLINE TRADING (PRIVATE) LIMITED t/a ZITAC and ONCLASS INVESTMENTS (PRIVATE LIMITED) vs BOKA INVESTMENTS (PRIVATE) LIMITED Ruled By: MAVANGIRA J

HH25-13 : YEMANE BERHE WELDESLASSIE vs MORDORIC MARKETING (PVT) LTD and MOLLIE MUCHABAIWA and SHAMSTER INVESTMENTS (PVT) LTD Ruled By: MATHONSI J

HH44-13 : DULLY HUNI vs GEORGE PEDZISAI FICHANI Ruled By: MATHONSI J

HH48-13 : MELINA MATSHIYA (In her capacity as Executrix testamentary for Estate late ETTORE FUMIA) vs GEORGE FUMIA and ELLEN FUMIA and FALCON HAULIERS (PRIVATE) LIMITED Ruled By: MAWADZE J

HH69-11 : WALTER CHIGWADA and PATRICIA CHIGWADA vs THE OFFICER COMMANDING C.I.D. SERIOUS FRAUDS and THE COMMISSIONER GENERAL, ZRP and OTHERS Ruled By: KARWI J

HH63-13 : BLESSMORE Z. MABVURAMITI vs ALTFIN INSURANCE COMPANY Ruled By: MAFUSIRE J

HH72-13 : FIDELIS MHASHU vs WELLINGTON ASANI and ALFRED MAMVURA and THE DEPUTY SHERIFF Ruled By: MATHONSI J

HH91-11 : BENEDICT AMON CHIKWANHA vs VICTORIA MUKUNDADZVITI and CITY OF HARARE and DEPUTY SHERIFFand MKWANILA SYLVESTER MATEO Ruled By: MTSHIYA J

HH92-11 : MHANYAMI FISHING AND TRANSPORT CO-OPERATIVE SOCIETY LIMITED and OTHERS vs THE DIRECTOR GENERAL PARKS AND WILDLIFE MANAGEMENT AUTHORITY N.O. and PARKS AND WILDLIFE MANAGEMENT AUTHORITY Ruled By: MAKONI J

HH109-13 : HARARE AND DISTRICT HELLENIC COMMUNITY vs CREMION MAPFUMBA and ZIMBABWE ELECTRICITY AND TRANSMISSION AND DISTRIBUTION COMPANY and CITY OF HARARE Ruled By: BERE J

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