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

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

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

BACKGROUND FACTS

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

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

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

This appeal is against that judgment.

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

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

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

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

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

“A. No cause of action disclosed.

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

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

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

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

B. Vague and embarrassing

1.5 Plaintiff alleges in para 9 of the declaration that -

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

In paragraph 11 they allege -

'The article contained falsehoods of a venomous type'.

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

1.7 The claim is consequently vague and embarrassing.

C. Application to strike out

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

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

PROCEEDINGS BEFORE THE COURT A QUO

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

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

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

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

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

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

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

The court a quo reasoned as follows:

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

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

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

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

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

'A pleading shall -

…,.

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

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

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

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

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

THE APPEAL

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

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

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

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

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

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

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

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

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

ARGUMENTS ON APPEAL

...,. On the substance, the argument for the appellants went as follows;

The court a quo misdirected itself and erred in affording relief which had not been sought and which amounted in the order of things to an acceptance that the exception was well taken. It was suggested that the court a quo purported to be exercising a discretion which it was not imbued with. For this proposition, counsel for the appellants sought reliance on Forestry Commission v Moyo 1997 (1) ZLR 254 (S).

As regards the alleged absence of a cause of action, it was argued that the law was clear that a party must set out in its declaration the words that it alleges to be defamatory. To that extent, it was suggested that reference to the actual words used is indispensable to the existence of a proper cause of action, and, that without it, the pleading is vague and embarrassing.

Counsel for the respondents submitted that the relief afforded by the court was correct and that the court was empowered to exercise its discretion in the manner it did. She submitted that even where an exception is upheld, a plaintiff is afforded the opportunity to amend its declaration.

ANALYSIS OF THE DISPUTE ON APPEAL

For the sake of convenience, I will begin with the nature of the relief ordered by the court a quo. The court dismissed the exception. It found that the pleadings were not excipiable.

Once the court found that the exception was not well taken it could not exercise the discretion of affording the respondents an opportunity to file further particulars. Such indulgence could only follow upon a finding that the exception was well-taken. To that extent, it is my view that the court was guilty of a misdirection.

I turn now to the substance of the appeal.

What a plaintiff to a claim for defamation is required to allege in the summons was settled in Taylor & Another v Chavunduka & Ors 1995 (2) ZLR 22, by CHATIKOBO J…, wherein the learned judge stated:

“It is true that before a person can be held liable for defamation the words complained of must have been published of and concerning the plaintiff. In everyday parlance, the article must refer to the plaintiff.

Before the defendants can be held liable the '…, plaintiff must therefore identify himself as the person defamed; that is, he must allege and prove that the statement complained of referred to him as an ascertained or ascertainable person. The test is whether the ordinary reasonable man hearing or reading the statement would be likely to understand the statement to apply to the plaintiff': per R G McKERRON, The Law of Delict 7ed p178-9. See also SA Associated Newspapers Ltd & Anor v Est Pelser 1975 (4) SA 797 (A) at 810C.

The complaint, at this stage of the inquiry, is on the need to allege, in the declaration, that the article refers to him. In this regard, it has been averred in par 6 that the article in Parade was published of and concerned the plaintiffs. But, as I stated earlier, the article does not identify the plaintiffs either by name or by description. McKERRON supra at p179 states that;

'Where the statement contains no reference, on the face of it, to the plaintiff as an ascertained or ascertainable person, the plaintiff must set out, in his pleadings, the special facts and circumstances which he relies upon as supporting the allegation that the statement referred to him. Having thus alleged facts connecting himself with the defamation, the plaintiff will be entitled to call witnesses to prove that they understood the words complained of to refer to him.'

And, later, at p28F-G;

'All that has been pleaded in para 6 is that the words were published of and concerning the plaintiff….,. That is not so with the ordinary man and woman of normal intelligence reading the article in Parade, unless he was, at the time, aware of the contents of the report.'”

Going by the test set out in the above authority, it cannot be denied that the respondents alleged, in the declaration, that, on 6 July 2012 the Newsday newspaper published a statement of and concerning them. Paragraphs 6, 11, 12, 13, and 14 are pertinent.

It is my considered view that the exception on this aspect was not well taken.

The declaration was not framed in elegant terms. What it does, however, is identify who the plaintiffs are, the circumstances under which the article came about, and the allegation that a defamatory statement was published of and concerning them.

Next, it falls for me to consider whether or not the appellants were embarrassed by the failure on the part of the respondents to set out the exact words which are alleged to have appeared in the article and which defamed them.

For the proposition that the exact words complained of should have been set out in the declaration counsel for the appellants sought reliance on International Tobacco of SA Ltd v Wollheim & Others 1953 (2) SA 603. This authority received attention in this jurisdiction in Munyai v Chikasha 1992 (2) ZLR 31 (S). At p32B-F, this court stated:

“It was submitted that it was therefore incumbent upon the appellant to prove that those words were uttered and it was not sufficient merely to show that words substantially similar were uttered. It was submitted that the appellant's declaration did not allow him to depart from the ipsissima verba rule. The case of International Tobacco Co v Wollheim 1953 (2) SA 603 was cited in support of this proposition. If anything, this case is authority for the opposite position, that is to say, what is required is to show that substantially the same words were used. It is therefore no longer necessary to plead ipsissima verba. All that is necessary is to plead the substance and effect of the words.

Although it would have been advisable for the appellant's legal practitioners to have included the words 'or words to that effect', the failure to do so did not render the appellant's case fatally defective. Indeed, as was said in the case of International Tobacco Co v Wollheim supra at 604G:

'The pleading of ipsissima verba leads to artificiality and dis-ingenuousness in pleading because a witness can rarely recollect the ipsissima verba but only the substance or effect of the words spoken, and, the versions of two or more witnesses as to the ipsissima verba may differ in detail but not on the substance or effect thereof.'”

I am mindful of the fact that in the above mentioned authority the words complained of were not published in a newspaper article. In my view, however, the substance of pleading is the same. A plaintiff no longer needs to set out the exact words complained of.

ERASMUS, Superior Courts Practice, states:

“An exception that a pleading is vague and embarrassing will not be allowed unless the excipient will be seriously prejudiced if the offending allegations were not expunged. The effect of this is that the exception can be taken only if the vagueness relates to the cause of action. Such embarrassment may occur where the admission of one or two sets of contradictory allegations in the plaintiff's particulars of claim or declaration, destroys the plaintiff's cause of action. In other words, averments in a pleading which are contradictory, and which are not pleaded in the alternative, are patently vague and embarrassing.

The test applicable in deciding exceptions based on vagueness and embarrassment arising out of lack of particularity can be summed up as follows:

(a) In each case, the court is obliged to first of all consider whether the pleading does lack particularity to an extent amounting to vagueness. Where a statement is vague it is either meaningless or capable of more than one meaning. To put it simpler: the reader must be unable to distill from the statement a clear single meaning.

(b) If there is vagueness in this sense, the court is then obliged to undertake a quantitative analysis of such embarrassment as the excipient can show is caused to him or her by the vagueness complained of.

(c) In each case, an ad hoc ruling must be made as to whether the embarrassment is so serious as to cause prejudice to the excipient if he or she is compelled to plead to the pleading in the form to which he or she objects. A point may be of the utmost importance to the case, and the omission thereof may give rise to vagueness and embarrassment, but, the same point may, in another case, be only a matter of detail.

(d) The ultimate test as to whether or not the exception should be upheld is whether the excipient is prejudiced.”…,.

Whenever a pleading is vague or lacking in precision it is susceptible to an exception only if the alleged vagueness renders the whole pleading unintelligible. A defendant is, as a consequence, under a burden to establish that the pleading has embarrassed him or her in pleading thereto. In Pete's Warehousing and Sales CC v Bowsink Investments CC 2000 (3) SA 833…, the following is stated:

“The test to be applied in determining an exception is as follows:

The excipient has the duty to persuade the court, that, upon every interpretation which the pleading in question, and in particular any document on which it is based, could bear no cause of action or defence, failing this, the exception had to be dismissed.”

It is not sufficient to merely allude to lack of clarity or particularity as was alleged by the appellants in this case; a defendant must show how he was embarrassed. The appellants have not met the onus on them to establish that the declaration is excipiable. In this instance, the respondents pleaded an innuendo and the appellants have not shown that they have been embarrassed.

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

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

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

This proposition is not without authority.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

HH97-17 : IGNATIUS MASAMBA vs SECRETARY – JUDICIAL SERVICE COMMISSION
Ruled By: MANGOTA J

Munangati-Manongwa J had occasion to deal with an exception which the respondent raised in the matter of Ignatius Masamba and Secretary–Judicial Service Commission. The issue which related to the exception was heard and conclusively decided under case number HH978-15. Both parties made submissions at the hearing of the exception. Judgment ...

SC27-18 : GETRUDE MUTASA and DIDYMUS MUTASA vs THE REGISTRAR OF SUPREME COURT and NYAKUTOMBWA MUGABE LEGAL COUNSEL and SHERIFF OF ZIMBABWE
Ruled By: GUVAVA JA

This is a chamber application made in terms of Rule 12 of the Supreme Court Rules, 1964.

The brief background to this application may be summarised as follows:

The applicants are husband and wife. They approached the court a quo, by way of urgent chamber application, seeking a stay of execution and return of goods which had been removed pursuant to a writ of execution following a default judgment which was granted in favour of the second respondent.

The default judgment related to a claim, by the second respondent, who was the legal practitioner for the second applicant, claiming unpaid legal fees for services rendered to the second applicant and his political colleagues.

On 2 March 2017, the High Court granted a provisional order for the return of all the goods that had been attached and removed in execution. The court also ordered the first and second applicants to refrain from selling the goods until the dispute between the parties had been resolved.

On 3 March 2017 the second respondent filed an appeal against the judgment of the court a quo.

The applicants contend that the legal practitioners should not have successfully filed the appeal without the leave of the court. It was their contention, that, as the order related to an interim order, the second respondent should have sought leave from the court a quo in compliance with section 43 of the High Court Act [Chapter 7:06].

They thus sought an order setting aside the decision of the Registrar accepting the Notice of Appeal and an order declaring the appeal that was before the Supreme Court a nullity.

The Registrar filed a report in terms of Rule 12 of the Supreme Court Rules, 1964 stating that they had accepted the Notice of Appeal as the order which had been granted was in the form of a mandatory interdict and thus did not require the leave of the court a quo.

The second respondent denied that they required leave to appeal from the court a quo.

He also argued that the matter was not properly before the court as the order sought could not be granted by a single judge in chambers. The second respondent also raised the point that the applicants were in fact seeking a declaratur and this could not be granted....,.

In relation to the point raised on whether or not the Supreme Court has the jurisdiction to issue a declaratur in the first instance, the point has already been determined.

In Guwa v Willoughby's Investments (Pvt) Ltd 2009 (1) LR 368 (S) a litigant approached a single Judge of the Supreme Court, in chambers, seeking a Notice of Appeal to be set aside as a nullity. It was not disputed by the respondent that the Notice of Appeal was fatally defective, and the court stated that there was, in effect, nothing pending before the Supreme Court. However, in spite of this being apparent to both parties, the single judge approached in Chambers made the point that the Supreme Court does not have the jurisdiction to make a declaration in the first instance.

The Supreme Court is a creature of statute, and, as such, is governed by the statute that established it – the Supreme Court Act. Such courts are distinct from courts of original jurisdiction, such as the High Court. A statutory body can only act within the confines of its enabling Act, and nowhere in the Supreme Court Act, is the Supreme Court given the jurisdiction to entertain, in the first instance, an application for a declaratur.

In this case, the court stated that the Supreme Court, as an Appellate Court, cannot act in the first instance and issue such a declaratur, in spite of the parties accepting the Notice of Appeal to be invalid. On that basis, the court declined to grant the relief sought as it highlighted that the court is not clothed with that authority and stated as follows:

“In other words, whilst the Supreme Court may do nothing that the law does not permit, the High Court may do anything that the law does not forbid.”

Clearly, the Supreme Court cannot grant a declaratur in the first instance, even where the parties may be in agreement and approach the court, by consent, seeking an order beyond the court's jurisdiction; such consent does not, and cannot, compel a judge to issue an order beyond his or her jurisdictional authority.

This application cannot therefore succeed.

Blue Rangers Estates (Pvt) Ltd v Muduviri 2009 (1) ZLR 376 (SC) presented the option for a respondent in an appeal to raise its opposition to a Notice of Appeal by way of a point in limine before the court.

This application therefore was ill-founded and premature. The parties should have waited for their day in court to raise their objections to the Notice of Appeal.

SC29-09 : BLUE RANGERS ESTATES (PVT) LTD vs JAMAYA MUDUVIRI and THE MINISTER OF LANDS AND RURAL RESETTLEMENT
Ruled By: MALABA DCJ

A court of law will not entertain proceedings, such as an appeal, unless it is satisfied that it is competent to do so and that the proceedings have been instituted in the proper form.

SC58-19 : COMPETITION AND TARIFF COMMISSION vs IWAYAFRICA ZIMBABWE (PRIVATE) LIMITED
Ruled By: GWAUNZA DCJ, MAKARAU JA and BHUNU JA

Where the cause of action...,, is based on the provisions of a statute, the essential elements of the cause of action are to be found within the four corners of the statute and not anywhere else.

HH29-17 : JOSHUA NYAMHUKA and CHURCH OF GOD OF PROPHECY vs ABIGAIL MAPINGURE and OTHERS
Ruled By: FOROMA J

One can well appreciate Mafusire J's opening remarks in Marick Trading P/L v Old Mutual Life Assurance Company P/L and the Sheriff for Zimbabwe HH667-15 when he said legal practitioners should keep abreast with the pronouncements from the courts. It is a duty.

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

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

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

“IT IS ORDERED THAT:

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

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

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

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

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

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

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

“INTERIM RELIEF GRANTED:

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

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

The order by OMERJEE J is still extant in the sense that it has not been set aside by the Supreme Court.

The order was to the effect that the money which is subject matter of a dispute between the applicant and the first respondent be deposited with the Registrar until the ownership of the shareholding in the applicant has been determined.

HH240-18 : KENNETH SCHOFIELD vs FBC BANK LIMITED and THE SHERIFF OF THE HIGH COURT OF ZIMBABWE N.O.
Ruled By: CHIKOWERO J

On 27 April 2018 the applicant filed an urgent chamber application for suspension of a sale in execution of a dwelling in terms of Rule 348A(5b) of the High Court Rules, 1971.In line with Rule 348A(6) l treated this matter as urgent. I caused it to be set down for ...

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

The papers filed as constituting this chamber application typify what has been colloquially referred to as a dog's breakfast both as to content and form.One has to painstakingly read through the papers several times to try and make head or tail of what the applicant's cause of action is. I ...

HH390-18 : MIDLANDS STATE UNIVERSITY vs ALOIS MATONGO
Ruled By: MUZOFA J

It is the Court's observation..., that the draft order filed by a party can only be granted by the court where it is proved....,.Therefore, it is for the applicant to prove what it seeks as an order.

CC16-19 : PERFECT NYATHI vs THE STATE
Ruled By: MALABA CJ, GARWE JCC, MAKARAU JCC, GOWORA JCC, HLATSHWAYO JCC, PATEL JCC, GUVAVA JCC, MAVANGIRA JCC and BERE JCC

Although the applicant did not file a draft order before the Constitutional Court in terms of Rule 14(3) of the Constitutional Court Rules, 2016 (“the Rules”), the heads of argument filed on his behalf show that he seeks the following relief:“1….,. An order declaring that his right to a fair ...

CC04-20 : INNOCENT GONESE and JESSIE MAJOME vs PARLIAMENT OF ZIMBABWE and SPEAKER OF THE NATIONAL ASSEMBLY and PRESIDENT OF THE SENATE and EMMERSON MNANGAGWA N.O. and PRESIDENT OF ZIMBABWE
Ruled By: MALABA CJ, GWAUNZA JCC, GARWE JCC, GOWORA JCC, HLATSHWAYO JCC, PATEL JCC, GUVAVA JCC, MAVANGIRA JCC and BHUNU JCC

The two applicants are Members of Parliament. They brought two separate applications in terms of section 167(2)(d) of the Constitution of Zimbabwe Amendment (No.20) 2013 (“the Constitution”), as read with Rule 27 of the Constitutional Court Rules.

They alleged failure by Parliament to fulfil the constitutional obligation to act in accordance with the procedure for amending the Constitution prescribed by section 328 of the Constitution.

The allegations in the applications are the same. So are the issues. The two applications were consolidated and heard as one.

The applicants challenged the validity of the proceedings that culminated in the passing of Constitutional Amendment Bill (No.1) 2017.

The relief sought is by way of a declaratory order in the terms that:-

1. Parliament failed to fulfil the constitutional obligation provided for in section 328(5) of the Constitution of Zimbabwe, which requires a Constitutional Bill to be passed by two-thirds of the membership of each House sitting separately, when it passed Constitutional Amendment Bill (No.1) of 2017 on 25 July 2017 and 1 August 2017 in the National Assembly and the Senate respectively.

2. Accordingly, the proceedings in Parliament, pertaining to Constitutional Amendment Bill (No.1) of 2017, on 25 July 2017 and 1 August 2017, be and is hereby set aside.

3. The first respondent pays costs of suit.

The Constitutional Bill was intended to amend section 180 of the Constitution insofar as it related to the procedure for the appointment of the Chief Justice, the Deputy Chief Justice, and the Judge President of the High Court. The proposed amendment would also add to section 180 of the Constitution a provision relating to the appointment of the Senior Judges of the Labour Court and the Administrative Court by the Chief Justice.

The application was filed on 6 September 2017. Before it could be heard, the President signed Constitutional Bill (No.1) 2017 into law.

The applicants filed another application under CCZ58/17. They sought an order setting aside the Constitutional Amendment Act on the basis that Parliament had failed to fulfil a constitutional obligation in the passing of the Constitutional Bill.

There are two distinct challenges to the passing of the Constitutional Bill.

The validity of the passing of the Constitutional Bill is challenged by impugning the proceedings in the National Assembly and the Senate.

In respect of the proceedings in each House, the contention is that the passage of the Constitutional Bill was in contravention of the amending procedure prescribed by section 328(5) of the Constitution. The grounds for the claimed violation of section 328(5) of the Constitution are different.

In respect of the proceedings in the National Assembly, the grounds raise factual questions, whilst the grounds in relation to the proceedings in the Senate raise a question of law.

The Court holds that the applicants have failed to show, on a balance of probabilities, that there was no voting conducted in the National Assembly. They also failed to show that the “Aye” votes did not reach the required minimum threshold of 180 votes.

The Court is of the view that the applicants have not been able to prove failure on the part of the National Assembly to act in accordance with the procedure for the amendment of the Constitution prescribed by section 328(5) of the Constitution.

The constitutional obligation imposed on Parliament, by section 328 of the Constitution, when exercising the power to amend the Constitution is to ensure that the procedures prescribed are complied with.

The Court entertains no doubt that, to amend the Constitution by the method prescribed by section 328, every requirement prescribed by the provision must be observed. The omission to comply with any one of the requirements is fatal to the validity of the proposed amendment.

The applicants established that the Constitutional Bill was not passed with the requisite two-thirds majority in the Senate. There was no compliance with the requirements of the procedure prescribed by section 328(5) of the Constitution.

The reasons for the decision now follow.

The Court notes the fact of the conflicting versions of facts and the interpretation of the applicable constitutional provisions. The granting of the relief sought by the applicants depends on one reality. It is discoverable by the finding of the facts on the matters in dispute, the declaration of the true meaning of the applicable constitutional provisions, and the application of the law to the facts.

The proposed amendment to section 180(1) of the Constitution was the cause of the events which culminated in the cause of action pleaded by the applicants for the relief sought. Nothing turned on the substantive value of the proposed amendment of the Constitution.

Before the proposed amendment, section 180 of the Constitution read as follows:

“180 Appointment of judges

(1) The Chief Justice, the Deputy Chief Justice, and the Judge President of the High Court and all other judges are appointed by the President in accordance with this section.

(2) Whenever it is necessary to appoint a judge, the Judicial Service Commission must -

(a) Advertise the position;

(b) Invite the President and the public to make nominations;

(c) Conduct public interviews of prospective candidates;

(d) Prepare a list of three qualified persons as nominees for the office; and

(e) Submit the list to the President; whereupon, subject to subsection (3), the President must appoint one of the nominees to the office concerned.

(3) If the President considers that none of the persons on the list submitted to him or her in terms of subsection (2)(e) are suitable for appointment to the office, he or she must require the Judicial Service Commission to submit a further list of three qualified persons, whereupon the President must appoint one of the nominees to the office concerned….,.”

Section 180 of the Constitution would read as follows after the proposed amendment:

“180 Appointment of judges

(1) The Chief Justice, the Deputy Chief Justice, and the Judge President of the High Court and all other judges are appointed by the President in accordance with this section.

(2) The Chief Justice, the Deputy Chief Justice, and the Judge President of the High Court shall be appointed by the President after consultation with the Judicial Service Commission.

(3) If the appointment of a Chief Justice, Deputy Chief Justice or Judge President of the High Court is not consistent with any recommendation made by the Judicial Service Commission in terms of subsection (2), the President shall cause the Senate to be informed as soon as is practicable: Provided that, for the avoidance of doubt, it is declared that the decision of the President, as to such appointment, shall be final.

(4) Whenever it is necessary to appoint a judge, other than the Chief Justice, Deputy Chief Justice or Judge President of the High Court, the Judicial Service Commission must -

(a) Advertise the position; and

(b) Invite the President and the public to make nominations; and

(c) Conduct public interviews of prospective candidates; and

(d) Prepare a list of three qualified persons as nominees for the office; and

(e) Submit the list to the President; whereupon, subject to subsection (5), the President must appoint one of the nominees to the office concerned.

(5) If the President considers that none of the persons on the list submitted to him or her in terms of subsection (4)(e) are suitable for appointment to the office, he or she must require the Judicial Service Commission to submit a further list of three qualified persons, whereupon the President must appoint one of the nominees to the office concerned.

(6) The President must cause notice of every appointment under this section to be published in the Gazette.

(7) The offices of senior judge of the Labour Court and senior judge of the Administrative Court must be filled by another judge or an additional or acting judge, as the case may be, of the court concerned, and are appointed by the Chief Justice after consultation with the Judicial Service Commission.”

FACTUAL BACKGROUND

The main contention by the applicants was that there was no proper vote in Parliament.

The allegations of fact on which the applicants' cause of action was based had no support from the evidence produced.

That was the case in respect of what they alleged happened in the National Assembly.

NATIONAL ASSEMBLY

The applicants made the following allegations of fact.

There were 234 Members of the National Assembly present in the House on 25 July 2017 out of a total number of 270. This appears from the Order Paper. There was a debate on the Mid-Term Budget Review and the Economic Outlook Statement presented by the Minister of Finance on 20 July 2017.

The fourth respondent (Emmerson Mnangagwa) moved a motion to adjourn the debate in favour of the presentation of the Constitutional Bill.

There was argument between the second respondent (the Speaker of the National Assembly) and Members of the opposition. Eventually, the second respondent agreed with the fourth respondent. He ruled that the House was to proceed with the third reading of the Constitutional Bill.

The first applicant (Innocent Gonese) moved a motion in terms of Standing Order 152(3) that the Constitutional Bill be sent back to the Committee stage to ensure that it incorporated matters that had not been included in the text.

The motion was disallowed by the second respondent.

Bells rang so that voting could commence. According to the applicants, the House was not properly divided at this stage.

A point of privilege was raised to the effect that there had to be a secret vote.

The raising of the point, that the voting be by secret ballot, was based on the suspicion that some Members of the ruling party had been intimidated to vote for the Constitutional Bill. The contention was that a secret ballot was necessary in the circumstances.

The second respondent ruled that the vote was not going to be by secret ballot.

While the point of privilege was being considered, the tellers were counting Members. The Members who were sitting on the Government benches were counted as part of the “Aye” vote. Those who sat on the opposition benches were counted as being part of the “Noe” vote.

The tellers told the second respondent that the “Aye” votes were 187.

The first applicant raised an objection and pointed out that the second respondent had the obligation to ascertain whether there were more than 180 Members in the House. He argued that the second respondent was obliged, by Standing Order 127, to separate Members who voted in favour of the Constitutional Bill from those who voted against it.

The applicants aver that the process was not in accordance with Standing Order 127. They relied on the un-revised Hansard and the Order Paper to advance their argument.

According to the unrevised Hansard, there was commotion in the House following the communication to the second respondent by the tellers that 187 Members had voted in favour of the Constitutional Bill.

Some Members left the House.

The second respondent acceded to the request that the counted numbers should be verified.

The Sergeant-at-Arms was ordered, by the second respondent, to conduct a recount.

After the recount, the un-revised Hansard records that the second respondent said:

“After the verifications, the figure given of the results of the count is: Ayes – 182 and the Honourable Members who left are Honourable Matuke, Honourable Chinomona, Honourable Ruvai, Honourable Nyamupinga and Honourable Muchenje. Those against – 41. The number of affirmative votes recorded is not less than two-thirds of the membership of the House.

I, therefore, declare the final votes in the House on the Constitutional Amendment Bill to have been in accordance with the provisions of section 328(5) of the Constitution.”

According to the applicants, the irregularities in the vote were as follows -

1. When the bells were rung, the doors of the Chamber were closed. Before the vote was concluded, and before the verification was conducted, an Honourable Member walked in.

2. The second respondent breached the Standing Orders by opening the doors before the process of the vote was completed.

3. No vote took place and the verification process became the vote. The counting of the votes was based on an assumption that those on the Government benches supported the motion. This is not permitted by the Standing Orders and the Constitution.

4. The second respondent failed to properly divide the House, as is required by the Rules.

5. The second respondent did not allow the Chief Whips and the Sergeant-at-Arms, together with the tellers, to move around to make the necessary verifications after the vote.

6. Honourable Pedzisayi was counted twice for the “Aye” votes according to the Order Paper.

The applicants averred that the names of those alleged to have voted with the “Ayes” appear in both the un-revised Hansard and the Order Paper. According to both sources, there were 182 “Aye” votes. Those who voted with the “Ayes” included the names of Honourable Beremauro G, Honourable Mukanduri and Honourable B Tshuma. These Members were not in Zimbabwe on 25 July 2017. They were in Uganda on a Parliamentary visit.

The allegation was also that Honourable D Marapira and Honourable G Mabuwa, who were recorded as part of the Members who voted in favour of the Constitutional Bill, were absent on official leave.

The applicants said that Honourable M Chikukwa, Honourable M Hlongwani, Honourable P Dutiro, Honourable Y Simbanegavi and Honourable D Ndlovu were not present. They were, nonetheless, recorded as being part of the “Aye” vote.

According to the applicants' calculation, there were 171 “Aye” votes against a required threshold of 180 votes in favour of the proposed amendment to the Constitution.

There was a contradiction in the averments.

The applicants alleged that voting did not take place in the National Assembly. They also said that the vote was conducted in an irregular manner. They averred that the required minimum threshold of 180 votes in favour of the Constitutional Bill was not reached in the National Assembly....,.

On the merits, the first and the third respondents averred that the procedural requirement that there must be an affirmative two-thirds vote for a valid Constitutional amendment was complied with.

The second respondent averred that he acted in accordance with Standing Order 127 in the conduct of the vote.

The bells were rung, and all Members present moved into the Chamber. He then appointed tellers and divided the House, by directing that the “Ayes” should go to the right and the “Noes” should go to the left. An objection was raised when the House had already been divided. The unrevised Hansard relied on by the applicants did not capture everything that transpired. The revised Hansard and the audio recording show that voting was conducted properly. There were 182 “Aye” votes as recorded in the corrected Hansard, unlike the numbers relied on by the applicants which are based on the unrevised Hansard.

The first and the second respondents relied on the Journal of the House (“the Journal”) and alleged that it was the correct record of the proceedings of the House. They alleged that the un-revised Hansard, relied upon by the applicants, was subsequently corrected after reconciliation with the audio recording.

Their position was that, contrary to the allegations made by the applicants, the audio recording captured both the division of the House and the conducting of the vote.

The first and the second respondents contended that the applicants' case was based on the report in the unrevised version of the Hansard. The names of those Members who voted were corrected in the Journal in terms of Standing Order 131. They explained that, in terms of the procedure of the Journals Office and the Hansard Operational Manual, the corrected version of the Hansard and the corrected Votes and Proceedings were filed in the Journal of the House, which is bound at the end of each Session.

The Master Copy of the Hansard was prepared by the Hansard Reporters after they had gone through the un-revised version of the Hansard while listening to the audio recording.

The Order Paper relied on by the applicants contained errors, which were corrected using this method.

The second respondent conceded that, according to the corrected records, Honourable Mukanduri, Honourable Beremauro and Honourable Tshuma were out of the country. However, he maintained his position that Honourable Marapira and Honourable Mabuwa were present during the proceedings in the House relating to the voting on the Constitutional Bill. Their inclusion on the list of Members absent with leave was an error which was corrected.

The second respondent maintained that, whilst the Hansard is the official report of the proceedings in Parliament, it does not necessarily constitute an accurate record of what transpired on the day in question. The accurate record is contained in the Journal, which is bound at the end of each Session after it has been proof-read and corrected if necessary. The Journal is a security item and is kept by the Clerk of Parliament.

The second respondent stated in the opposing affidavit, in part, as follows:

“I conducted the vote in terms of Standing Order 127. The un-revised Hansard relied upon by the applicants did not capture that part. The audio record recording at minute 01:58:16-20 (which audio will be played at the hearing if required) and the corrected Hansard (vide 'CC' hereto) clearly show that the voting was done properly…,.

It is also important for this Court to note that, unlike the unrevised Hansard, the Journal (vide Annexure 'BB' hereto) is the correct record of proceedings. See also the alterations of the Master Copy of the Hansard (vide Annexure 'CC') before submitting it to the printers to produce Annexure 'DD' hereto which forms part of the Journal….,.

These allegations are denied.

The audio recording clearly shows what transpired…,. The applicant relied on the 'Unofficial Report Un-revised' Hansard as shown on its cover and the 'Advance copy - Uncorrected Votes and Proceedings' which the applicant is referring to as the 'Order Paper', which may, at times, contain errors, as in this case, and such errors in the names of the division list were corrected in the Journal of the House in terms of Standing Order 131 of the Standing Rules and Orders of the National Assembly.”

The second respondent took the argument further.

He averred that the unrevised Hansard left out four Members, Honourable Muchinguri, Honourable Mukupe, Honourable Madzinga and Honourable D Mpofu, who were present and voted with the “Ayes”. This was confirmed by the Attendance Register and the corrected copy of Votes and Proceedings.

According to this record, the “Aye” votes remained at 182.

It was also the second respondent's contention that the Attendance Register and the corrected copy of the Votes and Proceedings showed those Members who were present and voted for the proposed amendment of the Constitution. According to these records, Honourable Chikukwa, Honourable Hlongwani and Honourable Dutiro were present and voted “Aye”.

In terms of the Attendance Register compiled by the Sergeant-at-Arms, Honourable Simbabegavi was marked absent but she came late and participated in the voting and voted with the “Ayes”.

The second respondent alleged that the Sergeant-at-Arms failed to correct the error.

As for Honourable D Ndlovu, the second respondent said there was an error. The intended entry was Honourable A Ndlovu.

In regard to the issue that Honourable Pedzisayi was counted twice, he admitted that there was an error, which was corrected in terms of Standing Order 131.

The second respondent maintained that the Journal confirmed that 182 Members voted in favour of the Constitutional Bill. He contended that the Constitutional Bill was passed in accordance with the procedure prescribed by section 328(5) of the Constitution.

Finally, the first and the second respondents averred that, at the verification of the votes, the five Members who had voted, but subsequently left the House, were not included in the 182 “Ayes”. They had initially been counted as part of the 187, but were excluded following the verification exercise because they had left before the verification was conducted.

The applicants alleged, in their answering affidavits, that the documents relied on by the first, the second and the third respondents were fabricated, doctored, and tampered with.

The applicants relied on the unrevised Hansard and the Order Paper. They rejected the corrections made to the documents.

The first applicant averred, in the answering affidavit, as follows:

“I also wish to state that the recordings of Parliament, on the 25th of July 2017, must have been recorded and captured on video.

Surely, this Honourable Court has powers, which I do not have, of summoning both the video recording of what happened in Parliament which I notice the respondents do not refer to in their papers.”...,.

The interpretation and application of the provisions of section 328 of the Constitution, in the context of the effect of the principles on the amendment of the Constitution, disclose the invalidity of the passing of the Constitutional Bill in the Senate.

The process confirms the constitutionality of the conduct of the National Assembly....,.

Section 328 of the Constitution provides, in part:

“328 Amendment of Constitution

(1) In this section —

'Constitutional Bill' means a Bill that seeks to amend this Constitution;…,.

(2) An Act of Parliament that amends this Constitution must do so in express terms.

(3) A Constitutional Bill may not be presented in the Senate or the National Assembly, in terms of section 131, unless the Speaker has given at least ninety days' notice in the Gazette of the precise terms of the Bill.

(4) Immediately after the Speaker has given notice of a Constitutional Bill, in terms of subsection (3), Parliament must invite members of the public to express their views on the proposed Bill in public meetings and through written submissions, and must convene meetings and provide facilities to enable the public to do so.

(5) A Constitutional Bill must be passed, at its last reading in the National Assembly and the Senate, by the affirmative votes of two-thirds of the membership of each House.

(6) Where a Constitutional Bill seeks to amend any provision of Chapter 4 or Chapter 16 —

(a) Within three months after it has been passed by the National Assembly and the Senate in accordance with subsection (5), it must be submitted to a national referendum; and

(b) If it is approved by a majority of the voters voting at the referendum, the Speaker of the National Assembly must cause it to be submitted, without delay, to the President, who must assent to and sign it forthwith.”...,.

The amendment of different Constitutional provisions is not done by the same process.

An amendment of a provision other than Chapter 4, Chapter 16 and section 328 of the Constitution requires affirmative votes to be not less than two-thirds of the membership of each House of Parliament.

An amendment of a provision under Chapter 4, Chapter 16 and section 328 requires a referendum in addition to the special majority referred to in section 328(5) of the Constitution.

The Constitution thus follows the tradition whereby certain subjects are too important to be amended by a special majority in Parliament. This means that the issue of constitutional amendment is not an ordinary provision. It is one which enjoys special protection by the Constitution itself.

When interpreting section 328(5) of the Constitution, this underlying principle ought to be borne in mind.

INTERPRETATION OF SECTION 328(5) OF THE CONSTITUTION

The question for determination is whether section 328(5) of the Constitution requires that the amount of the votes in support of the Constitutional Bill must not be less than two-thirds of the total number of persons the Constitution declares that the House consists of. Does the subsection mean that the votes must not be less than two-thirds of the Members of the House who are alive and capable of voting at the time the voting is conducted?

The two Houses of Parliament interpreted the phrase “the membership of each House”, as used in section 328(5) of the Constitution, differently.

The National Assembly interpreted the words to mean the total number of persons the Constitution has declared the House to consist of as its Members. The Senate interpreted the phrase to mean the number of Members of the House who are alive and capable of voting at the time the vote on the proposed amendment to the Constitution is taken at the third reading.

The interpretation must take into account the language used, the context, the subject-matter, the purpose, and the object of section 328(5) of the Constitution. The Court must bear in mind that it is the Constitution it is construing.

Section 328(5) of the Constitution is a fundamental law which prescribes the procedural and substantive requirements for a valid amendment of the Constitution. It sets out an objective standard for the determination of the validity of the amendment. The words “the membership of each House”, as used in section 328(5) of the Constitution, refer to an element of the prescribed requirements of the objective standard for the measurement of the validity of the amendment of the Constitution which is peculiar to each House.

The requirement that the amount of the vote in favour of the Constitutional Bill must be not less than two-thirds of the membership of the House is applicable to votes by each House. The only factor of the requirement of the objective standard for the measurement of the validity of the proposed amendment which differentiates one House from the other, and relates to its membership, is the total number of persons the Constitution declares to be what each House consists of.

Section 120(1) of the Constitution provides that the Senate consists of eighty Senators, who become its members by being elected by the electorate in the manner prescribed. Section 124(1) of the Constitution provides that the National Assembly consists of two hundred and seventy Members, who are elected in the manner prescribed.

It is necessary to consider the meaning and purpose of other provisions of the Constitution that have a bearing on the subject of section 328(5) of the Constitution. No single constitutional provision may be taken out of its context and interpreted by itself.

The fundamental principle is that a Constitution is a mode of limited government, characterised by the apportionment and distribution of powers. The powers concerned must be exercised for the benefit of the people as a whole in accordance with the constitutionally prescribed procedures.

Section 117(2)(a) of the Constitution expressly provides that the power to amend the Constitution conferred on the Legislature must be exercised in accordance with section 328 of the Constitution.

Sections 120(1) and 124(1) of the Constitution are the laws governing the composition of the Houses. The contents of each provision provide the meaning of the words “the membership of each House”, as used in section 328(5) of the Constitution.

The subject-matter of section 328(5) of the Constitution is the objective standard for the measurement of the validity of the amendment.

As an element of the standard by which the validity of the amendment of the supreme law of the land is to be measured, the membership of each House has to be a constant element enjoying a degree of permanence. Considering the fact that amendment of section 328(5) of the Constitution is rendered more difficult by the requirements of section 328(9) of the Constitution, the membership of each House, in the context of section 328(5) of the Constitution, is a constant factor.

Section 138(1) of the Constitution provides that all questions proposed for decision in either House of Parliament are to be decided by a majority of the votes of the Members of that House present and voting.

The provision of a special procedure, under section 328 of the Constitution, for the exercise of the power to amend the Constitution, means that the procedure prescribed by section 138(1) of the Constitution is not applicable to the special process of amending the Constitution.

The exclusion of the procedure for deciding questions proposed for decision in either House of Parliament, prescribed in section 138(1)(a) of the Constitution, from the special process of amending the Constitution is evidence of the intention of the makers of the Constitution to protect the Constitution from fluctuating standards for the measurement of the validity of the amendment of the Constitution.

The effect of the contention by the respondents that the words “the membership of each House”, as used in section 328(5) of the Constitution, mean the total number of Members of the House who are alive and capable of voting at the time the vote is taken is the importation of the procedure prescribed by section 138(1)(a) of the Constitution into the special process of amending the supreme law of the land.

The interpretation of the words “the membership of each House”, as used in section 328(5) of the Constitution, to mean the total number of persons the Constitution declares each House to consist of is consistent with the object of the provision.

The purpose and object of the requirements of the procedure for the exercise of the power to amend the Constitution, prescribed by section 328(5) of the Constitution, is to ensure that the amendment of the Constitution is of common benefit to the people. The procedural and substantive requirements of section 328(5) of the Constitution ensure that there is representation of the people and protection of their interests in the process of the amendment of the Constitution.

In making the Constitution, and committing themselves to it as the supreme law of the land, the people imposed on themselves the obligation to accept an amendment of the Constitution effected by a vote in accordance with the standard of validity prescribed by section 328(5) of the Constitution.

The meaning of the words “the membership of each House” as the whole number of persons the Constitution has declared the House to consist of receives support from the provisions of section 344(3) and (4) of the Constitution. The section reads, in relevant part, as follows:

“344 Quorum and effect of vacancies in Constitutional bodies

(1)…,.;

(2)…,.;

(3) Any reference in this Constitution to the votes of —

(a) Half of the membership of a body whose membership is not a multiple of two;

(b) Two-thirds of the membership of a body whose membership is not a multiple of three; or

(c) Three-quarters of the membership of a body whose membership is not a multiple of four; is to be interpreted to mean that the number of votes must be not less than the whole number next above one-half, two-thirds or three-quarters, as the case may be, of the body's membership.

(4) Any reference to the total membership of Parliament is a reference to the total number of persons who, for the time being, are Members of Parliament.”

Counsel for the applicants argued that the Constitution maintains a distinction between section 344(4) and section 328(5).

He submitted that the Constitution must be interpreted purposively and not in the abstract.

He took the point further and argued that section 344 is not a substantive section. It is a definition section. There is a difference in the construction of the two. Any other interpretation would render section 328(5) meaningless. The provision is meant to make constitutional amendment difficult.

He finally argued that section 328 of the Constitution grades different provisions based on how important they are.

Counsel for the first, second, and third respondents a contrary view.

He argued that the first port of call is the definition of “Member of Parliament” in the Constitution. 'Membership' is derived from 'Member of Parliament'. Hence, in order to understand what “membership” means, regard has to be had to the definition of “Member of Parliament”. Membership depends on the construction of 'Member of Parliament'.

He further contended that the law does not allow for a vacuum.

The interpretation to be given to the provision must be one which best achieves the intention of the lawmakers.

Counsel for the first, second, and third respondents urged the Court to find, in respect of the Senate, that the relevant number is 79. He said the reason was that section 328(5) of the Constitution relates to “membership”, which is derived from “Member”. 'Member of Parliament' relates to a person who is alive and is able to carry out Parliamentary business.

Section 344(4) of the Constitution is related to sections such as section 109(1), which relates to a vote of no confidence in Government, section 114(2), which relates to the revocation of a declaration of war, section 113(2), which relates to the approval of a declaration of a State of Emergency, section 122(8)(f), which relates to the vacation of office by the President of the Senate, and section 126(8)(f), which relates to the vacation of office by the Speaker.

The provisions, which give substance to section 344(4) of the Constitution, show that its application is determined by the subject-matters to which the specific provisions relate and is confined to those provisions. The provisions of section 344(4) cannot be interpreted as giving meaning to section 328(5) of the Constitution. To the contrary, section 344(4) of the Constitution sheds light on what section 328(5) of the Constitution does not mean.

There is no provision which is similar to section 328(5) in the Constitution.

The contrast can be seen in section 113(6) of the Constitution, which provides:

“113(6) If, by a resolution passed by a majority of the members present at a joint sitting of the Senate and the National Assembly, Parliament resolves that a declaration of a State of Public Emergency —…,.”…,.

This provision relates to Members “present”.

The majority that carries the day depends on the Members actually present and voting.

Another example of a similarly worded provision is section 138 of the Constitution, which provides:

“138 Voting and right of audience in Parliament

(1) Except where this Constitution provides otherwise —

(a) All questions proposed for decision in either House of Parliament are decided by a majority of the votes of the Members of that House present and voting;…,.”

The provision under which the Constitution is amended does not relate to the presence of the Members. Its provisions are an exception referred to in section 138(1) of the Constitution.

It means that, in terms of section 328(5) of the Constitution, the controlling concept is the membership of the House, which relates to the total number of persons the House is declared, by the Constitution, to consist of. The number does not fluctuate since it is fixed by the Constitution.

It is a definite number.

When the provisions are contrasted, it becomes apparent that “the membership of each House”, as used in section 328(5) of the Constitution, does not mean persons who are, at any given time, Members of Parliament.

Section 328(5) of the Constitution has two references to membership of the House. The first relates to the exercise of the power to vote. The vote can only be cast by Members of Parliament who are present and voting. The second reference is to the objective standard for the measurement of the votes cast in favour of the proposed amendment to the Constitution. It is the requirement of that objective standard that the votes in favour of the proposed amendment must not be less than two-thirds of the membership of the House concerned.

For the purposes of the objective standard for the measurement of the validity of amendment of the Constitution, in terms of section 328(5) of the Constitution, the makers of the Constitution decided to fix the minimum threshold to be reached by the votes in favour of the proposed amendment by reference to the constant constitutive element of each House. They were free, in the exercise of the power of sovereignty, to do so. They were not under delegated authority, as the Legislature is.

Section 328(5) of the Constitution is not in conflict with any other provision of the supreme law. The matters it regulates are exclusive to its provisions.

“The membership of each House” is an essential element of the requirement of the objective standard fixed by the fundamental law. It is therefore binding on all Members of the House, individually and collectively, in the exercise of the power to amend the Constitution.

The people decreed, by the supreme law, that the validity of the exercise of the power to amend its provisions be determined by application of an objective standard, which takes into account the representation and the protection of their interests.

When searching for the true construction of a constitutional provision, a court must constantly bear in mind that its authors were not executing a delegated authority, limited by other constitutional constraints. They were establishing a fundamental law. To that extent, the people, in the exercise of the power of sovereignty, were intent upon establishing such principles as seemed best calculated to produce good government and promote public happiness. They did so at the expense of any, and all, existing institutions which might stand in their way.

The objective standard for the determination of the validity of the proposed amendment of the Constitution is applied to the amount of votes in favour of the amendment at the third reading. It is that vote which decides the question whether the Constitutional Bill is passed by the House concerned. Compliance with all the procedural requirements prescribed by section 328 of the Constitution is obligatory.

In enacting the provisions of section 328(5) of the Constitution, the people deliberately chose the formulation of the objective standard for the determination of the validity of an amendment of the Constitution. The objective standard subjects the votes in favour of the proposed amendment to a minimum threshold fixed by reference to the whole number of persons fixed by the Constitution itself as the anchor for the standard. The people settled for the formula prescribed by section 328(5) of the Constitution because they were satisfied that its application would secure the object of protection and promotion of their interests. It is a means of affording indirect popular participation in the process of amending the fundamental law.

Section 344(3) of the Constitution relates to provisions which use the formula for determining the validity of decisions on any questions for decision by the House by requiring the votes in favour of what is proposed to reach a minimum threshold fixed by reference to the membership of the body. The sub-section prescribes what should happen when “the membership of a body” is not a multiple of the denominator to the vulgar fraction to express the minimum threshold.

The words “membership of a body”, as used in section 344(3) of the Constitution, relate to the whole number of members the body is declared by the Constitution to consist of.

It is clear, from section 344(3) of the Constitution, that reference to the “membership of a body” in any provision of the Constitution is reference to the total number of persons the Constitution has declared the body to consist of.

It is important to note, for the purpose of the determination of the question before the Court, that section 344(3) of the Constitution refers to “the membership of a body” when used in the Constitution in reference to the votes of a constitutional body.

Section 328(5) of the Constitution falls into the category of provisions in which the formula fixing the minimum threshold for votes in favour of the proposed action by reference to the membership of the body concerned is used.

The words “the membership of each House” are used in section 328(5) of the Constitution in a constitutive sense to refer to what constitutes each House, as prescribed by the fundamental law. The words refer to what constitutes the full strength of each House.

The correctness of the construction of section 328(5) of the Constitution, linking the minimum threshold the votes in favour of the proposed amendment of the Constitution have to reach to the whole number of Members making up each House, as fixed by the Constitution itself, is supported by the provisions of section 344(4) of the Constitution.

Section 344(4) of the Constitution provides that any reference in the Constitution to “the total membership” of Parliament is reference to the total number of persons who for the time being are Members of Parliament.

The definition of the total membership of Parliament is given immediately after the provisions of section 344(3), where reference is made to “the membership of a body”.

The effect of section 344(4) of the Constitution is that where reference is made in a provision of the Constitution to the “membership of a body”, and that body is one of the Houses of Parliament, reference is not being made to the total number of persons who for the time being are Members of Parliament.

Section 332 of the Constitution defines “Member of Parliament” to mean a Senator or a Member of the National Assembly.

The people decided that the objective standard for the determination of the validity of an amendment of the Constitution should not include an essential element which would depend on the effects of unpredictable occurrences of such events as death or removal from office of Members of either House. This self-restriction in the Constitution serves to guarantee stability and respect for the established constitutional order.

The amendment of the Constitution must not be an easy process.

Section 328 of the Constitution prescribes the procedure for amending the Constitution, reflecting different degrees of difficulty depending on the provision sought to be amended. The amendment of the Constitution is a matter on which the public places a lot of importance. A swift and easy method of amending the Constitution would weaken the sense of security which the rigid Constitution gives. There would be too little distinction from the method for amending ordinary legislation. That would erode the special status of the supremacy of Constitutional Law.

The Constitution would not occupy the special place it occupies today in the country's legal system.

Changing provisions of the Constitution, without following the special procedure provided for in section 328, would expose the Constitution to passing interests. The idea reigns that solidity and security are the most vital attributes of a fundamental law. See BRYCE “The American Commonwealth” Vol 1…,.

The effect and substantive value of the foundational principle of supremacy of the Constitution is that, once ordained by the people, the Constitution and its provisions bind the people themselves. The people must respect and obey the dictates of what has been done by Parliament within the ambit of the limited powers they would have conferred on it and in accordance with the procedure they would have prescribed for its conduct.

Democracy is a limited form of government. The principle of supremacy of the Constitution is to the effect that, once the people have given the representatives they would have put in Parliament, the power to make the final decision by the prescribed amount of votes in favour of the amendment of the Constitution in accordance with the prescribed procedure, they would have bound themselves to accept the amendment as being in the common interests of the entire people.

Therein lies and governs the principle of the rule of law.

It is to the effect that law is the master to be obeyed by the State, every person, and every institution and agency of Government at every level.

When a Member of a House of Parliament casts a vote in favour of the proposed amendment to the Constitution, he or she is discharging a democratic mandate. He or she is not casting the vote for personal interests. The principle of representative democracy guarantees every Member of Parliament not only freedom in the exercise of his or her mandate but also equal status as a representative of the entire people.

In principle, each House complies with its function as a body of representation in its entirety. The law does not differentiate votes in favour of the proposed amendment to the Constitution according to the political affiliation of the Members casting the votes. The voter acts as a Member of the House who is required to act in accordance with his or her conscience within the confines of the duties of the office of membership.

The fact that a political party with a majority of Members of Parliament manages to secure the requisite special majority of two-thirds of the membership of the House to amend the Constitution does not change the fact that, at law, the affirmative votes for the amendment of the Constitution represent the entire citizenry.

The reason is that, although cast by an individual, the vote is an exercise of the power belonging to Parliament as a constitutional body established for the purpose of exercising legislative authority for the common good of the entire people. The people established Parliament as a means by which they would exercise, through representatives, the legislative authority they vested it with for their common interests. The Constitution creates a representative democracy, under-girded by the doctrine of separation of powers.

The interpretation of section 328(5) of the Constitution must seek to give effect to the fundamental values on which a republican form of government is founded.

Section 328 of the Constitution does not only prescribe the procedures that those entrusted with the power to amend the fundamental law have to keep in mind and bear the obligation to act according to their requirements in the exercise of the power. The duty-bearers must also appreciate the rationale behind the limitation on the exercise of the power conferred on them in the context of the dynamism of the relationship with the people. They have to appreciate the legal consequences of failure to act in accordance with the procedures prescribed by section 328 of the Constitution.

ANALYSIS OF THE FACTS

NATIONAL ASSEMBLY

The parties agreed that the applicable figure with regards the National Assembly is 270. They agreed that two-thirds of that number is 180.

The agreement was based on the interpretation of section 124(1) of the Constitution which provides for the composition of the National Assembly.

The question was whether the applicants established, on a balance of probabilities, that there was no vote in Parliament.

The cause of action, as pleaded, was the alleged complete failure by the Speaker to conduct voting proceedings in the House to enable the Constitutional Bill to be passed. In the same breath, the applicants accepted that the voting did take place.

The cause of action, on this version of pleadings, was that the votes cast in favour of the Constitutional Bill failed to reach the minimum threshold of 180 votes required by the provisions of section 328(5) of the Constitution....,.

It is a clear contradiction in the applicants' case to suggest that there was no vote and then later accept that there was a verification process which established that an affirmative vote of 182 was reached in the National Assembly....,.

It was a contradictory pleading for the applicants to allege that the vote in favour of the Constitutional Bill did not reach the minimum threshold of two-thirds of the membership of the House when they averred at the same time that no vote was conducted....,.

One cannot allege that the required threshold was not met without accepting that there was a vote. Implicit in the alleged failure to reach the required minimum threshold is an acceptance that a vote was conducted.

One cannot make two mutually inconsistent averments in the same pleading. It has the effect of destroying the cause of action because a cause of action cannot be sustained by contradictory averments.

CC08-20 : FEATHERS MUKONDO vs THE STATE
Ruled By: MALABA CJ

This is a chamber application for an order for direct access to the Constitutional Court (“the Court”) in terms of Rule 21(2) of the Constitutional Court Rules, S.I.61 of 2016 (“the Rules”).

The applicant intends to file the substantive application with the Constitutional Court in terms of section 85(1)(a) of the Constitution of Zimbabwe Amendment (No.20) Act 2013 (“the Constitution”).

The substantive application the applicant intends to make, in terms of section 85(1)(a) of the Constitution, should leave for direct access be granted, alleges that the decision of the Supreme Court, dismissing an appeal against a decision of the High Court upholding his conviction and sentence of imprisonment for bribery violated his right to a fair trial enshrined in section 69(1) of the Constitution....,.

The Court finds the application for an order for direct access to be a disguised appeal against the decision of the court a quo which upheld the conviction and the sentence. This can be gleaned from the applicant's founding affidavit, where he states that:

“…, if leave for direct access is granted, I seek for a relief to set aside the proceedings conducted under case number B1361/14, and the subsequent upholding of the foregoing proceedings under case numbers HH935/14 and SC820/17 as being inconsistent with the right to a fair trial guaranteed under section 69(1) of the Constitution of Zimbabwe.

I further pray for remittal of the case for trial de novo to Guruve Magistrate Court before a different magistrate.”

The relief sought is the same as the relief that was sought on appeal to the Supreme Court.

In Prosecutor General v Telecel Zimbabwe 2016 (2) ZLR 422 (CC)…, the Constitutional Court said:

“…, while the applicant did not specifically state so in his application, in reality, the matter was an appeal brought to this Court under the guise of an application. This is abundantly evident from the relief that is outlined in his draft order. It is even more evident from his summary of the background to the intended application, as already indicated.

He indicated that he wished to approach this Court 'for an order setting aside the Supreme Court judgment…,.'.”

The applicant is seeking to appeal against the dismissal of the appeal by the Supreme Court.

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

The plaintiff's pleadings are a mess.

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

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

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

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

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

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

1. Who are the plaintiffs in this matter.

2. Have they been lawfully dismissed.

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

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

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

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

This affected the claim in the summons.

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

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

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

He was an employee of the second defendant.

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

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

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

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

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

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

The 15 employees appealed to the Labour Relations Tribunal.

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

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

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

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

He produced exhibit 2 and 3 to justify his computation.

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

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

Counsel for the defendant applied for absolution from the instance on two broad grounds:

(i) The first was that the plaintiff failed to disclose a cause of action;...,.

The first ground calls for an interpretation of the order of the Senior Labour Officer.

The plaintiff averred that the second defendant was obliged to write to him informing him that he stood dismissed from the date of suspension, and, thereafter, pay him his terminal benefits within two weeks of the receipt of the order. He contended that the failure to write the letter of dismissal meant that he remained an employee.

Counsel for the defendant contended that he was dismissed by the Senior Labour Officer from the date of suspension.

Section 2(1) of the Labour Relations (General Conditions of Employment) (Termination of Employment) Regulations S.I.371 of 1985 read:

“No employer shall summarily or otherwise terminate a contract of employment with an employee unless -

(a) He has obtained the prior written approval of the Minister to do so; or

(b)…,. not relevant.

(c)…,. not relevant.

(d) The contract of employment is terminated in terms of section 3.”

Section 3 of the Labour Relations (General Condition of Employment) (Termination of Employment) Regulations S.I.371 of 1985 reads:

“3(1) Where an employer has good cause to believe that an employee is guilty of -

(a) Any act, conduct or omission inconsistent with the fulfilment of the express or implied conditions of his contract;

(c) (b) – (i) not relevant

The employer may suspend such employee without pay and other benefits and shall forthwith apply to a labour relations officer for an order or determination terminating the contract of employment.”

Section 2(1) and 3(1)(a) of the Labour Relations (General Conditions of Employment) (Termination of Employment) Regulations S.I.371 of 1985 replaced the common law right of an employer to summarily dismiss an employee.

Instead, the authority to dismiss an employee was given to the Minister or his delegate.

The second defendant complied with the requirements of this section, as demonstrated by the letter of 6 January 1998. In that letter, the second defendant applied for an order terminating the plaintiff's employment. The Senior Labour Officer granted an order terminating the plaintiff's employment with effect from the date of his suspension. The date of suspension was 5 January 1998.

It was not necessary for the second defendant to formally write to the plaintiff that it was terminating his employment from the date of suspension.

The contention by the plaintiff, that he remains an employee until he formally receives a letter terminating his employment, does not make sense. This is because if the second defendant was to write such a letter, it would simply state that he was dismissed from the date of suspension. He would not be entitled to claim earnings from the date of suspension cum dismissal to the date the letter is written.

The plaintiff's further submission, that section 13(1) of the Labour Act [Chapter 28:01] maintains the employer-employee relationship where terminal benefits have not be paid, is incorrect.

All it does is to criminalize unreasonable delay in payment and deign it an unfair labour practice.

The determination ordered that the plaintiff be paid his terminal benefits within two weeks of receipt of the determination by the second defendant.

There is, in exhibit 1, a letter for Mr Jeche, dated 25 January 1999, from the second defendant, inviting him to receive payment of his terminal benefits.

It was part of the plaintiff's case that his terminal benefits were not paid.

His terminal benefits would be for the period commencing on the date he joined the second defendant to 5 January 1998 when his contract was lawfully terminated. He, however, claimed terminal benefits from the date of his suspension to an unspecified date in the future when he will receive a letter of dismissal.

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

The second defendant based its application on two grounds:

(i) The first was that the plaintiff had failed to disclose a cause of action against it.

In my view, such a ground should have properly been raised by way of exception. It appeared that the second defendant abandoned the exception it had filed.

Be that as it may, I see no basis for declining to determine the issue at the close of the plaintiff's case.

The plaintiff's action flowed from the determination of the Senior Labour Officer.

He mis-interpreted the determination and wrongly claimed for damages and loss of earnings arising from a period after he ceased to be an employee.

I am satisfied that he had no cause of action against the second defendant, other than the payment of his terminal benefits up to 5 January 1998.

He, however, did not claim, quantify, or prove those terminal benefits.

It is not feasible to grant terminal benefits he has not sought or proved.

View Appeal
HB08-14 : JONATHAN MOYO vs ROSELINE NKOMO
Ruled By: MAKONESE J

The applicant was a candidate for the National Assembly seat for Tsholotsho North constituency in Matabeleland North Province in the Harmonised General Elections held on 31st July 2013 as a nominee of ZANU (PF). The respondent was declared winner of the National Assembly election in respect of the said constituency. She stood in the election as a candidate for the MDC(T) party.

The applicant was not satisfied with the outcome of the election, and, accordingly, on 1st August 2013, filed a Petition in terms of section 167 of the Electoral Act [Chapter 2:13], hereinafter referred to as the “Act”.

The Petition filed by the applicant is couched in the following terms:

“BE PLEASED TO TAKE NOTICE THAT the Petitioner hereby petitions the Electoral Court for an Order in terms of the Draft annexed hereto on the grounds that:

1. The Petitioner was a candidate in the National Assembly Election for the Tsholotsho North Constituency on the 31st July 2013.

2. That the 9th Respondent was returned as the National Assembly member for Tsholotsho North in that election and this return was improper and irregular for the reasons detailed in the annexed affidavit.

3. The combination of electoral malpractices and irregularities highlighted in the annexed affidavit render the election null and void or voidable as the court may deem appropriate.

TAKE NOTICE FURTHER THAT, the accompanying affidavit and supporting documents are tendered in support of this application and should be read as specifically forming part of this notice.”

The applicant prayed that this court grants him relief in the Draft Order, in the following terms:-

“1. The 9th Respondent was not duly elected as the representative of Tsholotsho North Constituency as declared on 1st August 2013 by the First Respondent.

2. That the said election be and is hereby set aside and that a bi-election be held within 90 days of this order.

3. That the voters roll for Ward 22 and 9 of Tsholotsho North Constituency be rectified to reflect voters resident in these wards prior to the election referrein herein.

4. That the Registrar of this Honourable Court duly communicate this court's order to the Speaker of Parliament.

5. That the Respondent's jointly and severally pay the costs of this application.”

Pursuant to the filing and service of the Electoral Petition upon the nine Respondents, the first to sixth respondents filed an exception to the Petition on the grounds of mis-joinder in that the citation of the first to sixth respondents was contrary to the provisions of Part XXII and section 166 of the Electoral Act. The applicant subsequently withdrew all actions against the first to eighth respondents, leaving the ninth respondent, who is now the only respondent in this action.

Both the applicant and the respondent filed fairly detailed Heads of Argument in support, and defence of the preliminary points raised by the respondent.

The preliminary points were initially premised on six grounds, but, at the commencement of the hearing of oral argument, the respondent's legal practitioner announced that there were only two grounds to be dealt with, conceding that the rest of the objections were not sustainable.

The respondent argued that the applicant's petition is fatally defective and therefore a nullity in that it does not comply with the provisions of the Electoral Act [Chapter 2:13] and section 169 of the same Act and sections 21(e) and (g) of Statutory Instrument 74A of 1995, S.I.74A of 1995 also known as the Electoral (Applications, Appeals and Petitions) Rules, 1995.

Further, the respondent avers that throughout the petition, the petitioner has not specifically alleged any electoral law infractions by either the respondent or its agents.

In other words, the petitioner's gripe seems to be with the electoral body and/or its officials, and, as such, the petitioner's remedies lie in an application for a review.

The respondent contends that the petitioner has not brought out a complaint or cause against the respondent or her agents, and, that if he has done so, this has been put across in a manner so lackadaisical and imprecise and so vague that the respondent does not know what she must answer to....,.

I have read the accompanying affidavit of the applicant and while I agree, that the affidavit is lengthy, a careful scrutiny of the document reveals that the content therein does not really disclose, with any reasonable clarity, the grounds upon which the election challenge is made.

In the opening pages of the affidavit, the applicant deals with what he refers to as wrongful denial of a recount “under confused and confusing circumstances.”

That aspect of the applicant's case falls away by virtue of the fact that the vote re-count was set aside by an order of the court, under case number EC25/13.

The court made an order to the effect that the recount was in violation of section 70(4) of the Electoral Act and therefore unlawful.

The rest of the affidavit deals with extensive and general complaints of misplacement, misdirection, and non-counting of votes and disenfranchisement of voters in certain wards in the Constituency....,.

The Petitioner is required, by the Electoral (Applications, Appeals and Petitions) Rules 1995, S.I.74A of 1995 to state in clear and unambiguous terms the nature of his complaint.

The respondent in this instance will clearly be embarrassed because she does not know how to respond to these general and rambling accusations, which, as it turns out, are not directed at her but to some unknown persons.

The applicant's affidavit contains far too many broad and vague generalisations of irregularities which cannot give rise to triable issues.

I would therefore sustain the respondent's second point in limine and find that the petitioner's grounds of complaint are vague and imprecise to the extent of non-compliance with the Rules of the Electoral Court.

HH260-15 : DR PARTSON ZVANDASARA vs BELVEDERE NURSING HOME (PVT) LTD
Ruled By: MATHONSI J

The plaintiff is a medical doctor, a gynaecologist, and a professor at the University of Zimbabwe. He boasts that he is a founder member and majority shareholder of the defendant, a maternity institution he is suing for $50,000, being money he says he paid to a creditor of the defendant on its behalf.

In his declaration, the plaintiff averred that sometime in September 2005, while he was the Managing Director of the defendant, he entered into an agreement with Vengesayi Architects (the architects), on behalf of the defendant, in terms of which the architects were to provide the defendant with services for a fee. The architects were contracted to make town planning applications for special consent on the Stand, co-ordinate all project consultations, design, work on drawings and supervise construction work of the proposed additions and alterations to the hospital.

Although the architects drew up the plans, the defendant did not proceed with the construction, but, the agreement he had concluded with the architects resulted in the defendant being indebted to the architects in the sum of US$1,300,000.

As Managing Director, founder, and majority shareholder of the defendant he paid a sum of $50,000 towards settlement of the debt in order to protect the integrity and good name of the defendant.

The $50,000 was paid by him in instalments between 30 May 2011 and 18 July 2011. The plaintiff averred, in paragraph 8 of the declaration, that:

“The money paid to the architects by the plaintiff thus made the latter the defendant's creditor. There is no dispute as to whether the plaintiff made the payment aforesaid.”

The plaintiff then prayed for judgement in the sum of $50,000 together with interest at the prescribed rate and costs of suit on a legal practitioner and client scale.

Having entered appearance to defend, the defendant filed a plea denying liability and stating that the plaintiff was not authorised by its Board of Directors and shareholders to enter into an agreement with the architects and that he had entered into that agreement unlawfully.

It further averred that when the plaintiff paid the sum of $50,000 to the architects, he did so without the authority of the defendant. As he had entered into the agreement without authority, the plaintiff was personally liable to the architects. The plaintiff's claim should therefore be dismissed with punitive costs.

At the pre-trial conference the parties agreed on the issues as:

1. Whether the plaintiff entered into an architectural agreement with the architects without the authority of the defendant's Board of Directors and shareholders.

2. Whether the defendant is liable to the plaintiff in the sum of $50,000 paid to the architects.

Only the plaintiff gave evidence at the trial of this matter, stating that he had been the Managing Director of the defendant since 1998 and he still holds that position.

On 29 January 2010, the defendant's Board had proposed, and agreed, that they should negotiate terms of payment of the architects' fees for work done. The architects had performed work for the defendant and submitted a claim for the payment of their fees.

Prior to that, the architects had drawn plans for the development of the hospital which was called the second phase.

A contract had been signed in 2005 between the hospital and the architects with the former being represented by himself. He made reference to pages 66 to 69 of exhibit 1, being the agreement in question, stating that it was signed by himself in his capacity then as Executive Chairman and countersigned by the defendant's Administrator.

The plaintiff maintained that he had the authority of the Board which he worked with then, to enter into the agreement, and, as such, the agreement was binding on the defendant which however did not pay the fees of the architects even though a demand for payment was initially made in 2006, re-submitted in 2009, and, finally, in 2010.

Prior to making payment on behalf of the defendant, he had been specifically mandated, by the Board, to negotiate with potential investors for the funding of the project. He had brought in Banc ABC which was willing to invest $7.5 million and Mbizvo Group which was willing to invest $15 million into the project. Content with the funding arrangement, the plaintiff said he had incorporated the architects' fees in the funding. He then paid $50,000 to the architects satisfied that he could recoup his money in due course.

The payment was made in order to create a good atmosphere for negotiation with the architects.

The plaintiff referred to letters written by the architects between 30 May 2011 and 18 July 2011…, in which the architects were acknowledging payment of the various sums allegedly made by the defendant to them.

The letters themselves are drafted the same way except for the figure acknowledged. The plaintiff did not explain why no receipt, in the usual manner, was issued. It was suggested to him, under cross-examination, that the letters were manufactured to justify his claim and he did not give a meaningful response.

The plaintiff stated that he had paid the money to the Administrator of the defendant, Mr Makamure, who, alone with the accountant, Mr Tembo, effected payment to the architects.

He pointed out that there was no formal Board meeting to authorize the payment and there was evidence that some Board members did not want payments to be made to the architects while others favoured payment.

There was no formal instruction given to him to effect that payment.

He however sought legal advice from Mr Mabulala, who was also a Board member. Before Mr Mabulala's advice came, in the form of a letter dated 13 June 2011..., the plaintiff went ahead and started paying instalments to the architects, the first one of $3,500 being made on 30 May 2011. When the letter from Mabulala & Motsi legal practitioners finally came it not only endorsed that payment was a fait accompli, it also counselled caution. It reads:

“RE: ARCHTECTS

I refer to your note to me dated 9th June 2011 and the letter from Kantor and Immerman dated 8th June 2011. It seems to me that you have already committed yourself, personally, to paying the architects' fees, and, any opinion from me would be of academic interest. The question which remains is whether or not you can, and did, lawfully commit the hospital as well. I hope the Board and the shareholders are fully informed of these latest developments.”

From the correspondence that had been refereed to Mr Mabulala, it is apparent that the plaintiff had already offered to pay $50,000 to the architects in “tranches” and had already agreed with them that he would sign a Deed of “surety, acknowledgement and undertaking” in respect of the full extent of their claim of $1,303,783 in respect of their fee note dated 3 August 2010…,.

The plaintiff says he then convened a meeting of the Board, in September 2011, intending to regularise what he had done without Board approval.

Unfortunately, on 21 September 2011, he says he was locked out of his office at the hospital and was prevented from going in by armed guards. He has never had access to the office since then and his efforts to reclaim his position and the office, subsequent to that, have hit a brick wall.

He approached this court, in HC9630/11, for spoliatory relief but was turned down. The judgement in that matter, delivered by MUTEMA J is HH221-11, and, at p3 of it, the court made the following findings:

“Applicant alleges (he) was despoiled of the office as well as his personal belongings lodged therein which he uses for his private life and business. Respondents have offered that applicant is at liberty, at his earliest convenience, to come and collect his personal items. I have no reason to doubt the sincerity of that offer.

However, as regards the office, that is a different kettle of fish.

While applicant alleges spoliation, respondents' papers clearly show that it is him who is the spoliator. He had been away for some 8 months and Saungweme was in lawful and undisturbed possession of that office. He was denied occupation of the office but he locked it to the exclusion of everyone except himself. This, despite the exitant dispute between the parties, amounts on the applicant's part, to self-held.

I did not hear applicant to dispute respondents' version either on paper or in oral submissions, of how he ended up re-occupying the office. He therefore cannot come to court with clean hands. He is the spoliator. To allow him audience would be tantamount to sanctioning unlawfulness.”

He says that if the meeting took place he does not know what transpired as he was unable to attend.

What is even more important is the fact that he was unable to “regularize” his payments made to the architects without approval - meaning that the plaintiff's payments remained unsanctioned.

The plaintiff testified that he paid the architects, on behalf of the defendant, because it was necessary to maintain the integrity and good name of the institution.

He did not have vouchers to show that payment was indeed made through the defendant.

Although he did not have direct and formal authority to effect the payment, he had indirect authority emanating from the fact that the Board had tasked him to raise funds for the project.

It did not specify the source of those funds which then left him at liberty, as the Managing Director at the time, to pay from his pocket. In any event, loans from shareholders (he is a major shareholder) have been given to the institution in the past.

Under cross examination, it became apparent that the plaintiff was not the Managing Director at the time that he made instalment payments of the $50,000 to the architects - Dr Saungweme was. According to the minutes of a Board meeting held on 10 May 2011…, the plaintiff was trying to force his way back in that position. The minutes state, at paragraph 4.2:

“Dr P. Zvandasara

Dr Zvandasara came into the boardroom and advised the Board that he had notified the Board chair person that he was now back at the hospital as the Managing Director. He went on to say that he had taken legal action against some Board members who had accused him of stealing hospital funds.”

That state of affairs was also captured in the minutes of a Shareholders meeting held on 25 May 2011 during which the plaintiff notified the gathering that he was coming back as Managing Director (MD) because some people had accused him of being a thief. At paragraphs 5 and 6, the minutes state:

“He (the plaintiff) went on to declare that whether the members approved or not, he was now the one running the activities of the institution as the MD. He said that he could no longer work with the shareholders and proposed that we proceed with a separation either through him buying the other shareholders out or vice versa.

The shareholders noted, with concern, the developments that had taken place.

They advised Dr Zvandasara that the current recognised MD for the institution is Dr Saungweme; the position remained that Dr Saungweme had been appointed by the Board as the MD with effect from August 2010. This motion was put to the vote and was unanimously endorsed.”

It also became apparent that the defendant had contested the validity of the agreement for architectural services throughout, and, when they raised a fee note for those services, in the sum of $1,071,999=05, on 3 August 2010, about the same time that the plaintiff ceased to become Managing Director (MD), the defendant disputed liability.

It is a matter of record that in HC2893/12 the architects sued the defendant for the amount set out in the fee note, without deducting the $50,000 allegedly paid by the plaintiff, suggesting they did not recognise any payment. That claim was dismissed by this court, per DUBE J, by judgement delivered on 18 February 2015 (HH161-15).

In that matter, the plaintiff was called as a witness by the architects and stated that:

“He paid $50,000 from his own pocket after the defendant had refused to settle the fee note.”

My attention was also drawn to a summons and declaration in HC9444/11…, in which the plaintiff had sued the defendant for payment of the same amount of $50,000 through Mambosasa legal practitioners of Harare. In paragraph 7 of the declaration he had averred;

“The defendant failed, refused and/or neglected to pay the amount due to the architects in its entirety alleging, inter alia, that the plaintiff had no authority to contract with the architects resulting in the plaintiff feeling compelled to repay part of the debt from his personal sources.”

The totality of the evidence shows, clearly, that, at the time that the plaintiff took it upon himself to pay $50,000 of the claim made by the architects he had no authority of the defendant to make that payment and the defendant was already contesting the claim.

The plaintiff was aware of the defendant's position in that regard but decided to take a calculated risk and pay the money all the same. He said that he did so because he could not renege on the promise he had given to the architects that payment would be made.

At the end of evidence for the plaintiff, counsel for the defendant made an application for absolution from the instance on the basis that no evidence had been led upon which the court may find in favour of the plaintiff. He submitted that the evidence has not shown any contract between the parties in terms of which the money was paid. In any case, the claim, as pleaded, is not based on contract.

In addition, the claim is not based on unjust enrichment either because it was not pleaded.

Counsel for the defendant submitted that the plaintiff's counsel could not possibly introduce the claim for unjust enrichment in his opening address when it has not been pleaded....,.

As to whether unjust enrichment was pleaded, counsel for the plaintiff suggested that it should be implied from paragraph 8 of the declaration which I have already quoted above.

Surely, that averment cannot, by any stretch of the imagination, be taken as pleading unjust enrichment.

What counsel is asking me to do is to stretch the imagination to elasticity limit.

The plaintiff merely averred, that, by paying to the architects, the plaintiff became the defendant's creditor and not that the defendant was unjustly enriched by such payment. As to how the debtor-creditor relationship so alleged germinated from those circumstances we are not told.

The essence of any claim is to be found in the pleadings.

It is the function of pleadings to inform the parties of the points of issue between them to enable them to know, in advance, what case they have to meet, to assist the court to define the limits of the action, and to place the issues on record: Matewa v Zimbabwe Electricity Transmission and Distribution Company (ZETDC) HH04-13...,; see also BECK's Theory and Principles of Civil Actions, 5th ed..., and Chifamba v Mutasa & Ors HH16-08.

Where a litigant has pleaded a particular cause of action, the opponent is entitled to rely on that pleading in order to prepare for court and put together evidence which it has in order to meet the claim at the trial.

This is because the pleading exists for the purpose, first and foremost, of informing the other party of the precise nature of the claim they have to meet. The party pleading in that way, and therefore informing the other of the claim, cannot be allowed to twist and turn and infer averments that have not been pleaded. Allowing that would not only embarrass the other party but also prejudice that party.

In an application for absolution, the test to be applied was set out by GUBBAY CJ in United Air Charterers v Jarman 1994 (2) ZLR 341 (S)..., as:

“The test in deciding an application for absolution from the instance is well settled in this jurisdiction.

A plaintiff will successfully withstand such an application if, at the close of his case, there is evidence upon which a court directing its mind reasonably to such evidence, could or might (not should or ought to) find for him; see Supreme Service Station (1969) (Pvt) Ltd v Fox & Goodridge (Pvt) Ltd 1971 (1) RLR (A) at 5D–E; Lourenco v Raja Dry Cleaners & Steam Laundry (Pvt) Ltd 1984 (2) ZLR 151 (S) at 158B–E.”

In Supreme Service Station (1969) (Pvt) Ltd v Fox & Goodridge (Pvt) Ltd 1971 (1) RLR (A)..., BEADLE CJ said of that test:

“The test boils down to this: Is there sufficient evidence on which a court might make a reasonable mistake and give judgment for the plaintiff?

What is a reasonable mistake in any case must always be a question of fact, and cannot be defined with any greater exactitude than by saying that it is the sort of mistake a reasonable court might make – a definition which helps not at all.”

See also Quintessence Co-ordinators (Pty) Ltd v Government of the Republic of Transkei 1993 (3) SA T84 (TK) 85B–D; Standard Chartered Finance Zimbabwe Ltd v Georgious & Anor 1998 (2) ZLR 547 (H) 55 2 G–H; Modcraft Engineering (Pvt) Ltd v Tenda Buses (Pvt) Ltd 207-13; Katsande v Welt Huinger Hilfer & Anor HH396-13.

It is true that if the defence is something peculiarly within the knowledge of a defendant and the plaintiff has made out some case to answer, the plaintiff would not be lightly deprived of his remedy without first hearing what the defendant has to say, and such a defendant should not be allowed to shelter behind the procedure of absolution from the instance merely because he is afraid to go into the witness box; Supreme Service Station (1969) (Pvt) Ltd v Fox & Goodridge (Pvt) Ltd 1971 (1) RLR (A)...,; Munhuwa v Mhukahuru Bus Service 1994 (2) ZLR 382 (H)...,.

Right from the commencement of the trial, the plaintiff premised his claim on unjust enrichment. That is what counsel for the plaintiff said in his opening address. He did not, however, see any wisdom in amending the declaration to ground the claim on unjust enrichment, electing, instead, to leave it to the court to infer such a claim.

What remains at this stage, however, is that there is no claim based on unjust enrichment.

HH520-18 : AIR NAMIBIA (PROPRIETARY) LTD vs CHENJERAI MAWUMBA and JULIANA MAGOMBEDZE and FADZAI MAWUMBA and RUTENDO MUWUMBA and TADIWANASHE MAWUMBA (minors represented by father & natural guardian)
Ruled By: CHITAPI J

A legal practitioner should identify the issue, or issues, for determination and focus on them.

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

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

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

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

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

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

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

The action is defended.

The plaintiff's claim is couched as follows:

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

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

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

The exception is premised on the following grounds:

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

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

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

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

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

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

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

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

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

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

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

The court proceeded to hear the matter on the merits.

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

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

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

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

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

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

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

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

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

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

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

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

The reason behind Rule 11(c) is to ensure that a summons be a document that clearly and concisely sets out the facts that the plaintiff relies on which establish a cause at law for which specific relief can be sought. Compliance with the requirement would create or bring out a case to which the defendant is able to answer. It must be clear, to the defendant, what it is he is alleged to have done giving rise to the plaintiff, at law, to claim the relief sought.

Rule 99(c) of the High Court Rules, although not referred to by the defendant, comes to play. It states that;

“A pleading shall -

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

There has to be a summary of allegations of fact which, in law, give rise to a claim or justify the relief sought.

In casu, facts in the summons and declaration are so mixed up so as to cloud the case to which the defendant has to answer. In essence, they are vague and embarrassing so as to go to the root of the claim.

The court further agrees with the defendant's submissions that it is not clear under which branch of law the plaintiff is suing.

Be it in delict or contract, the plaintiff has failed to satisfy the elements that sustain a claim under either of the branches.

In purporting to claim delictual damages, the plaintiff's declaration reads as follows:

“(i) There was damage of mental suffering directly arising out of the magistrate's ruling to the plaintiff which is actionable under negligence law.

The plaintiff bases this averment on what he considers to be failure by the defendant to recruit a competent magistrate.”

The issue is: there is no cause of action like 'damage of mental suffering'.

Even if one can sue for mental distress, the facts alleged do not support liability.

The plaintiff appealed against the judgment granted in the Magistrates' Court.

Further, one cannot sue a magistrate for damages when he/she is acting in their professional capacity for mis-interpreting the law or the facts, hence the appeal and review processes.

Of note is the fact that the defendant in this matter is the Secretary–Judicial Service Commission; apart from not being the employer of Ms Dzikiti, the alleged magistrate (the employer being the Judicial Service Commission) the sitting magistrate herself was not cited.

Most important, as the defendant is not an employer in the circumstances no vicarious liability can attach to her.

The contractual claim is stated as follows:

“The plaintiff is suing in contract because the plaintiff paid court fees being in consideration for a competent (a fit and proper ruling).”

The question is; in paying for court fees, did the plaintiff enter into a contract with the sitting magistrate?

This is not so, as court fees are meant for processing of papers and never for the judgment.

In Ebrahim v Controller of Customs and Excise 1984 (1) ZLR 41 (HC) McNALLY J…, considered, at length, the meaning of 'cause of action' as defined by scholars and in certain judgments. As a result, the accorded meaning in that case was stated as:

“The entire set of facts which give rise to an enforceable claim, this includes every fact which is material to be proved to entitle a plaintiff to succeed in his claim.”

My understanding is that the plaintiff has to specifically plead material facts that entitle him to relief under the specific branch of the law.

This, the plaintiff has failed to do.

From the pleadings, no material facts have been averred to sustain a claim for damages under delict or the law of contract.

Notably, the plaintiff had not made the claims in the alternative; he sought to rely on both causes of action for the same relief. As demonstrated, none of the claims could hold.

In HERBSTEIN and Van WINSEN, Civil Practice of the High Courts of South Africa, 5th ed, Vol 1…, the learned authors clearly deal with the purpose of an exception:

“The aim of the exception procedure is thus to avoid the leading of unnecessary evidence and to dispose of a case, in whole or in part, in an expeditious and cost-effective manner. Thus, pleadings whose contents are so vague and it is impossible to determine the nature of the claim or the defence and pleadings which are bad in law in that their contents do not support any legally recognised cause of action or defence are struck out.”

Certainly, the plaintiff's claim does not disclose a legally recognised cause of action: the facts pleaded do not inform the defence in concise terms the claim the defendant has to answer to. The summons and declaration are fatally defective - the pleadings are incurably bad.

The claim can therefore not stand.

In the premises, the exception has to be upheld; this being the expeditious and cost effective way of disposing the case without putting the defendant to unnecessary expense.

Where an exception is upheld, the court is at liberty to grant the affected party an opportunity to amend its pleadings. This, in the case of a plaintiff, could be in the form of leave to amend the particulars of claim, if so advised, within a specified period of time as the court may determine.

As alluded to earlier, the plaintiff had filed a notice of amendment.

A reading of the proposed amendment shows that the contents are argumentative and consist of historical and evidentiary facts not necessary in a pleading. In essence, the summons and declaration, and the proposed amendments, consist of pleadings which are incurably bad - nothing can be salvaged. This, coupled by the fact that the party sued is the wrong party, the defendant not being the employer, and there being no direct legal relationship between the parties, granting the plaintiff leave to amend his pleadings is a futile exercise.

In such an instance, the court has no option but to order dismissal of the plaintiff's claim....,.

1. The defendant's exception is upheld.

2. The plaintiff's claim is dismissed with costs on a legal practitioner and client scale.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

It is dismissed.

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

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

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

Secondly, the applicants, in their notice of application, state that the application is made in terms of Order 30 of the High Court Rules, 1971.

Order 30 provides for interpleader applications. The facts in this application have nothing to do with an interpleader – absolutely.

HH13-09 : BORDER TIMBERS LIMITED vs ZIMBABWE REVENUE AUTHORITY
Ruled By: MAKARAU JP

The plaintiff filed a delictual claim against the defendant, seeking damages in the sum of US$709,948.It was specifically alleged in the plaintiff's declaration that the defendant wrongfully and unlawfully sought to levy import duty on certain resin imported by the plaintiff for its manufacturing processes using an incorrect tariff, causing ...

The plaintiff filed a delictual claim against the defendant, seeking damages in the sum of US$709,948.

It was specifically alleged in the plaintiff's declaration that the defendant wrongfully and unlawfully sought to levy import duty on certain resin imported by the plaintiff for its manufacturing processes using an incorrect tariff, causing the plaintiff to litigate on the matter. By the time the litigation was resolved, in favour of the plaintiff, the imported resin, which remained uncleared for customs purposes, had become moribund and useless to the importer, thereby causing the total loss that was claimed in the summons under various heads…,.

The claim was defended primarily on the basis, that, in seeking to levy duty on a higher tariff than previously levied, the defendant was not acting with malice and that its actions were not wrongful and unlawful to ground an action in delict. Further, it was denied that the containers of the imported resin were presented to the defendant for the purposes of customs clearance.

The facts giving rise to the suit between the parties are largely common cause.

The plaintiff is an established public company, specializing in the production and manufacture of timber and timber products. It is listed on the local bourse. As part of its manufacturing processes, it uses a certain resin (hereinafter referred to as “the chemical”), that is imported into the country and import duty paid.

Over a period of about ten years, the plaintiff imported this resin at a steady 5% duty payable to the defendant.

In or about February 2005, the plaintiff received four containers of the imported chemical. When it presented the chemicals to the defendant for clearance, duty was levied not on the usual and expected 5% but at 25%.

The plaintiff approached this court for adjudication on the correct level of duty payable and its contentions were upheld. The defendant immediately noted an appeal against the decision of this court. In the meanwhile, the parties reached an agreement that the four containers be released upon the plaintiff paying a deposit against the required duty.

Again, in the meanwhile, in May 2005, the plaintiff imported into the country ten other containers of the chemical while the legal wrangle was still on. There is a dispute as to whether these ten containers were presented for customs clearance or not….,.

On 7 April 2006, the Supreme Court handed down its judgment, upholding the High Court judgment and vindicating the plaintiff's stance.

In June 2006, the ten containers of the chemical were cleared by the defendant at 5% duty. It was then discovered that the chemical had become moribund and valueless to the importer.

On 27 September 2006, the plaintiff issued summons against the defendant as detailed above.

In the summons, the plaintiff claimed the sum of US$285,123=76 as the replacement value of the chemical that went moribund; US$20,016=44 as the value of orders that were lost as a result of the plaintiff's failure to use the moribund chemical; and the sum of US$404,807=80 as damages for lost business.

At the trial of the matter, three issues had to be resolved by evidence. These were;

(i) Firstly, whether the order issued by this court also covered the ten containers, the subject of this dispute; and

(ii) Secondly, whether the ten containers were presented to the defendant for duty purposes;

(iii) Thirdly, in issue was the quantum of damages that the plaintiff would be entitled to in the event that the defendant was found liable.

In support of its case, the plaintiff led evidence, firstly, from one Joseph Chikwana. He was the plaintiff's Purchasing Manager at the time the dispute arose.

His testimony was largely to reiterate the facts that are common cause in this dispute concerning the first four containers of the chemical. Regarding the ten containers forming the subject of this suit, he testified as follows:

These were imported about six months after the first four and in respect of which the parties were before this court, locked in litigation over the correct tariff to be used for calculating duty. The ten containers came through Beira, and, when they arrived in Mutare, the plaintiff sought to have them cleared. The plaintiff did not submit any documents to the defendant as there was a pending case between the parties. The containers were placed in a bonded warehouse.

When the customs clearance agent came back with the news of the stalemate between the parties, the witness personally visited the defendant's office and was attended to by a Mr Chamboko and a lady officer who was assisting Mr Chamboko. The discussions referred to the pending case and the parties felt that they could not move from that position due to the pending litigation. The defendant demanded duty at the higher rate which the plaintiff was not in a position to pay at the time.

The witness was involved in the formulation of the claims that the plaintiff finally brought against the defendant.

He explained that the claim for $22 billion was the fees that the plaintiff paid to the agent to have the containers released.

During the period of the dispute, the plaintiff had pending orders from its overseas customers. Because of the time it took to resolve the issue, the plaintiff was unable to meet the orders, resulting in the orders being cancelled. The value of the lost orders was captured in a spread sheet that the plaintiff's Finance Department generated. The spread sheet was adduced into evidence. The value of the lost orders was in the sum of US$74,134=97.

Using a profit margin of 27%, the plaintiff claimed damages in the sum of US$20,016=44 under this head.

The chemicals expired whilst they were in the containers and awaiting clearance. The value of replacing the chemical was in the sum of US$285,123=76.

During the time that the parties were locked in the dispute, the plaintiff could not produce most of its products and thus lost business due to the unavailability of its products. It calculated this loss at US$404,807=80. Another spread sheet was adduced into evidence, through the witness, showing the plaintiff's calculation of the lost business.

The plaintiff tried to mitigate its damages by borrowing glue from other timber processing companies.

When the judgment of the High Court became available, in November 2005, the witness took the judgment to the defendant, seeking release of the ten containers. He was informed that the defendant would appeal against the judgment - which they did.

Pending determination of the appeal, the plaintiff again approached the defendant for the release of the containers. The approach was not successful leading the plaintiff to approach this court on a certificate of urgency. No judgment was handed down in the matter which was heard on 8 December 2005.

In my view, the witness is an articulate and confident man who fared well under cross examination. He was forthright in his answers to questions put to him under cross-examination and readily admitted to some of the shortcomings in the assumptions that had been used in calculating the damages claimed by the plaintiff. While I found the witness unnecessarily verbose in his responses, I have no reason to disbelieve his evidence.

The second witness to testify on the plaintiff's behalf was one Prince Nyemba. At the time, he was the plaintiff's Finance Director. He joined the plaintiff's employment in August 2006 and was not yet with the plaintiff in May 2005 when the events forming the subject of this trial were unfolding. The plaintiff naturally keeps records of its transactions and the witness had access to these.

The witness then testified as to what the plaintiff's records revealed its loss to be as a result of the delay in having the glue released to it by the defendant.

Under cross-examination, the witness admitted that the claims by the plaintiff had been calculated without taking into account certain exigencies and variables such as changing exchange rates and fluctuating costs of production.

Due to the fact that the witness was not an employee of the plaintiff at the relevant time, and also due to the concessions that he made under cross examination, that the plaintiff's claim was aggressively if not inaccurately calculated, I shall place marginal probative value on his testimony and will only rely on it where it is corroborated by other reliable evidence.

After the testimony of this witness, the plaintiff closed its case.

The defendant opened its case by calling one Clements Kwenda. He is employed by the defendant as a team Leader at Forbes Border Post, having joined the then Department of Customs and Excise in 1990.

The witness detailed the procedures that an importer of goods into the country has to observe before his or her goods can be cleared. Regarding the claim before the court, he testified as follows:

The plaintiff imported two separate lots of chemicals. Firstly, it imported four containers of the chemicals. An entry for the four was submitted to the defendant. A dispute arose as the defendant called for duty at a rate higher than the plaintiff was offering. The matter was then referred to the courts. At a later stage, and while the matter was pending before the court, the plaintiff paid a deposit for the release of the four containers.

As at 25 February 2005, the plaintiff was aware that it could have the ten containers released upon payment of a deposit.

In respect of the ten containers, Bills of Entry for the ten were submitted to the defendant on 29 June 2006. The containers were all cleared on the same date. Prior to this, he was unaware of any letter that the plaintiff had written to the defendant seeking the release of the ten containers. He was aware that a letter had been addressed to the defendant's Harare office though he had not seen it.

Under cross-examination, the witness could not dispute, that, for the previous eleven years the plaintiff had imported the chemical at 5% duty. In his opinion, the officer who inspected the goods and asked for duty at a higher rate was simply doing his work and did not err. He did not agree that the departure from the classification that had been used for the past eleven years had been done with an improper motive.

The witness gave his evidence well. I find that most of his testimony was on facts that are common cause. He was clear as to what transpired between the parties although his attempt to draw a distinction between the Harare and the Mutare offices of the defendant was without basis. On the main, I will rely on the testimony of this witness.

The defendant called the testimony of one Clifford Mubaiwa Chamboko next. He is the man in charge of the defendant's offices in Mutare.

On 17 February 2005, a meeting was held in his office pertaining to the clearance of the four containers. The plaintiff's first witness and the clearing agent were in attendance. The tariff dispute between the parties was discussed.

At no stage did the defendant refuse to accept the entry relating to the ten containers. There was no meeting between the parties regarding the ten containers.

Under cross-examination, the witness maintained that the defendant was justified in re-classifying the imported chemicals. He pointed out that the classification of imports is a complex matter and that for that matter, errors would occur.

The witness gave his evidence in a very measured way; so measured was he, that, at times, he appeared slow. Despite this, I have no reason to disbelieve his evidence as, in my view, there are few material disputes of facts in this matter.

After the testimony of this witness, the defendant closed its case.

At the pre–trial conference of the matter, eight issues were identified for trial as follows:

1. Whether the declarator issued by the Honourable Justice Hungwe, under case no HC838/05, covered the four containers or the ten containers, which are the subject matter of this dispute;

2. Whether the containers were declared for duty purposes;

3. What is the procedure to be followed by an importer of goods in circumstances where there is a dispute in relation to a consignment that has been declared for duty purposes;

4. Whether, in the absence of compliance with such procedure, any liability attaches to the defendant;

5. Whether the defendant is liable to the plaintiff in respect of contents (that) became moribund as well as the customs clearance, storage charges and demurrage charges associated with the containers;

6. Whether the defendant is liable to the plaintiff for special damages in respect of cancelled orders and lost business;

7. In respect of all damages, the quantum of damages that may be awarded to the plaintiff, if any; and

8. What order is to be made as regards costs.

In my view, the issue that falls for determination in this trial, in the main, is whether or not the defendant's conduct was culpable under the lex Aquilia. If so, what damages did the plaintiff suffer?

I narrow down the issues in this manner as, in my view, resolution of issues one to four, as settled at the pre-trial conference, will not resolve the dispute between the parties.

Having listened to the evidence of the parties, it appears clear to me that while the declarator by HUNGWE J specifically dealt with the four containers in respect of which a dispute had been formally declared, his ruling, and that of the Supreme Court on the matter would bind the parties in the importation of similar chemicals and would thus have a direct bearing on the importation of the ten containers.

I also note that while the ten containers may not have been formally presented to the defendant for clearance, the parties were locked in a dispute over the four containers in respect of the duty payable, and, on a practical note, the defendant was most unlikely to accept duty at the lower tariff pending determination of the litigation that was then unfolding between the parties.

The parties are all familiar with the procedures that have to be observed in relation to the importation of products and an answer to this question will, in my view, not bring us nearer to the resolution of the matter than we were when we started off.

I further form the view that the plaintiff has not approached this court because the defendant allegedly did not clear the ten containers of the chemical. The dispute between the parties relates to the defendant's insistence on the incorrect rate of duty after the High Court ruling, and, the issue that arises, in my view, is whether such insistence, including the unsuccessful approach to the Supreme Court on the issue is culpable and renders the defendant liable to the plaintiff in delict.

I now return to the issues as I see them.

In my view, the plaintiff's claim could have been pleaded with greater clarity to reveal the plaintiff's cause of action against the defendant. I must confess, that, I am at a loss as to the cause of action that the plaintiff is raising against the defendant. I had hoped that the cause of action would become clear with the leading of evidence and the final submissions by counsel in the matter.

Unfortunately, it has not...,.,

The plaintiff has pleaded, in its declaration, that the defendant acted wrongfully against the plaintiff, leading to the plaintiff incurring certain losses.

Reading through the plaintiff's declaration, I discern three possible actions by the defendant that the plaintiff appears to be terming “wrongful”:

(i) Firstly, the plaintiff alleges, in paragraph 4 of the declaration, that the defendant acted wrongfully and unlawfully when it demanded duty for the first four containers at 25%.

(ii) Secondly, it is alleged, in paragraph 6, that the defendant acted wrongfully and unlawfully and with malice when it noted an appeal against the decision of this court.

(iii) Finally, the plaintiff alleges, in paragraph 7, that the defendant acted wrongfully by refusing to clear the ten containers on duty other than the erroneously calculated 25%.

As pleaded above, the plaintiff alleges wrongful action leading to an economic loss without grounding its claim in the lex Aquilia that requires a mental element in the form of negligence or dolus before liability can be founded.

It is my understanding of our law of delict that actions under the lex Aquilia are meant to compensate the plaintiff for the damages occasioned to him or her by the wrongful act attributable to the defendant's fault. Thus, for a successful prosecution of a claim under the action, a plaintiff must prove a wrongful act by the defendant, patrimonial or economic loss, and fault on the part of the defendant.

It is common cause that the plaintiff has not pleaded that the defendant acted negligently in the circumstances of this matter. No particulars of the negligence are pleaded. The plaintiff has not specifically pleaded that the defendant acted intentionally and that it intended to cause loss to the plaintiff by its actions.

It is trite, in my view, that in an action founded on the lex Aquilia, the mental element status of the defendant must be specifically pleaded so that the defendant knows the case that it has to meet. Lack of such particularity, in my view, is fatal to the plaintiff's claim as it does not disclose the plaintiff's cause of action.

On this basis alone, I would absolve the defendant from the instance.

However, I am somewhat handicapped by two events that did not occur in this matter:

(i) Firstly, the defendant did not except to the plaintiff's pleadings for the cause of action to be crystallized before the defendant pleaded thereto.

(ii) Secondly, the matter proceeded through a pre-trial conference where the parties appeared to have been agreed that what was being pleaded was the lex Aquilia and the real issue for determination was whether the defendant was liable to the plaintiff for the pure economic loss that resulted from the defendant's actions.

SC40-15 : INDIUM INVESTMENTS (PVT) LTD vs KINGSHAVEN (PVT) LTD and DANIEL SHUMBA and LINDA SHUMBA
Ruled By: CHIDYAUSIKU CJ, GWAUNZA JA, GOWORA JA, HLATSHWAYO JA and MAVANGIRA AJA

On 28 February 2008, under case no. HC1239/08, the appellant caused summons to be issued against the respondents seeking an order for the cancellation of a lease, and, consequent thereto, the eviction of the respondents from the leased premises.

On 10 December 2008, a second summons was issued by the appellant under case no.6969/08 wherein it sought the eviction of the respondents due to the expiry of the lease.

The High Court dismissed the claims with costs.

The appellant was aggrieved by the dismissal and has noted this appeal....,.

The basic facts surrounding the dispute are the following:

The appellant (hereinafter referred to as “Indium”) is the registered owner of certain immovable property, being Stand 450 Avondale West Township of Stand 390 Avondale West, also known as 108 West Road, Strathaven, Harare, (hereinafter referred to as “the premises”). The first respondent (hereinafter referred to as “Kingshaven”) is a private company registered as such under the laws of Zimbabwe. The second respondent (hereinafter referred to as “Shumba” and the third respondent, his wife, are the only shareholders of and directors in Kingshaven.

Kingshaven carries on business in the hospitality sector and is in occupation of the premises by virtue of a lease concluded on 14 December 2007 with Indium. Notwithstanding the date of signing, the agreement was to come into force on 10 December 2007 and was to endure for a period of 365 days, terminating automatically on 9 December 2008.

Shumba and his wife are shareholders in a Close Corporation, ERF Bryanstan Cc, which is duly registered as such under the laws of South Africa.

ERF Bryanstan is the registered owner of an immovable property, being Portion 2 of ERF 825 Bryanstan Township also known as 17 Portman Road, Bryanstan Sandton, Johannesburg.

In 2007, ABSA Bank, in whose favour ERF Bryanstan had registered a mortgage against the property, called up the mortgage and executed against the same.

In an effort to save the property, Shumba approached Jayesh Shah (hereinafter referred to as “Shah”) for financial assistance, and this culminated in a number of agreements.

The first agreement consists of a loan between Shah, on the one part, as lender, and Shumba and ERF Bryanstan Cc, on the other, as borrowers. The loan amount is UD$500,000.

The second agreement is for the sale of the entire shareholding in Indium concluded by Shumba and his wife, on the one part, as sellers, and Jayesh Shah and Shaleetha Mahabeer, on the other, as purchasers.

The last agreement is the lease agreement concluded between Indium, as lessor, and Kingshaven, as lessee on 14 December 2007.

The two matters instituted by Indium were, by consent of the parties, consolidated for trial before the High Court.

In dismissing the claims, the court a quo stated:

“He intended to secure a windfall by all means legally possible. His legal practitioner advised a web of agreements to ensure he remained within the realms of the law. A loan here, a purchase of shares there and a lease with a buy-back option to crown it all, was all it took to secure apparent control of the debtor's immovable property in Zimbabwe without any reference to its true value.

Clearly, whatever the parties decided to call it, the agreement to take over control of the plaintiff company from Shumba, without paying for it, amounted, in my view, to a pactum commissorium.

It is the substance, not the form, to which the court looks when deciding the true nature of an agreement.

Consequently, therefore, the second issue, whether annexure “C” amounts to a pactum commissorium is determined in defendants' favour.

I have already found that the payment, in South Africa, by Shah, was intended as a loan, as pleaded by plaintiff; therefore, there is no evidence to suggest that the same payment doubled as payment for shares in Indium Investments (Private) Limited.

That issue is resolved in favour of the defendants as well.

The transactions were clearly in fraudum legis. The law in this jurisdiction is clear. Where the contract which is in fraudum legis is performed, the court cannot come to either party's assistance.”

The appeal is premised on the following grounds:

1. That, the court a quo erred in not finding, that, in the absence of a plea for rectification of a contract, the parole evidence rule operates to exclude extrinsic evidence to disprove the contents of a written contract. (sic)

2. The court a quo erred in not finding, that, returns lodged with the Registrar of Companies are prima facie proof of the correctness thereof, and the same cannot be impugned without the joinder of the Registrar of Companies.

3. Consequently, and for the stronger reason in view of grounds of appeal 1 and 2 above, the court a quo erred in holding that the respondents had discharged the onus of justifying possession of the appellant's property within the context of the actio rei vindicatio.

4. The court a quo erred in fact and in law in holding that the agreements in question were simulated agreements which “mimicked” the South African agreements.

5. The court a quo erred in any event in holding, that, the agreements the subject of the litigation were in fraudem legis in that they sought to evade the exchange control legislation, in view of the fact that free funds were paid to the credit of a South African resident, and in not finding, that, the fact that such South African resident was a citizen of Zimbabwe and did not give rise to the need for exchange control approval.(sic)

6. The court a quo erred in fact and in law in holding, that, the agreements the subject of the litigation a quo were a pactum commissorium.

Counsel for the appellant urged us to find, that, the learned judge in the court a quo had not dealt with the case that was placed before him.

It was his contention, that, the matter before the court was principally for the cancellation of the lease agreement between Indium and Kingshaven and consequential relief. He argued that it was essentially a rei vindicatio.

What the court a quo did, however, it is argued, was to turn its focus on a completely different issue which it could not competently determine and made findings which cannot be supported.

It is contended, that, the court thereby misdirected itself.

In my view, the dispute can be resolved by this court having regard to the manner in which the court a quo dealt with what it referred to as the simulated agreements, and, secondly, dealing with the actio rei vindicatio in accordance with the claims in the summons....,.

In answer to the claim for the eviction of Kingshaven from the premises, the respondents raised various defences, namely, that Shumba and his wife had borrowed a specified sum of money from Shah, and that, as security for their due performance thereon, the latter had demanded security in Zimbabwe in the form of shares in Indium. They pleaded, further, that the parties entered into a simulated agreement for the sale of shares in Indium which ultimately resulted in the lease agreement providing for a buy-back option in favour of Shumba and his wife.

There is no suggestion on the papers that Indium participated in any of the agreements except the lease.

It then begs the question which parties the court a quo referred to when it concluded that the agreements were fraudum legis.

It is common cause, that, the loan agreement was between ERF 825 Bryanston Cc, in which Shumba and his wife owned shares, and Shah.

ERF Byanston Cc was not cited as a party to the proceedings before the court a quo.

Shah only appeared in the proceedings in the court a quo as a witness on behalf of Indium.

In the circumstances, the court could not have properly considered the loan agreement, or its legality, in the absence of the parties thereto.

I turn next to the “share sale” agreement in relation to the shares in Indium.

The parties to the sale of the shares were, on the one part, Shumba and his wife, as sellers, and, on the other part, Jayesh Shah and Shaleetha Mahabeer.

The last two were never before the court as parties and the agreement for the sale of shares could therefore not be scrutinised to any extent by a court in their absence.

Consequently, the determination by the court of the issues related to the lease agreement concluded by Indium and all the respondents in reference to the share sale agreement was highly irregular.

It follows, therefore, that, any issues referred to the trial court for determination in relation thereto would be irregular. It is therefore logical to conclude that the court a quo dealt with matters and issues that were not before it.

This leaves Indium, Kingshaven, Shumba and his wife.

They were parties to a document, being the lease agreement, which is the only document properly before the court.

Those were the parties that were before the court, and, therefore, the only dispute for determination was that arising from the lease agreement in respect of which the court had to determine the respective rights and obligations of the parties before it.

In the absence of a counter-claim for declarations of invalidity in respect of the agreements discussed above, the court could not grant relief to the effect that the agreements were invalid. At best, it was argued, the court ought to have granted absolution from the instance.

I think the criticism is well taken.

At p8 of the cyclostyled judgment, the learned judge in the court a quo stated:

“In my view of the facts, the defendants have adduced sufficient evidence to rebut the presumption of legality of the transactions described above. Generally, one of the most common forms of tax avoidance is where the parties to a contract attempt to disguise its true nature in order to qualify for a tax benefit that would not be available if the true contract between them were revealed. The courts require no statutory powers to ignore pretence of this kind and the law will always give effect to the real transaction between the parties.”

The court a quo then went on to consider the agreements in question, and, at p11 of the judgment, concluded:

“In my view, the true nature of the Zimbabwean agreements was that they were additional securities to the South African loan despite the fact that they in effect apparently passed ownership and control to Shah. The buy-back option as well as the fact that the loan had been secured by a mortgage bond gave Shumba the belief (that) these agreements will be respected by the parties as pledged to the underlying loan agreement. I therefore find for the defendant in respect of the first issue.

As to whether annexure “C” amounts to a pactum commissorium, it follows from my reasoning, that, once the interpretation given by the defendant is upheld, the court must find in his favour on this point as well.

I do so for the following reasons:

A pactum commissorium has been defined as a 'pact by which the parties agree that if the debtor does not, within a certain time, release the thing given in pledge by paying the entire debt, after the lapse of the time fixed, the full ownership in the thing will invariably pass to the creditor in payment of the debt:' see Chimutanda Motor Spares (Pvt) Ltd v Musare & Another 1994 (1) ZLR 310; Van Rensberg v Wieblen 1916 OPD 247 at 252.”

Undoubtedly, the court was correct in its statement of the principle of a pactum commissorium.

However, it was incorrect in applying that principle to the facts of this case.

It gave the respondents far reaching relief which they had neither sought nor prayed for.

If the respondents were under the impression that the underlying agreements, which gave rise to the lease agreement, were invalid, it behoved them to bring proceedings as a pre-emptive attack on the agreements.

This they chose not to do.

SC46-17 : ANDREW MAGARASADZA and 34 OTHERS vs FREDA REBECCA GOLD MINE HOLDINGS LTD t/a FREDA REBECCA GOLD MINE and ASSOCIATED MINE WORKERS UNION OF ZIMBABWE
Ruled By: MAVANGIRA JA

In chambers in terms of Rule 5 of the Rules of the Supreme Court, 1964.

For the sake of completeness, the following observation is noted:

Despite being served with all the relevant papers, the second respondent did not file any papers in response to this application. It was therefore barred. It also did not attend the hearing in chambers.

Two men, who claimed to be former employees of the first respondent and also to be represented by the second respondent, appeared in chambers and indicated that their attendance was solely for the purpose of listening to the proceedings.

Counsel for the applicants and the first respondent indicated that they had no objection to the presence of the two.

This is a chamber application in which the applicants seek an order in the following terms:

“1. The application for substitution of Respondent in case number SC570/14 be and is hereby granted.

2. That the Applicants substitute the 2nd respondent and be listed in their individual capacity and names as 2nd-35th Respondents and the 2nd Respondent be listed as the 1st Respondent in the appeal under case number SC570/14 in place of 2nd Respondent.

3. That all pleadings, documents and papers under SC570/14 filed with the honourable court, from the date of this order, shall reflect this substitution.

4. That there be no order as to costs.”

BACKGROUND

Part of the background to this matter may conveniently be extracted from the judgement of the Labour Court LC/H/272/2012 which prompted the appeal in SC570/14.

The parties before the Labour Court were Freda Rebecca Mine Holdings Limited as the appellant and Amalgamated Mine Workers Union as the respondent.

What was before the Labour Court, in LC/H/272/2012, was an appeal against an arbitral award, the operative part of which read:-

“The Award

Having carefully considered the evidence, and both oral and written submissions from parties, I hereby declare, that, Respondent indeed made unilateral variation in the new contract of employment.

1. I therefore declare the new contract of employment null and void.

2. As a remedy, I hereby order parties to seriously engage themselves in fresh negotiations before a new contract of employment is introduced at Freda Rebecca Mine.”

The following is stated at pp1-2 of the cyclostyled judgment of the Labour Court:

“The material background facts to the matter are as follows:

The appellant operates a mine known as Freda Rebecca Gold Mine situated in Bindura. The respondent is a Trade Union representing mine workers in Zimbabwe. Sometime in 2009, the appellant introduced a revised contract of employment which was, according to the Appellant, signed by a majority of its employees. There were some employees who refused to sign the revised contracts of employment who were consequently dismissed from employment. These workers challenged the lawfulness of their dismissal through the Labour Official. When the conciliation failed, the matter was referred to an arbitrator and is still pending.

The present matter, however, concerns an unspecified number of employees on whose behalf the Respondent lodged a complaint to the Labour Officer. The matter was referred to the Arbitrator with the term of reference being “whether the Respondent could unilaterally vary the terms of contracts of employment with its employees.” The Arbitrator handed down an award in the terms as referred to supra. Dissatisfied with the award, the Appellant then lodged the present appeal.”…,.

The Labour Court struck the appeal off the roll on a technicality.

It opined, that, Freda Rebecca had “thrown itself out of court” by failing to comply with the arbitral award, or, alternatively, failing to apply for the suspension of the operation of the award before instituting the appeal.

Freda Rebecca appealed to the Supreme Court against this decision - Appeal No. SC570/14.

On the date set for its hearing, the said appeal was postponed sine die by the Supreme Court. The postponement was apparently due to issues that arose regarding the citation and/or representation of the parties, which issues were to be sorted out during the period of the postponement. The issues apparently arose due to misunderstandings that developed between the applicants and the second respondent.

The applicants thus instituted the instant application with the anticipation that their success in this application will enable their participation, in their individual capacities, in the appeal in SC570/14, which appeal is expected to be re-set down for hearing after the determination of this application.

SUBMISSIONS IN CHAMBERS BY THE APPLICANTS

Counsel for the applicants moved for the granting of the order sought on a number of bases:

He submitted, that, the applicants are the individuals whose contracts were summarily varied and that it is these same contracts that have been the subject matter of the dispute since 2012. He submitted, that, contrary to what the first respondent contended in its opposing papers, this is not an application for joinder but one for substitution of the second respondent by the applicants. He further submitted, that, whilst the workers' committee has no legal persona and therefore cannot represent workers, a trade union can do so as it has statutory ability to represent workers. He also submitted, that, in any event, as the appeal by the first respondent in SC570/14 deals with a procedural and not a substantive issue, there could be no prejudice to the respondents.

Counsel for the applicants went on to submit, that, in any event, if the applicants are successful in SC570/14, the matter will be remitted to the Labour Court where the first respondent can make another complaint about or raise the issue of the representation of the parties, if they so wish.

Furthermore, that the cause of action or justification for this application was the fact, that, the relationship between the applicants and the second respondent had become discordant.

He submitted, that, the applicants' position is that if there are other employees (former employees) who want to continue to be represented by the second respondent they may continue to be so represented, but they (the 34) now want to ventilate their cause without the second respondent.

It was also counsel for the applicant's submission, that, the second respondent has always acted in a representative capacity and did not at any time supplicate for its own rights. There has thus never been any confusion as to who the parties were.

He submitted that section 29(4)(d) of the Labour Act put to rest the question whether or not the applicants (and others) in their collective complaint, could be represented by the second respondent.

Counsel for the applicants also submitted, that, the application is not one for joinder as it does not seek the joining of a party who was not a party before. It is rather the “unpacking” of the real respondents in that matter that is sought.

There has not been any dispute, he submitted, that these 34 applicants had their contracts unilaterally varied or that they are former employees of the first respondent. They cannot, therefore, be said not to have sufficient interest in the matter.

The applicants want the opportunity to respond to the first respondent's appeal in which it is appealing against the striking off of their appeal in the Labour Court.

In the applicants' view, the first respondent has adopted the wrong procedure by appealing against the striking off of their appeal by the Labour Court.

It was also his further submission, that, the applicants want to be substituted because they were already part of the proceedings but they now want to extricate themselves from the one who was representing them.

The substitution, he submitted, is in terms of the common law, and, section 85 of the High Court Rules, referred to by the respondent, does not and cannot apply. He cited Zimbank Ltd & Anor v Consolidated Piping & Fitting 2000 (1) ZLR 672…, as the guideline in the determination of this application.

RESPONDENT'S SUBMISSIONS

In response, counsel for the first respondent made submissions to the following effect:

From an examination of the draft order sought, it is clear, that, what is being sought is not substitution but joinder. The High Court Rules relating to substitution must therefore come into play as the Supreme Court Rules do not provide for such an application.

Rules 85 and 85A of the High Court Rules ought to apply to the instant application.

An examination of the stated Rules will show, that, the application is defective as the order sought does not provide for the removal of a party and the replacement thereof with another, but, instead, seeks joinder of the applicants to the parties already cited in SC570/14.

The application is vague and embarrassing and bad at law and ought to be dismissed. The case of Trop v SA Bank 1992 (3) SA 208…, was cited in support of the submission.

It was also submitted, that, in terms of sections 29 and 30 of the Labour Act, a trade union has the ability and capacity to represent its members in legal proceedings.

However, that must be distinguished from being a party to the proceedings. The sections do not provide that a trade union becomes party in proceedings in which they represent their members.

In addition, the parties who appeared before the Labour Officer for conciliation are the same parties cited in SC570/14 and the applicants were not cited as parties thereto.

It was also submitted, that, as the applicants were not parties in pertinent proceedings before the Labour Officer, the arbitrator, the Labour Court, and, finally, the Supreme Court where an appeal is pending, it does not make sense for them to now, at this stage, seek to be made parties to the litigation.

Counsel for the first respondent further highlighted, that, when the first respondent raised the issue of the second respondent's locus standi before the arbitrator no action was taken to have the applicants joined at that stage, yet, the applicants now want to be parties to an appeal whose origin was birthed in those proceedings.

Neither the arbitrator's award nor the Labour Court judgement cite or speak of the applicants.

He submitted, that, the law does not countenance this as this would be tantamount to allowing them to enter the proceedings through the back door.

Counsel for the first respondent quoted remarks, though obiter, made in TelOne (Pvt) Ltd Communications & Allied Services Workers Union 2006 (2) ZLR 136…, where CHIDYAUSIKU CJ stated:

“…,. Mr Hwacha's contention is that a party that was not privy to the original proceedings cannot apply for the review of such proceedings. I recognise the cogency of this submission. The proposition that only parties to the proceedings can challenge, on review or appeal, the outcome of such proceedings admits of little doubt.”

He submitted, that, applied in reverse, quoted remarks buttress his argument.

He described the applicants' quest as an “ambush” of the point of law that had been raised by the first respondent in the earlier proceedings. He prayed for the dismissal of the application.

WHAT IS THE NATURE OF THIS APPLICATION?

The applicants have labelled it an application for substitution. The respondents, on the other hand, argue, that, it is in effect an application for joinder.

The Concise Oxford English Dictionary of Current English 7ed, 1982 provides the following, amongst others, definition for the word 'substitute':

“(person or thing) acting in place of another; make (person or thing) fill a place or discharge a function for or for another; put in exchange (for).”

For 'joinder' it provides:

“joining, union.”

The import of paragraph 2 of the order sought is, that, while the second respondent remains, as is the case already, a respondent in SC570/14, the applicants are also made additional respondents.

The effect of the order, if granted, would be to alter the numbering order, with the previously lone respondent becoming the first respondent while the applicants become the second to the 35th respondents.

Thus, the applicants do not seek to substitute the second respondent. Rather, they wish to be added as co-respondents. There is no removal of one party and replacement with another, as should happen in a substitution.

On the face of it, this is a clear case in which joinder, and not substitution, is being sought.

On the other hand, counsel for the applicants repeated and categorical submission, in which he maintained that the relief sought by the applicants in not joinder but substitution, is contradictory of the terms of the order that is being sought before me.

For that reason, the applicants' papers do not seek to meet the requirements of an application for joinder and they do not do so. In the same breath, the effect of the terms of the order sought is in effect a joinder and not substitution.

In these circumstances, the aptness of counsel for the first respondent's citation of the case of Trope & Ors v The South African Reserve Bank 1992 (3) SA 208…, becomes self-evident. Importantly, the Appeal Court quoted with approval the lower court's statement that:

“And, if the pleadings lack sufficient clarity to enable the defendant to determine those facts and hence the case he has to meet, the pleadings are vague and embarrassing.”

Counsel for the first respondent's submission, that, at the arbitration proceedings, the first respondent raised the issue of the second respondent's locus standi but no action was taken then to have the applicants joined at that stage, was not disputed by counsel for the applicants.

Counsel for the applicants submission, in response, was merely, that, the applicants were only praying for an order to be granted in their favour only in relation to the appeal in SC540/14 and not to any other case.

This stance, in my view, tends to lend credence to counsel for the first respondent's argument, that, the applicants seem to want to want to circumvent a legal point earlier raised by seeking to now individually enter the fray at this stage.

This court, not being a court of first instance, is not the proper forum for such an application.

In any event, for reasons discussed above, the applicants seek to participate in the appeal in SC570/14 by way of an application that defies a specific description recognised at law.

The nature of the application before me is unascertainable by reason of the pleadings filed being vague and embarrassing.

THE LAW

The aptness of the case of Tel One (Pvt) Ltd v Communications & Allied Services Workers' Union 2006 (2) ZLR 136 (S)…, also cited by counsel for the first respondent, comes to the fore.

As a party who was not privy to the original proceedings cannot appeal against or challenge, on review, those earlier proceedings, it is only logical that a party who was not privy to the original proceedings cannot become a party to the appeal emanating from those proceedings in the manner sought by the applicants.

In casu, the second respondent substituted itself for the applicants and other employees entirely. It did not cite itself in a representative capacity. There was no reference at all to the applicants and the other employees. This is so despite the fact, that, the rights that may accrue when the fairness or otherwise of their dismissals is finally determined would affect them individually.

The effect of the non-citation or the lack of reference to the applicants is that the award by the arbitrator ordered that there be negotiations between the employer and the Trade Union in circumstances where the contracts to be entered into would be between the employer and the individual employees.

This is an untenable result. I daresay it is an incompetent order.

It is trite, that, for a party who has a real interest in the matter in dispute before a court to be bound by a judgement of the court, such party should be cited: see Indium Investments (Pvt) Ltd v Kingshaven (Pvt) Ltd & Ors SC40-15…,.

It is also trite, that, a judgment may not be made affecting a person or entity that was not a party to the proceedings: see Mashingaidze v Chipunza & Ors HH688-15; Women & Law in Southern Africa Research & Education Trust v Shongwe & Others HH202-03.

The application in casu is bad at law. It is vague and embarrassing.

In addition, on the facts of this matter, whether it be an application for substitution or for joinder, this court is not the proper forum before which to make it. It cannot therefore succeed.

It is accordingly ordered as follows:-

“The application is dismissed with costs.”

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

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

HH19-07 : PONDORO (PVT) LTD and DOUGLAS TAYLOR-FREME vs MENDE NEMAKONDE and THE MAGISTRATE, CHINHOYI
Ruled By: HUNGWE J

This matter was placed before me under a certificate of urgency on 17 January 2008. I gave directions that it be heard the following day as I deemed it appropriate that the Rules of Court be dispensed with in the interests of achieving justice in this particular matter.At the hearing, ...

(i)...,.

(ii) His second point was that the applicants ought to have anticipated the rule nisi rather than approach this court through the Chamber Book....,.

As the matter touched upon the propriety of the handling of a class of cases in the lower courts, I deemed it appropriate to deal with it in this court to enable a proper ventilation of the allegations of bias raised on the papers, and, if substantiated, give appropriate directions to that court.

In any event, I directed that the papers be served on the concerned institution to enable the appropriate response to be elicited from that court rather than proceed ex-parte as counsel for the applicants had originally sought on his papers.

The applicants seek the following order;

“1. Final Order sought

(a) The order of the Magistrate in Chinhoyi Civil Case No. 22/08, on 8 January 2008, be and is hereby set aside.

(b) The costs of this Application are awarded to the applicants.

2. Interim Relief Granted

Pending the finalisation of this Application and of any other order that may be given by this Court before this matter is brought to finality:-

(a) The order given by the Magistrate, Chinhoyi in case 22/08 is forthwith suspended.

(b) No further litigation between the Applicants and the first respondent herein shall be dealt with by any of the judicial officers officiating at Magistrates Court at Chinhoyi.”

At the conclusion of the hearing, I issued the following order:

“1. The Order issued by the Magistrate in Chinhoyi Civil Case No. 22/08, on 8 January, be and is hereby set aside.

2. The costs of this application are awarded to the applicants.”

I have been asked to give reasons for this order. These are they.

On 8 January 2008, the first respondent (applicant in the Magistrate's Court) obtained the following order;

“1. A rule nisi do issue returnable to this honourable court sitting at Chinhoyi on the 7th day of February 2008 at 8:30am or soon thereafter as the matter may be heard calling upon the respondents their agents or employees to show cause why they should not be prohibited from:-

1. Continuing to deny applicant and his employees access to the fields at the Remaining Extent of Romsey Farm.

2. Continuing to carry out agricultural activities at the Remaining Extent of Romsey Farm.

3. Visiting the fields at the Remaining Extent of Romsey Farm.

INTERIM RELIEF GRANTED

4. That pending the return date hereto, this order operates as a temporary order prohibiting the Respondents and their agents or employees from visiting the fields or carrying out agricultural activities at the Remaining Extent of Romsey Farm.

3. That a copy of this order shall be served immediately by the Messenger of Court or by a duly attested member of the Zimbabwe Republic Police.

4. That, in the event that any of the Respondents breaches any terms of this interim order the Messenger of Court, Chinhoyi is hereby authorised to enlist the services of the Zimbabwe Republic Police to enforce this order. Should there be any further resistance, the Zimbabwe Republic Police is hereby ordered to detain the respondents upon sight and bring them to court forthwith to answer charges of contempt of court.”...,.

Counsel for the first respondent argued, that, the applicant jumped the gun by approaching this court. Their remedy lay in anticipating the rule nisi in the Magistrate's Court in terms of the Rules of that court: as such, the application should be dismissed on that basis.

HH16-08 : CAVIN CHIFAMBA vs NORBERT MUTASA and GUARANTEE TRUST (PVT) LTD and M V CHIZODZA
Ruled By: MAKARAU JP

The plaintiff is resident in the United Kingdom.

Sometime in 2003, he telephoned one Simbarashe Sagonda and Thomas Makwangudze, relatives of his, to proceed to view a property that was being offered for sale through the agency of the second defendant.

The property, whose description and location in Ruwa was known to the second defendant's property negotiator, “Nyasha”, is owned by the first defendant who holds freehold title to the land.

It is common cause that the instructions to sell the property did not emanate from the first defendant but from a fraudster, still at large, who was making out to be the first defendant and not only had with him a forged copy of the Deed of Transfer in respect of the property bearing the first defendant's name, but also a driver's licence and a passport with the names of the first defendant but bearing his picture.

It is further common cause that the two plaintiff's relatives viewed the property in the company of Nyasha, the property negotiator, and were satisfied with its condition in relation to the asking price. They accordingly, but separately, recommended to the plaintiff that he purchases the property.

An Agreement of Sale was duly drawn up and the plaintiff cautioned that he wanted the transaction to be supervised by a lawyer. Debut the third respondent in her capacity as a conveyancer and one who was well known to the second defendant and had done work for the second defendant previously.

On the date that the Agreement of Sale was signed, the fraudster, still making out to be the first defendant, attended at the third defendant's offices and not only did he sign the agreement as seller and first defendant, he also collected the deposit of the purchase price that had been paid in the sum of 8,000 pounds sterling. It is at this meeting that the fraudster exhibited the identity documents that he used to commit the fraud. The documents were inspected by all who were present, including the plaintiff's representative, who did not find anything amiss with the documentation.

A further payment in the sum of 6,000 pounds sterling was made some months thereafter.

Soon after the payment of the balance of the purchase price, transfer fees were called for in anticipation of transferring the property into the plaintiff's name. It was at this stage that the fraud was discovered as the Registrar of Deeds raised issues with the authenticity of the Deed of Transfer tendered with the transfer papers and advised that the matter be reported to the police.

Efforts to trace the purported seller of the property to obtain vacant possession of the property by the plaintiff's agent were in vain.

On 21 April 2004, the plaintiff issued summons claiming against all defendants, an order compelling them to transfer the property in dispute to him. In the alternative, the plaintiff sought an order against all the defendants jointly and severally for the payment of damages to be calculated as the purchase price of a similar stand in Ruwa at the time of payment less the Zimbabwe Dollar equivalent of 14,000 pounds sterling, $2,7 million, and interest a temporae morae on the two amounts at the prescribed rates.

The action was defended by all three defendants.

The first defendant denied that he ever put up his property for sale or connived with the fraudster to defraud the plaintiff. The second defendant denied conniving with the fraudster or misrepresenting any facts to the plaintiff. The third defendant also denied conniving with the fraudster or misrepresenting any facts to the plaintiff.

At the pre-trial conference of the matter, four issues were identified for trial. These were;

(i) Whether or not there was misrepresentation on the part of the defendants that led the plaintiff to lose his money;

(ii) The quantum of damages;

(iii) From whom such damages were recoverable; and

(iv) Who should bear costs of suit.

At the trial of the matter, the plaintiff called Simbarashe Sagonda and Thomas Makwangudze as witnesses. The testimonies of the two witnesses were to narrate what is essentially common cause in this trial.

It was Simbarashe Sagonda's testimony, that, when he went to view the property in the company of the property negotiator from the second defendant, Nyasha, they were shown around by a lady of middle age. Also present were a gardener who opened the gate for them, a maid who was busying herself in the kitchen, and some other young man. From the visit, he got the impression that Nyasha had been to the property before and knew all the faults and uncompleted details in the structure.

The witness gave his evidence well and I have no reason to disbelieve him.

As indicated above, his testimony was a narration of facts that are not in dispute as between the parties.

Thomas Makwangudze also testified as to how he went to view the property in the company of Nyasha and one Lovemore Hombarume who was held out to be the nephew of the seller of the property. He also testified as to how an Agreement of Sale was then drafted and that at the time of signing the agreement and paying the deposit, he met the fraudster, who produced a driver's licence and passport all bearing the names of the first defendant. He inspected the documents together with the third defendant, Nyasha, and a friend he had brought along to witness the transaction.

All four of them did not notice anything irregular with the identity documents and were duped into believing that they were dealing with the first defendant, the owner of the property.

He further testified as to how he paid the balance of the purchase price and transfer fees for the property.

Again, in my view, the witness gave his evidence well. I gained the impression that he is honest and reliable.

He found it difficult, on his observations, to categorically hold that the defendants were conniving with the fraudster. He only assumed there may have been connivance between the first defendant and the fraudster but had no basis for making this assumption save the fact that he and Nyasha freely viewed the first defendant's property in the presence of his maid and gardener.

After leading these two witnesses, the plaintiff closed its case.

At the close of the evidence, the plaintiff withdrew his claim against the first defendant, tendering costs. It is therefore unnecessary that I deal with the evidence led by the first defendant in his defence.

The second and third defendants applied for absolution from the instance arguing that the plaintiff had not established a prima facie case that the defendants had misrepresented to him any fact.

I granted the application and indicated that my reasons would follow. I now set them out.

Before I proceed to deal with the application for absolution from the instance, there are two issues that I wish to remark on. These relate to the standard of pleadings exhibited in this matter and the need for legal practitioners at pre-trial conferences to assess the cogency of the evidence they intend to adduce at the trial of the matter.

The purpose of pleadings is not only to inform the other party in concise terms of the precise nature of the claim they have to meet, but, pleadings also serve to identify the branch of the law under which the claim has been brought. Different branches of the law require different matters to be specifically pleaded for a claim to be sustainable under that action.

Thus, for example, in a divorce action, the allegation of irretrievable breakdown is imperative while in a delictual claim for bodily injury, fault has to be averred against the defendant.

This may appear trite but a number of matters coming before the courts seem to indicate that legal practitioners have abandoned the need to plead a cause of action by making the necessary averments to sustain such an action: see S Pilime v B Chisvo HH10-07.

In casu, the plaintiff's legal practitioner appears to have simply rehashed the instructions he had received from his client in the declaration without making an attempt to precisely and concisely lay out the cause of action and the averments necessary to sustain such. I gain this impression from the wording of the concluding paragraph of the declaration which is framed as follows:

“All the defendants were either conniving together or misrepresented facts to the Plaintiff in order to deprive the plaintiff of the said Stand and money.”

The defendants' legal practitioners did not fare any better in the matter.

Instead of seeking clarification of the claim and its basis by either a request for further particulars or an appropriate exception, the defendants were advised to file pleas to the merits which pleas read no better than the declaration as they seek to deny the statements made in the declaration (Mr Nhemwa was not representing the second defendant at the time the pleadings were exchanged).

In my view, the exchange of pleadings between the parties is what may pass as conversation at a social gathering between disagreeing parties but bears not the slightest resemblance to pleadings in a court of law.

Legal practitioners are urged to read on the law before putting pen to paper to draft pleadings in any matter so that what they plead is what the law requires their clients to prove to sustain the remedy they seek.

The duty of a legal practitioner to precisely and concisely draw up pleading is closely related to the duty to establish and assess the evidence necessary to sustain each important averment made in the pleadings.

This should be done before or at the pretrial conference stage when the summaries of evidence are drawn up. Gaps in the evidence should be identified at this stage and brought to the attention of the party who may thus avoid the loss occasioned by a dismissal or absolution from the instance at the close of the plaintiff's case at trial.

All too often, legal practitioners are heard in a pre-trial conference to whisper to their clients asking how many witnesses they will call at the trial of the matter. Preparedness is the hallmark of a good legal practitioner. It is no use for a legal practitioner to concede, at trial, that his client does not have sufficient evidence when pleading that the matter should not be dismissed but that absolution from the instance be granted.

It is my view, that, had the plaintiff's legal practitioner in this matter assessed the cogency of the evidence that he had, he may have avoided a trial in this matter and legal costs for his client as none of the plaintiff's witnesses testified as to a misrepresentation made to them, and, the second witness in particular, denied that there was any connivance by the defendants to deprive the plaintiff of his money. His testimony was to the effect, that, because the second and third defendants were professionals, they should have guarded against the loss. This, in my view, suggests a claim based on negligence rather than on misrepresentation or fraud.

Litigation in the High Court is serious business and the standard of pleadings in the court must reflect such.

In view of the evidence adduced on behalf of the plaintiff, it was clear, at the close of the plaintiff's case, that there was no need to call upon the defendants to testify.

Even if I were to be overly generous and hold that the plaintiff had pleaded misrepresentation as a cause of action against the defendants, the evidence adduced by the plaintiff revealed that it was the fraudster who misrepresented to both the plaintiff and to the defendants that he was the registered owner of the property that he was selling.

It is this fraud that induced the sale between the parties.

The fraudster went to the extent of producing cleverly forged documents to support his fraud. The defendants did not assist him in this fraud and were also the victims of the fraud.

In any event, it was not specifically pleaded in the papers whether the alleged fraud by the defendants was innocent, negligent, or fraudulent.

Having alleged that he was induced into the contract by misrepresentation, the plaintiff proceeded to pray for transfer of the property into his name.

I am not clear how the remedy of specific performance was pleaded after the alleged misrepresentation.

I may mention, in passing, that, the Rules require that particulars of any misrepresentation be stated in the pleading: see Rule 103 of the High Court Rules, 1972.

The Rule is often overlooked in drafting summons and declarations.

It is on the basis of the above that I granted absolution from the instance at the close of the plaintiff's case.

HH111-08 : RAILWAY ARTISANS UNION and RAILWAY ASSOCIATION OF YARD OPERATING STAFF and ANOR vs RAILMED and NATIONAL RAILWAYS OF ZIMBABWE and RAILWAYS EMPLOYMENT COUNCIL
Ruled By: GOWORA J

This matter was initially placed before me under a certificate of urgency. As the final and interim relief sought on the provisional order were the same, I wrote an endorsement on the face of the application querying the manner in which the relief had been framed.

The letter of explanation was not placed before me and it was not until after some months that the matter was then brought to my attention. In the event, it was set down before me in chambers to be argued as an urgent application.

The respondents indicated a desire to file affidavits in opposition and it was agreed between the parties that the best way was for the matter to be dealt with as an opposed application. The parties thereafter filed their documents, including heads of argument, and the matter was then argued in court.

On the date of hearing, counsel for the applicants made reference to a number of authorities to which I had no access. He promised to avail them to me shortly thereafter, but, it was not until 31 May 2007 that this request was complied with. It was, as a consequence, virtually impossible to render a judgment soon after the hearing as I then was heavily committed in other duties.

I turn now to the application before me.

The applicants are unions representing members in the employ of the second respondent. The first respondent is a medical aid society set up for the benefit of the employees of the second respondent and would appear to have been set up by virtue of a Collective Bargaining Agreement between the second respondent and its employees.

It is common cause that the first respondent was collecting subscriptions from the employees and the second respondent. Benefits which the employees received were not related to the level of payment by the beneficiary and it was, consequently, a fact that the second respondent was operating as a welfarist society with its members being afforded the same benefits.

In August 2006, the second respondent put into effect a three-tier system where benefits were structured according to the level of contributions paid by respective members.

Following representations made to the second respondent, the changes were not put into effect immediately as the parties attempted to find a common position. However, at the end of August 2006, the second respondent gave notice of its intention to put the changes into effect at the beginning of October 2006. The changes were put into effect and the system is now operational.

In view of the reasons I alluded to earlier, an attempt to have a temporary interdict stopping the implementation was still-born. It therefore only leaves the final relief for determination.

The terms of the final relief are in the following terms:

1. That the implementation and execution of the tiered system by the first respondent, effected on 1 October 2006, be and is hereby set aside.

2. That the first respondent be and is hereby ordered to cease/stop and be inducted from implementing the tiered system introduced on 1 October 2006.

3. That the first respondent pays the costs of suit.

Extensive heads of argument were filed on behalf of the parties. In addition, both counsel addressed the court orally.

Counsel for the applicants argued that there were three issues for determination:

(i) The first issue was whether or not the first respondent had powers, in terms of its Constitution, to alter the medical aid scheme in existence since its inception. Counsel invited me to look at the narrow positivist meaning of clause 11(2) as well as the context of the agreement.

(ii) The second issue was whether or not the Board of the third respondent had issued a directive to the first respondent following upon a meeting held on 20 October 2006; and

(iii) The last issue was whether or not the applicants had a legitimate interest to be heard before a decision was made to link benefits to subscriptions.

Counsel for the respondents argued almost on the same premise as counsel for the applicants viz whether the second respondent had the power to introduce the benefit structure that it did.

His argument was that the applicants had considered the structure of the third respondent in isolation of the statute. He submitted that the first respondent had the power to alter the benefits accorded to its members. In so far as the third respondent was concerned it was his contention that it had not issued a directive to the first respondent to stop implementing the alteration in the benefit structure. Lastly, it was argued, on behalf of the first respondent, that, the provision of medical services by the first respondent to members of the applicants was not a condition of service and that therefore there was no need for the applicants' members to be consulted prior to the implementation of the changes.

I think the logical place to start in this matter is the examination of the relationship between the applicants and the first respondent.

The first respondent was established by the National Industrial Council for the Railway Industry in 1970. One of its objects was to afford members the facility of obtaining medical and surgical treatment for themselves, and their dependants, including the provision of drugs and medicines.

According to the Constitution in terms of which the first respondent was set up, its members comprised of the following; employees of Railways, employees of National Railways of Zimbabwe, Railmed, National Railways of Zimbabwe Pension Fund, RAE, RAU, RAYOS, REC, RMS, and Z.A.R.W.U. who are entitled to membership in terms of their conditions of employment.

Also included in the list of people entitled to be members are pensioners of the various institutions described above and the widows or widowers of those persons who had been in employment in the same and were members of the first respondent.

The applicants, being unions, are representing the persons employed by the various bodies I have referred to. Except for those employed by the first respondent, none of the members of the applicants can say that they are employees of the same. The greater number of the applicants' members therefore are employed by the other bodies.

Going by the objects of the Constitution of the first respondent, the applicants' members have a relationship with the first respondent whereby the latter has undertaken to afford the members facility for the provision of medical and surgical treatment as well as drugs and medication. Nowhere in their papers have the applicants' alluded to any other contract with the first respondent except for the provision of the services I have described above.

Yet, in addressing the question of the first respondent's actions in altering the benefit structure being offered to their members, the applicants contend that the actions of the first respondent are in fact an alteration of their conditions of service.

In order to dispose of the issue of the relationship between the applicants and the first respondent, it then becomes necessary to arrive at a decision as to the meaning to be ascribed to the phrase “conditions of service.”

When one is in service, one is in employment, and, therefore, conditions of service are the same as conditions of employment. In the case of OK Bazaars (1929) Ltd v Madeley NO & Anor 1943 TPD392, conditions of employment were described as:

“Conditions of employment in the present context means simply the terms, either express or implied, contained in a contract of employment.”

The terms and conditions of the employment contracts of the applicants' members are not in the purview of the first respondent. In my view, conditions of service can only exist where services of a personal nature are rendered, the one being the employer the other the employee.

We do not have services of a personal nature being rendered by the applicants' members to and on behalf of the first respondent.

I presume that the contracts of employment provide for contributions by the employer for subscriptions to a medical aid society. Beyond that, I refuse to go as the contracts are not before me and any further comments on my part would be mere speculation.

The point is made by counsel for the applicants that the effect of the alteration put in place by the first respondent was to fundamentally alter the structure of the Medical Fund from one based upon the principle of equal contributions from the employer and employee and equal unlimited benefits to a new principle of a scheme based on full recovery.

I accept that the entitlement to the medical aid benefit, on the basis of the equal contribution with the employer and attendant benefits is a condition of service. I do not accept, as contended by counsel for the applicants, that receiving equal benefits with other members where the one pays less than another member is a condition of service.

However, the linking of the benefits to the level of subscriptions paid by the first respondent's members does not affect the terms on which the members of the applicant are afforded employment by their respective employers.

The level and extent of benefits afforded to members is within the discretion of the first respondent and the employer has no input in such assessment.

There is no suggestion that under the new scheme the employer will contribute less than it has been contributing, because if that were the case then the applicants' members would have been on very firm ground in arguing that their conditions of service had been altered.

All the scheme does is to ensure that a contributor obtains services according to the level to which they can contribute in terms of subscriptions. The employer's obligation is not lessened in any manner as he is still obliged to contribute in equal measure to the contributions made by the member.

The condition of service is the entitlement to membership in terms of the contract of employment coupled with the employer's obligation to contribute an equal measure as the employee.

Since the employer does not determine the level of benefits afforded by the first respondent, the fact the benefits are reduced does not alter the conditions of service which remain unchanged. I am unable to find, therefore, that, the scheme has the effect of altering the conditions of service of the first respondent's members.

I move on.

The next issue I have to determine is whether the first respondent has the power, under the Constitution, to alter the benefit scheme in the manner that it did.

The powers of the first respondent must, of necessity, be examined in the conjunction with the provisions of the Medical Services Act [Chapter 15:13] (“the Act”) which regulates the manner in which medical aid societies conduct their business as well as the manner in which they are managed.

Although the first respondent, as an entity, was set up in 1970, which was prior to the promulgation of the Medical Services Act, its registration was deemed in terms of section 17 of the Medical Services Act.

I start with the definition section which not only describes a medical aid society but also specifies its purposes. The definition in section 2 of the Medical Services Act is as follows:

“…, any association or organization which accepts subscriptions from members or other persons wholly or mainly for the purposes of -

(a) Paying any expenses incurred by such members or persons, and, additionally, or alternatively, their dependants or employees, in respect of medical or dental treatment; and

(b) Meeting the whole or part of any expenses incurred by such members or persons, and, additionally, or alternatively, their employees, in respect of medical or dental treatment.”

The registration of a medical aid society is provided for in section 9 of the Medical Services Act.

Section 9(5) of the Medical Services Act provides that the Secretary shall be satisfied in relation to the following before he can register a medical aid society:

(a) The minimum cover for medical services to be provided by the medical aid society is adequate for the purpose of meeting the costs of medical services at such level as may be prescribed; and

(b) Adequate financial provisions have been made for the proper maintenance of the medical aid society.

In terms of section 10 of the of the Medical Services Act, the Secretary is empowered to cancel the registration of any medical aid society which fails to comply with the provisions of section 9(5).

My view is that the powers granted to the first respondent, in terms of the Constitution, have, of necessity, to be considered in conjunction with the provisions of sections 9 and 10 of the Medical Services Act.

The Constitution provides for the creation of a Board to administer the affairs of the first respondent. Ten members are required to sit on the Board; five of whom shall be appointed by National Railways of Zimbabwe and the last five from the other entities mentioned earlier on in the judgment, from those institutions whose employees or members are entitled to membership of the first respondent.

Clause 11, from which the Board derives its powers, is phrased thus:

“Powers and Functions of the Board of Management

(1) Subject to the provisions of the Medical Services Act, the regulations made in terms thereof and any other law, it shall be the duty of the Board to administer the affairs of Railmed in a judicious manner at all times and always to act in the best interest of both Railmed and its individual members and to implement the directives of the Secretary responsible for the Health Ministry and REC as may be given from time to time.

(1) It shall have the power to:

(a) Formulate and issue Rules of Railmed to include the schedule of rates payable by different categories of members;

(b) Modify, amend, repeal, substitute or suspend any or all of such Rules where general or specific circumstances require such action;

(c) Determine the range and scope of benefits to be afforded by Railmed; and

(d) Refuse, terminate or restrict benefits in respect of any beneficiary who contravenes any Rule of Railmed.”

Although they have been placed before me, I have not been referred to the Rules of Railmed specifically and I cannot comment further on them other than to say that the first respondent does have the power in formulating such Rules to regulate the rates payable by the different categories of members which, of necessity, taking into account the different levels of employees in the undertakings must go with a medical aid society.

In real terms, the first respondent would have to set the level and range that each category of membership would have to pay as subscription for the services to be availed to such member.

It follows, therefore, that, the rates of contributions set by the first respondent would then have a bearing on the range of benefits that can be accorded for the categories of rates of contributions set in the Rules. It is only fitting, therefore, that consistent with the power to regulate the schedule of rates of contributions to be paid by the various categories of the members, the first respondent also be endowed with the power to regulate the range and scope of the benefits to be afforded by Railmed.

I cannot see the practical effect of a medical aid society having the power to set the schedule of rates of contributions to be paid by the different categories of members but not having the power to set the range and scope of the benefits to be afforded to the membership. It would, in my view, be only logical that the range and scope of benefits be set and then the contributions be calculated. The one cannot exist independently of the other.

I venture to suggest, that, in arriving at the benefits and contributions that are attendant thereon the Board of the first respondent has to bear in mind the provisions of the Medical Services Act, in particular that it act in the best interests of the members and the society itself.

I am fortified in this view by the intent of the first respondent as spelt out in its objects - that, primarily of providing members the facility of obtaining medical and surgical treatment for themselves and their dependants, including the provision of drugs and medicines.

The objects of the first respondent would not be met if the first respondent were curtailed in its power as to what benefits it can offer to its members. If that were a matter for the decision of the REC then the latter would have been specifically accorded those powers.

It has not.

It merely has the power to make decisions of a strategic nature.

This brings me to the next rung. Is the decision regarding the extent of benefits to be afforded to the members of the first respondent one that can be termed strategic in nature?

According to counsel for the applicants, even though the first respondent had the power, under its Constitution, to determine the range and scope of the benefits to be afforded to its members, it did not have the power to change the society from a welfarist one to one run on market principles with the aim of full cost recovery.

I find it hard to comprehend why the restriction on the power afforded to the first respondent, under the Constitution, was framed in such a vague manner.

If it was the intention that the REC gives directives of a long-term plan to the first respondent it was simpler, in my view, to have phrased it as such.

Counsel for the applicants went further and argued that the three tier system that was adopted by the first respondent was not a mere scheduling of the rates and contributions or the mere determination of the range of scope of benefits, but, was rather the essence and product of the first respondent's strategic recovery plan which was prepared in 2004 and commissioned in 2005. He premises his view on the argument that the entitlement to medical benefits is a condition of service.

I have already found that the medical benefit is not a condition of service, but that what was a condition of service was the entitlement to membership and the concomitant contribution by the employer on behalf of the employee.

It is pertinent to note that the contracts of employment where the conditions are spelt out were not displayed to the court as much of the argument is based on the alteration of the same.

The Constitution does not define what it means by strategic.

From the argument pursued by counsel for the applicants, it is clear that the meaning he ascribes to strategic is to do with an alleged alteration of conditions of service.

I have above already discussed on whether the introduction of the three-tier system of benefits, by the first respondent, constituted a change in the members conditions of service and my conclusion was that it did not constitute such.

I turn next to the question whether or not the REC issued a directive to the first respondent.

The REC wrote two letters to the first respondent subsequent to the adoption by it of the three tier system of benefits. The first letter to the first respondent was phrased as follows:

“RE: INTRODUCTION OF THE THREE-TIER SYSTEM EFFECTIVE 1 OCTOBER 2006

1. On 20 October 2006, the Railway Employment Council met and decided as follows:-

1.1 The introduction of the proposed Three-Tier Scheme is to be suspended with immediate effect, viz from the 20th instant and it shall remain so suspended until you are advised to the contrary in due course.

1.2 The suspension is intended to enable the Railway Employment Council to have the matter resolved and you are advised accordingly.

2. In the meantime, the deductions for the remission to you shall be as hitherto was the case before the purported introduction of the Three Tier System by yourselves.”

The letter was written by the chairman of the REC, and, on receipt of this letter, the chairman of Railmed sought clarification, as, in his view, it appeared that the four trade unions and NRZ had not resolved to direct the Board of Railmed to suspend the Three-Tier System.

A letter was dispatched from the office of the chairman of the REC in the following terms:

“I merely advised you that the feeling in Council was that the introduction of the proposed three-tier system be suspended with effect from the 20th instant. This was necessary in order to enable the members of the Council to reach an agreement.

However, you may choose to ignore my advice but you do not have any reason to misunderstand what I said.

I never pretended to say that the trade unions and NRZ resolved to direct the Railmed Board to suspend the three tier system. I have no power to direct any member or constituent member of the REC to do anything.”

What emerges from the last quoted letter is that the Board of the REC had not passed a resolution which would have issued a directive to the first respondent to suspend the introduction of the three-tier system.

It also emerges clearly from the chairman's letter that he was talking about a feeling in Council. There had been no agreement that the three tier system be suspended.

The letter from the chairman is very clear and it seems to me that if the applicants wish to contradict him and put forward a version that differs from his statement in the letter then they should have produced minutes of the meeting where the directive was given.

In the meeting of the Railway Employment Council (REC) Board, held on 20 October 2006, the chairman had noted that “the Council had no jurisdiction to instruct Railmed to cease the implementation of the scheme.”

In fact, the meeting could not agree on what action to take and the chairman indicated that he would write to Railmed and state that Council's position was that the status quo, as it was before the introduction of the three-tier system (for whatever merit), should prevail until Council wrote to Railmed on the position. This then led to the crafting of the letter initially sent to the first respondent, which letter was subsequently clarified.

When the two letters are read in conjunction with the minutes it becomes clear that the Railway Employment Council (REC) did not take a position on the implementation because of the divergence of views expressed by the Board members present.

Further, I did not understand, from my reading of the minutes, that the Railway Employment Council (REC) had resolved to give a directive to the first respondent to stop implementing the new system.

In the absence of that, I have to find that the Railways Employment Council (REC) did not issue a directive to the applicants to suspend the introduction of the three tier system of benefits.

It remains for me to deal with the question raised by counsel for the applicants as to whether or not, before the system of benefits was introduced, the applicants should have been consulted. In other words, counsel for the applicants contends that the applicants had a legitimate expectation to be heard before the implementation of the three tier system.

In this regard, the first argument advanced by counsel for the applicants was to the effect that when the Board members of the first respondent sit in the Board they owe a duty of care to the Board of the first respondent only as that is the primary responsibility of any Board member.

I think this submission is made in total disregard of the provisions of the first respondent's Constitution, in particular clause 11, which enjoins the Board in the administration of the first respondent, to act in the best interests of both Railmed and its individual members.

It is of course understandable that counsel for the applicants would seek to convince me, that, in making the decisions that it made, and not consulting the members, the first respondent was motivated by a duty to protect its interests to the exclusion of that of the membership.

This argument flies in the face of the specific duty imposed by the Constitution on the Board to take into account the interests of the medical aid society and those of its individual members.

In support of the contention that the applicants had a legitimate expectation to be heard, counsel has referred me to various authorities. He has made mention of section 18(1) and section 18(9) of the Constitution. He has argued, further, that, principles of natural justice, as codified in the quoted sections, would have required that the applicants be heard.

An examination of the quoted subsections reveals the following:

“18(1) Subject to the provisions of this Constitution, every person is entitled to the protection of the law.

18(9) Subject to the provisions of this Constitution, every person is entitled to a fair hearing within a reasonable time by an independent and impartial court other adjudicating authority established by law in the determination of the existence or extent of his civil rights or obligations.”

The manner in which the argument is developed is that counsel contends that the first respondent is a public body, and, as such, it has the obligation, before making any decisions which would adversely affect the rights of the members of the medical aid society, to give them a right to be heard.

It cannot be disputed that the members of the applicants would have rights in so far as their relationship with the first respondent is concerned. I note with interest that the majority of decisions cited by him are concerned with the relationship between an employer and an employee.

The reality is that the relationship between the applicants' members and the first respondent is regulated by contract and it is in that light that the question as to the claimed right to be heard should be examined.

In my view, the remarks that are appropriate in this case are to be found in the case of Administrator, Transvaal v Traub 1989 (4) SA 731 (A) in which CORBETT CJ had this to say…,:

“When a statute empowers a public official or body to give a decision prejudicially affecting an individual in his liberty, or property, or existing rights the latter has a right to be heard before the decision is taken (or in some instances thereafter: see Chikare's case (supra) at 379) unless the statute expressly or by implication indicates the contrary.”

The principle has been applied in appropriate circumstances to decisions made in the exercise of contractual rights. Whether or not the audi rule is applicable to a particular decision will depend on the circumstances of the case, particularly whether the express or implied terms of the statute or contract under which the decision is taken requires its observance.

There is a presumption in favour of the application of the audi rule when the decision is made in the exercise of a statutory power unless the rule is expressly excluded.

There is no such presumption when a decision is taken in the exercise of a contractual right because the question in area of contract is whether or not the failure to hear the other party constituted a breach of contract. A party cannot be in breach of an obligation which has not been made an express or implied term of the contract.

In the case of Chirasasa & Ors v Nhamo NO & Anor SC133-02 the full bench of the Supreme Court of Zimbabwe, in a judgment rendered by MALABA JA, with the concurrence of the entire Bench, states as follows:

“The next question to determine is whether the right given to the employer to terminate the contract of employment on giving the appellants one month's notice for non-disciplinary reasons could be exercised without regards to the principle of natural justice expressed in the maxim audi alteram partem (the audi rule).

The audi rule is a common law principle which has been applied by courts in review proceedings as part of Administrative Law, to grant relief to persons whose rights, liberty, property, or legitimate expectation have been adversely affected by decisions made by public authorities or bodies in the exercise of statutory (public) powers without having been afforded the opportunity to be heard.”

The first thought that one has is that the first respondent, in making the decision that it did, was not exercising functions granted in terms of a statutory provision. The powers that the first respondent was exercising are derived from the Constitution of the first respondent and it then begs the question; how the obligation imposed on the first respondent to hear the applicants' members before implementing the changes it did allegedly arose?

This brings me to a discussion on the reliance, by the applicants, on the provisions of section 18 of the Constitution.

I cannot find that the reference to section 18(9) of the Constitution is appropriate in casu.

The first respondent is not an adjudicating authority nor is it a court or tribunal. It has not been stated precisely how the provisions of sections 18(1) and (9) would apply in this case.

I must commend Mr Biti for advancing what clearly is an ingenious argument, that, the first respondent is a public body and that, as such, the audi rule applies to it.

He has not seen it fit to define, for the benefit of the court, what a public body constitutes and whether or not the first respondent fits into the mould of such a body.

I will therefore confine myself to the status of the first respondent as it is stated in the Constitution and also its stated objectives.

The first respondent was established in 1970 by the National Industrial Council for the Railway Industry which has now been named the Railway Employment Council. Its legal status is that of a body corporate which is capable of suing and being sued in its own name. I think that the question of whether or not it is a public body emerges from the entitlement to membership set out in clause 8 of its Constitution. According to the clause, eligibility to membership is confined to the following persons or organizations:

(a) Employees of the Railways as required by the rules and as defined in the rules of Railmed;

(b) Employees of National Railways of Zimbabwe, Railmed, National Railways of Zimbabwe Pension Fund, RAE, RAU, REC, RMS, and ZARWU, who are entitled to membership in terms of their conditions of service;

(c) A widow/widower of an employee deceased during employment with the bodies stated in (a) above; and

(d) All persons who were, as at the 30th day of April 1970, were members of the Fund as constituted up to and including that date.

What emerges from the list of persons or organizations entitled to membership is that only those associated with the railway industry can claim eligibility for membership in the first respondent.

Membership in the first respondent is therefore restricted.

I am therefore not certain that the applicants appreciate that the size of the first respondent is not what determines whether or not it is a public or private enterprise. Neither is the number of organizations within the railway industry whose employees or former employees who are entitled to claim such membership a factor.

The most pertinent feature is that the first respondent's Constitution excludes every other person who is not employed or connected with the railway industry from becoming or claiming a right to membership. As such, it is a restricted medical aid society on the basis of employment or association therewith and it cannot, on that, be termed to be a public body.

We are therefore not here concerned with issues of Public Law as argued on behalf of the applicants.

In casu, this court is concerned with the rights and obligations which flow from a contract, and, the law in this country is no different from that of South Africa when it comes to the application of the audi principle.

In our law, the principle as to whether the audi principle applies outside the realm of Public Law was concretized in Chirasasa & Ors v Nhamo NO & Anor SC133-02 where…, MALABA JA opined:

“The decision to terminate the appellants' contracts of employment on notice was made in the exercise of a contractual right. Mr Hwacha argued that this was a case of a mere contract between private individuals. It was not an express term of the contract of employment containing the right to terminate that the appellants should be heard before the decision to give them notice was taken. There is no basis on which such an obligation can be implied into the contract. That is particularly the case when termination for misconduct is expressly provided for in the Code of Conduct.”

Given that the applicants wish to enforce rights arising out of a contract between their members and the first respondent, such rights have to be given effect to in accordance with the terms of the contract the parties concluded.

The court is not permitted to go outside the terms of the contract, which, however, has not been exhibited to the court.

The error on the part of the applicants was to elevate the benefits afforded to their members by the first respondent to a condition of service and not appreciate that the condition of service was the actual membership in the first respondent and not the benefits themselves.

Had the applicants appreciated the distinction they might have then accepted that what was at stake in this matter was the relationship between different contracting parties and the rights and obligations flowing from such a relationship.

The contract has not been invoked in these proceedings and I am unable to give effect to a right which has not been established.

The basis on which the applicants claim a right to be heard is not well premised, and, in my view, the right to be heard before the decision to alter the benefit structure has not been established.

I therefore find for the respondents in this matter.

In the premises, the application is dismissed and the applicants are ordered, jointly and severally, the one paying the others being absolved, to pay the respondents' costs.

HH133-12 : MONICA CHIKOORE vs J P KADZIYA and DISTRICT ADMINISTRATOR, KADOMA DISTRICT and MINISTRY OF LOCAL GOVERNMENT
Ruled By: MATHONSI J

This is an urgent application in which the applicant seeks the following relief:“1. Terms of the Final Order SoughtThat you should show cause to this Honourable Court why an order should not be made in the following terms:(a) That the proposed meeting of 10 March be and is hereby set ...

This is an urgent application in which the applicant seeks the following relief:

“1. Terms of the Final Order Sought

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

(a) That the proposed meeting of 10 March be and is hereby set aside.

(b) Cost of this (sic) to be borne by the first respondent.

2. Interim Relief Granted

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

(a) The respondents are hereby ordered and directed to suspend the meeting to be held on 10 March 2012 pending the outcome of the Anti-Corruption report.”

The applicant has stated, in her founding affidavit, that, she hails from a sub-house of the Benhura chieftainship known as the Wakapiwa clan. A process to select a substantive chief has commenced and a meeting to select the chief was set for 10 March 2012 at Manewe Business Centre in Kadoma. She stated, further, that, in that process there is some indication that her own sub house is being excluded from coming up with a possible candidate for the chieftainship because the District Administrator would like to impose a candidate favourable to him.

The applicant submits that her own sub-house and the Chitinhe sub house, although belonging to the Benhura chieftainship, have been excluded in the past and have not been given an opportunity to also rule in the rotational succession to the chieftainship. She bemoans the fact that documents proving that they have a right to participate in the chieftainship were tampered with at the office of the District Administrator resulting in her and other members of her family reporting the matter to the Anti-Corruption Commission which is now seized with the matter and is investigating it.

No documentation has been produced as proof that the Anti-Corruption Commission is investigating the matter, when such investigations commenced, and when they will end.

Indeed, no affidavit has been elicited from that Commission to bolster the applicant's case.

More importantly, it has not been shown what difference the Commission's investigations will make to the selection process.

The interdict which the applicant is seeking appears perpetual. She wants to stop a selection process pending nothing at all and for an indefinite period. This is inappropriate.

This application was filed on 9 March 2012 when the selection meeting had been pencilled for 10 March 2012. No explanation has been proffered as to why the applicant had to wait until the day of reckoning to make the application.

This matter therefore does not pass the test of urgency provided by the Rules of Court. It is urgency which stems from a deliberate and careless abstention from action until the deadline draws near and is not the urgency contemplated by the Rules: Kuvarega v Registrar General & Anor 1998 (1) ZLR 188…,.

In any event, the applicant has stated, now, that the meeting did not occur.

Even if the applicant had satisfied the requirements for urgency, she would still not succeed because the application is without merit.

There is no basis for stopping the selection process at all. If anything, the applicant should be asking for inclusion in the selection process so that she and her sub-house can justify their claim to the chieftainship. It is only when the selection process has come up with a flawed outcome that she can have a basis for challenging it.

To seek to stop the process in its tracks because a case of tampering with records at the District Administrator's office has been referred to the Anti-Corruption Commission is unsustainable.

Accordingly, the application is dismissed with costs.

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

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

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

“Terms of the provisional order granted

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

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

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

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

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

“Terms of the final order sought

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

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

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

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

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

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

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

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

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

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

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

This application is opposed.

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

(i)...,.

(ii)...,.

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

Urgency

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

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

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

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

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

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

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

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

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

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

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

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

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

The subsequent correspondence between the parties is instructive.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

That is a non-issue.

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

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

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

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

In my view, the dispute between the parties, as at 13 August 2010, was not the ownership of the goods as prayed for in the final order. It was not the surrender of the goods as prayed for in the interim relief sought. The issue was about being allowed access to carry out a stock take in anticipation of the surrender of the goods on 31 August 2010.

The urgency therefore was in relation to the issue of being denied access to the goods to carry out stock take and proper accounting. Unfortunately, this is not the relief sought by the applicant.

As per the interim relief sought, the applicant prays for immediate surrender of the goods, which goods the applicant had agreed to collect on 31 August 2010. The interim relief does not seek to address the issue of being allowed access to the shop for accounting and stock take purposes.

Counsel for the applicant did not even seek to amend this defective provisional order despite the persistent concerns by the court - even at the eleventh hour....,.

My finding is that there was urgency in this matter on the basis of the dispute which arose regarding access to the goods for purposes of stock take and accounting. However, such urgency does not relate to the relief sought. The relief sought is misplaced and improperly drafted.

This court cannot, in the absence of a proper application, proceed to amend the relief sought moreso when such shortcomings were brought to the attention of the applicant's counsel.

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

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

Background

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

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

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

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

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

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

High Court Judgment

The court a quo dismissed all three points in limine.

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

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

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

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

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

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

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

Grounds of Appeal and Relief Sought

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

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

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

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

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

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

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

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

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

Material disputes of fact relating to performance

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Appealed
SC08-14 : SIMBA MUKAMBIRWA and OTHERS vs THE GOSPEL OF GOD CHURCH INTERNATIONAL 1932
Ruled By: GARWE JA, GOWORA JA and OMERJEE AJA

The respondent in this case, the Gospel of God Church International 1932 (hereinafter referred to as “the Church”) was founded by one Johane Marange in 1932.

Since it was founded, the Church has spread to a large portion of the continent. Its headquarters are located in Zimbabwe. The founder is buried at Marange, wherein a shrine in his memory has been established.

The Church has also, over the years, acquired considerable assets, both movable and immovable. The very existence of the shrine, and the assets, has produced strife between the followers of the Church which has seen countless disputes between competing factions and interests being filed for adjudication by these courts.

The present appeal is concerned with a dispute surrounding regalia associated with the Church as well as other property belonging to the Church, and who should legally possess such items.

The background to this appeal is as follows:

On 8 September 2009, the Church, under Case No. HC4101/09, filed a court application for certain relief, the particulars of which do not appear from the record.

The appellants, to whom the application was addressed, then filed a notice of opposition to which an opposing affidavit was attached.

Incorporated in the notice of opposition was a counter-application, and, notwithstanding the absence of a formal application for a counter application, in the opposing affidavit, the appellants made reference to such counter application and attached a draft order to the opposing affidavit.

The Church, for reasons that are not germane to the resolution of this dispute, did not file an answering affidavit.

Sometime in October 2009, officers of the Church discovered that the “counter application” referred to in the opposing affidavit filed under Case No. HC4010/09 had been granted by the High Court on 28 October 2009 in Motion Court.

It is common cause that the Church had not been served with a notice of set down.

As a consequence, the Church, under Case No. HC5403/09 filed a court application for the rescission of the default judgment in question.

The High Court ordered that the default judgment granted on 28 October 2009, under Case No. HC4101/09, be set aside.

Following upon the default judgment under Case No. HC4101/09, which was concerned with relief under the counter-application, the appellants sought compliance with the order from the Church and those of its members whom they considered to be bound by the order.

The Church, however, did not comply with the default order and chose, instead, to have the judgment rescinded resulting in the appellants instituting an application for contempt under Case No. HC976/10.

Even though the order under the counter application had been obtained against the Church only, the appellants, under Case No. HC No.976/10 sought an order of contempt against the Church, Zebron Pedzisai Nengomasha, Era Tapera, Jacob Machiha, Sara Muungani, Sesi Catherine, and Masawi Mhizha.

The order also sought for the committal of the named respondents to prison for contempt.

The allegations against the respondents, including the Church, were that they had failed or refused to comply with the order issued in default against the Church and granted in the counter application.

Both applications, the one for rescission and for contempt of court, were placed before one judge who then caused them to be set down for hearing at the same time.

As a consequence, the learned judge granted the application for rescission and set aside the order granted under the counter-application. The application for an order for contempt was dismissed. The terms of the composite order issued by the court are as follows:

“For the avoidance of doubt, the order of the court in HC5403/09 is as follows:

1. That the order granted by this court on 28 October, in HC4101/09, be and is hereby set aside.

2. That the applicant is granted leave to file the answering affidavit to the application in HC4101/09 within seven (7) days of this order.

3. That the respondents shall pay the applicant's costs.

The order of the court in HC976/10 is as follows:

It is ordered that the application be and is hereby dismissed with costs.”

It is against the above order that the appellants have appealed to this Court. The grounds on which the appeal is premised are the following:

That the court a quo erred and misdirected itself in:

1. Granting the respondent audience when the respondent was in clear contempt of court.

2. Treating the application in question as an application made in terms of Rule 449 of the High Court Rules.

3. Ruling that the default judgment was erroneously granted in circumstances where the judge had condoned non-compliance of the Rules....,.

Applications, both chamber and court applications, are provided for under Order 32 of the High Court Rules, 1971.

The format for an application is set out in Rule 227, which provides that every written application, notice of opposition, and supporting and answering affidavit shall contain the documents specified therein and the form that it shall be in.

Rule 229A, on the other hand, specifies how a respondent, in addition to filing a notice of opposition and opposing affidavit, may file a counter application, and the Rule provides:

“(1) Where a respondent files a notice of opposition and opposing affidavit, he may file, together with those documents, a counter application against the applicant in the form, mutatis mutandis, of a court application or a chamber application, whichever is appropriate.

(2) This order shall apply, mutatis mutandis, to a counter-application under subrule (1) as though it were a court application or a chamber application, as the case may be, and, subject to subrule (3) and (4), it shall be dealt with at the same time as the principle application unless the court or a judge orders otherwise.

(3) If, in any application in which the respondent files a counter-application under subrule (1), the application is stayed, discontinued, or dismissed, the counter application may nevertheless be proceeded with.

(4) The court or a judge may, for good cause shown, order an application or counter application filed under subrule (1) to be heard separately.”

The appellants had properly filed a notice of opposition to which they attached an opposing affidavit after being served with a court application instituted on behalf of the Church.

Instead of filing a counter-application in the prescribed form, they made reference to a counter application in the opposing affidavit.

Consequently, there was no founding affidavit to the counter application as it was in the opposing affidavit that they sought to make out a case for the relief sought in terms of a draft order attached to the opposing affidavit.

Where a respondent wishes to file a counter-application in addition to filing an opposing affidavit, the Rules require that a separate application be filed in the requisite form.

Subrule (2), which provides for the format to be followed in filing a counter application is peremptory in its terms, and, in the absence of compliance with the form required, there was no counter-application before the learned judge who granted the default judgment in favour of the appellants.

The High Court found, correctly in my view, that, there was no valid counter application filed by the appellants.

In Coffee, Tea & Chocolate Company Ltd v Cape Trading Company 1930 CPD 82 GARDINER JP set out clearly, that, in an application, the cause of action is made out in the founding affidavit. He said the following:

“A very bad practice, and one by no means uncommon, is that of keeping evidence on affidavit until the replying stage, instead of putting it in support of the affidavit filed upon the notice of motion.

The result of this practice is either that a fourth set of affidavits has to be allowed or that the respondent has not an opportunity of replying.

Now these affidavits of Barnes, Turnbull, Lee, Gardner, and Lang should, in my opinion, properly have been put in support of the notice of motion. They are not a reply to what has been said by the respondent, and I am not prepared to allow them to be put in at this stage.”

This dicta was reiterated by REYNOLDS J in Mobil Oil (Pvt) Ltd v Travel Forum (Pvt) Ltd 1990 (1) ZLR 67 (H) where the learned Judge said:

“It is a well-established general rule of practice that new matter should not be permitted to be raised in an answering affidavit: the cause of action must be fully set out in the founding affidavit.

This has been the settled practice of our courts, at least since the matter was adverted to in Coffee, Tea and Chocolate Co Ltd v Cape Trading Co. Ltd 1930 CPD 81, at 82.

As remarked by SAMATTA J, however, in Mitton v Alcock NO & Ors HH21-87, at p7 of the cyclostyled judgment:

'It is, like other procedural rules, subject to the overriding discretion of the Court.'

In the exercise of such discretion, the court would obviously only sanction a departure from the general rule on good cause shown.”…,.

See also the remarks of SANDURA JA in Mangwiza v Ziumbe NO & Anor 2000 (2) ZLR 489…,.

SSC04-21 : MARRY MUBAIWA-CHIWENGA vs THE STATE and NATIONAL PROSECUTING AUTHORITY and CRIMINAL CLERK OF COURT, ROTTEN ROW MAGISTRATES COURT
Ruled By: MAVANGIRA JA

BAIL APPEAL (In Chambers)THIS APPLICATIONOn 6 January 2021, the appellant filed with the Registrar of this Court papers titled:“APPEAL BY THE APPELLANT IN TERMS OF SECTION 121(1)(a) OF THE CRIMINAL PROCEDURE AND EVIDENCE ACT [CHAPTER 9:07] AS READ WITH RULE 67 OF THE SUPREME COURT RULES, 2018.”Attached to the cover ...

BAIL APPEAL (In Chambers)

THIS APPLICATION

On 6 January 2021, the appellant filed with the Registrar of this Court papers titled:

“APPEAL BY THE APPELLANT IN TERMS OF SECTION 121(1)(a) OF THE CRIMINAL PROCEDURE AND EVIDENCE ACT [CHAPTER 9:07] AS READ WITH RULE 67 OF THE SUPREME COURT RULES, 2018.”

Attached to the cover page is an application for alteration of bail conditions that the appellant filed in the High Court as well as the attachments thereto, the State's responses, and the appellant's heads of argument. Also attached is a Notice of Appeal to the Supreme Court, appealing against the judgment of the High Court in the matter. A copy of the judgment, HH825-20, also attached.

On 7 January 2021, in proceedings convened for that purpose, timelines were agreed for the filing of papers, and heads of argument by the parties and an order providing for the same was issued by consent. The order also provided for the hearing of the matter on 22 January 2021, such date being accommodative of the agreed dates for the filing of the necessary papers. Thereafter, and pursuant to the issuance of Practice Direction 2 of 2021, on 21 January 2021, I directed that the Registrar advise counsel for both parties that the hearing scheduled for 22 January would no longer be held and that I would accordingly determine the matter on the papers filed as the parties had already filed all the papers including their respective heads of argument.

FACTUAL BACKGROUND

The pertinent and condensed facts, for the purposes of this judgment, are that the appellant, facing certain charges, was admitted to bail on certain conditions including the condition that she surrenders her diplomatic passport to the Clerk of Court at Harare Magistrates Court. Thereafter, in different proceedings, and on different charges that were subsequently laid against her, she was admitted to bail after successfully appealing to the High Court against refusal of bail. The subsequent bail order was later altered by the addition of a provision requiring her to surrender her ordinary passport to the Clerk of Court at Harare Magistrates Court. She then applied for the alteration of the bail condition and sought an order for her ordinary passport to be released to her and that she be authorised to travel to the Republic of South Africa for medical attention.

The court a quo dismissed her application.

POINT IN LIMINE

The first respondent filed a Notice of Opposition and opposing affidavit in which it raised a point in limine.

The import of the point in limine is to the effect that the appeal is fatally defective for non-compliance with Rule 67(1) and (5) of the Supreme Court Rules, 2018 (the Rules). It is contended, that, there being no written statement filed, the appeal is fatally defective because it is the written statement that lays the basis of the appeal. The submission is made, that, for that reason, the matter must be struck off the roll.

It is also contended that the appellant has failed to comply with the peremptory requirement stipulated in subrule (5) that the written statement and record of proceedings be served on the Prosecutor-General and the judge whose decision is the subject matter of the appeal.

The appellant's contention, in response, is that the point in limine raised by the first respondent does not have any legal substance and ought to be dismissed as there is substantial compliance with the Rules.

It is submitted that the Rules do not contain a form that the statement contemplated in Rule 67(1) must follow. It is further submitted, that, the matters stated in paragraphs (a) to (c) of subrule (1) of Rule 67 are all covered and met or satisfied by the Notice of Appeal that was filed. The fact that the said requirements “have not been presented in a manner that the 1st Respondent prefers,” so the argument goes, “does not change the substance of the present matter.”

The appellant's stance is that she is in substantial compliance of Rule 67(1) because “all the documents served on the 1st Respondent meet the requirement of Rule 67(1) as read with Rule 67(5).”

In other words, the Notice of Appeal suffices as the written statement that is required or as an adequate replacement of the same, in the event that it is said not to be itself a “written statement.”

SECTION 121(1) OF THE CRIMINAL PROCEDURE AND EVIDENCE ACT [CHAPTER 9:07]

The reference to paragraph (a) of subsection (1) of section 121 of the Criminal Procedure and Evidence Act [Chapter 9:07] on the cover page of the appellant's papers is wrong as the particular paragraph relates to appeals by the Prosecutor General or the public prosecutor against the admission of a person to bail.

It is paragraph (b) of the same section and subsection that allows the appeal against the refusal to admit a person to bail, and, by extension, an appeal against the refusal of an application for the variation of a bail condition.

The Notice of Appeal attached to the papers cites section 121(1)(b), that being the applicable provision in such appeals. It should in fact, in my view, be section 121(1)(b) as read with subsection (2)(a).

The relevant parts of the provision read:

“Appeals against decisions regarding bail

(1) Subject to this section, where a judge or magistrate has admitted or refused to admit a person to bail –

(a)…,.

(b) The person concerned, at any time;

may appeal against the admission to or refusal to bail or the amount fixed as bail or any conditions imposed in connection with bail….,.

(2) An appeal in terms of subsection (1) against a decision of –

(a) A judge of the High Court, shall be made to a judge of the Supreme Court.”

I highlight, at this juncture, that, this matter concerns not the refusal of bail but relates to the refusal by the High Court of a variation of a condition of bail.

RULE 67 AND ITS APPLICABILITY

By virtue of the specially highlighted portion of the provision in section 121(1) of the Criminal Procedure and Evidence Act, quoted above, Rule 67 of the Supreme Court Rules, 2018 is the only provision that is applicable in matters of the nature of the appellant's quest before this court. It provides, in part:

“(1) An appeal against the refusal of bail in terms of section 121(1)(b) of the Criminal Procedure and Evidence Act [Chapter 9:07] may be noted, at any time after the refusal of bail by the judge of the High Court, by filing with a registrar a written statement indicating –

(a) The reason why bail should be granted;

(b) The proposed terms thereof; and

(c) Whether or not bail has previously been refused by a judge or magistrate, and, if it has been refused –

(i) The grounds on which it was refused, if the grounds are known to the appellant; and

(ii) The date on which it was refused.

(2) In addition to the statement in subrule (1), the appellant shall simultaneously lodge with the registrar a record of the bail proceedings which are the subject of the appeal:

…,.

(5) As soon as possible after filing an appeal in terms of subrule (1), the appellant's legal practitioner, where the appellant is legally represented, or the registrar, where the appellant is not legally represented, shall –

(a) Cause a copy of the statement and the record referred to in subrules (1) and (2) to be served on the Prosecutor-General and the judge whose decision is the subject of the appeal; and

…,.

Provided that a judge may permit an application to be heard without a copy of the judgment having been so filed, if he or she is satisfied that to obtain such a copy would unreasonably delay the hearing of the appeal.

(6) Where practicable, a judge on whom a statement and the record has been served in terms of sub-rule (5) shall file with the registrar his or her written comments on the appeal at least one day before the hearing of the appeal.

(7) The Prosecutor-General shall, at least one day before the hearing, file with the registrar and serve on the appellant a statement detailing his or her response to the appeal.

8) The registrar shall set down an appeal referred to in subrule (1), after consultation with a representative of the Prosecutor-General and any legal practitioner representing the appellant, for hearing by a judge within four days after the appeal is filed:

Provided that the four-day period may be extended by agreement between the Prosecutor General and the appellant or by order of a judge in terms of Rule 4.”…,.

Whilst no issue has been specifically raised about the applicability of Rule 67, it is important, in my view, for the avoidance of doubt or confusion, to confirm that it is applicable in this matter.

The fact that an appeal relating to “any conditions imposed in connection with bail” (per section 121(1) of the Criminal Procedure and Evidence Act) is not specifically mentioned in Rule 67 does not, in my view, detract from the applicability of Rule 67 in this matter which relates to an intention to appeal against the refusal by the court a quo to alter a condition of bail.

Rule 67 prescribes the procedure by which an appeal provided for by section 121(1)(b) of the Criminal Procedure and Evidence Act (which the appellant's intended appeal is) may be noted.

The appeal is noted by filing with the Registrar a written statement indicating the matters stated in paragraphs (a) to (c) of sub-rule (1). In addition to the said statement, the appellant must…,., in accordance with subrule (2), simultaneously lodge with the Registrar a record of the bail proceedings which are the subject of the appeal. After filing the appeal, the appellant shall…, in fulfilment of the requirements of Rule 5(a), cause a copy of the statement and the record of the bail proceedings to be served on the Prosecutor-General and on the judge whose decision is the subject of the appeal.

A perusal of the Rules in respect of provisions made for the noting of both criminal and civil appeals from the High Court as well as miscellaneous appeals reveals the following common and significant aspects;

Rule 18, in respect of criminal appeals, provides, in relevant part, that, an accused person wishing to appeal against any conviction or sentence shall note his or her appeal by lodging a notice of appeal.

Rule 37 provides that every civil appeal shall be instituted in the form of a notice of appeal.

Rule 59, that relates to Miscellaneous Appeals and References, provides that every appeal under this Part shall be instituted by a notice of appeal.

I will proceed to quote each of the above cited rules verbatim in order to expose how, in their similarity, they differ conspicuously from Rule 67 with regard to the manner or procedure by which an appeal is noted.

Rule 18 pertains to criminal appeals and provides:

“(1) Subject to the provisions of subrule (4), an accused person wishing to appeal against any conviction or sentence shall note his or her appeal by lodging a notice of appeal with a registrar and a registrar of the High Court. Such notice shall be in Form 3 and shall be signed by the appellant or his or her legal representative and shall be accompanied by grounds of appeal in the form specified in Rule 19.”

…,.

Rule 37(1) provides:

“(1) Every civil appeal shall be instituted in the form of a notice of appeal signed by the appellant or his or her legal practitioner, which shall state –

…,. (a)–(f)

(2) The notice of appeal shall be filed and served on a registrar, a registrar of the High Court, and the respondent in accordance with Rule 38.”

Rule 59, which regulates miscellaneous appeals and references, provides:

“(1) Every appeal under this Part shall be instituted by a notice of appeal signed by the appellant or his or her legal representative.

(2) The notice of appeal referred to in sub rule (1) shall be directed and delivered by the appellant to the registrar or administrative officer of the tribunal, or to the officer whose decision is appealed against, and to all other parties affected, and shall also be filed with a registrar in accordance with Rule 60.

(3) The notice of appeal shall state –

…,. (a)–(f)”

What the above overview shows is that the manner of noting an appeal, as provided in Rule 67, this being the filing of a written statement, differs from the manner provided for the noting of all other categories of appeals which require the lodging of a Notice of Appeal.

APPEALS GENERALLY

JOHN REID ROWLAND, in Criminal Procedure in Zimbabwe (Legal Resources Foundation, 1997), states as follows:

“'appeal', in its ordinary sense, denotes an approach to a higher authority to alter the decision of an inferior; but, in legal practice, 'appeal' denotes a particular form of approach, which is distinguishable from other forms of relief, such as review. Appeals may take different forms, depending on the requirements of the statute in question.”

In the appeals that are noted under the Rules, by filing a Notice of Appeal, an appellant is required to set out grounds of appeal.

In an appeal under Rule 67, the requirement is for the filing of a written statement indicating;

(i) The reasons why bail (in this case the variation sought) should be granted;

(ii) The proposed terms thereof;

(iii) Whether or not variation has previously been refused by a judge, and, if it has been refused, the grounds on which it has been, if the grounds are known to the appellant; and the date on which it was refused.

THE WRITTEN STATEMENT

A Google search on the meaning of the word 'statement' yielded the following results, among others:

“- a communication or declaration in speech or writing, setting forth facts, particulars, etc.

- A definite or clear expression of something in speech or writing.

(per www.dictionary.com)

- A statement is something that you say or write which gives information in a formal or definitive way.

(per www.collinsdictionary.com)”

In an appeal governed by Rule 67, the written statement is the document in which an appellant sets out and establishes his or her or its case including the justification for the granting of the relief that he or she or it seeks.

It is the basis and the substance of the appeal.

That, in my view, is the document in which the appellant makes out his or her or its case in much the same way as a litigant does in a founding affidavit. The appellant's case is not made out in any subsequent documents or in heads of argument.

The written statement is the document that is required, by subrule (5)(a), to be served on the Prosecutor General and on the judge whose decision is the subject of the appeal.

It forms the genesis of the appeal procedure.

Without that genesis, there can be no progression that can properly culminate in proceedings and a determination according to law.

It is in the written statement that an appellant lays out his or her appeal, identifying himself or herself, explaining all that assists the court by informing it of all the pertinent exigencies of the appeal. It is also an appellant's opportunity to lay all relevant information before the court. It is a document that needs to be compiled with the meticulousness that its purpose and nature demand.

Without it, the court is disabled from relating to any intended appeal that is made in terms of Rule 67.

Rule 67 is specific and mandatory.

It is pertinent to look at paragraph (a) which requires the written statement to indicate “the reasons why bail should be granted.”

By its nature, a notice of appeal cannot meet this requirement. A Notice of Appeal is not a written statement. The regulated contents of a Notice of Appeal do not meet the requirements of a written statement as contemplated by Rule 67.

In an appeal in terms of Rule 67, the court inquires into whether or not the relief being sought should be granted.

The appellant's stance or case must be covered in the written statement. It is in the written statement that the grounds for granting the variation are required to be laid or set out or tabulated.

Grounds of appeal, as articulated in a Notice of Appeal, are, by nature, restrictive in their character and construction.

On the other hand, a written statement, as required by the Rules, informs the court in full of the appellant's case. It also informs the respondent(s), fully, of the case that must be met. It does not leave the court and the respondent(s), as is the position in this case, to wade through the Notice of Appeal, the record of bail proceedings, and the judgment of the court a quo and try to make out for themselves the appellant's case in its true and full extent.

Paragraph (c) of Rule 67(1) requires an indication in the written statement of whether or not bail has previously been refused by a judge and the grounds on which it was refused - if these are known to the appellant.

This requirement cannot possibly be adequately met in a Notice of Appeal by virtue of the nature of document that it is.

The Rules require that a Notice of Appeal must, amongst other things, “set out clearly and specifically…, the grounds on which the appeal is made” (per Rule 19(1)) or to have grounds of appeal that are “set forth clearly and concisely” (per Rule 44(1)).

An appeal under this Rule stands or falls on the written statement.

In an appeal instituted by way of a Notice of Appeal, the appellant will present his or her or its case in full in heads of argument. It is in the heads of argument that the court and the respondent are finally informed, in full, of the appellant's case and the respondent then files its own heads of argument in response.

Under Rule 67, it is the written statement, and not any other document, that so informs the court and the respondent(s) and must then be responded to, in detail, by the Prosecutor General or commented on by the judge whose decision is the subject of the appeal.

The filing of a Notice of Appeal, as has been done in casu, does not, in my view, serve the interests of justice bearing in mind that the interests of both parties must be considered. Such consideration can only be possible where the appeal is noted by way of a written statement to which the respondent will file a statement detailing his or her response.

In any event, an appeal under Rule 67 would, if determined on the basis of a Notice of Appeal, as urged by the appellant, not be determined in accordance with the law.

NO SERVICE ON THE PROSECUTOR-GENERAL AND ON THE JUDGE

The certificate of service filed by the appellant shows that the papers by which she purported to note her appeal were served on the first and the second respondents but not on the judge whose decision is the subject of the purported appeal.

No explanation has been proffered why the judge was not served.

The provision is mandatory.

No justification has been laid as to how and why this court can and/or must overlook this requirement.

In this regard, note must be taken, that, in terms of subrule (6), after the serving of the statement and the record of bail proceedings on the judge whose decision is the subject of the appeal, he or she shall, where practicable, file with the Registrar his or her written comments on the appeal at least one day before the hearing of the appeal.

It goes without saying that the judge's comments are meant, where provided, to be of assistance to the determination of the appeal.

This is moreso in view of the fact that matters of the liberty of the individual, especially so before conviction, are sacrosanct matters that require expeditious resolution by judicial decisions that are well informed and based on the law.

The crafting of the Rules in the manner discussed was meant to achieve that objective.

Such decisions can only be achieved when all the parties are fully and properly heard by the court.

Critically, the initiator of the process has the obligation to ensure that all who must be heard by the court are brought before the court.

In casu, the failure to serve the judge negated that obligation.

It cannot escape observation and mention, that, all this is overshadowed by the fact that even those parties, to wit, the first and the second respondents, that were purportedly served with papers were not served with a written statement.

The service that was effected on them can thus be described as futile and serving no purpose.

The fact is therefore inescapable that neither the judge nor the Prosecutor General were served with the requisite written statement.

The failure to file a written statement, which is a pre-requisite for any appeal under this Rule, and the filing in lieu thereof of a Notice of Appeal, disables any ventilation of any intended appeal that an appellant desires to be placed before the court.

The judge in the court a quo exercised a discretion in determining the application that was before him for the variation of a bail condition. The Rules are designed to afford him (or her) an opportunity to make comments in the event of an appeal being noted against his (or her) decision.

The judge's comments may well be supportive of the appeal or may not be so. The judge's comments are meant to be one of the cogs on the wheel of justice in so far as appeals in terms of Rule 67 are concerned.

The net effect of compliance with the discussed provisions is that the court will be enabled to dispense and serve justice.

As matters stand, there is non-compliance in fundamental respects that must, of necessity, impact negatively on the matter before me.

The requirement for the Prosecutor-General to, at least one day before the hearing, file with the Registrar and serve on the appellant, a statement detailing his or her response to the appeal, reinforces the critical point that the written statement is the pivotal document that enables an appellant to lay before the court, in detail, her appeal and the merits thereof.

That is also why the Prosecutor General is, after being served with the written statement and the record, required to file a statement detailing his or her response. The fact, however, as already noted earlier in this judgment, is that the Prosecutor-General was not served with a written statement.

The requirement for a written statement is thus not an idle requirement in the Rules. It is purposeful.

The written statement is certainly not a document that can be in the form of a Notice of Appeal and the difference is not merely cosmetic. The requirements of what must be indicated in a written statement cannot possibly be achieved within the confines of a Notice of Appeal.

It is therefore unwarranted for the appellant to attribute the raising of the point in limine to the fact that the requirements of Rule 67(1) have not been presented in a manner that the first respondent prefers.

The issue is not about preferences. It is about compliance with a purposefully crafted Rule that must be obeyed in order for justice to be dispensed.

Serious reflection by the appellant's counsel, after the raising of the preliminary point, should, in my view, have led to the careful reading of the Rule and appreciation of it, if proper attention had not been paid to the Rule before then.

This ought to have resulted in the realisation that Rule 67 had not been complied with at all and that there was need for timely and appropriate action that avoids persisting with a fatally defective appeal that unnecessarily deters the court, and, at the same time, has the effect of delaying the determination of the appellant's craved or intended appeal on the merits.

If the content of Rule 67 was paid attention to before the filing of the papers in casu, the court is left without explanation on why a written statement was not filed with the Registrar for the purpose of noting the intended appeal.

The appellant appears to expect the court, and the respondents, to create for themselves, and on her behalf, after reading all the papers that she filed attached to the cover page, the written statement by which the appeal ought to have been noted.

Needless to say, it is not for the court to make out a case for a litigant.

That, if it were even possible at all, would lead to serious miscarriage of justice, for the respondent would not know the case that the court has conjured up on behalf of the appellant and would neither know what to respond to as the statement made up by the court would remain locked in the court's mind.

The court could not perceivably produce a written statement of an appeal that it would thereafter proceed to make a determination on.

It would neither be perceivable that the Prosecutor-General would have to “assemble” for himself (or herself) from the papers filed, the written statement that ought to have been filed by the appellant and then proceed to purport to respond to it in a statement detailing his or her response.

Justice does not work that way at all.

There cannot thus be said to be any compliance with the pertinent Rule in such circumstances, let alone substantial compliance.

CONCLUSION

In the absence of a written statement, as stipulated, an appeal in terms of Rule 67 has not been noted. There is thus no appeal before this court.

In addition, the failure by the appellant to serve the judge with that which she insists to be good enough to qualify as a statement would, even if the Notice of Appeal were to be found to be or to qualify as a written statement, amount to inexcusable non-compliance.

As matters stand, the judge was completely “left out of the equation”, for want of a better expression.

In any event, the Notice of Appeal is not, as pointed out earlier, a replacement of the stipulated written statement.

On the papers before me, therefore, it follows that the appellant did not have any written statement to file with the Registrar or to serve on the judge or on any party at all.

The two-pronged point in limine must therefore be upheld;

(i) Firstly, no written statement was filed.

(ii) Secondly, neither the Prosecutor General nor the judge, whose decision is the subject of the intended appeal, was served with a written statement.

In view of these observations, the inevitable fate of this matter is therefore that there being no appeal before me, the matter must be struck off the roll.

It is important that I highlight that I am alive to the provisions of Rule 4 of the Rules in terms of which a judge or the court may direct a departure from the Rules where this is required in the interests of justice.

It is my considered view that this is not one such case for the reasons appearing herein.

It is accordingly ordered as follows:

The appeal be and is hereby struck off the roll.

View Appeal
HH665-16 : OLIVER MASOMERA (as Executor Dative of Estate late Brian James Rhodes) vs GIDEON HWEMENDE and OTHERS
Ruled By: CHITAPI J

In simple terms, a cause of action would be constituted by a totality of facts necessary to be proved by the applicant or the plaintiff to justify a right to sue or enforce a right against the opposing party, being the respondent or defendant as the case may be.MALABA JA…, ...

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

The plaintiff (Meikles) issued summons against the two defendants, Zimbabwe Stock Exchange (ZSE) and Alban Chirume (Chirume) claiming a declaratur and damages in the sum of $50,000,000.

The background to the matter is that on 16 February 2013, the defendants suspended the trading of Meikles shares on the Zimbabwe Stock Exchange.

The suspension was done without affording Meikles an opportunity to make representations before such a serious adverse action was taken.

On 26 February, the defendants placed an advert in the Herald Newspaper cautioning the public to “exercise caution in dealing with the plaintiff's shares.”

The suspension was eventually lifted.

The defendants entered appearance to defend and filed an exception on behalf of both defendants and a special plea in bar in respect of Alban Chirume.

I must, at the onset, deal with the nature of pleadings before me.

The plaintiff's summons and declarations is ten pages and to it is attached two letters as annexures. The defendants' exception is three pages and the second defendant's plea in bar is one page.

Order 3 Rule 11 of the High Court Rules 1971 on this issue provides:

“Before issue, every summons shall contain -

(a)…,.

(b)…,.

(c) A true and concise statement of the nature, extent, and grounds of the cause of action and the relief or remedies sought in the action.”

The author, ISAACS. in Beck's Theory and Principles of Pleading in Civil Actions, 5ed…, had this to say:

“17. Before the court is asked to decide any question which is in controversy between litigants it is in all cases necessary (except as hereinafter indicated) that the matter to be submitted to it for decision shall be clearly ascertained.

The plaintiff shall state, in concise terms, what facts he intends to rely on and to prove and the defendant shall do the same so that on the day of trial neither party shall be taken by surprise and that it may not be necessary to have the case adjourned, thereby causing wasted expense both litigants from which the State and the lawyers alone derive profit.

It has therefore often been stated by our courts, and it cannot be too often stated, that, the object of requiring the parties to file pleadings is to enable each side to come to trial prepared to meet the case of the other.”

The authors HERBASTEIN and Van WINSEN in The Civil Practice of the High Courts of South Africa, 5th ed…, stated the following about pleadings:

“The requisites of good pleading are said to be that it should contain a statement of -

(1) Fact, not law;

(2) Material facts only;

(3) Facts not evidence; and

(4) Facts stated in a summary form and that 'material facts' are all facts which must be proved in order to establish the ground of claim or defence.”

MATHONSI J, in Fungai Nhau v Memory Kipe and Anor HH73-15, confronted with what he terms long winding special plea in bar/abatement, had this to say:

“By definition, pleadings must be concise and to the point.

They must identify the branch of the law under which the claim or defence to it is made and should not contain evidence.

Pleadings which are long-winding and argumentative should not find their way to these courts. It is a serious dereliction of duty for legal practitioners to continue, presenting such offensive pleadings when they have the aid of literature guiding the drafting of pleadings. I associate myself fully with the sentiments of MAKARAU JP (as she then was) in Chifamba v Mutasa & Ors HH16-08 (unreported) that:-

'Legal practitioners are urged to read on the law before putting pen to paper to draft pleadings in any matter is that what they plead is what the law requires their clients to prove to sustain the remedy they seek…,.. Litigation in the High Court is serious business and the standard of pleadings in the court must reflect such.'”

I associate myself fully with the above remarks.

Maybe if the legal practitioners in this matter had taken heed of the advice, the present application might not have been made....,.

The Exception

The defendants contend, that, the plaintiff failed to establish a cause of action against the defendants in that it failed to aver, with particularity, all the essential requirements for liability in a delictual claim.

They further contend that there is no link between the alleged negligence and the loss suffered by the plaintiff.

The declaration does not state the manner in which the patrimonial loss arose. The claim for the alleged fall in the share price of the plaintiff's shares cannot be made by the plaintiff as it does not own the shares.

The defendants contend that there is no recognizable cause of action which is contained in the plaintiff's declaration both in respect of the declaration and the claim for damages.

The plaintiff relies on section 14 of the High Court Act [Chapter 7:06] for the issuance of a declaration.

No right has been identified. Instead, the plaintiff seeks a declaration on a state of affairs which are factual and are in the past.

He relied on MDC v The President of the Republic of Zimbabwe 2007 (1) ZLR 257 (H) for his submissions.

The plaintiff also alleges a breach of administrative law duties in terms of Administrative Justice Act [Chapter 10:28] in order to justify the declaration and the claim for damages.

The relief provided for in terms of section 4 of the Administrative Justice Act does not include a declaratory order.

The plaintiff seeks to rely on section 66 of the Administrative Justice Act on the basis that once it establishes a breach, it must be granted the relief that it seeks.

That is a misreading of the Rules.

Section 66 follows section 65 which provides that the Zimbabwe Stock Exchange has power to make rules regulating the conduct of their members. The plaintiff cannot rely on section 66 as it gives power to the Zimbabwe Stock Exchange to control its own members. The power is not available to a member.

Counsel for the plaintiff submitted that, at this stage, the plaintiff has to set up a framework for the court to go by. Whether it can prove facts is another issue.

The Declaratur

He submitted that many grounds were pleaded, viz;

(i) That the defendants acted outside the law;

(ii) That the defendants did not accord the plaintiff the right to be heard;

(iii) That was in breach of section 3 of the Administrative Justice Act.

He further submitted that there is a concrete controversy between the parties. The action is not in the past and the grant of the declaratur raises the question of whether the defendant must pay damages or not.

The Damages Claim

Counsel for the plaintiff submitted that section 66 of the Administrative Justice Act is binding upon both the plaintiff and the defendants. The question would be whether the defendants are capable of breaching the rules in section 66. If so, then they caused damage to the plaintiff.

Whether they did so or not is a matter of evidence.

He further submitted that if one attacks the reputation of a company, shares of the company will suffer loss. The price at which a share trades is directly linked to how the company performs. The question of quantum is an actuarial issue.

Paragraph 22 of the declaration makes the allegation that the illegality has affected the plaintiff. The plaintiff claims for purely economic loss.

The Law

An exception is a pleading in which a party states his objection to the contents of a pleading of the opposite party on the grounds that the contents are vague and embarrassing or lack averments which are necessary to sustain a specific cause of action or the specific defence relied upon: see HERBSTEIN and Van WINSEN, The Civil Practice of the High Court of South Africa 5th ed…,.

The learned authors…, continue by saying:

“In order to disclose a cause of action, the pleading must set out every fact (material fact) which it would be necessary for the plaintiff to prove, if traversed in order to support his right to judgment of the court.”

See also Peebles v Dairiboard Zimbabwe (Pvt) Ltd 1999 (1) ZLR 41 (H); Dube v Banana 1998 (2) ZLR 92 (H); and Abrahamse & Sons v SA Railways & Harbours 1933 CPD 626.

The fundamental question to ask is whether the plaintiff had pleaded every material fact to be proved to entitle it to succeed in its claim.

The material facts are the facta probanda (the facts which are required to be proved in order to succeed in the cause of action) and not the facta probantia (the facts which would serve to prove the facta probanda); see Jowel v Bramwele Jones & Ors 1998 (1) SA 836 W…,.

The Declarator

In MDC v The President of Zimbabwe & Ors 2007 (1) ZLR 257 (H)…, MAKARAU JP…, set out the legal principles applicable when a declaratur is sought and the mental steps that the court must follow in determining whether to issue a declarator.

These principles include that the plaintiff must show that there is a right or obligation which becomes the object of enquiry. At p269C she made the following observation:

“It appears to me, from a reading of the above authorities, that what is required to be contended is a legal right and not the factual basis upon which a right may be found.”

The defendants contend that the plaintiff, in its pleadings, did not identify any right.

In casu, there can be no doubt that the legal right, subject to the claim, has been identified and properly articulated.

The plaintiff pleaded that the defendants did not accord the plaintiff the right to be heard. This is a principle established in the Constitution, Administrative Law, and in terms of common law.

The plaintiff has therefore established, that, there is a right whose existence has been pleaded. Whether the plaintiff will be able to establish that right, it is a different issue.

The Damages Claim

My view is that the plaintiff has pleaded the essential elements of a delictual claim. If it were to succeed in obtaining a declaratur, then, it could have established a link between the defendant's conduct and its loss.

As counsel for the plaintiff correctly pointed out, the issue of quantum is a matter of actuarial evidence.

The plaintiff pleaded, that, as a result of the unlawful activities of the defendants, which affected its share price, certain losses were caused to it which are recoverable from the plaintiff.

This is a purely delictual claim whereby the plaintiff alleges that its patrimony has been diminished by the conduct of the defendant and that it should be restored.

The concerns by the defendants, of lack of particularity, can be cured by making a request for further particulars.

I want to conclude by saying that one can sympathise with the position taken by the defendants in that although one can discern a cause of action for the summons and declaration, it is a long winding and inelegantly drafted pleadings.

For this reason, although the plaintiff has succeeded, I will depart from the norm that costs follow the cause. This is due to the fact, that, had the pleadings been drafted in terms of the Rules, the exception would not have been taken.

My view is that the plaintiff's pleading disclose a cause of action.

In the result, I will make the following order:

(1) The exception is hereby dismissed.

(2)...,.

(3) There is no order as to costs.

HH68-16 : THE TRUSTEES FOR THE TIME BEING OF THE PHOENIX TRUST N.O. vs GIDEON HWEMENDE and OTHERS
Ruled By: CHIGUMBA J

This is an exception filed on behalf of the plaintiff to the 8th defendant's (Oliver Masomera, in his capacity as executor dative of the estate late Brian James Rhodes) plea and counterclaim.

The plaintiff's contention is that the 8th defendant's plea is vague and lacks the averments necessary to sustain a defence.

The plaintiff contends, further, that this exception goes to the root of the 8th defendant's case, and is thus properly taken.

If the plaintiff's contentions are correct, then the exception will be upheld.

The court must ask itself whether the 8th defendant's plea and counter-claim contain sufficient particulars to constitute a valid defence and sustain a proper claim to the shareholding in the two property companies which is the main bone of contention between the parties. The Court must decide whether the exception is one of substance, which goes to the root of the claim, and whether upholding the exception will dispose of the main matter without delving into the merits.

The background giving rise to the exception is that summons for a declaratur was issued against the ten defendants (Gideon Hwemende, Valentine Mushore, Alfred Chademana, Joel Tenderere, Oliver Chibage, Farai Mutizwa, Calisto Vengesai, Oliver Masomera, in his capacity as executor dative of the estate late Brian James Rhodes, Registrar of Companies N.O. and Master of the High Court N.O.) on the 31st of March 2015.

The plaintiff sought a declaratur that the appointment of the first to seventh defendants (Gideon Hwemende, Valentine Mushore, Alfred Chademana, Joel Tenderere, Oliver Chibage, Farai Mutizwa, Calisto Vengesai) as directors in Beverly East Properties (Private) Limited and Karoi Properties (Private) Limited (hereinafter known as the two property companies) was illegal, null, and void.

The plaintiff sought the nullification of all CR14 forms and all other statutory documents issued by the 9th defendant (the Registrar of Companies) in confirming the appointment of the directors.

The plaintiff sought a second declaratur that its appointment of directors to the two property companies was lawful.

The consequential relief sought was the reinstatement of the previous directors in the two property companies and an order directing the ninth (9th) defendant (the Registrar of Companies) to do all things necessary to give effect to such reinstatement.

In the declaration to the summons, the plaintiff averred that it is a representative of the trustees for the time being of the Phoenix Trust in their official capacities.

The 1st-8th defendants (Gideon Hwemende, Valentine Mushore, Alfred Chademana, Joel Tenderere, Oliver Chibage, Farai Mutizwa, Calisto Vengesai and Oliver Masomera) are all private citizens.

The 8th defendant (Oliver Masomera) is cited in his official capacity as the curator bonis of the estate of the late Brian Rhodes, who created the plaintiff.

The 9th (the Registrar of Companies) and 10th (the Master of the High Court) defendants are cited in their official capacities.

The plaintiff holds the entire shareholding in the two property companies, which both own immovable property, in terms of a judgment of this court, HH424-13, and various other judgments of this court, HC3848-11, HH52-13.

The first defendant (Gideon Hwemende) was one of the parties who had laid claim to the shareholding in the two property companies prior to the determinations by this court that the entire shareholding vested in the plaintiff.

As a result of the claim, the plaintiff contended that the first defendant unlawfully and fraudulently appointed himself and the 1st -7th defendants (Gideon Hwemende, Valentine Mushore, Alfred Chademana, Joel Tenderere, Oliver Chibage, Farai Mutizwa, Calisto Vengesai) as directors of the two property companies and proceeded to submit CR14 forms to the 9th defendant (the Registrar of Companies) to confirm their directorship.

The legitimate directors of the two property companies were removed after the misrepresentation to the 9th defendant (the Registrar of Companies).

No general meeting constituting a quorum of members, as required in terms of the Companies Act [Chapter 24:03], was convened to sanction these appointments.

Confusion now reigns amongst the plaintiff's tenants and other stakeholders and presently there is no one in charge of the two property companies.

Unknown persons have been collecting the rentals from the two property companies, to the plaintiff's prejudice.

On 16 April 2015, the 8th defendant (Oliver Masomera, in his capacity as executor dative of the estate late Brian James Rhodes) entered an appearance to defend to the summons; the first defendant (Gideon Hwemende) entered its appearance to defend on the 22nd of April 2015.

On 3 June 2015, the 8th defendant (Oliver Masomera, in his capacity as executor dative of the estate late Brian James Rhodes) filed a plea to the plaintiff's claim in which he averred that he is the executor dative of the estate late Brian James Jones; he holds the entire shareholding in the two property companies on behalf of that estate; he was not part of the court proceedings in which this court determined the shareholding in the two property companies in favor of the plaintiff and is currently challenging those judgments, HH424-13, HC617-15; it is the plaintiff and the other defendants who are misrepresenting facts to deprive the 8th defendant of its shareholding; it is the plaintiff which fraudulently and illegally created documents purporting to donate the authorized share capital of the two property companies to itself.

The 8th defendant filed a counterclaim in which he averred that the two property companies each had two issued shares held by the late Brian James Rhodes, the shares accrued to his estate on his death, the plaintiff's claim to those shares is fraudulent and illegal, a declaratur should be issued in his favour that the plaintiff expropriated the issued shares in the two property companies, and that the donation of the shares was null and void.

A second declaratur that the entire issued shares in the two property companies are held by the 8th defendant (Oliver Masomera, in his capacity as executor dative of the estate late Brian James Rhodes).

On the 3rd of July 2015, the plaintiff filed an exception to the 8th defendant's plea and counterclaim in which it averred that; the 8th defendant's case is vague and lacks the averments necessary to sustain a defence or an action, more particularly, that; the 8th defendant failed to set out the legal basis on which he asserted that the entire shareholding of the two property companies is held by the estate late Brian James Rhodes.

The plaintiff averred that the 8th defendant failed to set out which facts it misrepresented to deprive the estate of its shareholding, or of the date when the plaintiff became aware of this fact. Further, the 8th defendant failed to identify the person who is alleged to have fraudulently and illegally created documents purporting to donate the authorized share capital of the two property companies to the Trust. The 8th defendant is challenged to specify the date on which the shares were allocated to the late Brian James and to specify how the plaintiff fraudulently and illegally expropriated the issued shares and how the plaintiff expropriated the issued shares.

It is common cause that the plaintiff served a letter of complaint on the 8th defendant on the 29th of June 2015, in accordance with the requirements of Rule 40 of the Rules of this Court, and that the 8th defendant did not respond to or attend to the complaints raised in that letter.

Turning to the law that applies in cases such as this one, it is well established that a litigant must know the case that it needs to meet: see Trinity Engineering (Private) Limited v CBZ 2000 (2) ZLR 385 (H), which relied on Timesecurity (Pty) Ltd v Castle Hotel (Private) Limited 1972 (1) RLR 155 as authority for this proposition.

In one of my own judgments, Ritenote v A. Adam & Co, HH83-14, the circumstances in which an exception may properly be taken were said to be where the claims are not clear or concise in fact and in law.

The plaintiff's summons and declaration must disclose sufficient particularity, and a cause of action which is appropriate at law and which is not contradictory or mutually destructive.

The plaintiff contends that the failure to set out the basis on which 8th defendant avers that the late Brian James Rhodes held the entire shareholding in the two property companies constitutes insufficient particularity to establish the 8th defendant's defence and cause of action in its counterclaim.

The same complaint applies to the rest of the pleadings that the plaintiff excepts to.

Heads of argument on behalf of the 8th defendant were filed on the 2nd of November 2015. One of the main points of law raised was that the 8th defendant has an application filed in HC617-15 and set down for hearing on 20 November 2015 involving the same parties in which rescission is sought, of the judgment which gave the plaintiff rights over the two property companies.

It was contended, that, the Master of the High Court is aware of the plaintiff's fraudulent claims and that he appointed the 8th defendant to investigate these claims on behalf of the estate.

The 8th defendant contended that the summons is not properly before the court because they refer to a curator bonis which ceased to exist in 2014. The summons is excipiable on the basis that they disclose no cause of action against the 8th defendant (Oliver Masomera, in his capacity as executor dative of the estate late Brian James Rhodes).

I find myself in agreement with the proposition put forward on behalf of the 8th defendant, that, when dealing with matters of exception, if evidence can be led which can disclose a cause of action on the facts, as alleged in the pleading, then that pleading is not excipiable: see Mckelvey v Cowan N.O. 1980 ZLR 235.

See also Levenstein v Levenstein 1955 (3) SA 615 (SR), where it was held that;

“No doubt, these are proper questions, but, recognition of that fact does not mean that an exception can be founded upon every questionable allegation; the embarrassment must be such that it cannot be removed by a request for further particulars. (see the remarks of DAVIS J, in Kahn v Stuart & Ors 1942 CPD 386 @ p392).

In my view, there should have been a request for further particulars; had that been done, the plaintiff's difficulties might well have disappeared.”

A declaration must state, lucidly, each of the facts constituting the plaintiff's cause of action: see Koth Property Consultants CC v Lepelle-Nkupi Local Municipality 2006 (2) SA 25 (T)…,.

The learned authors, HERBSTEIN & Van WINSEN, The Civil Practice of the Superior Courts in South Africa (3rd ed)…, state, that, where some essential element of the plaintiff's cause of action is not pleaded, it is not disclosed; and, that, where the pleading is contradictory or vague, the defendant would be prejudiced in his defence, and, that, an exception must be upheld in these circumstances.

The 8th defendant's defence, and cause of action for the counterclaim, is premised on allegations of fraud.

Fraud is a criminal offence, whose essential elements must be proved.

It cannot, in my view, be said that the plaintiff does not know the case that it must meet.

What the 8th defendant has done, in essence, is to turn the tables on the plaintiff and make similar averments to those made by the plaintiff in the summons and declaration.

If the 8th defendant's plea and counterclaim is vague and embarrassing, so is the plaintiff's summons and declaration, premised as both sets of pleadings are, on the same set of facts between the same parties.

The plaintiff did not state who in particular amongst the 1st-7th defendants allegedly fraudulently caused their appointment as directors and the removal of the previous directors.

On what basis does the plaintiff now seek to complain that the 8th defendant similarly has failed to disclose specific names of the alleged perpetrators of the fraud against the estate late Brian James Rhodes?

In my view, the paucity of particulars in both sets of pleadings can be cured by appropriately worded requests for further particulars.

The plaintiff was fishing for information when it took this ill-advised exception. It has remedies in terms of the Rules. This finding is supported by the following set of cases; Rheeder v Spence 1978 (1) SA 1041 (R) and McKelvey v Cowan NO 1980 ZLR 235 (GD)…, where the court said that:

“It is a first principle in dealing with matters of exception, that, if evidence can be led which can disclose a cause of action alleged in the pleading, that particular pleading is not excipiable.

A pleading is only excipiable on the basis that no possible evidence led on the pleadings can disclose a cause of action.”

See also William & Taylor v Hitchcock 1915 WLD 51; Strand Meat Co. (Pty) Ltd v Smith 1930 CPD 24; Fuxman v Brittain 1941 AD 273; and Schultz v Nell 1947 (2) SA 1060…,.

It cannot, in my view, be said that the plaintiff does not know the case that it must answer.

Evidence can be led which can disclose the names of the specific perpetrators of the fraud on the plaintiff, or on the 8th defendant in terms of its counter claim.

The taking of the exception was ill advised, and, on shaky ground at law from the outset.

It seems to me, that, taking an exception to the contents of the pleadings, as a tool of litigation, is a strategy which must be carefully thought out, and which must be used only in those circumstances where the upholding of the exception is more likely than not, to dispose of the matter.

The risk of wasting the court's time, or incurring unnecessary costs, or causing unwarranted delay in the resolution of the main matter, is only justifiable where a favorable result to taking the exception is likely.

To discourage over-litigiousness and a dereliction of duty as officers of the court, on the part of legal practitioners, it has become vital for this court to award punitive orders as to costs as a shield against its process being abused by the taking of exceptions which either have no merit, or which are unlikely to dispose of the matter.

In the circumstances of this case, the exception taken by the plaintiff had no merit from the outset.

For these reasons, the plaintiff's exception be and is hereby dismissed with costs on a legal practitioner and client scale.

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

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

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

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

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

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

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

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

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

(h) Costs of suit.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

“137. Alternatives to pleading to merits: forms

(1) A party may —

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

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

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

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

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

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

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

There are four alternatives to pleading to the merits;

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(a) Sufficient particularity;

(b) Are not contradictory and mutually destructive;

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

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

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

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

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

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

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

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

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

It follows that there is no exception before the court.

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

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

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

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

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

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

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

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

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

View Appeal
SC177-20 : CAINOS CHINGOMBE and TENDAI KWENDA vs CITY OF HARARE and MINISTER OF LOCAL GOVERNMENT, PUBLIC WORKS AND NATIONAL HOUSING and HOSEA CHISANGO N.O. and GEORGE MAKINGS N.O. and CHENAI GUMIRO N.O.
Ruled By: GOWORA JA, GUVAVA JA and MAKONI JA

Following their suspension from employment by the first respondent, the appellants, on 2 February 2018, filed an application with the High Court seeking a declaratur to the effect that such suspension was unlawful as well as consequential relief.On 3 October 2018, the High Court dismissed the application with each of ...

Following their suspension from employment by the first respondent, the appellants, on 2 February 2018, filed an application with the High Court seeking a declaratur to the effect that such suspension was unlawful as well as consequential relief.

On 3 October 2018, the High Court dismissed the application with each of the parties being made to pay its own costs.

This appeal is against that judgment.

BACKGROUND FACTS

The first respondent is a municipal authority constituted in accordance with the provisions of the Urban Councils Act [Chapter 29:15]. It is the authority responsible for running the affairs of Harare. The second respondent is the Government official tasked with the administration of the Act. The third respondent is cited in his official capacity as the acting Town Clerk for the first respondent. The fourth and fifth respondents were members tasked with the hearing of disciplinary proceedings against the two appellants.

The two appellants are senior officials within the employ of the first respondent, (“City of Harare”). Such appointments are governed by section 134 and 135 of the Urban Councils Act.

Following allegations of gross mismanagement in the affairs of the City of Harare, the Government caused a special audit to be conducted into the affairs of the municipality. On 20 December 2017, a special meeting was convened by councilors to receive the report on the special audit.

Following upon the meeting aforesaid, the third respondent was directed, by a resolution passed at the meeting of the council, to write letters of suspension to the appellants.

On 31 December 2017, the third respondent addressed letters to the appellants advising them of their suspension from employment with immediate effect and without pay and benefits in terms of section 6(1) of the Labour (National Employment Code of Conduct) Regulations, 2006, S.I.15 of 2006 (the “National Code of Conduct”).

On 5 January 2018, the appellants were invited to attend a disciplinary hearing on 15 January 2018 to enquire into the alleged offences detailed in the letters of suspension.

On 10 January 2018, the appellants launched an application with the High Court, under urgent cover, to interdict the conduct of the disciplinary proceedings. The matter was deemed not urgent and was not heard. The applicants then launched the proceedings which are the subject matter of this appeal.

PROCEEDINGS BEFORE THE HIGH COURT

Before the High Court, the appellants contended that the Urban Councils Act rigidly regulates the appointment and conditions of service of senior officials. To that end, any aspect involving the appointment, discipline, and dismissal of senior officials contrary to the Act was void and of no effect.

They contended that section 140 of the Urban Councils Act is specific and mandatory and that, in terms of its provisions, a senior official facing suspicion of misconduct cannot be suspended by councillors. It was averred, that, in terms of section 140 of the Urban Councils Act, only the Town Clerk had the mandate to place a senior official on suspension. It was suggested, that, the reliance, by the first respondent, on SI15 of 2006 in effecting the suspension and the consequent disciplinary proceedings pursuant thereto was wrong and unlawful.

Turning to the appointment of the disciplinary committee, the appellants contended, that, there was no scope within section 140 of the Urban Councils Act for the Mayor to appoint a disciplinary committee. His decision to do so, and the appointment itself, were therefore illegal. As a result, the failure to comply with the provisions of section 140 of the Urban Councils Act rendered the entire process an illegality.

The application was opposed by the first and third respondents who took a preliminary point. The respondents contended, that, the High Court did not have the requisite jurisdiction to determine the application.

It was submitted, that, although disguised as an application for a declaratur, what the appellants were seeking was a review of the suspension.

As regards the merits, the respondents averred that the employer was the City of Harare and not particular individuals who were also employees of the same. The councillors represent the City of Harare and it was their mandate to make the decision to suspend the two appellants. In that regard, the City of Harare had acted within the confines of the law when it suspended the appellants in terms of the Labour Act [Chapter 28:01] and the National Code of Conduct. The respondents denied that the suspension and the scheduled disciplinary proceedings were unlawful and prayed that the application be dismissed with costs.

The learned judge in the court a quo, based on the relief sought in the draft order, was of the considered view that the High Court had the requisite jurisdiction to determine the application. This was because, as he stated, the relief sought was that of a declaratory order, and the Labour Court was not empowered, in terms of its enabling Act, to grant declaratory orders.

He discounted the contention by the respondents, that, what the appellants draft order sought was an order for their reinstatement disguised as a declarator.

I am inclined to believe that the learned judge erred, in that he then proceeded to determine the matter on the merits as to whether the applicable law was the Labour Act or the Urban Councils Act.

The court a quo found that the appellants were employees as defined in section 2 of the Labour Act. The learned judge concluded that the only employees who were excluded from the Labour Act were those whose conditions of service were covered by the Constitution and the appellants did not fall in that category.

It was common cause that the City of Harare did not itself have a Code of Conduct providing for the discipline of its employees, and, accordingly, in terms of section 12B of the Labour Act, in the absence of a code of conduct, the National Code of Conduct was the default code for disciplining employees.

The court dismissed the application.

On the issue of costs, it was the view of the learned judge, that, given the two pieces of legislation seemingly providing for the discipline and dismissal of employees in the employ of the City of Harare, it was to be expected that the appellants would bring an application to court for the determination of their right to administrative conduct that is lawful. In addition, he surmised that the matter raised important legal issues. Accordingly, he ordered that each party should bear its own costs.

THE APPEAL

Aggrieved by the dismissal, the appellants have brought this appeal on two grounds. It is contended that the court erred in law:

(i) In finding that section 140 of the Urban Councils Act [Chapter 29:15] had been repealed by section 2A of the Labour Act [Chapter 28:01];

(ii) In not finding that the suspension of, and the disciplinary proceedings against, the appellants were null and void and of no force or effect for being in contravention of section 140 of the Urban Councils Act [Chapter 29:15].

The appellants pray that the appeal be allowed with the judgment of the court a quo being set aside to allow the grant of the application. They also pray for consequential relief in the form of the declaratur sought in the court below.

ISSUE(S) ARISING FOR DETERMINATION

The sole issue for determination, on appeal, therefore, is whether the court a quo erred in finding that section 140 of the Urban Councils Act had been implicitly repealed by the Labour Act.

However, before determing the merits of the appeal it is necessary to determine whether or not the court a quo was correct in assuming jurisdiction over the matter in the first place.

WHETHER THE COURT A QUO CORRECTLY ASSUMED JURISDICTION

Subsequent to the promulgation of the 2013 Constitution, there has arisen, within the jurisdiction, some confusion on the extent of the jurisdiction enjoyed by the High Court as a court of first instance - especially as relates to matters concerned with employment disputes.

The Supreme Court has determined, in Nhari v Mugabe & Ors SC161-20, that, the High Court has no jurisdiction in issues of labour and employment and that such issues fell to be determined under the Labour Act.

In that case, the court had to consider whether, under section 171 of the 2013 Constitution, the High Court could be said to enjoy original jurisdiction over all civil and criminal matters throughout Zimbabwe.

In this exercise, the Supreme Court had to construe the provisions of sections 171 and 172 of the Constitution which specifically made provision for the jurisdiction of the High Court and the Labour Court respectively. The court said:

“The same Constitution that conferred original jurisdiction on the High Court over all civil and criminal matters also made provision for the creation of other specialised courts, whose jurisdiction over specialized areas of the law, and the exercise of such jurisdiction, was left entirely to Acts of Parliament.

In other words, it is the Constitution itself which has permitted the establishment of these specialized courts, and, in the same breath, provided for the issue of jurisdiction and exercise of such jurisdiction to be left to an Act of Parliament.

Section 172 of the Constitution, which establishes the Labour Court, is not made subject to section 171 which creates the High Court.

The two sections are in pari materia and must therefore be construed together.

In making provision for the establishment of specialised courts in Acts of Parliament, the Constitution has not in any way attempted to fetter or restrict the jurisdiction that is to be conferred upon such courts, or to make such jurisdiction subject to section 171 which creates and provides for the jurisdiction of the High Court.

It could not, therefore, have been the intention of the legislature that the High Court would have jurisdiction in all civil and criminal cases without exception.

An interpretation that the High Court has unlimited jurisdiction in all cases would clearly lead to an absurdity.

The High Court would then have jurisdiction to determine matters that are in the province of say, the Military Courts. The High Court could, in these circumstances, be called upon to deal with petty cases involving the application of customary law at first instance or discipline at the work place.

Were the High Court to have jurisdiction to hear and determine every case in Zimbabwe, it would get bogged down in matters over which it may have very little expertise, or in petty matters that should ordinarily not detain the court.

It would cease being the High Court as we know it.

Such an absurdity could not have been in the contemplation of the legislature when it provided for the jurisdiction and exercise of such jurisdiction by the court in section 171 of the Constitution.”

In the context of this case, the court a quo assumed jurisdiction on the premise that the appellants were seeking relief in the form of a declaratur and that the Labour Court was not empowered to grant declaratory orders.

The learned judge found, that, the matter was properly before him on the sole premise that the relief sought was that of a declarator as opposed to an application for reinstatement.

It is a settled position in our law, that, as a creature of statute, the Labour Court has not been imbued with the power to issue declaratory orders.

The manner in which the relief was framed did indeed suggest that the appellants were seeking declaratory orders.

In order to decide whether or not the matter was properly before the High Court, I must have regard to the premise upon which the appellants approached the court. In other words, the resolution of the question on jurisdiction is hinged on the dispute that was placed for adjudication before the court a quo.

The contention made on behalf of the appellants was that the City of Harare had, in effecting their suspensions and seeking to discipline them, used the wrong law and that, to that extent, they were entitled to a declaration of rights, thus imbuing the High Court with the necessary jurisdiction.

This, it was argued, was due to the fact, that, the Labour Court, being a special court set up in terms of the Labour Act, was a creature of statute and could only do that which its eanabling Act provided for.

In deciding whether or not a litigant is seeking a declaratur or some other relief, a court must be guided by the grounds upon which the application is made and the evidence in support of the order prayed for.

In Geddes Ltd v Tawonezvi 2002 (1) ZLR 479 (S)…, MALABA JA…, stated:

“In deciding whether an application is for a declaration or a review, a court has to look at the grounds of the application and the evidence produced in support of them. The fact that an application seeks declaratory relief is not, in itself, proof that the application is not for review.

In City of Mutare v Mudzime & Ors 1999 (2) ZLR 140 (S), MUCHECHETERE JA quoted with approval from Kwete v African Publishing Trust & Ors HH21-98, where, at p3 of the cyclostyled judgment, SMITH J said:

'It seems to me, with all due respect, that, in deciding whether or not, in an application for damages or reinstatement arising from alleged wrongful dismissal, the provisions of Rule 259 of the High Court Rules should be complied with, one should look at the grounds on which the application is based, rather than the order sought…,. It seems to me anomalous that one should be permitted to file an application for review out of time, without seeking condonation, as long as a declaratory order is sought. A declaratory order is, after all, merely one species of relief available on review.'

In this case, the respondent was not attacking Mrs Madyara's decision to suspend him from work, the disciplinary proceedings she presided over, or the decision of the employer to dismiss him from employment.

He was in fact treating these decisions and proceedings as a nullity.

In other words, they were as good as not having happened and there was no route leading to them upon which they could be reviewed. The ground on which he was treating these decisions and proceedings as a nullity, was that Mrs Madyara had no legal authority or jurisdiction to make the decisions and institute disciplinary proceedings against him.”

Contrary to the remarks of the learned MALABA JA…, above, the appellants argue, that, in suspending them and preferring charges of misconduct, the City of Harare had failed to give effect to the provisions of section 140 of the Urban Councils Act rendering such conduct illegal. They contended, that, the employer was not at large to ignore the specific provisions of the Act and find comfort in S.I.15 of 2006.

The order sought by the appellants in the court a quo was to the following effect:

“1. That, it be and is hereby declared that the suspension of the applicants, pursuant to resolutions by a special Council meeting of the first respondent, held on 20 December 2017 and communicated to the applicants by letters of the third respondent dated 31 December 2017, is in contravention of section 140 of the Urban Councils Act [Chapter 29:15] and is null and void and of no force and effect.

2. That, it be and is hereby declared that the disciplinary proceedings against the applicants, flowing from the aforesaid resolutions by a special Council meeting of the first respondent held on 20 December 2017 and implemented by letters of the 3rd respondent dated 5 January 2018, are in contravention of section 140 of the Urban Councils Act [Chapter 29:15] and are null and void and of no force and effect.

3. That, as a consequence of 2 above, it be and is hereby declared that the disciplinary proceedings presided over by the fourth and fifth respondents are in contravention of section 140 of the Urban Councils Act [Chapter 29:15] and are null and void and of no force and effect.

4. That, it be and is hereby declared that, in respect of senior officials of a council, non-compliance with section 140 of the Urban Councils Act [Chapter 29:15] cannot be remedied merely by resorting to the use of the procedures set out in the Labour (National Employment Code of Conduct) Regulations 2006, S.I. 15/2006.

5. That, for the avoidance of doubt, it be and is hereby declared that the first and second applicants are still the Human Capital Director and Finance Director, respectively, of the first respondent.

6. The respondents (if any oppose this order) shall pay the costs of this application on a legal practitioner and client scale.”

The appellants seek to challenge their suspension under what they term an illegal process not provided for by law. In my view, they were challenging the choice of law by the employer and the legality of the entire process.

The starting point, in my view, must be the Labour Act.

It sets out which employees and employers are subject to its provisions in the determination of disputes in the workplace. Sections 2A and 3 of the Labour Act are pertinent in this regard. Section 3 of the Labour Act provides as follows:

“3 Application of Act

(1) This Act shall apply to all employers and employees except those whose conditions of employment are otherwise provided for in the Constitution.

(2) For the avoidance of any doubt, the conditions of employment of members of the Public Service shall be governed by the Public Service Act [Chapter 16:04].

(3) This Act shall not apply to or in respect of —

(a) Members of a disciplined force of the State; or

(b) Members of any disciplined force of a foreign State who are in Zimbabwe under any agreement concluded between the Government and the Government of that foreign State; or

(c) Such other employees of the State as the President may designate by statutory instrument.”

I begin this inquiry with a consideration of section 3 of the Labour Act.

In sub section (1), it states, in unequivocal terms, that, the Labour Act shall apply to all employers and employees except for those whose conditions of employment are governed by the Constitution.

In subsection (2) and (3) members of the Public Service and the disciplined forces are specifically excluded from the application of the Labour Act.

The appellants have not argued that they fall within the category of employees whose conditions of employment are excluded from the application of the Labour Act.

In turn, section 2A of the Labour Act [Chapter 28:01] is in the following terms:

“2A Purpose of Act

(1) The purpose of this Act is to advance social justice and democracy in the workplace by —

(a) Giving effect to the fundamental rights of employees;

(b) (repealed)…,.;

(c) Providing a legal framework within which employees and employers can bargain collectively for the improvement of conditions of employment provided for under Part II;

(d) The promotion of fair labour standards;

(e) The promotion of the participation by employees in decisions affecting their interests in the workplace;

(f) Securing the just, effective, and expeditious resolution of disputes and unfair labour practices.

(2) This Act shall be construed in such manner as best ensures the attainment of its purpose referred to in subs (1).

(3) This Act shall prevail over any other enactment inconsistent with it.”…,.

A perusal of the section makes it clear to the reader that the intended purpose is to ensure that employees are accorded the legal framework for the enforcement of their rights within the work place as guaranteed by law.

However, for present purposes, section 2(1)(f) is the pertinent provision as it seeks to ensure the securing of a just, effective, and expeditious resolution of disputes and unfair labour practices.

In casu, the dispute centres upon which statute the City of Harare should have resorted to in disciplining the appellants.

The City of Harare contends that section 140 of the Urban Councils Act is inconsistent with the Labour Act, and, to that extent, is inapplicable in the determination of labour disputes within its workplace.

The appellants do not dispute that there is no Code of Conduct in existence governing the discipline and dismissal of senior employees within the workplace of the City of Harare. Their contention is that section 140 of the Urban Councils Act affords them all the protection they require, as employees, and that to depart from the specific provision of the said section and discipline them in terms of any other law is to perpetuate an illegality.

Section 140 of the Urban Councils Act reads:

“140 Conditions of service of other senior officials

(1) Subject to subsection (2) and to the conditions of service of the senior official concerned, a council may, at any time, discharge a senior official —

(a) Upon notice of not less than three months; or

(b) Summarily on the ground of misconduct, dishonesty, negligence, or any other ground that would, in law, justify discharge without notice.

(2) A council shall not discharge a senior official unless the discharge has been approved by the Local Government Board: provided that the discharge of a medical officer of health shall, in addition, be subject to the approval of the Minister responsible for health in terms of section 11 of the Public Health Act [Chapter 15:09].

(3) If it appears to a Town Clerk that any other senior official of the council has been guilty of such conduct that it is desirable that that official should not be permitted to carry on his work, he —

(a) May suspend the official from office and require him forthwith to leave his place of work; and

(b) Shall forthwith notify the mayor or chairman of the council, as the case may be, in writing, of such suspension.

(4) Upon receipt of a notification of suspension, in terms of subsection (3), the mayor or chairperson shall cause the suspension to be reported, at the first opportunity, to the council.

(5) Where a council has received a report of a suspension, in terms of subs (4), the council shall, without delay —

(a) Conduct an inquiry or cause an inquiry to be conducted into the circumstances of the suspension; and

(b) After considering the results of the inquiry, decide whether or not —

(i) To lift the suspension; or

(ii) To do any one or more of the following —

(A) Reprimand the senior official concerned;

(B) Reduce the salary any allowance payable to the senior official;

(C) Transfer the senior official to another post or grade, the salary of which is less than that received by him or her at the date of the imposition of the penalty;

(D) Impose a fine not exceeding level five or three months' salary, which fine may be recovered by deductions from the salary of the senior official;

(E) Subject to subsection (2), discharge the senior official.”

Sub-section (1) above makes for uncomfortable reading as it seems to suggest that the council can summarily dismiss an employee on the grounds of misconduct, dishonesty, negligence, or any other ground, in law, that would justify such discharge without notice.

In his judgment, the learned judge in the court a quo stated that counsel for the appellants had conceded that section 140 of the Urban Councils Act contained repugnant provisions authorizing the Council to summarily dismiss an employee and that this would inevitably be inconsistent with the Labour Act, protecting as it does, social justice within the workplace and safeguarding the rights of employees against unfair dismissal.

This provision is not only inconsistent with section 2(1) of the Labour Act but is also in violation of the audi alteram partem principle. It is particularly inconsistent with subsection (1)(f) of the Labour Act which ensures that an employee is afforded a just and effective legal framework for the resolution of disputes in the workplace.

Before this Court, counsel for the appellants accepted that the provision is inimical to the interests of the employee at large. He suggested that the court not have regard to subsection (1) of section 140 of the Urban Councils Act.

In a somewhat novel submission, he argued that subsections (2) and (3) of section 140 of the Urban Councils Act must be read with the provisions of the National Code of Conduct.

I venture to suggest that this departure in position on the initial submissions would tend to suggest that he has accepted that the reliance, by the City of Harare, on the National Code as opposed to section 140 of the Urban Councils Act, was lawful.

It is also an acceptance of the position that the appellants stand to be disciplined in accordance with the provisions of the Labour Act as they are employees to whom the Labour Act applies and that the absence of a Code of Conduct within the workplace of the City of Harare results in the National Code of Conduct being the default code of conduct for disciplining employees - whether they are junior or senior employees.

This shift in position must dispose of the appeal.

I cannot envisage a situation where a tribunal would, in the course of conducting a disciplinary hearing, move from one legislative instrument to another in an effort to find those provisions that best suit the employee.

A tribunal can only have regard to one instrument recognizable at law as being the applicable law.

In this instance, for all the reasons stated above, the Labour Act, as read with SI15/ 2006, is the law applicable in the disciplining of the two appellants herein.

The appellants have not justified their exclusion from the provisions of the Labour Act in the determination of the allegations of misconduct laid against them.

Section 2(3) provides that the Labour Act shall prevail over any enactment or provision inconsistent with it.

Section 12B of the Labour Act requires that an employee be dismissed in accordance with the provisions of a Code of Conduct. It provides as follows:

“12B Dismissal

(1) Every employee has the right not to be unfairly dismissed.

(2) An employee is unfairly dismissed —

(a) If, subject to subsection (3), the employer fails to show that he dismissed the employee in terms of an employment code; or

(b) In the absence of an employment code, the employer shall comply with the model code made in terms of section 101(9).”

It is common cause that the City of Harare does not have a code of conduct for discipline purposes within the workplace. It has always relied on the provisions of the Urban Councils Act.

Such reliance, in the light of the clear provisions of the Labour Act, is misplaced.-

The City of Harare is subject to the Labour Act and must comply with its provisions in all respects. It does not belong to the category of employers exempted from the application of the Labour Act. In the premises, in the light of the provisions of section 12B of the Labour Act above, the City of Harare must have resort to the National Code of Conduct in the resolution of employment disputes. It cannot have recourse to section 140 of the Urban Councils Act, which, as admitted by counsel for the appellants, is not a Code of Conduct.

As a consequence, the view I take is that what was before the court a quo was an issue dealing with an employment relationship and that is a dispute that falls for determination under the Labour Act, by the Labour Court and the other structures below it.

The issue as to whether the High Court is empowered to exercise jurisdiction as a court of first instance is now settled – see Nhari v Mugabe & Ors SC161-20.

I respectfully associate myself with the remarks by GARWE JA in the above decision.

In this appeal, in order to resolve the dispute between the parties, the court a quo had to delve into the contentious issue of the applicable law. It had to decide whether or not the appellants were employees as defined in section 2 of the Labour Act. It had to decide whether or not the same Act applied to the appellants or whether they were exempt from its application. It had to consider whether or not the suspensions were illegal.

It stands to reason that, in casu, the High Court misdirected itself in assuming jurisdiction in this matter.

Although the court ultimately came to the correct conclusion, that it was the National Code of Conduct that applied to this matter, it should have declined jurisdiction on the same basis resulting in the matter being struck off the roll for want of jurisdiction.

DISPOSITION

When one has regard to the substance of the application and the averments contained therein, the unmistakable conclusion is that the appellants were seeking to challenge their suspensions on the basis that the wrong law had been applied in suspending them.

That argument speaks to a process of review as opposed to a declaration of rights.

The law being impugned was the Labour Act. The issue for determination was whether or not the appellants were suspended according to law, and, if not, were the suspensions illegal entitling them to the setting aside of the suspension?

The fact that they clothed the application as a declarator is not material. The result they sought is what guides the court.

The dispute lends itself to adjudication under the Labour Act which specifically empowered the Labour Court to review the decisions or actions by employers within the workplace. The Act also empowers labour officers to deal with unfair labour practices, dismissals: see section 93 of the Labour Act.

That being the position, the High Court had no jurisdiction to issue a declaratur in respect of issues of labour and employment. Section 2A of the Labour Act [Chapter 28:01] makes it clear, that, notwithstanding the powers of the High Court to issue declaraturs, the Labour Act prevails over all other laws inconsistent with it.

Accordingly, in my view, the issue of the jurisdiction of the High Court fell for determination first. But, I also accept that the issue of which law is applicable is inextricably tied up with the question of jurisdiction.

For the additional reason that this was not in fact a declaratur but an employment and labour matter, the High Court clearly had no jurisdiction to entertain the claim in the first place. The High Court was wrong in assuming jurisdiction in a matter where the issues for determination involved the resolution of an employment dispute.

It should have declined jurisdiction.

Although the High Court had no jurisdiction, it made a determination on the merits. That determination cannot be allowed to stand. It has to be set aside as being an irregularity.

The Supreme Court is empowered, in terms of section 25(2) of the Supreme Court Act [Chapter 7:13] and in the exercise of its powers of review, to set aside any irregular proceedings.

In this instance, the court must exercise those powers and set aside the proceedings as being irregular. Accordingly, the following order will issue:

IT IS ORDERED THAT:

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

2. In the exercise of the powers of review of the Supreme Court, in terms of section 25(2) of the Supreme Court Act [Chapter 7:13], the proceedings of the High Court, under HC Number 991/18, be and are hereby set aside for want of jurisdiction on the part of the High Court.

View Appeal
HH351-20 : THE SHERIFF OF ZIMBABWE and GURTA AG vs ANDERSON MANJA and 98 OTHERS
Ruled By: CHIKOWERO J

I refer to two documents on litigation before I determine this matter.The first is a “handout” prepared for the 1995 University of Zimbabwe Faculty of Law final year students by Ms Sheilla Jarvis, the then Practical Skills Law Lecturer.In those days, lecturers often handed out notes in written form. The ...

I refer to two documents on litigation before I determine this matter.

The first is a “handout” prepared for the 1995 University of Zimbabwe Faculty of Law final year students by Ms Sheilla Jarvis, the then Practical Skills Law Lecturer.

In those days, lecturers often handed out notes in written form. The document in question runs up to 11 pages, but I confine myself to pages 2-3, which read as follows:

“DRAFTING COURT DOCUMENTS

Writing in all contentious matters, claims, or offers in letters, pleadings, affidavits, or heads of argument, needs the same approach, although the final form differs according to the role of the document.

1. Establish as many facts as you can, using your interview technique and examining all available documents.

2. Decide what is the applicable law or practice, looking at all possible causes of action or defence you can think of…,; check a textbook and any cases on the subject to ensure you do know all the law.

3. Decide what are the essential elements of each; on what basis will the right be recognized or discretion be exercised? This tells you what has to be alleged (underlining in original).

4. Decide whether you can allege the facts to meet all those elements. Get more details from client if necessary, and consider whether you can prove each essential fact by admissible evidence. Anticipate problems. Always look for any “essence” that could decide the case and emphasize it if you find one. (underlined words are in bold in original)

5. Reconsider whether there are any possible alternative causes of action eg to contract: unjust enrichment/delictual negligence; to agency ostensible authority; to share of house under Mat causes: joint commercial venture or universal partnership. Because of trial delays and prescription you probably won't be able to start a fresh action if the principal cause of action fails. Repeat steps 2-4 for these alternatives.

6. Check relevant rules for format.

Distinguish between any Forms which should be followed closely, and precedents which are simply available to help you.

7. Get on with writing:

(i) Make sure you cover each essential point.

(ii) Ask for everything needed to do what the client wants done, a.s.a.p.

(iii) Go back and make sure you've justified everything you've asked for (underlining is mine)

(iv) Do it in a logical order, generally chronological but putting all the elements of each separate cause of action together.

Don't think this is too difficult: If you follow this approach, drafting can be simple.

HIGH COURT PLEADINGS AND AFFIDAVITS

Pleadings simply state the basis of the claims and defences to define the dispute. They will be followed later at the trial by the evidence.

The papers in applications do not just define the issues for a trial; they must also contain sufficient evidence to convince the court that the party should get whatever he is asking for. (underlining mine for emphasis).

The difference between what is put into an affidavit and what is put into a pleading follows naturally from their different purpose. (underlining not mine).

Both pleadings and applications use the ancient method of alternative allegations to ascertain precisely the matters on which the parties differ and the points on which they agree.

Be clear, concise, accurate, complete (my underlining)”.

Mr George Charles Chikumbirike was a reputable Zimbabwean legal practitioner, notary public and conveyancer.

He is now late.

On 25 May 1989, he presented a 7 page paper at the Law Society of Zimbabwe Winter Law School at a venue not disclosed on the face of the paper itself. I will liberally quote from the document, which is headed “THE TECHNIQUE OF LITIGATION”:

“…,. The young lawyer these days qualifies after leaving University with an LLB degree (these days labelled honours as if there is some magic in that caption). He is no longer required to serve his articles of clerkship like some of the grey hairs in this room were wont to be.

THIS IS WHERE THE PROBLEM STARTS.

He is then launched upon the world, theoretically qualified to appear in any court and tribunal in the land, perhaps to plead for the life of an accused person whose funds do not cover such trifles as his defence on a murder charge. This is serious business.

There is obviously need for the young practitioner to study the art of advocacy. But how does he learn. Bitter experience is, of course, one of the best teachers, but, bitter experience is apt to leave in its wake a trail of destruction or a clutch of ghosts that ever and anon will return to haunt their creator.

But how can one avoid this? How can one learn the 'how' of practice without having to destroy oneself at one's inception? There are books of course, but….,. Rather, I desire to collate lessons which can be learned from the law reports and practical experience of about 9 years in the courts, apply those lessons in particular to local circumstances and present day practice in Zimbabwe.

…,.

…,.

What does one require to be a good lawyer – in this instance, a good court lawyer. Intellect, voice, personality?

Yes, it is necessary to possess these qualities. But, are they enough? Is any one of them more important than the others?

The answer is: of course not.

Intellect, voice, personality are all weapons in one's armoury, but to none can be ascribed any degree of dominance or even of importance. There is, however, one quality that can overcome any physical failing, and, fortunately, it is a quality that is yours for the taking.

It is the quality of being or becoming conscientious or diligent.

A legal practitioner should strive to be known for this quality to his colleagues and to the Bench. Judges, and Magistrates, in my view, and I have seen this happen, listen with more tolerance and more receptively to an argument which they know has conscientious effort as its foundation. You should therefore display this characteristic, it will help you gain the respect of your clients, and, from this respect, will acquire the reputation upon which a successful legal practice is built…,.

…,.

…,.

Practical suggestions

Your greatest cases will be those in which you call no witnesses (or only formal witnesses). Your finest cross-examination will be where you ask fewer questions, your soundest arguments will be where the facts speak for themselves. It is where these Utopian conditions do not apply that court craft and trial technique are important whether the tribunal be the Community Court, Magistrates Court, or High Court.

From the moment a client walks into your office, gives you a story, you are engaged in a tug of war behind two forces:

(i) Firstly, the facts; and

(ii) Secondly, the law.

Which one do you concentrate on?

In my view, you concentrate on the facts, because, if you do, the law can bend to the facts. Simple isn't it?

If you are to fight cases, as you will be doing, look for the facts; if you are compelled to argue a case, you may look for the law.

The first rule of practice, as Professor Christie would sometimes say…, also the paramount rule for the experienced practitioner, is to look for one issue of law or fact which determines the matter.

In every case, in every problem, in every point, there will be found an essence, indeed a quint-essence, hidden perhaps, dissipated perhaps, but nevertheless there for seeking. The successful practitioner is he who can recognise this essence, can pursue it, and can ultimately distill and capture it.

It is unfortunate that with a less discerning mind, you will create numerous phantom problems and encounter false scents, all too alluring that they may be taken for reality. There are, however, no set rules to be applied to these tasks; the insight required cannot be taught, it can only be gained by experience and by patience.

The other word of advice I would like to share with you is this:

NEVER MAKE A MISTAKE.

Accountants may make mistakes, our bookkeepers always do – and add up their figures again. Doctors may make mistakes and either rely on nature or call in a specialist. The mistakes of these professional men are their own and normally reversible. But, you, as a lawyer, must know that you are faced with an adversary who will seize on any mistake and may not allow it to be reversed. I do not refer here to technical mistakes, but to such tactical blunders as calling the wrong witness or not calling the right witness.

It is well known that no one is perfect; what is not so well known is that the lawyer cannot afford to be less than perfect. Leave out an allegation in a pleading, or a statement in an affidavit, and that roaring noise about your ears will be the roof falling in.

In this regard, it is necessary to have as a principle, as a motto, this: You should approach every case as though it is your first and if not handled properly, it may be your last…,.

…,.

…,.

…,.

Another issue which I need to venture into is research; research on law…,.

…,. However, in your desire to learn the techniques of litigation, be not in haste. Legal practice requires not only perseverance, conscientiousness - but patience as well…,. The practice of law requires the consideration of a problem from many angles, from every angle, and, indeed, from angles that Euclid never imagined…,.”

HH21-21 : LAZARUS MUCHENJE vs SUSAN M. MUTANGADURA and PAUL MUPFIGA and TENDERO DZVETERO and DR BEAULAH CHIRUME and CHIDO BOKA and NETONE CELLULAR PL
Ruled By: MUREMBA J

As was correctly argued by counsel for the respondents, in deciding what relief an applicant is seeking, the court must look at the grounds of the application and the evidence adduced in support of the order prayed for; see Cainos Chingombe Another v City of Harare SC177-20…,.The fact ...

SC11-21 : TENDAI BONDE vs NATIONAL FOODS LTD and LOVEJOY NYANDORO [as Chairman of Appeals Committee] and CHIPO NHETA [as Chairman of Works Council]
Ruled By: GUVAVA JA

This is an application for leave to appeal from a judgment of the Labor Court. The court a quo found no merit in the application for leave to appeal and dismissed it, on the main, that, the draft notice of appeal did not raise questions of law.

The applicant was dissatisfied with the judgment of the court a quo and filed an application for leave in terms of Rule 60 of the Supreme Court Rules, 2018.

BACKGROUND FACTS

The brief background of this application may be summarised as follows:

The applicant was employed by the first respondent as a Stock Quality Analyst. He was charged with misconduct by the first respondent on the basis that he had been found in possession of unauthorised email communication which was between Group Executives. The first respondent was of the view that the applicant's conduct amounted to an act of un-authorised impingement of emails in the organisation. The applicants conduct was aggravated by the fact that the applicant had allegedly shared this information with other persons without the written consent of the first respondent in terms of the first respondent's IT policy.

Following a charge of misconduct, a hearing before the Disciplinary Committee was set down but was postponed on six separate occasions at the request of the applicant. On the final occasion, the Disciplinary Committee proceeded to hear the matter and found the applicant guilty in absentia.

He was subsequently dismissed from employment.

Following the applicant's dismissal, he proceeded to file an appeal with the Appeals Committee in terms of the Disciplinary Code. Again, the applicant did not attend the hearing before the Appeals Committee and the Committee proceeded to dismiss the appeal and to uphold the decision by the Disciplinary Committee.

The applicant appealed to the Labour Court under LC/B/37/2019 before MURASI J on the basis, that, the hearing committee had erred by not finding that he was wrongfully charged. The applicant further averred that the committee had erred in finding that he was in possession of documents whereas the documents, subject to the charge, had been loaded onto his computer following a breach of his password.

The first respondent raised a point in limine to the effect that the appeal was improperly before the court as the applicant had not appeared before the two lower tribunals, which tribunals had issued default judgments against him, and, as such, these decisions could not be appealed against.

The court proceeded to uphold the point in limine and struck the matter off the roll.

The applicant then made an application for condonation of late filing of an application for review and extension of time within which to file an application for review.

The court a quo dismissed the application.

The court found that the applicant failed to give a reasonable explanation for the delay in making a valid application for review, and that, in any event, he lacked prospects of success on review.

The applicant subsequently sought for leave to appeal to this Court under LC/MT/48/20. The applicant argued, that, the court a quo had made material omissions in its findings and that its discretion had been based on wrong principles of law. He also attached his intended Notice of Appeal to the application.

The court a quo dismissed the application on the basis that the applicant's intended grounds of appeal did not raise questions of law as required by the Labour Court Rules.

Undeterred by this dismissal, the applicant launched this application....,.

Counsel for the first respondent also raised a preliminary point to the effect, that, the applicant's intended Notice of Appeal was fatally defective as it did not cite the correct date when the judgment appealed against was handed down.

Counsel further submitted that the relief sought by the applicant was defective....,.

With regards to the first respondent's point in limine, it was submitted, by counsel for the first respondent, that, the appellant's Notice of Appeal is fatally defective as it does not identify the correct date when the judgment appealed against was handed down and that it has an incompetent relief sought in the prayer.

It was the first respondent's submission, that, on filing an application for leave to appeal, the applicant must attach a Notice of Appeal that complies with the Rules.

The applicant opposed the point raised by the first respondent and argued that the correct date when the judgment was handed down was 13 March 2019.

The applicant did not, however, amend the Notice of Appeal which is before me.

Rule 59(3) of the Supreme Court Rules provides what should be included in a Notice of Appeal. The Rule states as follows:

“The notice of appeal shall state –

(a) The date on which the decision was given;

(b)…,.

(c)…,.

(d) The exact nature of the relief sought;

(e)…,.”

The provisions are mandatory.

The applicant accepted that the date on his draft notice of appeal was incorrect. The applicant did not amend the date, and, as such the notice of appeal, as is, remains defective as it has an incorrect date.

It is trite that the draft notice of appeal placed before the Court in an application of this nature becomes the notice of appeal which forms the basis of the appeal to be heard by the Court. It is thus imperative that the draft notice of appeal must comply with the rules of the court.

The applicant's notice of appeal is thus defective in this regard.

The applicant's draft notice of appeal is also rendered defective by the relief sought on appeal by the applicant. The applicant's amended notice of appeal has the following relief sought on appeal:

“WHEREFORE the appellant prays for an order that:

(a) The appeal is allowed with costs.

(b) The judgment of the court a quo is set aside and is substituted with the following order:

'The application is allowed with costs.'

AND IT IS ORDERED THAT:

PRAYER (1)

Appellant to file notice or Review to Labour Court within ten (10) days; application to be heard before a different judge. (sic)

PRAYER (2)

Supreme Court to make such other order that the court considers speedy, equitable, and inexpensive to meet justice of case.”

It is apparent that the applicant wanted an order that the Court, sitting as an Appeal Court, grant him condonation and extension of time within which to file his review application.

This is not what the applicant sought in casu.

In Mudyavanhu v Saruchera & Others SC75-17 the Court stated the following:

“Rule 29(1)(e) is specific in its language and requires that the relief sought be exact and competent so that the court is left in no doubt as to what exactly the appellant seeks.”

See also Sambaza v AL Shams Global BVI Limited SC03-18.

The phrase 'exact nature of the relief sought' means that an appellant must inform the Court of the relief he/she wants.

The Supreme Court's mandate is to examine the correctness or otherwise of a decision of the lower court. In doing so, the court is guided by the relief sought by the appellant.

The need for the relief sought on appeal to be exact cannot be over emphasised.

The applicant in casu gives two prayers, on appeal, which are both incompetent:

(i) The first prayer is that this Court order that the applicant file his notice of review to the Labour Court within ten days and for the application to be heard before a different judge.

If this Court finds for the applicant, on appeal, it will mean that he has a right of audience before the Labour Court to make a fresh application for review. The applicant will have to make a completely fresh application for review in terms of the rules of the Labour Court. He will have twenty-one days within which to make his application for review as per the dictates of Rule 20(1) of the Labour Court Rules, 2017.

As such, the prayer sought under Prayer (1) is untenable before this Court.

(ii) The applicant's alternative prayer is for the Supreme Court to make an order “as appear (sic) to it necessary in the justice of the case.”

The second prayer clearly fails to meet the threshold of the mandatory rule which provides that the exact nature of the relief sought must be given.

It cannot be for this Court to draft a relief for the applicant; rather, the applicant should inform the Court of the redress he seeks.

The relief sought renders the Notice of Appeal fatally defective.

The first respondent's preliminary points thus have merit.

SC13-21 : MOSES MAWIRE vs RIO ZIM LIMITED (PRIVATE) LIMITED
Ruled By: GOWORA JA, PATEL JA and MAVANGIRA JA

The term 'cause of action' was defined in Peebles v Dairiboard (Pvt) Ltd 1999 (1) ZLR 41 (H)…,. MALABA J…, stated:“A cause of action is defined by LORD ESHER MR in Read v Brown (1888) 22 QB 131, as, every fact which it would be necessary for the plaintiff to ...

HH164-18 : TRUSTEES FOR THE TIME BEING OF TONGOGARA COMMUNITY SHARE OWNERSHIP TRUST vs MATRIX REALTY (PVT) LTD
Ruled By: MUREMBA J

This is an application for rescission of a default judgment where the applicant prays for relief in the following terms:

“It is ordered that:

1. The application be and is hereby granted.

2. The apparent delay in bringing an application for rescission of judgment in terms of the rules shall be condoned.

3. Default judgment granted by this court, on 24 May 2017, in Case No. HC1863/17, be and is hereby rescinded.

4. The respondent and its legal practitioners de bonis propriis shall jointly and severally the one paying the other to be absolved pay the costs of this application on a legal practitioner and client scale.”

The background to this matter can be aptly summarized as follows:

The applicant and a company called Kelor Investments (Pvt) Ltd entered into an agreement of sale of immovable property. The contract was brokered by the respondent and the contract stated that the respondent would be entitled to agent's commission at the rate of 5% of $950,000 plus 15% VAT; the said $950,000 being the purchase price at which the immovable property in question was sold.

The parties to the contract agreed, that, the respondent was entitled to agent's commission from the seller, and, further, that, in the event of breach of the contract, the party in breach would be liable for payment of the said commission to the respondent.

It happened, that, the applicant, being the buyer, after signing the contract, did not pay the purchase price by the agreed timeline, only to write a letter to the seller's lawyers saying it was cancelling the contract.

The respondent sued for its commission from the applicant in the sum of US$54,625 on the basis that it was the applicant which had breached the agreement of sale.

The respondent obtained a default judgment after the applicant failed to file opposing papers within the prescribed time.

It is this default judgment, granted by this Court on 24 May 2017, in Case No. HC1863/17, which is now subject of this application for rescission.

At the hearing, the respondent, having abandoned the point raised in limine, that, the application was improperly before the court having been filed out of time, the matter was then argued on the merits.

The basis for the application for rescission of judgment, as averred in the applicant's founding affidavit, was that judgment was fraudulently sought by the respondent before the expiration of the dies induciae and was erroneously granted by this court.

The applicant also averred it has a bona fide defence to the respondent's claim.

In opposition, the respondent denied all that the applicant averred and proved that it had not obtained the default judgment fraudulently. It further averred that the applicant had no bona fide defence to its claim.

In the answering affidavit, the applicant departed from the allegations of fraud by the respondent and pleaded mistake on its part in failing to file its notice of opposition on time.

Clearly, there was a conflict between the averments in the founding affidavit and the averments in the answering affidavit.

Despite this apparent conflict, the applicant went ahead with the matter as it was, filed heads of argument and had the matter set down for hearing.

During the hearing, I asked counsel for the applicant to explain and reconcile the apparent conflict in the applicant's founding affidavit and the answering affidavit.

Counsel for the applicant, having realized the rough terrain of the applicant's case, moved for the withdrawal of the application and tendered costs to the respondent.

SC18-21 : A. ADAM AND COMPANY (PVT) LTD and SGI PROPERTIES (PVT) LTD and GARABGA NCUBE AND PARTNERS vs GOODLIVING REAL ESTATE (PVT) LTD
Ruled By: GUVAVA JA, MAVANGIRA JA and BHUNU JA

This is an appeal against the whole judgment of the High Court sitting at Harare, dated 10 July 2019, in favour of the respondent. The court a quo in this case granted an interdict against the first and second appellants ordering them to share the money collected between 2014 and 2018 in accordance with the partnership agreement and stopping them from interfering with the management of Stands 147 and 151 Mbuya Nehanda Street, Harare.

BACKGROUND FACTS

In order to understand the basis of this appeal, it is necessary to set out, in some detail, the background of this matter.

The first and second appellants ('the appellants') are the owners of commercial properties known as Stand 147 and 151 Mbuya Nehanda Street, Harare ('the properties'). The third appellant is a law firm representing the appellants. The respondent is a real estate company, registered in terms of the laws of Zimbabwe.

The first and second appellants, and the respondent, entered into a partnership agreement wherein the respondent would develop and build shops on the appellants Stands. In terms of this agreement, it would be valid for a period of three (3) years and subject to renewal by both parties. The parties also agreed that the respondent would develop and effect certain improvements on the two properties at its own expense. It was further agreed, that, upon completion of the development of the properties, the parties would lease them out with the appellants being entitled to 67 per cent of the rentals and the respondent to 33 per cent.

Subsequent to this agreement, the parties entered into a commercial lease agreement dated 26 August 2010, which resulted in a joint venture agreement. Following the creation of the lease agreement, a dispute arose between the parties. The first and second appellants alleged that the contract between the parties was to operate for a period of three (3) years only whereas the respondent alleged that it was for a period of at least fifteen (15) years. The averment by the respondent was made on the basis of purported terms of a prior verbal agreement which the parties made before the creation and signing of the partnership agreement on 10 January 2010.

The dispute between the parties resulted in numerous litigation between the parties.

On 4 September 2013, the respondent approached the High Court under case number HC7215/13 seeking an interdict stopping the appellants from interfering with the respondent's management of the properties as agreed in the partnership agreement. The application resulted in a consent order which was granted by TAKUVA J and whose operative part reads as follows:

“1. Pending final disposition of the substantive dispute between the parties, through arbitration proceedings, the status quo obtaining at the premises in question shall continue to subsist and the parties' relations shall continue to be regulated by the existing agreements.

2. The parties shall proceed with due expedition to refer the dispute between them to the Commercial Arbitration Centre for resolution by an Arbitrator who shall dispose of the substantive dispute in accordance with the provisions of the Arbitration Act.

3. Each party shall bear its own costs.”

The dispute was referred to arbitration on 13 October 2013. The respondent sought a determination regarding whether the joint venture agreement had ceased to exist; whether it was entitled to take over the management and control of the developed premises; and, alternatively, whether the appellants had lawfully cancelled the agreements.

The respondent further filed an application for rectification before the High Court which sought the rectification of the partnership contracts so as to reflect the true intention of the parties in relation to the duration period to be covered by the agreement. The respondent alleged that the arbitrator, retired SMITH J, then wrongly advised it to withdraw its application for rectification before the High Court so that he would deal with it himself. The respondent further alleges that it co-operated without knowing that the arbitrator was an interested party and he went on to dismiss the rectification application.

On 29 May 2014, the arbitrator granted an interlocutory award in favour of the first and second appellants which ordered the respondent to remit all the rentals collected into the third appellant's trust account. On 6 December 2016, the arbitrator issued a final award.

The appellants sought to register the arbitral award under case number HC1054/17.

On the other hand, the respondent made an application for the setting aside of the arbitral award under HC1347/17. The applications were heard together by PHIRI J who set aside the arbitral award and dismissed the appellants' application for registration of the award. The appellants noted an appeal against this decision before the Supreme Court under case number SC351/19.

Following the setting aside of the arbitral award by PHIRI J, the respondent filed an application for an interdict against the appellants. The respondent sought to interdict the appellants from interfering with the management of the properties and a mandatory interdict ordering that rentals collected should be shared in terms of the partnership agreement.

SUBMISSIONS A QUO

In making the application, the respondent averred that the written agreement between the parties did not correctly reflect the intention of the parties.

It was always their intention that the agreement would operate for a period of 15 years to enable the respondent to recover its capital and make a reasonable profit. The respondent further averred that to prove the agreement was meant to exist for 15 years, some of the tenants were made to enter into lease agreements of 15 years whereby both parties appended their signatures confirming the partnership would subsist for 15 years.

Further, the respondent averred that it had invested about one million dollars into the project, and, by the time when the application was made, it had only recovered about US$250,000.

The appellants opposed the application and argued that the partnership agreement between the parties was never set aside and was to operate for 3 years only.

The appellants also submitted that the respondent had no lawful right to collect rentals from the occupants of the premises in dispute.

The court a quo, in dealing with the application, found that the respondent had managed to satisfy the requirements of a temporary interdict which it sought.

The court further found that the arbitral award, having been set aside, and that decision having been appealed against, the consent order by TAKUVA J was in operation in determining how the parties would interact pending the appeal.

The court found that the interim award changed the status quo which had been determined by the order of TAKUVA J, and, that the interim award thus contradicted the consent order. The court held that the consent order granted by TAKUVA J was an order of a superior jurisdiction compared to arbitration proceedings. Thus, the only courts which could interfere with the order are the High Court itself or other superior courts. As such, the court found that the arbitrator misdirected himself by varying an order of the High Court. Thus, the order governing the parties was the consent order and not the interim order.

On that basis, the court granted the application for an interdict sought by the respondent and made the following order:

“1. The money collected since 2014 to 2018 and remitted in the 3rd respondent's trust account, all arrear rentals the respondents collected in form of cash or through their personal accounts and money sitting in the trust account of the Law Society of Zimbabwe be shared in accordance to the partnership agreement in proportion of 33% and 67% respectively.

2. 1st and 2nd respondents be and are hereby ordered to stop interfering in the management of both Stand 147 and 151 Mbuya Nehanda Street, and collection of rentals on Stand Mbuya Nehanda Street, Harare as dictated by the partnership agreement pending the outcome of an appeal filed under SC351/19.

3. The 1st, 2nd and 3rd respondents jointly and severally each paying the other to be absolved pay the costs of this application.”

Dissatisfied with the decision of the court a quo, the appellant noted this present appeal under the following grounds:

“1. The court a quo erred at law and grossly misdirected itself on the facts relating to an interim interdict application and affording such relief in circumstances where no such application was before it.

2. The court a quo erred and misdirected itself in finding as it did that Mr Justice Takuva's order was negated by the interim arbitration award of 29 May 2014. This ignored the common cause position that the consent order of Mr Justice Takuva contemplated resolution of the dispute in terms of the relevant law, which law provides for the relief of an interim award.

3. In any event, the court a quo grossly erred and misdirected itself in affording interdictory relief in light of the extant arbitration award of 8 September 2014 dismissing respondent's rectification claim.

4. The court a quo erred and grossly misdirected itself in resuscitating a partnership agreement whose fate had been sealed by the dismissal of the rectification claim by the arbitrator, retired Justice Smith, and, therefore, no basis existed for the court to order any sharing of rentals and/or management of 1st appellant's property.

5. The court a quo grossly erred and misdirected itself in granting interdictory relief where the respondent had not met the requirements of such relief.”

ISSUES FOR DETERMINATION

It appears to me that from the five grounds of appeal the determination of one issue will resolve the dispute. The issue for determination is whether or not the court a quo correctly granted the interdict sought by the respondent.

SUBMISSIONS ON APPEAL

At the hearing, counsel for the appellants argued that the application made before the court a quo by the respondent was an application for a final interdict. It was counsel's argument that the draft order sought by the respondent clearly showed that paragraph 1 was for a final mandatory interdict whereas paragraph 2 sought a prohibitory interdict of interference. With that, counsel argued that the court misdirected itself when it considered the requirements of an interim interdict as no such application was before it.

Counsel further argued that the court a quo failed to correctly apply the requirements of a final interdict as had been sought by the respondent. It was argued that the respondent had no clear right to claim as the dispute between the parties, pertaining to the partnership agreement, was ongoing, and, as such, no clear right could be deduced from the ongoing dispute.

Also, it was counsel's argument that the respondent failed to satisfy the requirement that it did not have alternative remedies as it could still claim damages, specific performance, or an order of contempt of court against the appellants.

Per contra, counsel for the respondent argued that the court a quo correctly granted the draft order which was sought by the respondent as the respondent had satisfied all the requirements in making its application. Counsel further argued that the only remedy the respondent had in the face of the appellants continued disturbance of its management of the properties, was for the respondent to seek for an interdict which was correctly granted by the court.

APPLICATION OF THE LAW TO THE FACTS

The respondent made an application for a final interdict before the court a quo.

In its founding affidavit, it listed the requirements it had to satisfy in making the application, being:

(i) Existence of a clear right;

(ii) Imminent danger;

(iii) Irreparable harm; and

(iv) Absence of other remedies.

The respondent's draft order reads as follows:

“1. The money collected since 2014 to 2018 and remitted in the 3rd respondent's trust account, all arrear rentals the respondent's collected in form of cash or through their personal accounts and money's sitting in the trust account of the Law Society of Zimbabwe be shared in accordance to the partnership agreement in proportion of 33% and 67% respectively.

2. 1st and 2nd respondents be and are hereby ordered to stop interfering in the management of both Stand 147 and 151 Mbuya Nehanda Street, and collection of rentals on Stand 151 Mbuya Nehanda Street, Harare as dictated by the partnership agreement.

3. The 1st, 2nd and 3rd respondents jointly and severally each paying the other to be absolved pay the costs of this application on an attorney and client scale.”

The court a quo, in determining the application made by the respondent, however, went on to consider the requirements of an interim interdict. The court noted as follows:

“The applicant seeks both a mandatory and prohibitory interdict. The requirements of a temporary interdict are trite. They are;

1. A prima facie right, though it may be open to doubt;

2. A well-grounded apprehension of irreparable harm;

3. The balance of convenience must favour the grating of the interdict;

4. Absence of any other satisfactory remedy.

…,.

I will proceed to consider whether the applicant satisfied the requirements of the temporary interdicts sought.”

From the above remarks made by the court a quo, it is clear that the court fell into error when it considered the application before it as an application for an interim interdict when in fact it was an application for a final interdict.

The requirements that must be established in an application for a final interdict have been set out in a long line of cases in this jurisdiction. In the case of Econet Wireless Holdings & Ors v Min of Finance & Others 2001 (1) ZLR 373 (S)…, this Court had occasion to once again succinctly set them out. The court held that:

“What the appellants in this case sought was a final interdict. In order to succeed in obtaining such an interdict they had to establish:

(a) A clear right;

(b) An injury actually committed or reasonably apprehended; and

(c) The absence of similar protection by any other ordinary remedy.

See Setlogelo v Setlogelo 1914 AD 221 at 227; Sanachem (Pty) Ltd v Farmers Agri-care (Pty) Ltd & Ors 1995 (2) SA 781 (A) at 789B-C; Charuma Blasting & Earthmoving Svcs (Pvt) Ltd v Njanjai & Ors 2000 (1) ZLR 85 (S) at 89D; Blue Rangers Estates (Pvt) Ltd v Muduviri & Another 2009 (1) ZLR 368 (S).”

Whereas the requirements for an interim interdict were aptly stated in Airfield Investments (Pvt) Ltd v Minister of Lands & Ors 2004 (1) ZLR 511 (S). The Court cited with approval the case of L F Boshoff Investments (Pty) Ltd v Cape Town Municipality 1969 (2) SA 256 (C)…, CORBETT J…, wherein the court said an applicant for such temporary relief must show:

“(a) That the right which is the subject matter of the main action, and which he seeks to protect by means of interim relief is clear, or, if not clear, is prima facie established though open to some doubt;

(b) That, if the right is only prima facie established, there is a well grounded apprehension of irreparable harm to the applicant if the interim relief is not granted and he ultimately succeeds in establishing his right;

(c) That the balance of convenience favours the granting of interim relief; and

(d) That the applicant has no other satisfactory remedy.”

There can be no doubt, from the above cited authorities, that, the requirements to be considered and assessed by a court when faced with an application for an interim and final interdict are different.

The court a quo, in casu, however, assessed the respondent's application on the requirements of an application for interim interdict which had not been sought or motivated by the respondent. The court could not have properly assessed whether or not the respondent had satisfied the requirements for an interim interdict as the respondent's founding affidavit was making a case for a final interdict.

In Gwaradzimba N.O. v CJ Petron & Co. (Pty) Ltd 2016 (1) ZLR 28 (S), the Court emphasised the importance for a court to determine all issues raised before it. The court held that:

“The position is well settled, that, a court must not make a determination on only one of the issues raised by the parties and say nothing about other equally important issues raised 'unless the issue so determined can put the whole matter to rest;' Longman Zimbabwe (Pvt) Limited v Midzi & Ors 2008 (1) ZLR 198, 203 D (S).

The position is also settled, that, where there is a dispute on some question of law or fact, there must be a judicial decision or determination on the issue in dispute. Indeed, the failure to resolve the dispute or give reasons for a determination is a misdirection, one that vitiates the order given at the end of the trial.”

In PG Industries Zimbabwe (Pvt) Ltd v Bvekerwa & Others SC53-16 the court held the following:

“The position is settled, that, where there is a dispute on a question, be it on a question of fact or point of law, there must be a judicial decision on the issue in dispute. The failure to resolve the dispute vitiates the order given at the end of the proceedings.”

Also, in Nzara and Ors v Kashumba N.O. and Ors SC18-18…, the Court held that:

“The function of a court is to determine the dispute placed before it by the parties through their pleadings, evidence, and submissions. The pleadings include the prayers of the parties through which they seek specified orders from the court. This position has become settled in our law. Each party places before the court a prayer he or she wants the court to grant in its favour. The Rules of Court require that such an order be specified in the prayer and the draft order.

These requirements of procedural law seek to ensure that the court is merely determining issues placed before it by the parties and not going on a frolic of its own. The court must always be seen to be impartial and applying the law to facts presented to it by the parties in determining the parties' issues.”

From the above referred authorities, it is clear that this Court has pronounced itself on the importance of a court to be guided by the papers and pleadings placed before them. A court must neither stray from the issue it is asked to determine nor must it create an issue for the parties. It must not go on a frolic of its own.

In casu, the respondent placed before the court a quo an application for a final order.

The draft order sought clearly showed that the respondent was seeking a final interdict as per paragraph 1 of the draft order for the sharing of the rentals which had been collected since 2014 to 2018 in terms of the partnership agreement.

Paragraph 2 was more of an interim relief which sought to prohibit the appellants from interfering in the management of the properties pending the outcome of the appeal which had been filed under SC351/19.

The court a quo thus grossly misdirected itself in granting the draft order on the basis of the requirements of an interim interdict which had not been motivated by the respondent. The court a quo ought to have been guided by the papers placed before it by the parties before making its determination on the application which was being sought by the respondent.

The respondent made an application for a final interdict and went on to motivate the requirements for such application. There was no application for an interim interdict before the court, and, as such, the order granted by the court was erroneously granted.

The court finds merit in the arguments made by counsel for the appellant, and, on this basis alone, the appeal must succeed.

The appellants have succeeded and they are thus entitled to their costs. I am not however persuaded by the argument that the appellants have made out a case that justifies that they should have been awarded costs on a legal practitioner client scale before the court a quo.

DISPOSITION

In the result, it is accordingly ordered as follows:

1. The appeal succeeds with costs.

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

“The application be and is hereby dismissed with costs.”

SC20-21 : TIMOTHY MUYAMBO vs HORTBAC PL t/a LITTLE FLOWER ENTERPRISES and JAMES CHIYANGWA and RONALD KITULI and TENDAI BONGA and MINISTER OF LANDS, AGRICULTURE AND RURAL RESETTLEMENT
Ruled By: CHITAKUNYE AJA

This is an application for joinder wherein the applicant seeks to be joined in two appeals pending before this Court, that is, SC304/20 and SC326/20.

The facts leading to this application may be summarised as follows:

The applicant was a holder of an offer letter in respect of Plot 4 of Glebe Farm, Goromonzi. The second, third, and fourth respondents were also holders of offer letters in respect of separate plots on the same farm. The fifth respondent is the authority which issued the offer letters to the applicant and the second, third, and fourth respondents.

The first respondent, on the other hand, claimed title to the farm in question.

Sometime in 2015, the first respondent approached the High Court at Harare in HC7006/15 seeking the setting aside of the applicant's offer letter and declaring such offer letter null and void. It also sought that the fifth respondent issue an offer letter in favour of the first respondent.

The applicant was cited, together with the fifth respondent, as respondents.

On 25 October 2016, the High Court granted an order setting aside and declaring null and void the offer letter issued to the applicant by the fifth respondent. The fifth respondent was ordered to issue an offer letter to the first respondent in respect of the said piece of land.

It is pertinent to note that whilst it was alleged that the order was granted in default of the fifth respondent, it was apparent that the applicant was represented by a legal practitioner in those proceedings.

After the issuance of the order on 25 October 2016, in the presence of the applicant's legal practitioner, no challenge was raised against that order till February 2018 when the fifth respondent belatedly applied for rescission of the default judgment granted against it.

Upon realising that it was out of time, the fifth respondent sought the court's indulgence through an application for condonation for late filing of an application for rescission which application was granted on 16 October 2019.

The fifth respondent's application for rescission was thereafter set down for 14 November 2019.

On that date, the matter was apparently postponed to 28 November 2019. On 28 November, the matter was removed from the roll.

The applicant alleged that the removal from the roll was to await the determination of a matter at Masvingo High Court, HC380/18, involving the first respondent, on the one hand, and the second, third, fourth, and fifth respondents on the other hand, which pertained to the second to fourth respondents' offer letters for Plots at Glebe Farm.

To buttress this point, the applicant tendered a Notice of Set Down for 14 November 2019 and a letter from the Registrar of the High Court.

The two documents did not, however, state the reason for the removal from the roll.

In fact, the Registrar's letter was simply a reminder to the Civil Division of the Attorney General's Office, as the fifth respondent's legal practitioners, that failure to set down the matter removed from the roll within three (3) months would lead to the matter being deemed abandoned in terms of paragraph 10 of Practice Direction 3/13.

As fate would have it, the application at Masvingo High Court did not go in the second to fifth respondents' favour.

The second to fourth respondents noted an appeal to this Court in SC304/20. The fifth respondent also noted an appeal in SC326/20.

The two appeals are in respect of the same judgment.

In September 2020, the Registrar wrote to the appellants inviting them to file their heads of arguments within 15 days.

It was only after the above invitation to the appellants to file their heads of arguments, that, on 25 September 2020, the applicant filed this application seeking to be joined in the two appeals as third respondent in SC304/20 and as fifth respondent in SC326/20 and that he be allowed to file his heads of arguments within 10 days of such order.

In this application, the applicant alleged that he has a direct and substantial interest in the matter as he is a holder of an offer letter for a plot at Glebe Farm. He averred that if he is not joined he may be prejudiced as he would not have been heard yet his rights and interest will be affected by the decision of this Court.

The first respondent opposed the application.

It contended that the application is improper as the applicant no longer has any such interests to protect. The decision in HC380/18 against which the second to fifth respondents have appealed does not relate to the subdivision or Plot that the applicant had been offered as that was determined on 25 October 2016 in HC7006/15 and the applicant has not challenged that determination to date.

The first respondent further contended, that, from the applicant's own averment he has always been aware about the Masvingo HC380/18 matter but had not sought to be joined in that matter only to seek such joinder at the appeal stage.

Counsel for second to fourth respondents indicated that they were willing to comply with any order granted by the court.

The fifth respondent, in its response, indicated that it had no objections to the joinder.

As the applicant had not indicated the Rule under which the application was being made; on the date of hearing, counsel for the applicant submitted that the application was in fact being brought in terms of Rule 54 of the Supreme Court Rules 2018.

He also argued that the application was also premised on the common law principle of natural justice.

In this regard, he argued, that, as the applicant will be affected by the determination of the appeals he ought to be heard. It was his contention that the applicant has an interest in the subject of the appeal.

Rule 54 of the Supreme Court Rules 2018 upon which counsel for the applicant said the application was premised states that:

“(1) If, prior to the hearing of an appeal, it appears to a judge, or at the hearing it appears to the court, that a person who is not a party to the appeal may be so affected by an order made in it that he or she must be heard, notice may be given to that person to enable him to apply to intervene in the appeal if he or she so wishes.

(2) If notice is given in terms of subrule (1) the person to whom notice is given may apply to the judge or to the court, as the case may be, for permission to enable him or her to intervene in the appeal.

(3) The judge or the court hearing an application in terms of subrule (2) may refuse the application or grant it upon such terms and conditions as may seem just.”…,.

It is apparent that the Rule provides for the intervention by a third party at the instance of a judge or court. It is that initiative that enables a third party to apply to a judge or to the court to intervene in order to protect his rights and interests that may be affected by the judgment to be rendered.

In casu, the application was not initiated by a notice given by a judge or court. It was at the applicant's own initiative to be joined as a party to the appeal.

Equally, the applicant is not seeking to merely intervene as a third party but to be joined as a party to the appeal proceedings.

It was upon counsel for the applicant's failure to address the requirements of Rule 54 of the Supreme Court Rules 2018 that he then resorted to the right to be heard principle arguing that the applicant has an interest that may be adversely affected by the determination of the appeal.

It is apposite to point out that the applicant, in his founding affidavit, did not refer to Rule 54 of the Supreme Court Rules 2018 or to any of its requirements.

It is trite that an application stands or falls on the averments made in the founding affidavit: see Austerlands P/L v Trade and Investment Bank & Others SC92-05 and Muchini v Adams & Others SC47-13.

The founding affidavit should have stated in terms of which Rule the applicant was approaching the court to be joined on appeal and made reference to the requirements of the procedure adopted.

It is clear that reference to Rule 54 of the Supreme Court Rules 2018 was an ill informed after-thought, and, in any case, that Rule is inapplicable in the circumstances of this case.

SSC23-21 : SAMUEL UNDENGE vs THE STATE
Ruled By: UCHENA JA

This is an application for extension of time within which to apply for leave to appeal. After hearing submissions from both parties I reserved judgment.FACTUAL BACKGROUNDThe applicant is the former Minister of Energy and Power Development. He, amongst other things, supervised Zimbabwe Power Company (ZPC). On 14 January 2016, the ...

This is an application for extension of time within which to apply for leave to appeal. After hearing submissions from both parties I reserved judgment.

FACTUAL BACKGROUND

The applicant is the former Minister of Energy and Power Development. He, amongst other things, supervised Zimbabwe Power Company (ZPC). On 14 January 2016, the applicant authored a letter in terms of which he directed ZPC to work with an entity known as Fruitful Communications (fronted by Oscar Pambuka and Psychology Mazivisa) until 2018. The engagement was for publicity work relating to the Zimbabwe Agenda for Sustainable Socio-Economic Transformation (Zimasset) programmes.

It is common cause that the letter did not state whether or not there was any payment to be made in respect of services rendered. However, Fruitful Communications approached Zimbabwe Power Company (ZPC) with that letter claiming to have been chosen to do the publicity campaign and then invoiced ZPC for the work it alleged to have done.

Subsequently, the applicant was charged with criminal abuse of duty by a public officer in terms of section 174(1)(a) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] (“the Act”). His directive was deemed unlawful and contrary to his duties as a public officer as it favoured Fruitful Communications, enabling it to bypass the mandatory internal tender procedures to be followed by any procuring entity.

The applicant pleaded not guilty to the charge. He denied directing Zimbabwe Power Company (ZPC) to improperly engage Fruitful Communications without following tender procedures.

The applicant stated that the letter did not bar Zimbabwe Power Company (ZPC) from engaging with other media companies.

He indicated that the work to be done by Fruitful Communications was for free as it did not involve the expenditure of public funds, thus, it did not require tender approval. He submitted that Oscar Pambuka and Psychology Mazivisa had done free work for the Ministry before and it is in that context that the letter was drawn.

The applicant further submitted that if the issue for payment arose, Zimbabwe Power Company's accounting officer ought to have followed the required procedures.

He contended that Fruitful Communications and its counterparts were the ones who intended to defraud Zimbabwe Power Company (ZPC).

As such, he stated that the charges against him were influenced by a political agenda targeted at perceived political opponents. He also stated that he did not benefit from the letter.

After trial proceedings before a Regional Magistrate, the applicant was found guilty as charged.

The court opined that the determinant factor was that the applicant accepted to have authored the letter. It further held that the letter, taken in its context, was an order meant to govern the operations of Zimbabwe Power Company (ZPC).

In the result, the court sentenced the applicant to four years imprisonment, of which eighteen months were suspended on condition the applicant does not within that period commit any offence involving corruption.

Aggrieved by that decision, the applicant noted an appeal to the High Court against his conviction and sentence.

The appeal was dismissed in its entirety....,.

Aggrieved by the decision of the court a quo, the applicant filed a composite application for leave to appeal and bail pending appeal in the court a quo....,.

Dissatisfied by the court a quo's refusal to grant it leave to appeal, the applicant sought leave to appeal to this Court against his conviction and sentence.

The application was struck off the roll because it was premised on the High Court Act instead of the Rules of this Court.

The applicant states that, that was an oversight by his legal practitioners.

HH842-19 : BARIADIE INVESTMENTS (PVT) LTD vs PUWAYI CHIUTSI and TENDAI MASHAMHANDA and REGISTRAR OF DEEDS and SHERIFF OF THE HIGH COURT OF ZIMBABWE N.O. and ELLIOT ROGERS
Ruled By: CHITAPI J

The applicant prays for an order that Deed of Transfer No.708/19 made in favour of the second respondent should be cancelled and that the prior Deed of Transfer No.8421/2000 in the name of the first respondent, and from which transfer in favour of the second respondent was made should be ...

SC25-22 : ELLIOT RODGERS vs PUWAYI CHIUTSI and TENDAYI MASHAMHANDA and REGISTRAR OF DEEDS and SHERIFF OF ZIMBABWE and BARIADE INVESTMENTS PL and LAW SOCIETY OF ZIMBABWE
Ruled By: GWAUNZA DCJ, GUVAVA JA and BHUNU JA

This is an appeal against the whole judgment of the High Court handed down on 14 March 2019, in which the court a quo dismissed the appellant's application for interim relief. The appeal was heard together with that in SC09/20 which involved the same parties, centered around the same dispute and effectively sought the same relief that the appellant seeks in casu.

However, separate judgments for the two appeals have been issued.

The sixth respondent, having applied for the de-registration of the first respondent as a legal practitioner, indicated it would abide by the decision of the court.

FACTUAL BACKGROUND

In 2012, the appellant in this matter sold his house, at No.30 Arundel School Road, with the conveyancing done by the first respondent (a legal practitioner). From a series of actions and applications brought before the courts, it was accepted that the first respondent misappropriated some of the proceeds from the sale of the immovable property.

Consequently, the appellant successfully instituted legal proceedings against the first respondent and obtained a judgment against him in 2015.

Despite a multiplicity of legal proceedings at the instance of the first respondent, the appellant managed to place a caveat on the latter's immovable property, being a certain piece of land situate in the district of Salisbury called the remainder of subdivision C of Lot 6 of Lot 190, 191, 192, 193, 194 and 195 Highlands estate of Welmoed measuring 4,377 square metres, under Deed of Transfer No. 8421/2000.

Pursuant to this, the Sheriff successfully sold the first respondent's property in execution, to the fifth respondent. The first respondent, in a number of applications, challenged the sale in execution which the Sheriff, nevertheless, eventually confirmed.

The High Court as well as this Court further upheld the confirmation of the sale.

Despite these numerous judgments, and the caveat placed upon his property, the first respondent managed to transfer the same property to the second respondent on 8 February 2019. The appellant, in his founding affidavit a quo, averred that such transfer could only have been made possible through some fraudulent conduct on the part of the first respondent in connivance with the Registrar of Deeds.

Subsequently, the appellant filed an urgent application before the court a quo seeking a provisional order in the following terms:

“Terms of final order sought

It is ordered that:

1. Puwayi Chiutsi be and is hereby struck off from the roll of legal practitioners.

2. Puwayi Chiutsi and the Sheriff of Zimbabwe each paying the other to be absolved, pays costs of suit on a scale as between attorney and client.

3. The applicant's legal practitioners be and is hereby given leave to serve the copy of this order to the Registrar of Deeds.

Terms of Interim Order Sought

Pending the final determination of this matter, at the return date, the applicant is granted the following relief;

1. That Deed of Transfer No.708/19, issued in the name of Tendai Mashamhanda in respect of a piece of land in the district of Salisbury called the remainder of subdivision C of Lot 6 of Lot 190, 191, 192, 193, 194 and 195 Highlands estate of Welmoed measuring 4,377 square metres be and is hereby cancelled.

2. That forthwith, the Law Society of Zimbabwe, must place the law firm of Puwayi Chiutsi under curatorship in terms of the Legal Practitioners Act.

3. Puwayi Chiutsi be and is hereby suspended from the practise of the legal profession (at the commencement of proceedings, counsel for the appellant informed the court that both the first respondent and his legal firm had since been de-registered by the Law Society of Zimbabwe).”

On 28 February 2019, the court a quo found that the application was not urgent in as far as it related to the relief sought to compel the Law Society of Zimbabwe to place the first respondent's law firm under curatorship, and, also, his suspension from practice as a legal practitioner.

On 1 March 2019, the court a quo proceeded to hear the rest of the application on the merits.

The court a quo found that the interim relief sought by the appellant, in respect of the cancellation of Deed of Transfer No.708/19, would in fact be a final order. The court brought this issue to the attention of the parties. It was submitted, on behalf of the second respondent, that he was ready to accept an interim interdict to stop any transfer of the property pending determination on the return date. However, the appellant did not move for any relief in the alternative and chose to stand or fall on the final relief being sought.

Consequently, the court a quo held that it was improper to seek final relief on the basis of submissions supporting the grant of an interim order. The court noted, correctly, that such a circumstance would leave nothing for the court to confirm or discharge on the return date.

It also expressed the view that the appellant's interests could have been secured by a temporary interdict prohibiting any transfer of property by the second respondent pending the return date. However, the court took the view that it could not grant such an order as it had not been prayed for, and accordingly, dismissed the application.

Aggrieved by this decision, the appellant noted the present appeal on the following grounds:

1. The court a quo grossly erred, holding that there was no urgency in the application in so far as it related to the suspension of Puwayi Chiutsi, the first respondent, from practicing as a legal practitioner.

2. The court a quo grossly erred in not understanding and holding that the court, as well as the appellant, had the duty to ensure the protection of the public and indeed the legal protection against errant lawyer (sic) whose damage to the public and to the legal profession was immense.

3. The court a quo grossly erred, in failing to grant the provisional order sought in terms of the chamber application filed by the appellant.

4. Further, as a question of law, the court a quo erred in not finding, that, in the circumstances of this case, the appellant had shown the legal basis for the granting of the order that was sought whether or not it could be classified as final.

In addition to an order that the appeal be allowed with costs, the appellant seeks an order that the judgment of the High Court be set aside and substituted with an order granting the relief that he originally sought a quo.

This is notwithstanding the fact that he had amended his draft order to leave out the parts of the relief that the court had ruled not to be urgent.

ISSUE FOR DETERMINATION

Notwithstanding the fact that the appellant has four grounds of appeal, as outlined, the only issue that arises for determination in this matter is contained in the appellant's third and fourth grounds of appeal; that is, whether or not the court a quo erred in dismissing the application for what was in fact a final order disguised as provisional order.

The court finds the other two grounds of appeal to be both misplaced and without merit....,.

Whether or not the court a quo erred in not granting the provisional order sought

It is evident from the appellant's fourth ground of appeal that he accepted that the relief that he sought could very well be determined to be final in nature. That notwithstanding, his attitude is that the court a quo still erred in not granting the relief that he sought.

It is argued, in his heads of argument, that, the cancellation of the title deed in question was part of the 'interim interdict' that he sought a quo and that, in any case, there was 'small difference between the granting of an interim interdict and the granting of a final interdict.'

The appellant argues, further, that, there is nothing in the High Court Act or the Rules, that says that a final interdict or final order cannot be granted in chambers. This is because, so the argument goes, a final order can be granted provided there is evidence and facts to support its granting.

The appellant's lengthy heads of argument chronicle, at length, and with harsh condemnation, instances of the first respondent's alleged unprofessional conduct in this whole dispute.

On that basis, and relying on a number of authorities, the appellant surprisingly shifts from the interim relief argument, to submit that the matter a quo was argued on the basis of final relief. That being the case, he contends, the court a quo should have granted the final relief sought....,.

The appellant, in the view of this Court, exhibited some ambivalence as to the exact nature of the relief that he is seeking in casu. This calls to mind the admonition by the court in Kuvarega v Registrar General and Anor 1998 (1) ZLR 188 (HC) to the effect that care needs to be taken in framing the relief that a litigant seeks from the court, be it interim or final.

One may also add that the import and effect of the orders sought before the court also need careful consideration to ensure compliance with the relevant procedural and substantive law.

Failure by a legal practitioner to pay attention to these details is to do grave injustice and disservice to the litigant concerned.

SSC46-12 : CHARLES KWARAMBA vs THE HONOURABLE MR JUSTICE BHUNU N.O.
Ruled By: CHIDYAUSIKU CJ

The legal practitioners representing Mr Charles Kwaramba (hereinafter referred to as "the applicant") placed before the Registrar of this Court the following letter:"REQUEST FOR DIRECTIONSWe act on behalf of Mr Charles Kwaramba at whose instance we write. Mr Kwaramba, who is a legal practitioner and an officer of this Court, ...

The legal practitioners representing Mr Charles Kwaramba (hereinafter referred to as "the applicant") placed before the Registrar of this Court the following letter:

"REQUEST FOR DIRECTIONS

We act on behalf of Mr Charles Kwaramba at whose instance we write. Mr Kwaramba, who is a legal practitioner and an officer of this Court, was representing accused persons in the case of Tungamirai Madzokere and 28 Others, Case No. CRB55/12. He applied for bail on their behalf, and, in the judgment dismissing the bail application, the court also made adverse findings against Mr Kwaramba.

A copy of the judgment is attached.

Some time ago we received instructions from Mr Kwaramba to seek a review of the decision as he felt that there were irregularities in the manner the court arrived at the decision affecting him.

As we were preparing the application, we noticed that there is a challenge with regard to review proceedings before the Supreme Court. Section 25(3) of the Supreme Court Act seems to suggest that there is no right to approach the Supreme Court for review as a court of first instance.

However, sections 17(h) and 25(1) of the same Act both seem to confer review powers on the Supreme Court.

In light of the above, we became very averse to filing an application without first seeking the Court's directions on the matter.

We note, however, that, in terms of section 25(3) of the Act, the Supreme Court or a Judge of the Supreme Court can give directions whether a review in the nature of this one can be instituted before it in the first instance.

We attach a draft copy of the application which is intended to be filed.

We therefore request you to kindly place our request before a Judge for directions. We look forward to your urgent attention to the matter."

It would appear to me that two requests emerge from the above correspondence –

(1) The legal practitioners for the applicant are seeking the opinion of a Judge of the Supreme Court as to whether in terms of section 17(h) or section 25(1) of the Supreme Court Act [Chapter 7:13] (hereinafter referred to as "the Act") the applicant can launch a Court application for review of the judgment of the Honourable Mr Justice BHUNU (hereinafter referred to as either "the respondent" or "the learned Judge") in a bail application made by the applicant on behalf of his clients in the High Court.

Put differently, the legal practitioners are enquiring whether their client has a cause of action in terms of section 17(h) or section 25(1) of the Supreme Court Act;...,.

I will not entertain the first request because it is essentially a request for legal advice.

This Court does not proffer legal advice to litigants. The applicant will have to make his own decision whether or not it is competent to make such an application in the light of the relevant provisions of the law and the previous decisions of this Court.

HH11-09 : THE MASTER OF THE HIGH COURT vs SITHANDIZILE DHLAMINI MOYO (as executor dative of Estate Late Willas Moyo) and GERTRUDE MOYO and SITHEMBISO KUSODZA
Ruled By: GUVAVA J

This is an application by the Master of the High Court for the removal of the first respondent as executor of the estate of the late Willas Mukati Moyo. The application has been filed in terms of section 117 of the Administration of Estates Act [Chapter 6:01] (“the Act”).

The facts upon which the applicant bases this application are as follows:

The respondents are the surviving spouses of the late Willas Mukati Moyo (the deceased). The estate was registered with the Assistant Master in Gweru by the first respondent. She received a Certificate of Authority from the Assistant Master, dated 15 June 2006, which empowered her to withdraw the balance which was in a Kingdom bank Account belonging to the deceased. She was also authorized to take transfer of a residential Stand known as Photo Studio, Stand Number 822 Gweru Township and a Mazda B1800 Registration Number 352-551G.

Following the registration of the estate, the applicant received complaints that the first respondent was benefiting in the estate to the exclusion of the other beneficiaries.

It was also common cause that the first respondent was operating a lodge as a business on the property and was receiving all the proceeds from the business for her own use.

There was also a complaint that she was disposing of the deceased's movable assets.

The applicant, on 31 August 2007, called a meeting at his office in order to resolve the dispute.

Following this meeting, the applicant decided that the first respondent should be removed as executor and approached this court, by way of chamber application, in accordance with the provisions of section 117 of the Administration of Estates Act....,.

On the merits, the first respondent denies, that, at the time of the deceased's death, the second and third respondents were still married to the deceased. She states that the second respondent left the matrimonial home in 1993 and the third respondent in 1998. They did not attend the deceased's funeral and it was only after the estate was registered that she was approached by the respondents with proof of their existing marriages. She thus submits that her conduct is above reproach.

She further states, that, her appointment was carried out by the Assistant Master in accordance with the Administration of Estates Act, and, thus, there is no basis for this application.

The first respondent also states, that, the business of the lodge, which is being conducted on the premises, was established by her after the death of the deceased. She states that she established the business on her own in order to maintain herself following the death of the deceased. She denied that she had disposed of any movable property of the estate. She further denied that she was benefiting from the estate to the exclusion of the other beneficiaries. She further states that the only dispute between her and the second and third respondents is over her vacation of the matrimonial home and her removal as executor of the deceased's estate....,.

I now turn to the merits of this matter.

Section 117 of the Administration of Estates Act [Chapter 6:01] provides as follows:

“117 Master may apply for removal of executor, tutor or curator from office

(1) The Master may apply to a judge in chambers for the removal of an executor, tutor or curator from his office on the ground -

(a) That he was not qualified for appointment to such office or that his appointment was for any other reason illegal; or

(b) That he has failed to perform satisfactorily any duty or requirement imposed upon him by or in terms of any law; or

(c) That he is mentally or physically incapable of performing satisfactorily his duties; or

(d) That, in his opinion, such person is no longer suitable to hold such office;
and the judge may, upon such application, remove the executor, tutor or curator concerned from his office or make such other order as he sees fit.

(2) Where an executor, tutor or curator has been removed from his office, the Master shall revoke any letters of administration or confirmation, as the case may be, which have been granted to such person.”

It seems to me, that, in order for an application in terms of this provision to succeed, the applicant must establish that it falls under any one of the grounds set out in subsection (1).

In the case of Van Nierkerk NO v Master of the High Court 1996 (2) ZLR 105, the court was faced with a similar application and the court held that the removal of an executor should never be undertaken lightly. The court held, further, that, in order to justify a removal in terms of this section, the court must be satisfied that the executor had failed to perform satisfactorily any duty or requirement imposed on him by or in terms of the law.

The applicant, in this case, did not state, in his application or heads of argument, the grounds upon which he relied for the removal of the executor.

Whilst it is not fatal to the application, as it can be ascertained from the facts in the founding affidavit, I would think that it is desirable to do so.

Appealed
SC66-21 : TINASHE KAMBARAMI vs 1893 MTHWAKAZI RESTORATION MOVEMENT TRUST and NOMALANGA DABENGWA and CITY OF BULAWAYO and ZIMBABWE ELECTORAL COMMISSION and MOVEMENT FOR DEMOCRATIC CHANGE ALLIANCE
Ruled By: GUVAVA JA, MATHONSI JA and KUDYA AJA

INTRODUCTIONThis is an appeal against the whole judgment of the Electoral Court sitting in Bulawayo dated 29 August 2019. The court granted a declaratory order sought by the first and second respondents ('the respondents) that the appellant's election was in contravention of the Electoral Act [Chapter 2:13], and, as a ...

INTRODUCTION

This is an appeal against the whole judgment of the Electoral Court sitting in Bulawayo dated 29 August 2019. The court granted a declaratory order sought by the first and second respondents ('the respondents) that the appellant's election was in contravention of the Electoral Act [Chapter 2:13], and, as a result, set aside the appellant's election as councilor for Ward 3 in Bulawayo.

BACKGROUND FACTS

The background to the matter may be summarized as follows:

The appellant was elected councilor for Ward 3 Bulawayo. The first respondent is a Trust, established in terms of the law in Zimbabwe. Its objectives are to promote economic and sound development in Matabeleland and Midlands. The second respondent is a registered voter in Ward 3 Bulawayo. The third respondent is a local authority operating in terms of the Urban Councils Act [Chapter 29:15]. The fourth respondent is an independent commission established in terms of section 238 of the Constitution of Zimbabwe. The fifth respondent is an alliance of political parties.

On 14 June 2018, following a proclamation by the President of the Republic of Zimbabwe, in terms of section 144(2) of the Constitution as read with section 38(1)(c)of the Electoral Act [Chapter 2:13] (the Act), the Nomination Court sat and accepted the appellant's nomination papers. This resulted in the appellant being registered as a candidate to contest as a councilor for Ward 3 in Bulawayo under the banner of the fifth respondent.

On 27 June 2018, two weeks after the appellant's nomination, he was arraigned before the Bulawayo Magistrates Court. He was charged with the crime of theft as provided for in section 113 of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. The appellant pleaded guilty to the offence and was fined US$80, or, in default of payment, eighteen (18) days imprisonment.

On 30 July 2018, the elections were held, and, on 2 August 2018, the appellant was declared the duly elected councillor for Ward 3 Bulawayo. Following the election, the first and second respondents made an application before the Electoral Court seeking a declaratur to set aside the election of the appellant on the ground that he was disqualified from holding office following his conviction.

PROCEEDINGS A QUO

The application was opposed by the appellant who argued that the first and second respondents did not have locus standi to bring the application before the court and that the first and second respondents had filed a disguised election petition in the name of an application.

The appellant also argued that the court did not have jurisdiction to entertain the application as he could only be removed from office in accordance with section 278 of the Constitution of Zimbabwe Amendment (No.20) Act 2013 ('the Constitution').

In granting the application, the court found that the Electoral Court had the power to grant an application for a declaratur as long as the application related to the electoral process.

On the argument that the court did not have jurisdiction to set aside the nomination since the respondents had not filed an election petition, the court found that it had the requisite jurisdiction since it was not being called upon to remove the appellant from office, but to declare him as a disqualified person to hold office by virtue of his conviction.

The court also found that the first and second respondents were interested parties and hence were qualified to bring the application.

In the result, the court made the following order:

“1. It be and is hereby declared that the election of first respondent as councilor for Ward 3 in Bulawayo was in contravention of section 119(2)(e) of the Electoral Act [Chapter 2:13] following his conviction of the offence of theft at the Bulawayo Magistrates Court under Criminal Record Book (CRB) number 1981/18 on 27 June 2018, and it is therefore set aside on account of it being null and void and his unsuitability to hold public office.

2. That first respondent pays costs of suit on the ordinary scale.”

Dissatisfied by the decision of the court a quo, the appellant noted this present appeal under the following grounds:

“1. The court a quo erred to hear and determine this matter on the basis that the same was not an election petition filed under section 168 of the Electoral Act [Chapter 2:13] nor was it at law an appeal application or petition in terms of the same Act.

2. The court a quo erred, as a question of law, in failing to hold, that, the first respondent, a Trust, had no legal capacity of suing and being sued and more importantly in failing to hold that the same had no locus standi or legal basis of bringing the application.

3. The court a quo erred to hold that the second respondent, Nomalanga Dabengwa, did not have locus standi to approach the court and could only have done so through an election petition in terms of section 168 of the Electoral Act of which the application in the court a quo was not won (sic).

4. The court a quo erred in its interpretation of section 119(2) of the Electoral Act.

5. More importantly, the court a quo failed in not holding that once a person had been lawfully nominated, such as the appellant, he could only be removed from the office in terms of section 278 of the Constitution of Zimbabwe.”

Although five grounds were raised, the appellant argued the appeal on only one ground which he submitted would resolve the dispute between the parties.

The issue was whether or not the Electoral Court had the jurisdiction to grant the declaratory order sought by the first and second respondents.

SUBMISSIONS BEFORE THIS COURT

At the commencement of the hearing, the appellant placed before the Court a copy of a judgment handed down on 18 June 2020 by MAKONESE J and MABHIKWA J under case number HCA05/19 and judgment number HB119-20 being an appeal made by the appellant against both his conviction and sentence.

The judgment was to the effect that the appeal had been allowed. This resulted in the setting aside of the appellant's conviction and sentence.

I hasten to state, that, the judgment of the acquittal of the appellant was made part of the record by consent of the parties. However, in my view, the judgment setting aside the appellants conviction, does not take the appellants case any further as this was only granted after he had been elected into office.

Counsel for the appellant submitted, in the main, that, the court a quo erred in granting the declaratory order sought by the first and second respondents as it had no power to issue such an order.

It was counsel's argument that section 161 of the Electoral Act sets out the powers that the court can exercise. The Electoral Act does not grant the court the power to issue a declaratur.

It was also his submission that the court erred in resorting to section 14 of the High Court Act [Chapter 7:06] ('the High Court Act') in granting the declaratur when the application had been made in terms of the Electoral Act.

On the other hand, counsel for the respondents argued, that, the court a quo did not misdirect itself when it granted the declaratory order sought by the respondents. It was counsel's argument that section 161 of the Electoral Act gave the court exclusive jurisdiction over all electoral matters. It was also argued, that, the Electoral Court, in carrying out its functions, could exercise the same powers as the High Court. Thus, it had the power to grant the declaratur sought by the respondents.

On this basis, the respondents submitted that the appeal must be dismissed with costs.

APPLICATION OF THE LAW TO THE FACTS

In finding that it had jurisdiction to deal with the application for a declaratur, the court a quo relied on section 161(2) of the Electoral Act. The court made the following remarks:

“The Electoral Court now has powers similar to those exercised by the High Court, and, that this Court, sitting as it does as a division of the High Court, otherwise known as the Electoral Court, can now properly sit and entertain an application for a declaratur for as long as, in my view, that matter is in relation to the Electoral Act and election processes.”

The Electoral Act was promulgated on 1 February 2005 as Act 25/2004. Section 161 of that Electoral Act gave the court its jurisdictional powers and provided as follows:

“(1) There is hereby established a court, to be known as the Electoral Court for the purpose of hearing and determining election petitions and other matters in terms of this Act.

(8) The Electoral Court shall have no jurisdiction to try any criminal case.

(9) The Electoral Court shall be a court of record.”

In 2012, the Electoral Act was amended by Act 3 of 2012. Under the amendment, the jurisdictional powers of the court were broadened under section 161. Section 161 of the Electoral Act now reads as follows:

“161 Establishment and jurisdiction of Electoral Court

(1) There is hereby established a division of the High Court, to be known as the Electoral Court, which shall be a court of record.

(2) The Electoral Court shall have exclusive jurisdiction —

(a) To hear appeals, applications, and petitions in terms of this Act; and

(b) To review any decision of the Commission or any other person made or purporting to have been made under this Act; and shall have power to give such judgments, orders, and directions in those matters as might be given by the High Court:
Provided that the Electoral Court shall have no jurisdiction to try any criminal case.

(3) Judgments, orders, and directions of the Electoral Court shall be enforceable in the same way as judgments, orders, and directions of the High Court.”

Section 161 of the Electoral Act gives the court exclusive power to deal with all issues pertaining to election processes. The court can hear appeals, applications, and petitions within the confines of the Electoral Act. It can also review decisions of the Commission and shall grant such orders, judgments, and directions as may be granted by the High Court in such matters.

It is a creature of statute and its powers are confined to the four corners of the Electoral Act.

In discussing the jurisdiction of the Electoral Court, UCHENA J…, in Mliswa v The Chairperson Zimbabwe Electoral Commission HH586-15 stated the following:

“The Electoral Court now has exclusive jurisdiction, which it did not have in 2008. The word 'exclusive' means this court now has a domain over which it does not share its jurisdiction with any other court. That domain is marked by section 161(2)(a) and (b) which caps it all by adding that this court now has powers similar to those exercised by the High Court when it determines electoral issues.

The combination of exclusive jurisdiction and the addition of powers similar to those exercised by the High Court means this court now enjoys unlimited jurisdiction over all electoral cases, except criminal cases and cases which have been specifically allocated to other courts.

Applications are now specifically mentioned as falling within the Electoral Court's jurisdiction. In 2008, they fell under 'other matters'.

The Electoral Court now has 'power to give such judgments, orders, and directions in those matters as might be given by the High Court'.

The granting to the Electoral Court of exclusive jurisdiction, and power to give such judgments, orders, and directions in those matters as might be given by the High Court, is a clear enhancement of the Electoral Court's jurisdiction after the Makone case (supra).”

There can be no doubt that the amendment to section 161 of the Electoral Act, by Act 3 of 2012, widened the powers of the court.

The court is no longer limited to hearing petitions only but can deal with appeals and applications in similar ways as they are dealt with by the High Court. The Electoral Act provides that the court can give judgments, orders, and directions as may be given by the High Court.

The Electoral Act, however, does not specifically state whether or not the court has the power to grant declaratory orders.

Both the Labour Court and Electoral Court share the characteristic of being specialized courts which exercise jurisdiction within the confines of enabling Acts of Parliament.

This Court, faced with a similar question of whether or not the Labour Court has jurisdiction to grant a declaratory order, in Stylianou and Others v Mubita and Others SC07-17…, reasoned as follows:

“Section 89 of the Labour Act determines the functions, powers, and jurisdiction of the Labour Court. The relevant section is section 89(1)(a) which reads as follows:

'89 Functions, powers and jurisdiction of Labour Court

(1) The Labour Court shall exercise the following functions —

(a) Hearing and determining applications and appeals in terms of this Act or any other enactment;…,.'

(b)…,.

Turning to the declaratory order granted by the court a quo, the same question arises as to whether or not the Labour Court has the jurisdiction to make such orders.

Paragraph 4 of the provisional order attached to the urgent chamber application a quo read as follows:

'4. The agreement signed by the works council will be and is hereby declared null and void.'…,.

The same question was deliberated upon by ZIYAMBI JA in UZ-UCSF Collaborative Research Programme in Women's Health v David Shamuyarira SC10-10 where she held as follows:

'…, nowhere in the Act is the power granted to the Labour Court to grant an order of the nature (declaratory order) sought by the respondents in the court a quo; nor have I been referred to any enactment.

So, too, in this case, there is no provision in the Act (nor have I been referred to any provision in any other enactment) authorizing the Labour Court to issue the declaratory order sought by the respondent.

It is therefore my view, that, the Labour Court ought to have dismissed the application for want of jurisdiction authorizing the Labour Court to grant such an order.

It is therefore evident, that, the court a quo acted outside its jurisdiction. Consequently, the declaratory order, like the interdict it granted, was null and void.'”

A reading of section 161 of the Electoral Act has similar wording as found in section 89(1)(a) of the Labour Act [Chapter 28:01].

Section 161 of the Electoral Act clearly states that the court has jurisdiction to hear appeals, applications, and petitions in terms of the Act. All matters brought before the court must be over election processes or any matter relating to elections. Likewise, all issues brought before the Labour Court must pertain to labour matters only.

The only difference between the two provisions which are strikingly similar is on section 161(b) of the Electoral Act.

Section 161(b) of the Electoral Act gives the Electoral Court extra power to grant judgments, orders, and directions as may be granted by the High Court.

A cursory examination of the provision suggests that it is an open-ended provision which suggests that the Electoral Court is at par with the High Court as both courts can grant similar judgments, orders, and directions.

In discussing the principle to be applied by a court in interpreting statutes, MALABA CJ, in Zambezi Gas (Pvt) Limited v NR Barber (Pvt) Ltd and Another SC03-20, stated the following:

“It is the duty of a court to interpret statutes. Where the language used in a statute is clear and unambiguous, the words ought to be given the ordinary grammatical meaning. However, where the language used is ambiguous and lacks clarity, the court will need to interpret it and give it meaning. There is enough authority for this rule of interpretation.

In Endeavour Foundation and Anor v Commissioner of Taxes 1995 (1) ZLR 339 (S) at p356F-G the Supreme Court stated:

'The general principle of interpretation is that the ordinary, plain, literal meaning of the word or expression, that is as popularly understood, is to be adopted, unless that meaning is at variance with the intention of the Legislature as shown by the context or such other indicia as the court is justified in taking into account, or creates an anomaly or otherwise produces an irrational result.'”…,.

In Chihava and Others v The Provincial Magistrate Francis Mapfumo N.O. and Another 2015 (2) ZLR 31 (CC)…, the Constitutional Court said:

“The starting point in relation to the interpretation of statutes, generally, would be what is termed 'the golden rule' of statutory interpretation. This rule is authoritatively stated thus in the case of Coopers and Lybrand & Others v Bryant 1995 (3) SA 761 (A) at 767:

'According to the 'golden rule' of interpretation, the language in the document is to be given its grammatical and ordinary meaning, unless this would result in some absurdity, or some repugnancy or inconsistency with the rest of the instrument.'”…,.

Applying the above principles, it seems to me that an interpretation of section 161(2)(b) of the Electoral Act requires that I apply the golden rule.

As a starting point, an examination of the meaning of “applications” envisaged under section 161(2)(a) of the Electoral Act is imperative.

Examples of applications envisaged in the Electoral Act are set out in Part XIII of the Electoral Act. The main one is an electoral petition. There is also provision for an application made in terms of section 67A of the Act for the extension of the period for counting votes; an application made in terms of section 70(4) where the court may grant leave to any person to open any packet or box containing electoral residue; and, lastly, an application made in terms of section 129(1) of the Act wherein the court can order a run-off of elections to be done on the same day.

The case in issue was clearly not an electoral petition nor did it fall under any of the above-cited examples.

The examples cited above, which are aptly captured in the appellant's heads of argument, serve to show that applications which may be entertained by the Electoral Court have a marked difference from those that may be heard by the High Court.

This is where, in my view, the court a quo fell into error.

The High Court is a court with inherent jurisdiction. It has the power to hear all types of applications brought to it in terms of Order 32 of the High Court Rules, 1971. The types of applications that the High Court can hear are not stipulated in the High Court Act as is the position in the Electoral Act.

That the High Court has inherent jurisdiction is a common law principle which has been specifically codified by section 176 of the Constitution. The Electoral Act does not have such a provision. Thus, the High Court can grant any order as it may deem fit. This is in complete variance with the applications envisaged under the Electoral Act where there is a set remedy which the court must apply for every application before it.

For example, under section 67A of the Electoral Act, in an application for the extension of the period for counting votes, the court's remedy is that it may, for good cause shown, extend the period for counting of the votes. Also, in an application made in terms of section 70(4) of the Electoral Act, the court, on application, can order that a ballot packet be reopened.

It is clear that the Electoral Act provides for situations where the court can exercise its jurisdiction and further provides for the remedies which the court can grant.

The net effect is that the nature of the jurisdiction which is granted in the Electoral Act is that the court cannot stray from the provisions of the Act. It is bound to follow the powers set out in the Electoral Act. Therefore, a proper interpretation of the provision that the Electoral Court can exercise the same powers as the High Court in making judgments, orders, and directions in appeals, applications, and petitions, can only be that such power is limited to the confines of the Electoral Act.

The Electoral Act does not provide nor purport to give the court the jurisdiction to grant declaratory orders.

A declaratur, by nature, is a special remedy open to any individual who has an interest in any matter who seeks a declaration on existing or future rights.

The power of the High Court to grant declaratory orders is entrenched in section 14 of the High Court Act. Section 14 of the High Court Act provides as follows:

“14 High Court may determine future or contingent rights

The High Court may, in its discretion, at the instance of any interested person, inquire into and determine any existing, future, or contingent right or obligation, notwithstanding that such person cannot claim any relief consequential upon such determination.”

It seems to me that section 14 of the High Court Act is a special provision which flows from the fact that the High Court has inherent jurisdiction which the Electoral Court does not have.

The remedy of a declaration of rights is a remedy which the High Court grants within its discretion. That is not a remedy which may be shared by a court which has limited jurisdiction.

It could not have been the intention of the legislature to give the Electoral Court the power to grant declaratory orders through the amendment of section 161 of the Electoral Act.

In my view, section 161 of the Electoral Act was amended so as to provide the Electoral Court with wider powers so that it is not restricted to dealing only with election petitions as was the position prior to 2012.

For the application for a declaratory order made a quo by the first and second respondents to have been properly before the court, it must have been provided for in the Electoral Act as can be drawn from the remarks by ZIYAMBI JA in National Railways of Zimbabwe v Zimbabwe Railway Artisans Union and Others 2005 (1) ZLR 341 (S) wherein the court noted the following…,:

“Thus, before an application can be entertained by the Labour Court, it must be satisfied that such an application is an application 'in terms of this Act or any other enactment'. This necessarily means that the Act or other enactment must specifically provide for applications to the Labour Court of the type that the applicant seeks to bring.”

Before the court a quo could entertain the application before it, it ought to have been satisfied that the application fell within the confines of the Electoral Act.

It should also be observed that the court a quo, in invoking section 14 of the High Court Act, applied principles which were not argued before it by the parties. It thus again fell into error by determining a matter based on an issue which had not been placed before it.

Clearly, by acting in this manner, the court went on a frolic of its own.

DISPOSITION

The Electoral Court, like the Labour Court, does not have jurisdiction to grant declaratory orders. The Electoral Court, being a creature of statute, can only deal with issues which are set out in its enabling Act.

The court a quo thus erred in finding that it had jurisdiction to deal with the application for a declaratory order.

The appeal must thus succeed on this basis.

In respect to costs, the appellant has been successful and I find no reason why costs should not follow the cause.

In the result, it is accordingly ordered as follows:

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

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

“The application is dismissed with costs.”

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

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

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

HH97-17 : IGNATIUS MASAMBA vs SECRETARY – JUDICIAL SERVICE COMMISSION Ruled By: MANGOTA J

SC27-18 : GETRUDE MUTASA and DIDYMUS MUTASA vs THE REGISTRAR OF SUPREME COURT and NYAKUTOMBWA MUGABE LEGAL COUNSEL and SHERIFF OF ZIMBABWE Ruled By: GUVAVA JA

SC29-09 : BLUE RANGERS ESTATES (PVT) LTD vs JAMAYA MUDUVIRI and THE MINISTER OF LANDS AND RURAL RESETTLEMENT Ruled By: MALABA DCJ

SC58-19 : COMPETITION AND TARIFF COMMISSION vs IWAYAFRICA ZIMBABWE (PRIVATE) LIMITED Ruled By: GWAUNZA DCJ, MAKARAU JA and BHUNU JA

HH29-17 : JOSHUA NYAMHUKA and CHURCH OF GOD OF PROPHECY vs ABIGAIL MAPINGURE and OTHERS Ruled By: FOROMA J

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

HH240-18 : KENNETH SCHOFIELD vs FBC BANK LIMITED and THE SHERIFF OF THE HIGH COURT OF ZIMBABWE N.O. Ruled By: CHIKOWERO J

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

HH390-18 : MIDLANDS STATE UNIVERSITY vs ALOIS MATONGO Ruled By: MUZOFA J

CC16-19 : PERFECT NYATHI vs THE STATE Ruled By: MALABA CJ, GARWE JCC, MAKARAU JCC, GOWORA JCC, HLATSHWAYO JCC, PATEL JCC, GUVAVA JCC, MAVANGIRA JCC and BERE JCC

CC08-20 : FEATHERS MUKONDO vs THE STATE Ruled By: MALABA CJ

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

View Appeal HB08-14 : JONATHAN MOYO vs ROSELINE NKOMO Ruled By: MAKONESE J

HH260-15 : DR PARTSON ZVANDASARA vs BELVEDERE NURSING HOME (PVT) LTD Ruled By: MATHONSI J

HH520-18 : AIR NAMIBIA (PROPRIETARY) LTD vs CHENJERAI MAWUMBA and JULIANA MAGOMBEDZE and FADZAI MAWUMBA and RUTENDO MUWUMBA and TADIWANASHE MAWUMBA (minors represented by father & natural guardian) Ruled By: CHITAPI J

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

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

HH13-09 : BORDER TIMBERS LIMITED vs ZIMBABWE REVENUE AUTHORITY Ruled By: MAKARAU JP

SC40-15 : INDIUM INVESTMENTS (PVT) LTD vs KINGSHAVEN (PVT) LTD and DANIEL SHUMBA and LINDA SHUMBA Ruled By: CHIDYAUSIKU CJ, GWAUNZA JA, GOWORA JA, HLATSHWAYO JA and MAVANGIRA AJA

SC46-17 : ANDREW MAGARASADZA and 34 OTHERS vs FREDA REBECCA GOLD MINE HOLDINGS LTD t/a FREDA REBECCA GOLD MINE and ASSOCIATED MINE WORKERS UNION OF ZIMBABWE Ruled By: MAVANGIRA JA

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

HH19-07 : PONDORO (PVT) LTD and DOUGLAS TAYLOR-FREME vs MENDE NEMAKONDE and THE MAGISTRATE, CHINHOYI Ruled By: HUNGWE J

HH16-08 : CAVIN CHIFAMBA vs NORBERT MUTASA and GUARANTEE TRUST (PVT) LTD and M V CHIZODZA Ruled By: MAKARAU JP

HH111-08 : RAILWAY ARTISANS UNION and RAILWAY ASSOCIATION OF YARD OPERATING STAFF and ANOR vs RAILMED and NATIONAL RAILWAYS OF ZIMBABWE and RAILWAYS EMPLOYMENT COUNCIL Ruled By: GOWORA J

HH133-12 : MONICA CHIKOORE vs J P KADZIYA and DISTRICT ADMINISTRATOR, KADOMA DISTRICT and MINISTRY OF LOCAL GOVERNMENT Ruled By: MATHONSI J

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

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

Appealed SC08-14 : SIMBA MUKAMBIRWA and OTHERS vs THE GOSPEL OF GOD CHURCH INTERNATIONAL 1932 Ruled By: GARWE JA, GOWORA JA and OMERJEE AJA

SSC04-21 : MARRY MUBAIWA-CHIWENGA vs THE STATE and NATIONAL PROSECUTING AUTHORITY and CRIMINAL CLERK OF COURT, ROTTEN ROW MAGISTRATES COURT Ruled By: MAVANGIRA JA

View Appeal HH665-16 : OLIVER MASOMERA (as Executor Dative of Estate late Brian James Rhodes) vs GIDEON HWEMENDE and OTHERS Ruled By: CHITAPI J

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

HH68-16 : THE TRUSTEES FOR THE TIME BEING OF THE PHOENIX TRUST N.O. vs GIDEON HWEMENDE and OTHERS Ruled By: CHIGUMBA J

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

View Appeal SC177-20 : CAINOS CHINGOMBE and TENDAI KWENDA vs CITY OF HARARE and MINISTER OF LOCAL GOVERNMENT, PUBLIC WORKS AND NATIONAL HOUSING and HOSEA CHISANGO N.O. and GEORGE MAKINGS N.O. and CHENAI GUMIRO N.O. Ruled By: GOWORA JA, GUVAVA JA and MAKONI JA

View Appeal HH351-20 : THE SHERIFF OF ZIMBABWE and GURTA AG vs ANDERSON MANJA and 98 OTHERS Ruled By: CHIKOWERO J

HH21-21 : LAZARUS MUCHENJE vs SUSAN M. MUTANGADURA and PAUL MUPFIGA and TENDERO DZVETERO and DR BEAULAH CHIRUME and CHIDO BOKA and NETONE CELLULAR PL Ruled By: MUREMBA J

SC11-21 : TENDAI BONDE vs NATIONAL FOODS LTD and LOVEJOY NYANDORO [as Chairman of Appeals Committee] and CHIPO NHETA [as Chairman of Works Council] Ruled By: GUVAVA JA

SC13-21 : MOSES MAWIRE vs RIO ZIM LIMITED (PRIVATE) LIMITED Ruled By: GOWORA JA, PATEL JA and MAVANGIRA JA

HH164-18 : TRUSTEES FOR THE TIME BEING OF TONGOGARA COMMUNITY SHARE OWNERSHIP TRUST vs MATRIX REALTY (PVT) LTD Ruled By: MUREMBA J

SC18-21 : A. ADAM AND COMPANY (PVT) LTD and SGI PROPERTIES (PVT) LTD and GARABGA NCUBE AND PARTNERS vs GOODLIVING REAL ESTATE (PVT) LTD Ruled By: GUVAVA JA, MAVANGIRA JA and BHUNU JA

SC20-21 : TIMOTHY MUYAMBO vs HORTBAC PL t/a LITTLE FLOWER ENTERPRISES and JAMES CHIYANGWA and RONALD KITULI and TENDAI BONGA and MINISTER OF LANDS, AGRICULTURE AND RURAL RESETTLEMENT Ruled By: CHITAKUNYE AJA

SSC23-21 : SAMUEL UNDENGE vs THE STATE Ruled By: UCHENA JA

HH842-19 : BARIADIE INVESTMENTS (PVT) LTD vs PUWAYI CHIUTSI and TENDAI MASHAMHANDA and REGISTRAR OF DEEDS and SHERIFF OF THE HIGH COURT OF ZIMBABWE N.O. and ELLIOT ROGERS Ruled By: CHITAPI J

SC25-22 : ELLIOT RODGERS vs PUWAYI CHIUTSI and TENDAYI MASHAMHANDA and REGISTRAR OF DEEDS and SHERIFF OF ZIMBABWE and BARIADE INVESTMENTS PL and LAW SOCIETY OF ZIMBABWE Ruled By: GWAUNZA DCJ, GUVAVA JA and BHUNU JA

SSC46-12 : CHARLES KWARAMBA vs THE HONOURABLE MR JUSTICE BHUNU N.O. Ruled By: CHIDYAUSIKU CJ

HH11-09 : THE MASTER OF THE HIGH COURT vs SITHANDIZILE DHLAMINI MOYO (as executor dative of Estate Late Willas Moyo) and GERTRUDE MOYO and SITHEMBISO KUSODZA Ruled By: GUVAVA J

Appealed SC66-21 : TINASHE KAMBARAMI vs 1893 MTHWAKAZI RESTORATION MOVEMENT TRUST and NOMALANGA DABENGWA and CITY OF BULAWAYO and ZIMBABWE ELECTORAL COMMISSION and MOVEMENT FOR DEMOCRATIC CHANGE ALLIANCE Ruled By: GUVAVA JA, MATHONSI JA and KUDYA AJA

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Zimbabwe

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

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

HH97-17 : IGNATIUS MASAMBA vs SECRETARY – JUDICIAL SERVICE COMMISSION
Ruled By: MANGOTA J

SC27-18 : GETRUDE MUTASA and DIDYMUS MUTASA vs THE REGISTRAR OF SUPREME COURT and NYAKUTOMBWA MUGABE LEGAL COUNSEL and SHERIFF OF ZIMBABWE
Ruled By: GUVAVA JA

SC29-09 : BLUE RANGERS ESTATES (PVT) LTD vs JAMAYA MUDUVIRI and THE MINISTER OF LANDS AND RURAL RESETTLEMENT
Ruled By: MALABA DCJ

SC58-19 : COMPETITION AND TARIFF COMMISSION vs IWAYAFRICA ZIMBABWE (PRIVATE) LIMITED
Ruled By: GWAUNZA DCJ, MAKARAU JA and BHUNU JA

HH29-17 : JOSHUA NYAMHUKA and CHURCH OF GOD OF PROPHECY vs ABIGAIL MAPINGURE and OTHERS
Ruled By: FOROMA J

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

HH240-18 : KENNETH SCHOFIELD vs FBC BANK LIMITED and THE SHERIFF OF THE HIGH COURT OF ZIMBABWE N.O.
Ruled By: CHIKOWERO J

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

HH390-18 : MIDLANDS STATE UNIVERSITY vs ALOIS MATONGO
Ruled By: MUZOFA J

CC16-19 : PERFECT NYATHI vs THE STATE
Ruled By: MALABA CJ, GARWE JCC, MAKARAU JCC, GOWORA JCC, HLATSHWAYO JCC, PATEL JCC, GUVAVA JCC, MAVANGIRA JCC and BERE JCC

CC08-20 : FEATHERS MUKONDO vs THE STATE
Ruled By: MALABA CJ

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

View Appeal
HB08-14 : JONATHAN MOYO vs ROSELINE NKOMO
Ruled By: MAKONESE J

HH260-15 : DR PARTSON ZVANDASARA vs BELVEDERE NURSING HOME (PVT) LTD
Ruled By: MATHONSI J

HH520-18 : AIR NAMIBIA (PROPRIETARY) LTD vs CHENJERAI MAWUMBA and JULIANA MAGOMBEDZE and FADZAI MAWUMBA and RUTENDO MUWUMBA and TADIWANASHE MAWUMBA (minors represented by father & natural guardian)
Ruled By: CHITAPI J

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

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

HH13-09 : BORDER TIMBERS LIMITED vs ZIMBABWE REVENUE AUTHORITY
Ruled By: MAKARAU JP

SC40-15 : INDIUM INVESTMENTS (PVT) LTD vs KINGSHAVEN (PVT) LTD and DANIEL SHUMBA and LINDA SHUMBA
Ruled By: CHIDYAUSIKU CJ, GWAUNZA JA, GOWORA JA, HLATSHWAYO JA and MAVANGIRA AJA

SC46-17 : ANDREW MAGARASADZA and 34 OTHERS vs FREDA REBECCA GOLD MINE HOLDINGS LTD t/a FREDA REBECCA GOLD MINE and ASSOCIATED MINE WORKERS UNION OF ZIMBABWE
Ruled By: MAVANGIRA JA

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

HH19-07 : PONDORO (PVT) LTD and DOUGLAS TAYLOR-FREME vs MENDE NEMAKONDE and THE MAGISTRATE, CHINHOYI
Ruled By: HUNGWE J

HH16-08 : CAVIN CHIFAMBA vs NORBERT MUTASA and GUARANTEE TRUST (PVT) LTD and M V CHIZODZA
Ruled By: MAKARAU JP

HH111-08 : RAILWAY ARTISANS UNION and RAILWAY ASSOCIATION OF YARD OPERATING STAFF and ANOR vs RAILMED and NATIONAL RAILWAYS OF ZIMBABWE and RAILWAYS EMPLOYMENT COUNCIL
Ruled By: GOWORA J

HH133-12 : MONICA CHIKOORE vs J P KADZIYA and DISTRICT ADMINISTRATOR, KADOMA DISTRICT and MINISTRY OF LOCAL GOVERNMENT
Ruled By: MATHONSI J

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

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

Appealed
SC08-14 : SIMBA MUKAMBIRWA and OTHERS vs THE GOSPEL OF GOD CHURCH INTERNATIONAL 1932
Ruled By: GARWE JA, GOWORA JA and OMERJEE AJA

SSC04-21 : MARRY MUBAIWA-CHIWENGA vs THE STATE and NATIONAL PROSECUTING AUTHORITY and CRIMINAL CLERK OF COURT, ROTTEN ROW MAGISTRATES COURT
Ruled By: MAVANGIRA JA

View Appeal
HH665-16 : OLIVER MASOMERA (as Executor Dative of Estate late Brian James Rhodes) vs GIDEON HWEMENDE and OTHERS
Ruled By: CHITAPI J

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

HH68-16 : THE TRUSTEES FOR THE TIME BEING OF THE PHOENIX TRUST N.O. vs GIDEON HWEMENDE and OTHERS
Ruled By: CHIGUMBA J

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

View Appeal
SC177-20 : CAINOS CHINGOMBE and TENDAI KWENDA vs CITY OF HARARE and MINISTER OF LOCAL GOVERNMENT, PUBLIC WORKS AND NATIONAL HOUSING and HOSEA CHISANGO N.O. and GEORGE MAKINGS N.O. and CHENAI GUMIRO N.O.
Ruled By: GOWORA JA, GUVAVA JA and MAKONI JA

View Appeal
HH351-20 : THE SHERIFF OF ZIMBABWE and GURTA AG vs ANDERSON MANJA and 98 OTHERS
Ruled By: CHIKOWERO J

HH21-21 : LAZARUS MUCHENJE vs SUSAN M. MUTANGADURA and PAUL MUPFIGA and TENDERO DZVETERO and DR BEAULAH CHIRUME and CHIDO BOKA and NETONE CELLULAR PL
Ruled By: MUREMBA J

SC11-21 : TENDAI BONDE vs NATIONAL FOODS LTD and LOVEJOY NYANDORO [as Chairman of Appeals Committee] and CHIPO NHETA [as Chairman of Works Council]
Ruled By: GUVAVA JA

SC13-21 : MOSES MAWIRE vs RIO ZIM LIMITED (PRIVATE) LIMITED
Ruled By: GOWORA JA, PATEL JA and MAVANGIRA JA

HH164-18 : TRUSTEES FOR THE TIME BEING OF TONGOGARA COMMUNITY SHARE OWNERSHIP TRUST vs MATRIX REALTY (PVT) LTD
Ruled By: MUREMBA J

SC18-21 : A. ADAM AND COMPANY (PVT) LTD and SGI PROPERTIES (PVT) LTD and GARABGA NCUBE AND PARTNERS vs GOODLIVING REAL ESTATE (PVT) LTD
Ruled By: GUVAVA JA, MAVANGIRA JA and BHUNU JA

SC20-21 : TIMOTHY MUYAMBO vs HORTBAC PL t/a LITTLE FLOWER ENTERPRISES and JAMES CHIYANGWA and RONALD KITULI and TENDAI BONGA and MINISTER OF LANDS, AGRICULTURE AND RURAL RESETTLEMENT
Ruled By: CHITAKUNYE AJA

SSC23-21 : SAMUEL UNDENGE vs THE STATE
Ruled By: UCHENA JA

HH842-19 : BARIADIE INVESTMENTS (PVT) LTD vs PUWAYI CHIUTSI and TENDAI MASHAMHANDA and REGISTRAR OF DEEDS and SHERIFF OF THE HIGH COURT OF ZIMBABWE N.O. and ELLIOT ROGERS
Ruled By: CHITAPI J

SC25-22 : ELLIOT RODGERS vs PUWAYI CHIUTSI and TENDAYI MASHAMHANDA and REGISTRAR OF DEEDS and SHERIFF OF ZIMBABWE and BARIADE INVESTMENTS PL and LAW SOCIETY OF ZIMBABWE
Ruled By: GWAUNZA DCJ, GUVAVA JA and BHUNU JA

SSC46-12 : CHARLES KWARAMBA vs THE HONOURABLE MR JUSTICE BHUNU N.O.
Ruled By: CHIDYAUSIKU CJ

HH11-09 : THE MASTER OF THE HIGH COURT vs SITHANDIZILE DHLAMINI MOYO (as executor dative of Estate Late Willas Moyo) and GERTRUDE MOYO and SITHEMBISO KUSODZA
Ruled By: GUVAVA J

Appealed
SC66-21 : TINASHE KAMBARAMI vs 1893 MTHWAKAZI RESTORATION MOVEMENT TRUST and NOMALANGA DABENGWA and CITY OF BULAWAYO and ZIMBABWE ELECTORAL COMMISSION and MOVEMENT FOR DEMOCRATIC CHANGE ALLIANCE
Ruled By: GUVAVA JA, MATHONSI JA and KUDYA AJA