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

SC78-21 : ZIMBABWE HOMELESS PEOPLES FEDERATION and OTHERS vs MINISTER OF LOCAL GOVERNMENT AND NATIONAL HOUSING and OTHERS
Ruled By: GARWE JA, MAVANGIRA JA and MATHONSI JA

After hearing argument from the parties, the High Court of Zimbabwe made an order dismissing the application filed by the appellants in terms of section 85(1) of the Constitution of Zimbabwe. The court also ordered the appellants to pay the costs of the application.

This followed a finding by the court that the appellants could not properly seek to enforce their right to shelter in terms of section 85 of the Constitution of Zimbabwe as such a right was not a fundamental right enshrined in Chapter 4 of the Constitution which contains the declaration of rights. The court further found, that, the right to shelter was one of the national objectives under Chapter 2 of the Constitution and therefore not justiciable.

This appeal is against that determination.

FACTUAL BACKGROUND

The first appellant, the Zimbabwe Homeless Peoples Federation, is a universitas at law with an active membership said to be ten thousand homeless people who contribute and pool their resources together for the purpose of achieving and attaining the goal for housing for poor homeless people. The second appellant, Tawonga Savings Scheme, is a saving scheme established in terms of its Constitution with the power to sue and be sued.

The third appellant, Ngwaru Masanza, is a resident of Newpark informal settlement situated at Haydon Farm along the Old Mazoe Road.

Although counsel for appellants attempted, unsuccessfully, to urge the court a quo, and this Court, to accept that the application brought by the first and second appellants in the court was not in terms of section 85(1) of the Constitution of Zimbabwe, it is clear, when all is said and done, that all three appellants approached the court a quo in terms of section 85(1) of the Constitution.

This is an aspect I will revert to in the course of this judgment as it has an important bearing on whether or not the appellants were properly non-suited by the court a quo on the basis that they could not seek relief in terms of section 85 of the Constitution.

The first respondent is the Minister of Local Government and National Housing whose Ministry is responsible for national housing and the administration of local authorities in Zimbabwe. He is hereinafter referred to as “the Minister” of Local Government.

The second respondent is Zvimba Rural District Council, a local authority that operates under the aegis of the first respondent. It will be referred to in this judgment simply as “the Council”. It is the local authority for Haydon Farm which is at the centre of the dispute between the parties herein.

The third respondent is Leengate (Pvt) Ltd (“Leengate”), a private company involved in housing development. It was this company which was given the right to develop a portion of the farm in question.

The fourth respondent is the Minister of Lands, Land Reform and Rural Resettlement, the acquiring authority of the farm. He is hereinafter referred to as “the Minister of Lands”. It was the Minister of Lands who handed over the farm to the Minister of Local Government for housing development who, in turn, allocated it to the Council and Leengate.

Members of the Tawonga Savings Scheme, including the third appellant herein (Ngwaru Masanza), took occupation of Haydon Farm sometime in 2000, during the height of the land reform programme. They proceeded to construct fixtures, some permanent, but these were demolished in 2005 during a Government operation that came to be referred to as Operation Murambatsvina.

It was shortly thereafter that the land in question was acquired by the State pursuant to Constitutional Amendment No.17 after which it became State land.

The informal settlement at the farm was not regularised.

In due course, the third respondent, Leengate (Pvt) Ltd, was offered a hundred hectares of the land for residential development.

It is common cause that some of the appellants occupy part of the land that was offered to Leengate (Pvt) Ltd for development.

It is not in dispute that Leengate (Pvt) Ltd proceeded to have the land surveyed after which roads and storm drains were constructed thereon. Leengate proceeded to develop a hundred and fifty Stands which it then sold to the public.

About forty per cent of this land is still occupied by the second appellant's members.

PROCEEDINGS BEFORE THE HIGH COURT

In their founding papers before the High Court, the appellants averred that Council and Leengate (Pvt) Ltd then began to threaten them and proceeded to evict some of them from the farm. They gave notice to the remaining occupants to vacate the farm by a given date.

The appellants contended, that, the evictions were a breach of their rights enshrined under sections 28, 44, 48, 51, 56(1) and 77 of the Constitution.

They argued, that, whilst there was no specific right to shelter or housing in the Declaration of Rights, other than for children, the right to dignity (section 48) necessarily incorporates the right to shelter as the latter right would be meaningless without the concomitant right to food and shelter.

The appellants therefore sought an order interdicting the Council and Leengate (Pvt) Ltd from evicting them.

They also sought orders compelling the Minister of Local Government and the Council to allocate serviced Stands to them as well as construct basic houses for them. Alternatively, they sought an order compelling the Minister of Local Government and the Minister of Lands to provide them with alternative land and serviced Stands thereon.

An application to further amend the prayer was abandoned at the hearing of this matter.

All the respondents, including the City of Harare against which the application was subsequently withdrawn, opposed the application to interdict what the appellants termed forced evictions.

The Minister of Local Government and the Minister of Lands took the common position that the land in question was State land and that the appellants had no lawful authority to occupy, use, or hold it. They contended that the right to shelter was not part of the Bill of Rights and therefore the appellants could not seek relief against them in terms of section 85 of the Constitution.

Leengate (Pvt) Ltd, on the other hand, averred, that, the appellants occupation of the farm was illegal and that, as a corollary, they had no right of audience before the court. Leengate also submitted that there had been no illegal evictions undertaken by itself or at its instance. Instead, what it had done was follow due process and to institute eviction proceedings against the appellants in the Magistrates Court. Leengate further submitted, that, as the right to shelter was not entrenched in the Constitution, the appellants therefore had no cause of action against it pursuant to section 85 of the Constitution.

In its determination, the court a quo found that all the applicants had approached the court in terms of section 85(1)(d), 85(1)(e) and 85(1)(a) respectively.

The court held, that, section 85(1) was available to litigants who sought to enforce rights enshrined under the Declaration of Rights in Chapter 4. It found that since the right to shelter was not part of the Declaration of Rights, the appellants could not have properly approached the court in terms of section 85(1) alleging a breach of a fundamental right.

The court found it unnecessary to determine the merits of the matter, and, consequently, dismissed the application with costs.

PROCEEDINGS BEFORE THIS COURT

Aggrieved by the above determination, the appellants noted an appeal to this Court. They alleged that the court a quo had erred in three respects:

(i) Firstly, in failing to recognise the right of shelter on the basis that it is not included in Chapter 4 of the Constitution whereas section 47 of the Constitution, which is part of the Bill of Rights, provides that Chapter 4 does not preclude the existence of other rights and freedoms that may be recognised or conferred by law, to the extent that they are consistent with the Constitution.

(ii) Secondly, in finding that the appellants could not approach the court in terms of section 85 of the Constitution when there was in existence section 47 of the same Constitution which recognised the existence of other rights and freedoms conferred by the law.

(iii) In not making a determination on the merits through the selective application of Chapter 4, when the very same Chapter contains the non-exclusionary clause under section 47 of the same Constitution.

Both in his heads of argument and oral submissions, counsel for the third respondent (Leengate (Pvt) Ltd) raised the preliminary point, that, the appellants heads of argument were not compliant with Rule 52(2) of the Supreme Court Rules, 2018.

Although the parties had agreed, before the hearing, not to pursue the preliminary points taken by the respondents in their respective heads of argument, all addressed the court on whether there were proper heads of argument filed by the appellants before the court.

The court directed the parties to address it on all the issues that required determination by this Court.

On the merits, counsel for the appellants submitted, that, the right to shelter ought to be declared a fundamental right pursuant to section 47 of the Constitution.

She further argued, that, the right to life, dignity, and equal protection of the law do not exist independently of the right to shelter. Human rights are indivisible and interdependent. Indeed, one cannot be said to have the right to life or dignity if one does not have the right to shelter or a home.

Counsel urged the court to adopt a wide and purposive interpretation in order to determine whether the legislature intended to make shelter a fundamental right within the Constitution.

Counsel further argued, that, the findings of the court a quo had not taken into account all the provisions of the Constitution.

The Constitution has provided for adequate shelter as a national objective under section 28.

It has provided for freedom from arbitrary evictions under section 74 of the same Constitution. It has also made provision for the right of children to education, health services, nutrition, and shelter under section 81(f). It also provides for security of tenure to every person lawfully owning or occupying agricultural land.

The court should therefore have adopted a purposive interpretation and paid due regard to all these provisions that have a bearing on the right to shelter.

Taken as a whole, the Constitution provides for the fundamental right to housing.

The appellants have further contended, that, the decision of the court a quo has far reaching implications as it effectively leaves the appellants members homeless with nowhere to go.

Before sanctifying the drastic measure of eviction, the court a quo should have gone beyond the facts.

The court did not take into account the circumstances and length of time the appellants members had been in occupation, the rights and needs of vulnerable sections of that group, such as children, and the failure by the relevant organs of the State to make suitable alternative accommodation available.

SUBMISSIONS BY THE MINISTER OF LOCAL GOVERNMENT AND THE MINISTER OF LANDS

Counsel for the two Ministers submitted, that, for the reasons given by Leengate (Pvt) Ltd, with which they agree, the appellants heads of argument do not comply with the Rules of Court. He urged this Court to find that there are no proper heads before it.

On the merits, he argued, that, the right to shelter is not included in Chapter 4 of the Constitution but is envisaged as a national objective under section 28.

He further submitted, that, the reliance by the appellants on section 47 of the Constitution was inappropriate as they had failed to point to any law that provides the right to shelter. In any event, any rights recognised by section 47 of the Constitution are not fundamental rights. The provision simply means the Constitution does not exclude the existence of other rights confirmed in terms of other laws recognised as such by the Constitution.

SUBMISSIONS BY LEENGATE

Counsel for Leengate (Pvt) Ltd submitted, that, there were no proper heads of argument before the court. The appellants heads span fifty-eight pages and are clearly not in compliance with Rule 52(2) of the Supreme Court Rules 2018.

On the merits, counsel also submitted, that, the right to shelter is just but an aspiration.

Section 47 of the Constitution refers to rights conferred by law. The appellants have not pointed to any provision of law that creates the right to shelter.

The matter brought before the court is therefore not a constitutional matter, and, consequently, the principle of subsidiarity applies.

ISSUES ARISING FOR DETERMINATION

From the above synopsis, four issues arise for determination. These are:

(i) First, whether the appellants heads of argument are compliant with Rule 52(2) of the Supreme Court Rules 2018.

(ii) Second, whether the right to housing is a fundamental right cognizable in our law.

(iii) Third, whether the court correctly found that the appellants could not properly approach the court in terms of section 85 of the Constitution and whether the doctrine of avoidance is applicable in this case.

(iv) Last, whether the court a quo erred by not making a determination on the merits....,.

WHETHER THE RIGHT TO HOUSING IS A FUNDAMENTAL RIGHT

It is the appellants submission, that, the court a quo erred in failing to adopt a purposive approach in its interpretation of the provisions of the Constitution. They have argued, that, had the court a quo correctly interpreted the Constitution, it would have found that the right to housing and shelter is provided for in the Constitution, even though such a right is not specifically provided for.

For this proposition, they relied on the provisions of section 47 as well as sections 48 and 51 of the Constitution.

They further contended that the right to life and to dignity, enshrined in the Declaration of Rights, cannot be fulfilled if one does not have shelter. The right to housing is therefore part and parcel of the right to dignity.

The appellants accept that the right to shelter is not specifically provided for in Chapter 4 of the Constitution. They rely on Chapter 2 of the Constitution, and, in particular, sections 8 and 28 thereof.

Section 8 of the Constitution provides:

“(1) The objectives set out in this Chapter guide the State and all institutions and agencies of government at every level in formulating and implementing laws and policy decisions that will lead to the establishment, enhancement, and promotion of a sustainable, just, free, and democratic society in which people enjoy prosperous, happy, and fulfilling lives.

(2) Regard must be had to the objectives set out in this Chapter when interpreting the State's obligations under this Constitution and any other law.”

It is section 28 of the Constitution, which also falls under Chapter 2 of the Constitution dealing with national objectives, that makes reference to access to adequate shelter. That section provides:

“The State and all institutions and agencies of government, at every level, must take reasonable legislative and other measures, within the limits of the resources available to them, to enable every person to have access to adequate shelter.”

The appellants have sought to rely on a somewhat similarly worded provision in the South African Constitution. Section 26 of the South African Constitution provides as follows:

“26 HOUSING

(1) Everyone has the right to have access to adequate housing.

(2) The State must take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of this right.

(3) No-one may be evicted from their home, or have their home demolished without an order of court made after considering all the relevant circumstances. No legislation may permit arbitrary evictions.”

There is, however, a major distinction between the Zimbabwean and South African provisions.

Section 28 of the Constitution of Zimbabwe falls under Chapter 2 which spells out the national objectives to guide the State and all institutions of Government. Section 26 of the South African Constitution, to the contrary, is part of the Declaration of Rights of that Constitution - it is a justiciable right.

Even though section 74 of the Constitution of Zimbabwe protects people from arbitrary evictions, it states clearly that persons can be evicted from their home, or have their home demolished, if a court order is granted after considering all the relevant circumstances.

It is correct, that, in interpreting a Constitution, the ordinary grammatical meaning used in the Constitution is not always decisive. The Constitution itself provides, in section 46, that, in interpreting provisions of the Constitution, a court must pay regard to all the provisions of the Constitution, in particular the principles and objectives set out in Chapter 2. Section 331 then stipulates, that, the provisions of section 46 apply, mutatis mutandis, to the interpretation of the whole Constitution.

This Court has, in the past, had occasion to consider the status of the objectives set out in Chapter 2 of the Constitution. It is now accepted that the national objectives are important in interpreting the various provisions of the Constitution and any other laws - but they are not justiciable.

In Zimbabwe Homeless Peoples Federation & Ors v Minister of Local Government and National Housing & Others SC94-20, this court remarked at p8 of the judgment:

“These provisions are essentially hortatory in nature, given that they are qualified by that they are to be realised 'within the limits of the resources available' to the State and the Government. In this sense, they cannot be said to be strictly justiciable and enforceable in themselves. Nevertheless, they are not to be regarded as being entirely superfluous and otiose and therefore devoid of any legal significance whatsoever. They remain interpretively relevant for the purpose of informing and shaping the specific contours of the substantive rights enshrined elsewhere in the Constitution.”

The question remains whether, on a consideration of sections 28, 47, 48 and 51 of the Constitution, the right to shelter can be inferred. This is essentially a question of interpretation.

In attempting to interpret whether such a right exists, one must bear in mind the remarks made by the Constitutional Court of South Africa in State v Zuma 1995 (2) SA 642 (CC) that:

“While we must always be conscious of the values underlying the Constitution, it is nonetheless our task to interpret a written instrument. I am well aware of the fallacy of supposing that general language must have a single 'objective meaning'…,. But, it cannot be too strongly stressed that the Constitution does not mean whatever we might wish it to mean. We must heed LORD WILBERFORCE's reminder, that, even a Constitution is a legal instrument, the language of which must be respected. If the language by the law giver is ignored in favour of a general resort to values, the result is not interpretation but divination….,.”

It is the duty of this Court to give full effect to the obligations enshrined in the Constitution. The Constitution says so. However, a court does not itself create rights. It simply interprets the various provisions of the Constitution to ascertain the existence, nature, and extent of those rights.

The right to shelter is not provided for anywhere in the Declaration of Rights.

Parliament, in its wisdom, merely made provision for the State and all institutions of Government to take reasonable steps and measures, within the limits of the resources available, to actualise access to adequate shelter. That provision is essentially exhortatory but is one that the State, and all institutions of government, must bear in mind when formulating or implementing laws and policy decisions of government.

Parliament is deemed to have been aware of the various provisions that make up the Constitution.

It deliberately came up with founding values and principles. In Chapter 2, it came up with various national objectives that must guide the State and all its institutions in formulating and implementing laws and policy decisions. It also provided that those national objectives must be considered in interpreting the Constitution.

Many national objectives have been delineated under Chapter 2. These include the requirement, under section 28, for the State and all its institutions to do everything possible, within the limits of the available resources, to actualise access to adequate shelter.

Chapter 4 of the Constitution contains the Declaration of Rights.

Under Part 2 of that Chapter, the lawmaker has listed fundamental human rights and freedoms. These include the right not to be evicted from one's home unless this is pursuant to a court order. Part 3 of Chapter 4 elaborates certain fundamental rights “to ensure greater certainty as to the application of those rights and freedoms.” Part 4 then provides for the enforcement of fundamental human rights and freedoms and Part 5 the limitations of those rights and freedoms.

A number of national objectives captured under Chapter 2 of the Constitution are not part of the fundamental rights and freedoms that are delineated under Chapter 4 of the Constitution. In fact, only a few of them are recognised as fundamental human rights. These include the right to education (section 75); right to health care (section 76); right to food and water (section 77); marriage rights (section 78); rights of children (section 81); rights of the elderly (section 82); rights of persons with disabilities (section 83); and rights of veterans of the liberation struggle (section 84).

The Constitution deliberately left out a number of national objectives from the Declaration of Rights.

Whilst there is an obligation on the Government and its institutions to adopt reasonable measures to actualize these objectives within the limits of the resources available, these cannot be enforced under section 85 of the Constitution as fundamental rights and freedoms.

On a holistic consideration of the provisions of the Constitution, the inference is ineluctable that it was never the intention of the lawgiver to make the right to shelter a fundamental right which would be justiciable in terms of section 85 of the Constitution.

It is correct that section 47 of the Constitution provides that Chapter 4 does not preclude the existence of other rights and freedoms that may be conferred or recognized by law, to the extent that they are consistent with the Constitution.

IAIN CURRIE & JOHAN De WAAL, commenting on a provision in South Africa similar to our section 47, states:

“Section 39(3) simply confirms that the Bill of Rights does not prevent a person from relying on rights conferred by legislation, the common law, or customary law. But, since the Bill of Rights is supreme law, such rights may not be inconsistent with the Bill of Rights. For example, if the right to self-incrimination (section 35(3)(j)) is only available to persons accused in criminal proceedings, nothing prevents a person, in any other proceedings, from relying on his or her common law right against self-incrimination to the extent that the right is available.”

That is all that section 47 of the Constitution says.

It simply recognizes other rights that may be bestowed by other laws subsidiary to the Constitution. It does not state, as the appellants would want this court to believe, that these rights automatically become Chapter 4 rights and that they are enforceable as such.

Whilst these rights can be enforced, this would be in terms of the provisions of those laws and not section 85 of the Constitution.

As counsel for the third respondent (Leengate (Pvt) Ltd) stated, correctly in my view, the right to shelter the appellants seek to enforce in terms of section 85 of the Constitution is not one in terms of our Declaration of Rights.

I am aware, that, in terms of section 326 of the Constitution, customary international law is also part of the law of Zimbabwe unless it is inconsistent with the Constitution or an Act of Parliament.

Further, in terms of section 327 of the Constitution, an international treaty which has been concluded by the President has binding effect if approved by Parliament and domesticated.

Whilst international conventions may recognize the right to shelter or housing, such right is not, in terms of our Constitution, a fundamental right capable of being enforced in terms of section 85 of the Constitution of Zimbabwe in favour of adult persons.

It is the Constitution, the supreme law of this country itself, which has deliberately left out the right to shelter from the list of fundamental rights delineated under Chapter 4 of the Constitution.

Everything considered, therefore, the appellants have not shown that the right to shelter is a fundamental right in terms of our law and that it can be enforced pursuant to the provisions of section 85 of the Constitution in favour of adult persons.

The right to shelter is a fundamental right that is accorded to children only, together with their rights to education, health care, and nutrition (section 81).

Indeed, this was the finding of the Supreme Court in a matter involving the same parties in Zimbabwe Homeless People's Federation & Ors v The Minister of Local Government and National Housing & Three Ors SC94-20.

In the present matter, it is not the right to shelter for their children that is in issue.

Rather, the issue is whether the right to shelter, under section 28 of the Constitution, is a fundamental right and therefore justiciable in respect of persons who are not children.

The conclusion by the court a quo, that the right to shelter is not a fundamental right was therefore correct.

WHETHER THE APPELLANTS COULD APPROACH THE COURT IN TERMS OF SECTION 85

Section 85 of the Constitution is very clear as to the nature of the rights and freedoms that can be enforced pursuant to its provisions. It provides:

“85 ENFORCEMENT OF FUNDAMENTAL RIGHTS AND FREEDOMS

(1) Any of the following persons, namely –
(a)–(e)…,. (not relevant)
is entitled to approach a court, alleging that a fundamental right or freedom enshrined in this Chapter has been, is being, or is likely to be infringed, and the court may grant appropriate relief, including a declaration of rights and an award of compensation.”…,.

The section states, in no uncertain terms, that, an application in terms of that section must allege that a fundamental right or freedom enshrined in that Chapter has been, is being, or is likely to be infringed.

The corollary to this is that other rights that are not fundamental rights or freedoms can be enforced through other provisions of other laws, but not in terms of section 85 of the Constitution.

Indeed, the Constitutional Court of Zimbabwe has stressed this position in a number of decisions. For example, in M & Anor v Minister of Justice Legal & Parliamentary Affairs N.O. & Others 2016 (2) ZLR 45, 55 G-H (CC) the Constitutional Court stated:

“Section 85(1) of the Constitution is the cornerstone of the procedural and substantive remedies for effective judicial protection of fundamental rights and freedoms and the enforcement of the constitutional obligation imposed on the State and every institution and agency of government at every level to protect the fundamental rights in the event of proven infringement….,.

The fundamental principle is that every fundamental human right or freedom enshrined in Chapter 4 is entitled to a full measure of effective protection under the Constitutional obligation imposed on the State…,.”

Further, in Prosecutor General of Zimbabwe v Telecel Zimbabwe (Pvt) Ltd CC10-15, the court also remarked at p10 of the judgment:

“What is clearly evident from this provision is that the relief sought and to be granted by the court in terms of this section must relate to fundamental rights and freedoms enshrined in the relevant Chapter, and nothing else….,.”

Despite attempts by the appellants counsel, both a quo and in this court, to urge this Court to accept that the application before the court a quo was not made in terms of section 85(1) of the Constitution, the papers on record reveal clearly, that, in fact, the appellants approached the court a quo in terms of that section.

For example, in its founding affidavit, in paragraph 4, the first appellant, as first applicant stated:

“The first applicant thus has a public interest in housing and asserting the right to housing. It is this same reason, which is the basis of this application by which this application is brought in terms of section 85(1)(d)…,. It seeks, in this case, to assert the existence of the right to housing for its members thereof.”

The second appellant (Tawonga Saving Scheme), as second applicant, in paragraph 13 of its founding affidavit, also stated:

“We thus bring this application, on behalf of our members in terms of section 85(1)(e) of the Constitution of Zimbabwe.”

Likewise, the third appellant (Ngwaru Masanza), as third applicant, also stated in paragraph 52 of his founding affidavit:

“As a resident of Haydon Farm and a victim of the respondents unlawful actions, I bring this action in my own right to protect my interest as defined in section 85(1)(a) of the Constitution of Zimbabwe.”

There thus can be no doubt that the appellants approached the court a quo in terms of section 85(1) of the Constitution. They were alleging a violation of their right to shelter, which is not a fundamental right.

In the circumstances, the finding by the court a quo, that section 85(1) of the Constitution was not available to them was correct.

SC81-21 : FRANK HUMBE vs DESMOND MUCHINA and SPARKLES SERVICES (PVT) LTD and GODFREY MUNYAMANA and SHERIFF OF ZIMBABWE and FADZAYI MUNYAMANA
Ruled By: BHUNU JA, MATHONSI JA and KUDYA AJA

It is not the number of times that a litigant approaches the court seeking recourse which determines a matter in the litigant's favour - but the existence of a sustainable cause of action.

Appealed
HH287-20 : PENELOPE STONE and RICHARD BEATTIE t/a THE STONE/BEATTIE STUDIO vs CENTRAL AFRICAN BUILDING SOCIETY and RESERVE BANK OF ZIMBABWE and MINISTER OF FINANCE & ECONOMIC DEVELOPMENT
Ruled By: ZHOU J

This is an application for an Order that:

1. The first Respondent pays a sum of US$142,000 together with interest thereon at the rate of 5% per annum from 28 November 2016 to the date of payment within seven days from the date of this order.

2. In the alternative, the Applicants ask that the first and second Respondents be ordered to pay the said sum of money jointly and severally the one paying the other to be absolved.

3. The further alternative relief is for the Exchange Control Directive No. RT120/2018 to be declared a nullity, or, in the further alternative, that section 44B(3) and (4) of the Reserve Bank of Zimbabwe Act [Chapter 22:15] be declared unconstitutional.

4. Costs of suit are, in the main, sought against the first Respondent, and, in the alternative, against all the Respondents jointly and severally the one paying the others to be absolved.

The application is opposed by all the respondents.

The factual background to this matter is as follows:

The applicants are partners in a firm of architects trading under the name The Stone/Beattie Studio. The partnership has a savings account, number 1005428905, with the first respondent, which was opened in 2011. This account was opened after the introduction of the multi-currency system which became operational in February 2009.

The account was a United States Dollar account.

On 4 May 2016, the Governor of the second respondent issued a press statement under the title: “Measures to deal with cash shortages whilst simultaneously stabilising and stimulating the economy.”

In that statement, the Governor of the second respondent acknowledged the prevailing shortage of cash, the factors contributing to such shortage, and the impact that these factors had had on the economy, among other issues. He announced some monetary policy measures instituted to address the challenges which he highlighted as afflicting the multi-currency system.

In paragraph 13 of the written statement, the Governor announced that the Reserve Bank had established a USD200 million foreign exchange and export incentive facility which was supported by the African Export-Import Bank (Afreximbank) to provide cushion on the high demand for foreign exchange and to provide an incentive facility of 5% on all foreign exchange receipts, including tobacco and gold sale proceeds.

He proclaimed that in order to guard against possible abuse of the facility through capital flight, the facility was to be granted to qualifying foreign exchange earners in bond coins and notes which would continue to operate alongside the currencies within the multi-currency system and at a par with the United States Dollar.

The statement also promised the introduction of the Zimbabwe Bond Notes of denominations of $2, $5, $10…, to facilitate portability given the magnitude of the USD200 million backed facility. The facility would, further, be used to discount trade-related paper in order to provide liquidity for business trading operations.

The BOND currency was made part of the family of currencies in the multi currency basket.

In the same statement, the Governor announced that the process to configure the RTGS system into the multicurrency was already underway.

It did come - in that on 31 October 2016, the Presidential Powers (Temporary Measures) Regulations, 2016 which were contained in Statutory Instrument 133 of 2016, SI133 of 2016, were enacted in terms of section 2 of the Presidential Powers (Temporary Measures) Act [Chapter 10:20].

As at the end of October 2016, the applicants account number, 1005428905, had a credit balance of US$142,000.

In response to the enactment of the Presidential Powers (Temporary Measures) Regulations 2016, S.I.133 of 2016, referred to above, the applicants wrote a letter, dated 28 November 2016, to the first respondent. The material portions of the letter are as follows:

“RE: The STONE/BEATTIE STUDIO Savings Account No. 1005428905

The attached printed statement of the above account, dated today's date, records that CABS is the custodian of US$142,000 (one hundred and forty two thousand United States Dollars) deposited and held on behalf of The Stone/Beattie Studio.

You are advised there will be no further deposits into or withdrawals from this account after today's date until written instruction is given to you by the partners, named below, being the authorized signatories, or their successors.

Yours faithfully
P.D. STONE/R.H.S. BEATTIE”

The letter is signed by the two applicants.

A statement showing a credit balance which was attached to the letter is part of the documents attached to the founding affidavit.

The applicants have also adduced proof of delivery of that letter.

On 4 October 2018, the second respondent issued the Exchange Control Directive RTl20/2018 which separated what was therein referred to as the RTGS Foreign Currency Account from a Nostro Foreign Currency Account based on the source of funds.

The effect of this was to categorise the applicants account as an RTGS Foreign Currency Account.

Money from the applicants account could only be paid in the Bond note (and bond coin) - but not in the United States dollar which was the currency in which it is denominated.

By letter dated 17 October 2018, written on their behalf by their legal practitioners, to the first respondent, the applicants asked to withdraw the sum of US$142,000 from their account, or, alternatively, to have it transferred into a Nostro Foreign Currency Account.

The concept of the Nostro Foreign Currency Account came into existence following the second respondent's Monetary Policy Statement of 1 October 2018.

According to the applicants, their letter of demand was written after they were advised by the first respondent that they could only be paid their money in the Bond note currency.

The Applicants case

The applicants case is that they are entitled to payment of the sum of US$142,000 on the basis of the banker/customer relationship that exists between them and the first respondent.

In the alternative, should this court find that the first respondent is excused from paying the money in the currency of the United States in which it was reflected in their account by reason of the Exchange Directive No. RT l20/2018, issued by the second respondent, that, that Directive be found to be unconstitutional for being unlawful and grossly irrational and ultra vires the provisions of the enabling Act.

In the further alternative, the applicants contend that section 44B(3) and (4) of the Reserve Bank Act contravene the provisions of section 71 and section 56 of the Constitution of Zimbabwe, Amendment (No.20) Act 2013 which, respectively, protect property rights and equality before the law and the right to equal protection and benefit of the law.

The First Respondent's case

The first respondent contends that the applicants cause is founded upon a falsehood in that they allege that they instructed the first respondent to preserve their balance in the currency of the United States, yet the letter relied upon does not state so.

A second argument raised in limine in the opposing affidavit, but does not appear to have been pursued in argument, is that the application was not one for an order ad pecuniam solvendam but for a declaratur, and, further, that the requirements for declaratory relief were not met....,.

There are other matters which were raised which can be easily disposed of as they do not quite affect the substance of the dispute between the parties.

The debate on whether or not the applicants letter instructed the first respondent to preserve the applicants account is not material.

The letter is very clear that the applicants did not intend any other money to be deposited into or withdrawn from that account without their written authority.

No amounts were deposited into or withdrawn from the account after that letter.

Determination of the obligations of the first respondent, in respect of that account, do not depend on whether the account was ring-fenced or not, but on the relationship of the parties.

The precise import of the applicants letter, of 28 November 2016, is a question of interpretation of that letter. No incorrect factual statement arising out of its interpretation by the applicants, who allege that their intention was to have their account preserved, has been established to justify the allegation that there is a false statement in the affidavit.

The submission that the application is for declaratory relief arises from the heading of the application which refers to it as one for an order ad pecuniam solvendam.

The first respondent may be excused for taking this point, because, clearly, the alternative relief sought, as set out in the draft order, is not just an order to pay a sum of money, but, in the alternative, includes a declaration that the Exchange Control Directive and the cited provisions of the Reserve Bank Act are unconstitutional.

However, nothing turns on this point as clearly the question as to whether the declarations sought are supportable is one that pertains to the merits of the application.

In relation to the banker-customer relationship of the first respondent and the applicant, there is no declaratory relief being sought. Only consequential relief is being sought based on the alleged facts of the matter.

View Appeal
SC15-21 : CENTRAL AFRICAN BUILDING SOCIETY vs PENELOPE STONE and RICHARD BEATTIE and RESERVE BANK OF ZIMBABWE and MINISTER OF FINANCE AND ECONOMIC DEVELOPMENT
Ruled By: GWAUNZA DCJ, MAKONI JA and KUDYA AJA

This is a composite judgment in respect of three appeals which were heard at the same time.

The appeals are against the whole judgment of the High Court handed down on 14 May 2020. They all rely on essentially the same grounds of appeal. The three appellants were the respondents in the court a quo but filed separate appeals under SC183/20, SC187/20, and SC203/20.

In this judgment, the appellants will be referred to as Central African Building Society (CABS), the Reserve Bank of Zimbabwe (RBZ), and the Minister of Finance and Economic Development (Minister of Finance).

Penelope Douglas Stone, and Richard Harold Stuart Beattie, who were the applicants in the court a quo, will be referred to as the respondents.

BACKGROUND FACTS

CABS is a bank registered in terms of the laws of Zimbabwe. The respondents are partners in a firm of architects trading under the name of The Stone/Beattie Studio. They have had a savings account with CABS for a number of years, being account number 1005428905. As at the end of October 2016, the respondents account had a credit balance of US$142,000.

On 4 May 2016, the Governor of the Reserve Bank issued a statement entitled "Measures to deal with cash shortages whilst simultaneously stabilising and stimulating the economy."

Through the statement, the Governor proclaimed the introduction of bond notes and coins which would operate alongside the family of currencies in the multi-currency basket and would be at par with the United States Dollar.

He also announced that the process to configure the RTGS system into the multi currency basket was underway.

On 31 October 2016, SI133 of 2016 was enacted in terms of section 2 of the Presidential Powers (Temporary Measures) Act (Chapter 10:20).

Pursuant to such enactment, on 28 November 2016, the respondents, by way of correspondence, instructed CABS to freeze their account. This was in a bid to preserve their bank balance in the United States Dollar currency.

Two years later, on 4 October 2018, the Reserve Bank issued the Exchange Control Directive No. RT120/2018 (“the 2018 Directive”) whose effect was to separate RTGS Foreign Currency Accounts from Nostro Foreign Currency Accounts based on the source of the relevant funds.

As a result of this directive, the respondents account with CABS was categorised as an RTGS Foreign Currency Account payable in bond notes and not USD currency.

On 17 October 2018, the respondents wrote a letter to CABS advising that they wished to withdraw the entire amount held in their account in US dollars, or, alternatively, that the same amount be transferred into a Nostro FCA account 'as provided for by the Central Bank in its Monetary Policy Statement of 1 October 2018.'

In response, CABS advised the respondents that it could only pay the balance due to them in bond notes in terms of the Reserve Bank's 2018 Directive.

Disgruntled at this response, the respondents filed an application before the High Court entitled AD PECUNIAM SOLVENDAM, seeking an order in the following terms:

"IT IS ORDERED THAT:

1. The first respondent (CABS herein) must, within seven (7) days from the date of this order, pay to the first and second respondents (sic) the sum of US$142,000 (One Hundred and Forty-Two Thousand United States Dollars) cash as United States dollars, together with United States dollar interest on the aforesaid amount at the rate of 5 percent per annum with effect from the 28 November 2016 to the date of payment.

2. The first respondent must pay costs of suit.

ALTERNATIVELY

3. The second and third respondents (Reserve Bank of Zimbabwe and Minister of Finance herein) jointly and severally each paying the other and the other to be absolved must pay the sum of US$142,000 (One Hundred and Forty-Two Thousand United States dollars) cash to the applicants.

4. It is declared, that, exchange control directive No. R120/2018, dated 1 October 2018, is a nullity and is hereby set aside.

5. It is declared, that, section 44B(3) and (4) of the Reserve Bank Act [Chapter 22.15] are unconstitutional.

6. The respondents, jointly and severally, each (sic) paying the other to be absolved must pay (sic) the cost of suit."

The respondents, in relation to their main relief, relied on the principle ad pecuniam solvendam, and stated, in their founding affidavit, that, their claim against CABS was simply a demand for the return of their deposit in the sum of USD142,000 plus interest.

The respondents submitted, further, that, the alternative relief, as set out in their draft order, was being sought in terms of section 85(1)(a) of the Constitution 2013.

PROCEEDINGS IN THE COURT A QUO

The respondents submitted, that, the relationship between them and CABS was sui generis and that CABS was obliged to pay back the money in the currency in which it was deposited.

In their view, the bond note and the USD 1:1 parity was a legal fiction.

They further contended, that, CABS could not hide behind the 2018 Directive as the instrument was unreasonable and ultra vires the provisions of the enabling Act.

However, the respondents neither identified nor elaborated on the exact provisions of the Act that they referred to.

The respondents further argued, that, section 44B(3) and (4) of the Reserve Bank of Zimbabwe Act [Chapter 22:15] were unconstitutional in that they constituted an unlawful appropriation of value and property contrary to the provisions of section 71 of the Constitution 2013.

Secondly, they argued, that, the same provisions violated their right to equal protection of the law as defined in section 56 of the Constitution 2013, in that they are grossly irrational and unreasonable.

On the other hand, CABS submitted, that, it did not refuse to pay the amounts standing to the respondents credit. Rather, it was not for them to insist that such payment be tendered in a specific currency.

It further argued, that, the respondents had not proffered evidence to show that they had deposited hard currency into their account nor that offshore payments had been deposited therein.

It further submitted, that, it had an obligation to comply with the terms and conditions of its registration which include compliance with the law and other directives given by the Reserve Bank of Zimbabwe (RBZ). In that regard, CABS pointed out that such regulating directives or laws were extant as they had not been declared unlawful.

Concerning the alternative relief sought by the respondents, the Reserve Bank of Zimbabwe (RBZ) submitted that such relief was incompetent given that its Governor had acted lawfully in issuing the directive in question.

With regard to the constitutionality of the operative legal framework in casu, the Reserve Bank of Zimbabwe (RBZ), like CABS, argued that the 2018 Directive was valid and demanded full compliance thereof unless and until it was declared invalid. Further, that any act done in accordance with a valid piece of legislation was also valid.

The Minister of Finance objected to having been cited in the proceedings, arguing that he had no interest in the dispute since the respondents claim, being one for an order ad pecuniam solvendam against CABS, was premised on a contract between them.

However, the court ruled, that, given the special relationship between the Reserve Bank of Zimbabwe (RBZ) and the Ministry of Finance, the Minister had a legal interest in the proceedings and was properly cited.

FINDINGS OF THE COURT A QUO

The court a quo found, that, the relationship between CABS and the respondents was contractual and that the former accordingly had an obligation to repay the equivalent sum of money and not the exact notes deposited into the bank.

It further found, that, the respondents account balance, being denominated in United States dollars and not any other currency, CABS should not seek to unilaterally change the value of its indebtedness.

The court, however, noted that CABS was correct in its submission that it could not defy the directive of the Reserve Bank of Zimbabwe (RBZ), an entity established in terms of section 317 of the Constitution 2013.

In issuing the impugned directive, the court observed that the Reserve Bank of Zimbabwe (RBZ) was exercising its powers as conferred by the Constitution and the Reserve Bank of Zimbabwe Act [Chapter 22:15].

It accordingly held, that, as long as the Exchange Control Directive No. RT120/18 had not been set aside, CABS could not comply with the respondents demand without incurring the penalties and consequences threatened by the enabling body.

In that regard, the court a quo held that it could not order such payment in the face of an extant directive of the Reserve Bank of Zimbabwe (RBZ).

The court thus effectively dismissed the respondents main claim.

Having made these findings, the court then opined that there was need for an inquiry into the constitutionality of that directive and/or the section in terms of which it was issued.

It proceeded, mero motu, to make this enquiry based on considerations not presented or argued before it.

The court concluded that the retrospective application of the directive had the effect of arbitrarily converting the USD balance in the respondents account, into an RTGS bank balance.

It then expressed the view that the directive was 'an incursion of vested rights' and therefore 'unreasonable'.

The court further held, that, the 2018 Directive reflected insensitivity and unresponsiveness which offended against the values espoused in the Constitution.

Lastly, the court found that the directive was illegal, irrational, and unreasonable for offending against the rule of law and the constitutional values of good governance.

Accordingly, it pronounced that the Directive was unconstitutional.

Having made this pronouncement, the court determined that it was not necessary to consider the constitutionality of section 44B(3) and (4) of the Reserve Bank Act [Chapter 22:15].

It should be noted that this was part of the relief that the respondents sought as an alternative to its main claim.

The court accordingly declared the 2018 Directive to be invalid and set it aside.

Inexplicably, and unprompted, the court went on to grant the main relief sought by the respondents, and ordered CABS to pay them USD$142,000 in its denominating currency or transfer the funds into a Nostro Foreign Currency Account within 7 days of granting of the order.

Consequently, the court did not consider the rest of the relief sought by the respondents in the alternative, to the effect that the Reserve Bank of Zimbabwe (RBZ) and the Minister be ordered, in the place of CABS, to pay to the respondents the full amount that they had claimed from CABS.

THE GROUNDS OF APPEAL AND ISSUES FOR DETERMINATION

Aggrieved by the decision of the court a quo, the appellants noted the instant appeals to this Court. Although they together articulated a total of 15 grounds of appeal, in the court's view the grounds raise the following issues for determination:

(a) Having initially declined to grant the main relief sought, whether the court a quo erred in proceeding to grant the exact same relief:

(i) On a basis not argued by the respondents; and

(ii) Even though such relief had not been sought under the respondents alternative prayer.

(b) Whether the court a quo erred by setting aside the 2018 Exchange Control Directive when such relief had not been sought on a constitutional basis, and, in any case, contrary to the principle of subsidiarity? and

(c) Whether the court erred in ordering CABS to pay the respondents an amount in foreign currency contrary to the provisions of SI133 of 2019 and sections 20, 21, 22 and 23 of the Finance Act (No.2) of 2019?...,.

(a) Having declined the main relief sought, whether the court a quo erred in proceeding to grant the exact same relief even though it had not been sought under the alternative relief, and on a basis not argued before it?

The appellants submit that the court a quo granted an order which was not sought by the respondents, given that the latter had sought, in the main, an order that CABS pays them the sum of USD$142,000 within seven days of the order being granted. However, in the event that the CABS was found to have acted lawfully, in not acceding to their request for payment of this amount, the alternative relief sought by the respondents was:

(i) That the Reserve Bank of Zimbabwe (RBZ) and the Minister be ordered to pay the amount in question to the respondents;

(ii) That the Exchange Control Directive No. R120/2018 be declared a nullity;

(iii) That section 44B(3) and (4) of the Reserve Bank of Zimbabwe Act [Chapter 22:15] be declared unconstitutional.

The appellants further contended, that, the court a quo created an additional basis for the main relief sought by the respondents, in respect of the constitutional validity or otherwise of the 2018 Directive, and proceeded to grant the same relief even though it did not form part of the alternative relief that they sought.

That being the case, the appellants charge that the court went on a frolic of its own by crafting a case for the respondents and proceeding to determine a matter not before it.

Counsel for CABS further submitted, that, CABS and the respondents enjoyed a banker/customer relationship which was then interfered with by the Reserve Bank of Zimbabwe (RBZ) through the issuance of the 2018 Directive.

The implication of this interference, he further argued, was that the principal relief, which was based on the banker/customer relationship, could not be granted.

The court a quo, having made a finding to that effect, counsel for CABS contention was that the matter should have ended there in so far as the main, and only, relief against CABS was concerned.

The court finds merit in the appellants contentions.

In their heads of argument, the respondents do not dispute that the court a quo granted an order that was not sought by them as an alternative to the main relief.

Indeed, the cause of action, in relation to the principal relief sought by the respondents, was anchored on a perceived breach of the banker-customer relationship between them and CABS. Hence the claim ad pecuniam solvendam against that Bank.

The court a quo indicated that CABS was correct in its submission that it could not defy the 2018 Directive of the Reserve Bank in circumstances where the Directive had not been set aside. It was on this basis that the court, in its judgment, stated as follows:

“This Court accepts, that, as long as the exchange control directive has not been set aside, the first respondent could not comply with the applicant's demand without incurring the penalties and other consequences threatened by the second respondent. On this basis, the court cannot order the first respondent to make payment in the face of the exchange control directive which is to the contrary…,.”

The finding that the court a quo could not order the first respondent to make the payment in question, was, in this Court's view, not only correct, but also dispositive of the main claim of the respondents.

This is because it was effectively a dismissal of that claim - the only one seeking any relief against CABS.

As is evident from the evidence before the court, the appellants did not advance or argue any other basis for this relief.

The court, after reaching that decision, could and should only have adverted to the alternative relief sought by the respondents against the Reserve Bank of Zimbabwe (RBZ) and the Minister.

This it effectively did not do.

As already noted, the respondents made it clear, in their founding affidavit, that, the alternative claim requiring the Reserve Bank of Zimbabwe (RBZ) and the Minister to pay the amount in question, was to be granted only in the event that the court was not persuaded to grant the main relief against CABS.

Thus, by completely disregarding that part of the of respondents alternative claim, whatever its merits or demerits, given that no clear cause of action in this respect was articulated, the court a quo clearly misdirected itself.

A court is duty bound to consider and determine every issue that is placed before it unless such issue has otherwise been resolved....,.

To the extent that a case stands or falls on its founding papers, the respondents lamentably failed to meet the test of soundly articulating their case in their founding affidavit. Some material averments were not fully canvassed or motivated.

View Appeal
HMA28-20 : TRIANGLE LIMITED and HIPPO VALLEY ESTATES vs ZIMBABWE REVENUE AUTHORITY and OTHERS
Ruled By: ZISENGWE J

The parties in this application are embroiled in a bitter dispute over the implications of their failure to specifically include Value Added Tax (abbreviated herein as “VAT”) matters in agreements for the milling of sugarcane.

The applicants are both companies duly incorporated in terms of the laws of Zimbabwe whose names over the years have become synonymous with sugar and sugar cane production in Zimbabwe. They grow, source, and mill sugar-cane and market its products. They carry on this agro-based business in and around the Lowveld towns of Triangle and Chiredzi.

The first respondent is the Zimbabwe Revenue Authority (ZIMRA): a statutory body whose chief mandate is to assess, collect, and enforce the payment of all revenues on behalf of the State. It is established in terms of the Revenue Authority Act [Chapter 23:11].

Save for the 10th (Farai Dumo Augustine Musikavanhu) and 11th (Roy Bhila), the rest of the respondents are organisations representing the interests of sugarcane farmers in the Lowveld (Zimbabwe Sugar Cane Development Association, Zimbabwe Cane Farmers Association, Mkwasine Sugar Cane Farmers Trust, Commercial Sugar Cane Farmers Association of Zimbabwe, Hippo Valley Productive Farmers Association, Zimbabwe Sugar Cane Development Association Royal Trust, Chipiwa Mpapa Mill Group and Chiredzi Productive Cane Growers Association).

The 10th (Farai Dumo Augustine Musikavanhu) and 11th (Roy Bhila) respondents are individual sugar cane farmers.

They were probably singled out on account of the positions they hold as Members of Parliament for the Chiredzi South and Chiredzi North constituencies respectively over and above their roles as sugar-cane farmers. They also occupy and serve in specialised Parliamentary capacities.

BACKGROUND

Solely for purposes of convenience and brevity, the second to eleventh respondents (Zimbabwe Sugar Cane Development Association, Zimbabwe Cane Farmers Association, Mkwasine Sugarcane Farmers Trust, Commercial Sugarcane Farmers Association of Zimbabwe, Hippo Valley Productive Farmers Association, Zimbabwe Sugarcane Development Association Royal Trust, Chipiwa Mpapa Mill Group, Chiredzi Productive Cane Growers Association, Farai Dumo Augustine Musikavanhu and Roy Bhila) will be referred to simply as “the farmers” and the first respondent as “ZIMRA”.

It is common cause, that, pursuant to the terms of either of two types of written agreements between them, the farmers supply the sugar cane that they produce to the applicants. These contracts are generally referred to by the parties as the “Cane Milling Agreement” and the “Cane Purchase Agreement.”

Under the former, the basic idea (as is implicit in the name) is that the applicants merely provide a milling service to the farmers. In addition, the applicants also proceed to market, on behalf of the farmers, the sugar and molasses thereby produced as well as other by-products, and, thereafter, remit to the farmers the proceeds thereof after deducting the expenses associated with the milling of the sugarcane and marketing of the sugar and the other by-products.

It is further common cause, that, under the cane milling arrangement, there is an existing agreement that the charge for the milling is calculated according to a pre-determined ratio referred to as the “Division of Proceeds” (DoP) ratio. This ratio currently stands at 23 percent of the proceeds which the applicants retain in the wake of the marketing of the products of the milling process. The farmer gets the remainder.

The Cane Purchase Agreement operates differently.

According to the parties, this agreement involves a direct and complete sale of the sugar cane by the farmers to the applicants with risk and benefits passing to the latter upon the delivery of the cane.

During oral submissions in court, counsel for the applicants referred to a rather convoluted method by which the purchase price of the cane is computed under this arrangement; suffice it to say that there is no convergence as among the parties as to whether the supplies of cane that gave rise to the current dispute constitute a Cane Milling Agreement or a Cane Purchase Agreement.

Be that as it may, it is common cause, that, in a decision (which has since been appealed against to the Fiscal Appeals Court), the first respondent determined that the set-up which currently obtains, chiefly characterised by the distribution of proceeds arrangement, constitutes one which attracts value added tax (VAT).

Therein lies the genesis of the dispute.

This is because the simple question to be answered is whether the 23 percent retained by the applicants, post the milling and marketing, incorporates value added tax (VAT) (as contended by the farmers) or it does not (as maintained by the applicants).

It is further common cause that the Zimbabwe Revenue Authority (ZIMRA), having made the decision that the aforementioned arrangement was one that attracts value added tax (VAT) in terms of the law, and that the applicants were therefore legally obligated to have, all along, charged and collected from the consumers (i.e. the farmers) and remitted the amounts so collected to it, directed that the said amounts be paid to it.

In compliance with that decision, the applicants aver, that, they have since calculated the outstanding amounts in this regard and remitted the same to the first respondent.

Through the current application, the applicants seek;

(i) A declaratory order to the effect that they are legally entitled to recover from the farmers the value added tax (VAT) which they have since paid to the first respondent; and

(ii) Secondly, that they are legally entitled to continue charging and collecting value added tax (VAT) from the farmers over and above the 23 percent milling charge.

The applicants also take exception to the fact that the first respondent (through some of its officials) took it upon itself to render certain advice to the farmers which advice they contend amounts to an unwarranted interference in matters that are purely contractual.

Part of that advice related to the first respondent's interpretation of the tax implications of the failure to include value added tax (VAT) matters in the cane supply agreements.

The terms of the declaratur sought by the applicants are captured in the draft order annexed to the application which reads:

“Wherefore, after reading papers filed of record and hearing counsel, IT IS ORDERED THAT:

1. The application succeeds with costs.

2. It be and is hereby declared that -

(a) The conduct by the first respondent to give advice to the applicants and the second to eleventh respondents on what are purely contractual matters is ultra vires its functions and responsibilities as an administrative authority and therefore unlawful.

(b) To the extent that they are liable to pay VAT for milling costs, the applicants are entitled to charge, levy, and collect such VAT in accordance with the VAT Act on and in addition to the value for the milling charge.

3. The first respondent be and is hereby ordered and directed to refrain from gratuitously interfering in pricing and contractual issues between the applicants and the second to eleventh respondents.

4. The respondents shall, jointly and severally, the one paying the others to be absolved, pay the applicants costs of suit on an attorney–client scale.”

The applicants raised a number of arguments in support of their contention that they should be permitted to recover that which they have since paid to the Zimbabwe Revenue Authority (ZIMRA) in the wake of the latter's aforementioned determination.

The main thrust of their argument, as I see it, however, is that the very fact that the Act makes it clear that the burden to pay the tax in question rests on the consumers, who in this case are the farmers, yet it was them (applicants) who were compelled to pay it, necessarily implies that they can recover the same from the farmers.

Reliance was placed, inter alia, on the elucidation by GOWORA JA, of the tripartite relationship in the value added tax (VAT) equation. This was in the case of ZIMRA v Packers International (Private) Limited SC28-16 where the following exposition was made:

“The system of collection of VAT, as embodied in the VAT Act, involves the imposition of tax at each step along the chain of manufacture of goods or the provision of services subject to VAT;”

And further that:

“…, tax under the VAT Act consists of monies that have been taxed on goods and services paid by consumers for onward transmission to the Commissioner. All that is required of an operator is to calculate the amount so paid, submit a return, and make payment.”

Flowing from this basic premise, according to the applicants, are two applicable precepts that emanate therefrom, namely, unjust enrichment and equity.

The latter, though not specifically pleaded in their papers, was nevertheless amply canvassed during the oral submissions in court.

Regarding unjust enrichment, it was averred, that, should the court not find in the applicants favour, an injustice will ensue in that the respondents will have been unjustly enriched at their expense.

For the requirements and application of the principle of unjust enrichment, the following cases were cited as authority; Industrial Equity v Walker 1996 (1) ZLR 269 (H); Chioza A.M. v Siziba S.W. SC04-15; and Trojan Nickel Mine Ltd v Reserve Bank of Zimbabwe HH169-13.

It was contended, that, the facts of this case point to the fact that all the pre-requisites for a finding for the applicant on the basis of unjust enrichment have been met.

The nub of the equity argument is that justice and fairness simply demand that the applicants be allowed to recoup from the farmers that which they paid to the Zimbabwe Revenue Authority (ZIMRA) in compliance with the latter's determination.

It is clear that this is merely an extension or adjunct of the unjust enrichment contention.

The applicants further referred to various sections of the Act which, in their view, fortify their position. Reliance was placed in this regard to section 9(2) which provides as follows:

“The value placed on any supply of goods or services shall, save as is otherwise provided in this section, be the value of the consideration for such supply, as determined in accordance with subsection 3, less so much of such value as represents tax: Provided that -

(a)…,.;

(b) Where the portion of the value of the said consideration which represents tax is not accounted for separately by the registered operator, the said portion shall be deemed to be an amount equal to the tax fraction of that consideration.”

Similarly, reliance was placed on section 9(5) of the Act which provides:

“Where goods or services are deemed to be supplied by a registered operator in terms of subsection (2) or (8) of section 7, the supply shall be deemed to be made for a consideration in money equal to the lesser of -

(a) The cost to the registered operator of the acquisition, manufacture, assembly, construction, or production of goods or services, including -

(i) Any tax charged in respect of the supply to the registered operator of such goods or services or of any components, materials, or services utilised by him in such manufacture, assembly, construction or production;

(ii) Where such goods or any right referred to in subsection (2) of section seven, when held by the registered operator, constituted trading stock as defined in section 2 of the Taxes Act, any further costs, including tax incurred by him in respect of such goods or right;

(iii) Any costs, including tax, incurred by the registered operator in respect of the transportation or delivery of such goods or the provision of such services in connection with the transfer of such goods or the provision of such services as contemplated in subsection (8) of section seven; and

(iv) Where such goods or services were acquired under a supply in respect of which the consideration in money was in terms of subsection (4) of this section deemed to be the open market value of the supply or would in terms of that provision have been deemed to be the open market value of the supply were it not for the fact that the recipient would have been entitled under subsection (3) of section fifteen to make a deduction of the full amount of tax in respect of that supply, such open market value to the extent that it exceeds the consideration in money for that supply: or

(b) The open market value of such supply.”

THE POSITION OF THE RESPONDENTS

The third (Zimbabwe Cane Farmers Association) and fourth (Mkwasine Sugar Cane Farmers Trust) respondents did not ultimately participate in the proceedings on account of the fact that the former did not file any opposing papers and the latter filed its heads of argument outside the prescribed time and was therefore barred.

In a similar vein, there was no appearance by or on behalf of the sixth (Hippo Valley Productive Farmers Association), ninth (Chiredzi Productive Cane Growers Association) and eleventh (Roy Bhila) respondents on the day of the hearing.

Effectively, therefore, only the positions of the first (Zimbabwe Revenue Authority), second (Zimbabwe Sugar Cane Development Association), fifth (Commercial Sugar Cane Farmers Association of Zimbabwe), seventh (Zimbabwe Sugar Cane Development Association Royal Trust), eighth (Chipiwa Mpapa Mill Group), and tenth (Farai Dumo Augustine Musikavanhu) respondents were before the court.

ZIMBABWE REVENUE AUTHORITY's POSITION (ZIMRA)

Regarding the implications of the failure by the applicants and the farmers to specifically incorporate value added tax (VAT) matters in their Division of Proceeds (DoP) arrangements, ZIMRA articulated two distinct positions, namely;

(i) That which relates to past supplies of cane; and

(ii) That which attends to present and future supplies of cane.

In respect of past supplies of sugarcane, the Zimbabwe Revenue Authority (ZIMRA) averred that a proper construction of section 69 of the Value Added Tax Act shows, that, in the absence of the express mention of value added tax (VAT) component in any price for goods or services, then the price will be deemed to contain the said tax.

As far as the alleged impropriety of the advice it rendered to the farmers, it contended that whatever advice it gave to the farmers was not only within its legal powers to give but also that it did so at the behest of the applicants.

It further averred, that, it has a duty to provide education to taxpayers not only to impart knowledge of the same but also to inculcate and engender a spirit of compliance.

First (ZIMRA) respondent's position on VAT implications for present and future supplies of cane

In its papers opposing this application, the Zimbabwe Revenue Authority (ZIMRA) does not commit itself on what the tax implications in respect of present and future supplies are. It opted, instead, to confine itself to the question of past supplies.

However, it soon became apparent that its position is that the applicants are not only at liberty to charge, levy, and collect from the farmers the said tax, but that they are in fact obligated to do so.

It suffices, however, to note that this does not address the issue of whether this will be over and above the 23 percent being charged for the milling of the cane.

THE FARMERS POSITION

As earlier stated, only the positions of the second (Zimbabwe Sugar Cane Development Association), fifth (Commercial Sugar Cane Farmers Association of Zimbabwe), seventh (Zimbabwe Sugar Cane Development Association Royal Trust), eighth (Chipiwa Mpapa Mill Group), and tenth (Farai Dumo Augustine Musikavanhu) respondents were effectively before court.

Save for a few instances of divergence (which will be highlighted below) the farmers were united not only in their resistance to the application but also on the grounds thereof.

The rallying point in their opposition to the quest by the applicants to recover the tax for past supplies was section 69 of the Value Added Tax Act. Their position essentially mirrors that of the Zimbabwe Revenue Authority (ZIMRA).

Over and above the import of section 69 of the Value Added Tax Act, however, a few additional arguments were presented to buttress their position and these are:

1. The very fact that the Zimbabwe Revenue Authority (ZIMRA) has determined that the 23 percent milling charge includes value added tax (VAT) as far as the second (Zimbabwe Sugar Cane Development Association), eighth (Chipiwa Mpapa Mill Group) and tenth (Farai Dumo Augustine Musikavanhu) respondents are concerned, is dispositive of the whole dispute.

They go as far as contending that the decision of ZIMRA is binding.

They further assert, that, in their view, the applicants have merely abdicated from their responsibility to remit the value added tax (VAT) so collected to ZIMRA and the consequences attendant thereto cannot be visited on them.

2. That the endeavour, on the part of the applicants, to recover the value added tax (VAT) they paid from them amounts to an attempt to vary the implied terms of their contract.

3. That, as far as the fifth (Commercial Sugar Cane Farmers Association of Zimbabwe) respondent is concerned, its cane supply arrangement with the applicants is governed by neither a cane milling agreement nor a cane purchase agreement, but, rather, by what it terms a “memorandum of understanding.” A copy of which was attached.

4. A further point raised by the fifth respondent (Commercial Sugar Cane Farmers Association of Zimbabwe) was that the very fact that invoices relating to disbursements of the individual farmer's share of proceeds is silent on the collection of value added tax (VAT) necessarily implies that VAT was included in the 23 percent milling charge.

During oral addresses in court, yet another argument was presented, namely, that, the Division of Proceeds (DoP) ratio was decided upon by the Minister responsible for the superintendence of the sugar sector, namely, the Minister of Industry and Commerce.

It was averred, in this regard, that, during the negotiations leading up to those figures (of 23 percent and 77 percent) it was in the contemplation of the parties that value added tax (VAT) was incorporated in the 23 percent milling charge.

In apparent departure from the positions held by the other respondents, the seventh respondent (Zimbabwe Sugar Cane Development Association Royal Trust) maintained that section 69 of the Value Added Tax Act applies to all supplies of cane; past, present, and future.

THE ISSUES

In my view, there are two broad issues up for determination in this dispute, and, from each, two sub-questions arise. The two broad questions are:

(1) Whether the 23 percent cane milling charge includes or excludes value added tax (VAT); and

(2) Whether there has been an unjustifiable interference by the first respondent the Zimbabwe Revenue Authority (ZIMRA) in purely contractual matters between the applicants and the farmers.

The sub-questions in respect of (1) above are:

(a) Whether or not the applicants are entitled to recover from the farmers value added tax (VAT) which they (i.e. applicants) paid to ZIMRA for past supplies; and

(b) Whether or not the applicants are entitled to charge, levy, and collect from the farmers value added tax (VAT) over and above the 23 percent milling charge.

The sub-questions from (2) above are:

(a) Whether the applicants have satisfied the requirements for the declaratur sought in paragraph 2(a) of the draft order; and

(b) Whether the applicants have satisfied the requirements for the interdict sought in paragraph 3 of the draft order....,.

The fifth (Commercial Sugar Cane Farmers Association of Zimbabwe) and seventh (Zimbabwe Sugar Cane Development Association Royal Trust) respondents implored the court to first make a determination of the species of the agreement between the farmers and the applicants before deciding on the tax implications thereof.

The eighth (Chipiwa Mpapa Mill Group) respondent further averred that its arrangement with the applicants was governed neither by the Cane Purchase Agreement nor the Cane Milling Agreement but rather by a special Memorandum of Understanding.

This entire argument leads nowhere.

It is not the name ascribed to the agreement but the terms (or absence thereof) as they relate to value added tax (VAT) and the legal consequences flowing therefrom.

A perusal of the agreements, by whatever name they were called, reveals that there was no express mention of value added tax (VAT).

In any event, it is instructive to note two important things;

(i) Firstly, this issue, not being the basis of these current proceedings, was not properly argued by the parties; reference to it was merely peripheral and incidental.

Appealed
SC87-21 : RIO ZIM (PVT) LIMITED vs TRUST BANK CORPORATION LIMITED (In Liquidation)
Ruled By: MAKARAU JA, HLATSHWAYO JA and UCHENA JA

On 19 September 2018, the High Court, sitting at Harare, dismissed with costs, on a legal practitioner and client scale, an application by the appellant for leave to sue the respondent, a banking corporation in liquidation.This is an appeal against that order.BackgroundThe dispute between the parties arises from a loan ...

Background

The dispute between the parties arises from a loan transaction. In 2011, the appellant borrowed the sum of US$3,875,000 from the respondent. By 2012, the loan had ballooned to US$5,789, 262 resulting in the parties concluding a written agreement to restructure the loan. Thereafter, the appellant made certain payments towards the restructured loan.

In March 2014, before it was placed in liquidation, the respondent issued summons against the appellant claiming the balance due under the loan. It obtained a default judgment in the sum of $1,824,505=05 together with interest thereon at the rate of 45 per cent per annum.

A few months later, in September 2014, it was placed in provisional liquidation.

Before the order winding up the respondent was made final, the appellant approached the court a quo seeking rescission of the default judgment.

It brought the application under Rule 449 of the High Court Rules 1971, alleging that the default judgment against it had been granted in error.

The application, which was prosecuted without the prior leave of the court, was granted in the absence of the respondent and its provisional liquidator.

In 2017, the defective order against the respondent was set aside at the instance of the liquidator.

An appeal to this Court against that decision, was, with the consent of both parties, dismissed with costs.

Still desirous of having the default judgment against it varied or corrected, the appellant filed an application for leave to sue the respondent in terms of section 213 of the Companies Act [Chapter 24:03].

Attached to the application for leave was the proposed application, again to be brought under Rule 449 of the High Court Rules, 1971.

In the proposed application, the appellant avers, that, the default judgment against it was granted in error as it did not take into account payments made subsequent to the granting of the order in the sum of US$1,381,166. The appellant further avers that the default judgment erroneously levies interest on the outstanding amount at the rate of 45 per cent per annum when there is no contractual basis for such a rate.

Giving nine reasons for doing so, the court a quo dismissed the application, as stated above, giving rise to this appeal.

The Appeal

Before this Court, the appellant raised four grounds of appeal as follows:

“1. The High Court grossly misdirected itself in determining the substantive merits of the intended application for rescission of judgment in terms of Rule 449 of the High Court Rules 1971 instead of considering whether, on a prima facie basis, the application was not frivolous or vexatious.

2. The High Court further erred in finding, that, the appellant's cause of action in the intended application was for the correction of the writ of execution when, in fact, its cause of action was for the correction of the judgment which was erroneously granted without having regard to amounts paid by the appellant subsequent to the issuance of summons but before judgment.

3. Further, the High Court grossly erred in finding, that, the appellant was not contesting the rate of 45 per cent per annum when that was one of the grounds upon which the intended application for rescission of judgement would be based.

4. Further, the High Court erred in finding, that, the Deposit Protection Corporation, which had filed an affidavit in opposition, was not a party before the High Court, and, therefore, ought to have been cited in both the appealed proceedings and intended proceedings for correction of judgment.”

From the above grounds, the appellant raises four potential arguments. These are that;

(i) The court a quo determined the proposed application instead of finding whether or not the application for leave to sue the respondent was prima facie not frivolous or vexatious;

(ii) That the court a quo misconstrued the cause of action in the proposed application;

(iii) That the court a quo erred in finding that the appellant was not contesting the interest rate levied in the default judgment; and

(iv) Finally, that the court a quo erred in finding that the liquidator of the respondent had not been cited in the proposed application.

The Issue

It appears to me, that, the appellant has indiscriminately attacked each and every finding of fact that the court a quo made.

This has tended to obfuscate the real issue that falls for determination in this appeal.

Accepting, as we must, that, leave to sue a company in liquidation is not a right enforceable upon demand but is an indulgence or latitude granted in the discretion of the court; then, the real issue that falls for determination in this appeal is: whether or not the court a quo properly exercised that discretion in denying the indulgence sought.

The rest of the arguments raised by the grounds of appeal are red herrings.

The Law

The application before the court a quo was one for leave to sue the respondent in terms of section 213 of the Companies Act [Chapter 24:03].

The Companies Act simply provides, that, the leave of the court is required before a company in liquidation can be sued. It does not lay out the test, or factors, that a court granting such leave must take into account, leaving the matter in the discretion of the court - which discretion the court must exercise judiciously.

The factors that a court may take into account in determining an application for leave to sue a company in liquidation are not exhaustive. The broad consideration remains the need for the court to protect the interests of all the creditors of the company under liquidation and to ensure the orderly administration of the process of liquidating such debts.

The bedrock of the law on the winding up of companies is that once concursus creditorum is established, the business of the company being wound up is thereafter carried on solely for the purpose of distributing its assets amongst its creditors and not for gain or for the benefit of the shareholders.

The oversight function of the court is similarly focused on ensuring that this ensues as expeditiously as is practicable.

Thus, by operation of law, all legal processes against the company in liquidation are stayed and can only proceed with the leave of the court.

It is the duty of the court to ensure not only the smooth and orderly administration of the assets of the company, but, more importantly, that, after winding up has commenced, no creditor obtains an advantage over other creditors as a result of any conduct on the part of the company or its debtors: see Meaker N.O. v Campbell's New Quarries (Pvt) Ltd 1973 (3) SA 157 (R); and Letsilele Stores (Pty) Ltd v Roets 1958 (2) SA 224 (T).

Analysis

In dismissing the application a quo, the court put out nine reasons.

A reading of the reasons indicates, that, the court formed the view, that, the intended application had no merit, was unnecessary, and amounted to an abuse of process which would prejudice the interests of the respondent.

Five out of the nine reasons have a bearing on the intended application and discuss, in detail, its alleged shortcomings. This may explain the argument by the appellant, in its first ground of appeal, that, the court a quo determined the intended application.

The court a quo appears to have been greatly influenced in its reasoning by the averment in the appellant's founding affidavit, that, it had made payments towards the reduction of the debt subsequent to the granting of the default judgment.

The court a quo therefore reasoned, and correctly so in my view, that, if this was indeed the case, then the default judgment was correct and what needs revision is the amount to be collected by way of writ as the outstanding judgment debt.

I pause momentarily to note, that, there is an obvious disconnect between the averments in the appellant's founding affidavit and the grounds of appeal regarding when the payments reducing the appellant's indebtedness to the respondents were made.

In the founding affidavit, as stated above, the appellant avers, that, the payments were made subsequent to the granting of the default judgment.

This explains the finding by the court a quo, that, the figure to be corrected is the amount of the judgment debt on the writ of execution rather than the amount in the order of court.

In the second ground of appeal reproduced above, the appellant argues, that, the payments were made subsequent to the issue of summons but before the judgment was granted.

Whatever the correct position may be, the appellant is bound by the averments made in the founding affidavit and not by what is alleged in the grounds of appeal.

The appellant cannot, therefore, escape the finding by the court a quo that the correctness of the amount awarded in the order of the court is not affected by any payment that the appellant may have made subsequently.

It is the one that alleged that all further payments were made subsequent to the judgment.

View Appeal
HH534-18 : RIOZIM (PVT) LTD vs TRUST BANK CORPORATION LTD (IN LIQUIDATION)
Ruled By: KWENDA J

This is application made in terms of section 213 of the Companies Act [Chapter 24:03] for leave to institute proceedings against the respondent, a company in liquidation.

Should leave be granted, the applicant intends to file an application in terms of Rule 449 of the High Court Rules 1971, for correction of a default judgment entered against it in favour of the respondent on 12 March 2014 (the respondent was placed under provisional liquidation on 8 October 2014).

A draft of the application to be filed once the anticipated leave be granted was submitted with the applicant's papers.

The application, should leave be granted, will be a second bite since an earlier attempt, in the year 2015, succeeded initially but collapsed on appeal in the Supreme Court on 26 January 2018.

At the hearing, I complained that the applicant's case was difficult to follow.

The founding affidavit is unnecessarily long and winding. It contains information largely irrelevant. The error necessitating the intervention of the court, in terms of Rule 449, is not clearly decipherable since it is not correctly articulated.

The impression created in the applicant's founding affidavit, as read with the prayer in the application to be filed, is that the judgment debt was overstated because the respondent applied an inflated rate of interest of 45 percent per annum as opposed to 15 percent per annum: see paragraph 7 of the applicant's founding affidavit and the draft order at page 89 of 1 case No. HC1405/13 of the consolidated papers.

However, that position cannot be reconciled with the applicant's assertion in an earlier case that the correct rate of interest is 25% per annum.

At the hearing, a lot of energy and time was expended on extracting from the huge mass of documents submitted with the application what it is that the applicant says went wrong in case No. HC1405/13 which needs correction by this Court.

After lengthy deliberations, it turned out the applicant's case could be stated clearly and concisely.

I will summarise it below:

On 7 May 2015, the applicant filed an application for the variation of the default judgment. The application was filed and prosecuted without the leave of this court notwithstanding the provisional order for liquidation.

In addition to that, the applicant failed to cite the Deposit Protection Corporation despite its direct and substantial interest as liquidator: Final liquidation was confirmed by this Court on 19 May 2016 whereupon the Deposit Protection Corporation was appointed liquidator.

Be that as it may, the application succeeded and the judgment in case HC1405/13 was rescinded on 27 May 2015.

Subsequently, the Deposit Protection Corporation approached the court, in terms of Rule 449(1) for rescission of judgment on the grounds that the applicant had erred in failing to cite it in the case yet it was clearly an interested party.

This court granted the application and rescinded the judgment in case No. HC4155/15.

The effect of the rescission of judgment was that the original court order in case no. HC1405/13 entered against the applicant for the payment to the respondent of $1,824,505=05 popped up again and became operational: prior to provisional liquidation, on 12 March 2014, this Court had entered default judgment against the applicant in favour of the respondent for the payment of $1,824,505=05.

In his reasons for the judgment, the Honourable CHIWESHE JP, in case no. HH390-17 (HC4203/16) observed as follows:

(a) The failure by the applicant to obtain leave of the court before instituting proceedings against the respondent in case no. HC4155/15 was fatal.

(b) Section 213 of the Companies Act [Chapter 24:03] is peremptory and proceedings instituted against the respondent, without leave of the Court, and the resultant court order, were a nullity.

(c) In addition to being liquidator, the Deposit Protection Corporation is an interested party by operation of section 57 of the Banking Act, and failure to cite it in proceedings against the respondent, which is under liquidation, rendered such proceedings fatally defective.

The applicant's appeal to the Supreme Court against the judgment of the Honourable Judge President was dismissed on 26 January 2018 meaning that the default judgment in case No. HC1405/13 remains extant.

The applicant is still aggrieved by the judgment in case No. HC1405/13 and wants it corrected in terms of Rule 449(1).

However, it can only file its application with leave of this Court.

It is alleged, that, when the respondent applied for judgment in case No. HC1405/13 it did not disclose to this court that the applicant had made payments to the respondent after summons had been issued thereby reducing the debt by $1,381,166.

The argument, therefore, is that when judgment was entered, on 12 March 2014, the correct amount owing was around $500,000 and not $1,824,505=05 and the respondent had the obligation to advise the court of the payments.

In other words, the complaint is not about the interest rate applied, but an act of non-disclosure by the respondent of payments effected subsequent to the summons.

After hearing both counsel, I concluded that this application for leave is without merit. My reasons are as follows:

1. The intended application to correct judgment has no prospects of success at all.

2. The alleged payments are said to have been made after judgment had been entered. I will quote paragraph 7 of the founding affidavit…, of the application:

“…, respondent caused a writ in the sum of $1,824,505=05 to be issued against the applicant. This is an incorrect balance as applicant had made subsequent payments of $1,381,166.”

The applicant's complaint, therefore, is not against the judgment but the writ.

If the applicant made certain payments after judgment, it is the writ that requires correction and not the judgment.

In practice, when payments are made after judgment has been entered, the judgment needs no correction but the judgment creditor simply issues a writ for a lesser amount, or, if the writ has already been issued, instructs the Sheriff to collect a lesser amount.

If the judgment creditor collects more than necessary, that can only give rise to an enrichment claim.

The correctness of an order is not affected by payments subsequent to its issuance.

The applicant boldly asserts, in paragraph 7 of its founding affidavit, that it paid a sum of $1,381,166 but fails to attach proof.

The payment is disputed.

Indeed, in argument, counsel for the applicant failed to point to any proof of alleged payment.

SC91-21 : ELPHAS MAPHISA vs CITY OF BULAWAYO
Ruled By: GUVAVA JA, UCHENA JA and CHITAKUNYE AJA

This is an appeal against the whole judgment of the High Court Bulawayo, dated 23 July 2020, which dismissed the appellant's appeal against the decision of the Magistrate's Court granting the respondent summary judgment against him.BACKGROUND FACTSThe appellant is the owner of a residential property known as Number 18 Pingstone ...

BACKGROUND FACTS

The appellant is the owner of a residential property known as Number 18 Pingstone Road, Kumalo within the City of Bulawayo. His property's account number is 34452705. He, as is the norm, was billed for water and rates between August 2013 and November 2018. He did not pay his bills leading to an accumulated debt of US$4,601=50.

He says he did not pay the bills because:

1. He wanted to be billed separately for water and rates, citing section 281 of the Urban Councils Act [Chapter 29:15].

2. That he should not be billed in US dollars when that currency was not available; and

3. That the respondent had not disclosed the particulars of the Urban Councils Act under which the bill was based.

In terms of section 281(1) of the Urban Councils Act, the respondent sent a final letter of demand to the appellant on 16 March 2018. The appellant did not pay. As a result, on 1 November 2018, the respondent issued summons against the appellant in the Magistrates Court. He still did not pay, for the reasons already explained above.

On 13 November 2018, he entered an appearance to defend. Thereafter, on 16 May 2019, the respondent applied for summary judgement.

After taking into consideration the changes which had taken place due to the coming into force of the Magistrate's Court Rules 2019, the Magistrates Court granted the respondent's application for summary judgment. It held, that, the appellant did not have a bona fide defence to the respondent's claim and that he had entered appearance to defend for purposes of delaying the inevitable eventual payment of the respondent's claim.

Aggrieved by the granting of summary judgement, the appellant appealed to the court a quo.

In his grounds of appeal, he raised two issues;

(i) That he had not been billed separately for rates and water; and

(ii) That the application for summary judgment had been made more than seven (7) days after entry of his appearance to defend.

The respondent opposed the appeal.

On hearing the appeal, the court a quo held, that, the application for summary judgment was made in terms of the Rules and the appellant had no bona fide defence to the respondent's claim. He dismissed the appeal with costs on the higher scale holding that the appeal marks vexatious conduct and an abuse of the process of court.

Undeterred, the appellant appealed to this Court on four grounds which raise the following issues:

1. Whether the application for summary judgment was made in terms of the Rules.

2. Whether the appellant had a defence to the respondent's claim.

SUBMISSIONS ON APPEAL

The appellant, who appeared in person, submitted that:

1. He should have been billed separately for rates and water; and

2. That the summary judgment granted by the Magistrate's Court, and was upheld by the court a quo, was irregularly granted, because, according to the 1980 Rules, summary judgment should be applied for within seven days after the defendant's entry of appearance to defend.

In response, counsel for the respondent submitted, that, the Magistrate's Court Rules 1980 were no longer applicable when summary judgment was applied for, on 16 May 2019, as they had been replaced by the Magistrates Court Rules 2019 on 1 February 2019.

On the issue of sections 279 and 281 of the Urban Councils Act, he submitted that these sections do not entitle the appellant to be billed separately for rates and water but merely provide for the procedure to be followed by the respondent when suing for unpaid rates and water bills.

THE LAW

The Magistrate's Court (Civil) Rules 1980 were repealed and substituted by the Magistrate's Court (Civil) Rules 2019. The Magistrates Court (Civil) Rules 2019 came into operation on 1 February 2019. Therefore, from 1 February 2019, the 1980 Rules were no longer in use.

The procedure to be followed was that provided in the Magistrates Court Rules 2019....,.

The 1980 Rules were repealed and replaced by Statutory Instrument 11 of 2019, SI11 of 2019, which, according to Order 1 Rule 2, came into operation on 1 February 2019....,.

Therefore, when the respondent applied for summary judgment, on 16 May 2019, the 2019 Rules were the applicable rules....,.

The appellant did not take heed. He remained fixated on the 1980 Rules - which were no longer in force.

HH309-15 : IRENE ZINDI vs ZIMBABWE FARMERS DEVELOPMENT COMPANY LIMITED
Ruled By: MWAYERA J

The respondent obtained default judgment against the applicant on 21 July 2011. The default judgment was pursuant to a claim for $77,546=56 from a contract of purchase and sale concluded by the parties.The applicant approached the court for rescission of judgment in terms of Rule 449 of the High Court ...

The respondent obtained default judgment against the applicant on 21 July 2011. The default judgment was pursuant to a claim for $77,546=56 from a contract of purchase and sale concluded by the parties.

The applicant approached the court for rescission of judgment in terms of Rule 449 of the High Court Rules:

“Rule 449 Correction, variation and rescission of judgments and orders

(1) The court or a judge may, in addition to any other power it or he may have, mero motu, or upon the application of any party affected, correct, rescind, or vary any judgment or order.

(a) That was erroneously sought or erroneously granted in the absence of any party affected thereby; or

(b) In which there is an ambiguity or patent error or omission, but only to the extent of such ambiguity, error, or omission; or

(c) That was granted as a result of a mistake common to the parties.”...,.

The applicant's contention was that she only became aware that there was a judgment against her on 6 March 2014 when she retrieved a letter from the pigeon hole at Parliament. The letter was to the effect that the respondent had obtained a judgment against her and was about to execute her property.

The applicant contended that she was not aware of proceedings instituted against her and that the summons and declaration were not served on her.

She was only shown the record by the legal practitioners whom she consulted on 6 March 2014 upon receiving a letter that there was a judgment against her.

The basis of the applicant's argument was that she was not aware of all the process culminating in the default judgment and that the judge who granted the order was not aware of the applicant's lack of knowledge of the process leading to the default judgement.

The respondent, in turn, opposed the application for rescission of judgement in terms of Rule 449.

The basis of the opposition being, that, the applicant was served with the summons and declaration through the Farm Manager, Cliff Mukowamombe, at Burma Valley Farm, Mutare South.

The respondent argued, that, the application has no merit as the applicant has no “good and sufficient” cause; in other words, the respondent contended that the applicant has no explanation for the default and also that the application has no bona fides as it lacked genuiness.

In the present case, what falls for scrutiny is whether or not, in the circumstances of this case, the applicant has made a good cause for rescission as provided for in Rule 449.

I propose to deal with the application for rescission of judgment as outlined in Rule 63 of the High Court Rules first:

“A court may set aside judgment given in default

1. A party against whom judgment has been given in default, where under these Rules or under any other law, may make a court application, not later than one month after he has had knowledge of the judgment, for the judgment to be set aside.

2. If the court is satisfied, on an application in terms of sub rule (1), that there is good and sufficient cause to do so, the court may set aside the judgment concerned and give leave to the defendant to defend or to the plaintiff to prosecute his action, on such terms as to costs and otherwise as the court considers just.”

'Good and sufficient cause' has been shown, in many cases, as amounting to the party having an explanation for default and having bona fides in defence.

It appears rescission of judgment under Rule 63 requires the court to assess whether or not the default which occasioned the default judgment was wilful. The court has, of necessity, to make a conscious assessment of whether or not the applicant, with full knowledge of the matter and appreciative of the consequences attendant thereto, makes a decision to refrain from appearing.

Wilful default was ably defined by McNALLY JA in the case Zimbabwe Banking Corp Ltd v Masendeke 1995 (2) ZLR 400 and I seek guidance therefrom.

The court, in dealing with an application for rescission of judgement in terms of Rule 63, goes further to consider not only the aspect of wilfulness of default but the bona fides of the defence.

Once these two, wilful default and genuiness, are considered and viewed as amounting to 'good and sufficient cause' as outlined in Rule 63(2) will have been established warranting rescission of default judgement.

Application for rescission of judgment in terms of Rule 449 of the High Court Rules, as discerned from the mere wording of the Rule, has different requirements for consideration.

The court has to look at whether or not the judgment which is sought to be rescinded was erroneously sought or erroneously granted in the absence of any party affected.

It gives further requirements on whether or not there was an ambiguity and whether or not the judgment was granted as a result of a mistake.

The Rule does not seek to draw the attention of the court to 'good and sufficient cause' as outlined in Rule 63.

It is my considered view, that, the distinction in an application for rescission of judgment in terms of Rule 63 and Rule 449 cannot be under played.

It is quite central for the determination of the present case.

It is apparent the requirements which come into consideration are different.

In Rule 449(1), the court has to consider whether or not a relevant fact, which ought to have been placed before the court, has not been placed before it. The court need not go into whether or not there is good and sufficient cause. Once it is established that a certain fact was not brought to the attention of the judge at the time of grant of the order or judgment, then, that is sufficient and the end of the matter in an application to correct, rescind, or vary any judgment or order in terms of Rule 449.

The case of Grantually (Pvt) Ltd and Another v UDC Ltd 2000 (1) ZLR 361 is relevant.

In the case of Banda v Pitluk 1993 ZLR 60, ROBINSON J.., captured the issue of the difference on considerations for rescission under Rule 63 and Rule 449 as follows:

“Let me reiterate immediately that rescission of a judgment under Rule 449(1)(a) is entirely different and must therefore be distinguished from an application for rescission of a default judgment under Rule 63 which require the court, before it sets aside a judgment under that Rule, to be satisfied that there is good and sufficient cause to do so.

Nor is the court concerned with the issue of whether the defendant has a 'good prima facie defence to the action;' the test to be applied by the court under Rule 66(1)(b) when considering application for summary judgment.”

See also Tiriboyi v Joni and Another HH117-04 and National Blankets Limited v Zimbabwe Textiles Workers Union HB16-11.

Recourse to Rule 449 is to enable the courts to correct an otherwise injustice which would be occasioned by an order erroneously sought or granted.

In casu, the respondent did not seek to oppose the application for being premised in terms of Rule 449 but sought to argue, that, for the application to succeed sufficient and good cause has to be shown.

The above discussion has clearly shown the distinction between the requirements for the rescission of judgement under Rule 63 and Rule 449.

The applicant, in the present case, has to show facts before rescission of the judgment which were not placed before the court which granted the judgment which forms the subject of the matter. Once a relevant fact which was not placed before the court at time of judgment is established then the judgment ought to be corrected, rescinded, or varied in conformity with Rule 449.

The respondent's argument, that the applicant has to show sufficient 'good cause' for rescission to be granted is not a requirement under Rule 449....,.

In the circumstances of this case, where the applicant argues information about her relocation and lack of knowledge of process can only be redressed under Rule 449.

HH25-08 : ZIMBABWE DEVELOPMENT BANK and INTERNATIONAL FINANCE CORPORATION vs DAVID SCOTT and OTHERS
Ruled By: GOWORA J

The applicants have jointly approached this court for an order in the following terms:

“That the confirmation of the liquidation and distribution account by the third respondent, in respect of Shagelok Chemicals (Private) Limited (in liquidation), be and is hereby set aside.

That the third respondent be and is hereby directed to re-open the account referred to above for inspection for a period of fourteen (14) days with effect from the date of judgment in this matter.

It is hereby declared, that, the exchange rate to be applied regarding any conversion of foreign currency on applicants claim regarding Shagelok Chemicals (Private) Limited (in liquidation) is the going rate on the date of payment.

That the first and second respondents, jointly, pay the costs of suit on a legal practitioner client scale.”

The background to this application is based on the following facts:

On 23 August 2003, the applicants jointly petitioned with this court that a company called Shagelok Chemicals (Private) Limited be placed under liquidation. The first respondent was appointed liquidator for the process of liquidation of Shagelok Chemicals (Private) Limited.

At a creditors meeting held before the third respondent (the Master of the High Court) the applicants proved claims as follows -

(i) US$1,600,000 for the first applicant; and

(ii) US$1,944,757=70 for the second applicant.

In the execution of his duties, the first respondent disposed of assets belonging to Shagelok Chemicals (Private) Limited, and, from the proceeds, paid out the creditors proven claims.

The second respondent dispatched cheques in the sums of Z$35,789,794=20 for the first applicant and Z$36,338,172=05 for the second applicant.

The applicants returned the payments on the grounds that the second respondent had erred by using a conversion rate against the US Dollar which was prevailing at the time of liquidation instead of the rate prevailing when payment was actually effected.

To this end, the applicants were therefore seeking that the court grant the order to have the distribution account re-opened and for the re-calculation of the Zimbabwe dollar equivalent of their claims.

The fourth to seventh respondents were concurrent creditors in the liquidation process. They have not responded to the application. The Master of the High Court has not filed any papers in response to the order being sought.

The respondents have, in addition to opposing the matter on its merits, raised preliminary issues which I must dispose of before I delve into the merits of the application.

(i)...,.

(ii)...,.

(iii) The respondents have questioned the nature of the relief sought by the applicants, and, whether if what is sought is a review, the applicants have complied with the High Court Rules in so far as time limits relating to reviews are concerned and the requirements of the Rules insofar as the form of the application is concerned.

The applicants are of the view that what they seek is not a review but an order setting aside the confirmation of the liquidation and distribution account.

The application is predicated on the manner in which the first respondent is alleged to have performed his duties as a liquidator of Shagelok Chemicals (Private) Limited and it is obvious, therefore, that the applicants can only rely on the provisions of the Companies Act for whatever relief they seek.

The effect of placing a company in liquidation is to replace contractual rights that existed prior to liquidation with special rights created and governed by the Companies Act [Chapter 24:03] (the Act): see Central Africa Building Society v Pierce 1969 (1) SA 445 (RAD).

The rights of creditors against a company in liquidation are derived from the provisions of the Companies Act and it follows, therefore, that the applicants must look to the Companies Act in seeking redress in the event that the first respondent has not performed his duties as is required of him by the Companies Act.

Strangely, the applicants have not referred to any provision in the Companies Act on which they seek reliance. It has been left to the respondents to point to the pertinent sections of the Companies Act which would be operable in the circumstances.

According to the respondents, the right sought to be exercised by the applicants is derived from section 283 of the Companies Act, and, further, that the procedure for the exercise of those rights has been prescribed in terms of the Companies Act. Therefore, contend the respondents, the applicants should have followed the outlined procedure in seeking to have those rights enforced by this court.

Critically, the respondents argue, the applicants ought to have proceeded by way of a review, which they have not done, and, further, that it is not clear what procedure they have adopted in seeking redress.

The Companies Act, in section 296, provides as follows:

"(1) Any person aggrieved by any decision, ruling, order, appointment, or taxation of the Master under this Act may bring the same under review by the court and to that end may apply to the court, by motion, after due notice has been given to the Master and to any person whose interests are affected: Provided that where the general body of creditors or contributors is affected, notice to the liquidator shall be notice to them.

(2)…,. not applicable

(3) Nothing in this section shall authorize the court to re-open any duly confirmed account or plan of distribution or of contribution otherwise than as provided for in section two hundred and eighty three."

Apart from providing for the bringing of a review of the decision of the Master of the High Court under the said section, the Companies Act does not make provision for the manner in which the review proceedings must be launched.

The High Court, in the exercise of its functions has made provision for Rules of Court which govern its procedures. It stands to reason, therefore, that the proceedings for review have to done in accordance with those Rules as the Companies Act does not provide for the procedure to bring the decision of the Master of the High Court for scrutiny under a process of review.

Accordingly, the applicants were obliged to comply with Order 33 Rule 259 of the High Court Rules, which requires that an application for review be brought within a period of eight weeks from the date on which the suit, action, or decision being complained of occurred.

In casu, the Final Liquidation and Distribution Account, which is the subject matter of these proceedings, was confirmed by the Master of the High Court on 29 September 2004. The applicants became aware of the decision on 4 October 2004 - yet it was not until 18 November 2005 that an application to have the decision to confirm the account set aside was launched.

Clearly, the applicants are out of time in so far as the review of the confirmation of the account is concerned.

They have not, as one would have assumed, sought condonation for the failure to abide by the provisions of Order 33 despite an indication in the opposing papers that the application was out of time insofar as the Rules were concerned.

I am inclined to think, that, in approaching this matter, the applicants and their legal practitioners did not have recourse to the Companies Act, because, if they had, they would have noted that the correct way of seeking redress was by filing an application for review. Their failure to do so can only mean they had not read the Companies Act.

The re-opening of an account, in terms of the Companies Act, is provided for in terms of section 283. The relevant portions of the section are in the following terms:

"When an account has been open to inspection as herein-before prescribed and -

(a) No objection has been lodged; or

(b) (not applicable)

(c) (not applicable)
the Master shall confirm the account and his confirmation shall have the effect of a final sentence, save as against such persons as may be permitted by the court to re-open the account before any dividend has been paid thereunder."

As matters stand in this application, all the creditors have been paid, and, in fact, as pointed out by the respondents, the account was confirmed some fourteen or so months before the applicants thought of launching these proceedings.

There is no doubt, that, the section precludes the reopening of a final distribution account where there has been payment of a dividend. The court is allowed to open an account where no dividend has been paid.

In this jurisdiction, the question has not yet come up for discussion by the court. I am therefore indebted to the respondents for providing the court with an authority from South Africa.

In Wispeco v Herrigel NO and Another 1983 (2) SA 20 (CPD), the court therein had to consider an application for the re-opening of an account in an insolvent estate. The applicant, one of the creditors to the estate, had submitted an account which had been accepted. The claim was presented as a preferent claim as it had been secured by a general covering cession and pledge but when the claim was submitted to the Master by the trustee it was reflected as a concurrent one.

A query was raised with the trustee who gave an explanation to the Master.

The account was thereafter advertised for inspection but no objections were lodged, and, accordingly, the Master confirmed the account.

An hour after such confirmation, it became known to the applicant that the account had been confirmed and that cheques for dividends had been prepared and sent out for posting to the creditors.

The applicant filed an application for a rule nisi for the respondents to show cause on the return day why the confirmation of the account should not be set aside and for the account to be re-opened.

At issue in the application was the meaning to be ascribed to section 112 of the Insolvency Act 24 of 1936 of South Africa which provided, that, when a trustee account had been open to inspection by creditors and no objection had been made, or having been made, the account was amended or an objection, once made, had been withdrawn, then, the Master shall confirm such account and that such confirmation shall be final save as against a person who may have been permitted by the court, before any dividend has been paid under the account, to re-open it.

The provision is almost identical to our section 283 of the Companies Act [Chapter 24:03].

After reviewing a number of authorities, the court found, that, once a dividend had been paid under an account the court was precluded from re-opening the account….,.

In so far as the payment of the dividend is concerned, it matters not whether payment has been made to one or more creditors - once a payment having been made, the court is precluded from opening the account.

I have not been able to have sight of MARS, The Law of Insolvency on which reliance was sought by the respondents in opposing the application.

I have had occasion to peruse The Law of Insolvency by CATHERINE SMITH, 3rd Edition. At p272 of her book, the learned author states, that, once a dividend has been paid under an account, the court is precluded from reopening the account. The learned author goes further to state:

"The intention of the legislature was to ensure that once an account has been confirmed, without objection, prior to confirmation, and a dividend has been paid, the trustee should not be put in a position, subsequently, of having to try to recover that dividend from those to whom he has made distribution as required of him by the Act.

There must be actual payment of a dividend, and such payment has not taken place where dividend cheques, although posted to creditors, were stopped by the trustee; accordingly, a creditor was not precluded from applying for an order for the re-opening of an account by the mere posting of cheques by the trustee.

One cannot ignore the confirmation of the account and the payment of dividends.

The extent of the relief which can be granted in terms of section 111 is limited; it grants an aggrieved party the right to contest the Master's decision prior to confirmation of the account and payment of dividends. After confirmation and payment of dividends, the court has no power to grant the relief envisaged in section 111(2)(a) read with section 112."

As I have already indicated above, the applicants did not attempt to invoke the provisions of the Companies Act in seeking redress herein. They have applied for an order for restitutio in integrum on the basis that there is a just cause for the relief being sought.

Despite this matter having arisen as a result of the perceived irregularities in the manner in which the liquidator performed his duties, they have completely overlooked the provisions of the Companies Act and whether or not such relief is provided in the Companies Act.

The authorities that they seek to rely are not, in my view, apposite to the resolution of this matter.

The case of Uzande v Katsende1988 (2) ZLR 47 (H) concerned an application for rescission of a judgment granted in default and the court had to consider what constituted just cause for the granting of the application for rescission.

The case of RB Ranchers v Estate Mclean 1985 (2) ZLR 24 is also of no assistance to the application as the court did not go into the criteria for the re-opening of an account. The court focused on the alleged breach of contract, implied terms in the contract, and the payment of cheques under the Bills of Exchange Act [Chapter 277].

In Barclays Bank of Zimbabwe Ltd v Sheriff of Zimbabwe & Anor 2000 (2) ZLR 143 (S) the court had to consider an appeal on the issue as to whether it was permissible for a court, and, if so, in what circumstances, to set aside a plan of distribution prepared by the Sheriff subsequent to a sale in execution, after confirmation by the Sheriff of such account and implementation thereof in terms of the Rules.

In considering the appeal, GUBBAY CJ had recourse to cases on insolvency and acknowledged that the principles applicable to the confirmation of distribution accounts in the Law of Insolvency served as a guideline.

In Central Africa Building Society v Pierce N.O. 1969 (1) SA 445…, his LORDSHIP, BEADLE CJ stated thus:

"…,. There is no doubt that under the provisions of section 250 of the Companies Act [Chapter 223], the confirmation of a distribution account has the effect of a final sentence; it has precisely the same effect as a judgment of a court, and, before another court can go behind such a judgment, an application must be made to have it set aside."

Before, therefore, the distribution account can be set aside it must be re-opened, and the applicants can only have it re-opened in terms of the Companies Act.

The court is precluded, in terms of the Companies Act, from reopening an account once a dividend has been paid.

The purpose of the Companies Act is to provide for a speedy liquidation and distribution of monies to creditors, which is why the court is, in terms of the Companies Act, precluded from re-opening the accounts once there has been confirmation of such by the Master of the High Court. Before payment, a person wishing to have an account has to show that his failure to object to the account was induced by justus error or by fraud.

Once an account has been confirmed by the Master, it has the effect of a final sentence and cannot be re-opened by the court under the provisions of the Companies Act.

The question as to whether there could be merit for the re-opening of the account on the grounds of a restitutio in integrum do not here arise due to the clear provisions of the Companies Act in prohibiting the reopening upon the confirmation of the account and payment of any dividend.

For purposes of this matter, it is not necessary that I determine whether or not those grounds would have assisted the applicants, in view of the finding that the payment of a dividend precludes the court from re-opening the account.

The court, in fact, has no discretion to re-open the account once the dividend has been paid. The application for the re-opening of the account is therefore not properly premised.

The parties have gone into the issue whether or not concursus creditorum had been reached.

Having determined that the court has no discretion to re-open the account, I do not see how I can go ahead to determine the question of concursus creditorum. That issue would, in my view, arise if I had found that it was necessary to re-open the account. A finding that the account cannot be re-opened is, in my view, the end of the matter. To go into the question of concursus creditorum would, in the circumstances, be to embark on an exercise for the sake of the same.

That is not, in my view, necessary in this matter.

The application was not well taken and is hereby dismissed. The applicants are ordered to pay the respondents costs.

SC93-21 : RINOS TERERA vs GEORGE LOCK and CK HOLLAND t/a HOLLAND ESTATE AGENT and ZIMBABWE HOUSING COMPANY (PVT) LTD and THE REGISTRAR OF DEEDS
Ruled By: CHITAKUNYE AJA

This is an opposed chamber application for condonation of non-compliance with the Supreme Court Rules 2018 and for extension of time within which to appeal.Though at the outset the applicant did not state the Rule that was not complied with and the Rule under which this application is brought, it ...

SC98-21 : M COMPANY (PRIVATE) LIMITED vs ZIMBABWE REVENUE AUTHORITY
Ruled By: HLATSHWAYO JA, GUVAVA JA and GOWORA JA

This is an appeal against the whole judgment of the Fiscal Appeal Court handed down on 1 November 2016 under judgment number HH661-16 of case number FA08/14, in terms of which the court handed down judgment in favour of the respondent.The appellant seeks relief in the following terms:“WHEREFORE Appellant prays ...

This is an appeal against the whole judgment of the Fiscal Appeal Court handed down on 1 November 2016 under judgment number HH661-16 of case number FA08/14, in terms of which the court handed down judgment in favour of the respondent.

The appellant seeks relief in the following terms:

“WHEREFORE Appellant prays that the appeal be allowed with costs and that the order of the court a quo be set aside and substituted with the following:

The appeal be and is hereby allowed as prayed.”

The material facts of this matter are as follows:

The appellant is a locally registered company that operates as an exporter and seller of processed tobacco from Zimbabwe. On 1 April 2004 and 1 April 2011, respectively, the appellant entered into two successive "Sales and Marketing Commission Agreements" with two foreign companies domiciled in Bermuda and Switzerland respectively. The appellant was identified in both documents as the "Principal" whilst the foreign companies were specifically termed "agents" in the sale of the appellant's export tobacco to foreign markets.

The initial sales commission agreed upon by the appellant and the agents was 8.5 per cent of the aggregate net export sales and Foreign Currency Account (FCA) Zimbabwe sales value of each export. The sales commission was subsequently reduced to 7.5 per cent in compliance with the Zimbabwe Exchange Control Regulations.

In 2007, the respondent undertook an audit of the affairs of the appellant. It was subsequently determined, that, the commission paid in respect of the Sales and Marketing Commission Agreements for the year 2005 qualified as fees for services of a technical and administrative nature, performed by an overseas agent, on behalf of the appellant.

In light thereof, the respondent determined, that, the appellant was liable for withholding non-resident tax as provided for in the Seventeenth Schedule of the Income Tax Act [Chapter 23:06] (the Act).

On 5 April 2007, the respondent issued an assessment of withholding tax to the appellant, which assessment the appellant objected to.

On 10 August 2007, the respondent disallowed the objections lodged by the appellant leading to an appeal being filed on 24 August 2007. The appeal subsequently lapsed, having been filed outside of the prescribed time limits, and the appellant continued to remit non-resident tax fees to the respondent.

On 24 October 2013, the appellant indicated to the respondent that it would cease any further remittals of non-resident tax fees pending a resolution of its 2007 appeal.

The parties conducted a meeting on 5 December 2013, in terms of which the respondent produced a schedule of payable withholding tax fees from the period of January 2009 to October 2013. In terms of the schedule, the principle amount of the non-resident's withholding tax fees that was due was US$4,252,647=57. An equivalent amount was imposed as a penalty and a further US$795,988=62 was imposed as interest. The penalty fee was later reduced, leaving the appellant with a revised total liability of US$5,974,959=97.

The appellant objected to the revised schedule of non-resident's withholding tax by means of an objection letter dated 16 December 2013. The appellant disputed liability on the basis that commissions constituted fees as contemplated in section 30 as read with the Seventeenth Schedule of the Income Tax Act.

Eventually, the appellant undertook to pay the outstanding principal amount by way of four separate instalments spanning between 13 December 2013 and 20 January 2014.

As a result of the undertaking, the respondent elected to further waive the reduced penalty and interest through an e-mail sent on 19 December 2013.

The appellant, however, managed to settle the entire principal amount by 20 December 2013.

On 13 December, a meeting was held between the appellant's tax advisors and the respondent. It appeared, that, in the course of the meeting, the parties agreed that the objections noted by the appellant had been improperly made.

In any event, however, the appellant proceeded to file its Notice of Appeal in the court a quo on 25 March 2014 and served the respondent with the same on the following day. The appeal was premised on the failure of the respondent to make a response to the appellant's objection letter within the prescribed three month time frame.

At the hearing, the respondent raised a preliminary objection to the appeal on the basis, that, it did not issue any written decision of the Commissioner to the appellant on 5 December 2013 or any other date. Consequently, the objection of 10 December 2013, and subsequent notice of appeal issued on 25 March, was invalid and of no force or effect.

The appellant contended, inter alia, that the appeal was validated in terms of paragraph (y) of the Eleventh Schedule of the Income Tax Act which prescribes the decisions of the Commissioner that may be subjected to objection and appeal.

It was established as common cause, that, the appellant abandoned its 2007 appeal with the effect that the appellant accepted liability for the non-resident tax on fees which it had failed to withhold and remit to the respondent.

Moreover, both parties accepted that the subsequent commissions paid by the appellant, during the period prior to August 2007, constituted fees for services of a technical, administrative, managerial, or consultative nature.

Having established the fact, it was determined, that, the appellant was not precluded from objecting, as it did, to the respondent's assessment of liability for its failure to remit non-residents tax fees for the period January 2009 to October 2013.

In view thereof, the court a quo determined that the appeal was properly before it.

On the merits, it was determined, that, it was not a term of agreement between the appellant and the foreign agents that they would deduct commission before remitting the balance to the appellant's FCA.

However, it was evident that the agents invoiced customers, collected payments, and retained their commissions before remittance of the balance to the appellant.

It was the position of the court that the agents main function was to establish and maintain foreign market customer relations and to facilitate the sale of export tobacco on behalf of the appellant.

The appellant argued, that, the commissions were not fees as defined in the Seventeenth Schedule of the Income Tax Act, and, as a result, it had no obligation to withhold non-residents tax.

Additionally, the appellant contended, that, the commissions were deducted by the agents from its gross foreign currency account value incurred outside of Zimbabwe, therefore, it could not withhold any non-residents tax nor could it be obliged to remit the said tax to the respondent.

Conversely, the respondent adopted the position, that, the commissions were fees as defined in the Seventeenth Schedule of the Income Tax Act as read with section 30 of the Income Tax Act. Resultantly, the respondent contended that the appellant was liable, being the principal, to withhold and remit non-residents tax fees to it.

On the question of whether or not the commissions constituted fees, as contemplated in the Seventeenth Schedule as read with section 30 of the Income Tax Act, the court a quo found in favour of the respondent.

It was determined that the agents provided services of a technical, managerial, administrative or consultative nature to the appellant in the sale of its export tobacco. The finding was made on a consideration of the specific functions of the agents in facilitating and concluding the sales and their relationship with the appellant thereon. It was determined that the true essence of a sale involved the technical, managerial, administrative, and consultative competencies of the agent.

In light thereof, the court adopted the view, that, there were hardly any activities undertaken by a taxpayer that could escape the wide ambit of definition of "fees" as provided for in the Seventeenth Schedule of the Income Tax Act.

Resultantly, it was determined that the commissions constituted fees as envisaged in section 30 as read with paragraph 1 of the Seventeenth Schedule of the Income Tax Act.

The court a quo proceeded to consider whether or not the appellant was liable for withholding and remittal of non-residents tax on fees arising from the deduction of commissions retained outside of Zimbabwe.

It was determined, that, the appellant was required, by the Exchange Control Authority, to pay the fees from its local foreign currency account having negotiated and executed the Sales and Marketing Commission Agreements in accordance with Zimbabwean law.

Moreover, the court a quo found, that, the appellant was considered as a "payer of fees" as contemplated in the Seventeenth Schedule of the Income Tax Act being the principal of the agents.

In light thereof, it was determined, that, the appellant was obligated, by law, to withhold non-residents tax on fees and pay any amount so withheld to the respondent.

In light of the findings a quo, the appeal was subsequently dismissed.

Aggrieved by the decision of the court a quo, the appellant has filed the present appeal. The grounds of appeal, as amended by consent, are as follows:

1. The court a quo erred in not applying the amendment to the Seventeenth Schedule introduced by the Finance Act (No.3), 11/2014 as "legislatively interpreting" the concept of "fees" as defined in the said Schedule.

2. The court a quo erred and misdirected itself at law in interpreting the commission paid by the appellant to its agents, respectively, as falling within the concept of "fees" as defined in the Seventeenth Schedule.

3. The court a quo erred and misdirected itself at law in declining to follow the precedent in Sunfresh Enterprises (Pvt) Ltd t/a Rulembi Safaris v Zimbabwe Revenue Authority 2004 (1) ZLR 506 (H) in regards to the source of the funds from where the commission was paid.

The initial matter that presents itself for determination in this Court is whether, in terms of section 30 of the Income Tax Act as read with the Seventeenth Schedule of the Income Tax Act; the appellant is liable to have withheld non-residents tax on commissions paid to certain foreign companies providing sales and marketing services to it for the sale of its export tobacco in overseas markets.

The argument of the appellant turns on the applicability of the amendment introduced to paragraph 1(1) of the Seventeenth Schedule of the Income Tax Act in terms of the Finance (No.3) Act, 2014 which came into effect on 1 January 2015.

It is accepted, as submitted by both parties, that there is a general presumption against retrospectivity of legislation. The principle is well articulated in the case of S v Mzanywa 2006 (1) ZLR 179 (H)..., wherein it states:

"It is a fundamental rule of law that no statute shall be construed to have a retrospective operation unless such a construction appears very clearly in terms of the Act or arises by necessary and distinct implication."

The appellant contends, however, that the amendment had retrospective effect to the extent that it referred to the legislative interpretation of the word "fees".

The amendment to paragraph 1(1) of the Seventeenth Schedule as introduced by the Finance (No.3) Act, 2014 reads as follows:

“'export services' means services rendered wholly or exclusively for the purpose of seeking and exploiting opportunities for the export of goods from Zimbabwe, sustaining or increasing the demand for such exports, and, without derogation from the generality of the foregoing, includes any of the following services -

(a) Research into, or the obtaining of information relating to markets outside Zimbabwe;

(b) Research into the packaging or presentation of goods for sale outside Zimbabwe;

(c) Advertising goods outside Zimbabwe or otherwise securing publicity outside of Zimbabwe for goods;

(d) Soliciting business outside Zimbabwe;

(e) Investigating or preparing information, designs, estimates, or other material for the purpose of submitting tenders for the sale or supply of goods outside Zimbabwe;

(f) Bringing prospective buyers to Zimbabwe from outside Zimbabwe;

(g) Providing samples of goods to persons outside Zimbabwe;

(b) In the definition of 'fees' by the insertion of the following paragraph after paragraph (g) -

'(h) Export market services rendered by an agent of a company that exports goods from Zimbabwe;'”

The wording of the Seventeenth Schedule of the Income Tax Act, prior to the aforementioned amendment, read as follows:

"(1) In this Schedule, subject to sub-paragraph (2) —

…,.

'fees' means any amount from a source within Zimbabwe payable in respect of any services of a technical, managerial, administrative, or consultative nature, but does not include any such amount payable in respect of —

…,."

The appellant seeks to persuade the Court that the definition of fees was not well defined in the Seventeenth Schedule of the Income Tax Act, prior to the enactment of the amendment.

As a result, the appellant contends, that, the subsequent amendment justifies a retrospective legislative interpretation of the term.

Whilst not binding upon this Court, the South African case of Clan Transport Co. (Pvt) Ltd & Ors v Road Services Board & Ors 1956 (4) SA 26 (SR)…, persuasively considers the principle of legislative interpretation is wherein it states:

"I find it difficult to appreciate the appropriateness of the invocation of the later Act of 1956 as a means of construing Act/1953. In the first place, if the wording of proviso (1) is clear and unambiguous in referring to all vehicles intended to be substituted, there is no justification for the invocation. Apart from this, and apart from the consideration that this legislative interpretation, if such it be, is contained in a statute not in operation at the time the Board was called upon to construe the earlier statute, this later statute is not either expressly or by implication interpreting the earlier statute or attempting to clarify it. It was, as its title says, an Act to amend Act 50/1953. It introduced a number of entirely new alterations to various sections, alterations to introduce new features of legislation."…,.

In the circumstances, the amending Act did not purport to interpret the earlier definition of fees as contained in the Seventeenth Schedule of the Income Tax Act - neither can any such inference be drawn.

The definition of "export market services" constitutes a distinctly new concept altogether.

The definition of fees, prior to the amendment, specifically relates to any amount incurred in respect of services of a "technical, managerial, administrative, or consultative nature."

The nature of the fees contemplated thereon are, in my view, clear and unambiguous. The amending Act cannot therefore be applied retrospectively on the basis of legislative interpretation.

The argument proffered by the appellant thereon is devoid of merit.

SC98-21 : M COMPANY (PRIVATE) LIMITED vs ZIMBABWE REVENUE AUTHORITY
Ruled By: HLATSHWAYO JA, GUVAVA JA and GOWORA JA

This is an appeal against the whole judgment of the Fiscal Appeal Court handed down on 1 November 2016 under judgment number HH661-16 of case number FA08/14, in terms of which the court handed down judgment in favour of the respondent.

The appellant seeks relief in the following terms:

“WHEREFORE Appellant prays that the appeal be allowed with costs and that the order of the court a quo be set aside and substituted with the following:

SSC99-21 : JAISON ZHUWAKI vs THE STATE
Ruled By: CHITAKUNYE AJA

On 9 April 2021, I struck off this matter from the roll and gave reasons extempore. The applicant has requested for written reason for my decision. These are the reasons.

In this application, the applicant seeks to challenge the decision of the High Court handed down on 3 May 2018 dismissing his application for condonation and leave to appeal in person. The application was purportedly filed in terms of Rule 21 of the Supreme Court Rules 2018.

The applicant seeks an order in the following terms:

“1. The application against refusal for condonation for the late filing of an appeal be and is hereby granted.

2. The appellant is hereby granted leave to prosecute an appeal in person to the High Court.

3. The appellant shall file his notice of appeal by the Registrar of the High Court.”

BACKGROUND

The applicant was convicted for contravening section 65(1) of the Criminal Law (Codification and Reform) Act [Chapter 9.23] and sentenced to 20 years imprisonment of which 2 years were suspended on condition of future good behaviour on 19 November 2013 by a Regional Magistrate at Chinhoyi Regional Court.

He did not appeal against both conviction and sentence within the requisite period.

On 21 March 2017, the applicant applied for condonation of late filing of an appeal and leave to appeal in person with the High Court.

That application was dismissed by CHATUKUTA J on 3 May 2018 under case number CON 61/17.

On 29 May 2018, the applicant filed a similar application before the same court.

It is pertinent to note, that, in this second application, the applicant did not disclose the fact that he had a similar application dismissed on 3 May 2018 by the same court.

The respondent did not file any response to that second application.

This second application was heard and granted by MUNANGATI-MANONGWA J on 22 July 2019 under case number CON 142/18.

The applicant did not, however, proceed to file the appeal despite the granting of that order.

Instead, on 13 August 2020, the applicant filed another application, in case number CON 308/20, for extension of time within which to file the appeal. This application sought an extension of time within which to comply with the order granted in CON 142/18.

In response to this latest application, the respondent contended, that, in case number CON 142/18 the applicant did not disclose to the court that his initial application had been dismissed in CON 61/17 on 3 May 2018. The respondent thus contended, that, the order in case number CON 142/18 was a nullity as the court was functus officio.

As a consequence, TAGU J dismissed the application to extend the order in CON 142/18 on 3 November 2020.

The applicant, having considered and conceded that both orders by MUNANGATI-MANONGWA J and TAGU J were invalid at law, decided to approach this Court in a bid to challenge the order of 3 May 2018.

In that case (CON 61/17) the Judge had found that the period of delay of 2 and a half years (it was in fact 3 and a half years) was inordinate, and that the reasons for the delay were also contradictory and were not reasonable in the circumstances.

The Judge a quo also held, that, there were no prospects of success on appeal against both conviction and sentence, as such, the application was dismissed in toto.

It is that determination that the applicant seeks to challenge but he is out of time hence this application titled 'application against refusal of condonation and leave to prosecute his appeal in person in terms of Rule 21 of the Supreme Court Rules 2018.'

This application was filed on 23 December 2020 - some two years and seven months after the determination in question. The delay is certainly inordinate.

In his submissions, the applicant averred, that, he was in fact appealing against the court a quo's determination of 3 May 2018. It was in this regard that he indicated that this application was in terms of Rule 21 of the Supreme Court Rules 2018 as he had not appealed in time.

ISSUES FOR DETERMINATION

1. Whether or not there is a proper application before this Court.

2. Whether or not the applicant has established a good cause for the granting of the application.

APPLICATION OF THE LAW TO THE FACTS

This application was purportedly filed in terms of Rule 21 of the Supreme Court Rules 2018. That Rule provides that:

“Application for extension of time or leave to appeal out of time

(1) A person who wishes to apply for an extension of time in which to institute an appeal in terms of Rule 18 or for leave to appeal in terms of Rule 20 shall do so in Form 5 signed by himself or herself or his or her legal representative.

(2) The form referred to in subrule (1) shall be accompanied either by the documents required in terms of sub-rule (1) of Rule 18 or the documents required in terms of sub rule (2) of Rule 20, whichever Rule is applicable, together with an affidavit setting out why the applicant did not institute his or her appeal or apply for leave within the time specified.”

It is trite, that, a litigant approaching this Court must provide an acceptable explanation for failure to comply with the rules of the court. The explanation, in the founding affidavit, must be bona fide and satisfactory. The applicant must give a satisfactory explanation for the delay in noting the appeal and show that there are prospects of success in the intended appeal.

The application under this Rule is, in effect, an application to appeal out of time and is not in itself an appeal. The relief sought must relate to the purpose of the application which is to appeal out of time.

It is clear, from the founding affidavit, and the relief sought, that, the applicant is at a loss as to the nature of the relief envisaged under Rule 21 of the Supreme Court Rules 2018 and the relief he seeks before me.

The application ought to be for condonation of his failure to note the appeal in time and for leave to file the appeal out of time.

The current application was filed on 23 December 2020, two years seven months out of time. The applicant has not sought for condonation for the failure to comply with this Court's rules. In essence, the applicant has not tendered any reasons for the delay herein.

Without a proper application for condonation having been made, the applicant is therefore improperly before this Court.

SC102-21 : DOVES FUNERAL ASSURANCE (PVT) LTD vs FERNABY INVESTMENTS (PVT) LTD and QUECOM ENGINEERING (PVT) LTD and DENNIS NGORIMA and STANDARD CHARTERED BANK LTD and HOMELAND REAL ESTATE and THE SHERIFF
Ruled By: BHUNU JA, MATHONSI JA and CHITAKUNYE JA

It is a cardinal principle of our civil practice and procedure, that, the onus is on a person who claims something from another in a court of law to satisfy the court that he or she is entitled to it: see ZUPCO Limited v Pakhorse Services (Private) Limited SC13-17.

View Appeal
HH485-20 : MIKE MHLANGA vs IRENE MHLANGA
Ruled By: CHIRAWU-MUGOMBA J

This matter falls squarely in the realm of the law of succession in Zimbabwe. The background is as follows:

On the 24th of January 2014, the plaintiff issued summons against the defendant seeking the following relief:

(a) Eviction of the defendant, and all those claiming through her, from House Number 1138 Section 3, Kambuzuma, Harare.

(b) Payment of arrear rentals amounting to $17,280 for four rooms over a period of six years.

(c) Holding-over damages at $240 per month from date of summons to date of eviction.

(d) Costs on a higher scale if defendant opposes, otherwise normal costs.

In his summons and declaration, the plaintiff made the following averments:

He is the owner of the Kambuzuma house (the property) by virtue of Deed of Transfer No. 3302/94. The defendant was a wife to the plaintiff's late father and she is staying at the property despite having her own house as provided to her by her late husband.

The plaintiff's father had three wives, who include the plaintiff's mother, the defendant, and another wife who stays in section 5 Kambuzuma.

The plaintiff's late father had a plan to provide all his wives with their own houses. The property in issue was for the first wife. The third wife had a house provided for her in Kambuzuma, and, to the defendant, he arranged that she joins a housing co-operative in Mabvuku, and, as a result, she was allocated Stand number 10700 in New Mabvuku.

The plaintiff's father passed on before he could build a house in Mabvuku for the defendant. Nonetheless, the cooperative has since built a house for her which she is renting out.

She has refused to move out of the Kambuzuma property. She is occupying four out of six rooms.

In her plea, the defendant averred as follows:

The plaintiff inherited the house from the deceased estate of his late father as an heir and thus he has an obligation to provide her with alternative accommodation. No house was acquired for her in Mabvuku. That house belongs to the co-operative and payments were made since 2002 by the defendant's daughter. The defendant only uses three rooms, and this arrangement has been sanctioned by the Master of the High Court.

At an edict meeting held in 1994, it was ruled, that, the defendant and the plaintiff's mother should continue staying at the house. As a surviving spouse, the defendant can continue staying at the property. If the plaintiff wants the defendant to leave, he has to provide the defendant with alternative accommodation. The defendant's stay is legal and she is not liable to pay damages to the plaintiff.

The joint pre-trial conference minute reflects the following as the issues:

1. Whether or not the plaintiff still has an obligation to provide the defendant with accommodation, when the defendant now has her own house?

2. Whether or not the defendant joined the housing co-operative in Mabvuku at the instigation of the plaintiff's father?

3. Should the defendant pay arrear rentals, holding over damages, and costs on a higher scale?

The admissions were recorded as follows:

1. The plaintiff inherited House Number 1138 Section 3 Kambuzuma in his own right in May 1994.

2. The plaintiff provided the defendant with accommodation from 1994 to date - a period of 21 years.

3. The defendant joined a housing co-operative in Mabvuku while her husband was still alive.

4. The defendant was allocated House No.10700 in New Mabvuku in 2005 and is now a landlady.

The trial itself was very short.

The plaintiff's evidence-in-chief was through his mother, Efradia Mhlanga, acting through a power of attorney, since the plaintiff is based in the United Kingdom.

She told the court that the plaintiff is her son. When her husband passed away, in 1997, the plaintiff was appointed heir to the deceased estate.

In support, she produced Letters of Administration dated the 15th of November 1994. The letters indicate that one Richard Chimbari was appointed executor dative in the estate of the late Mwaoneka Isaac Mhlanga.

The defendant was married to the late Mwaoneka Isaac Mhlanga but she was never at any point chased away.

The plaintiff now sought eviction of the defendant since he was a registered owner. In support, a copy of title deeds of the property in the name of the plaintiff were produced.

The defendant now stays in Seke, and, if the court authorises her eviction, she can leave end of August.

Under cross examination, the plaintiff's Efradia Mhlanga stated, that, the defendant has a house in Seke that she built on her own though she did not have any proof.

She also stated, that, the defendant started staying at the Kambuzuma property when their husband was still alive though she did not know the exact date but it was in the 1990s.

The plaintiff's legal practitioner confirmed that the claim for arrear rentals and holding over damages was no longer being pursued.

On her part, the defendant told the court, that, the plaintiff is her step-son. She married her late husband in 1991 in terms of the then African Marriages Act [Chapter 238]. She however started staying with him in 1980 at the property. Since then, she has not stayed at any other place.

Her husband left her at the property and she has nowhere to go.

Her husband considered that, at that time, their children were young.

She implored the court to have mercy on her. Seke is her home where she was born. The plaintiff had a duty to provide her with alternative accommodation.

Her house in Mabvuku was paid for by her child. When she joined the co-operative, in 1988, she was young and was working. She denied that it was her late husband who encouraged her to join the cooperative. The house was still in the name of the co-operative.

In support of her contention, the defendant produced a rates statement from the City of Harare which indicates the name of the ratepayer as Kugarika Kushinga Co-operative.

Under cross examination, she conceded, that, although one of her children is staying at the property, all payments to the cooperative, and to the City of Harare, are made in her name.

From the pleadings and the evidence led, the following is common cause:

1. The plaintiff has real rights in the property through registration of title in his name as the heir to the deceased estate of his late father.

2. The defendant has been resident at the property since her marriage to the deceased.

3. The defendant owns a property in Mabvuku.

4. The plaintiff has not offered the defendant alternative accommodation.

In my view, the legal issue that arises is this - does the plaintiff have the duty to provide the defendant with alternative accommodation?

The Law

The legislature has made provisions for the immediate protection of the family of a deceased person upon death. The first layer of protection is through the provisions of the Deceased Persons Family Maintenance Act [Chapter 6:03] – specifically section 10 that reads as follows:

“10 Protection of deceased person's family and property

(1) Notwithstanding any law, including customary law, to the contrary, when any person dies, any surviving spouse or child of such person, shall, subject to section eleven, have the following rights —

(a) The right to occupy any immovable property which the deceased had the right to occupy and which such surviving spouse or child was ordinarily occupying immediately before the death of the deceased;

(b) The right to use any household goods and effects, implements, tools, vehicles or other things which immediately before the death of the deceased the surviving spouse or child was using in relation to such immovable property;

(c) The right to use and employ any animals which immediately before the death of the deceased were depastured or kept on such immovable property;

(d) To an extent that is reasonable for the support of such surviving spouse or child, the right to any crops which immediately before the death of the deceased were growing or being produced on such immovable property.

(2) Any person who does an act with the intention of depriving any other person of any right, or interferes with any other person's right, that has accrued to that other person in terms of subsection (1) shall be guilty of an offence and liable to a fine not exceeding level six or to imprisonment for a period not exceeding one year or to both such fine and such imprisonment.

(3) A court convicting a person of an offence in terms of subsection (1) may order the convicted person, or any other person, to restore any property or pay any money which he has unlawfully acquired to the person entitled thereto in terms of subsection (1) or to any other person specified by the court, and any such order shall have the same effect and may be executed in the same manner as if the order had been made in a civil action instituted in the court.”

In other words, at death, the salient features of the protection afforded is as follows:

(a) The protection is afforded to all persons, be it under general or customary law.

(b) A surviving spouse or child is entitled to remain in occupation of an immovable property that they were staying in immediately before death provided that the deceased was staying with them or the deceased had a right to occupy such property. This means if there is another property that the deceased was not occupying, but had a right to occupy, the surviving spouse or child can also occupy such property if they were staying there immediately before death of the deceased.

(c) The surviving spouse or child have a right to use tools and household goods, including motor vehicles, that they were using immediately before death.

(d) They also have a right to use animals and have a right to any crops that were available to them immediately before death.

These protectionist rights are taken very seriously such that any infringement is a criminal offence (section 10(2) of the Deceased Persons Family Maintenance Act).

These rights, however, are not in perpetuity.

They “terminate upon completion of the administration of that portion of the deceased estate to which those rights relate;” see section 11(b) of the Deceased Persons Family Maintenance Act.

During the era of the 'heir' an additional duty was placed on him (given that the male primogeniture rule was predominant) to look after the dependants of the deceased. He could not evict them without providing alternative accommodation.

Although a dependant was not defined, guidance could be gleaned from the definition in section 2 as follows:

“'dependant', in relation to a deceased, means —

(a) A surviving spouse;

(b) A divorced spouse, who, at the time of the deceased's death, was entitled to the payment of maintenance by the deceased in terms of an order of court;

(c) A minor child;

(d) A major child who is, by reason of some mental or physical disability, incapable of maintaining himself and who was being maintained by the deceased at the time of his death;

(e) Parent who was being maintained by the deceased at the time of his death;

(f) Any other person who -

(i) Was being maintained by the deceased at the time of his death.”

Registration of property bestows real rights that are enforceable against the whole world. In Takafuma v Takafuma 1994 (2) ZLR 103 (S)…, McNALLY JA had this to say:

“The registration of rights in immovable property in terms of the Deeds and Registries Act [Chapter 139] (now [Chapter 20:05]) is not a mere form nor is it simply a device to confound creditors or the tax authorities - it is a matter of substance. It conveys real rights upon those in whose name the property is registered.”

In my view, the acquisition of real rights and the expected duty of the heir reveals the tension between general law and customary law of inheritance.

The immediate question is: does the duty to provide alternative accommodation end upon the acquisition of title and does it apply to even those dependants who have accommodation already?

Application of the law to the facts

The two witnesses, that is, the plaintiff's mother and the defendant in person, appeared to be very simple women who did not appreciate the legal nature of the dispute.

The plaintiff's mother is also very elderly and it did not help matters that the legal practitioner also seemed unsure of what evidence to elicit from her. The defendant's legal practitioner also seemed to be unsure of what questions to put to her. As a result, the entire trial took about one and a half hours.

The saving grace is that the question before the court was more legal than factual.

HH169-13 : TROJAN NICKEL MINE LIMITED vs RESERVE BANK OF ZIMBABWE
Ruled By: MATHONSI J

It is WALLIS JA, with HARMS AJ, VAN HEERDEN JA, MALAN JA and PETSE AJA all concurring who waxed lyrical in Executive Officer of the Financial Services Board v Dynamic Wealth Ltd Ors 2012 (1) SA 543 when he said:“Ever since the bursting of the South Sea Bubble ...

It is WALLIS JA, with HARMS AJ, VAN HEERDEN JA, MALAN JA and PETSE AJA all concurring who waxed lyrical in Executive Officer of the Financial Services Board v Dynamic Wealth Ltd & Ors 2012 (1) SA 543 when he said:

“Ever since the bursting of the South Sea Bubble in 1720, governments have recognised the need, in the interests of the investing public, for regulation of the financial services industry.”

The plaintiff, a public company registered in Zimbabwe sued the defendant for payment of US$1,007,541=30 together with interest at the prescribed rate and costs of suit, being the plaintiff's money allegedly appropriated by the defendant from the plaintiff's bank in pursuance of a Monetary Policy Statement issued in terms of section 46 of the Reserve Bank Act [Chapter 22:15] (“the Act”) and a directive issued to banks in terms of section 35(1) of the Exchange Control Regulations, Statutory Instrument 109/96, SI109/1996.

The defendant is established in terms of section 4 of the Reserve Bank Act [Chapter 22:15] and is charged with, inter alia, the regulation of Zimbabwe's monetary system, the supervision of banking institutions, and the smooth operation of the payment system as well as acting as banker and financial advisor to, and fiscal agent of, the State.

It is salutary that the defendant performs these functions in order to regulate banking and protect the banking public.

In the discharge of its duties aforesaid, the defendant issued a Monetary Policy statement, on 1 October 2007, centralising all foreign currency accounts and directing the lodgement, at its doorsteps, of all corporate foreign currency balances held by authorised dealers.

One such authorised dealer is Banc ABC where the plaintiff maintained a foreign currency account.

In compliance with the monetary policy, and a subsequent directive issued by the defendant, Banc ABC lodged the plaintiff's foreign currency balance with the defendant.

That is the last time the plaintiff saw the money, as the defendant did not return it to Banc ABC as a result of which the plaintiff was unable to access that money.

The plaintiff then sued the defendant aforesaid seeking to recover the money but the defendant contested the action averring, in its plea, that, there was no causal nexus between the parties given that the plaintiff and the defendant did not enjoy any banking relationship and that the plaintiff should have proceeded against its Bank, that is Banc ABC, and not against the defendant.

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

“1.1. Whether or not the plaintiff has a cause of action against the defendant.

1.2. Whether or not the defendant is obliged to pay the amount claimed or any amount at all.”

When the matter initially came before me for trial, the parties were of the view that the facts were generally common cause. They then requested the deferment of the hearing to enable them, firstly, to agree on the facts, prepare and file a Statement of Agreed Facts as well as heads of argument.

In due course this was done, and the Statement of Agreed Facts signed and filed by the parties reads:

“1. The plaintiff is Trojan Nickel Mine Limited, a public company registered in accordance with the laws of Zimbabwe.

2. The defendant is the Reserve Bank of Zimbabwe. It is established in terms of the Reserve Bank of Zimbabwe Act [Cap 22:45] (“the Act”) with the power, amongst other things, to regulate the banking sector.

3. The plaintiff, at all material times, maintained a foreign currency account number ZWTROJ001CALUS0019 domiciled at Banc ABC, formerly the African Banking Corporation.

4. On 1 October 2007, the Governor of the defendant, Dr G. Gono, issued a Monetary Policy Statement in terms of section 46 of the Act. The Monetary Policy Statement provided, in pertinent part, as follows..,.:

'6.2. In order to achieve the twin objectives of boosting exporter viability and improving the economy's accountability for total export and other foreign currency receipts, as well as ensuring judicious allocation of the scarce foreign currency resources, it has become necessary that the Reserve Bank introduces a new frame-work where we pool our resources together without disadvantaging the generators of that foreign currency.

6.3. Within this spirit, of preserving and promoting the welfare of our generators of foreign currency, who are the geese that lay the golden eggs, it has become necessary that the Central Bank centralises the management of FCAs, along with the creation of an interest earning investment window that boosts exporter viability.

6.4. What this means is that, with immediate effect, all corporate FCA balances at Authorised Dealers are to be lodged at the Reserve Bank, such that each bank maintains mirror accounts for transactions tracing purposes.'

5. On 2 October 2007, the defendant's Division Chief, Exchange Control, one M.B. Mpofu, directed a minute to the Head, Exchange Control Department of all Authorised Dealers, which read(s) in pertinent part as follows:

'Dear Sir/Madam

DIRECTIVE ISSUED IN TERMS OF SECTION 35(1) OF THE EXCHANGE CONTROL REGULATIONS, STATUTORY INSTRUMENT 109 OF 1996

1. INTRODUCTION

1.1. Reference is made to the Mid-Year Monetary Policy Statement announced by the Governor on 1 October 2007. In order to operationalize the measures highlighted therein, Authorised Dealers are accordingly directed as follows…,.:

2….,.

3. CENTRALISED FCA MANAGEMENT

3.1. Authorised Dealers are advised, that, with immediate effect, all Corporate and Non-Governmental Organisations (NGOs) FCA balances, as at 1 October 2007, shall be lodged with the Reserve Bank.

3.2. Authorised Dealers shall transfer all their Corporate FCA (including EPZ Companies) and NGOs balances to the Reserve Bank by close of business on 2 October 2007, as directed by International Banking and Portfolio Management Division, and submit to Exchange Control, individual exporter balances on those transfers made.

3.3. Authorised Dealers are required to maintain mirror accounts for their exporting clients indicating individual entitlements for transaction tracking purposes.

3.4. Authorised Dealers shall submit to the Exchange Control Inspectorate monthly foreign currency account statements for their clients for which global balances should be consistent with holdings at the Reserve Bank's Internal Banking and Portfolio Management Division.

3.5. All special FCAs (transitory accounts) and FCAs for International Organisations, Embassies, and Individuals shall remain with Authorised Dealers.

3.6. In order to ensure that exporters preserve the real value of the foreign exchange deposits under the pooled framework, all such deposits shall earn an all inclusive (interest) rate of 12% per annum in foreign currency for USD, Pound, Euro, Pula and Rand.'

6. The Ban ABC was, and remains, an Authorised Dealer.

7. The plaintiff alleges, that, it had a foreign currency balance of USD1,007,541=30 as at 1 October 2007 in its FCA aforesaid.

8. Banc ABC, pursuant to the directive in para 4 above, remitted the sum of USD1,492,516=06 to the defendant.

9. The plaintiff alleges, that, it has been unable to access its funds from Banc ABC despite demand.

10. The plaintiff has sued the defendant for:

'Payment of an amount of USD1,007,541=30 which amount is due and payable to the plaintiff by the defendant: which amount represents the entire balance of the money which was held by the plaintiff in a foreign currency account in African Banking Corporation Limited: which amount was appropriated by the defendant some time in 2008: and which amount, despite demand, the defendant fails or refuses to pay.'

11. The defendant has pleaded to the summons as follows:

'The defendant pleads that there is no causal nexus between the plaintiff and the defendant, more particularly that:

(a) The plaintiff and defendant have no banking relationship and the defendant did not manage or keep a banking account of the plaintiff and owed the plaintiff no duties normally associated with a banker and its depositor.

(b) The plaintiff's claim should be against its banker and not the defendant. It is improper and there is no legal basis alleged which would entitle the plaintiff to bring a claim against the defendant.

WHEREFORE, the defendant prays for the dismissal of the plaintiff's claim with costs.'

12. The parties have joined issue and agreed on the following issues for disposition:

12.1 Whether or not the plaintiff has a cause of action against the defendant.

12.2. Whether or not the defendant is obliged to pay the amount claimed or any amount at all.

13. The parties respectfully pray that this honourable court may dispose of the agreed issues on the basis of the facts agreed herein and Heads of Argument to be filed by both parties.

DATED AT HARARE this 22nd day of May 2013.”

The Statement of Agreed Facts is duly signed by counsel for the parties.

Counsel for the plaintiff submitted, that, the plaintiff does have a cause of action against the defendant because it is the defendant which wrongfully procured a breach of the contract that exists between the plaintiff and Banc ABC. He maintained, that, an action exists in our law for the intentional and wrongful interference with contractual rights.

In addition, the plaintiff is entitled to recover from the defendant the procured money on the basis of unjust enrichment, it having been enriched at the expense of the plaintiff.

Counsel for the plaintiff strongly argued, that, the directives issued to Authorised Dealers, by the defendant, had the effect:

(i) Firstly, of inducing Banc ABC to commit a breach of its contract with the plaintiff; and

(ii) Secondly, the directives intentionally and wrongfully interfered with contractual rights.

Counsel for the defendant did not address himself to that argument. As far as he was concerned, there was no banker and client relationship between the parties, and, for that reason, the defendant does not owe the plaintiff any duty.

Counsel for the defendant insisted, that, it is the plaintiff's Bank which received the money from the plaintiff, and, for that reason, it is the one with the obligation to pay the money to the plaintiff.

Counsel for the defendant further argued, that, the plaintiff's pleadings do not allege a legal basis entitling it to bring a claim against the defendant especially as the summons does not specify that the suit is based on either contract or delict....,.

Counsel for the defendant submitted, that, the plaintiff did not plead any case based on delict, and that, for that reason, the claim should fail.

I am of the view, that, the manner in which the plaintiff pleaded its case, predicating it mainly on the fact that the amount claimed “was appropriated by the defendant” was wide enough to encompass the claim as it has been argued by counsel.

HH366-18 : ALAIN GRANT vs TIRINGEI JEFTA and THE MASTER OF THE HIGH COURT and NELLIE TIYAGO (in her capacity as curator ad litem)
Ruled By: CHIRAWU-MUGOMBA J

“The paradox…, is that even when children are construed as rights holders, it is difficult for them to assert their rights. The reasons are practical, political, and legal. Young children are completely and unavoidably dependant on those who have power over their lives (O' Donovan: 1983).”I was reminded of this ...

SC115-21 : ANDREW CHIGOVERA vs MINISTER OF ENERGY AND POWER DEVELOPMENT and ZIMBABWE ELECTRICITY TRANSMISSION AND DISTRIBUTION COMPANY (ZETDC)
Ruled By: GUVAVA JA, MAVANGIRA JA and KUDYA AJA

This is an appeal against the whole judgment of the High Court Harare, dated 25 July 2019. The court a quo dismissed with costs the application for a declaratory order that had been filed by the appellant.THE FACTSThe appellant is the owner of an immovable property situated in Mabelreign, Harare. ...

THE FACTS

The appellant is the owner of an immovable property situated in Mabelreign, Harare. He leased the property to one Crossland Mupfurutsa between June 2013 and August 2017.

The tenant concluded an agreement for the supply of electricity with the Zimbabwe Electricity Transmission and Distribution Company (ZETDC or the second respondent). The second respondent duly opened an account for the supply of electricity in the name of the tenant. All the supply and payment transactions were recorded in this account.

The tenant abandoned the immovable property in August 2017. He left an unpaid electricity bill of $4,689=89.

In September 2018, the second respondent installed a prepaid meter in the name of the appellant on the property.

Acting in terms of section 3(1) of the Electricity (Unpaid Bills, Prepayment Meters and Smart Meters) Regulations, SI44A of 2013, which was promulgated in terms of section 65 of the Electricity Act [Chapter 13:19] (the enabling Act), the second respondent unilaterally transferred the debt incurred by the tenant to the appellant.

The debt was to be liquidated by the unilateral debit of at least 50% of the prepaid electricity purchases made by the appellant.

On 1 June 2019, S.I.44A of 2013 was repealed by section 12 of SI85 of 2018.

Subsequent to the repeal, the appellant approached the High Court, on 3 September 2019, seeking two declaratory orders:

(i) The first was that section 3 of the Electricity (Unpaid Bills, Prepayment Meters and Smart Meters) Regulations, SI44A of 2013 be declared ultra vires the Electricity Act [Chapter 13:19] (the enabling Act) and therefore a nullity.

(ii) The second declaratory order was predicated on the first. The appellant sought that the transfer of the debt to him be declared unlawful and that the second respondent be ordered to stop the ongoing deductions from his periodic prepaid electricity purchases.

The application was opposed by the second respondent and not by the first respondent (the Minister of Energy and Power Development).

When he filed his application, the appellant was not aware that the enactment he sought to impugn had been repealed.

This is apparent from the manner in which he asserted his cause of action in his founding affidavit. The tenor of his averments tended to suggest that the impugned enactment was still extant.

The second respondent was equally oblivious to this fact, otherwise it would have raised it in its opposing affidavit.

That the enactment had been repealed was only disclosed by the appellant in his answering affidavit. He, however, with this belated knowledge, elected to proceed with the application in its original form.

The first respondent did not file opposing papers or seek an upliftment of the automatic bar. His legal practitioner appeared in the court a quo, where he was, however, granted a watching brief.

It was common cause, that, the second respondent continued to make debits on the appellant's prepaid electricity purchases to defray the outstanding debt after the impugned enactment had been repealed.

This is clearly established by annexures C, D and E dated 15 August 2018, 14 September 2018 and 4 October 2018, respectively.

THE CONTENTIONS A QUO

The appellant advanced three contentions in the court a quo:

(i) The first was that section 3(1) of the Electricity (Unpaid Bills, Prepayment Meters and Smart Meters) Regulations, SI44A/2013 (the repealed subsidiary legislation) was ultra vires section 65(2)(h) of the Electricity Act [Chapter 13:19]. He argued that it was incongruous for the subsidiary legislation to cast liability for outstanding electricity debts on the immovable property when the principal legislation imposed liability therefor on a licensee or consumer. These terms were specifically defined in the Electricity Act (the enabling Act) to mean a person.

(ii) The second was that the implied transference of the debt from the consumer to the owner, contemplated in section 3(2) of the repealed enactment, violated the established doctrine of privity of contract.

(iii) Lastly, that the unabated deductions that continued to take place after the repeal of the enactment were unlawful.

In his heads of argument, counsel for the second respondent took two preliminary points against the relief sought by the appellant:

(i) He argued that it was bad at law for the appellant to seek a declaration of invalidity against an enactment that had been repealed.

(ii) He also argued, that, it was incompetent for the appellant to predicate the second declaratory order on a repealed provision of the repealed enactment.

On the merits, the second respondent made the following counter arguments:

That section 65(1) of the Electricity Act, vests the Minister with the untrammelled power to make any Regulations required or permitted by the Electricity Act which are necessary or convenient for the carrying out or giving effect to the Act. In promulgating any Regulations, the Minister is guided by the 17 requirements that are listed in section 65(2) of the Electricity Act, amongst which are paragraphs (h) and (q).

While paragraph (h) prescribes the promulgation of Regulations in respect of “fees, levies or other charges payable in terms of the Act by licensees or consumers” paragraph (q) confers on the Minister the power to make “such other regulations as may be required.”

The Minister utilized paragraph (q) to make the impugned enactment that placed liability for outstanding debts, at the time a prepaid meter was installed, on the property rather than on a person. The same Regulations also required the user of the prepaid meter to satisfy any debt that was incurred at the property before the installation of the prepaid meter from a portion of the prepaid electricity purchases.

Regarding, the deductions post the repeal of the impugned enactment, the second respondent contended, that, they were saved by the provisions of section 17(1)(c) of the Interpretation Act [Chapter 1:01], which preserved “any right, privilege, obligation or liability acquired or accrued or incurred under the enactment so repealed.”

Counsel for the second respondent further argued, that, the right to debit the prepaid electricity purchases accrued to the second respondent on the date the prepaid meter was installed in September 2018. He, therefore, submitted that the post-repeal deductions were lawful.

THE FINDINGS A QUO

The court a quo held, correctly, that, in terms of section 14 of the High Court Act [Chapter 7:14], it has a discretion to grant a declaratory order.

Regarding the requirements for such an order, it found the appellant to be an interested person. This was because the debt that had been incurred by his tenant was imputed to him. It further held, that, the impugned enactment, save for the accrued rights and obligations, ceased to be part of our legislation on the date on which it was repealed, on 1 June 2018.

Consequently, the appellant could not, on 3 September 2018, after the repeal of the impugned enactment, competently found a cause of action on the non-existent enactment, nor, thereafter, seek a declarator against it.

The learned judge stated…, that:

“It is clear to me that as of 1 June 2018 when SI 44A was repealed, the section complained of ceased to be of legal validity. Thus, as at 3 September 2018, when applicant filed this application, he was seeking to have a nullity (sic) declared ultra vires the enabling Act. There was virtually nothing for this court to declare as ultra vires the enabling Act…..In as far as the fulcrum of the applicant's application was for an order declaring section 3 of SI 44A of 2013 ultra vires the Electricity Act and thus null and void I am of the view that such an application was improper as that SI had already been repealed by the time applicant filed this application.”

The court a quo, therefore, declined to exercise its discretion in respect of the first declaratory order in favour of the appellant on the basis that the impugned section ceased to exist on 1 June 2018.

The court a quo also declined to grant the second declaratory order.

It found that the cause of action pleaded in the founding affidavit did not support such a declaratory order. At p5 of the appealed judgment, the court a quo remarked that:

“Whilst indeed applicant may feel aggrieved by the actions of the second respondent, in making him liable for his tenant's debt, it is my view that the applicant ought to have decided on a proper cause of action especially after learning that the SI in question had been repealed. As it is, clause 2 of the prayer in which he seeks to be declared not indebted to second respondent, is premised on this court first declaring the section in question as ultra vires the enabling Act. It is only after such a declaration that the issue of his indebtedness or otherwise would arise.

In as far as an application stands or falls on the founding affidavit, it follows that the application cannot succeed on the present papers.

Upon realising that the provision in question had been repealed well before filing the application, applicant ought to have withdrawn the application and explored other viable causes of action which recognised the fact that the provision in question had been repealed and any relief had to be on other legal grounds.”

The court a quo further held, that, section 17(1)(c) of the Interpretation Act preserved the accrued rights and the incurred obligations that existed at the time of repeal. It, however, dismissed the second declaratory order sought on the basis that it was consequential to, and dependent on, the grant of the first declaratory order.

Undaunted by the dismissal of his application, the appellant appealed to this court. He raised the following grounds of appeal:

1. The court a quo erred and misdirected itself in law in finding the Statutory Instrument 44A/2013 could no longer be challenged on the grounds that same had been repealed in circumstances where the cause of action arose before the repeal of the Statutory Instrument 44A/2013.

2. Alternatively, the court a quo erred in law in not finding that a repealed statutory instrument can be declared null and void, where, despite its repeal, a litigant is still adversely affected by what the statutory instrument brought into being.

3. The court a quo erred and misdirected itself in law by dismissing the challenge to Statutory Instrument 44A/2013, in the absence of any opposition, given that the second respondent had no locus standi in judicio to oppose the challenge.

The appellant, accordingly, sought the vacation of the whole judgment of the court a quo and its substitution with an order granting the application and a declaration of invalidity against section 3 of the Electricity (Unpaid Bills, Prepayment Meters and Smart Meters) Regulations, SI44A of 2013 (the repealed enactment).

THE ISSUE FOR DETERMINATION

Counsel for the appellant did not motivate the third ground of appeal. We regarded it as abandoned.

He also conceded, that, the alternative ground meant the same thing as the first. He therefore conflated it into the main ground.

The sole issue for determination is whether or not the court a quo erred in finding that the appellant could not seek a declaratory order in respect of a repealed enactment.

THE SUBMISSIONS BEFORE US

The main contention moved by counsel for the appellant, in oral argument, is that section 17(1)(a) of the Interpretation Act preserved the provisions of the repealed enactment where a cause of action arose from the enactment before it was repealed. He contended that the preserved provisions remained in existence and were therefore susceptible to a declaration of invalidity for being ultra vires the enabling Act.

In his written heads, counsel for the appellant did not assail the dismissal of the second declaratory order or seek any relief in respect to it. He was content to attack the adverse finding made against the appellant a quo on the main declaratory order.

It was perhaps in the realization of this shortcoming that counsel for the appellant half-heartedly introduced, in oral argument, the “live effects of the repealed enactment” discourse into contention.

He used it to augment his main submission, that the repealed provision and enactment were susceptible to a declaration of invalidity even though they had been repealed.

He did not introduce the new argument to support the grant of the second declaratory order nor did he move us to substitute that order for the order of dismissal.

Per contra, counsel for the second respondent argued against the insertion of the words “where a cause of action arose before the repeal of” the impugned enactment, which appears in the first ground of appeal. He contended that it was improper for the appellant to introduce and raise for the first time on appeal an issue that had neither been pleaded in the founding affidavit nor argued in the court a quo.

He further contended, that, the attack on section 3(1) of the Electricity (Unpaid Bills, Prepayment Meters and Smart Meters) Regulations, S.I.44A of 2013 (the repealed enactment), in the founding affidavit, was premised on the misconception that the impugned enactment was still in existence. It was not based on the period when the cause of action arose.

He argued, strongly, that the repeal of the impugned enactment rendered the founding affidavit ineffectual.

Consequently, the court a quo was correct to find the application to declare section 3(1) of the Electricity (Unpaid Bills, Prepayment Meters and Smart Meters) Regulations, S.I.44A of 2013 invalid to be incompetent.

He also argued, that, the introduction of the “live” consequences of the repealed enactment was a new submission un-supported by the cause of action pleaded in the founding affidavit and the evidence on record.

Counsel for the first respondent appeared before us. Apparently, the first respondent was served with the notice of set down by the Registrar and subsequently timeously filed his heads of argument.

We indulged him.

He contended, that, the relief sought by the appellant, after the repeal of the enactment, was an academic exercise. That, the retrospective declaration of invalidity of the repealed enactment was moot as the issue was no longer alive.

It was his further contention, that, the appeal constituted a classic search for a legal opinion on an abstract or academic issue that did not have any practical relevance to the parties.

THE LAW

It has been stated, in a number of judgments of this Court, that an application stands or falls on its founding affidavit.

In Muchini v Adams & Ors SC47-13…, ZIYAMBI JA pertinently observed that:

“It is trite that an application stands or falls on the averments made in the founding affidavit: see HERBSTEIN & Van WINSEN, the Civil Practice of the Superior Courts in South Africa 3rd ed p80 where the authors state:

“The general rule, however, which has been laid down repeatedly, is that an applicant must stand or fall by his founding affidavit and the facts alleged therein, and that, although sometimes it is permissible to supplement the allegations contained in that affidavit, still, the main foundation of the application is the allegation of facts stated therein, because, these are the facts which the respondent is called upon either to affirm or deny. If the applicant merely sets out a skeleton case in his supporting affidavits any fortifying paragraphs in his replying affidavits will be struck out.”

The reason for the rule is that the founding affidavit constitutes the foundation of the applicant's case, which the respondent is called upon to admit or deny. The averments also delineate the parameters that bind the court in adjudicating the dispute between the parties.

In our law, a cause of action consists of all the facts upon which the relief sought is based.

In Patel v Controller of Customs and Excise 1982 (2) ZLR (HC) 82…, GUBBAY J…, stated that:

"In Controller of Customs v Guiffre 1971 (2) SA 81 (R) at 84A, BECK J, in Abrahamse & Sons v SA Railways and Harbours 1933 CPD 626 at 637 WATERMEYER J stated:

'The proper legal meaning of the expression 'cause of action' is the entire set of facts which gives rise to an enforceable claim and includes every act which is material to be proved to entitle a plaintiff to succeed in his claim. It includes all that a plaintiff must set out in his declaration in order to disclose a cause of action. Such cause of action does not 'arise' or 'accrue' until the occurrence of the last of such facts, and, consequently, the last of such facts is sometimes loosely spoken of as the cause of action: see HALSBURY, Vol 1, sec 3, and the cases there cited.'”…,.

To the same effect is Peebles v Dairiboard (Private) Limited 1999 (1) ZLR 41 (H)…, where MALABA J…, defined it as follows:

“A cause of action is defined by LORD ESHER, in Reed v Brown (188) 22 QB 131, as, every fact which it would be necessary for the plaintiff to prove if transversed in order to support his right to judgment of the court. In the same case, LORD FRY, at 132-133, said the phrase meant everything, which, if not proved, gives the defendant an immediate right to judgment. In Letang v Cooper [1965] 1 QB 232 at 242-3 DIPLOCK LJ (as he then was) said a cause of action is simply a factual situation the existence of which entitled one person to obtain from the court a remedy against another person.”

There is a further principle that is aligned to the abiding nature of a founding affidavit and cause of action. It is, that, an Appeal Court will generally not entertain a new issue that is raised on appeal for the first time.

This principle was affirmed by GUVAVA JA in Bakari v Total Zimbabwe (Pvt) Ltd SC21-19…, in these words:

“In any event, as evidenced in the judgment of the court a quo, the issue of novation did not arise before the court a quo. The appellant sought to raise it for the first time on appeal.

In respect to raising issues for the first time on appeal, CHIDYAUSIKU CJ in Austerlands (Pvt) Ltd v Trade and Investment Bank Ltd and Ors SC80-06 stated as follows:

'The general rule, as I understand it, is that a question of law may be advanced, for the first time, on appeal, if its consideration then involves no unfairness to the party at whom it is directed: see Estate Lala v Mohamed 1994 AD 324.

The principles applicable to the raising of a point of law for the first time on appeal were succinctly set out by KRIEGLER in the case of Donelly v Barclays National Bank Ltd 1990 (1) SA 375 at 380H-381B, where the learned judge had this to say:

'…, generally speaking, a Court of Appeal will not entertain a point not raised in the court below and especially one raised on the pleadings in the court below. In this regard, I need do no more than refer to HERBSTEIN and Van WINSEN, The Civil Practice of the Superior Courts in South Africa 3ed at 736-737. In principle, a Court of Appeal is disinclined to allow a point to be raised for the first time before it. Generally, it will decline to do so unless;

1. The point is covered by the pleadings;

2. There would be no unfairness on the other party;

3. The facts are common cause or well-nigh incontrovertible; and

4. There is no ground for thinking that other or further evidence would have been produced that could have affected the point.”

The statutory provisions that are relevant to the determination of this matter are section 3(1) of the Electricity (Unpaid Bills, Prepayment Meters and Smart Meters) Regulations, SI44A of 2013 (the impugned provision), section 14 of the High Court Act [Chapter 7:14] and section 17(1) of the Interpretation Act [Chapter 1:01].

Section 3 of the Electricity (Unpaid Bills, Prepayment Meters and Smart Meters) Regulations, S.I.44A of 2013 reads:

“(1) Any electricity charges outstanding on the date on which a prepaid meter is installed shall be debts of the property in which that prepaid meter was installed and shall be reflected as a debit in the installed prepaid meter.

(2) Any person who owns the property upon which the prepaid meter has been installed has the right to recover the debts of the property from any person who is responsible for incurring the debts.

(3) An owner of a property may enter into an agreement with any person who intends to occupy the property regarding the manner in which they will make payments towards the unpaid bill in the prepaid meter.”

Section 14 of the High Court Act [Chapter 7:14] provides as follows:

“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.”

The meaning of this section was authoritatively determined in Johnsen v Agricultural Finance Corporation 1995 (1) ZLR 65 (S)…, where GUBBAY CJ said that:

“The condition precedent to the grant of a declaratory order under section 14 of the High Court of Zimbabwe Act, 1981 is that the applicant must be an 'interested person' in the sense of having a direct and substantial interest in the subject matter of the suit which could be prejudicially affected by the judgment of the court. The interest must concern an existing, future, or contingent right. The court will not decide abstract, academic or hypothetical questions unrelated thereto. But, the presence of an actual dispute or controversy between the parties interested is not a pre-requisite to the exercise of jurisdiction.”

Lastly, section 17 of the Interpretation Act [Chapter 1:01] states that:

“17 Effect of Repeal of Enactment

(1) Where an enactment repeals another enactment, the repeal shall not —

(a) Revive anything not in force or existing at the time at which the repeal takes effect; or

(b) Affect the previous operation of any enactment repealed or anything duly done or suffered under the enactment so repealed; or

(c) Affect any right, privilege, obligation or liability acquired, accrued or incurred under the enactment so repealed; or

(d)…,.

(e) Affect any…, legal proceeding or remedy in respect of any such right, privilege, obligation…, and any such…, legal proceeding or remedy shall be exercisable, continued, or enforced…, as if the enactment had not been so repealed.”

This section preserves the effects of a repealed enactment.

These include any accrued rights and privileges and any incurred obligations and liabilities and any pending legal proceedings and consequential remedies.

The above section first appeared in our statute book as section 12 of the Interpretation Act 1954. It was re-enacted as section 15 of the Interpretation Act [Chapter 1] before its transmutation in the Revised Ed of 1996 to the Interpretation Act [Chapter 1:01].

The meaning, purpose, and application of this provision, in this jurisdiction, was enunciated by the majority decision of the Federal Supreme Court of Rhodesia and Nyasaland in Ranger v Greenfield NO & Anor 1963 (2) SA 207 (FC); Zimbabwe Township Developers (Pvt) Ltd v Lou's Shoes (Pvt) Ltd 1983 (2) ZLR 376 (S)…,.

In Zimbabwe Township Developers (Pvt) Ltd v Lou's Shoes (Pvt) Ltd 1983 (2) ZLR 376 (S)…, GEORGES CJ outlined the history and pronounced the purpose of the provision. He said:

“An examination of the history of section 11 of the English Interpretation Act, which is in language very similar to our section 15, confirms this.

Prior to that enactment, the common law was that, if an Act of Parliament which repealed former statutes was itself repealed by an Act which contained nothing indicating that the former laws should continue repealed, the former laws, would by implication, be revived by the repeal of the repealing statute - Tattle v Grimwood (1826) 3 Bing 493 at 496. Further, in In Re Mexican and South B American Co (1859) 4 De G J 544 at 557 it was stated to be clear, that, where an Act of Parliament was repealed it had to be considered, except as regards transactions past and closed, as if it had never existed.

The English Interpretation Act changed that inconvenient situation.”

It is plain from the above quotation that the purpose behind the promulgation of section 17(1)(a) of the Interpretation Act was to prevent the revival of the legal position that existed before the promulgation of the repealed enactment. In other words, the repeal of the substituting enactment could not result in the retrospective revival of the legal position that preceded it. Such a repeal could only have prospective application. That is what the words “revive anything not in force or existing at the time at which the repeal takes effect” have been construed to mean.

Paragraph (b) of section 17(1) of the Interpretation Act means, that, the repeal of an enactment does not affect the validity of the actions taken and obligations suffered during the time the enactment was in force.

The import of both paragraphs (a) and (b) of section 17(1) of the Interpretation Act, is, therefore, that, the repeal does not revive a right that has been extinguished nor extinguish the validity of the past rights and obligations that were exercised during the time the enactment was in force: see Zimbabwe Township Developers (Pvt) Ltd v Lou's Shoes (Pvt) Ltd 1983 (2) ZLR 376 (S)…,.

In my view, while paragraph (c) has been the hot subject of construction in past court decisions in this and other jurisdictions, I venture to add, that, the same meaning applies to paragraph (e) of section 17(1) of the Interpretation Act. This is because the two paragraphs, although they apply to different circumstances, serve the same purpose.

The first warning shot, on the meaning of the English equivalent of this paragraph was fired by LORD HERSCHELL in Abbott v Minister of Lands (1895) A.C. 425…,. He said:

“It has been very common, in the case of repealing statutes, to save all rights accrued. If it were held, that, the effect of this was to leave open to anyone who could have taken advantage of any of the repealed enactments still to take advantage of them, the result would be very far-reaching.

It may be, as WINDEYER J observes, that, the power to take advantage of an enactment may, without impropriety, be termed a 'right': but, the question is whether it is a 'right accrued' within the meaning of the enactment which has to be construed.

Their Lordships think not, and they are confirmed in this opinion by the fact that the words relied on are found in conjunction with the words 'obligations incurred or imposed'. They think that the mere right (assuming it to be properly so called) existing in the members of the community or any class of them to take advantage of an enactment, without any act done by an individual towards availing himself of that right, cannot properly be deemed a 'right accrued' within the meaning of the enactment.”…,.

LORD HERSCHELL, therefore, held, that, a right could only accrue to a beneficiary who would have asserted that right before the repeal of the enactment that embodied such a right.

The claimant was required to establish some positive individual effort or action towards invoking the latent right before it could be found to have been acquired or accrued. This is because, all the words accompanying “accrued” in the paragraph connote positive action and not passive absorption.

The above cited passage was cited with approval by the Privy Council in Director of Public Works v Ho Po Sang 1961 (2) A.E.R. 721…,.

The LORD HERSCHELL formulation was adopted lock, stock, and barrel by the South African Courts in construing the analogous section 1 of their Interpretation Act (Act 30 of 1906), and its subsequent promulgations in Mahomed v Union Government (Minister of the Interior) 1911 AD 1…, and Rustenburg Platinum Mines Ltd v Motletlegi 1954 (2) SA 597 (T)…,.

In Mahomed v Union Government (Minister of the Interior) 1911 AD 1, INNES JA pertinently remarked that:

“Turning now to the section, it is clear that the rights and privileges intended to be kept alive were rights and privileges acquired under the repealed Act; because, it was only with the effect of the second Act upon the first that the section was concerned. Now, a right or privilege could only be acquired under the Act of 1902 if it was given by the Act, and, if the beneficiary had duly availed himself of the statutory provisions. A thing acquired under an Act must necessarily be conferred by the Act; it must be something which, but for the passing of the measure, the beneficiary would not have been entitled to.”…,.

In Zimbabwe, CONROY CJ (NR) with whom FORBES FJ concurred, in Ranger v Greenfield NO & Anor 1963 (2) SA 207 (FC)…, adopted, wholesale, the meaning of section 12(1)(c) (the precursor to our section 17(1)(c)) given by LORD HERSCHELL.

In so doing, they were following upon the footsteps of CLAYDEN J, in Midgley v Gelman 1956 R & N 684…,.

The learned CHIEF JUSTICE stated, at 219H, that:

“In Moakes v Blackwell Colliery Co. Ltd H 1925 (2) KB 64 at p.70, SCRUTTON LJ, points out, that, when an Act contains a provision which alters the provision of a previous Act, it repeals that provision. This case would therefore appear to be authority for the proposition, that, section 12(1)(c) applies not only to a repealing Act, but also to a repealing and replacing Act….,. The provisions of section 12 are similar to those of section 38 of the Interpretation Act 1889 of the Imperial Parliament.”

And concluded, at 221D, that:

“I come, therefore, to the conclusion that the applicant did acquire a right, or that a right had accrued to the applicant, not to be deemed a prohibited immigrant, by virtue of the provisions of section 12 of the Interpretation Act 1954.”

On the facts of that case, and in consideration of the repealed and repealing enactments, he held, at 222B-D, that, although Ranger had acquired domicile by demonstrable active steps before the promulgation of the repealing enactment, his right had, on “the only reasonable interpretation to be put upon the new legislation” been taken away by the deliberate intention and object of the repealing enactment to ouster section 12(1)(c) of the Interpretation Act.

I derive two legal principles from Ranger v Greenfield NO & Anor 1963 (2) SA 207 (FC) that are relevant to the determination of the present appeal:

(i) The first is that the rights preserved under section 17(1)(c) of the Interpretation Act only accrue if they are actively exercised before the repository enactment is repealed.

(ii) The second…, is that the cause of action for the beneficiary is invoked at the time “any legal proceeding” is instituted.

Lastly, in Chivore v Vainona Primary School Parents Association 1992 (1) ZLR 322 (S), a parent challenged the retrospective invocation of a provision in a repealed enactment that had not been re-enacted in the repealing enactment.

The ratio decidendi of GUBBAY CJ…, was that the non-retention of the repealed provision was irrelevant. This was because a new section, which preserved the agreement that preceded the repeal, had been inserted in the repealing enactment. That section vested in the Minister the unfettered power to consummate an agreement similar to the one under attack.

In the alternative, in remarks that can only be obiter dictum, the learned Chief Justice opined, that, the right to raise levies had become vested, and was therefore safeguarded at the date of the repeal by section 15(1)(c) of the Interpretation Act.

The obiter dictum was based on Craies on Statute Law, 17th ed…, where the learned authors say:

“If a right has once been acquired by virtue of some statute, it will not be taken away by the repeal of the statute under which it was acquired. 'The law itself, says PUPENDORF, in his Law of Nature and Nations, Bk 1, c6, s6 'may be disannulled by the author, but, the right acquired by virtue of that law whilst in force must still remain; for, together with a law, to take away all its precedent effects would be a high piece of injustice.'”…,.

Regrettably, the persuasive force of the obiter dictum is undermined by two factors:

(i) The first is that the facts of the case do not disclose whether or not the Parents Association raised the levies before or after the date of the amendment.

(ii) The second is that the learned CHIEF JUSTICE did not interrogate the meaning of “acquired” posited in the academic works of PUPENDORF and the authors of Craies on Statute Law. This could have been for the obvious reason that the highly persuasive precedent of Ranger v Greenfield NO & Anor 1963 (2) SA 207 (FC) was never brought to his attention.

ANALYSIS OF THE ARGUMENTS

In his foundational document, the appellant nailed the colours of his case on the mast of the declaration of invalidity of section 3(1) of the Electricity (Unpaid Bills, Prepayment Meters and Smart Meters) Regulations, SI44A of 2013 (the repealed enactment).

His claim was not premised upon the ongoing effects of the repealed enactment.

He could, therefore, not rely on the declaration of invalidity against section 3(1) of the Electricity (Unpaid Bills, Prepayment Meters and Smart Meters) Regulations, S.I.44A of 2013 to obtain the second relief sought.

Nor could he rely on a ground of appeal he did not plead or argue in the court a quo.

The issue pertaining to the crystallization of his cause of action pre-dating the repealing enactment was a new issue that he did not plead in his founding affidavit or argue during the trial.

On the authority of Bakari v Total Zimbabwe (Pvt) Ltd SC21-19, and the cases cited therein, the appellant was precluded from raising this issue on appeal.

The failure to plead and argue it a quo was unfair and prejudicial to the respondent especially in the light of the two propositions that arise from Ranger v Greenfield NO & Anor 1963 (2) SA 207 (FC).

The appellant did not demonstrate, in his founding affidavit, that he had asserted and therefore acquired or accrued any rights to sue the respondents from the repealed enactment.

In addition, it is a condition precedent to the exercise of the High Court's discretion to invoke the provisions of section 14 of the High Court Act for an applicant for a declarator to demonstrate that the section or enactment that he seeks to annul is extant.

A dis-annulled enactment is, for all intents and purposes, dead. It cannot be resurrected.

In my estimation, it cannot even be revived by the continuing effects preserved by section 17(1)(c) of the Interpretation Act.

Those continuing effects, may, however, be dis-annulled on proof that they were rights or obligations acquired or accrued from the repealed enactment.

The appellant woefully failed to plead a proper cause of action that would entitle him to the relief he sought a quo.

It is for these reasons, that, I hold that the findings of the court a quo are unassailable.

Accordingly, the contentions advanced by counsel for the appellant, in respect of the first ground and the kindred alternative second ground of appeal, were misconceived. They are devoid of merit and ought to be dismissed.

COSTS

The second respondent sought costs on the legal practitioner and client scale while the first respondent prayed for ordinary costs.

Costs are always in the discretion of the court.

I am satisfied, that, the appeal was irredeemable. It did not raise any important legal issues. It must have been apparent to the appellant that his appeal was un-meritorious. It is axiomatic that one cannot flog a dead horse to life. The appeal was merely intended to harass the respondents. It, therefore constituted an abuse of the appeal process.

I am satisfied that this is a proper appeal for mulcting the appellant with costs on the higher scale as prayed for by the second responent.

It does not appear proper to me to award the first respondent, who really had no right of audience before this court, any order of costs.

DISPOSITION

The appellant could not properly seek a declarator against a repealed enactment. He could seek such a declarator against the continuing effects arising from the rights or obligations accrued or acquired or imposed by the dis-annulled enactment. He could not do so by predicating such relief on a defective cause of action for the disannulment of a repealed enactment.

The case of Ranger v Greenfield NO & Anor 1963 (2) SA 207 (FC) and not Chivore v Vainona Primary School Parents Association 1992 (1) ZLR 322 (S) properly defines the stage at which a right or obligation accrues under section 17(1)(c) of the Interpretation Act [Chapter 1:01].

It accrues only when the beneficiary takes active steps to assert the right or obligation before the repeal of the Act and is preserved if the repealing Act does not, in context, oust the provisions of section 17(1)(c) of the Interpretation Act.

The appellant failed to discharge the onus, on a balance of probabilities, of his entitlement to the declarator that he sought a quo and on appeal.

Accordingly, it is ordered that:

1. The appeal be and is hereby dismissed.

2. The appellant shall pay the costs of appeal of the second respondent on the scale of legal practitioner and client.

HB28-15 : SIMELENI DUBE vs CHRISTOPHER DUBE
Ruled By: MAKONESE J

This application has been brought to court in terms of the provisions of Order 11 Rule 75(1) of the High Court Rules 1971 for the dismissal of claims filed by the respondent in an action under case number HC568/13.

The applicant contends, that, the respondent's claims are frivolous and vexatious.

The application is opposed by the respondent who forcefully argued, through his legal counsel, that the application for dismissal is misguided and an abuse of court process.

Background

The parties were married to each other in terms of the Marriage Act [Chapter 5:11]. The marriage was terminated by order of this court on 28 June 2012.

The respondent was in default.

Both parties reside in the United Kingdom, having left Zimbabwe almost a decade ago.

The terms of the divorce order were as follows:

“1. A decree of divorce be and is hereby granted.

2. Custody of the minor child, namely, Thabiso Dube (male) born on the 22 May 1995 be awarded to the plaintiff with the defendant enjoying access to the child.

3. An order for maintenance at £200 per month.

4. Plaintiff be awarded the following property as her sole and exclusive property:

Wall Unit, plants and ornaments, 2 piece sofas, TV stand, desktop computer, computer table, canon printer, fridge, 4 plate stove, ST Joseph stand and shops (plus movables thereat).

5. Defendant be and is hereby awarded as his sole and exclusive property and the movable assets at the Parklands home, specifically the following:

Double door fridge, 4 plate stove, six kitchen chairs and table, microwave, kitchen utensils, dining room suite, lounge suite, glass TV stand, 2 TVs, sharp radio, phone table, 3 beds, 2 bedroom suites, chest of drawers, dressing table and stool, curtains, Gwanda homestead (plus household goods thereat and livestock).

6. An order that the matrimonial home, being number 16, St David's Road, Parklands, Bulawayo, be sold by the plaintiff or her lawful agents and the proceeds of the sale be shared equally between the parties.

7.1 For the purposes of sale and transfer of the matrimonial home to the successful purchaser, the plaintiff be and is hereby authorized to nominate the conveyancer to attend to such transfer and the Deputy Sheriff, Bulawayo be and is hereby authorized and directed to sign all transfer documents vide the defendant.

7.2 No order as to costs.”

On 1 March 2013, the respondent filed an action in this court seeking the following relief:

“An order directing defendant to deliver all movable assets awarded to the plaintiff by the High Court in case number HC3446/11 housed at number 16 St Davids Road Parklands, Bulawayo, which assets the defendant unlawfully and wrongfully caused to be removed therefrom during the period extending from June 2012 to an unknown date, or, alternatively, failing such delivery payment of the value of the assets in the sum of US$22,960=.”

In paragraph 4 of his Declaration, the plaintiff states as follows:

“Paragraph 5 of the divorce order between the parties awarded the defendant all assets at the Parklands home of the parties including the movable assets listed in Annexure 'A' hereto.”

I note that Annexure “A” referred to in paragraph 4 of the Declaration is in effect the Order for divorce issued by the court on 28 June 2012.

The plaintiff then remarkably claims, in paragraph 5 of his Declaration, that:

“In addition to the assets named in paragraph 5 of Annexure 'A' the parties had also acquired the assets listed in Annexure 'B' attached hereto.”

What is of serious concern is that Annexure “B” is a two page long list of items of property not included or referred to in the original divorce order.

The respondent alleges these assets were acquired by the parties during the course of the marriage.

It is clear that paragraph 5 of the Declaration contradicts the order sought by the plaintiff.

The clear intention of the respondent can only be to mislead the court, because, in the summons, the plaintiff (respondent) in this matter purports to claim the assets (or the values thereof) which were awarded to him in terms of the divorce order.

This is in fact not the case.

The plaintiff is attempting to revisit the distribution of matrimonial assets via the back door. This cannot be proper. The assets have clearly been overvalued so that they equate to US$22,960=, an amount which the applicant claims will wipe out her half share in the sale of the matrimonial house as ordered by the court.

The Legal Position

The respondent is not the owner of the assets listed in Annexure “B” of the summons. The said assets are supposed to be matrimonial property, or assets of the spouses, as defined in section 7(a) of the Matrimonial Causes Act [Chapter 5:13].

It is settled law, that, matrimonial assets can only be dealt with in an action for divorce, judicial separation, or nullity of marriage in terms of section 2(1) of the Matrimonial Causes Act which states as follows:

“Action for divorce, judicial separation or nullity or marriage means an action by which a decree of divorce, judicial separation, or nullity of marriage or other relief in connection therewith is applied for…,.”

In this matter, the established facts are that the parties were divorced by an order of this court granted on 28 June 2012. The divorce order was granted in default of the respondent.

If the respondent was aggrieved with the terms of the divorce order, he should have applied for an order rescinding the judgment of the court in order to obtain what he may have considered to be a just and equitable distribution in terms of section 7(1)(a) of the Matrimonial Causes Act which provides as follows:

“7(1) Subject to this section, in granting a decree of divorce, judicial separation, or nullity of marriage, or, at any time thereafter, an appropriate court may make an order with regard to -

(a) The division, apportionment or distribution of the assets of the spouses, including an order that any asset be transferred from one spouse to the other;”

It is my view, that, the respondent's claim, in the main action, should have been dealt with as a matrimonial action in terms of the Matrimonial Causes Act.

The respondent's claims, as presently framed, are bad at law to the extent that they are frivolous and vexatious.

Rule 75(1) of the High Court Rules is designed to assist a defendant by enabling him to apply to court to dismiss a frivolous and vexatious action.

Such an application is the converse of an application for summary judgment and much the same considerations apply, namely, whether the plaintiff has an arguable case. The court will not dismiss an action under this Rule unless satisfied that the likelihood of the case succeeding stands outside the realm of probability altogether.

An action is deemed vexatious if it is impossible to succeed.

See the case of Wood NO v Edwards 1986 (2) RLR 212 and the case of Rogers v Rogers and Another 2008 (1) ZLR 330.

In Rogers v Rogers and Another 2008 (1) ZLR 330 MALABA JA had this to say…,;

“Summary dismissal of an action, in terms of Rule 79(2) of the Rules, is an extraordinary remedy to be granted in exceptional cases. The reason is that granting the remedy has the effect of interfering with the elementary right of free access to the court. The object of the Rule is to enable the court to stop an action which should not have been launched.”

The learned Judge went on to state as follows:

“It appears to me, that, a plaintiff who commences action in a court of law when he has no reasonable grounds to do so has no cause of action. An action without a good cause of action is obviously unsustainable.”

In casu, I am satisfied, that, when the respondent commenced legal proceedings in the manner he did, under case number HC568/13, he knew that he was misleading the court. At the very least, he was aware that the property that he was seeking to obtain through legal process was property that fell outside the initial order of divorce. The respondent was clearly aware, that, if he sought to rescind the default judgment he could do so and invoke the provisions of the Matrimonial Causes Act for an equitable distribution of assets. He elected, however, to proceed on facts that sought to mislead.

The conduct of the respondent, in my view, amounts to abuse of court process. The applicant is entitled to costs in a higher scale.

In the circumstances, I make the following order:

1. The action filed under case number HC568/13 be and is hereby dismissed on the ground that it is frivolous and vexatious.

2. Judgment of absolution from the instance is hereby granted.

3. Respondent is ordered to pay costs on the legal practitioner and client scale.

SC116-21 : ALFRED MWAZHA and OTHERS vs ERNEST MHAMBARE
Ruled By: MAVANGIRA JA, UCHENA JA and CHIWESHE JA

This is an appeal against the whole judgment of the High Court sitting at Harare granting a declaratur in favour of the respondent.

The judgment appealed against set aside the nomination of the first appellant (Alfred Mwazha) as successor to the Archbishop Ernest Paul Mamvura Mwazha, the head of the tenth appellant (African Apostolic Church), and, resultantly, proceeded to set aside as null and void any decisions or actions taken by the first appellant as Archbishop of the tenth appellant.

It also directed the tenth appellant's Priesthood Council to convene and nominate a successor to the Archbishop.

FACTUAL BACKGROUND

The first to ninth appellants (Alfred Mwazha, Ngoni Mwazha, Masimba Mwazha, James Mwazha, Richard Juru, Elson Tafa, Charles Tekeshe, Lovemore Mharadze and Norman Siyamuzhombwe) and the respondent (Ernest Mhambare) are all senior members of the tenth appellant (“the Church”).

The tenth appellant (African Apostolic Church) is a voluntary association of members of a church whose main objective is to hold the faith of Jesus Christ and to act in accordance with its doctrines. The Church operates as a universitas under the provisions of its Constitution.

It is led by Archbishop Ernest Paul Mamvura Mwazha.

The Archbishop is 102 years old and is perceived, by some Church members, as being afflicted with dementia, and, for that reason, no longer competent to lead the Church.

The supreme governing organs of the Church are established under Article 9 of its Constitution. The office of the Archbishop is provided for under Articles 9.2 and 9.2.1 which articles read as follows:

“9.2 Office of the Archbishop

9.2.1 Archbishop Ernest Paul Mamvura Mwazha is the permanent head of the African Apostolic Church (VaApostora veAfrica) and has the final say on all church matters relating to succession.

9.2.2 In the absence of Archbishop Ernest Paul Mamvura Mwazha by apology, illness, or death, a council of Bishops (hereinafter referred as the Priesthood Council), constituted by the biological sons of Archbishop Paul Mwazha, who are bishops, shall preside on his behalf, with the full Delegated Authority, of the Archbishop. Binding decisions made by this Priesthood Council shall only be by a unanimous vote (not Majority Vote) of a full council sitting.”

From the foregoing, it is clear, that, a would-be successor to the office of Archbishop must satisfy either of the two conditions:

(i) The blessing or approval of the incumbent Archbishop; or, alternatively

(ii) Should the Archbishop be incapacitated, the unanimous vote of a full Priesthood Council meeting.

It is common cause, that, on account of his age and infirmity, the Archbishop is unable to physically attend to the day to day business of the Church. He has, consequently, delegated some of his functions to his bishops who are his biological sons.

A debate has now arisen within the Church as to who his successor should be in the event of his demise.

The first appellant (Alfred Mwazha) has taken centre stage in the race to succeed the Archbishop. He relies, in this regard, on a note handwritten by the Archbishop's aide, one Evangelist Kasema, the contents of which were, according to Kasema, dictated to him by the Archbishop himself.

The first appellant contends, that, this handwritten note is the vehicle through which the Archbishop has appointed him as his successor. He has publicly announced himself, on the basis of that note, as the successor to the Archbishop and has purported to have taken over the reins of the Church. He is fervently supported in that regard by the second to ninth appellants (Ngoni Mwazha, Masimba Mwazha, James Mwazha, Richard Juru, Elson Tafa, Charles Tekeshe, Lovemore Mharadze and Norman Siyamuzhombwe).

Being of the firm belief and conviction that the conduct and actions of the first appellant amount to a usurpation of the powers and position of the Archbishop, and that such conduct was in violation of the Church's constitution, specifically Article 9 thereof, the respondent (Ernest Mhambare), who is a reverend of the tenth appellant (African Apostolic Church), approached the court a quo seeking a declaratur in the following terms:

“IT IS ORDERED THAT:

1. The purported appointment of the 1st respondent, as the Archbishop of the African Apostolic Faith (Vaapostora VeAfrica), was unconstitutional therefore null and void.

2. All appointments and/or re-assignments and actions of the 1st respondent, in his purported capacity as Archbishop, were unconstitutional and therefore null and void.

3. The respondents be and are hereby ordered to comply with Article 9.2.2 of the Constitution and convene a meeting of Bishops who constitute the Priesthood Council for the purpose of exercising the full delegated authority assigned to them by the Archbishop, in terms of the aforementioned article of the Constitution, within seven (7) days of the date of this order.

4. The 1st–9th respondents are ordered to pay the costs of this application on an attorney and client scale, jointly and severally, the one paying, the other to be absolved.”

The first appellant (Alfred Mwazha) vigorously opposed the granting of the application in the court a quo. He did so on two fronts:

(i) Firstly, he averred that he was duly appointed by the Archbishop to be his successor. The Archbishop so appointed him through the note written by the personal aide to the Archbishop. The contents of the note had been dictated by the Archbishop himself. He therefore argued, that, his appointment, as successor, was proper, valid, and in accordance with the provisions of Article 9.2.1 of the Constitution of the Church.

(ii) Secondly, he argued, that, the respondent (applicant in the court a quo), should have cited the Archbishop, a party that had a direct and substantial interest in the outcome of the matter. He contended, that, this non-joinder was fatal to the application as the participation of the Archbishop was indispensable to the resolution of the matter before the court a quo.

After hearing arguments, the court a quo found in favour of the respondent and ordered as follows:

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

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

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

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

Although the order of the court a quo departs from the exact wording of the relief sought by the applicant in the draft order, it does, in substance, grant the relief sought save for costs which it grants on the ordinary scale instead of the higher scale sought by the applicant.

Allegations by the appellants, that the court a quo granted relief not sought by the respondent, are not supported by the facts.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(ii) Secondly, that the relief sought is not the remedy for the injury alleged. In addition to that, the interim relief and the final relief that are being sought are identical.

Urgency

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

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

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

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

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

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

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

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

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

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

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

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

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

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

I find merit in the objection by the respondents.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The incident of 5 December 2020 is pertinent.

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

The matter cannot therefore be urgent.

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

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

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

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

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

The matter cannot therefore be urgent.

Repetitive and unsubstantiated generalized averments, that the applicant's and other church members constitutional rights have been violated, do not help the applicant's case.

The relief sought is not the remedy for the injury alleged: what is alleged is wrongful conduct of violence, disruption of church services, and alienation of church properties.

On this basis, the applicant is seeking leave to execute pending appeal.

It is the respondents contention, that, the relief being sought by the applicant is not the remedy for the injury or wrongful conduct alleged. Their argument is that the injury complained of does not arise from the inability to execute the judgment that was granted by CHITAPI J on 3 December 2020.

Counsel for the respondents submission was, that, if these allegations are proven, they would entitle the applicant to some other remedy, like an interdict, but, certainly not leave to execute pending appeal.

His argument was that the judgment that the applicant is seeking to execute pending appeal is centred on a succession dispute between the parties which emanated from the interpretation of a note the respondents are relying upon as the basis of the first respondent's appointment. He further submitted, that, the judgment had nothing to do with the anarchy that the applicant is now complaining of in the present application. He argued that the two disputes are different. As such, the applicant cannot seek to execute a judgment that was granted on a different cause of action on the basis of a different cause of action.

I am in agreement.

A judgment granted on a different cause cannot be executed on the basis of a different dispute.

In my discussion of the first point in limine, on urgency, I have already demonstrated, that, the wrongful conducts that necessitated the filing of the present application started as way back as October 2020 and continued after the judgment was delivered, before the appeal was noted.

The delivery of the judgment did not stop the anarchy.

The applicant did not, in his founding affidavit, explain how its execution pending appeal will stop the anarchy.

The judgment simply declared unconstitutional the purported appointment of the first respondent as the successor to the Archbishop. It nullified his appointment. It also nullified all appointments of personnel that he made in his purported position as Archbishop. The judgment further ordered the respondents to comply with the provisions of clause 9.2.2 of the tenth respondent's Constitution, for the Priesthood Council (a council of Bishops) to preside as the head of the church on behalf of the Archbishop.

If the judgment is executed, it will change the leadership of the church into a further dimension which is totally different from what is prevailing now and what was prevailing before the purported appointment of the first respondent. It is going to remove the first respondent from the position of Archbishop. At the same time, it is not going to restore Paul Mwazha as the Archbishop.

The question is: how is all of this going to resolve or stop the anarchy that has been ongoing since October 2020 - well before the judgment was delivered?

The applicant did not explain the link between the execution of the judgment pending appeal and the wrongful conduct complained of.

I am in agreement with the respondents that the two are divorced from each other. I will thus uphold the point in limine....,.

The two points in limine are interwoven as the second point in limine also determines whether or not the matter is urgent.

The applicant is seeking leave to execute judgment pending appeal, on an urgent basis, on the basis of a dispute that is different from the dispute that gave rise to the judgment. Clearly, the relief that he is seeking is not the remedy for the injury alleged.

In the circumstances, the matter cannot be urgent, even if it was timeously filed a few days after the appeal was noted. The relief sought is also an important consideration in determining whether or not the matter is urgent. If there is no link, whatsoever, between the injury complained of and the relief sought, as is the situation in casu, the matter cannot be urgent.

In the result, I make the determination, that, the matter is not urgent. It be and is hereby struck off the roll with costs.

Appealed
SC119-21 : MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS and OTHERS vs CONCILIA CHINANZVAVANA and THE NATIONAL PEACE AND RECONCILIATION COMMISSION
Ruled By: GWAUNZA DCJ, GUVAVA JA and BHUNU JA

This is an appeal against the entire judgment of the High Court sitting at Masvingo dated 13 March 2019. In this case, the court a quo granted a declaratory order sought by the first respondent in the following terms:

“The National Peace and Reconciliation Commission that is established in terms of section 251 of the Constitution shall have a tenure of life of ten (10) years deemed to have commenced on the 5th of January 2018 with the gazetting as law of the National Peace and Reconciliation Act [Chapter 10:32].”

Aggrieved by the order, the appellants (Minister of Justice, Legal and Parliamentary Affairs, President of the Republic of Zimbabwe, Vice President of the Republic of Zimbabwe and the Attorney General of Zimbabwe) have appealed to this court for relief.

BACKGROUND FACTS

The first respondent filed an application for a declaratory order on the 8th of October 2018, before the court a quo, in terms of section 85(1)(a) of the Constitution of Zimbabwe, 2013. The first respondent grounded her application on an alleged violation of section 56(1) of the Constitution of Zimbabwe 2013. She alleged that her fundamental right to equal protection of the law had been violated by the conduct of the appellants who had failed to enact the National Peace and Reconciliation Act (NPRC Act) in time and thus curtailed the life of the Commission by five years.

As a result of the alleged breach, she sought an order, that, it be declared that the second respondent's life tenure of ten years be deemed to have commenced from the 5th of January 2018 when the National Peace and Reconciliation Act (NPRC Act) was promulgated into law.

In the application, the first respondent's founding affidavit was divided into three parts:

(i) The first part related to the history and formation of the second respondent. The first respondent averred that the Constitution of Zimbabwe Amendment (No.20) Act 2013 ('the Constitution') introduced a number of key and revolutionary changes, chief amongst them being the creation of several Commissions. It was the first respondent's argument, that, the second respondent was one of the Commissions that was created. It was to operate for not more than ten years and had the mandate, in the main, of investigating human rights violations that were alleged to have occurred in 2008 in Zimbabwe.

The first respondent further averred, that, the Government of Zimbabwe had unilaterally amended section 251 of the Constitution by failing to ensure that the second respondent was established as soon as possible after the coming into operation of the Constitution thereby resulting in the Commission only being established after the National Peace and Reconciliation Act (NPRC Act) was enacted into law on the 5th of January 2018.

This was five (5) years after the coming into operation of the Constitution.

It was the first respondent's contention, that, this resulted in the second respondent having an existence of only five (5) years, that is, to August 2023. It was also the first respondent's averment that the failure by the Government of Zimbabwe to ensure that the effective date of the establishment of the second respondent, immediately after the coming into effect of the Constitution, amounted to a breach of her fundamental right to equal protection of the law as enshrined in the Constitution under section 56.

(ii) The second part of the founding affidavit dealt with the issue of whether or not the first respondent had locus standi to make the application and the legal basis upon which the application was before the court a quo.

The first respondent averred, that, she was a national executive member of the Movement for Democratic Change (MDC) Alliance for Mashonaland West. She further averred that she was making the application in terms of section 85(1)(a) of the Constitution, acting in her own interest, to ensure peace and reconciliation in Zimbabwe. She further alleged, that, her rights, in terms of section 56(1) of the Constitution, had been violated. She thus alleged that she had the requisite interest in the matter to bring the application in terms of section 85(1)(a) of the Constitution.

(iii) The last part of the founding affidavit dealt with an alleged ordeal that the first respondent and her family suffered in the hands of State security agents. She alleged that after the 2008 harmonized election, violence erupted in Zimbabwe and left many (including the first respondent and her family) displaced or dead. As a result of this violence, the first respondent and her husband allegedly fled from their home in Mashonaland West to Harare and stayed at Harvest House and at other MDC Alliance activists homes. The first respondent further alleged, that, she and her husband and other MDC activists were taken to Braeside Police Station and were detained for fifty-five (55) days. It was in the hands of the said police officers that the first respondent, her husband, and other activists were subjected to torture and abuse.

The first respondent further alleged, that, they were subsequently taken to Ahmed House where they were charged with terrorism, sabotage, and insurgence. The first respondent, and others, were taken to Harare Magistrates Court where they were remanded in custody. It was also alleged that the first respondent, her husband, and other activists were released after one Jestina Mukoko successfully filed an application to the Constitutional Court and the Court ordered that they be released as their original arrest was unlawful.

It was on this basis that the first respondent sought a declaratory order that the second respondent has life tenure with effect from 5 January 2018 to 5 January 2028 so that it could look into the alleged atrocities alleged in the founding affidavit.

Initially, the appellants had only opposed the application based on a preliminary objection to the application without addressing the merits of the matter. The objection was to the effect that the declaratory order sought by the first respondent was incompetent at law as she sought to amend the Constitution through a court order.

The court a quo however directed the appellants to file an opposing affidavit on the merits.

In opposing the application, the appellants denied the averments made by the first respondent in her founding affidavit with regards to the establishment of the second respondent. Further, it was denied that the appellants amended section 251 of the Constitution as the second respondent was established and was in existence from the effective date when the Constitution was promulgated notwithstanding the absence of the National Peace and Reconciliation Act (NPRC Act).

In dealing with the application, the court a quo dismissed the appellants preliminary objection.

On the merits, the court invoked various techniques of statutory interpretation and found, that, an interpretation of section 251(1) of the Constitution showed that reference to ten (10) years was in relation to the life of the second respondent after the effective date and not the period within which it had to be established. With that, the court held that the second respondent ought to have been established immediately after, or as soon as practicable, after the effective date.

As a result of this interpretation, the court found that the first respondent was entitled to the declaratory order sought and granted the order that I have already set out above.

SUBMISSIONS BEFORE THIS COURT

Counsel for the appellants motivated the appeal, in the main, on the basis, that, the court a quo erred in granting the declaratory order as it had the effect of amending section 251(1) of the Constitution.

Before the first respondent replied to the submissions by counsel for the appellants, the Court directed counsel for the first respondent to address it on two issues that were not apparent from the judgment made by the court a quo:

(i) The first issue related to the manner in which the first respondent's right to equal protection of the law was violated.

(ii) Secondly, whether the court a quo made a determination, that such right was indeed violated or was in danger of being violated.

Counsel for the first respondent submitted, that, the first respondent made the application in terms of section 85(1)(a) of the Constitution on the basis that her fundamental right, in terms of section 56(1), had been violated. He further submitted, that, in making the application, the first respondent's right also emanated from section 324 of the Constitution, and, as such, the right had to be protected in terms of section 56(1).

He however conceded, that, the court a quo did not make a finding that the fundamental right had been violated.

He submitted that since the court had granted the declaratur sought, it could be assumed that the court had found that the first respondent's rights had been or were likely to be violated.

It was also his submission, that, once the court found that the appellant had acted unlawfully, then, it was incumbent upon the court to grant the declaratur as the court could not ignore a Constitutional invalidity in terms of section 324 of the Constitution.

Counsel for the first respondent further argued, that, the argument by the appellants, that the second respondent came into effect after the promulgation of the Constitution in 2013 was devoid of merit as such argument meant that the life period of the National Peace and Reconciliation Commission was curtailed by five (5) years.

ANALYSIS

It appears to me from the submissions made, that, the determination of a single issue will potentially have the effect of resolving the matter.

The issue for determination by this Court is whether or not the court a quo erred in granting the declaratory order sought by the first respondent without first finding whether or not the first respondent's rights, in terms of section 56(1) of the Constitution, had been violated.

It is quite apparent from the founding affidavit by the first respondent that she approached the court in terms of section 85(1) of the Constitution seeking a declaratory order on the basis that her constitutional right enshrined in section 56(1) had been violated.

At paragraph 26 of the founding affidavit, the applicant stated thus:

“I therefore contend that my Constitutional right to equal protection of the law, as protected by section 56(1) of the Constitution, has been breached by appellant's actions in failing to ensure that the Commission was in existence and would operate effectively for the ten (10) years envisaged in section 251 of the Constitution.”

At paragraph 78, the applicant again reiterates that she is bringing the application in terms of section 85(1)(a) of the Constitution on the basis that her rights under section 56(1) of the Constitution have been violated.

It is therefore necessary, at the outset, to establish whether or not the applicant approached the court correctly in terms of section 85(1)(a) and thereafter assess whether or not the court found that her rights had been violated.

Section 85(1) of the Constitution provides:

“Any of the following persons, namely:

(a) Any person acting in their own interests;

(b)…,.

(c)…,.

(d)…,.

(e)…,.
is entitled to approach a court, alleging that a fundamental right or freedom enshrined in this Chapter has been, is being or is likely to be infringed, and the court may grant appropriate relief, including a declaration of rights and an award of compensation.”…,.

A proper interpretation of the above provision is that once a person approaches a court, on the basis of section 85(1)(a) of the Constitution, the court must make a determination on the following issues:

(i) That the person approaching the court has an interest in the matter; and

(ii) That the person is alleging that a fundamental right in Chapter 4 has been, is being, or is likely to be violated in respect to her.

See Meda v Sibanda & Anor 2016 (2) ZLR 232 (CC)…,.

A reading of the judgment of the court a quo shows that the court did not make a determination on the above issues.

The court a quo clearly did not consider that the case before it was a section 85(1) application which required that the first respondent satisfies the court that she was properly before it and that she had the requisite interest.

This point was emphasized in Loveness Mudzuru & Anor v Minister of Justice, Legal & Parliamentary Affairs N.O. & 2 Ors CC12-15 where MALABA DCJ…, stated…, that:

“The person claiming the right to approach the court must show, on the facts, that he or she seeks to vindicate his or her own interest adversely affected by an infringement of a fundamental right or freedom. The infringement must be in relation to himself or herself as the victim or there must be harm or injury to his or her own interests arising directly from the infringement of a fundamental right or freedom of another person.”

On the basis of the above, I find, with respect, that the court a quo grossly misdirected itself in failing to consider the cause of action of the case that was before it.

The full judgment of the court a quo makes no reference at all to the basis upon which the application was made. There is no reference to the application being a section 85(1) application.

Instead, the court a quo launched into the rules of statutory interpretation without applying its mind to the case before it or making any specific finding of whether or not the applicant before it had the requisite interest to launch the application.

It is of importance to note, that, in her founding affidavit, the first respondent averred that her legal interest in bringing the application was founded on the basis of a violation of a fundamental right under section 56(1) of the Constitution.

It is trite that the interest that an applicant must allege in section 85 of the Constitution is a legal interest in the matter not just that of a busy body who wants to poke their nose into any matter that does not concern them.

I note, in passing, that, the court made no finding whether or not the first respondent was properly before it.

Turning to the crux of the matter before me: it is my view, that, the matter turns on a determination of whether or not the court made a finding that the first respondent's rights under section 56(1) had been violated.

It is trite, that, where a litigant approaches the court under section 85(1) of the Constitution, alleging that her rights have been violated, it is incumbent upon the court to make a determination on this point. In other words, a section 85(1) application requires the applicant to allege and prove an infringement of his or her fundamental right.

The making of such a determination is what triggers the remedy that the court will eventually make in order to grant relief to the applicant. In other words, a declaratory order made in terms of section 85(1) of the Constitution cannot be made in the air. It must be based upon a finding that the applicant's rights had been or were likely to be breached.

Section 56 of the Constitution, upon which the first respondent founded her claim, reads as follows:

“56 Equality and non-discrimination

(1) All persons are equal before the law and have the right to equal protection and benefit of the law.

(2) Women and men have the right to equal treatment, including the right to equal opportunities in political, economic, cultural, and social spheres.

(3) Every person has the right not to be treated in an unfairly discriminatory manner on such grounds as their nationality, race, colour, tribe, place of birth, ethnic or social origin, language, class, religious belief, political affiliation, opinion, custom, culture, sex, gender, marital status, age, pregnancy, disability or economic or social status, or whether they were born in or out of wedlock.

(4) A person is treated in a discriminatory manner for the purpose of subsection (3) if -

(a) They are subjected, directly or indirectly, to a condition, restriction, or disability to which other people are not subjected; or

(b) Other people are accorded, directly or indirectly, a privilege or advantage which they are not accorded.

(5) Discrimination, on any of the grounds listed in subsection (3), is unfair, unless, it is established that the discrimination is fair, reasonable, and justifiable in a democratic society based on openness, justice, human dignity, equality, and freedom.

(6) The State must take reasonable legislative and other measures to promote the achievement of equality and to protect or advance people or classes of people who have been disadvantaged by unfair discrimination; and —

(a) Such measures must be taken to redress circumstances of genuine need;

(b) No such measure is to be regarded as unfair for the purposes of subsection (3).”

Section 56 of the Constitution is a non-discriminatory provision. It guarantees equality before the law. In other words, for a person to prove a violation under this provision, he or she must not only prove unequal or different treatment but also that others in a similar position were afforded such protection.

In the case of Samuel Sipepa Moyo v Minister of Local Government, Rural & Urban Development & 2 Ors CC06-16, the court had reason to interpret the meaning and application of this provision. At p8 of the judgment, the court stated:

“In order to found his reliance on this provision, the applicant must show, that, by virtue of the application of a law, he has been the recipient of unequal treatment or protection; that is to say, that, certain persons have been afforded some protection or benefit by a law, which protection or benefit he has not been afforded; or that persons in the same or similar position as himself have been treated in a manner different from the treatment meted out to him and that he is entitled to the same or equal treatment as those persons.”

Applying the above to the facts of this case, I take the view, that, it was incumbent upon the first respondent to satisfy the court a quo that her rights had been or were in danger of being violated and that others in a similar position had been treated differently. The court a quo was thus obliged to interrogate the evidence presented a quo and make a specific finding that her rights, as enshrined in section 56(1), had been or were in danger of being violated.

It was only after making such a finding, that the court could make the order sought by the applicant before it on the basis that it was granting relief in terms of section 85 of the Constitution.

Firstly, the first respondent, in her founding affidavit, did not aver that she had suffered from unequal treatment or differentiation. She did not allege that she was denied protection whilst others in a similar position as her had been afforded such protection....,.

I was also not persuaded that the court a quo correctly applied section 324 of the Constitution on the facts of this case. The section provides as follows:

“All constitutional obligations must be performed diligently and without delay.”

I come to this conclusion because it was never the first respondent's case before the court a quo that she was approaching the court on the basis of constitutional invalidity arising from the conduct of Parliament in failing to enact the National Peace and Reconciliation Act (NPRC Act) with due speed.

If that was the first respondent's case, she would not have approached the court in terms of section 85 of the Constitution.

An application in terms of section 85(1) of the Constitution relates only to the vindication of an alleged infringement enshrined in Chapter 4 and not a violation of the Constitution under section 324 of the Constitution.

It has been stated in a number of judgments that an application stands or falls on its founding affidavit: see Yinus Ahmed v Docking Station Safaris (Private) Limited t/a CC Sales SC70-18; Fuyana v Moyo SC54-06; Muchini v Adams & Ors SC47-13; and Austerlands (Pvt) Ltd v Trade and Investment Bank Ltd & Ors SC80-06.

The first respondent's founding affidavit bases her claim on section 85(1) of the Constitution alleging a breach of a fundamental right. Her claim was not based on a failure to comply with a Constitutional provision as enshrined in section 324 of the Constitution.

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

I am also mindful of the fact that a provisional order can be varied as long as it does not depart from the gist of the application.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

They thus seek a provisional order in the following terms:

“TERMS OF THE FINAL ORDER SOUGHT

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

1. The application is hereby granted.

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

3. It be and is hereby declared that:

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

3.2 The deceased died intestate.

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

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

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

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

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

INTERIM RELIEF GRANTED

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

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

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

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

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

(2) The applicants are seeking to interdict conduct outside this court's jurisdiction specifically in Botswana and South Africa.

(3) The interim relief sought is incompetent because the Letters of Administration remain valid and the appointment of the first respondent, as executor, is valid as she has not been removed through an elaborate process set out in the Administration of Estates Act.

(4) The requirements of an interim interdict have not been met; and

(5) There is no competent cause of action.

In my view, points 3, 4 and 5 touch on the merits of the case...,.

On the merits, the first respondent made the following submissions:

The applicants participated fully and were legally represented in the process leading up to the meeting of the 25th of November 2020. They accepted the document freely and voluntarily. They worked well with the first respondent who has thus far managed to compile a comprehensive inventory as well as compiling a second interim liquidation and distribution account. The belated challenge to the Will is to evade or delay payment of estate liabilities.

She denied refusing to give a copy of the Will to the applicants as alleged.

The will was drafted as per the deceased's instructions and he only delayed in signing it. Unfortunately, he met his demise before he could sign.

The Lamborghini motor vehicle has not been disposed of.

Messrs Shomwe-Nyakuedzwa had requested release of the vehicle to their client and were advised to pay the estate liabilities for this particular bequest. This was complied with.

The first respondent initially approved release of the vehicle, but, upon realising that she had not advertised the interim account, she withdrew her consent to the release of the vehicle telephonically. The motor vehicle remains parked at the deceased's residence in Domboshava.

The first respondent explained, at length, the situation prevailing in Botswana including litigation commenced on her behalf - ostensibly to safeguard the interests of the deceased's estate. Contrary to the assertions by the applicants, she is recognised as the executrix in that country.

The applicants have various remedies at their disposal.

They have failed to meet the requirements of the granting of an interim interdict and the application should be dismissed with costs.

In their heads of arguments, the applicants made the following submissions:

The applicants have met all the requirements of an interim interdict. They have a substantial and real interest in the matter. The first respondent did not furnish the second respondent with monetary security for due administration of the estate. She unlawfully has accepted payment of liabilities for the estate based on an unconfirmed estate account. She has invited people to view an estate account in instances where she has not lodged any distribution account with the second respondent. The Will does not mention the name of Nomatter Zinyengere to whom the Lamborghini was bequeathed. The deceased's company, Quick Gases (Pvt) Ltd, in Botswana, is losing its market value.

The balance of convenience favours the applicants.

The second respondent admonished the first respondent over her behaviour but she has not done anything, especially in relation to the motor vehicle and the advertisements of the estate account in the Government Gazette and a newspaper. The law does not permit the first respondent to benefit from the estate, through appointment as an executor, in instances where she authored the Will.

The first respondent made the following submissions on the merits in her heads of argument:

The applicants have failed to meet the requirements for the granting of an interim interdict. The first respondent was lawfully appointed as executor with the consent of the applicants. The applicants did not appeal against the decision of the second respondent in accepting the unsigned document as a Will. There is no irreparable harm suffered because the Lamborghini motor vehicle is safely parked in Domboshava where the deceased used to reside. There is no evidence that the first respondent is disposing of assets of the estate. The applicants have not made a formal complaint to the second respondent that would trigger a process to have her removed as executor.

The balance of convenience favours the first respondent who has made significant progress in administering the estate both in Zimbabwe and Botswana.

The applicants have failed to exhaust their domestic remedies.

The well settled requirements for an interim interdict are as follows (see Setlogelo v Setlogelo 1914 AD 221…, which this jurisdiction has religiously followed):

(a) A prima facie right, though open to doubt;

(b) That 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 the right;

(c) The balance of convenience favours the granting of interim relief; and

(d) That the applicant has no other satisfactory remedy.

See also Cool v Minister of Justice 1955 (2) SA 682 (C)…,..

I find myself in a dilemma that courts often face in dealing with interim interdict applications. I am referring here to the danger of touching on the merits of a case that may unduly influence the outcome of the final order proceedings should the provisional order be granted.

I find comfort, however, in the fact that the right referred to is prima facie only.

I also take a cue from the decision in Document Support Centre (Pvt) Ltd v Mapuvire 2006 (2) 240 (H) in which MAKARAU J…, stated as follows:

“Without attempting to classify the causes of action that are incapable of redress by way of urgent application, it appears to me that the nature of the cause of action and the relief sought are important considerations in granting or denying urgent applications. It is therefore inevitable that the merits of the final order sought be considered.

It is my considered view, that, the basis of the whole matter revolves around the crucial issue of the acceptance of a document that did not meet all the formalities as specified in section 8(1)(a-d) of the Wills Act as the will of the deceased. These are writing, signing, and attestation.

Section 8(5) therefore becomes an exception to the norm in that it gives the 2nd respondent, the power to accept a document that does not meet some of the formalities.

That section, in my view, seeks to create a balance between being overly rigorous to the extent that it may prejudice beneficiaries in instances where it is clear that indeed the deceased wanted their estate to be dealt with in a particular manner but failed to comply fully with section 8(1) AND potential fraudulent documents being touted as wills: see Janda v Janda 1995 (1) ZLR 375 (S) and Mhango v Gunda HH147-2000.

Section 11 of the Administration of Estates Act [Chapter 6:01] allows the transmission of a purported will or codicil or other testamentary instrument to the second respondent or their assistant. That is why it is critical to conduct the two rung inquiry before accepting a document that does not meet all the formalities as a last will and testament: see Mujuru N.O. and Ors v The Master and Others HH112-08.”

The applicants have outlined the basis upon which they believe that the document presented is fake and should be nullified. They cannot be said to lack a cause of action. They have explained the circumstances that led them to go along with the document. The first respondent has also explained, in detail, circumstances surrounding the preparation and presentation of the document.

The acceptance of any document that does not meet all the requirements is not a walk in the park.

In my view, there are prima facie red flags in the document itself, processes, and manner leading to the acceptance of the document as a will that may result in a court sitting on review making a finding in favour of the applicants.

This is what I would refer to as 'live' issues that need to be considered.

The applicants, in other words, have a reasonably arguable case, prima facie, on review.

The question on review, in my view, must revolve around the circumstances leading to the writing of the document and whether or not a proper inquiry was conducted and the authenticity of the document. This must, of necessity, include the contents of the document itself.

The whole basis of the inquiry is to arrive at the truth and rule out fraud.

If the court, on the return date, finds in favour of the applicants, it follows that the deceased's estate must be wound up on the basis of intestate succession. If not, the document will continue standing as a Will of the deceased.

The first respondent, by her own admission, jumped the gun in authorising release of a Lamborghini in the absence of a proper liquidation and distribution account. In paragraph 13.2 of her opposing affidavit she takes full responsibility for her error.

The immediate question that arises is: what is the urgency that warrants dealing with the estate in a piecemeal manner - especially in the absence of a confirmed distribution account?

What influenced the first respondent to initially, as she claims, authorise the release of the vehicle and then turn around and say, without providing proof, that she then changed her mind?

The second respondent also took her to task over the manner in which she was administering the estate – see page 36 of the first applicant's founding affidavit being a letter from the second respondent. Part of the letter reads as follows;

“having gone through the file, we wish to advise that we have no interim account in the deceased estate record. Neither have we issued any document authorizing distribution of the estate to any individual at this stage.”

And yet, the first respondent went on to advertise the estate account as lying for inspection.

According to the applicants, the estate has liabilities, and, it is trite that an estate consists of assets and liabilities. A beneficiary only has a mere hope that the liabilities do not outweigh assets since they are supposed to be paid off first. That is why the law allows beneficiaries, in a co-ordinated manner, to contribute toward liabilities should they wish to preserve the value of the estate. This is in instances where liabilities outweigh assets.

In my view, the applicants cannot be faulted for holding the view that irreparable harm may result from the conduct of the first respondent.

Their apprehension in the face of the first respondent's admitted conduct is valid.

The unfiled second interim and distribution account and the un-filed executor's inventory reveals that there are many assets as well as liabilities in the estate.

Although, at law, a company is a separate legal persona, a deceased's shareholding in a company constitutes an asset.

Nothing is said in the two documents attached as annexure INV 4, by the first respondent, to her opposing affidavit relating to the companies or the trucks that are said to be in South Africa.

The estate of the deceased spans across three countries and there are different laws and processes in relation to the administration of deceased estates of a foreigner. That, by itself, may entail external conflict of laws.

The balance of convenience, in my view, favours the applicants who are beneficiaries.

Even if the court finds, on the return date, that, the document should be taken as a Will, their rights must be protected.

Contrary to the assertions by the first respondent, that the applicants should have appealed, the conduct complained of can only be addressed though a review and not an appeal.

The applicants have, therefore, in my view, satisfied the requirements for the granting of an interim interdict.

On costs, I do not see anything warranting the award of costs at this interim stage.

I am also mindful of the fact that a provisional order can be varied as long as it does not depart from the gist of the application.

The applicants have stated, that, they have been given up to the 31st of March 2021 by FNB Botswana to sort out the issues in relation to the first respondent's executorship. As stated already there is pending litigation in Botswana, by the first respondent, seeking, inter alia, that she be declared the legally nominated executor in the estate of the deceased.

This may entail having the return date expedited.

For the avoidance of doubt, the provisional order is granted with the interim relief varied as follows:

1. The first respondent be and is hereby interdicted from administering the estate of the late Genius Kadungure under DR No.1771/20.

2. The second respondent be and is hereby interdicted from accepting any process in relation to the administration of the estate of the late Genius Kadungure under DR No.1771/20 filed by or on behalf of the first respondent.

3. The first respondent be and is hereby interdicted from presenting the Letters of Administration issued to her in Zimbabwe under DR No.1771/20 to the Master of the High Court in the Republic of South Africa for purposes of the administration of the deceased's estate in relation to assets in that country.

4. The Registrar of the High Court of Zimbabwe at Harare is directed to expedite the return date hearing. The Registrar is directed to bring this judgment to the attention of the second respondent.

HH586-15 : TEMBA MLISWA vs THE CHAIRPERSON (ZEC) and ZIMBABWE ELECTORAL COMMISSION and OTHERS
Ruled By: UCHENA J

The applicant is an independent candidate for the Hurungwe West By-Election scheduled for 10 June 2015. He, by ordinary application, applied for an order suspending the holding of elections in Hurungwe West on 10 June 2015 due to alleged violence and intimidation.

In the alternative, he seeks orders compelling the first (Chairperson, Zimbabwe Electoral Commission), second (Zimbabwe Electoral Commission), fourth (Ignatious Chombo), and sixth to tenth respondents (Chief Nyamhunga, Chief Dandawa, Chief Nematombo, Chief Dendere and Headman Matau) to make statements through fliers and radio correcting the impression created by the third to tenth respondents (ZANU-PF, Ignatious Chombo, Keith Guzha, Chief Nyamhunga, Chief Dandawa, Chief Nematombo, Chief Dendere and Headman Matau) about how voters in the constituency shall go to the polls and vote on 10 June 2015.

The first respondent is the Chairperson of the Zimbabwe Electoral Commission to whom the applicant complained, by letters dated 12 and 14 May 2015, about the violence and intimidation which was being unleashed in Hurungwe West by the third to tenth respondents (ZANU-PF, Ignatious Chombo, Keith Guzha, Chief Nyamhunga, Chief Dandawa, Chief Nematombo, Chief Dendere and Headman Matau).

The second respondent is the Zimbabwe Electoral Commission.

The third respondent is Zimbabwe African National Union (Patriotic Front) ZANU-PF, a political party which fielded the fifth respondent (Keith Guzha) for the Hurungwe West by-election.

The fourth respondent (Ignatious Chombo) is the Secretary for Administration for the third respondent who is being sued in his personal capacity for inciting violence and intimidation in Hurungwe West Constituency.

The fifth respondent (Keith Guzha) is a contestant fielded by the third respondent for election as a Member of Parliament for Hurungwe West in the 10 June by-elections.

The sixth to tenth respondents (Chief Nyamhunga, Chief Dandawa, Chief Nematombo, Chief Dendere and Headman Matau) are traditional leaders who the applicant alleges have been tasked with the role of systematically heading their subjects to polling stations and monitoring how they will vote to identify those who will vote for the applicant.

The eleventh respondent is the President of Zimbabwe, cited in his official capacity as the official responsible for proclaiming dates for elections.

As already said, the applicant applied, by ordinary application, for the above mentioned orders.

He, in that application, sought to have the application set down for the fifth of June 2015 even though he only served the application on the sixth to tenth respondents on 6 June 2015. It was served on the first, second, third, and fourth respondents on 2 June 2015. The Registrar set it down for 8 June 2015. Most of the respondents were served with notices of set down on 8 June 2015.

On 8 June, the respondents counsel raised three preliminary issues:

Counsel for the third and fifth respondents raised a preliminary issue on his clients being entitled to the dies induciae permitted in terms of the Rule the applicant used to file his application.

Counsel for the first and second respondents raised a preliminary issue on whether or not this court has jurisdiction to hear the applicant's application.

Counsel for the fourth and sixth to eleventh respondents raised a preliminary issue alleging that the fourth respondent had been incorrectly cited in his personal capacity.

I, after hearing submissions from the parties, postponed the case to 9 June 2015, when I ruled in favour of the third and fifth respondents preliminary issue and dismissed the first, second and fourth respondents preliminary issues.

I indicated that my reasons for judgment would follow, these are they.

Dies Induciae

In his submission, counsel for the third and fifth respondents argued, that, the applicant consciously chose the procedure through which he brought his application to this Court. That procedure determines the time frames within which the respondents are expected to file their responses.

He submitted, that, where an applicant files an ordinary application in terms of Rule 231(3) of the High Court Rules 1971, which the applicant used, a respondent is, in terms of Rule 232, entitled to file his response within not less than 10 days, exclusive of the day of service, plus one day for every additional 200 kilometres or part thereof where the place of service is more than 200 kilometres from the court where the application is to be heard.

He submitted, that, the application has been prematurely set down as the dies induciae has not yet lapsed and the third and fifth respondents are entitled to file their responses within the time permitted by the Rules.

Counsel for the applicant, instead of relying on the procedure in the High Court Rules which the applicant used in filing the application, and invoking corrective measures, sought to expedite the hearing of the application by invoking the provisions of Rule 31 of the Electoral Court's Rules S.I.74A of 1995.

Rule 31 of the Electoral Court Rules SI74A of 1995 provides as follows;

“The Registrar, and all parties, to any stated case, petition, appeal or application referred to in these rules shall take all steps necessary to ensure that the matter is dealt with as quickly as possible.”

He submitted, that, the applicant gave the respondents three days to respond in view of the provisions of Rule 31 of the Electoral Court Rules S.I.74A of 1995.

This submission is not consistent with what the applicant said in his founding affidavit, on p10 para 12, where he said;

“I have given the respondents three days to respond. This is a modification of the rules of the High Court as contemplated in section 164(4).”

SC129-21 : SONY PICTURES TELEVISION UK RIGHTS LTD vs C MEDIA AFRICA (PVT) LTD and ZIMBABWE BROADCASTING CORPORATION (PVT) LTD
Ruled By: MAVANGIRA JA, MAKONI JA and KUDYA AJA

This is an appeal against the whole judgment of the High Court dismissing the appellant's application, filed on 10 November 2017, for a permanent interdiction of the respondents from producing and broadcasting the television show known as Simba Savannah, which the appellant claimed to be “infringing or exploiting (its) right to the copyright, trademarks, and all other intellectual rights in and to the television show Format known as Dragon's Den.”

The order that the appellant sought in the court a quo was couched in the following terms:

“1. The application be and is hereby granted.

2. The 1st and 2nd Respondents, their officers, directors, agents, servants, employees, representatives, attorneys, related companies, successors, assigns, and all others in active concert or participation with them, are each and both immediately and permanently interdicted from producing and broadcasting the television show known as Simba Savannah or any such derivative work adapted or based on the Dragon's Den format.

3. The 1st and 2nd Respondents be and are hereby each ordered to account to Applicant, together with the supporting documents including, but not limited to, contracts for all gains, profits, and advantages derived by 1st and 2nd Respondents by their development, production, promotion, broadcasting and/or any other exploitation of the television show known as Simba Savannah;

4. The 1st and 2nd Respondents be and are hereby ordered to deliver to the Applicant for destruction all digital and/or physical copies of episodes of Simba Savannah, including without limitation, any development materials and/or advertising and other promotional material in the possession of each Respondent, within forty-eight (48) hours of the granting of this Order failing which the Sheriff of Zimbabwe and/or his lawful deputies be and are hereby directed to enter into 1st and 2nd Respondents respective premises from wherever such goods are located and seize for destruction all such digital and/or physical copies of episodes of Simba Savannah, including, without limitation, any development materials and/or advertising and other promotional material in the possession of each of the Respondents;

5. The Applicant be and is hereby authorised to take possession of the digital and physical copies of all episodes of Simba Savannah, including, without limitation, any development materials and/or advertising and other promotional material in the possession of each of the Respondents.

6. The 1st and 2nd Respondents shall, jointly and severally, the one paying the other to be absolved, pay the Applicant's Costs of this suit on the legal practitioner and client scale.”…,.

In this appeal, the appellant contends, that, the court a quo erred and misdirected itself in dismissing its application and seeks the setting aside of the court a quo's judgment and the substitution thereof with an order granting the relief that it sought as reproduced above.

FACTUAL BACKGROUND

THE APPELLANT'S CASE

It will be necessary, for the purposes of this judgment, to set out in some detail the case that was presented to the court a quo by the appellant.

The appellant was identified, by the deponent to the founding affidavit filed in the court a quo, as “a television production and distribution studio with company registration number 02719242.” It was said to hold “the exclusive right to license, adapt, produce and exploit a copyright protected audio-visual work being a reality television format program known as 'Dragons Den (hereinafter 'Dragons Den' or 'the Format).'”

The deponent to the founding affidavit further stated that “(T)he Format is an original work by Nippon Television Network Corporation, a company duly incorporated in accordance with the laws of Japan” and that it features entrepreneurs pitching their business ideas in order to secure investment finance from a panel of venture capitalists in exchange for equity in their businesses. She also stated that “The Format originated in Japan as 'Money Tigers or Tigers of Money.'”

It was also the appellant's averment, that, since 2002 “local versions of the Format” have been produced and transmitted in over 30 countries by authorized licensees - the appellant included.

In some countries, more than one version has aired, and the most popular name for the show is “Dragons Den” a name that originated in the United Kingdom.

There have been variations to the name, with some being titled 'Shark Tank' a name that originated in the United States of America. 'Lions Den' was said to be another variation of the name.

In versions where the name of the show contains a predator's name, the investors are referred to as that predator. It was averred, that, the “Dragons Den Format” has attained “strong recognition” in North America, South America, Australia, Asia, Europe, and Africa.

The deponent to the founding affidavit proceeded to enumerate what she described as the distinct elements of the “Dragons Den Format.” Seven elements are listed as follows:

(a) The participants are generally product designers or service operators who have what they consider to be a viable and potentially very profitable business idea, but who lack funding and direction.

(b) The participants pitch their business idea to established local business investors for funding, in exchange for equity in their businesses.

(c) Globally, the licensees of Dragons Den have referred to their local investors as 'Dragons' 'Tigers' 'Sharks' or 'Lions', with 'Lions' being used in Kenya, Denmark, Germany, and Finland.

(d) The “Format's titles” as localised around the world, have a particular and distinctive form and content, namely;

(1) The animal predator that is top of the local food chain; and

(2) The place or location in which that animal presides, hence 'Dragons Den' 'Lions Den' 'Shark Tank.'

(e) The investors are positioned in one row, seated side by side. The entrepreneur then enters the studio and stops next to his or her product, which is pre-placed, facing the investors.

(f) After the entrepreneur's pitch, the investors engage in a “lively debate-like style” and at the end each investor declares “I'm in” or “I'm out” as an expression of his or her decision on whether or not to invest in the entrepreneur's product and/or service.

(g) Lastly, Dragons Den features a post-pitch interview with each entrepreneur. The interview takes place backstage, behind the scenes “along with voice-over to narrate the story.”

It was averred, that, it came to the appellant's attention that a television reality show under the title “SIMBA SAVANNAH” was being broadcast in Zimbabwe by the second respondent every Sunday evening during the 7:00pm prime time slot and that the show was produced by the first respondent.

Thirteen episodes of the show (collectively referred to as “Season 1”) had already been broadcast as at the date of the institution of the proceedings a quo and a call for applications or pitches for Season 2 of the show was being advertised on the first respondent's website. In addition, Season 1 of the show was also readily accessible and downloadable from YouTube, a popular video sharing website which is accessible worldwide. The site was said to have “800 million unique users and visitors each month.”

It was contended, on behalf of the appellant, that “Simba Savannah” was “an un-authorised adaptation of, and is based on and/or incorporates elements of the 'Dragons Den Format'.”

It was also contended, that, the first respondent “blatantly reproduced and/or incorporated several elements from the “Dragons Den Format, including, without limitation, its title, studio set, episode sequence, stage design, staging sequence, manner in which the pitches and responses are presented and filmed, music, voice over and post-pitch interviews thereby creating an entirely similar look and feel as the instantly recognisable Dragons Den Format.”

It was further contended that “Simba Savannah” replicates Dragons Den's “expression” and that it is neither original nor uniquely Zimbabwean.

Furthermore, that the first respondent deliberately chose to mimic the Format and cause confusion in the minds of consumers. The first respondent, it was contended, did not choose a unique title based on business in Zimbabwe but chose 'Simba Savannah' “in order to pass off its program under the Format in aid of taking advantage of the goodwill behind the Sony brand.”

It was also contended, that, Simba Savannah is confusingly similar to Dragons Den and “suggests an association between the appellant and the respondents in respect of the Dragons Den Format.”

Furthermore, that the respondents had derived direct benefit from the international reputation and established goodwill “inherent in the Dragons Den Format.”

It was averred, that, the respondents did not seek permission or licence from the appellant “in respect of the use of the Dragons Den Format” and that the appellant does not consent to such use, reproduction or exploitation.

It was stated, that, it, in fact, sometime in June 2016 “licensed the Format to Invision Studios (Pvt) Ltd in Zimbabwe” and that to its knowledge, the second respondent was aware of this licence but proceeded with the broadcast of Simba Savannah, regardless.

The appellant disapproved this reproduction or exploitation.

It was also stated, that, on 12 August 2016, the appellant served the respondents with “a cease and desist” letter requesting them to respect its copyright and intellectual property rights.

In its response, the first respondent declined to comply with the request and indicated its intention to continue with its conduct. The second respondent also declined to comply with the request and advised that it would only do so when so enjoined by the court.

The appellant served the respondents with a further “cease and desist” letter dated 21 December 2016.

However, no indication is made as to whether the second letter was responded to.

It was further stated, that, the appellant had thus had to resort to filing the application through which it sought “to immediately stop 1st and 2nd Respondents from continuing their injurious actions from which it has suffered irreparable and incalculable harm, and which will continue unless the respondents are enjoined from further abuse of its copyrighted material and unauthorised adaptation and use of the Dragons Den Format.”

Regarding the requirement of establishing a clear right to a permanent interdict, it was averred in the founding affidavit that the “Dragons Den Format” is a legally protected copyright work and that Simba Savannah is an un-authorised derivative work violating sections 13 and 19 of the Zimbabwe Copyright and Neighbouring Rights Act [Chapter 26:05] (the Act).

It was further averred, that, the appellant, being the holder of an exclusive licence “to the copyright, trademark and all intellectual property rights in and to the Dragons Den Format was, therefore, entitled, in terms of sections 51 to 53 of the aforesaid Act, to the relief sought as its rights are concurrent with the rights and remedies of the owner of the copyright under which its licence was granted.”

The averment was also made, that, Simba Savannah, as an unauthorised derivative work, violates Article 2 of the Berne Convention for The Protection of Literary and Artistic Works, to which Zimbabwe is a signatory.

Furthermore, that the appellant's rights to the copyright “in and to the Dragon's Den Format are protected in Zimbabwe by virtue of Regulation 17 of the Copyright and Neighbouring Rights Regulations, 2006 [Chapter 26:05]” (sic) which recognises for protection, works originating from any member of the Agreement on Trade Related Aspects of Intellectual Property (TRIPS) Agreement with Japan, United States of America, United Kingdom, and Zimbabwe all being signatories to the treaty.

The contention was also made, that, in the alternative, the facts set out above support a claim of passing off, by the first respondent, of the appellant's “licensed and copyrighted work.”

It was contended, that, the passing off of Simba Savannah has caused confusion amongst or in the minds of viewers in Zimbabwe as demonstrated by local news articles in Zimbabwe where members of the Zimbabwean public have drawn comparisons to the “instantly recognisable Dragons Den Format, this being due to the glaringly obvious similarities between Simba Savannah and Dragons Den.”

This, it was contended, had misled the public to believe that Simba Savannah is based on Dragons Den and that it was produced under licence from the appellant. This presumed association, it is contended, is in fact a benefit derived by the respondents from the appellant's international reputation and established goodwill, resulting in damage to the appellant's intellectual property and recognised brand.

The appellant claimed that the respondents continued production and broadcasting of Simba Savannah will continue to cause confusion and was likely to deceive viewers regarding the “origin, affiliation, association, connections and/or endorsement of the respondents actions.” Consequently, it was entitled to an injunction or interdict prohibiting further violations of its rights by the respondents.

If the relief sought was denied, it was averred, the appellant's rights to “the Dragons Den Format would have been irreversibly and irreparably disregarded or defied. No amount of monetary damages would adequately compensate the appellant or its licensees for the damage to their rights, business, positive reputation and goodwill.” The appellant thus had no other remedy but to institute the proceedings, it was contended.

The above sets out the material facts on the basis of which the appellant felt that it was entitled to the relief that it sought in the court a quo as reflected in paragraph 2 of this judgment.

THE RESPONDENTS CASES

(i) THE FIRST RESPONDENT

The first respondent, in opposing the application, stated, inter alia:

“While Applicant may be the exclusive licensee of the audio visual work known as Dragons Den, 1st Respondent denies that the 'format' is an audio visual work as defined in the Copyright and Neighbouring Rights Act [Chapter 26:05].

(a) 1st Respondent has no knowledge of the alleged productions and transmission of the 'format' and contends that what was produced was the program, not the format.

(b) In any case, 1st Respondent maintains, that, the format of a television show is not an audio visual work. Consequently, a format cannot be protected as a copyright work and use of a format which has some similarity with such format does not constitute copyright infringement.

(c) Further, the name of the show is not a copyrightable work, and the fact that where the name contains a creature's name, the investors are referred to as such creature only demonstrates that the idea of an animal name to designate its show by 1st Respondent is what aggrieved the applicant. Applicant is complaining about the use of an idea, yet ideas are not protected under the law of copyright.

(d) I am advised…, that ideas, methods of operation, concept(s) are not eligible for copyright even if they are explained, illustrated, or embodied in a work. I therefore submit that the features allegedly infringed are mere ideas or concepts which cannot be protected under copyright law. Applicant therefore has no exclusive rights in any of the alleged elements of the format.”

It was also the first respondent's stance that Simba Savannah was not an adaptation of Dragons Den.

It also argued, that, going by the definition of “adaptation” in the Copyright and Neighbouring Rights Act [Chapter 26:05] “it is not possible for an audio visual work to be adapted into another audio visual work.”

Furthermore, that even if it was to be assumed, for argument's sake, that Simba Savannah was based on Dragons Den, this would not constitute infringement of copyright.

The first respondent denied that Simba Savannah incorporated or reproduced any elements of the “Dragons Den Format.”

The deponent to the opposing affidavit further stated “(T)he title, Studio set, episode sequence, stage design, staging sequence, and all other elements stated in this paragraph are not copyright works.”

Furthermore, that “the basis of Dragon's Den as set out…, clearly shows that it is not a copyright work but an idea or concept.”

It was also argued, that, the appellant did not prove goodwill or any damages suffered by it.

It was contended, in the first respondent's opposing affidavit, that, the appellant itself was not clear as to how its intellectual property rights were allegedly violated as it was not clear whether it claimed copyright infringement or trademark infringement. It is not clear whether the claim is for infringement of copyright or it is for passing off.

It denied ever using the appellant's Dragons Den Format “as alleged or at all.”

It also denied having derived any benefit from the alleged international reputation and the claimed goodwill of the Dragons Den Format.

The first respondent further contended, that, the appellant had not demonstrated that it had copyright “in the alleged format of Dragons Den” as it had placed nothing on the record to establish the existence of such copyright.

As the appellant claimed to enjoy copyright in its “format” in the United States of America, it ought to have attached proof of deposit of its copyright work with the United States Patents and Trade Marks Office (USPTO) where there is a depository system.

The first respondent thus denied infringing any of the appellant's intellectual property rights as alleged or at all.

It denied that it obtained a direct financial benefit from airing Season 1 of Simba Savannah and denied that it was unjustly enriched as alleged or at all.

It commented on the appellant's contention that it is entitled to an interdict because, inter alia, the first respondent “has already shown its intention to continue with the copied and/or created derivative works from the Dragons Den Format by calling for pitches for Season 2.”

The first respondent's comment was that the appellant's statement that “the copied and/or created works are unauthorised” showed lack of understanding on the part of the appellant or its advisors as the first respondent did not need the appellant's authorisation to create its own work “no matter how similar that work may appear” as long as it had not copied the appellant's work.

The first respondent also contended, that, sections 51 to 59 of the Copyright and Neighbouring Rights Act [Chapter 26:05] availed other effective remedies to the appellant but the appellant had chosen to disregard them and opted to seek a permanent interdict because it had no evidence to sustain its actions and to attain such remedies. The appellant was thus abusing court process to intimidate and harass legitimate competitors.

It was also the first respondent's stance, that, the appellant ought to have demonstrated that the “Format” is a 'work' as defined in the Copyright and Neighbouring Rights Act but had failed to do so.

The 'format' of a television program, it argued “does not fit in the definition of 'work' set out in the Act.”

Simba Savannah is not an adaptation of any protected audio-visual work which can be infringed. At most, it is a concept, and concepts are excluded from copyright protection by section 10(4) of the Copyright and Neighbouring Rights Act.

The first respondent further contended, that, besides failing to establish one of the essential requirements for the granting of a permanent interdict, some of the relief sought in the other paragraphs of the Draft Order had not been claimed or founded anywhere in the founding affidavit. This, it claimed, to be an indication that the appellant was on a fishing expedition and that it was not sure what it was that it was seeking from the court.

(ii) THE SECOND RESPONDENT

The second respondent did not oppose the application.

THE DECISION OF THE COURT A QUO

The court a quo dismissed the appellant's application. It found that the appellant's claim related to more of a concept or an idea and not to an audio visual work. It found that there had therefore not been any infringement of copyright.

With regard to passing off, it found that the first respondent had not misrepresented that Simba Savannah was Dragons Den.

It also found, that, there was no proof that the appellant enjoyed a reputation in the format, form, and presentation of its television program. Neither had the appellant proven goodwill in its program known as Dragons Den.

It reasoned that the protection which copyright gave created a monopoly and there had to be certainty in the subject matter of the copyright, which subject matter the appellant had failed to establish.

The court also held, that, the appellant did not have a clear right in the circumstances.

It further held, that, having established that Dragons Den was not an audio visual work, the appellant could thus not suffer any prejudice through the infringement of a non-existing copyright.

It held, that, the appellant could institute criminal proceedings against the respondents in accordance with section 59 of the Copyright and Neighbouring Rights Act [Chapter 26:05], and that there was therefore, another remedy which the appellant could pursue.

The court a quo took the view that the relief sought by the appellant, of a permanent interdict, could not be granted as its requirements had not been satisfied.

It found that the appellant had failed to prove that it had goodwill in its programme or that it enjoys a reputation.

It dismissed the application.

Aggrieved by this decision, the appellant noted an appeal to this Court on the following grounds:

GROUNDS OF APPEAL

“1. The learned judge in court a quo erred in finding that the appellant's programme (Dragons Den) was not an audio-visual work within the meaning of that expression as utilized in the Copyright and Neighbouring Rights Act [Chapter 26:05].

2. In any event, the learned judge erred in finding that the appellant had not established a clear right.

3. The learned judge in (the) court a quo misdirected himself on the facts and erred in finding that the appellant had not established goodwill in respect of its programme.

4. The learned judge in court a quo misdirected himself on the facts and erred in finding that there were no sufficient similarities between the two programs so as to establish passing off.

5. The learned judge in court a quo erred in failing to have regard to the provisions of the Berne Convention for the Protection of Copyright Works in determining the appellant's rights.

RELIEF SOUGHT

The appellant seeks the following relief:

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

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

“The application succeeds and an order is made in terms of the Draft Order attached to the application.”

THE APPELLANT'S SUBMISSIONS BEFORE THIS COURT

Before this Court, counsel for the appellant, made the following submissions:

The court a quo erred in finding that the television program, Dragons Den, was not an audio visual work.

It, in fact, is an audio-visual work in respect of which copyright is held by the appellant and which the first respondent has wrongfully and unlawfully adapted in contravention of the Copyright and Neighbouring Rights Act [Chapter 26:05]. The court a quo failed to have regard to the provisions of the Copyright and Neighbouring Rights Act, which, in section 2, defines “audio-visual work.”

A television program is an audio-visual work.

The court a quo ought to have examined whether Simba Savannah constituted an adaptation but it failed to do so. It ought to have had regard to the similarities between Dragons Den and Simba Savannah that were highlighted by the appellant in its founding affidavit and that is where the inquiry ought to have ended, with a finding that Simba Savannah is a clear and straightforward breach of copyright.

It was counsel's further submission, that, the court a quo ought not have had regard to the New Zealand case of Green Broadcasting Corporation of New Zealand [1989] ALL ER 1056 (Green's case) as the case is inapplicable to the matter that was before it for two reasons:

(i) Firstly, the appellant in that case claimed damages for passing off and infringement of copyright in television scripts and dramatic format of his program.

(ii) Secondly, the expression “audio-visual work” is not defined in the New Zealand Copyright Act, unlike the Zimbabwean Copyright and Neighbouring Rights Act which has defined it. If the court a quo had had regard to the Zimbabwean Copyright and Neighbouring Rights Act, which provides that copyright (which is defined) exists in an audio-visual work, and which also, in section 19, prohibits an adaptation thereof, it would have come to a different conclusion.

Furthermore, Green Broadcasting Corporation of New Zealand [1989] ALL ER 1056 was a trial action and was not argued on the papers as happened in casu.

In any event, Green Broadcasting Corporation of New Zealand [1989] ALL ER 1056 involved a dramatic work.

Counsel submitted, that, on a proper interpretation of the case of Banner Universal Motion Pictures Ltd v Endemol Shine Group Ltd & Anor [2017] EWHC 2600 (Ch), it is clear, that, the appellant has a copyright and that there has been an adaptation by the respondents. For that reason, the appellant was entitled to an interdict by virtue of the provisions of the Copyright and Neighbouring Rights Act [Chapter 26:05].

The further submission was made, that, the first respondent, besides saying that Simba Savannah was uniquely Zimbabwean, had not said that it was its original idea and had not explained where they got the idea from.

On the other hand, the appellant had set out, in detail, the aspects which it alleged had been copied from Dragons Den and this found credence from press articles and reviews in which members of the public likened Simba Savannah to Dragons Den. The first respondent had therefore caused irreparable harm to the appellant which had no other remedy than the relief that it sought a quo.

It was also counsel's submission, that, the definition of “adaptation” in the Copyright and Neighbouring Rights Act does not relate to audio-visual works, and that, in casu, resort must therefore be had to the ordinary grammatical meaning of the word.

It was submitted, that, in any event, section 19 of the Copyright and Neighbouring Rights Act vested in the owner of a copyright, the exclusive right to, inter alia, make or authorise the making of an adaptation of the work.

With regard to passing off, counsel submitted, that, the court a quo applied the wrong test when it referred to the making of a misrepresentation whereas the two requirements that must be satisfied are reputation or goodwill (of the plaintiff) and the likelihood of confusion (to members of the public).

THE FIRST RESPONDENT'S SUBMISSIONS BEFORE THIS COURT

Counsel for the first respondent submitted as follows:

The critical question is: what it was that the appellant complained of in the court a quo.

According to the founding affidavit, Dragons Den is a television program, but, the appellant complained of infringement of a television format.

What the appellant sought to protect was thus a television format.

The concept of a television format is alien to the Copyright and Neighbouring Rights Act [Chapter 26:05].

“Format” does not appear in the definition section or any section in terms of which different kinds of works are protected in the Copyright and Neighbouring Rights Act.

The appellant attempted to classify 'format' as an original work or an audio-visual work.

A format cannot, however, fit into the definition in section 2 of the Copyright and Neighbouring Rights Act, of an audio visual work, which, in terms of the said definition, must be recorded or fixated, as would be the case with a DVD, which contains moving images and sounds that are embodied and fixated in that medium or an MP3 or MP4 that has pictures and sounds together.

That, which the appellant alleged to have been infringed, has not been fixated and there was no allegation in the founding affidavit that there was a medium which contains or includes moving pictures and sounds that the first respondent accessed and reproduced.

Counsel for the first respondent submitted, that, in paragraph 24 of the appellant's heads of argument, there was a vacillation amongst three poles, these being: (i) a television program; (ii) a format; and (iii) an audio-visual work and that the appellant seemed to suggest that the three are synonymous, when they are not.

The primary question was whether or not copyright can ever subsist in a television format in terms of the Copyright and Neighbouring Rights Act.

In terms of section 128 of the Copyright and Neighbouring Rights Act, the appellant's claim must find residence in an identified section of the Copyright and Neighbouring Rights Act or any other statutory provision and the appellant had failed in this regard.

The idea or concept of entrepreneurs pitching to potential investors cannot be protected by the Copyright and Neighbouring Rights Act, as section 10, which enumerates works that are eligible for copyright, excludes such from protection by means of copyright.

The appellant's claim could not succeed as it was hinged on an alleged adaptation of a format, which alleged adaptation is alien to the Copyright and Neighbouring Rights Act.

With regard to the case authorities in Green Broadcasting Corporation of New Zealand [1989] ALL ER 1056 and Banner Universal Motion Pictures Ltd v Endemol Shine Group Ltd & Anor [2017] EWHC 2600 (Ch), counsel submitted, that, what emerged therefrom was that, in principle, a format may be protected as a dramatic work, but never as an audio-visual work.

The closest that a format comes to get copyright protection, is, if it is in the form of a dramatic work.

The appellant failed to satisfy the criteria for such protection to be availed. In casu, there was no reproduction of any known copyrighted work.

With regard to passing off, counsel submitted, that, where a litigant fails to establish a misrepresentation, they cannot succeed in establishing passing off.

He also submitted, that, the reference by the appellant to the Berne Convention for the Protection of Literary and Artistic Works was misguided. The reason for this, he submitted, was that it does not have direct application except as domesticated in the Copyright and Neighbouring Rights Act [Chapter 26:05].

THE SECOND RESPONDENT

The second respondent, not having filed any opposing papers in the court a quo, was not present or represented at the hearing of this appeal.

ISSUE FOR DETERMINATION

The issues for determination are aptly set out in the first respondent's heads of argument as follows:

1. Whether or not the appellant's programme, Dragon's Den, is protected as an audio visual work in terms of the Copyright and Neighbouring Rights Act [Chapter 26:05].

2. Whether or not the appellant satisfied the requirements for a permanent interdict.

3. Whether or not the appellant satisfied the requirements for passing off.

4. Whether or not the provisions of the Berne Convention for The Protection of Literary and Artistic Works have direct application in copyright disputes in Zimbabwe.

In my view, the listed issues crystallise the questions that arise.

The over-arching issue, of whether or not the court a quo erred in dismissing the appellant's application, will be answered by the determination made thereon.

THE LAW AND ITS APPLICATION TO THE FACTS

Despite the attempt, at the beginning of the founding affidavit, to describe or classify Dragon's Den as an audio visual work, it is clear from a perusal of the whole document that the appellant's complaint pertained to the format of Dragon's Den.

This is demonstrated by the persistent and consistent use, inter alia, of the phrase “Dragon's Den Format” and the word 'Format' as reflected in the appellant's case as set out a quo. More pertinently, in paragraph 14, in describing the nature of the application that was before the court a quo, the following is stated:

“NATURE OF APPLICATION

14. This is a Court Application in terms of Order 32 Rule 230 wherein the Applicant seeks an Order to permanently interdict the 1st and 2nd Respondents from infringing or exploiting Applicant's right to the copyright, trademarks and all other intellectual property rights in and to the television show Format known as Dragon's Den.”…,.

Paragraph 14 thus identifies the nature of the application as one for the protection of the format of a television show; such format being known as Dragon's Den.

In addition to this, the founding affidavit kept referring, in the main, to the format as the aspect that had been adapted without authorisation and which it was claimed ought to be accorded copyright protection by the court.

Significantly, this having been the nub of the appellant's case, as pleaded, is the case that the first respondent responded to in its opposing papers....,.

The appellant's founding affidavit mostly refers to Dragon's Den as “the format” while occasionally vacillating between calling it a format or an audio visual work or a program.

Before us, counsel for the appellant submitted that “the program, Dragon's Den, is an audio-visual program in respect of which the copyright is held by the appellant and in respect of which the first respondent has wrongfully and unlawfully adapted in contravention…,. This television program is an audio visual work.”

The vacillation, and sometimes conflation, is also evident in paragraph 24 of the appellant's heads of argument where it is submitted as follows:

“To hold, as a matter of principle, that, a television programme or unique format in the form of an original audio visual work is not capable of being protected by copyright, makes bad law.”…,.

However, as noted earlier, the appellant's own characterisation of its application a quo was that it was for the protection of the format of its television show.

HB31-15 : TAMIRA OVERSEAS S.A. vs AQUIRIUM TRADING (PVT) LTD
Ruled By: TAKUVA J

From a reading of the founding affidavit, it is not clear on which ground the applicant seeks to rely.

HB32-15 : ANDREW NDLOVU and CHIHWA TOURS vs THEMBINKOSI SIBINDI
Ruled By: MUTEMA J and MOYO J

By the time the appeal was heard, on 2 February 2015, the respondent had, on 15 January 2015, filed a document headed “CONSENT TO JUDGMENT” wherein he indicated that he was consenting to the order sought in the appeal.

We allowed the appeal in terms of the consent and indicated that for the benefit of the trial magistrate, as well as other judicial officers who may be in the same predicament, we felt constrained to do a judgment write up.

This is it.

This is an appeal from a decision of the Magistrates Court sitting at Victoria Falls. The first appellant was a driver employed by the second appellant. The respondent is a former mayor of the resort town and also a former Member of Parliament.

On 2 October 2011, the first appellant was in Bulawayo driving the second appellant's IVECO vehicle registration number ABS 4838. The respondent averred, that, he telephonically contracted with the first appellant to pull his trailer with tins of paint and other hardware goods from Bulawayo to Victoria Falls for a fee to be paid at destination.

Along the way, so the argument went, the first appellant negligently caused an accident which resulted in damage to some of the respondent's consigned goods. Goods valued at US$2,411=90 were damaged.

In order to bring his claim within the monetary jurisdiction of the Magistrates Court, the respondent abandoned his claim to $411=90 and sued the appellants jointly and severally, one paying the other to be absolved for $2,000,00, interest at the prescribed rate effective from date of issue of summons, and costs of suit.

The second appellant was roped into the suit on the basis of alleged vicarious liability.

Both appellants strenuously denied liability.

The appellants denied, that, the first appellant was negligent and that his negligence caused the accident and that the second appellant was vicariously liable.

They also both denied that the respondent contracted with the first appellant for the carriage of the goods, let alone for a fee, since such was beyond the first appellant's mandate.

They averred, that, the respondent used his political muscle and forced the first appellant to pull his trailer at no cost thereby taking the risk; for the second appellant is not a licenced carrier, not insured, and not authorized to carry goods.

In her judgment, in which she found for the respondent, the trial magistrate, in a somewhat Wednesday decision, reasoned, in pertinent part, thus:

“Concerning the issue of negligence that was not expressly been (sic) proven however there are references to same (sic) type of negligence being there. In terms of how the accident occurred in addition to the realization of it (sic). However, to my mind, even if some negligence had been there. It doesn't then allow that the liability falls away.

Since vicarious liability covers even negligent actions. Mungofa v Muderede and Others 2003.

Defence counsel was dwelling on the fact, that, the contract was flawed. What has come out is that there was an agreement for delivery of goods after which payment would be made. So that was the verbal contract.

In this instance the first defendant started (sic) that as drivers they regularly carry goods for passengers on the agreement that the people would pay later. This was an arrangement he said the manager knew about. He added that after receiving payment he would take the money to the company office. So in saying this first defendant is saying he had a verbal contract with plaintiff.

A director at Chihwa tours testified saying he did not know goods were being carried without passengers.

Now, in coming up with a judgment. One has (sic) to look at the purpose of the doctrine of various (sic) liability Gwalinga v Jaredzo 2001 which includes that members of the public. Be protected from activities does (sic) by employees. Furthermore the employer is in a far better position to compensate the injured party than the employee. Looking at the purposes one has to apply it (sic) to this case. That Chihwa tours is better able to compensate customers for losses than the driver.

I now go into the operation of the doctrine in relation to this case which is 2 pronged. First that the employee is a servant not an independent contractor. In this instance the first defendant was a servant not an independent contract (sic). Since he is a driver who is subject to the employers control and direction. Secondly was he acting within the scope of his duties? His duties include driving the company vehicle to ferry passengers and their goods to their destination. Whether there was a deviation from duty Nott v ZANU PF 1983.

This is what he was doing on that day. When he carried passengers for Chihwa tours to Victoria Falls. Using the company's vehicle. So at his reason (sic) for travelling to Victoria Falls was for work. To further clarify if he was acting in the course of his employment. One has to ask if first defendant was on a frolic of his own. During proceedings no one alleged that this trip was of accused (sic) own making. It was agreed he was sent on a trip for work. So I find that he was within the course of his employment.

Whether he exercised his duties well or not as to the satisfaction of his employer is something else. But for the purposes of this case. The second part of the 2 fold doctrine of the operation of this doctrine has been satisfied. So I find that defendant carried goods for plaintiff. During his duty as an employee whilst acting in the course of his employment as envisaged in Bande v Boregone 2003.

Concerning the qualification (sic) of plaintiff's loss plaintiff is claiming for all drivers and plaintiff's employee (sic) as defence counsel rightly points out agree that some tins of paint that were recovered (sic). Which were at least 10 in number. So there is a need for plaintiff compensation to be lessened in that respect.

So I award judgment for the plaintiff less ten tins of paint of 5 litre (sic) which first defendant and plaintiff's witness approximated were recovered. Each party to bear its own costs.”

Before delving into the gist of the legal issues that emanate from the facts and the judgment, I must utter some strictures regarding the several grammatical and punctuation errors exitant in the portion of the judgment quoted above. This explains why I was constrained to quote it in extenso.

It is not known if these errors should be ascribed to the trial magistrate or the typist, or both, but, the bottom line is that the trial magistrate should shoulder the blame for obvious reasons - it is her judgment.

It is sad to remark, that, in fact, this is her style of judgment writing as gleaned from appeals and reviews emanating from her one-person station.

Now, to the pith of the appeal and the law.

The following legal issues emanate from the court a quo's judgment:

1. Propriety of citing the second appellant.

2. Vicarious liability of the second appellant.

3. Claim founded on lex aquilia but liability founded on contract.

4. The relief that was awarded.

I would deal with the above issues seriatim....,.

3. CLAIM FOUNDED ON LEX AQUILIA BUT LIABILITY FOUNDED ON CONTRACT

The respondent sued the appellants in delict based on alleged negligence.

The court a quo correctly found, on the facts, that negligence was not proven.

Instead of simply dismissing the claim on that score, the trial magistrate, from some incomprehensible remote source, replete with Wednesday reasoning, found that the respondent's claim must succeed on the basis of contract.

Who then were the contracting parties?

The respondent could not sue both appellants. He had to choose one, and, if that one were the first appellant, the respondent could not impute duty of care upon the second appellant. If the respondent chose the second appellant, he could not sue the first appellant on account of the maxim qui facit per alium facit per se (he who acts through another does the act himself).

This is a fundamental maxim of the Law of Agency.

There is no evidence that the first appellant (who would be the agent) was authorized by the second appellant (the principal) to contract with the respondent so as to ground invocation of the above maxim.

This legal principle escaped the trial magistrate's mind.

It is difficult to comprehend how a claim purportedly based on negligence by an employee, which negligence was found not proven, would legally metamorphose itself from delictual to contractual and still have the same vicarious liability attaching to a party who neither contracted with the respondent nor authorized the contract.

SC145-21 : SARAH CARTER vs KATHLEEN MACINTOSH (Represented by Edward Warhurst, Executor of Estate Late Kathleen McIntosh) and ANOTHER
Ruled By: MAVANGIRA JA, BHUNU JA and CHATUKUTA AJA

During happier times, the first respondent leased her bird and game sanctuary to the appellant.Upon termination of the lease, the appellant lost the contest for ownership and possession of animals at the sanctuary in the High Court (the court a quo).She now appeals to this Court for relief.FACTUAL BACKGROUNDAt the ...

During happier times, the first respondent leased her bird and game sanctuary to the appellant.

Upon termination of the lease, the appellant lost the contest for ownership and possession of animals at the sanctuary in the High Court (the court a quo).

She now appeals to this Court for relief.

FACTUAL BACKGROUND

At the 22 kilometre peg along the Harare-Shamva Road lies Bally Vaughan Bird and Game Sanctuary. The first respondent and her late husband established the sanctuary sometime in 1990 mainly for the care of birds and animals in need of care.

At the time of litigation in the court a quo she was the sole surviving owner of the sanctuary.

The primary source of animals for the sanctuary was through donations from members of the public. Funding was mainly derived from donations and sale of animals at the sanctuary.

Owing to a conglomeration of advanced age and injuries sustained in a road traffic accident, the first respondent was wheelchair-bound and unable to represent herself in a court of law. She was, however, lawfully represented by one Gordon Rees Putterill, the deponent to the opposing affidavit, duly authorised thereto by power of attorney.

She is now deceased and was duly substituted, according to law, by the executor to her estate, one Edward Mark Warhurst.

It is common cause, that, on 1 June 2010, the appellant and the first respondent concluded a written lease agreement. The contract was to endure for a period of three (3) years expiring on 31 May 2013.

The material terms of the contract provide as follows:

“AGREEMENT OF LEASE entered into by and between Mrs K N McIntosh (Hereinafter “called The Lessor” on the one part and Miss S. A. L. Carter (Herein after called the tenant)

Whereas, the lessor is the registered owner of the operation known as Bally Vaughan Bird and Game Sanctuary situated in the Arcturus [CA District of Goromonzi].

And whereas the Lessor has agreed to let to the Tenant the aforesaid immovable property, as more fully set out in Annexure 'A' which also includes details of immovable property being kitchen and catering equipment, restaurant furnishings and fittings of the two restaurants known as the 'Duck or Grouse restaurant' all birds and animals that were resident within the area known as the Bally Vaughan Bird and Game Sanctuary on one October, 2005 water pump, cold room motor and Mazda B2500 pick-up truck.'…,.

NOW THEREFORE IT IS AGREED AS FOLLOWS:

'Subject to the provisions of this lease, the lessor hereby lets to the Tenant who in turn hires from the lessor the leased premises and equipment specified in Annexure 'A'.

2….,.

3….,.

4. Income derived from the sale of animals resident on the farm on 1 October 2005 shall be divided equally between the Lessor and the Tenant, and income from the sale of birds resident on 1 October 2005 shall be divided as follows:
45 per cent to Lessor, 45 per cent to Tenant and 10 per cent to staff as a bonus.

5….,.

6….,.

7….,.

8….,.

9….,.

10….,.

11. In the event of the death of the Lessor or the Tenant, during the currency of this lease, this lease agreement shall be binding on the legal representative of the Lessor or the Tenant until the date provided for the expiry thereof.

12….,.

13. In the event of the Tenant failing to pay the rent or committing any breach of this agreement and failing to remedy such breach within fourteen days after receipt from the Lessor of written notice requiring the Tenant to so remedy such breach, the Lessor shall be entitled to cancel this lease without any prejudice to any action for the recovery of rent or any loss or damage arising from such lease.”

Following disagreements, the first respondent lawfully evicted the appellant from her sanctuary by court order in November 2013 on grounds of breach of contract.

Upon her eviction, the appellant sought to relocate the disputed animals to Twala Trust Sanctuary in the same district. The disputed animals are listed as:

Domestic Animals

(ii) 3 cows;

(iii) 3 pigs;

(iv) 11 sheep;

(v) 16 donkeys;

(vi) 4 goats;

Wild Animals

(i) 3 male lions;

(ii) 4 female lionesses;

(iii) 1 female spotted hyena;

(iv) 2 serval (male and female);

(v) 1 male meekat;

(vi) 1 male genet;

(vii) 1 male zebra;

(viii) 2 female common duikers;

(ix) 1 male bush baby;

(x) 3 female baboons;

(xi) 13 marmoset monkeys;

(xii) 13 vervet monkeys;

The appellant's claim was premised on a vindicatory or possessory order.

The first respondent objected to the translocation of the animals from Bally Vaughan Sanctuary claiming ownership of the same animals.

To protect her title and interest in the animals, she applied for and obtained a temporary interdict from the Magistrates Court blocking the appellant from removing the animals from the sanctuary pending determination of ownership of the disputed animals by the courts.

The temporary interdict is in the form of a rule nisi dated 3 July 2015 crafted in the following terms:

“IT IS ORDERED THAT:

1. A rule nisi issue…, in the following terms:

(i) That, pending a court determination on the ownership of the birds, animals, equipment, and motor vehicles on Bally Vaughan Bird and Game Sanctuary, 22km peg, Shamva road, first and second respondents be and are hereby temporarily interdicted from removing any birds, animals, equipment, and motor vehicles from the said premises.

(ii) In the event of the Respondents failing to comply with this order, or any part thereof, that the Zimbabwe Republic Police, Juru or any attested member of the Zimbabwe Republic police be and are hereby authorised to enforce the Order, and, for so doing, this shall be their warrant.

(iii) First and second respondents shall pay costs of suit on a legal practitioner and client scale.”

The appellant did not violate the terms of the above temporary interdict but properly took the dispute to the court a quo claiming the right to relocate the animals by virtue of being the rightful owner and possessor of the animals.

On the other hand, the first respondent resisted the appellant's claim on the basis that she was the lawful owner and in de facto lawful possession of the disputed animals.

In the court a quo, the appellant claimed ownership and possession of the disputed animals on the basis, that, in terms of the lease agreement she only leased the animals that were on the sanctuary as of October 2005. All the other animals that came onto the sanctuary thereafter were donated to her as her personal property. Her claim was based on vindication and/or a possessory order.

The first respondent countered, that, the appellant was not leasing Bally Vaughan as a sanctuary for animals donated to her but for animals donated to the sanctuary. She, therefore, as owner of the sanctuary, assumed ownership of the animals regardless of who had facilitated the donations.

As we have already seen, the court a quo resolved the dispute in favour of the first respondent. It now behoves this Court to determine the correctness or otherwise of the judgment a quo.

ISSUES FOR DETERMINATION ON APPEAL

Despite having raised seven (7) grounds of appeal, which are, in the main, prolix and argumentative, before us, counsel for the appellant abandoned all the other issues raised in the grounds of appeal leaving only one issue for determination on appeal.

He submitted, that, the sole issue for determination is: whether the court a quo was correct in restricting itself to ownership.

I now turn to determine that issue.

WHETHER THE COURT A QUO WAS CORRECT IN RESTRICTING ITSELF TO THE QUESTION OF OWNERSHIP

Right from the onset, I must point out, that, the way the sole issue for determination is crafted is misconceived and misleading in so far as it gives the impression that the learned judge a quo did not determine the question of possession.

In his concluding remarks, the learned judge a quo had this to say at page 11 of his cyclostyled judgment:

“The hurdles which stand in the way of the application are many and varied. The applicant could not succeed under the given circumstances. She could not establish a prima facie case in respect of the animals, let alone proof of ownership or possession of the same - albeit on a balance of probabilities.”…,.

It is plain that the learned judge was not guilty of any omission to determine the issue of possession as alleged by the appellant.

This really should be the end of the matter because the sole issue to be determined is founded on the wrong and false mis-apprehension of the reasons for judgment.

HB36-15 : BULAWAYO CITY COUNCIL vs BUTTON ARMATURE WINDING (PVT) LTD
Ruled By: MUTEMA J

This is an application for summary judgment in the sum of US$86,927=90 said to represent arrear rates for the period spanning from June 2012 to June 2014.

The statement for the bill for what the applicant contends is owed was attached to the founding affidavit as annexure “A”.

The founding affidavit was deposed to by one Spekiwa T. Guta, who, in paragraph 1 thereof stated:

“1. I am the city legal officer of the applicant in this matter and all the facts I depose hereto are to the best of my knowledge true and correct.”

Over and above the amount claimed stated above, the applicant, in the draft order, also seeks an order for collection commission on the said amount; interest at the prescribed rate; costs of suit on an attorney-client scale.

The application was opposed on the following grounds:

In Limine

1. The deponent to the founding/supporting affidavit did not establish authority to depose to the affidavit or that the facts she deposed to are with her knowledge;

2. The relief sought for collection commission is incompetent;

3. In the draft order, the applicant is seeking interest at the rate of 5% per annum yet annexure “A” shows that interest was being charged on the account at 6% per month. In the result, the interest that was levied on the account was therefore unlawful; and

4. The claim is defective for want of compliance with Rule 13(4) of Order 3 of the High Court Rules 1971 in that it does not set out separately the interest component from the capital sum.

On the Merits

1. The respondent has a bona fide defence as advanced in the preceding points in limine;

2. Via publication in the press, the applicant offered a special dispensation whereby if the respondent paid off half the amount owed, the other half would be written off. The respondent accepted the offer and the arrangement became binding on the parties and the agreement is still to run its course;

3. The calculations in annexure “A” are flawed. They are effective from February 2009 to July 2014 yet the claim avers that the period runs from June 2012 to June 2014 and is for arrear rates only, but annexure “A” factored in water levy, rates, road levy, sewage, solid waste and monthly interest of 6%. This informs on the question of whether or not part of the claim has not prescribed as well as the accuracy of the computation of the amount due.

It is proposed to deal first with the points raised in limine....,.

WHETHER THE 6% PER MONTH INTEREST CHARGED IN ANNEXTURE 'A' WAS LAWFUL

This point should not have been raised as a point in limine. It goes to the root of part of the respondent's defence as it hinges on the merits.

The applicant's attempt to justify this rate of interest was convoluted.

It did not nail its colours to the mast, as, in one breath, it alleged the 6% rate of interest was per annum yet annexure “A” to the supporting affidavit clearly shows that it was being levied per month - which is clearly illegal.

In the heads of argument, in paragraphs 15 and 16, the applicant contended thus:

“15. The applicant is charging 6% interest per annum on outstanding arrears in terms of section 274(2) of the Urban Councils Act. Section 274(2) reads as follows:

“…, the council may charge and recover interest thereon reckoned from the due date at such rate as may be fixed by the Council which is not more than one per centum per annum above the rate of interest charged by the State in respect of loans made to local authorities at the time the rate was fixed in terms of subsection (1).”

16. In the premises, the applicant is charged 5% interest per annum by the State in respect of loans made to local authorities. Accordingly, it is entitled to charge 6% per annum on outstanding arrears.”

However, in paragraph 14 of its Heads, the applicant had contended, that, the 6% interest per annum was levied in terms of its by-laws.

Given the exitant contradictions regarding this issue, coupled with the fact that section 274(2) of the Urban Councils Act was never pleaded in the summons, and that the rate of interest levied by Government on loans advanced to the applicant is not trite, there is a material factual dispute which cannot be determined at this stage no matter how bold the approach the court takes.

CLAIM DEFECTIVE FOR WANT OF COMPLIANCE WITH RULE 13(4) OF ORDER 3 OF THE HIGH COURT RULES 1971

Rule 13(4) of the High Court Rules provides as follows:

“(4) Subject to sub-rule (5), where the amount claimed includes capital and interest on the capital, the particulars endorsed on the summons in terms of subrule (1) shall state clearly –

(a) The capital amount claimed; and

(b) The total amount of interest claimed on the capital as at the date of the summons or as at an earlier date specified in the particulars; and

(c) Whether or not interest is claimed on the total amount of capital and interest referred to in paragraph (a) and (b), and, if not, the amount in respect of which any interest is claimed and the date which interest is to run.”

It is not disputed that the claim, as particularized in the summons, does offend against the provisions of Rule 13(4) of the High Court Rules quoted above.

The amount of interest claimed on the capital is not stated, and, also, the effective date from which interest is supposed to run.

On the Merits

It is trite, that, in an application for summary judgment, all that a respondent has to show “in order to succeed in having the application dismissed is that there is a mere possibility of his success; he has a plausible case; there is a triable issue; or there is a possibility that injustice may be done if summary judgment is granted.”

See Jena v Nechipote 1986 (1) ZLR 26 (SC).

Two points in limine have been upheld and are enough to dismiss the application on that basis, but, out of an abundance of caution, there is no harm or prejudice in delving into the merits.

Over and above what has been dealt with, and proven, under points in limine supra, which is interwoven with the respondent having a bona fide defence in casu, there are two issues raised by the respondent which clearly engender material disputes of fact which cannot be resolved on the papers.

(i)...,.

(ii) The second, and more cogent, relates to the exact amount the respondent allegedly owes the applicant if account is had to annexure “A”.

The claim avers, that, the amount owed is for rates arrears in the sum of $86,927=90 from June 2012 up to June 2014.

However, a perusal of annexure “A” reveals that the applicant's computation of the amount claimed is effective from February 2009 up to July 2014.

Over and above that, ex facie annexure “A” it is apparent that the applicant factors in water levy, road levy, sewerage, solid waste, and the monthly interest of 6% in addition to the rates.

As correctly argued by the respondent, this brings into sharp focus the question of whether or not part of the claim has not prescribed and also the accuracy of the computation of the exact amount that is due.

View Appeal
SC59-16 : ZIMRE PROPERTY INVESTMENTS LIMITED vs SAINTCOR (PVT) LTD t/a V. TRACK and JOHN SHUMBA
Ruled By: ZIYAMBI JA, GARWE JA and GOWORA JA

In a judgment handed down in January 2014, the court a quo upheld the plea of prescription raised by the respondents, and, consequently, dismissed the claim against the respondents with costs.Against that order, the appellant now appeals to this court.BACKGROUNDIn October 2012, the appellant, as plaintiff, issued summons against both ...

In a judgment handed down in January 2014, the court a quo upheld the plea of prescription raised by the respondents, and, consequently, dismissed the claim against the respondents with costs.

Against that order, the appellant now appeals to this court.

BACKGROUND

In October 2012, the appellant, as plaintiff, issued summons against both respondents before the High Court, Harare, claiming payment of the sum of $30,094=98 being arrear rentals in respect of the respondents tenancy of premises known as Shop 5, Zimre Centre, Corner Kwame Nkrumah Avenue and Leopold Takawira Street, Harare.

The second respondent had bound himself as surety and co-principal debtor in respect of the first respondent's indebtedness.

In their plea, the respondents, as defendants, raised the defence of prescription. More specifically, they averred, that, in instituting proceedings on 19 October 2012, more than three years after the debt became due, the claim had become time-barred.

The plea was not set down for hearing. Instead, the defendants pleaded over to the merits in the same plea.

In its replication, the appellant denied that the claim had prescribed. It averred, that, the first defendant had, on 22 October 2009, acknowledged the debt and had undertaken to pay the outstanding amount in full by 10 November 2009.

There was no rejoinder by the respondents.

In a joint pre-trial conference minute, the parties agreed, that, the issues requiring determination at trial were:

(a) Whether the plaintiff's claim had prescribed;

(b) Whether the first respondent had breached the lease agreement by failing to pay rental and other costs;

(c) Whether the respondents were liable to pay the sum of US$30,094=98 together with interest and costs of suit;

(d) Whether there had been mutual termination of the agreement between the parties and whether the appellant had unlawfully and unilaterally ejected the respondents from its premises; and

(e) Whether such conduct had resulted in the respondents suffering damages “in respect of the first respondent's assets and business” and, if so, the quantum thereof.

PROCEEDINGS BEFORE THE COURT A QUO

At the hearing of the matter, the respondents, through their lawyer, sought the leave of the court to deal with the issue of prescription first and lead evidence on it.

Despite opposition from the appellant, the court a quo decided that the issue of prescription be determined first, and, thereafter, depending on the outcome, the court would again hear evidence on the remaining issues.

In its judgment, the court a quo was of the view, that, the issue that fell for determination was the authenticity of the letter purportedly written by one Annet Mbedzi on behalf of Saintcor Holdings in October 2009.

In this regard, it made a number of observations.

The letter was not written on any letterhead, unlike in previous correspondence; it reflected the appellant's postal address; the letter was also written on behalf of Saintcor Holdings, a company both parties were agreed does not exist and was not a party to the lease agreement; the letter was addressed to a Mr Muringani, but, the name had been cancelled in black ink and in its place the name Muringi inserted; nowhere in the letter is it suggested that Saintcor Holdings was acknowledging indebtedness on behalf of Saintcor (Pvt) Ltd.

On a consideration of all these features, the court a quo concluded, that, the letter had not been written on behalf of the first respondent.

Consequently, the court upheld the plea of prescription and dismissed the plaintiff's claim with costs, hence this appeal.

GROUNDS OF APPEAL

In its grounds of appeal, the appellant has attacked the decision of the court a quo on the basis that it:

(a) Erred in fact and at law in holding that the appellant's claim had prescribed;

(b) Misdirected itself by holding that the letter that was received by the appellant on 22 October 2012 was not authentic;

(c) Misdirected itself by making a finding that the author of the letter that was received by the appellant on 22 October 2009 did not have authority to author the same.

It is apparent from the above grounds, that. it is the conclusion reached by the court a quo, that the letter in question had not been written on behalf of the respondent that the appellant is challenging.

PRELIMINARY ISSUES RAISED BY THE RESPONDENTS

In their heads of argument, the respondents raised two points in limine:

(i) The first was that the judgment of the court a quo reflects three different dates as the dates when the judgment was handed down.

The date of the judgment reflected in the Notice of Appeal is at variance with the date appearing ex facie the judgment itself, and, consequently, there has been no compliance with Rule 29 of the Rules of this Court.

(ii) Secondly, the relief sought is defective as it seeks to substitute the decision of the court a quo with one referring the matter back to the court a quo itself.

In his response, counsel for the appellant drew the attention of the court to a letter from the Registrar of the High Court which states, that. the ex-tempore judgment was handed down on 10 February 2015, which is the date appearing in the Notice of Appeal.

On the prayer, he conceded, that, the wording was inelegant but argued that the relief sought was clear. He submitted that the inelegance does not invalidate the appeal as ultimately the court will make an order it deems appropriate in the circumstances.

After hearing argument on the two preliminary issues, this court was of the view, that, the issues be rolled over for determination together with the issues that arise on the merits.

APPELLANT'S SUBMISSIONS ON APPEAL

In both his heads of argument and oral submissions, counsel for the appellant raised the following issues:

(i) First, that the judgment of the court a quo does not derive from the pleadings.

(ii) Second, the appellant's cause of action was predicated upon a valid cancellation of the lease agreement. Such cancellation was effected on 18 November 2009 and the cause of action would have accrued on that day. Therefore, when the appellant issued summons on 22 October 2012, the debt had not prescribed.

(iii) Third, that the appellant would have had no reason to cause the letter of 22 October 2012 to be generated. Once it had accepted that the letter had not been generated by the appellant, the court should have concluded that the letter had indeed been authored by the respondents.

(iv) Fourth, that the second respondent knew how to contact Annet Mbedzi, the author of the letter in question. Annet Mbedzi had been involved in the goings-on at the premises of the first respondent, and yet both respondents had not found it proper to call him.

(v) Lastly, counsel for the appellant submitted, that, it was improper for the court to have heard evidence piecemeal. Once the plea of prescription had not been set down and the respondent had then proceeded to plead over to the merits, the court should have heard evidence on all the issues and an assessment of the credibility and integrity of the witnesses undertaken only after all the evidence had been led.

RESPONDENTS SUBMISSIONS ON APPEAL

In response, counsel for the respondents made the following submissions:

(i) First, that, what is being attacked by the appellant are findings of fact which cannot be interfered with on appeal in the absence of a finding of irrationality on the part of the trial court.

(ii) Second, that, the court a quo was correct in its findings that the letter received by the appellant on 22 October 2009 had not been written by or for the respondents. This is because the appellant had admitted that, by that date, the first respondent had been evicted from the premises, and, consequently, the first respondent would not have used that address in correspondence with the appellant.

(iii) Third, that, the appellant has not established a lawful basis for the suggestion that the judgment does not derive from the pleadings as no leave of the court had been sought to advance argument on this ground, contrary to the Rules of this court. In any event, the respondents, in their plea, had placed prescription in issue.

(iv) Lastly, that, the debt did not become due on cancellation since rent was due monthly in advance, and, therefore, the cause of action arose whenever such rental was not paid on due date. The appellant had, in any event, evicted the first respondent in August 2009 for non-payment of rent and the “debt” included outstanding rentals up to the date of such eviction.

ISSUES FOR DETERMINATION

It is clear from the above, that, a number of issues arise before this court. These will be dealt with in turn....,.

WHETHER THE RELIEF SOUGHT IS PROPER

In its prayer, the appellant seeks the following relief:

“The appellant will pray that the appeal be allowed with costs and that the judgment of the High Court be set aside and substituted in place thereof by an order that:

(1) The respondent's special plea of prescription be and is hereby dismissed with costs at an attorney and client scale; and

(2) The matter be and is hereby referred back to trial on the merits in the High Court before a different judge.”

The main thrust of counsel for the respondent's argument was that the relief is defective because the prayer seeks to refer the matter back to the same court. The High Court cannot make an order remitting a matter to itself.

Counsel for the appellant has accepted that there is some difficulty with the prayer, which he says is inelegant. He argued, however, that the relief sought is clear, and, since it is the court that must ultimately make an order it sees fit, the Notice of Appeal cannot be said to be invalid on that score alone.

I agree with counsel for the respondents, that, paragraph (2) of the prayer is almost meaningless in its present form. However, I also agree with counsel for the appellant, that, the relief prayed for is clear.

In the event that the appeal succeeds, the appellant seeks an order that the matter be referred for trial on the merits.

The suggestion in the prayer, that the matter be referred for trial before the High Court, is an obvious mistake, one which does not, in my considered opinion, invalidate the entire appeal.

The prayer, in paragraph (1) seeks dismissal of the special plea of prescription. It is clear that in paragraph (2) the relief sought is that the matter be referred to trial on the merits, before a different judge.

In the circumstances, I am unable to hold, as urged by counsel for the respondents, that, the relief is so fatally defective as to invalidate the whole appeal.

This preliminary point must also fail.

CC06-20 : ISOQUANT INVESTMENTS (PRIVATE) LIMITED t/a ZIMOCO vs MEMORY DARIKWA
Ruled By: MALABA CJ, GWAUNZA DCJ, GARWE JCC, MAKARAU JCC, GOWORA JCC, HLATSHWAYO JCC, PATEL JCC, GUVAVA JCC and BHUNU JCC

Proceedings in a court would be those formal steps that relate to a matter falling within the jurisdiction of the court and brought before it in accordance with the procedure prescribed for bringing such a matter for hearing and determination.

HH801-22 : EQUITY PROPERTIES (PVT) LTD vs AL SHAMS GLOBAL BVI LIMITED and REGISTRAR OF DEEDS N.O.
Ruled By: MANGOTA J

I set HC6264/21 down for hearing. The hearing was scheduled for 20 June 2022. At the hearing, the applicant, which was the respondent in the case, raised a preliminary point. It did so through counsel.

Its in limine matter was that the first respondent (“the respondent”) which was the applicant in the court a quo did not file its Heads within the dies which TSANGA J issued to the parties on 4 February 2022. It insisted that the respondent was barred and could not, therefore, be heard until it unbarred itself.

The respondent opposed the preliminary point which the applicant raised.

It admitted that it did not file its Heads within the dies. It claimed that it had agreed with the applicant, that, both parties would file their respective Heads outside the order which the court issued to them.

It unsuccessfully applied to uplift the bar.

Following the submissions of the parties, I remained of the view, that, both of them flouted the order of TSANGA J.

I decided that they were both barred and were, therefore, improperly before me. I, accordingly, struck HC6264/21 off the roll and ordered that each party meets its own costs.

The decision which I made constitutes the applicant's cause of action. It filed this application for leave to appeal the same.

It attached to the application its draft notice and grounds of appeal. It remains of the view, that, I should not have made a finding which was/is to the effect that it was barred. It insists, that, it could not file its Heads without the respondent having filed its Heads first. It claims, that, once the respondent was barred, it no longer had any obligation to file Heads or any further pleading other than to apply that default judgment be entered against the respondent.

It, accordingly, moves me to grant leave to it to appeal.

The respondent opposes the application for leave to appeal. It insists, that, the appeal has no merit, and, therefore, has no reasonable prospects of success.

It alleges, that, both the applicant and it were improperly before the court. Both parties, it asserts, were in contempt of court by virtue of not obeying the court order which directed them to file their respective Heads within certain time-frames.

It argued, through counsel, that, Part XVI of the High Court Rules 2021 deals with such applications as the one which the applicant placed before me. It placed reliance on Rule 94(8) as read with sub-rules (1) and (2) of the same Rule of court which subrules it claims are peremptory.

It asserts, that, the application for leave, which, according to it, does not comply with the mandatory rules of court, is fatally defective and must therefore be dismissed with costs.

An application for leave to appeal places the judge before whom it is placed in an invidious position.

The applicant, it would appear, will be inviting the judge to review his own decision.

The judge who takes the position of reviewing his own work falls into an unfortunate situation where, at the hearing, he is tempted to make common cause with the respondent.

He should make every effort not to be tempted to agree with the respondent at the detriment of the applicant. He should, at all times, endeavor to be as objective as he humanly can.

His guiding rod in the determination of such an application as the present one is whether or not the applicant has reasonable prospects of success on appeal: Pichanic N.O. v Paterson 1993 (2) ZLR 163 (H); Afrikaanse Pers Beperk v Oliver 1949 (2) SA 890.

Whether or not the application is defective on the alleged ground, which is to the effect that the applicant did not comply with Rule 94 of the rules of court, will unfold itself upon an analysis of the said Rule as well as on a proper interpretation of the same.

Sub-rule (8) of Rule 94 of the rules of court is relevant.

Its import is, that, where leave to appeal is necessary in respect of a judgment given in a civil court, sub-rules 1–7 of the Rule shall apply to an application for leave to appeal…, as if the words 'Prosecutor-General' there were substituted the word 'respondent'.

Sub-rule (1) of Rule 94 of the High Court Rule stipulates, that, where leave to appeal is sought, the applicant:

(a) May apply, orally, immediately after judgment has been entered against it: and

(b) Should state his grounds for the application.

Sub-rule (2) of Rule 94 is to the effect, that, where the applicant has not made an oral application in terms of sub-rule (1), he may file with the Registrar a written application within twelve days of the date of the judgment. The written application must, according to the proviso which is in the sub-rule, state the reasons why the application was not made in terms of sub-rule (1) of Rule 94 of the rules of court.

It is on the strength of the abovementioned sub-rules of Rule 94 of the High Court Rules 2021 that the respondent argued that the application was/is defective.

It submitted, that, the applicant violated sub-rules (1) and (2) as well as the proviso to sub-rule (2) of Rule 94. It insists, that, both sub-rules are peremptory and should, therefore, have been complied with to the letter and spirit.

The respondent's contention, it has been observed, is that the application for leave is defective.

I disagree.

Whilst it is agreed that Rule 94 of the High Court Rules relates to applications for leave to appeal, the Rule is not peremptory as the respondent would have me believe. It is optional or discretionary. Its use of the word 'may' in each subrule says it all.

It only becomes peremptory in paragraph (b) of sub-rule (1).

It becomes mandatory in the sense, that, once the applicant has taken the option to apply orally for leave to appeal, he is enjoined by the Rule to state, as well as record, his grounds of the application as part of the record. The net effect of paragraph (a) of sub rule (1) of Rule 94 of the High Court Rules is that he is at liberty to apply or not to apply orally for leave to appeal.

Equally of importance to the applicant is the discretion which sub-rule (2) of Rule 94 confers upon him.

He may, or may not, file a written application with the Registrar where he has not exercised his right to apply for leave to appeal under sub-rule (1) of Rule 94 of the rules of court. However, where he chooses to exercise his right in terms of Rule 94(2), the proviso to the Rule imposes upon him certain conditions which he must comply with. He must, for instance, state the reason why he refrained from exercising his option in terms of sub-rule (1) of Rule 94. He must also state the proposed grounds upon which he contends that leave to appeal should be granted to him.

What is evident, from a reading of sub-rules (1) and (2) of Rule 94 of the rules of court is that the applicant has a choice to pursue his options under either of the subrules - but not both. What is also clear is that, the moment he takes the one or the other sub-rule, his performance under his chosen sub-rule becomes peremptory leaving him with no choice but to act in accordance with the route which he has taken.

The Rule remains silent where he does not pursue his rights in terms of either sub-rule (1) or sub-rule (2).

It follows, in my view, that, he can choose not to follow the one or the other of the two sub-rules, as the applicant did in casu, and still be able to apply for leave to appeal under the common law.

The question which begs the answer is: can the application which he filed outside Rule 94 of the rules of court be suggested to be defective?

I think cannot.

The application remains as valid as the one which an applicant files under Rule 94 of the High Court Rules 2021. This application cannot, therefore, be said to be defective. It is within the law, so to speak.

For the applicant to succeed in its application for leave to appeal, it must demonstrate that it has reasonable prospects of success on appeal.

In laying down the test of reasonable prospects of success, the authorities were only stating the obvious. The obvious is, that, it would be a waste of the time of the court, and that of the respondent, if the applicant were to appeal just for the fun of it. An appeal which is filed without the applicant's serious intention to test the correctness or otherwise of the decision of the court a quo is frivolous and vexatious. No court will sanction an application which relates to such an appeal.

The context of this application is relevant.

The context is that, on 4 February 2022, TSANGA J, before whom the parties appeared, set specific time-lines within which they were to file their respective papers in preparation for the hearing of the matter. This was scheduled to take place at 10am of 28 March 2022. The learned judge directed, among other directions, that:

(a)…,.

(b)…,.

(c) The applicant a quo shall file its Heads on 16 February 2022; and

(d) The respondent a quo (applicant in casu) shall file its Heads on 2 March 2022.

That both parties filed their respective Heads outside the above-mentioned timelines requires little, if any, debate.

In deciding as I did, I remained alive to the fact, that, the directions of TSANGA J are, no doubt, an order of court which the parties had no choice but to obey.

I was further persuaded by case authority which discussed the issue which the parties had placed before me.

It is, for instance, trite, that, when a court order provides a time limit within which to do something…, such time limits ought to be followed. Failure to comply with such time limits leads to lapsing of the rights conferred therein: The Sheriff of the High Court of Zimbabwe v Madziro & Ors HH670-15.

It is a plain and unqualified obligation of every person against, or in respect of whom the order is made by the court of competent jurisdiction to obey it, unless and until that order is discharged; and, as is known, two consequences flow from that obligation:

(i) The first one is that anyone who disobeys an order of court is in contempt and may be punished by committal or attachment or otherwise.

(ii) The second is that no application to court by such person will be entertained unless he has purged himself of his contempt: Artiknson v Artkinson (1952) 2 All ER 567 (CA).

By not complying with the order of TSANGA J, both the applicant and the respondent were, no doubt, in contempt of the court order.

None of them could therefore be heard unless it purged itself of the contempt.

I found the applicant's finger-pointing at the respondent to have been made without any serious intention on its part. This was a fortiori the case given that it did not, on its part, make any effort to live within the four corners of the court order which the learned judge issued to the respondent and it.

The applicant premised the preliminary point which it raised on the order of TSANGA J. It did not rest it on the rules of court as it seems to suggest in its Heads. It submitted, that, the respondent did not comply with the order of TSANGA J.

Its reliance on Rule 59(21) of the rules of court is, therefore, misplaced.

Because it referred me to the order of the learned judge, the decision which I made was not premised on the rules of court. It rested on the order of the court.

HB57-15 : SIPIWO NKOMO vs MLWELIWENKULULEKO NCUBE
Ruled By: MUTEMA J

This is an application for rescission of a default judgment that was granted against the applicant in case number HC548/14.

The facts relevant to the resolution of the dispute between the parties are briefly these:

The applicant sold a BMW X5 motor vehicle registration number ACX 0734 to the respondent. The respondent paid a deposit of $12,000 and took possession of the vehicle. He, however, failed to pay the balance of $12,175.

The applicant then sued for the balance under case number HC2869/13 and obtained default judgment.

As a follow up to the default judgment, a writ of execution was issued which resulted in the vehicle in question being attached by the Deputy Sheriff.

The respondent filed an application for rescission of the default judgement under case number HC548/14.

The applicant's legal practitioners drew up papers to oppose the application, but, before they filed them, the parties reached a settlement which culminated in the signing of an agreement annexure “D” to applicant's founding affidavit. It was drafted in these words:

“MEMORANDUM OF AGREEMENT

It be and is hereby recorded that following a meeting between:

Plaintiff and her legal practitioner Mr G. Nyoni

Defendant and his legal practitioner Mr S.S. Mazibisa

It was agreed without force; duress and undue influence and the parties conscious of what they were doing, that:

1.The execution of Defendant's property be stayed only and strictly on the following conditions:

(a) That, he pays US$5,000 on 15 April 2014 and US$5,175 on the 6th of May 2014.

(b) That, he pays US$578 paid by Plaintiff to Sheriff of Zimbabwe; Sheriff's further costs and commission; interest of US$250 and costs as will be taxed, all by the 27th of May 2014.

2. The BMW X5 registration number ACX 0734 shall be removed by plaintiff from the Sheriff of Zimbabwe, at Defendant's expense (i.e. storage charges) and kept at Plaintiff's place or other safe place until the defendant has fully paid all monies detailed in paragraph (1) above.

3. Should the Defendant fail to make any one of the payments mentioned in (1) above, the plaintiff shall, without notice to the Defendant, take the vehicle to a car dealer (sellers of second hand vehicles) for the car to be sold by private treat at such reasonable price as will be determined thereat.

4. This memorandum shall stand as Defendant's mandate to the Plaintiff and the said car dealer to sell and transfer the car to the would-be purchaser.

DATED at BULAWAYO on this the 26 day of MARCH 2014.”

It was signed by both parties and their respective legal practitioners.

As a result of the agreement, the application and opposition for rescission under case number HC548/14 could not be pursued.

The respondent failed to meet the payments stipulated in the agreement of 26 March 2014 and the vehicle was taken to a dealer, but, the highest offer received was US9,000. There followed a series of correspondence between the parties legal practitioners concerning the value of the vehicle and whether the respondent should pay the applicant's costs.

On 3 September 2014, the current legal practitioners of the respondent wrote to the applicant's legal practitioners as follows:

“RE: M. NCUBE vs SIPIWO NKOMO

The above matter refers and to our previous conversation.

Kindly note, that, I am preparing a payment plan which is to commence at the end of September 2014 inclusive of clearing the balance if that option is still possible then.

In the meantime, may I please have photocopies of all the filed pleadings since Messrs Cheda and Partners seem to have lost the whole file in their moving offices. I have tried to photocopy directly from the High Court, but, at a dollar per page, it was too stiff, hence the favour that I now seek.”

The respondent was obliged with the documents he requested, which papers he then used to pursue his application for rescission of judgment in case number HC548/14 which had been laid in abeyance by the memorandum of agreement alluded to above - without alerting the applicant.

On 23 October 2014, the respondent obtained a default judgment, with costs, rescinding the judgment the applicant had obtained in HC2869/13.

The applicant says she was shocked to receive a letter, on 19 November 2014, written to her legal practitioners by the respondent's current legal practitioners to this effect:

“RE: MLWELIWENKULULEKO NCUBE vs SIPIWO NKOMO HC548/14 X REF HC2869/13

The above matter refers and to the attached court order.

Be advised that we have since obtained a rescission of judgment of the order which was in favour of your client. Mr Ncube had clearly wanted this matter to rest and had resigned himself to losing both the BMW X5 and the money, a sum of US$12,000, plus other monies that he had paid to the sheriff.

What he then found unfair was the fact that your client wanted to further make him pay a sum in excess of US$2,000 as legal costs when she had both the car and the money. Clearly, that was for all to see, a gross injustice.

In light of the rescission of judgment may the status quo before the judgment be restored, and the matter proceed through normal trial route and Mr Ncube pays the balance which was owing. Failing which, may your client make arrangements to refund the money paid to her by Mr Ncube, by the 1st of December, 2014.

As yours took back possession of the vehicle, which she is using, as we are told by Mr Ncube that he has seen her use the motor vehicle, there is therefore no legal basis for her not to return the money since she had taken back the motor vehicle and enjoys its use.”

That letter elicited a response from the applicant's legal practitioners in this vein:

“We refer to the above matter and to your 19 November 2014 letter. We are, we should confess, shocked by your stance which borders on lack of candour and dishonesty. There is a memorandum of agreement that you signed. Did you disclose it to the court? We are interested in this because we saw the papers in court and the agreement was not part thereof. Can we hear from you urgently as we are determined to take this back to court and to show the court that it was, in our view, at least, misled.”

This letter provoked no response from the respondent hence the current application.

At the hearing of the application, counsel for the respondent attempted, in vain, to introduce cases not cited in the respondent's heads of argument on the basis that he was only briefed by Ndove, Museta and Partners the day before.

I disallowed it in terms of Rule 238(2c) because Ndove, Museta and Partners had been served with the notice of set down on 12 February 2015 but briefed counsel on the eleventh hour. No explanation for that was forthcoming.

As if that was not enough, counsel for the respondent went on to smuggle into the hearing new issues that appear not anywhere in the papers in an endeavour to persuade the court to dismiss the application.

I will proceed to deal with those technical issues that he raised first before adverting to those raised in the opposing affidavit and the heads of argument....,.

2. That the application is defective for want of stating in terms of what Rule it is being brought and that the draft order does not seek leave of the court to file opposing papers if rescission is granted

With respect, I consider the submission trifling.

It is often said that law, unlike mathematics, is not an exact science. While this is true for substantive law, it should also equally apply to procedural law. One cannot be expected to apply procedural law with mathematical precision to the extent that failure to cite the relevant Rule in terms of which any document is introduced in a suit becomes fatal to that suit.

Some legal aspects should not be resolved on technicalities if the facts do ventilate what the real issue is and that issue is known to be provided for in the Rules.

For instance, paragraph 10 of the founding affidavit does ventilate and allege that the default judgment complained of was granted in error and the failure to state that the application is being brought in terms of Rule 449(1)(a) should not be fatal to the entire application.

Regarding the complaint against the draft order, surely this is a minor omission which the court has the power of discretion to put right by simply inserting a time frame within which the applicant must file her opposing papers.

HH02-22 : LIVISON CHIKUTU and PHENEAS CHITSANGE and ALBERT DHUMELA vs MINISTER OF LANDS, AGRICULTURE, WATER, CLIMATE & RURAL RESETTLEMENT and OTHERS
Ruled By: MAFUSIRE J

This is a constitutional application.The applicants want section 4 and section 6(1)(b) of the Communal Land Act [Chapter 20:04] declared ultra vires the Constitution of Zimbabwe.The draft order does not identify which particular sections of the Constitution the impugned provisions allegedly conflict with; but, according to the founding affidavit, the ...

CC01-21 : PRESIDENT OF THE SENATE and PARLIAMENT OF ZIMBABWE and SPEAKER OF THE NATIONAL ASSEMBLY vs INNOCENT GONESE and JESSIE MAJOME and MINISTER OF JUSTICE, LEGAL & PARLIAMENTARY AFFAIRS and PRESIDENT OF REPUBLIC OF ZIMBABWE
Ruled By: MAKARAU AJCC, GOWORA AJCC and PATEL AJCC

MAKARAU AJCC:IntroductionOn 31 March 2020, this Court handed down judgment number CC04-20, disposing of two applications made by the first and second respondents against the applicants and the third and fourth respondents under cases number CCZ57/2017 and 58/2017 respectively.The two applications, filed separately, and on different dates, were brought in ...

MAKARAU AJCC:

Introduction

On 31 March 2020, this Court handed down judgment number CC04-20, disposing of two applications made by the first and second respondents against the applicants and the third and fourth respondents under cases number CCZ57/2017 and 58/2017 respectively.

The two applications, filed separately, and on different dates, were brought in terms of section 167(2)(d) of the Constitution as read with Rule 27 of the Constitutional Court Rules 2016, alleging, that, the second applicant had failed to fulfil the obligation to pass Constitutional Bill (No.1) of 2017 in accordance with the Constitution.

The first application was filed in September 2017, before Constitutional Amendment Bill (No.1) of 2017 was presented to the President for assent, whilst the second application was filed in December 2017, after the Bill had been assented to and had been gazetted as an Act of Parliament.

In view of the fact, that, the allegations made in the two applications were the same and raised the same issues for determination, the applications were consolidated and heard as one.

No import was attached to the different legislative stages through which the amendment Bill passed as the singular order that was issued by the Constitutional Court, under judgment number CC04-20, in respect of both applications, reads:

“(a) The proceedings in the Senate, on 01 August 2017, when Constitutional Amendment Bill (No.1) of 2017 was passed, be and are hereby set aside, for the reason that a two-thirds majority vote was not reached in that House.

(b) The Senate is directed to conduct a vote in accordance with the procedure for amending the Constitution prescribed by section 328(5) of the Constitution within one hundred and eighty days of this order, failing which the declaration of invalidity of Constitutional Amendment Bill (No.1) of 2017, in para 1(a), shall become final.

2. The applicant's allegations, that, there was no vote in the National Assembly on 25 July 2017, when Constitutional Amendment Bill (No.1) of 2017 was passed, be and is hereby dismissed for lack of merit.

3. The applicant's allegation, that, a two thirds majority was not reached in the National Assembly on 25 July 2017, when Constitutional Amendment Bill (No.1) of 2017 was passed, be and is hereby dismissed for lack of merit.

4. There is no order as to costs.”

The one hundred and eighty days stipulated in paragraph (b) of the order commenced to run on 1 April 2020 and expired on or about 28 September 2020.

The directive in that order was not complied with for reasons that are set out in the applicants founding affidavit.

On 25 September 2020, upon realising that the one hundred and eighty days would expire shortly thereafter, the applicants filed an urgent ex parte chamber application in this Court, securing, on 28 September 2020, a provisional order extending the period and concomitantly further suspending the coming into effect of the order of invalidity of the amendment to a date following the determination of this application.

On 6 October 2020, the provisional order was confirmed with the consent of the parties.

Simultaneously with the urgent ex parte application referred to above, the applicants filed this application, seeking an order for the extension of the 180 days within which the second applicant had to comply with the directive of the court.

The draft order did not seek an extension of the suspension of the order of invalidity of Constitutional Amendment Bill (No.1) of 2017.

The application was set down before us for determination....,.

The Application

In the founding affidavit, the applicants made one material averment.

They averred, that, the judgment of the court, number CC04-20, was handed down one day before a national lockdown was imposed in response to the threat of and to contain the spread of the corona virus.

They further averred, that, the Regulations that were enacted to enforce the lock-down, initially, banned the sittings of the Senate totally as the second respondent was not classified as an essential service provider. It was barred from convening at all for any business.

Later, the Regulations were relaxed to allow the second applicant to convene for business, but, restricted the number who could lawfully attend any one sitting to less than 50 Senators, a number below the requisite quorum for the passing of a Constitutional Amendment Bill.

As a result, the applicants averred, that, the Senate could not sit to comply with the directive of the court within the period stipulated in the order.

Only the first respondent opposed the application.

On 20 October 2020, counsel for the third and fourth respondents wrote to the Registrar of this Court advising that he did not file opposing papers for the third and fourth respondents as they did not intend to oppose the order sought by the applicants.

The letter was a courtesy to the Court.

In addition to opposing the application on its merits, the first respondent raised two preliminary issues:

(i) It was contended, firstly, that, the applicants had no locus standi to procure the relief sought.

It was argued, both in the opposing affidavit and in the oral submissions by counsel, that, the passage of Constitutional Bills in the Senate is, in accordance with the principles of the separation of powers among the three arms of State, the prerogative of the Executive, which is given the function to prepare, initiate, and to implement national legislation by section 110 of the Constitution.

The argument proceeded to urge us to hold, that, the applicants, representing the Legislative organ of State, could not procure the relief sought as they lacked the mandate to initiate national legislation.

(ii) Secondly, it was argued, again in limine, that, the order sought in this application is unconstitutional, as it will offend against the provisions of section 147 of the Constitution.

Section 147 of the Constitution provides, that, upon the dissolution of Parliament, all proceedings pending at the time of dissolution are terminated and every Bill, motion, petition or other business lapses.

It was thus pressed upon us, that, Constitutional Amendment Bill (No.1) of 2017 lapsed when the 8th Parliament was dissolved to make way for the general elections of 2018.

The argument concluded by urging us to find, that, the Bill cannot be legitimately voted into an Act of Parliament by the 9th Parliament which is currently in session.

Regarding the merits of the application, the first respondent argued, that, the Senate had more than twenty sittings between the date of the judgment and the expiry of the stipulated one hundred and eighty days and could have, had it so desired, complied with the order of the Court during any one of these sittings.

The dates of such sittings, and the number of Senators in attendance at each sitting, were given.

It was thus argued, that, the restrictions imposed by the lock down regulations on the business of the Senate were but an excuse for the indifference of the Senate to the court order.

The Issues

The issues that arise for determination in this application are clear cut. Two arise in limine. These are:

(i) Firstly, whether the applicants have locus standi to bring this application; and

(ii) Secondly, whether the order of extension sought in this application is unconstitutional.

On the merits, there is only one issue. This is whether the applicants have made out a case for the extension of paragraph (b) of the order.

I now turn to discuss the issues in seriatim.

Whether the Applicants have Locus Standi

The first respondent invoked the application of the principle of separation of powers as the sole basis upon which to challenge the standing of the applicants to bring this application.

He correctly observed, that, the Constitution recognises and provides for the separation of powers among the organs of State.

He further drew the Court's attention to the provision of the Constitution which reposes in the Executive the function to prepare, initiate, and implement national legislation. He argued, that, the applicants, representing the Legislature, had no such function and therefore did not have the necessary mandate to enable them to comply with the court order.

It was the essence of the first respondent's argument, that, Parliament, particularly the Senate, as a chamber of Parliament, could not be foisted with the power of piloting a Bill through the house as that would blur the lines demarcating the mandate of the Legislature from that of the Executive in violation of the doctrine of the separation of powers.

To complete the argument, it was pressed upon us, that, the third respondent, who was a party to the proceedings under cases number CCZ57/17 and 58/17 respectively, ought to have filed the application seeking to extend the period within which to cure the defect attendant upon the passing of Constitutional Amendment Bill (No.1) of 2017 as the Executive, not Parliament, was in charge of the Constitutional Amendment agenda.

In the words of counsel, the applicants could not be dominus litis in this application, but, the third respondent could and ought to have been.

It presents itself clearly to me, that, had this application been an application to this Court at first instance, without any background to it, wherein the applicants were seeking an order granting them leave or power to pass Constitutional Amendment No.1 Bill, or any other legislation for that matter, through the Senate, the first respondent's argument might have detained us.

It is common cause, that, this application is not an application at first instance.

It is not laying out a new cause for our determination. It is based on the two applications that I referred to above. It is seeking to extend the lifespan of part of the order that was given in those earlier proceedings.

In a very broad sense, it can and ought to be regarded as a continuum of the earlier proceedings.

CC01-21 : PRESIDENT OF THE SENATE and PARLIAMENT OF ZIMBABWE and SPEAKER OF THE NATIONAL ASSEMBLY vs INNOCENT GONESE and JESSIE MAJOME and MINISTER OF JUSTICE, LEGAL & PARLIAMENTARY AFFAIRS and PRESIDENT OF REPUBLIC OF ZIMBABWE
Ruled By: MAKARAU AJCC, GOWORA AJCC and PATEL AJCC

MAKARAU AJCC:

Introduction

The Application

The Issues

Whether the Order Sought in this application is Unconstitutional

It was contended, and spiritedly so, that, this Court is hamstrung from issuing the order sought as such an order would be unconstitutional in that it would offend against the provisions of section 147 of the Constitution.

Quite clearly, the argument attacked the alleged constitutionality of the extension sought.

It correctly did not seek to attack the constitutionality of the order made on 31 March 2020. This is because the order of the Court, given on 31 March 2020, is final; being a decision of an apex court on Constitutional matters, it is not subject to any further review or appeal.

The law protecting the integrity of decisions of apex courts is settled.

It is an integral principle of the rule of law and is manifest in the doctrine of judicial precedent or stare decisis. The rationale of the doctrine is basically the need to ensure certainty in the law and finality in litigation.

In section 167(1), the Constitution provides, that, this Court is the apex court in all constitutional matters, while, in section 169(1) it provides, that, the Supreme Court is the final court of appeal save in matters over which the Constitutional Court has jurisdiction.

I digress briefly, and for comparative purposes, to note, that, the provisions of section 169(1) of the Constitution, in turn, form the basis of section 26 of the Supreme Court Act which provides that:

“26 Finality of decisions of Supreme Court

(1) There shall be no appeal from any judgment or order of the Supreme Court.

(2) The Supreme Court shall not be bound by any of its judgments, rulings, or opinions nor by those of any of its predecessors.”

Discussing the principles that emerge from the above provision, the Chief Justice, in Lytton Investments (Private) Limited v Standard Chartered Bank Zimbabwe Limited and Another CC11-18 had this to say…,:

“A decision of the Supreme Court, on any non-constitutional matter in an appeal, is final. No court has power to alter the decision of the Supreme Court on a non-constitutional matter. Only the Supreme Court can depart from or overrule its previous decisions, ruling, or opinion on a non-constitutional matter.”

Whilst the Constitutional Court Act is yet to be promulgated, the absence of the equivalent of section 26 of the Supreme Court Act for the Constitutional Court is of no import.

The words of the Chief Justice, in Lyttton Investments (Private) Limited v Standard Chartered Bank Zimbabwe Limited and Another CC11-18, on the finality of decisions of the Supreme Court on non-constitutional matters, apply with equal force to the finality of the decisions of this Court on all constitutional matters.

A decision of the Constitutional Court, on a constitutional matter, is final.

No court has power to alter the decision of the Court. Only this Court can depart from its previous decisions, rulings, or opinions.

I venture to add for emphasis, that, only this Court, in a future and appropriate constitutional matter, may overrule or depart from its previous order.

This application is not such a case where the court can overrule or depart from its previous order.

Accepting as we must, that, the constitutionality or otherwise of the order made by this Court on 31 March 2020 does not arise for debate, and cannot be debated by this Court in this application, the issue that then exercises the mind is: how to debate the constitutionality of the order sought in this application without, by implication, reviewing and debating the constitutionality of the order of 31 March 2020.

I have not been able to find a legal principle by which this can be achieved.

This is so, because, the application before us is not for the issuance of a new or fresh order. It is an application to extend the lifespan of part of the order given on 31 March 2020.

Having failed to find any principle, in the circumstances of this application, that I can invoke to separate the order sought in this application from the order that was made on 31 March 2020, I am constrained to rule against the second point in limine because it is incompetently raised.

Any finding by this Court that the order sought in this application violates the Constitution is, by implication, a finding that the order of the Court, as handed down on 31 March 2020, was unconstitutional.

I refrain from making such a finding in deference to the principle protecting the finality of the decisions of the Constitutional Court. The integrity of the decisions of this Court, on constitutional matters, must be preserved at all times and against all other considerations.

I come to the above conclusion notwithstanding the fact, that, this Court, like the other organs of State, has an obligation to ensure that the provisions of the Constitution are always venerated.

This Court is the guardian of the Constitution. Its role, in upholding the rule of law, must never be doubted.

In this regard, I have again been guided by the remarks by the Chief Justice in Lyttton Investments (Private) Limited v Standard Chartered Bank Zimbabwe Limited and Another CC11-18 where he had this to say about the Constitutional Court:

“The court is a specialised institution, specifically constituted as a Constitutional Court with the narrow jurisdiction of hearing and determining constitutional matters only. It is the supreme guardian of the Constitution and uses the text of the Constitution as its yardstick to assure its true narrative force. It uses constitutional review predominantly, albeit not exclusively, in the exercise of its jurisdiction.”

Whilst being keenly aware of the challenges facing the order of this Court, as granted on 31 March 2020, the principle preserving the integrity of the decisions of this Court, and protecting the finality of decisions of this Court, as the apex court on constitutional matters, itself a constitutional precept, must hold sway against all other considerations in this matter.

In adopting the stance that I have, I take solace from the fact, that, the constitutionality of the order of 31 March 2020, whist not debatable in this application, may be debated in an appropriate matter in the future, where the interpretation of section 147 of the Constitution is the cause of action.

The order of 31 March 2020, whilst final, is not binding on this Court.

It is therefore my conclusion, in relation to the second preliminary issue, that, the constitutionality of the order sought in this application does not arise for determination in this matter as any such determination will entail revisiting and reviewing the earlier decision of this Court made in the same matter....,.

GOWORA AJCC:

I have perused the judgment of my learned sister MAKARAU AJCC. I do not intend to set out the facts pertaining to the application before the court as she has set those facts out succinctly.

I am constrained to disagree with my learned sister judge on certain aspects of the application and the conclusions she has reached in respect of the same.

I agree with her conclusions as to the jurisdiction of the court as constituted to hear the matter. In my view, her conclusions, as to the jurisdiction of the court as constituted, is in accordance with the provisions of section 166 of the Constitution.

I turn to the substance of the matter.

The first respondent raised two points in limine:

(i) The first being, that, the applicants herein lack the requisite the locus standi to bring the application.

(ii) The second point in limine raised was to the effect, that, the application is itself unconstitutional.

MAKARAU AJCC found, that, the applicants do in fact have the necessary locus standi to bring the application and I have no further comments to make on that issue.

As to the second point, my learned sister dismissed the challenge to the constitutionality of the application and went on to find, that, the applicants had made out a case for the grant of the application.

It is the finding of the constitutionality of the application, and the consequential grant of the order sought, that I respectfully disagree with.

In my respectful view, the application is unconstitutional, as argued, and the grant of the application consequent thereto cannot be sustained.

My reasons for dissenting with my learned sister are the following.

It is not in dispute, that, on 31 March 2020, the Constitutional Court, sitting as a full Bench, declared that the passing of Constitutional Amendment Bill No.1 of 2017, by the Senate, on 1 August 2017, was inconsistent with the provisions of the Constitution.

The proceedings by the Senate, of the day in question, were set aside.

The Senate was directed to conduct a vote in accordance with the procedure for amending the Constitution within one hundred and eighty days from the date of the order.

This was not done; which is the reason for the application to court for an extension of time to conduct the vote….,.

In my view, the order of 31 March 2020 is not an issue for determination before the court. What is critical is the effect that section 147 of the Constitution has on the application before us.

In its judgment of 21 March 2020, the full Bench found, as a fact, that, Amendment Bill Number 1 had not been passed in accordance with the requirements of the Constitution. The required number of votes to pass the Bill were short resulting in the Bill failing to pass the test. As a result, the Bill did not become law.

The first respondent has raised, as a point in limine, the application of section 147 of the Constitution to this application.

He contended, that, as the Bill never became law, in essence, it must be considered as a pending Bill under section 147 of the Constitution.

On a proper construction of the section, once it is accepted, that, it was pending; did not pass into law; it therefore stands to reason, so the argument goes, that, the Bill must have lapsed when Parliament was dissolved in July 2018.

It is common cause, that, Parliament was dissolved in July 2018 to make way for general elections which took place on 31 July 2018.

Section 147 of the Constitution, which the first respondent relies on the argument that the order sought is unconstitutional, reads as follows:

“147 Lapsing of Bills, motions, petitions and other business on dissolution of Parliament

On the dissolution of Parliament, all proceedings pending at the time are terminated, and every Bill, motion, petition, and other business lapses.”

As a result of the declaration of invalidity by this Court, Constitutional Amendment Bill No.1 never became law. By parity of reasoning, it would then revert to a Bill pending before the Senate for the conduct of a proper vote as directed by this court.

It was inevitably affected by the dissolution of Parliament in that it automatically lapsed.

I am not dwelling on when the order was granted. It was invalid by process of law from not having been passed in accordance with the Constitution. Thus, there is no Bill to debate and vote on. The Senate would have to commence the process afresh following the setting aside of the proceedings by which the invalid votes were garnered.

Section 147 of the Constitution must be given effect to.

There is no Bill left to debate. Any attempt by the Senate to debate and vote a Bill that has lapsed, by operation of law, is in violation of the Constitution itself. The Constitution protects itself.

Section 2 of the Constitution tells us so in clear and unequivocal terms. It provides:

“2 Supremacy of Constitution

(1) This Constitution is the supreme law of Zimbabwe and any law, practice, custom or conduct inconsistent with it is invalid to the extent of the inconsistency.

(2) The obligations imposed by this Constitution are binding on every person, natural or juristic, including the State and all executive, legislative, and judicial institutions and agencies of government at every level, and must be fulfilled by them.”

On a proper construction of the above section, if Senate is availed the opportunity to sit, debate, and vote on a Bill that is no longer in existence would be to violate the Constitution itself.

A vote on a Bill that has been declared, by section 147 of the Constitution, as having lapsed by virtue of the dissolution of Parliament, would, in my view, be inconsistent with section 147 of the Constitution.

I wish to quote, with respect, the view expressed by PATEL JA in Judicial Services Commission v Zibani & Ors SC68-17 to the following effect:

“Supremacy of the Constitution

It is axiomatic that Zimbabwe is a constitutional in contradistinction to a parliamentary democracy: see Biti & Anor v Minister of Justice Legal and Parliamentary Affairs & Anor 2002 (1) ZLR 177 (S) at 190A-B. This fundamental principle and its concomitant legal ramifications and obligations are codified in section 2 of the Constitution as follows:

'(1) This Constitution is the supreme law of Zimbabwe, and, any law, practice, custom or conduct inconsistent with it is invalid to the extent of the inconsistency.

(2) The obligations imposed by this Constitution are binding on every person, natural or juristic, including the State and all executive, legislative, and judicial institutions and agencies of government at every level, and must be fulfilled by them.'

Section 3 of the Constitution enshrines the founding values and principles of Zimbabwe. In its relevant parts it provides that:

'(1) Zimbabwe is founded on respect for the following values and principles —

(a) Supremacy of the Constitution;

(b) The rule of law;

(c) Fundamental human rights and freedoms;

(d)…,.;

(e)…;

(f)…;

(g)…;

(h) Good governance; and

(i)….;

(2) The principles of good governance, which bind the State and all institutions and agencies of government, at every level, include —

(a)…;

(b)…;

(c)…;

(d)…;

(e) Observance of the principle of separation of powers;

(f) Respect for the people of Zimbabwe, from whom the authority to govern is derived;

(g) Transparency, justice, accountability and responsiveness;

(h)…;

(i)…;

(j)…;

(k)…; and

(l)….'

By virtue of the foregoing principles, the Constitution demands strict compliance with its substantive provisions and all laws enacted under its aegis. It also demands meticulous adherence to the procedures and processes prescribed under the Constitution. These principles bind everyone, including the appellant, which, as an executive institution, is expressly bound to comply with the substantive and procedural requirements of the Constitution.”

When one has regard to the comments of PATEL JA above, it becomes obvious, that, the Constitution demands strict compliance with all its provisions and one such provision is section 147.

It impacts on procedures in Parliament.

Where processes demanded of Parliament are found not to be in strict adherence with the requirements of the Constitution, then, those processes must be adjudged as having been inconsistent with the Constitution.

CURRIE & De WAAL, The Bill of Rights Handbook 6ed…, in discussing section 2 of the South African Constitution, an exact replica of section 2 of our own Constitution, make the observation that:

“The first principle, constitutional supremacy, dictates, that, the rules and principles of the Constitution are binding on all branches of the State and have priority over any other rules made by government, the legislature, or the courts. Any law or conduct that is not in accordance with the Constitution, either for procedural or substantive reasons, will therefore not have the force of law. Section 2 of the Constitution gives expression to the principle of Constitutional supremacy. It states, that, the 'Constitution is the supreme law of the Republic; law or conduct inconsistent with it is invalid, and the obligations imposed by it must be fulfilled.'”

The process by which the Senate passed Amendment Bill No.1 of 2017 was found, by the Court, as having been in violation of the strict requirements of the Constitution.

In this instance, to order the Senate to conduct “a vote on Bill No.1 of 2017” would be to order, as a court, the doing of conduct which the Constitution itself has proscribed as being inconsistent with its own provisions.

In effect, it would be a negation of the principle of constitutional supremacy.

There is no Bill to debate or conduct a vote on.

Section 2(2) of the Constitution requires that all persons, including judicial institutions, observe and abide by the obligations set out in the Constitution.

Therefore, to the extent, that, the court would be inclined to grant an order extending the time frame in which the Senate is given leave to debate a Bill that is no longer in existence by virtue of section 147 of the Constitution would be to give effect to an order that is inconsistent with section 147 of the Constitution.

This, in my view, is impermissible.

Turning to the issue of the finality of orders of the court, I would not disagree with my learned sister on her conclusions.

The orders of the court are final.

However, in this instance, the order of 31 March 2020, by this court, is not an issue for debate. Neither party sought to depart from the order. The applicants approached the court seeking an indulgence for the due performance by them of certain directions emanating from the order in question.

The contention, on the part of the first respondent, as I understand it, is that the direction can no longer be given effect to by virtue of the lapse of the Bill by operation of law. The order is not being interfered with in any manner. It is extant. The time-frame within which the applicants could have availed themselves of the lifeline given to them under the order having elapsed, and the Bill itself having lapsed, the direction cannot be given effect to.

This application cannot resuscitate something that has expired.

The first respondent has not touched on the order itself. All that has been argued is that the indulgence sought can no longer be granted due to the provisions of section 147 of the Constitution. Therefore, the contention made is that the grant of the indulgence is itself inconsistent with the Constitution.

I must agree with the first respondent.

The order of invalidity, as regards the Bill cannot be ignored. This is the first premise in the consideration of the application. It was adjudged as being invalid. That said, the Bill cannot be resuscitated through this application. It lapsed by operation of law. The grant of the application, in these circumstances, would be inconsistent with the Constitution. A refusal to grant the application has no impact on the order of 31 March 2020.

For the above reasons, it is my view, that, the application should be dismissed with no order as to costs....,.

PATEL AJCC:

I have read and carefully considered the lead judgment and dissenting opinion of my learned sisters, MAKARAU AJCC and GOWORA AJCC, respectively.

I find myself in the invidious position of having to agree with both, substantially in respect of the former, and partially as regards the latter.

The critical issue in contention concerns the second point in limine taken by the first respondent, to the effect, that, the order sought in this application is unconstitutional as it will offend the provisions of section 147 of the Constitution.

Section 147 of the Constitution stipulates that:

“On the dissolution of Parliament, all proceedings pending at the time are terminated, and every Bill, motion, petition and other business lapses.”

In dismissing the second point in limine, MAKARAU AJCC concludes that “the constitutionality of the order sought in this application does not arise for determination in this matter, as, any such determination will entail revisiting and reviewing the earlier decision of this Court made in the same matter.”

On the other hand, GOWORA AJCC takes the position, that, the Constitution Amendment Bill (No.1) of 2017 “was inevitably affected by the dissolution of Parliament, in that, it automatically lapsed” and that “there is no Bill to debate and vote on.”

The learned judge accordingly concludes that “the Bill cannot be resuscitated through this application. It lapsed by operation of law. The grant of the application, in these circumstances, would be inconsistent with the Constitution.”

I cannot but agree with GOWORA AJCC, that, the supremacy of the Constitution, as enshrined in section 2 of the Constitution, dictates that any law, practice, custom, or conduct that is inconsistent with the supreme law is invalid to the extent of the inconsistency.

The ineluctable consequence of this principle, is that, anything done by Parliament that is contrary to the provisions of the Constitution, including section 147 of the Constitution, would be invalid and unconstitutional to the extent of such inconsistency.

Nonetheless, in the particular circumstances of this matter, despite the clear substantive implications of section 2 of the Constitution, I am inclined to concur with the predominantly procedural stance adopted by MAKARAU AJCC in the determination of this application.

I do so for the following reasons, and in accordance with the principles that she has fully and ably expounded.

It must be emphasised, that, the order granted by this Court, on 31 March 2020, is nothing less than a final order. As such, it may only be reviewed or overruled by this Court in a separate and distinct matter that might arise for determination in the future, where such departure is appropriate and justified.

It cannot be departed from in the same matter, as is the case with the application before us, wherein the original cause of action has remained unaltered.

In my view, the same considerations must also apply to any extension of the original order, founded on the same cause of action and granting essentially the same relief.

It follows, that, the constitutionality of the order sought by the applicants in casu cannot be challenged or debated in this particular application. It also follows, that, there is nothing to preclude the grant of the indulgence and relief sought by the applicants - which relief is apparently unassailable on the merits.

Having taken the position that I have, I am nevertheless constrained to caution, that, their success in this application does not constitute any licence for the applicants to violate the requirements of the Constitution or to disregard any of its provisions.

This point was aptly underscored in the case of Nkomo & Ors v T M Supermarkets (Private) Limited CC04-19, where this Court held, that, anything done in contravention of the Constitution is a nullity.

Therefore, any act or conduct by the applicants, in direct violation of the Constitution, will remain a nullity - even if carried out purportedly in compliance with the order of this Court.

Consequently, in the event that they decide to proceed with the Constitution Amendment Bill (No.1), they would be obligated to do so, not only in accordance with the voting requirements prescribed in section 328 of the Constitution, but, also in conformity with any other relevant and applicable constitutional injunction - including the legal ramifications of section 147 of the Constitution.

Finally, although this aspect is not directly pertinent in casu, I should point out, for the sake of completeness, that, certain provisions in the Constitution Amendment Bill (No.2) of 2019, relating to judicial appointments, under section 180 of the Constitution, are predicated on the provisions of the earlier Constitution Amendment Bill (No.1) having been duly enacted in their present form.

This is an aspect that the applicants would need to consider and take into account in proceeding with either or both of the Bills concerned.

To conclude, I would, for the aforestated reasons, grant the present application in accordance with the order made by MAKARAU AJCC as set out above.

CC02-21 : TEMBA MLISWA vs PARLIAMENT OF THE REPUBLIC OF ZIMBABWE
Ruled By: MALABA CJ, GWAUNZA DCJ, GARWE AJCC, MAKARAU AJCC, GOWORA AJCC, HLATSHWAYO AJCC and PATEL AJCC

BackgroundThe applicant is a duly elected Member of Parliament for the Norton Constituency. On 24 June 2020, during an ordinary sitting of the National Assembly over which the Speaker of Parliament was presiding, he was removed from Parliament and suspended for six consecutive sittings for allegedly behaving in a violent ...

Background

The applicant is a duly elected Member of Parliament for the Norton Constituency. On 24 June 2020, during an ordinary sitting of the National Assembly over which the Speaker of Parliament was presiding, he was removed from Parliament and suspended for six consecutive sittings for allegedly behaving in a violent and grossly disorderly manner.

The expulsion and suspension were ordered by the Speaker of Parliament (“the Speaker”).

Aggrieved by the expulsion and suspension, the applicant filed this application on 20 July 2020. The application, brought specifically in terms of section 167(2(d) of the Constitution, alleged that the respondent had failed to fulfil a constitutional obligation to ensure compliance with its Standing Orders.

In particular, the applicant sought to demonstrate how the expulsion was inconsistent with the procedures and the powers granted to the Speaker by the Standing Orders and in terms of which the Speaker purportedly acted.

The applicant further denied having been disorderly as alleged or at all. He also challenged the propriety and validity of the punishment that was meted out to him on the basis that he was not afforded the right to be heard before he was punished.

The application was opposed with the respondent's opposing affidavit being deposed to by the Speaker.

In addition to opposing the matter on the merits, the respondent raised five preliminary points.

Not necessarily in the same order in which the points were raised in the opposing affidavit, the respondent;

(i) Challenged the jurisdiction of this Court;

(ii) The validity of the application itself, by alleging that it was fatally defective for want of compliance with the rules of the court; and

(iii) The efficacy of the relief sought which it alleged was moot since the applicant had already served the punishment by the time of the filing of the application.

(iv) The respondent also challenged the non-joinder of the Speaker which it alleged was fatal to the application; and

(v) Finally, it requested that this Court withholds its jurisdiction as the matter was pending before the High Court where similar relief had been sought under case no. HC3367/2020.

Regarding the merits of the application, the respondent contended, in the main, that, the applicant had indeed behaved in a disorderly manner and that the punishment meted out to him was appropriate and in accordance with the powers granted to the Speaker by the Standing Orders. The respondent specifically denied, that, the Speaker had exceeded his authority and powers as alleged in the application or at all.

The Issue

As stated above, the respondent raised the issue of the jurisdiction of this Court as one of its preliminary points. This it however did in direct response to the allegation that the applicant had not been afforded the right to be heard before he was punished.

In response to this specific allegation, the respondent contended, that, the applicant ought to have approached the High Court on review, challenging the procedure leading to his punishment. It was thus the position of the respondent, erroneously held in my view, that, since the High Court also enjoyed review jurisdiction in the matter, the jurisdiction of this Court was not triggered.

Whilst nothing turns on this point, I wish to note, in passing, that, this Court enjoys concurrent jurisdiction with other courts in constitutional matters. The coincidence of jurisdiction with the other courts does not oust the jurisdiction of this court.

The position may be contrasted with instances where this court has been granted exclusive jurisdiction. In those instances, naturally, it is the jurisdiction of the other courts that is ousted even if the matter is, technically, a constitutional matter.

Without necessarily accepting as correct the basis upon which the respondent challenged its jurisdiction in the matter, the court, was, on its own accord, concerned with whether its jurisdiction had been triggered at all by the averments made in the application taken in their totality.

It therefore raised the issue for preliminary argument.

The specific question put to both parties for the preliminary address was whether the applicant had chosen the appropriate forum and remedy for the vindication of his alleged injury.

Therefore, the sole issue that fell for determination in this preliminary ruling was whether the conduct complained of by the applicant was conduct signifying failure by the respondent to fulfil a constitutional obligation.

The Submissions

In the main, counsel for the applicant submitted, that, by failing to follow the provisions of its own Standing Orders, the respondent had failed to uphold the rule of law and had acted without due process.

To buttress his submissions in this regard, counsel relied heavily on the principles of constitutional supremacy and accountability and on which he expended the bulk of his time and energy.

Regarding the jurisdiction of this Court, counsel submitted, that, this court had jurisdiction as the respondent had a constitutional obligation which it breached “through its Speaker”.

It was thus his argument, that, the Speaker and the respondent were inseparable and that once he was in the House, the Speaker represented the respondent. On that basis, he invited us to find, as a fact, that, the expulsion and suspension of the applicant was conduct by the respondent “through its Speaker”.

Counsel for the respondent, in turn, submitted, that, the application was not properly before the court as the conduct complained of was not that of the respondent.

It was his argument, that, the Speaker is separate and distinct from the respondent.

In support of this argument, counsel maintained the respondent's position, once again erroneously held in my view, to the effect, that, the Speaker ought to have been cited as a co-respondent in this application as he was the decision maker in the instance and it is his conduct that allegedly violated the provisions of the Standing Orders.

The Law

That the power granted to the courts by the new Constitution, to hold public officers accountable to the Constitution, marks a clear departure from the State power sharing arrangement provided for under the repealed Constitution, and the jurisprudence that emerged under that order is now commonplace.

Our constitutional order has evolved from one where the conduct of those wielding public power was predominantly immune to judicial review, insulated and shielded from such by the strict application of the doctrine of separation of powers, to one where the conduct of all public affairs must measure up to the constitutional imperatives under the watchful eye of the judiciary, which, in turn, is also obliged to always venerate the Constitution.

Commenting on the new constitutional order, PATEL JA, in Judicial Service Commission v Zibani & Others SC68-17 had this to say:

“It is axiomatic that Zimbabwe is a constitutional in contradistinction to a parliamentary democracy: see Biti & Anor v Minister of Justice, Legal and Parliamentary Affairs & Anor 2002 (1) ZLR 177 (S) at 190A-B. This fundamental principle and its concomitant legal ramifications are codified in section 2 of the Constitution as follows:

(1) This Constitution is the supreme law of Zimbabwe, and, any law, practice, custom or conduct inconsistent with it is invalid to the extent of the inconsistency.

(2) The obligations imposed by this Constitution are binding on every person, natural or juristic, including the State and all executive, legislative, and judicial institutions and agencies of government at every level, and must be fulfilled by them.”

Adding a building block onto the now settled jurisprudence on the new Constitutional dispensation, HLATSHWAYO JCC, in Chironga and Another v Minister of Justice, Legal and Parliamentary Affairs and Others CC14-20 opens his judgment by noting that:

“One of the crucial elements of the new constitutional dispensation, ushered in by the 2013 Constitution, is to make a decisive break from turning a blind eye to constitutional obligations. To achieve this goal, the drafters of the Zimbabwean Constitution Amendment No.20 Act 2013 (“the Constitution”) adopted the rule of law and the supremacy of the Constitution as some of the core founding values and principles of our constitutional democracy. For this reason, public office bearers ignore their constitutional obligations at their own peril.”

The above remarks are ample evidence, if any is needed, that, the doctrines of constitutional supremacy and accountability, under the new Constitution, have been fully embraced by this Court and underpin the jurisprudence that is emerging therefrom.

Detailed and spirited submissions by counsel for the applicant on these principles, whilst necessary to establish the baseline from which all other arguments in the matter would be considered, were thus as effective as preaching to the clergy.

Similarly, this Court has also accepted and holds as the correct position at law, that, the respondent has an obligation to protect the Constitution and to promote democratic governance in Zimbabwe.

It accepts, that, the respondent has the obligation to uphold, among others, the rule of law and supremacy of the Constitution - two of the founding values and principles set out in the Constitution.

In Gonese & Anor v Parliament of Zimbabwe & Ors CC04-20, MALABA CJ noted…, that, there are provisions in the Constitution that impose obligations on the respondent as directly enforceable law. In his words:

“There are provisions of the Constitution which impose obligations on Parliament. The Constitutional provisions impose the obligations on Parliament as directly enforceable law.

Section 119 of the Constitution imposes an obligation on Parliament to protect the Constitution and promote democratic governance in Zimbabwe. The obligation imposed on Parliament, by section 328(5) of the Constitution, is that it must not pass a Constitutional Bill at the last reading in the National Assembly and the Senate except by affirmative votes of two-thirds of the membership of each House.”

As stated above, the submissions by counsel for the applicant on the supremacy of the Constitution and the transition from non-accountability to full accountability, under the Constitution, by all wielders of public power, whilst correct, do not go anywhere near addressing the issue that arises in this matter.

The issue that arises is whether the respondent acted at all or omitted to act, and, in so doing, failed to fulfil an obligation imposed upon it by the Constitution as envisioned by section 167(2)(d) of the Constitution.

The power granted to this Court “to determine whether Parliament or the President has failed to fulfil a constitutional obligation” is a specific and deliberate mechanism introduced into the procedures of this Court to ensure that Parliament, and the President, fulfil their respective constitutional obligations.

It is necessarily granted, in clear and unambiguous terms, to constitute the vehicle only through which the supremacy of the Constitution can be fully realised and the provisions of section 2(2) of the Constitution fulfilled in respect of Parliament and the President.

It sets the tone for the exercise of constitutional jurisdiction by the other courts over all other wielders of State power. The mechanism is therefore a deliberate attenuation of the applicability of the doctrine of separation of powers among the organs of State.

For the effective and smooth functioning of the State, the comity that must exist between the judiciary and the other organs of State must, as before, act to restrain this Court from using its special jurisdiction save in strict compliance with the section.

Quite apart from the comity considerations, the ambit of the court's jurisdiction, under section 167(2)(d) of the Constitution, is procedurally limited by the requirements of the cause of action that is created by the section.

These are clear cut. They are:

(i) An identified constitutional obligation; and

(ii) Conduct or an omission by the respondent signifying a failure to fulfil the obligation.

The two requirements are not consecutives but are concomitants, both of which must be alleged and proved.

In Doctors for Life International v Speaker of The National Assembly & Ors 2006 (6) SA 416 (CC), NCOBO J…, observed, that, a claimant who seeks, under the South African Constitution, to vindicate a constitutional right by impugning the conduct of a State functionary must identify the functionary and impugned conduct with reasonable precision.

To plead one's case with precision is a rule of procedure that I believe also applies with equal force to all applications brought under section 167(2)(d) of the Constitution.

I shall revert to this point below.

The special jurisdiction, not being inherent, cannot be invoked over all persons and over all constitutional matters.

In particular, it being a special vehicle to hold the other two organs of State accountable, the exclusive jurisdiction of this Court cannot be invoked to inquire into the conduct of other State agencies who are not Parliament or the President.

For these other actors, common law causes of action abound and the jurisdiction of this Court over such matters is shared with the other courts in the land as stated in passing above.

Put differently, the only permissible respondents under an application in terms of section 167(2)(d) of the Constitution are Parliament or the President.

Therefore, and limiting myself to the facts of this matter, the special jurisdiction cannot be invoked to determine whether the conduct of the Speaker, for instance, was a failure to fulfil a constitutional obligation.

On the basis of the above, I wish to comment, once again, in passing, that, it is impermissible to join another party as respondent to an application brought under section 167(2)(d) of the Constitution as submitted and suggested by counsel for the respondent.

HH11-06 : ZAKEYO MEREKI vs BELL INN (PVT) LTD and MICHAEL BELINSKY and OFFICER COMMANDING MASHONALAND WEST
Ruled By: KAMOCHA J

There is another issue in this application which is a cause for concern.The applicant did not file a draft of the order that he sought. He merely stated what he was seeking at the conclusion of his founding affidavit.As mentioned above, what he was seeking was the confirmation of the ...

Appealed
CC01-20 : WILLMORE MAKUMIRE vs MINISTER OF PUBLIC SERVICE, LABOUR & SOCIAL WELFARE and ATTORNEY-GENERAL OF ZIMBABWE
Ruled By: MALABA CJ, GARWE JCC, MAKARAU JCC, GOWORA JCC, PATEL JCC, GUVAVA JCC, MAVANGIRA JCC, MAKONI JCC and BERE JCC

After hearing submissions by counsel in the application, the Court made the following order by consent:“IT IS ORDERED BY CONSENT THAT:1. The order of the court a quo, given in terms of section 175(1) of the Constitution, declaring section 93(5a) of the Labour Act [Chapter 28:01] to be in conflict ...

After hearing submissions by counsel in the application, the Court made the following order by consent:

“IT IS ORDERED BY CONSENT THAT:

1. The order of the court a quo, given in terms of section 175(1) of the Constitution, declaring section 93(5a) of the Labour Act [Chapter 28:01] to be in conflict with sections 56(1), 68(1) and 69(3) of the Constitution is not confirmed in terms of section 167(3) of the Constitution.

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

INTRODUCTION

Notwithstanding the fact that the matter was disposed of on the basis of an order by consent, a written judgment was necessary to clarify the law on the issue behind the interpretation of section 93(5a) of the Labour Act [Chapter 28:01] (“the Act”).

The constitutional matter that was brought before the Constitutional Court (“the Court”) was whether section 93(5a) of the Labour Act is in conflict with sections 56(1), 68(1) and 69(3) of the Constitution of Zimbabwe Amendment (No.20) Act 2013 (“the Constitution”).

The matter came to the Constitutional Court by way of the procedure laid down in section 175(1) of the Constitution for confirmation of orders concerning the constitutional invalidity of any law or any conduct of the President or Parliament made by another court.

The High Court (“the court a quo”) made an order declaring section 93(5a) of the Labour Act to be in conflict with sections 56(1), 68(1) and 69(3) of the Constitution and therefore invalid.

Section 56(1) of the Constitution entrenches the right of every person to equality and to equal protection and benefit of the law. Section 68(1) of the Constitution protects the right of every person to administrative justice. Section 69(3) of the Constitution safeguards the fundamental right of every person to access the courts, or to some other tribunal or forum established by law for the resolution of any dispute.

In terms of section 175(1) of the Constitution, any declaration of invalidity of any law or any conduct of the President or Parliament, made by a competent court, has no force until it has been confirmed by the Constitutional Court. This section is complemented by section 167(3) of the Constitution, which provides, that, the Constitutional Court makes the final decision on whether an Act of Parliament is constitutional and must confirm an order of invalidity made by another court.

The sections serve distinct yet harmonious purposes, with the emphasis being placed on the express oversight of the Constitutional Court over orders of constitutional invalidity of legislation made by other courts.

The order of constitutional invalidity of section 93(5a) of the Labour Act, made by the court a quo, had to be reviewed by the Constitutional Court.

The Constitution entrusts the Constitutional Court with the duty of supervising the exercise by other courts of the power to declare laws inconsistent with it.

The Constitutional Court is also not bound by the order of constitutional invalidity made by the court a quo.

In S v Chokuramba CC10-19, the Constitutional Court held…, as follows:

“The Court is empowered to confirm an order of constitutional invalidity only if it is satisfied, that, the impugned law or conduct of the President or Parliament is inconsistent with the Constitution. It must conduct a thorough investigation of the constitutional status of the law or conduct of the President or Parliament which is the subject-matter of the order of constitutional invalidity. The Court must do so, irrespective of the finding of constitutional invalidity by the lower court and the attitude of the parties.

Thorough investigation is required, even where the proceedings are not opposed or even if there is an outright concession that the law or the conduct of the President or Parliament which is under attack is invalid. The reason for this strict requirement is that invalidity of the law or the conduct of the President or Parliament is a legal consequence of a finding of inconsistency between the law or the conduct in question and the Constitution. Inconsistency is a matter of fact, on the finding of which the court a quo and the Court may differ.”…,.

The Constitutional Court still retains the power to decline an order of confirmation of constitutional invalidity, particularly where it is convinced, that, the order will have no practical effect or where the party challenging it has failed to show that he or she or it is injured by the operation of the impugned law.

THE BACKGROUND FACTS AND THE PROVISIONS OF THE LEGISLATION, THE CONSTITUTIONALITY OF WHICH IS IMPUGNED

The order of constitutional invalidity of section 93(5a) of the Labour Act was made by the High Court in the following circumstances:

On 10 February 2015, the applicant was suspended from work in terms of the Labour (National Employment Code of Conduct) Regulations 2006 (SI15 of 2006) (“the Code of Conduct”) on allegations of theft by conversion of US$100 meant to be paid to his employer. A disciplinary hearing was conducted in terms of section 6(4) of the Code of Conduct. The applicant was found guilty of the acts of misconduct with which he was charged. He was dismissed from employment with effect from the date of suspension.

He was advised that he had a right, in terms of section 8 of the Code of Conduct to appeal against the decision to dismiss him.

On 12 March 2015, the applicant referred the matter to a labour officer in terms of section 8(6) of the Labour (National Employment Code of Conduct) Regulations 2006 (S.I.15 of 2006) (the Code of Conduct).

The section provides a remedy to a person aggrieved by a decision or manner in which an appeal is handled by an employer or the Appeals Officer or the Appeals Committee, as the case may be, to refer the case to a labour officer.

Section 8(7) of the Code of Conduct provides, that, the labour officer to whom a matter is referred in terms of subsection (6) of section 8 shall process the case as provided for under section 93(1) of the Labour Act, which section deals with the conciliation of disputes.

The labour officer did not dispose of the matter within the 30-day period prescribed under section 93(3) of the Labour Act, leading to the applicant approaching the Labour Court in terms of section 93(7) of the Labour Act.

On 24 September 2015, the Labour Court made an order referring the matter back to the labour officer and directing him to appoint an arbitrator.

Compulsory arbitration was no longer available as a remedy for the resolution of disputes of right or unfair labour practices which are disputes of right, following the enactment of the Labour Amendment Act No.5 of 2015.

The matter was referred back to the Labour Court for directions on how to proceed in light of the amendment to the provisions of section 93 of the Labour Act.

On 14 March 2016, the Labour Court directed that the matter be heard by the labour officer in terms of section 93(5)(c) of the Labour Act.

Section 93(5)(c) of the Labour Act empowers a labour officer, who has issued a certificate of no settlement following a conciliation process relating to a dispute of right or unfair labour practice which is a dispute of right, to make a ruling relating to the matter specified thereunder.

On 10 May 2016, the labour officer declined jurisdiction over the matter on the basis, that, it was improperly before him. He held, that, he had no jurisdiction to hear the matter since it was referred to him from the Disciplinary Authority and not from the Appeals Officer or the Appeals Committee. In his ruling, the labour officer noted, that, the applicant should have proceeded by way of an appeal to the Labour Court in terms of section 92D of the Labour Act instead of pursuing remedies provided for in section 8 of the Code of Conduct.

On 20 September 2016, the applicant made an application for condonation of late noting of an appeal to the Labour Court. The application was dismissed for failure to exhaust local remedies. The dismissal caused the applicant to file an appeal against the decision of the Disciplinary Authority to the Appeals Officer/Appeals Committee. He also sought condonation for the late noting of the appeal.

Without referring the matter to the Appeals Officer or the Appeals Committee, the General Secretary of the applicant's former employer, acting on legal advice, sent a letter to the applicant advising him that his matter could not be heard as there was no provision in the Code of Conduct empowering the employer to hear an application for condonation.

The applicant appealed to the labour officer, who upheld the decision of the employer.

When the matter went for confirmation before the Labour Court, it refused to confirm the labour officer's ruling. It, instead, referred the matter to the employer with a direction to set up an appeal structure to hear the matter, failing which the applicant would be deemed to have been reinstated without loss of salary.

Dissatisfied with the decision of the Labour Court, the employer lodged an appeal to the Supreme Court. It contended, that, in terms of section 93(5a) of the Labour Act, the labour officer can only approach the Labour Court for confirmation of his or her ruling when he or she has ruled against the employer. The contention was, that, the Labour Court had entertained a matter over which it had no jurisdiction.

The applicant conceded the point.

The matter was struck off the roll on the ground that the Labour Court had no jurisdiction over the matter.

The applicant filed an application in the court a quo alleging that section 93(5a) of the Labour Act violated his right to equal protection of the law, enshrined in section 56(1) of the Constitution.

The contention was, that, section 93(5a) of the Labour Act affords to the employer access to the remedy of testing the substantive correctness or fairness of a labour officer's draft ruling by subjecting it to confirmation proceedings but deprives an employee of access to the same remedy.

The contentions of the applicant found favour with the court a quo. It found, that, section 93(5a) of the Labour Act violates sections 56(1), 56(3), 68(1) and 69(3) of the Constitution.

The question for determination is whether or not the issue of the constitutionality of section 93(5a) of the Labour Act was properly before the court a quo.

WHETHER THE QUESTION OF THE CONSTITUTIONALITY OF SECTION 93(5a) OF THE LABOUR ACT WAS PROPERLY BEFORE THE HIGH COURT

Confirmation proceedings are in the nature of a review. The Constitutional Court, as the highest court in constitutional matters, is endowed with the power to review orders of constitutional invalidity made by lower courts in order to control declarations of constitutional invalidity made against the highest organs of State: see Pharmaceutical Manufacturers Association of South Africa and Anor: In re Ex parte President of the Republic of South Africa and Others 2000 (2) SA 674 (CC)…,.

It is a general rule that a court should not decide constitutional matters unless it is necessary to do so, and, the order of the court will have a practical effect on the parties.

In dealing with confirmation proceedings, the Constitutional Court is required to, firstly, establish whether the constitutional question decided by the subordinate court was properly before it. The facts of the case must have justified a challenge to the validity of the legislative provision.

In S v Chokuramba CC10-19 …, the Constitutional Court held as follows:

“The Court must first decide the question whether the constitutional validity of the law or conduct of the President or Parliament in respect of which the order of invalidity was made was a matter properly before the court a quo for determination, regard being had to the circumstances of the case: Zantsi v Council of State, Ciskei and Ors 1995 (4) SA 615 (CC) para 8.”

For a matter raising the question of the constitutionality of legislation to have been properly before a court of law, certain principles would have been observed.

A party complaining of the invalidity of a legislative provision must be able to demonstrate that he or she or it has been harmed by the operation of the law the constitutionality of which is sought to be impugned, and that the order of the court will have some practical effect on the protection of his, her or its rights.

In Ashwander v Tennessee Valley Authority 297 US 288 (1936)…, the Supreme Court of the United States of America held that:

“1. The Court will not pass upon the constitutionality of legislation in a friendly, non-adversary proceeding, declining, because, to decide such questions 'is legitimate only in the last resort, and as a necessity in the determination of real, earnest, and vital controversy between individuals. It never was the thought, that, by means of a friendly suit, a party beaten in the legislature could transfer to the courts an inquiry as to the constitutionality of the legislative act.'

Chicago & Grand Trunk Ry. v Wellman, 143 US 339, 143 US 345. Compare 49 US Veazie, 8 How. 251; Atherton Mills v Johnston, 259 US 13, 259 US 15.

2. The Court will not 'anticipate a question of constitutional law in advance of the necessity of deciding it'. Liverpool, N.Y. & P. S.S. Co. v Emigration Commissioners, 113 U.S. 33, 113 U.S. 39; [Footnote 2/5] Abrams v Van Schaick, 293 U.S. 188; Wilshire Oil Co. v United States, 295 U.S. 100.

'It is not the habit of the Court to decide questions of a constitutional nature unless absolutely necessary to a decision of the case: 'Burton v United States, 196 U.S. 283, 196 U.S. 295.

3. The Court will not 'formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied.' Liverpool, N.Y. & P. S.S. Co. v Emigration Commissioners, supra; compare Hammond v Schapp Bus Line, 275 U.S. 164, 275 U.S. 169-172.

5. The Court will not pass upon the validity of a statute upon complaint of one who fails to show that he is injured by its operation.”…,.

In Liverpool, New York and Philadelphia Steamship Co v Commissioners of Emigration 113 U.S. 33 (1885) the Supreme Court of the United States of America…, held that:

“It has no jurisdiction to pronounce any statute, either of a State or of the United States, void because [it is] irreconcilable with the Constitution except as it is called upon to adjudge the legal rights of litigants in actual controversies. In the exercise of that jurisdiction, it is bound by two rules, to which it has rigidly adhered: one, never to anticipate a question of constitutional law in advance of the necessity of deciding it; the other, never to formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied.”

An analysis of the facts of the case shows, that, the applicant was aggrieved by his dismissal from employment by his former employer in terms of section 6 of the Labour (National Employment Code of Conduct) Regulations 2006 (SI15/2006) (the Code of Conduct).

While he was advised by his former employer to appeal in terms of section 8 of the Code of Conduct, that provision does not provide for appeals against decisions in disciplinary hearings conducted under section 6 of the Code of Conduct. He ought, instead, to have appealed to the Labour Court in terms of section 92D of the Labour Act. The section provides that:

“92D Appeals to the Labour Court not provided for elsewhere in this Act

A person who is aggrieved by a determination made under an employment code, may, within such time and in such manner as may be prescribed, appeal to the Labour Court.”

The facts illustrate, that, due to a misunderstanding of the law, the applicant pursued wrong remedies.

He referred the matter to the labour officer in terms of section 8(6) of the Code of Conduct. The labour officer correctly decided that the applicant had used a wrong remedy because section 8(6) of the Code of Conduct created a right of appeal in respect of decisions of the employer, the Appeals Officer or the Appeals Committee.

The matter of the complaint would have had to relate to the decision of the body concerned on an issue before it on appeal or the manner in which it handled the appeal. There must have been an appeal before the body concerned.

Section 8(6) of the Labour (National Employment Code of Conduct) Regulations 2006 (S.I.15/2006) (the Code of Conduct) reads as follows:

“(6) A person or party who is aggrieved by a decision or manner in which an appeal is handled by his or her employer or the Appeals Officer or Appeals Committee, as the case may be, may refer the case to a Labour Officer or an Employment Council Agent, as the case may be, within 7 working days from the day of receipt of such decision.”

The applicant had not appealed to a body constituted for the purposes of section 8(6) of the Code of Conduct. He could not have approached the labour officer in terms of section 8(6) of the Code of Conduct in respect of a matter not arising from the exercise of powers by any of the bodies referred to in the subsection.

The Labour Court was required to consider the application for condonation of non-compliance with the Rules governing the noting of appeals to it and extension of time within which to appeal.

It failed to determine an issue that was before it.

The failure vitiated the order given: see PG Industries (Zimbabwe) Ltd v Bvekerwa and Ors SC53-16…,.

The applicant's matter did not, at any time, fall within the ambit of the provisions of section 93(5a) of the Labour Act.

What is provided for under section 93(5a) of the Labour Act are acts which a labour officer, who would have made a draft ruling and order in terms of subsection (5a) of section 93, must do in accordance with the procedure prescribed for reference of the draft ruling and order to the Labour Court for confirmation.

Section 93(5a) of the Labour Act cannot be viewed in isolation from the other provisions of section 93 of the Labour Act, particularly subsections (3), (5) and (5c), from which it derives the cause for its subject matter.

No acts which were performed, or which were required to be performed by a labour officer fell under the relevant provisions of section 93 of the Labour Act to give rise to the question of the constitutionality of section 93(5a) of the Labour Act.

It is not apparent how the impugned section injured the applicant, as the root of his grievance stemmed from the decision to dismiss him made by the Disciplinary Authority. A declaration of constitutional invalidity would not, in any way, benefit the applicant. It would not change the status of his dismissal. Nor would it provide him with a remedy.

In Uthukela District Municipality and Others v President of the Republic of South Africa and Others 2003 (1) SA 678 (CC)…, it was held that:

“If its order will have no practical effect, this Court will not deal with confirmation proceedings. If the order may, despite the repeal of the legislation under consideration, have some practical effect on the parties or on others, the Court will, in its discretion, decide whether or not to deal with the confirmation. In doing so, all the circumstances of the case will be taken into account. Factors that must be taken into account include the nature and extent of any practical effect the order may have; 'the importance of the issue raised; its complexity; and the fullness of the argument on the issue.'”

There is no proper order for confirmation in terms of section 175(1) of the Constitution.

Appealed
CC07-21 : MARX MUPUNGU vs MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS and OTHERS
Ruled By: GWAUNZA ACJ, GARWE JCC, MAKARAU JCC, GOWORA JCC, HLATSHAWAYO JCC, PATEL JCC and GUVAVA AJCC

MAKARAU JCC:This is an application in terms of section 175(3) of the Constitution of Zimbabwe, for the setting aside in its entirety, of a High Court declaratory order handed down on 15 May 2021. The order, issued in respect of two distinct and separately filed applications, invalidated certain conduct by ...

MAKARAU JCC:

This is an application in terms of section 175(3) of the Constitution of Zimbabwe, for the setting aside in its entirety, of a High Court declaratory order handed down on 15 May 2021. The order, issued in respect of two distinct and separately filed applications, invalidated certain conduct by the President as unconstitutional. This it allegedly did in the first of its two parts.

Background

We summarise the facts giving rise to this application from the two applications that were filed in the High Court under case numbers HC2128/21 and HC2166/21, respectively. The facts are not complex.

The facts of this application coalesce, and relevantly so, around 15 May 2021 when the Chief Justice, Judge Malaba, reached the age of seventy. A few days before that date, on 7 May 2021 to be precise, the Constitution of Zimbabwe Amendment (No.2) Act (No.2 of 2021) came into force.

Among other provisions, it amended section 186 of the Constitution to provide for the tenure of judges in the following terms:

“(1) The Chief Justice and the Deputy Chief Justice hold office from the date of their assumption of office until they reach the age of seventy years, when they must retire unless before they attain that age they elect to continue in office for an additional five years;

Provided that such election shall be subject to the submission to, and acceptance by the President, after consultation with the Judicial Service Commission, of a medical report as to their mental and physical fitness so to continue in office.

(2) Judges of the Constitutional Court are appointed for a non-renewable term of not more than fifteen years; but

(a) They must retire earlier if they reach the age of seventy unless, before they attain that age, they elect to continue in office for an additional five years:

Provided that such election shall be subject to the submission to, and acceptance by the President, after consultation with the Judicial Service Commission, of a medical report as to their mental and physical fitness so to continue in office.

(b) After the completion of their term, they may be appointed as judges of the Supreme Court or the High Court, at their option, if they are eligible for such appointment.

(3) Judges of the Supreme Court hold office from the date of their assumption of office until they reach the age of seventy years, when they must retire, unless, before they attain that age, they elect to continue in office for an additional five years:

Provided that such election shall be subject to the submission to, and acceptance by the President, after consultation with the Judicial Service Commission, of a medical report as to their mental and physical fitness so to continue in office.

(4) Notwithstanding subsection (7) of section 328, the provisions of subsections (1), (2) and (3) of this section shall apply to the continuation in office of the Chief Justice, the Deputy Chief Justice, Judges of the Constitutional Court and Judges of the Supreme Court.”

Acting in accordance with the provisions of section 186 of the Constitution, as amended, the Chief Justice exercised the option to extend his tenure of office beyond the age of seventy for an additional five years.

By letter dated 11 May 2021, the seventh respondent, the President, accepted a medical report as to the mental and physical fitness of the Chief justice to continue in office.

The third (Musa Kika), fourth (Young Lawyers Association of Zimbabwe) and fifth (Frederick Mutanda) respondents formed the firm view, that, the seventh respondent (the President), by accepting the medical report, that the Chief Justice was mentally and physically fit to so continue in office, had subverted the correct constitutional position.

They filed the two applications in the High Court that we have detailed above, challenging the continuation in office of the Chief Justice for an additional five years beyond 15 May 2021.

In his application, the third respondent (Musa Kika), in addition to the Chief Justice, cited as respondents all the judges of the Supreme Court and some judges of the High Court.

At the time of the filing of the application, the five judges of this Court, other than the Chief Justice and the Deputy Chief Justice, were Supreme Court judges, acting as Supreme Court judges and were cited as such. Substantive appointments to this Court were made subsequent to the filing of the applications a quo but before the hearing of this application.

Whilst materially and correctly so, the third respondent (Musa Kika) averred in his application, that, the Chief Justice had opted to exercise the option introduced by the amendment, no such averment was made in respect of any or all of the other judges who were cited as respondents under case number HC2128/21.

We revert to this fact in detail later.

The primary relief sought in the applications a quo was a declaration that the amendment to the Constitution, in section 186, did not apply to the Chief Justice and the judges cited as respondents. Specifically, it was claimed, that, the amendment did not have any force and effect on the tenure of the Chief Justice and the cited judges as such an interpretation would fall foul of the provisions of section 328(7) of the Constitution.

Section 328(7) of the Constitution provides that:

“(7) Notwithstanding any other provision of this section, an amendment to a term–limit provision, the effect of which is to extend the length of time that a person may hold or occupy any public office, does not apply in relation to any person who held or occupied that office, or an equivalent office, at any time before the amendment.”

The two applications, both brought urgently, were opposed on truncated dies induciae in accordance with the terms of a case management meeting order to which all the parties agreed.

At the end of the hearing of the applications, as indicated above, the court a quo issued a singular order in the following terms:

“IT IS DECLARED THAT:

1. The second respondent in HC2128/21 who is also the second respondent in HC2166/21 ceased to hold the office of the Chief Justice of Zimbabwe and judge by operation of law on 15 May 2021 at 4:00 hours.

2. The extension of the length of time in the office of the judge beyond the age of seventy provided for in section 186 of the Constitution does not apply to the second to fourteenth and eighteenth respondents.

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

The respondents a quo, including the judges of this Court, were aggrieved by the order.

Under separate and different covers, they filed notices of appeal in the Supreme Court challenging the correctness of the decision.

It is not necessary that we set out the grounds of appeal of each appellant in full. As and when it is it necessary to do so, we shall advert to the notices of appeal.

The applicant, strongly believing, that, the effect of the first part of the order was to declare constitutionally invalid the letter of 11 May which constituted the legal authority for the Chief Justice to continue in office, filed this application in terms of section 175(3) of the Constitution.

As indicated above, he sought the setting aside of the entire order.

This he did notwithstanding, that, on its mere reading, the High Court order did not in any way refer to the conduct of the seventh respondent (the President) as constitutionally invalid.

We observe, at this stage, that, the interpretation of the High Court order by the applicant in this regard was conceded as correct by the fourth (Young Lawyers Association of Zimbabwe) and fifth (Frederick Charles Mutanda) respondent's counsel during the hearing of the application.

Appealed
CC07-21 : MARX MUPUNGU vs MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS and OTHERS
Ruled By: GWAUNZA ACJ, GARWE JCC, MAKARAU JCC, GOWORA JCC, HLATSHAWAYO JCC, PATEL JCC and GUVAVA AJCC

It is necessary to underscore the point that access to this Court or any subordinate court under section 85 of the Constitution is subject to regulation by rules of court. This is made explicitly clear by section 85(3) which dictates that the rules of every court must provide for the ...

CC08-21 : ZIMBABWE BANKS AND WORKERS UNION and TIRIVANHU MARIMO vs MINISTER OF PUBLIC SERVICE, LABOUR AND SOCIAL WELFARE and THE SHERIFF OF ZIMBABWE and ZB BANK LIMITED
Ruled By: GARWE AJCC, GOWORA AJCC and HLATSHWAYO AJCC

This is an application for direct access to the Constitutional Court made in terms of section 167(5) of the Constitution as read with Rule 21 of the Constitutional Court Rules 2016 (“the Rules”).

The applicants intend to approach the Constitutional Court in terms of section 85(1) of the Constitution, seeking an order, that, the fundamental right of every person to form and join trade unions and employer-employee organisations of their choice and to participate in the lawful activities of those organisations, enshrined in section 65(2) of the Constitution of Zimbabwe 2013, has been and is being infringed by employers in respect of employees who are duly elected or appointed workers representatives and trade union leaders to the extent, that, the employers in question are permitted, by law, to dismiss such employees for acts performed bona fide and exclusively as the employee's duties and responsibilities as a workers representative and trade union leader.

The court finds, that, it is not in the interests of justice that direct access be granted in this matter. The reasons for so finding appear hereunder.

FACTUAL BACKGROUND

This application is borne of the Supreme Court judgment in ZB Bank Ltd v Marimo SC21-20. The background to that decision is set out hereunder.

The second applicant was employed by the third respondent as an Administrative Clerk and was also the chairperson of the workers committee. The management of the third respondent and the workers committee were engaged in a dispute over employees salary increments. The dispute was referred to a conciliator who was unable to get the parties to reach a consensus and issued a Certificate of No Settlement. Thereafter, between 8 and 15 September 2010, the second applicant sent out emails to his colleagues disclosing, through actual salary figures, the percentage adjustments that had been effected to the managerial employees salaries. He also stated that the workers committee had decided to embark on a collective job action to press their interests.

Pursuant to that conduct, the third respondent charged the second applicant with misconduct for contravening section 11(1) of SI 273 of 2000 (“the Code”). The allegations against him were that he had acted in a manner that was inconsistent with the fulfilment of the express or implied conditions of his contract. The premise to the charge was that the second applicant had generated offensive emails to a group of staff members contrary to the third respondent's standing policy contained in its Information Security Management Policy Document ('IT Policy Document'). It was also alleged, that, the contents of the e-mails were inflammatory and contained confidential information. The second applicant was found guilty of the misconduct and dismissed from employment.

He noted an appeal to the NEC Appeals Board, which held that the conduct complained of did not constitute an offence.

The Appeals Board further found, that, the third respondent had not substantiated the allegations relating to the charge preferred against the second applicant. Accordingly, it held that the charge preferred against the second applicant was inappropriate.

It stated, further, that, although the second applicant exceeded the limit of the number of emails allowed by the third respondent's IT Policy Document, thereby breaching the appellant's standing policy, the emails were neither inflammatory nor offensive, and that confidentiality had not been breached.

It also stressed, that, the second applicant's conduct was in pursuit of a right to represent workers and that the emails were meant to result in a call for collective job action or, at least, put pressure on the appellant to accede to the workers wage demands. The NEC Appeals Board consequently ordered the reinstatement of the second applicant.

Aggrieved by that decision, the third respondent appealed to the Labour Court.

It averred, that, the Appeals Board erred in failing to find that the second applicant had been properly charged and dismissed from employment, and, further, that the Appeals Board had erred in failing to afford to the third respondent an alternative to the reinstatement of the second applicant.

The Labour Court found, that, as the employees were considering going on strike over the wage dispute, the second applicant acted within the bounds of his official duties, as the chairperson of the workers committee, to communicate developments pertaining to the intended strike to his fellow employees. The court, however, stated, that, although the second applicant may have gone 'overboard' by breaching the appellant's Information Security Policy, the breach did not warrant a dismissal. Consequently, the third respondent's appeal was dismissed.

The third respondent subsequently noted an appeal to the court a quo.

Although three issues stood for determination, the relevant issue germane to the disposal of the present application was couched as follows:

“Whether the court a quo erred in failing to appreciate that the respondent's conduct in violating the standing regulations was a breach of his privileges as the representative of the workers committee and could therefore not be excused.”

It had been the third respondent's argument, that, in exercising his entitlement to champion employees rights, the second applicant did not have the right to breach the law - in this case, the standing policy in question.

It was the court a quo's finding that there was merit in that contention.

The court further held, that, the right to champion workers rights is not exercised in a vacuum but should be exercised within the confines of the law as dictated, in this case, by the relevant Code of Conduct.

Adherence to the law within the Code of Conduct would ensure that the delicate balance between the competing interests of the employer and those of the workers, through their representatives, is maintained. It was further held, that, the second applicant would not be able to hide behind his position as the chairperson of the workers committee should the conduct alleged against him be proved. The court a quo further held, that, the second applicant had indeed violated the third respondent's IT Policy Document by disclosing confidential information. The appeal was consequently allowed.

Aggrieved by that finding, the applicants filed the present application on 1 April 2021.

At the hearing of the application, the first respondent was barred for failure to file any opposing papers in the matter.

Thereafter, the Court indicated to the parties, that, notwithstanding the preliminary points raised by the third respondent, it would hear all the parties and make a determination on the merits.

APPLICANTS SUBMISSIONS BEFORE THIS COURT

The applicants make the following argument.

Every person enjoys a fundamental right to form and join trade unions and employee or employers organizations of their choice and to participate in the lawful activities of those unions or organisations. They contend further, that, this right has been and is being infringed by employers in respect of those employees who, as duly elected or appointed workers representatives and trade union leaders, are charged with misconduct and dismissed from employment under a Code of Conduct for acts performed bona fide and exclusively as the employee's duties and responsibilities as a workers representative and trade union leader.

The contention is also put forward, that, in having a law that permits an employer to dismiss from employment an employee for acts performed under the aforementioned circumstances, the State is infringing the fundamental right protected by section 65(2) of the Constitution.

Lastly, the allegation is made, that, the current Labour Law, as interpreted by the court a quo, as was done in the judgment a quo and others, is inconsistent with section 65(2) of the Constitution.

The applicants argued, that, two questions arose for determination and these related to:

(i) Whether or not the applicants were raising a constitutional matter; and

(ii) Whether or not it was in the interests of justice to grant direct access.

Counsel for the applicants further submitted, that, there was no doubt that the applicants sought to raise a constitutional issue and that it was in the interests of justice to approach the Constitutional Court because it was not desirable that they approach the High Court in order to impugn the decision of the Supreme Court with regards to trade union immunity.

They further submitted, that, the matter involved a critique of a Supreme Court decision, and, as such, it was not desirable for it to go before the High Court for determination.

The applicants also submitted, that, they had a prima facie or arguable case as the Supreme Court did not apply its mind to the long standing position on trade unions enjoying their immunity in terms of section 101 of the Labour Act [Chapter 28:01] (“the Labour Act”).

They argued, that, within the workplace, employers were regulating the way union leaders conduct themselves and that this was improper conduct on the part of employers generally.

In this light, the applicants submitted, that, there were prospects of success in that the Supreme Court's decision went too far in protecting the employer at the expense of the employee which aspect should be dealt with by a full bench of this Court.

THIRD RESPONDENT'S SUBMISSIONS BEFORE THIS COURT

The application was opposed by the third respondent.

In limine, it averred, that, the intended application is a disguised appeal against a final judgment of the court a quo. It was also contended, that, not having been a party to the proceedings a quo, the first applicant has no right to question the correctness of that judgment.

The submission is also made, that, the applicants are not clear as to the law which they seek to challenge.

The third respondent further submitted, that, the application is out of time because it was made ten months after the judgment a quo was handed down and that the applicants ought to have made an application for condonation.

On the merits, it was argued, that, section 65(2) of the Constitution did not support the applicants contention and that, further to the above, an employee has a duty to comply with the terms of their employment contract and that an employees representative must carry out their duties in a lawful manner.

The third respondent further queried the rationale behind its joinder to the present proceedings.

The third respondent also argued, that, the applicants were not challenging the validity of section 101 of the Labour Act but were actually challenging the common law. It submitted, that, the Supreme Court did not, anywhere in its judgment, refer to the Labour Act, but, rather, dealt with a position of the law embodied in the Code of Conduct.

Thus, argued the third respondent, there was no constitutional matter for adjudication before the Constitutional Court, and, that, the Constitutional Court, in terms of its jurisdiction, is restricted to determine constitutional issues only.

The third respondent, further to the above, also argued, that, an employee cannot hide behind a trade union and be free of the employer's disciplinary tentacles for breaching a Code of Conduct. This would lead to a situation wherein every employee would then want to be ascribed to the union in an effort to evade disciplinary proceedings for acts of misconduct. In this light, the third respondent stated that it had acted within its powers.

Consequently, it was submitted, that, the matter did not give rise to a constitutional matter. It was a matter that the High Court could deal with taking into account its original jurisdiction.

For that reason, it was contended, that, it was not in the interests of justice to grant direct access. It moved that the application be dismissed with costs....,.

WHETHER OR NOT THE APPLICATION IS PROPERLY BEFORE THE COURT

The third respondent contends, that, the intended application is invalid because it is, inter alia, a disguised appeal against the definitive findings on appeal by the Supreme Court. The third respondent contends, that, the judgment of the Supreme Court is final and no appeal can lie against it.

The view of the Constitutional Court is that this argument is on the substance of the nature of the relief being sought in the main application. It is therefore an issue that should be determined on the merits as that is the basis upon which the applicants approach the court for an order for direct access.

The point is made, however, that the applicants are not seeking leave to appeal....,.

The applicants are not seeking leave to appeal but rather leave for direct access.

CC11-21 : LIZIWE MUSEREDZA and 385 OTHERS vs MINISTER OF AGRICULTURE, LANDS, WATER AND RURAL RESETTLEMENT and MAPARAHWE PROPERTIES (PVT) LTD and OTHERS
Ruled By: GWAUNZA DCJ, GARWE JCC, MAKARAU JCC, GOWORA JCC, HLATSHWAYO JCC, PATEL JCC and UCHENA AJCC

The jurisdiction of a court and access to that jurisdiction are two distinct legal precepts. The two are complementary but are not synonymous. They are not to be conflated. They have their foundations in two different laws.The jurisdiction of a court is to be found in substantive law while access ...

CC13-21 : ZIMBABWE WOMEN LAWYERS ASSOCIATION vs THE MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS and OTHERS
Ruled By: GARWE JCC, MAKARAU JCC and GOWORA JCC

This is an application for an order of leave for direct access to the Constitutional Court (“the Court”) in terms of section 167(5) of the Constitution of Zimbabwe Amendment (No.20) Act 2013 (“The Constitution”) as read with Rule 21(2) of the Constitutional Court Rules SI 61 of 2016 (“the Rules”).

In the event that such leave is granted, the applicant intends to bring an application before the Court in terms of section 85 of the Constitution seeking an order to the effect, that, the definition of a “marriage” provided in section 2 of the Matrimonial Causes Act [Chapter 5:13] (“the Act”) is constitutionally invalid because it deliberately discriminates against unregistered customary unions.

The applicant accepts, that, the first respondent (Minister of Justice, Legal and Parliamentary Affairs) introduced a Marriages Bill (HB 7, 2019) (“the Bill”) in Parliament and that according to its long title its objectives are, inter alia, to consolidate the law relating to marriages, to provide for the recognition and registration of customary law unions; to provide for the recognition of civil partnerships; and to amend several statutes, including the Matrimonial Causes Act.

At the hearing of this matter the Marriages Bill (HB 7, 2019) (the Bill) apparently had been transmitted to the Senate.

A copy of the Bill was not made available to the Court. It was, however, common cause that the Bill was still to be debated in the Senate and that the processes provided for in Part 6 of Chapter 6 as read with the Fifth Schedule of the Constitution were still to be undertaken.

In these circumstances, it is unknown, at this stage, what the final fate of the Marriages Bill (HB 7, 2019) (the Bill) will be.

It would therefore be most inappropriate for this Court to make any definitive pronouncement on a matter that is still under debate by Parliament.

As the matter is not ripe for consideration by this Court, it would not be in the interest of justice that leave be granted for the applicant to approach this Court directly....,.

The applicant accepts that the Marriages Bill (the Bill) has been transmitted to the Senate.

Although it engaged Parliament in order to include a clause recognising the validity of unregistered customary unions, it alleges, that, its proposals were not taken up. If given leave, it will seek a declaration that section 2 of the Matrimonial Causes Act is constitutionally invalid. It will also seek an order that pending the process of remedying the defect, section 2 of the Matrimonial Causes Act be read to include an unregistered customary law union....,.

Asked during oral submissions whether the matter was ripe for adjudication by the Constitutional Court, and whether this was not a matter for Parliament, counsel for the applicant, whilst acknowledging that no-one can tell at this point in time what the fate of the Marriages Bill (the Bill) in the Senate will be, as well as thereafter, argued that the matter is ripe for determination by this Court.

She stated, that, there is nothing to stop this Court from determining whether section 2 of the Matrimonial Causes Act, in its current form, is compliant with the Constitution.

She accepted, however, that it was still possible for an amendment to be effected by Parliament in the current Bill.

In her submissions, counsel for the first and second respondents, whilst conceding that section 2 of the Matrimonial Causes Act excludes customary law unions in its definition of what constitutes a marriage, argued, that, the applicant is asking this Court to usurp Parliament's law-making functions.

She further argued, that, the applicant can continue to lobby Parliament to amend the Bill to include unregistered customary marriages.

Further, there is no guarantee that the President will assent to the Bill in its current form.

Counsel, therefore, submitted that the applicant has no prospects of success because what it is asking this Court to do is take over Parliament's legislative function....,.

In Ferreira v Levin N.O. & Ors; Vryehoek v Powell N.O. & Others 1996 (1) SA 984 CC 199 KRIEGLER J pertinently remarked as follows:

“The essential flaw in the applicant's cases is one of timing, or, as the Americans and, occasionally, the Canadians call it 'ripeness'.

That term has a particular connotation in the constitutional jurisprudence of those countries which need not be analysed now. Suffice it to say, that, the doctrine of ripeness serves the useful purpose of highlighting that the business of a court is generally retrospective; it deals with situations or problems that have already ripened or crystallised, and not with prospective or hypothetical ones.

Although, as Professor Sharpe points out, and our Constitution acknowledges, the criteria for hearing a constitutional case are more generous than for ordinary suits - even cases for relief on constitutional grounds are not decided in the air.

And the present cases seem to me, as I have tried to show in the parody above, to be pre-eminent examples of speculative cases. The time of this Court is too valuable to be frittered away on hypothetical fears of corporate skeletons.”...,.

A court will not entertain a matter if it is premature in the sense that rights or interests have not been infringed or threatened....,.

The conclusion is inescapable, that, the issue raised in this application is not ready for adjudication by this Court. Until the fate of the Marriages Bill is known, it would not only be inappropriate and unwise, but also premature, for this Court to make a determination on the constitutionality of the definition of marriage in section 2 of the Matrimonial Causes Act.

HMA18-19 : BRIAN GAVA vs CHAMISA MAWERE and CHAMPION CHAKANETSA (as Executor of Estate Late Claudio Chakanetsa) and MISHECK MIZEKE and MESSENGER OF COURT – GWERU and CITY OF GWERU and REGISTRAR OF DEEDS – BULAWAYO N.O.
Ruled By: MAFUSIRE J

The property situate, Stand 2468 Mkoba 7 Township in Gweru (“the property”) was at all relevant times owned by the fifth respondent, Gweru City Council.

However, one Honest Pepolo was apparently buying it from Gweru City Council in terms of one of those standard term lease to buy agreements.

Apparently, in June 2004, Honest Pepolo sold his rights and interest to one Claudio Chakanetsa, now deceased (“the deceased”). In these proceedings his estate was cited as the first respondent, duly represented by the executor.

I say “apparently” because although none of these specific issues were in contention by themselves, a great deal of the factual background was seriously disputed. And the applicant's case, with all due respect, was badly pleaded. I shall elaborate on this later on.

First, the facts that were common cause or uncontentious.

At all relevant times the deceased (Claudio Chakanetsa), or his estate, owed a sum of money to the first respondent (Chamisa Mawere). Chamisa sued, got judgment, and executed through the fourth respondent (the Messenger of Court). The property was duly advertised for a public auction. On 23 September 2016 it was sold. The buyer was the third respondent (Misheck Mizeke). On 21 October 2016 the Magistrate's Court confirmed the sale.

On 5 July 2017, Gweru City Council and Misheck Mizeke executed what was on the face of it an agreement of sale of the property. But, in reality, it was a cession. Transfer was conditional upon, among other things, Misheck erecting on the property a building, or buildings, of a certain value within a stipulated time-frame.

However, it was common cause, that, at the time of the agreement, there was already a fully developed dwelling house which had a number of occupants.

In January 2018, Misheck Mizeke sued for vacant possession and holding over damages. He succeeded. In the application before me, it was hotly contested who occupied the property at the time.

Misheck Mizeke's summons for eviction cited one Monica Maboke (Monica) and all those claiming occupation through her. Monica was one of the deceased's (Claudio Chakanetsa) surviving spouses - but she did not stay at the property.

In these proceedings, the applicant claimed it was his tenants occupying the property at the time. Both Chamisa Mawere and Misheck Mizeke disputed that.

In November 2018, the applicant instituted these proceedings.

Apart from costs, he sought an order declaring him the rightful owner of the property. He also sought an order setting aside the auction sale and a cancellation of the cession of the property from Gweru City Council to Misheck Mizeke.

At the end of argument I dismissed the application for lack of merit.

The applicant's cause of action, in paraphrase, was that prior to the attachment of the property by the Messenger of Court, at the instance of the judgment creditor, Chamisa Mawere, he had since bought it from the deceased during his lifetime in terms of a written agreement of sale dated 6 January 2013.

He attached the document.

The applicant said he had duly taken occupation of the property through his tenants. He said efforts to get transfer had been frustrated by the second respondent, the executor, who continued to duck and dive each time he made a follow-up.

The one misconception about the applicant's case was in relation to the true nature of the rights and obligations that are created by these so-called lease-to-buy agreements in respect of these types of township houses. Terms such as 'sale/purchase of rights, title and interest in' 'transfer' etc. are manifestly misguided. Yet, as long ago as 1992 the Supreme Court voiced concern over such use of wrong terminology in such situations.

In Gomba v Makwarimba 1992 (2) ZLR 26 (SC) McNALLY JA said…,:

“As so often happens, the parties have used the word 'sale' to describe what was in reality a cession of rights, since the house actually belongs to the Chitungwiza Town Council…,. It is unfortunate that legal practitioners persist in ignoring the distinctions between sale and cession of rights in these cases, both because there are many such cases and because there are many such distinctions.

In this case, the respondent was not the owner of the disputed immovable property but merely a 'lessee-to-buy'. The contract, in terms of which the respondent acquired and held her rights in the property, and which defined her rights in the property, was not before the Court. Nor was the owner cited as a party.”

Consistent with such misconception, the agreement of sale between the deceased and the applicant referred to the deceased as the owner of the property. But he was not. It was Gweru City Council that was.

The agreement went on to allege, that, the seller (the deceased) was selling and the purchaser (the applicant) was buying the property. But there could have been no such sale of such property. All that the deceased was purporting to do was to cede his rights and interest in the property. And, conversely, all that the applicant wished to do was to accept the cession.

Of course, it is perfectly normal for the cession price to equate to the market value of the property.

Significantly, the agreement said nothing about transfer. Obviously, there could be no transfer of real rights in such circumstances. Only personal rights were involved. The agreement simply said:

“The parties have been advised at the Ministry of Housing and Local Government that the house will be registered upon inspection and being given a certificate of occupation (sic).”

If the above misconception was more technical, the next one was not. It was more profound and fatal. It was the bedrock of the applicant's purported cause of action.

His suit was a rei vindicatio.

He boldly stated he was already the owner of the property by the time the Messenger of Court attached and sold it in execution. So, all he now wanted was for the court to confirm, by way of a declaratory order, that he was the owner and that Misheck Mizeke's agreement with Gweru City Council was void.

But, unfortunately for the applicant, he could not vindicate. He was not, and had never been the owner of the property.

The rei vindicatio is only available to an owner of a thing whose possession of it was taken away against his or her will. He or she is entitled to claim the thing wherever he or she finds it, and from whomsoever has got it: Chetty v Naidoo 1974 (3) 13 (A)…,. All that the owner has to prove is that he or she is the owner; that his or her thing is in the defendant's possession; and that it is still in existence and clearly identifiable: see SILBERBERG and SCHOEMAN's The Law of Property, 5th ed…, and the cases cited thereon.

Rei vindicatio is a common law remedy.

CC01-22 : LIZIWE MUSEREDZA and 303 OTHERS (LISTED) vs MINISTER OF AGRICULTURE, LANDS, WATER AND RURAL RESETTLEMENT and MAPARAHWE PROPERTIES (PRIVATE) LIMITED and OTHERS
Ruled By: GOWORA JCC, HLATSHAWYO JCC and PATEL JCC

The significance of Court Rules in the adjudication processThe law should be and the procedure for applying the law must work efficiently, inexpensively and effectively. This principle of fairness is provided for in the Constitution and the right of access to the Constitutional Court is a fundamental right. The Constitution ...

The significance of Court Rules in the adjudication process

The law should be and the procedure for applying the law must work efficiently, inexpensively and effectively. This principle of fairness is provided for in the Constitution and the right of access to the Constitutional Court is a fundamental right. The Constitution of Zimbabwe 2013 has provided for access to the Constitutional Court in section 69(2) and (3) for the adjudication of civil rights. It provides:

“69 Right to a Fair Hearing

(2) In the determination of civil rights and obligations, every person has a right to a fair, speedy, and public hearing within a reasonable time before an independent and impartial court, tribunal, or other forum established by law.

(3) Every person has the right of access to the courts, or to some other tribunal or forum established by law for the resolution of any dispute.”

However, the right of access to courts does not give a litigant the licence to unilaterally decide on the procedure for accessing the court. The procedure applicable is as a consequence rooted in fairness and this is concretised by the power of the Court to enact rules that delineate procedural requirements.

This Court has, in a plethora of authorities, emphasised the obligation of litigants to adhere to the law and adopt the process set out in rules.

In Kombayi v Berkout 1988 (1) ZLR 53 (S)…, the court in that matter emphasised the obligation by litigants and their legal practitioners to observe the rules of the respective courts wherein relief is sought.

The court said:

“Although this court is reluctant to visit the errors of a legal practitioner on his client, to whom no blame attaches, so as to deprive him of a re-hearing, error on the part of a legal practitioner is not by itself a sufficient reason for condonation of a delay in all cases. As STEYN CJ observed in Saloojee & Anor NNO v Minister of Community Development 1952 (2) SA 135 (A) at 141C:

'There is a limit beyond which a litigant cannot escape the results of his attorney's lack of diligence or the insufficiency of the explanation tendered. To hold otherwise might have a disastrous effect upon the observance of the rules of the Court. Considerations ad misericordium should not be allowed to become an invitation to laxity.'

A duty is cast upon a legal practitioner, who is instructed to prosecute an appeal, to acquaint himself with the procedure prescribed by the Rules of the Court to which a matter is being taken on appeal. That no effort has been made to comply with the Rules of Court in the instant case is further exemplified by the failure of the applicant's attorney to satisfy the requirement of Rule 31(1) of the Supreme Court Rules: that an application for extension of time within which to appeal 'shall be accompanied by a copy of the judgment against which it is sought to appeal.'

The Notice of Appeal itself is defective, in that it does not comply with the mandatory provisions of Rule 29, sub-rules (a), (c) and (e) which require: (i) that the court by which the judgment appealed against was given be stated; (ii) that there be some indication as to whether the whole or part only of the judgment is appealed against; and (iii) that the exact nature of the relief sought be stipulated. There is almost a total disregard of the Rules.”

It is trite therefore, that, the rules form the backdrop of procedure, and that this serves to buttress the rules of natural justice that there be an equal playing field where every party is afforded a right to be heard in their cause: see Metsole v Chairman, Public Service Commission & Anor 1989 (3) ZLR 147 (S).

The roles that the Rules play was explained in Makaruse v Hide & Skin Collectors (Pvt) Ltd 1996 (2) ZLR 60 (S)…, as being:

“By virtue of the power conferred on this court by Rule 4 to condone any non-compliance with the rules, none of the provisions of the rules are strictly peremptory.

'The rules are, however, there to regulate the practice and procedure of the Court in general terms and strong grounds would have to be advanced, in my view, to persuade a court to act outside the powers provided for specifically in the Rules.' Per BOTHA J (as he then was) in Moulded Components v Coucourakis & Anor 1999 (2) SA 457 (W) at p462-3.

Thus, the inherent power to prevent abuse of the machinery of the court is a power which has to be exercised with great caution, and only in a clear case: Hudson v Hudson supra at 268.

Non-compliance of the rules will only be condoned upon good cause shown by the applicant.

There must be a reasonable and acceptable explanation for the failure to comply with the Rules, and the applicant for condonation must also show reasonable prospects of success: see General Accident Insurance Co. SA Ltd v Zampelli 1988 (4) SA 407 (C) at 411C-D.”

Rules of court are put in place to facilitate the expeditious and fair dispatch of cases.

The courts have an inherent power to regulate and protect their processes. This was reiterated in Mukaddam v Pioneer Foods (Pty) Ltd; Mukaddam v Pioneer Foods (Pty) Ltd 2013 (5) SA 89 (CC)…,

The Court made the following observations:

“[28] …,. Our Constitution guarantees everyone the right of access to courts which are independent of other arms of Government. But, the guarantee in section 34 of the Constitution does not include the choice of procedure or forum in which access to courts is to be exercised. This omission is in line with the recognition that courts have an inherent power to protect and regulate their own process in terms of section 173 of the Constitution, to which I shall turn in a moment.

[31] However, a litigant who wishes to exercise the right of access to courts is required to follow certain defined procedures to enable the court to adjudicate a dispute. In the main, these procedures are contained in the rules of each court. The Uniform Rules regulate form and process of the high courts. The Supreme Court of Appeal, and this court, have their own rules. These rules confer procedural rights on litigants and help in creating certainty in procedures to be followed if relief of a particular kind is sought.

[32] It is important that the rules of courts are used as tools to facilitate access to courts rather than hindering it. Hence, rules are made for courts and not that the courts are established for rules. Therefore, the primary function of the rules of courts is the attainment of justice. But, sometimes, circumstances arise which are not provided for in the rules. The proper course in those circumstances is to approach the court itself for guidance. After all, in terms of section 173, each superior court is the master of its process.

[42]…,. The language of the section suggests that each court is responsible and controls the process through which cases are presented to it for adjudication. The reason for this is that a court before which a case is brought is better placed to regulate and manage the procedure to be followed in each case so as to achieve a just outcome. For a proper adjudication to take place, it is not unusual for the fact of a particular case to require a procedure different from the one normally followed. When this happens, it is the court in which the case is instituted that decides whether a specific procedure should be permitted.”…,.

It goes without saying, that, rules of court serve an important purpose.

They must not, and, cannot be disregarded unless the court has been persuaded, on very strong grounds, to do so.

This is why a litigant who wishes to exercise the right to access the court is required to follow certain and specified procedures. In this context, rules of court not only ensure certainty of the processes of court proceedings, the litigants are also provided with a fair playing ground for the adjudication of disputes.

It is fair to state, that, the rules ensure that the interests of justice are served....,.

In Marx Mupungu v Minister of Justice, Legal & Parliamentary Affairs & Ors CC07-21, the Court observed:

“Additionally, it is necessary to underscore the point, that, access to this Court, or any subordinate court, under section 85 is subject to regulation by rules of court. This is made explicitly clear by section 85(3) which dictates, that, rules of every court must provide for the procedure to be followed in cases where relief is sought under section 85(1). It is also spelt out in section 167(5) of the Constitution vis-a-vis direct access to the Constitutional Court.

One cannot institute an action or application in the High Court, or any other subordinate court, without due observance of and compliance with the Rules of that court. The Rules inform a litigant what is required of him to access the court concerned. If he fails to observe or comply with those Rules, he will inevitably be non-suited.”

CC01-22 : LIZIWE MUSEREDZA and 303 OTHERS (LISTED) vs MINISTER OF AGRICULTURE, LANDS, WATER AND RURAL RESETTLEMENT and MAPARAHWE PROPERTIES (PRIVATE) LIMITED and OTHERS
Ruled By: GOWORA JCC, HLATSHAWYO JCC and PATEL JCC

This is an application for leave for direct access to the Constitutional Court brought in terms of section 167(5)(a) of the Constitution as read with Rule 21 of the Rules of the Constitutional Court 2016.

The applicants are a group of persons residing on a piece of land over which the second respondent claims ownership. They intend to approach the Constitutional Court, under section 24 of the Constitutional Court Act 2021, for the rescission of a judgment of the Constitutional Court issued under CC43-15.

BACKGROUND FACTS

The applicants are residents on a piece of land described as a certain piece of land situated in Hartley District, being Kingsdale of Johannesburg, measuring 161,8238 hectares.

In 2001, the State gazetted the land described above, and, through that process, compulsorily acquired it under the land reform programme. In support, the applicants have attached to their papers an Extraordinary Government Gazette dated 22 June 2001 confirming the acquisition. The applicants contend, that, consequently, title to the land is vested in the Government of Zimbabwe.

Further, the applicants claim, that, they were allocated stands on the piece of land under the programme. However, they have not produced any documents to the Court to sustain their claim.

The applicants claim, that, unbeknown to them, the first to ninth respondents (Minister of Agriculture, Lands, Water and Rural Resettlement, Maparahwe Properties (Pvt) Ltd, Kingsdale Housing Co-operative Society Ltd, Executor, Estate of Late Pieter Nicholas Nel, Hardwork Chiminya, Givemore Dube, Pretty Kurera, Spiwe Matambo and Executor, Estate of Late Sibangani Kokera) obtained an order by consent under CC43-15.

The second respondent (Maparahwe Properties (Pvt) Ltd) was permitted, in terms of that order, to obtain necessary permits have the land surveyed and to sell any Stands to any other party or parties. They allege, that, as a result of this, and contrary to their wishes, they entered into agreements of sale in respect of their individual Stands. Thus, the second respondent erroneously continues to hold itself as the owner of the piece of land to their prejudice.

The parties are agreed that the following facts are common cause.

In 2001, the piece of land described above was gazetted for acquisition under the land reform programme. It is common cause that the Administrative Court set aside the acquisition in 2003.

On 2 October 2013, this Court set aside the acquisition of the piece of land following its further gazetting in 2005. This order was followed by an order obtained by consent under CC43-15, the causa for the application in casu. This order, issued on 18 November 2015, was in the following terms:

“IT IS ORDERED BY CONSENT THAT:

1. Kingsdale Housing Cooperative Society Limited be and is hereby joined to these proceedings as the second respondent.

2. It is declared, that, the applicants right under section 68(1) of the Constitution of Zimbabwe to fair, just, and prompt administrative action has been violated.

3. It is declared, that, Kingsdale of Johannesburg, measuring 161,8238 hectares in the District of Hartley, is private land.

4. Consequently, it is ordered that:

4.1 The first respondent be and is hereby ordered to withdraw its acquisition of land aforesaid and shall cause the publication of such withdrawal in the Government Gazette and the Herald Newspaper within fourteen (14) days of this order.

4.2 The land aforesaid vests in the first applicant who shall proceed with urban development of the said land up to the issuance of title surveys in accordance with permits issued or to be issued by the relevant town planning authority.

4.3 Any agreement of sale between first applicant and any other person, as of 26 February 2015 (the date of purported acquisition), remains valid and enforceable.

4.4 All persons, with the exception of the second respondent's registered members as at 12 November 2013, in illegal occupation or possession of any portion of the said land forthwith vacate the land failing which the Sheriff of Zimbabwe or his lawful Deputy be and is hereby authorised to eject them.

4.5 The first applicant hereby donates to the Government of Zimbabwe twenty–one (21) hectares of land in the area covered by Garikai/Hlalani Kuhle Housing Scheme and ZESA Servitudes.

4.6 The first applicant shall develop the land in terms of para 4.2 above, and the members of the second respondent and persons referred to in para 4.3 above shall compensate the first applicant for the remaining land measuring 140 hectares at US$5 per square metre in accordance with the terms of a Deed of Settlement to be signed by the parties and incorporated into the order of the Administrative Court.

5. Each party to bear its own costs.”

It is common cause, that, the applicants have entered into separate agreements of sale in respect of the individual Stands that each applicant occupies.

The applicants contend, that, the judgment issued under CC43-15 should be set aside.

They place reliance for this contention on section 24 of the Constitutional Court Act [Chapter 7:22] (“the Act”). They allege that the judgment was granted in their absence. They allege that the judgment was granted in error as the land is State land following its acquisition in 2001.

They further allege, that, they were forced, by circumstances, into purchasing from the second respondent the Stands allocated to them under the land reform programme pursuant to the judgment.

They contend that they have been, and continue to be, prejudiced by the erroneous order in CC43-15.

On the premises stated above, the applicants approach the Constitutional Court for leave to have the judgment under CC43-15 rescinded.

Rescission is sought on the basis, that, the judgment was erroneously sought or granted.

The applicants aver, that, the land in question was State land and remains State land under section 72(4)(a) of the Constitution due to its listing in Schedule 7 of the former Constitution in 2005. The parties erred in not bringing this fact to the attention of the Constitutional Court at the hearing.

The applicants contend, that, the judgment is unconstitutional as it is contrary to section 72(4)(a) of the Constitution.

They argue, that, none of them was party to the consent order under CC43-15.

THE REQUIREMENTS FOR LEAVE FOR DIRECT ACCESS

The Constitutional Court is a specialised court with jurisdiction to hear only deserving cases. Direct access to the Court is an extraordinary procedure granted in deserving cases that meet the requirements set out in the rules of the Court.

Rule 21(3) of the Rules of the Constitutional Court 2016 requires that an applicant for leave for direct access to the Constitutional Court must show that it is in the interests of justice for access to be granted by the Court. Thus, Rule 21(3) of the Constitutional Court Rules provides as follows:

“(3) An application in terms of subrule (2) shall be filed with the Registrar and served on all parties with a direct or substantial interest in the relief claimed and shall set out —

(a) The grounds on which it is contended that it is in the interests of justice that an order for direct access be granted; and

(b) The nature of the relief sought and the grounds upon which such relief is based; and

(c) Whether the matter can be dealt with by the Court without the hearing of oral evidence, or, if it cannot, how such evidence should be adduced and any conflict of facts resolved.”

Rule 21(8) of the Constitutional Court Rules provides:

“(8) In determining whether or not it is in the interests of justice for a matter to be brought directly to the Court, the Court or Judge may, in addition to any other relevant consideration, take the following into account —

(a) The prospects of success if direct access is granted;

(b) Whether the applicant has any other remedy available to him or her;

(c) Whether there are disputes of fact in the matter.”

In Zimbabwe Development Party & Anor v The President & Ors 2018 ZLR 485 (CC)…, MALABA CJ commented thus:

“In order for direct access to be granted, the applicants had to show that they had prospects of success in the main matter. In Transvaal Agricultural Union v Minister of Land Affairs and Another 1996 (12) BCLR 1573, 1997 (2) SA 621 (CC) at para [46], the Constitutional Court of South Africa said in part:

'[46] The applicant has failed to establish that this is a case in which the ordinary procedures ought not to have been followed. There are important issues which are within the jurisdiction of the Supreme Court and which need to be resolved by it before this Court is approached for relief. As far as the other issues are concerned, there is neither the urgency nor the prospects of success necessary to justify direct access to this Court. The application for direct access must therefore be dismissed.'”…,.

In Bruce and Another v Fleecytex Johannesburg CC and Others 1998 (2) SA 1143 (CC), 1998 (4) BCLR 415 (CC)…, CHAKALSON P remarked:

“[7] Whilst the prospects of success are clearly relevant to applications for direct access to this Court; there are other considerations which are at least of equal importance. This Court is the highest Court on all constitutional matters.

The correct approach in dealing with an application for an order of direct access to the Court is one that accepts the principle that all relevant factors required to be taken into account must be made available for consideration. The Court or Judge must consider all the relevant factors in deciding the question whether the interests of justice would be served by an order granting direct access to the Court. The weight placed on the different factors in the process of decision making will depend on the circumstances of each case and the broader interests of a society governed by the rule of law.”…,.

It is common cause that the applicants are in occupation of individual Stands on the land, which is the subject of the dispute, under agreements of sale concluded between them and the second respondent. It is also common cause that the contracts of sale have not been cancelled in respect of some of the applicants.

The record shows, that, the second respondent obtained a judgment for the eviction of the first applicant from the Stand.

However, none of the applicants are claiming a right of occupation through the agreements of sale. Rather, their alleged right to occupation is premised on the allegation that they were allocated Stands under the land reform programme.

If granted access, the applicants seek an order in the following terms:

“1. That, it be and is hereby ordered that the judgment by this Court in CC43-15, handed down as an order on 18 November 2015, is rescinded for the reason that it was granted in error.

2. That, for the avoidance of doubt, and arising from the order in para 1, in the exercise of the Court's inherent powers under section 176 of the Constitution as read with section 175(6)(b) of the same Constitution, it is declared that certain piece of land known as Kingsdale of Johannesburg, in the district of Hartley, measuring 161,8238 hectares, is State land under section 72(4) of the Constitution of Zimbabwe.

3. The respondents (if they oppose this order) shall pay the costs of this application jointly and severally, the one paying the others being absolved.”

SUBMISSIONS BEFORE THE COURT

Submissions in relation to the two issues went as follows:

Counsel for the applicants contended, that, the High Court Rules are inapplicable in casu, and that the matter may be brought to the Constitutional Court by way of section 24 of the Constitutional Court Act. To that end, he argued, that, there was no question of delay in bringing the application for rescission as section 24 of the Constitutional Court Act did not make provision for a timeframe for filing the application.

He contended further, that, there were no time limits placed on alleged violation of the Constitution.

In so far it related to the locus standi of the applicants, counsel for the applicants argued, that, the applicants had an interest to protect. He further contended, that, they were absent from the process when the judgment was issued and have, therefore, the requisite locus standi in judicio.

Counsel for the second respondent (Maparahwe Properties (Pvt) Ltd) was of a contrary view.

He argued, that, whilst section 24 of the Constitutional Court Act restates the substantive power of the Constitutional Court, the procedural aspects are provided for in section 26 of the Constitutional Act.

In his view, section 24 of the Constitutional Court Act restates the substantive power of the Court. The procedural aspects of the exercise of that power are set out in section 26 of the Constitutional Court Act where the Chief Justice is empowered to promulgate rules of court to provide for the procedure the Constitutional Court is to follow.

He contended, that, the failure by the applicants to adhere to the rules of the Court was fatal to the application.

He suggested that the application was in fact a nullity.

Coming to the question of locus standi, counsel for the second respondent (Maparahwe Properties (Pvt) Ltd) submitted, that, the applicants had not established, on the papers, that they had locus standi to apply for the rescission of the judgment. They had not established that they had an interest that required protection through the setting aside of the judgement in question. He reiterated that interest, in the context of locus standi, must be personal as relates to the person seeking relief.

Counsel for the fourth respondent (Executor, Estate of Late Pieter Nicholas Nel), on the other hand, made the following submissions:

He argued, that, it was not in the interests of justice for the application to be granted. The applicants had become aware, as early as July 2017, of the existence of the judgment. The application was filed after a period of four years and there was no attempt to explain the delay in bringing it to the Constitutional Court.

He contended, that, Rule 29 of the Rules of the High Court applied in casu, and, on the premises of the rule, the applicants were not entitled to the relief they were seeking.

There were no submissions on the question of locus standi by the fourth respondent (Executor, Estate of Late Pieter Nicholas Nel).

I propose to consider the two issues ad seriatim.

In Liziwe Museredza & 385 Others v Minister of Agriculture, Lands, Water & Rural Resettlement & Ors CC11-21, the applicants approached the Constitutional Court for substantially the same relief as sought in the main application attached to this application. In the matter above, they approached the Constitutional Court under Rule 449 of the High Court Rules 1971 (now repealed). The Court considered the matter in terms of Rule 449 which provided in relevant part:

“449 Correction, variation and rescission of judgments and orders

(1) The Court or a judge may, in addition to any other power it or he may have, mero motu or upon the application of any party affected, correct, rescind, or vary any judgment or order —

(a) That was erroneously sought or erroneously granted in the absence of any party affected thereby; or

(b) In which there is an ambiguity or a patent error or omission, but only to the extent of such ambiguity, error or omission; or

(c) That was granted as the result of a mistake common to the parties.

(2) The Court or a judge shall not make any order correcting, rescinding or varying a judgment or order unless satisfied that all parties whose interests may be affected have had notice of the order proposed.”

In that matter, the contention of the applicants was to the effect, that, an application under Rule 449 of the High Court Rules did not require leave as provided for in Rule 21 of the Constitutional Court Rules 2016.

Writing for the Constitutional Court, MAKARAU JCC commented as follows…,:

“As discussed above, an application to this Court in terms of Rule 449 of the High Court Rules as read with Rule 45 of the Rules is in the exclusive jurisdiction of this Court by operation of the law of practice and procedure. This is so because only this Court can correct or vary its own order sought or given in error and in the absence of a party adversely affected by the order.

Such an application is sui generis in a number of respects.

Whilst it is brought to set aside an extant order of the Court, it in essence seeks to bring before the court new facts or fresh legal argument for consideration. This is so because the applicants have perforce to allege that a material fact or law was not brought to the attention of the Court and was therefore not considered by it before it made the order that is under challenge.

In casu, evidence of the 'new' fact was sought to be led through the founding affidavit in the form of the Government Notice that listed the land in dispute. The new matter that the applicants wish the Court to determine is therefore the effect of this new evidence on the ownership of the land in dispute.

Secondly, the application is not between the same parties who were before the Court in the matter that resulted in the extant order. It is brought by applicants who, again, perforce have to allege that they were not before the Court when the order was granted.

It therefore introduces not only a new matter but new parties….,.

The practice of this Court, therefore, is that, where a litigant wishes to bring a new and fresh cause and the matter is not listed in Rule 21 as one for which leave is not required, then leave must be sought even if the matter is in the exclusive jurisdiction of the Court. The practice is based on and highlights the gate-keeping function of an application for leave.”

Pursuant to that judgment, the applicants have filed an application for leave for direct access.

Undoubtedly, the applicants require the leave of court to approach the Constitutional Court for relief. The intended application for rescission of judgment does not fall within the applications that are exempted from leave in terms of Rule 21(1) of the rules of the Constitutional Court.

Rule 21(1) of the Constitutional Court Rules provides:

“(1) The following matters shall not require leave of the Court —

(a) Disputes concerning an election to the office of President or Vice-President;

(b) Disputes relating to whether or not a person is qualified to hold the office of President or Vice-President;

(c) Referrals from a court of lesser jurisdiction;

(d) Determinations on whether Parliament or the President has failed to fulfil a constitutional obligation;

(e) Appeals in terms of section 175(3) of the Constitution against an order concerning the constitutional validity or invalidity of any law;

(f) Where the liberty of an individual is at stake;

(g) Challenges to the validity of a declaration of a State of Public Emergency or an extension of a State of Public Emergency.”

The significance of Court Rules in the adjudication process

“69 Right to a Fair Hearing

WHETHER THE APPLICATION HAS PROSPECTS OF SUCCESS ON THE MERITS

The Court holds, that, it is not in the interests of justice that the applicants be granted leave for direct access in this matter. The view of the Court is that, upon considering the matter, the applicants have not established that the application has prospects of success on the merits. The reasons for so finding are on two bases:

(i) The first is that the applicants have not made an application for the rescission in terms of the rules that entitle them to apply for rescission of the impugned judgment by the Constitutional Court in the exercise of its powers under the Constitutional Court Act. They have, instead, purported to rely on section 24 of the Constitutional Court Act, which provision does not provide for such an application....,.

The Court will proceed on the basis, that, this application is one in terms of section 24 of the Constitutional Court Act 5/2021 (“the Act”), which provides as follows:

“24 Correction, variation, and rescission of judgments or orders

(1) The Court may, in addition to any other power it may have, on its own initiative or upon the application of any party affected, correct, rescind or vary any judgment or order —

(a) That was erroneously sought or erroneously granted in the absence of any party affected thereby; or

(b) In which there is an ambiguity or a patent error or omission, but only to the extent of such ambiguity, error or omission; or

(c) That was granted as the result of a mistake common to the parties.

(2) The Court shall not make any order correcting, rescinding, or varying a judgment or order unless satisfied that all parties whose interests may be affected have had notice of the order proposed.”

In turn, section 26(1) of the Constitutional Court Act [Chapter 7:22] provides as follows in relevant part:

“26 Rules of Court

(1) Subject to subsections (2) and (3), the Chief Justice, after consultation with a
committee appointed by him or her, may make rules relating to any of the following matters —

(a) The manner and form of procedure before the Court; and

(b)…,.

(c)…,.

(d)…,.

(e)…,.

(f)…,.

(g)…,.

(h)…,.

(i) The time within which any requirement of the rules is to be complied with and the extension of such time; and

(j)…,.

(k)…,.

(l)…,.

(m)…,.

(n)…,.

(o)…,.

(p)…,.

(q)…,.

(r)…,.

(s) Generally, to give effect to the jurisdiction conferred upon the Court by any enactment; and

(t)…,.

(2) Rules shall have not effect until they have been approved by the Minister and published in a statutory instrument.

(3) The Constitutional Court Rules, 2016 published in Statutory Instrument 61 of 2016, shall continue to be in force until they have been repealed or amended.”

In casu, the applicants contend, that, the judgment was not only granted in error; additionally, it adversely affected their right to occupy the Stands as beneficiaries under the land reform programme.

In terms of section 24(1)(a) of the Constitutional Court Act, the Constitutional Court has the power to correct, rescind or vary any judgment that was erroneously granted in the absence of a party affected thereby.

On a proper construction of the provisions set out above, the Court's jurisdiction is invoked 'upon the application of a party affected'.

I do not understand the provisions to mean that a party may apply to court absent reference to a particular rule of court.

Section 24 of the Constitutional Court Act spells out the Court's substantive power once seized with an application. Section 24 of the Constitutional Court Act is not the procedural route one takes to make an application. It gives the Constitutional Court the jurisdiction to entertain such an application.

To enable a court to determine the application, an applicant must place reliance on the Rules of the Court promulgated to regulate access to that court.

The need for the adherence to Rules is a requirement even where the dispute sought to be adjudicated is rooted in Constitutional Law.

In Marx Mupungu v Minister of Justice, Legal & Parliamentary Affairs & Ors CC07-21, the Court observed:

“Additionally, it is necessary to underscore the point, that, access to this Court, or any subordinate court, under section 85 is subject to regulation by rules of court. This is made explicitly clear by section 85(3) which dictates, that, rules of every court must provide for the procedure to be followed in cases where relief is sought under section 85(1). It is also spelt out in section 167(5) of the Constitution vis-a-vis direct access to the Constitutional Court.

One cannot institute an action or application in the High Court, or any other subordinate court, without due observance of and compliance with the Rules of that court. The Rules inform a litigant what is required of him to access the court concerned. If he fails to observe or comply with those Rules, he will inevitably be non-suited.”

Evidently, contrary to the argument by the applicants, the procedural aspects of approaching the Constitutional Court find expression in section 26 of the Constitutional Court Act which provides for the promulgation of rules of Court to regulate the processes of the Constitutional Court.

In subsection (1), provision is made for the manner and form of procedure before the Court as well as the time within which any requirement of the rules is to be complied with and the extension of such time.

It is trite that rules of court provide for the form, manner, and time frame for the bringing of litigation before a court. This is because courts have inherent jurisdiction to control their processes.

Rescission of judgments is one of the procedures that rules of court make specific provision for.

The applicants cannot seek a rescission merely on the premise of the power exercisable by the Court to set aside the judgment in issue. The Court must be requested to exercise its discretion as provided for in the rules.

That has not been done in this case.

It is a trite principle of the law of interpretation, that, statutory provisions in an Act of Parliament must be construed as a whole as opposed to individually. They must be read together. It stands to reason, therefore, that while section 24 of the Constitutional Court Act spells out the Court's power to correct, vary or rescind its judgments or orders, the procedural aspect of the exercise of that power can only be done in compliance with section 26 of the Constitutional Court Act. The rules of the Court have to prescribe the procedure for such exercise.

In terms of Rule 45 of the Rules of the Constitutional Court 2016, in any matter not dealt with in terms of the rules, the practice and procedure of the Court shall follow, as near as may be, the practice and procedure of the Supreme Court, or where the rules of the Supreme Court are silent, the High Court become the default rules.

It is trite, that, the rules of the Supreme Court do not provide for the rescission, correction, or variation of judgments but the High Court Rules so provide.

The High Court Rules, 2021 were promulgated on 23 July 2021.

Rule 29 of the High Court Rules, which provides for the variation and rescission of judgments, reads:

“(1) The court or a judge may, in addition to any other powers it or he or she may have, on its own initiative or upon the application of any affected party, correct, rescind or vary -

(a) An order or judgment erroneously sought or erroneously granted in the absence of any party affected thereby; or

(b) An order or a judgment in which there is an ambiguity or a patent error or omission, but only to the extent of such ambiguity, error or omission; or

(c) An order or judgment granted as a result of a mistake common to both parties.

(2) Any party desiring any relief under this rule may make a court application, on notice to all parties whose interests may be affected by any variation sought, within one month after becoming aware of the existence of the order or judgment.”

Whilst the Constitutional Court Act makes provision for the invocation of its jurisdiction, the Rules provide for the procedure under which the Court exercises its jurisdiction.

The applicants have not, however, invoked the rules of court for an order for the rescission of the impugned judgment. They have sought reliance on section 24 of the Constitutional Court Act.

The Rules of the High Court have prescribed the procedure to be followed and are apposite in casu.

The applicants have not made an application in terms of the rules of court.

I am not persuaded that the Constitutional Court Act gives the applicant the right to approach the court for redress. Section 24 of the Constitutional Court Act spells out the power that a court may exercise upon the application of a party. The rules comprise procedural law and must form the premise of a litigant's approach to an appropriate court.

It is trite that courts insist on parties compliance with the rules and that where this has not been done, or is impossible, condonation for failure to adhere to the rules be sought and obtained.

Rule 449, in terms of which relief was sought in Liziwe Museredza & 385 Others v Minister of Agriculture, Lands, Water & Rural Resettlement & Ors CC11-21 is no longer in force.

Reliance should have been placed on Rule 29 of the High Court Rules 2021.

Rule 29(2) of the High Court Rules requires that an application under the rules be brought to Court within a month from the date that the applicant has knowledge of the judgment.

The first applicant, who has assumed a leading role in the litigation surrounding the dispute which is the subject matter of this application, has not stated in categorical terms when she became aware of the judgment. However, there is on record an affidavit deposed to by her on 27 July 2017 in which she makes reference to the judgment sought to be set aside.

This application was only filed on 25 August 2021, a period in excess of four years from when the record reveals the applicants would be taken as having had knowledge of the judgment.

According to Rule 29(2) of the Rules of the High Court 2021, which were promulgated on 23 July 2021, the applicants are out of time.

Even if the matter were to be considered in terms of Rule 449 of the High Court Rules, the applicants would still be out of Court.

It cannot be gainsaid that the applicants have not been vigilant in pursuing relief in casu. The application was not brought expeditiously.

I am fortified in this view by the remarks of GUBBAY CJ in Grantully (Pvt) Ltd & Anor v UDC Ltd 2000 (1) ZLR 361…, to the following effect:

“It was said by the appellants, that, they only became aware that the judgment had been erroneously granted when they received advice of that fact on 25 July 1997, some five years and six months later.

Such length of time, whatever the reason thereof, is unreasonable.

But, what made the appellants wholly undeserving of the Court's indulgence was that after being advised that aggregate interest had been awarded, they allowed a further ten weeks to pass before filing their application. And even when informed by the respondent's legal practitioners, on 27 August 1997, that it was not accepted that the judgment was in any way erroneous, it was five weeks before the necessary relief was sought.

I have, therefore, no hesitation in agreeing with the learned judge that the bringing of the application amounted to an abuse of the process of the Court and was not to be sanctioned.”

I believe that the remarks of the learned jurist are more than apposite in casu.

At the very least, the appellants in Grantully (Pvt) Ltd & Anor v UDC Ltd 2000 (1) ZLR 361 attempted to explain the delay. In the instant case, the applicants have not found it necessary to advise the Court when they became aware of the judgment. This becomes necessary since what was sought is the Court's indulgence.

In the exercise of its discretion, the Court must weigh all the factors that require that an applicant act expeditiously. Unfortunately, the applicants have decided not to be candid with the Court and take it into their confidence.

The delay under Rule 29 of the High Court Rules 2021 or Rule 449 of the repealed rules is inordinate.

The delay, being obvious, condonation for their failure to adhere to the rules ought to have been applied for.

No condonation was sought. They were clearly mistaken in taking that position.

The applicants have failed to adhere to the rules of the Court. They have been unable to bring the application timeously, or, in any event, within the time limits prescribed by Rule 29(2) of the High Court Rules.

In the absence of an order of Court condoning the failure to abide by the rules means, that, the applicants are non-suited.

The court is of the view, that, in the absence of condonation, there is no valid application before the Court. Therefore, there are no prospects of success on the merits due to the failure to adhere to procedural precepts in casu.

HH28-16 : FARPIN INVESTMENTS [PVT] LTD vs NETONE CELLULAR [PVT] LTD and JUSTICE L.G. SMITH [RETD] - ARBITRATOR
Ruled By: MAFUSIRE J

This was an application for the setting aside of an arbitration award.

The arbitrator, the second responded herein, was a retired Judge of this court.

The basis of the application was that the arbitrator had misconstrued the factual basis of the applicant's claim before him. It was also said, that, the arbitrator's second and final award had contradicted the findings in his first award. This misdirection was said to have led the arbitrator to make an award that was so palpably iniquitous as to be in conflict with the public policy of Zimbabwe, as envisaged by Article 34(2)(b)(ii) of the Model Law, which is incorporated in the Arbitration Act [Chapter 7:15].

The applicant also challenged the arbitrator's order of costs against it on the punitive scale of attorney and client and said, or implied, that, it was irrational, especially in circumstances where not only the arbitrator had given no justification or explanation for it, but also where the first respondent had not asked for such a scale.

Finally, the applicant also challenged the arbitrator's order that his costs be met by the applicant alone. The award of costs in such a manner was cited as another example of the lack of logic in, and the iniquitous nature of the award.

The first respondent opposed the application.

It supported the arbitrator's award and submitted that the applicant had misconstrued the arbitrator's findings in his initial award, which, it was argued, were no more than a re-statement or formulation of the issues for arbitration.

The papers were moderately voluminous. From the onset, I endorse the applicant's self-criticism in its heads of argument, that:

“…,. (T)he arguments in the submissions by the parties are somewhat convoluted, and, in some instances, intended to confuse the real issues.”

Not only that, but, the applicant's affidavits were prolix, repetitive, and argumentative. But, shorn of that, I believe the facts and the issues were simple and straightforward.

They were these:

(a) The Facts

The first respondent was a public cellular telephone operator. It was a private company. The applicant was also a private company. The genesis to the dispute between the two was the relationship that they entered into on 23 February 2009. As at that date, the first respondent was a 60% shareholder in another company called Zellco Cellular [Private] Limited [“Zellco”]. This shareholding had come about following a debt-equity swap.

The arrangement had been induced by Zellco Cellular's failure to remit what had been due by it to the first respondent.

Zellco Cellular's indebtedness to the first respondent had arisen out of a relationship that had existed between it and the first respondent since the year 2001. That relationship had been created in terms of a certain written agreement titled 'Service Provider Agreement' [hereafter referred to as “the SPA”].

In terms of the Service Provider Agreement, Zellco Cellular had been appointed to supply and distribute, inter alia, the first respondent's radio-linked telephone services to Zellco Cellular's own customers whom it would bill, and collect payments from, in connection with those services. In return, Zellco Cellular would be paid a commission by the first respondent. This would be deducted up-front and the net remitted to the first respondent.

The life-span of the Service Provider Agreement had been five years, but had been subject to renewal.

As at 23 February 2009, when the first respondent entered into the aforesaid relationship with the applicant, the Service Provider Agreement (SPA) had been renewed for another five years, from 21 November 2006 to some date in 2011.

Thus, when the applicant and the first respondent started their relationship, on 23 February 2009, the Service Provider Agreement (SPA) had still about two more years to run.

The relationship that the applicant and the first respondent created, on 23 February 2009, as aforesaid, was a straightforward sale of shares agreement. They executed a written document titled “Agreement of Sale of Shares”] [hereafter referred to as “the ASS”].

In substance, the first respondent sold to the applicant its entire shareholding in Zellco, i.e. the aforesaid 60% equity, for a certain sum of money.

It seemed common cause, that, the applicant had paid the purchase price in accordance with the agreement.

The fall-out between the parties was in respect of clause 13 of the Agreement of Sale of Shares.

The dispute was multi-faceted.

As I understood it, and in my own words, the applicant's position was that the first respondent had breached clause 13, and that, as a result, the first respondent had become liable to it in damages.

The first respondent disputed that it had breached the Agreement of Sale of Shares or that the applicant had been entitled to damages. It accused the applicant of purporting to step into the shoes of Zellco, and suing as if it were Zellco, allegedly in violation of basic tenets of Company Law.

The applicant's rejoinder was that it had not purported to step into Zellco's shoes; that, but for it to claim from the respondent, it had necessarily had to compute what Zellco had been owed by the first respondent by way of commissions in terms of the Service Provider Agreement, both as accrued in the past, and as projected in the future; that, the net amount, after deductions for expenses and contingencies, had constituted the value of its investment in Zellco, and that that was what it had lost as a result of the first respondent's breach.

Initially, the quantum of the applicant's claim was $13, 912,700=61. Subsequently, this was revised upwards to $14,962,121=82.

Zellco was not part of the dispute....,.

Clause 13 of the Agreement of Sale of Shares was undoubtedly the only link between the Service Provider Agreement (SPA) and the Agreement of Sale of Shares. As such, it was what connected the applicant to the SPA - an agreement to which it was otherwise not a party....,.

Clause 13 of the Agreement of Sale of Shares, particularly sub-clause 2 thereof, read as follows:

“13 Duration of Agreement and Life of Service Provider Agreement

13.1….,.

13.2 NetOne undertakes to renew the Service Provider Agreement between Zellco Cellular and themselves in order for Farpin to have the opportunity to realise full value on the shares procured by a further five [5] years from the date of expiry of the current agreement between NetOne and Zellco.”

[b] Arbitration

The dispute between the parties, or rather facets of it, was arbitrated upon, twice, by the second respondent.

In the first arbitration, the applicant challenged the jurisdiction of the arbitrator saying that the dispute was not one to be resolved by arbitration.

The arbitrator ruled against it.

In the course of his award, he made reference to the cancellation of the Service Provider Agreement (SPA) by the first respondent as not constituting a breach of the Agreement of Sale of Shares, but, that the effect of the cancellation had given rise to such breach since the respondent could then not comply with the Agreement of Sale of Shares.

From there, the arbitrator directed the parties to file their statements of claim for the second arbitration on the two issues that he had identified.

The first respondent was ordered to meet the costs of that initial award.

The arbitrator conducted a second hearing at which, among other things, the applicant's witness, an accountant, gave viva voce evidence on how the applicant's damages had been computed.

The proceedings did not go to the “defence” case.

The first respondent applied for the discharge of the applicant's claim.

The application was granted with costs on an attorney and client scale.

The arbitrator's findings and conclusions were as follows:

“Having given careful consideration to the submissions made by the legal representatives of the parties, I consider that there is no privity of contract between the parties.

Clause 13.2 of the SPA does not provide a nexus which would entitle the Claimant to claim damages for the loss of commission and profits suffered by Zellco because of the cancellation of the SPA.

The Claimant cannot step into the shoes of Zellco and claim the alleged damages suffered by Zellco.

In clause 7 of its Statement of Claim, as amended, the Claimant submitted, that, as a consequence of the cancellation of the SPA it suffered damages in the sum of $14,962,121=82 which is made up of three elements:

(i) The first being commission amount due to it (not to Zellco) up to April 2011;
(ii) The second being loss of income [from] April to May 2014; and
(iii) The third being projected loss of income [from] June 2014 to November 2016 and then claim that that was the amount of the damages it suffered.

If income in the sum of $6,688,988=96 was lost by Zellco, that does not mean that Zellco did not make a profit of $6,688,988=96 which it would have passed on to its shareholders. It would have incurred expenses which would have had to be paid from the income received.”

After that, the applicant applied to this court for the setting aside of the arbitrator's decision.

[c] Issues

In order for me to arrive at the conclusion whether or not the arbitration award was impeachable by reason of a violation of the public policy of Zimbabwe, as envisaged by Article 34[2][b][ii] of the Model Law, which is incorporated in the Arbitration Act [Chapter 7:15], the issues, as I see them, were these:

[i] What is the approach of the court where an arbitration award is sought to be impeached?

[ii] Did the arbitrator contradict himself in his two awards?

[iii] Did the first respondent breach the Agreement of Sale of Shares; was the applicant entitled to damages?

[iv] Did the arbitrator misdirect himself by awarding the first respondent costs on a higher scale and ordering the applicant to meet the costs of the arbitrator on its own?

I now proceed to consider the law on the point and to determine the issues as I have identified them above.

[i] Approach of the court vis-a-vis impeachment of Arbitral Award

In terms of Article 34 of the Model Law in the Arbitration Act, this court may set aside an arbitral award only on the grounds specified therein. One of those grounds, which the applicant has expressly relied on in these proceedings, was that the arbitration award was in conflict with the public policy of Zimbabwe as envisaged by sub-article [2][b][ii] of Article 34.

Sub-article [5] of Article 34 states:

“(5) For the avoidance of doubt, and without limiting the generality of paragraph (2)(b)(ii) of this article, it is declared, that, an award is in conflict with the public policy of Zimbabwe if —

(a) The making of the award was induced or effected by fraud or corruption; or

(b) A breach of the rules of natural justice occurred in connection with the making of the award.”

Other than paragraph [b] above, none of the other grounds listed by Article 34, on which this court may set aside an arbitral award, applied to the applicant's situation herein.

The definition of “public policy” in sub-article [5] does not limit the generality of that term as used in sub-article [2][b][ii].

The applicant alleged, that, the arbitrator misconstrued the premise upon which his claim had been presented before him, and that, as a result, he had seriously misdirected himself. It was argued, that, such misdirection had led him to come to a wrong conclusion. This was said to constitute a palpable and intolerable inequity that would hurt the conception of justice in fair-minded persons.

The onus lies on the party that seeks to set aside an arbitral award under Article 34 of the Arbitration Act.

In my view, it is an extremely heavy onus.

I believe, that, in the same way as in they exercise their review powers, superior courts restrain themselves from unnecessarily interfering with the exercise of judicial discretion by the inferior courts or tribunals. Unless the exercise of discretion by the inferior court or tribunal was injudicious or so grossly wrong as to amount to a miscarriage of justice, the superior court will let the decision pass even though it might itself have come to a different decision.

Dealing with the old Arbitration Act, before it was repealed and replaced by the current one, where the ground for setting aside an arbitral award was misconduct of the proceedings by the arbitrator, or the improper procurement of the arbitrator, or of the award, GUBBAY CJ, in Zimbabwe Electricity Supply Authority v Maposa 1999 [2] ZLR 452 [SC] said, at p462E–H:

“…,. [A] party seeking to set aside an arbitral award could succeed only if able to establish either misconduct on the part of the arbitrator or the fact that the award was improperly procured. The word 'misconduct' was to be understood in the sense of some wrongful, dishonest, or improper conduct; a bona fide mistake, whether of law or of fact, on the part of the arbitrator could not be relied upon as a ground for setting aside the award.”…,.

At p466E, the learned Chief Justice, dealing with the current Arbitration Act, said:

“An arbitral award will not be contrary to public policy merely because the reasoning or conclusions of the arbitrator are wrong in fact or in law. In such a situation, the court would not be justified in setting the award aside. Under Article 34 or 36, the court does not exercise an appeal power and either uphold or set aside or decline to recognise and enforce an award by having regard to what it considers should have been the correct decision.”…,.

In casu, both parties relied on Zimbabwe Electricity Supply Authority v Maposa 1999 [2] ZLR 452 [SC] above.

In particular, the applicant quoted the passage at 466 above, and evidently found support in what the learned Chief Justice went on further to say at p466F–G:

“Where, however, the reasoning or conclusion in an award goes beyond mere faultiness or correctness and constitutes a palpable inequity that is so far reaching and outrageous in its defiance of logic or acceptable moral standards that a sensible and fair minded person would consider that the conception of justice in Zimbabwe would be intolerably hurt by the award, then, it would be contrary to public policy to uphold it.

The same applies where the arbitrator has not applied his mind to the question or has totally misunderstood the issue, and the resultant injustice reaches the point mentioned above.”

I now turn to examine the alleged palpable, far reaching, illogical and outrageous inequity by the arbitrator which fair-minded persons would consider would hurt the conception of justice in Zimbabwe if allowed to stand.

This leads me to consider the rest of the issues as I have identified them above.

[ii] Did the arbitrator contradict himself?

One of applicant's refrain was, that, in his first award, the arbitrator had made a positive finding that the first respondent had breached clause 13.2 of the Agreement of Sale of Shares by having cancelled the Service Provider Agreement and that the effect of that cancellation had given rise to a breach of the Agreement of Sale of Shares.

Having made that finding, it was argued, all that had remained, as indeed the arbitrator himself had gone on to direct, was the filing of the parties statements of claim.

I understood the applicant's argument on this to be that the liability of the first respondent for breach of clause 13.2 of the Agreement of Sale of Shares had already been settled by the first award and that the purpose of the second arbitration had merely been to settle quantum.

On the other hand, the first respondent accused the applicant of having misconstrued the arbitrator's statement in the first award. It disputed that the arbitrator had made a finding that there had been a breach and said that he had merely identified that aspect as being one of the issues for arbitration, otherwise he would not have called on the parties to file their statements of claim.

I find against the applicant on this point.

Regarding the generic statement in question, the applicant was guilty of, firstly, selective quoting; secondly, quoting the statement out of context; and, thirdly, misconstruing it altogether.

The applicant repeatedly quoted [i.e. in the founding affidavit, answering affidavit, and heads of arguments] the arbitrator's statement in the first award as follows:

“In my opinion…, the effect of the cancellation did give rise to a breach of the Agreement because Claimant [sic] did not comply with the provisions of Clause 13.2.”

But, that was not all that the arbitrator had said on the point.

The arbitrator's full statement, relevant to that point, was this [with the words removed by the applicant restored and highlighted, and those directly contradicting it highlighted and underlined]:

“It is clear that the cancellation by Respondent, on May 2011, of the Service Provider Agreement it had entered into with Zellco did not constitute a breach of the Sale Agreement Respondent had entered into with Claimant….,.

In my opinion, although the actual cancellation by Respondent of the Service Provider Agreement did not constitute a breach of the Sale Agreement, and, therefore, could not be subject to arbitration in terms of clause 14, the effect of the cancellation did give rise to a breach of the Agreement because Claimant [sic - obviously Respondent] did not comply with the provisions of Clause 13.2.

Had Respondent renewed the Service Provider Agreement in November 2011 and cancelled it a few months later there would have been no breach of the agreement.

I consider that there are two issues giving rise to a dispute between the Parties.

[a] Under 14.1.3 the respective rights and obligations of the parties under the agreement once clause 13.2 became incapable of performance; and

[b] Under 14.1.4, because Respondent breached the agreement by failing to comply with its undertaking in terms of clause 13.2 to renew the Service Provider Agreement for a further 5 years from November 2011.

The first respondent was right.

In his first award, the arbitrator did not, as it were, settle the question of the first respondent's liability for the alleged breach of clause 13.2 of the Agreement of Sale of Shares. He had merely identified that aspect as being one of two issues to be settled in the second arbitration. As paragraph [a] of his formulation of the issues put it, the second arbitration would determine “…, the respective rights and obligations of the parties under the agreement….,.”

The applicant forgets, that, at that stage, the issue before the arbitrator was whether or not the dispute was one to be settled by arbitration.

The arbitrator said it was. He then went on to identify what the issues were.

The applicant's selective quoting of the arbitrator's statement in this regard, and quoting it out of context for that matter, was a self-serving stratagem which was intended to mislead. Therefore, it is my finding, that, the arbitrator did not contradict himself in his two awards in question.

[iii] Did the first respondent breach the Agreement of Sale of Shares; was the applicant entitled to damages?

Without doubt, there was no privity of contract between the applicant and the first respondent in terms of the Service Provider Agreement.

The Service Provider Agreement was between the first respondent and Zellco. That agreement started and ended with these two parties only.

It seems there had been some stray or loose argument to the effect that both Zellco and the applicant had a common shareholding in some respects.

Certainly, at the relevant time, Zellco's chief executive officer also happened to be the chairman of the applicant. But, this set up could not have had any consequence by itself.

Zellco and the applicant were separate legal personae. A wrong done to one was not necessarily a wrong done to the other.

Before me, the applicant accused the arbitrator of misconstruing the premise of his claim before him when he made a finding, that, by suing the first respondent directly for damages, the applicant was attempting to step into the shoes of Zellco.

The applicant said it never stepped, or ever wanted to step, into Zellco's shoes. It said it was not suing the first respondent on the basis of the Service Provider Agreement, to which it was not a party. It was suing the first respondent only on the basis of its breach of the Agreement of Sale of Shares, to which it was a party.

It is important that I capture, accurately, the gravamen of the applicant's argument on this point. It was the jugular vein.

The applicant put its argument this way…,.:

“Contrary to Respondent's allegations and the basis of the ruling by the Arbitrator on the issue, Applicant did not claim everything Zellco would have earned as its profits….,. Zellco's commission was calculated in terms of the SPA, as a percentage of the total income generated from its clients based on the usage of the Respondent's network.

It therefore is no rocket science that in order to determine the commission Zellco would have earned, Applicant needed to calculate or estimate the said total income. Having determined the commission, Applicant went on…, to deduct from the commission all the operating and administrative expenses Zellco would have incurred in earning such commission.

The result is what Zellco would have earned from the operations as its profit and it is this profit that accrues to the shareholders of Zellco and distributed to them as dividends or retained earnings or some other form.

It is this profit, calculated as such, that Applicant is clearly claiming in its statement of claim and particulars of damages.

To the extent that the arbitrator's ruling failed to appreciate this simple fact, it cannot be based on sound legal principles at all and allowing any finding or ruling based on grossly unsound appreciation of fact and such fundamental legal principles to stand would be such an aberration of justice that would no doubt be contrary to the public policy of Zimbabwe which requires that sound legal principles and justice be upheld in such matters.”

Earlier…, the applicant had put forward the same argument as follows:

“The only way the Claimant could have stepped into the shoes of Zellco and sued Respondent for damages suffered by Zellco as a result of the cancellation of the SPA is by suing Respondent in terms of breach of a specific clause of the SPA. Zellco had no shoes in the SSA (no privity of contract) and by suing Respondent for breach of Clause 13.2 of the SSA, the Claimant could not have been doing so in the shoes of Zellco but its own as it clearly has privity of contract.”

I saw no difference. To me, it was all a question of semantics. The applicant was approbating and reprobating.

Plainly, it purported to step into Zellco's shoes and to sue, under the guise of damages, the respondent for money that allegedly would have been due to Zellco.

I find no fault in the arbitrator's findings. But, I explain the situation in my own way.

In terms of the Service Provider Agreement (SPA), Zellco supplied the first respondent's products to members of the public. The profit belonged to the respondent. All Zellco was due was a commission. The applicant had no stake in that.

As a shareholder in Zellco, it would have had to wait for the declaration of a dividend.

If Zellco was pilfering the first respondent's money, then, that was a breach of the Service Provider Agreement (SPA). Indeed, the first respondent complained that Zellco was pilfering its money.

As a result, it instituted proceeding in HC3507/11 saying it had commissioned a firm of auditors who had discovered that Zellco had diverted an amount in excess of $14 million to its other project which had nothing to do with the first respondent. It said it had obtained summary judgment from this court in respect of that money.

All that the applicant said on this point was that the judgment had not been summary judgement, but merely a default judgment against which an application for rescission had been filed.

But, to me, that was neither here nor there. At the time of arbitration, Zellco had an unfulfilled judgment of over $14 million in respect of the first respondent's money. What was worse, Zellco had filed for bankruptcy.

On these facts, clearly, the first respondent had been entitled to cancel the Service Provider Agreement. It had done so. But, apparently, it had botched the cancellation procedure. For that, it had been ordered, by this court, to reverse the cancellation.

It had also been found guilty of contempt of court and fined for having failed, neglected, or refused to reverse the cancellation as had been ordered.

But, that was not the dispute that the arbitrator had been seized with. This was merely an aspect of, or the background to it.

At any rate, the first respondent contended, that, there had been yet another cancellation subsequent to the one in respect of which the applicant had obtained a provisional order and which the applicant had never challenged.

Of course, the applicant disputed that.

But, in my view, the goings-on between Zellco and the first respondent, which were playing out in this court, could not preclude the arbitrator from holding that there had been no privity of contract between the applicant and the first respondent in terms of the Agreement of Sale of Shares.

I find no fault with that decision, let alone one that could be classified as a palpable iniquity that was so outrageous in its defiance of logic or acceptable moral standards and would therefore be in conflict with the public policy of Zimbabwe.

The applicant fixed its sails to the mast of clause 13.2 of the Agreement of Sale of Shares. That clause obligated the first respondent to renew the Service Provider Agreement for a further five years.

The purpose for the renewal was so that the applicant could have the opportunity to realize full value on the shares that it had acquired from the respondent in terms of the Agreement of Sale of Shares.

Clause 13.2 was the only place in the whole Agreement of Sale of Shares that made reference to the Service Provider Agreement.

The clause did not say what would happen if the respondent did not renew as envisaged.

Notwithstanding that, the applicant claimed it knew what would happen.

In paragraph 8.7 of its founding affidavit, it said logic and equity demanded, that, any claim for damages in such circumstances would be a claim based on the applicant recovering that same value from the Service Provider Agreement that it would have derived had that agreement not been cancelled by the first respondent, which cancellation had resulted in the failure by the first respondent to renew the Service Provider Agreement.

But, there was a problem in the applicant's formulation of its alleged cause of action for damages against the first respondent.

In my view, clause 13.2 of the Agreement of Sale of Shares did not override the entirety of the Service Provider Agreement. It only revised the rights and obligations of the parties under the Service Provider Agreement regarding renewal, and not cancellation.

Those parties were Zellco and the first respondent.

The Service Provider Agreement had provisions relating to the rights and duties of the parties under it regarding cancellation. If Zellco frittered away the first respondent's money and the first respondent moved to cancel the Service Provider Agreement, the applicant could not invoke clause 13.2 of the Agreement of Sale of Shares and seek to block the first respondent from cancelling.

Clause 13.2 of the Agreement of Sale of Shares did not have that effect.

That, in my view, was why the arbitrator, in his first award, had surmised, that, had the first respondent renewed the Service Provider Agreement in November 2011, and cancelled it a few months later, there would have been no breach of the Service Provider Agreement.

There was yet another problem with the applicant's formulation of its damages claim.

Any rights arising out of any breach of the Service Provider Agreement, by the first respondent, would accrue to Zellco - not the applicant.

The applicant may have been the majority shareholder in Zellco, and clause 13.2 of the Agreement of Sale of Shares may have been inserted for its benefit; but, to argue that the value accruing to Zellco was the measure of the applicant's damages under the Agreement of Sale of Shares - never mind Zellco's own breach of the Service Provider Agreement, would, in my view, run counter to basic tenets of Company Law.

The applicant was no more than a shareholder in Zellco.

Zellco's money or assets were not the applicant's money or assets. Zellco's debtors were not the applicant's debtors.

The applicant could only rely on such rights as were conferred by its shares in Zellco.

What is a share? What rights does it confer to the holder?

In Borland's Trustees v Steel Brothers & Co Ltd [1901] 1 Ch 279 the plaintiff suggested, that, a share was a sum of money which would be dealt with in a particular manner by what were called, for the purpose of argument, executory limitations. The suggestion was emphatically rejected by the judge, FARWELL J…,.:

“To my mind, it is nothing of the sort. A share is the interest of a shareholder in the company, measured by a sum of money, for the purpose of liability in the first place, and interest in the second, but, also consisting of a series of mutual covenants entered into by all the shareholders inter se…,. A share is not a sum of money settled in the way suggested, but is an interest measured by a sum of money and made up of various rights contained in the contract [i.e. the articles of association], including the right to a sum of money of a more or less amount…,.”

CILLIERS and BENADE on Company Law, Durban Butterworths…, say:

“The term 'share' as such denotes that the holder thereof has a claim on part of the share capital of the company – and does not refer to a right of ownership in any part of the net assets of the company. A share in a company is not a corporeal object but represents a complex of rights and duties.”…,.

Some of the rights accruing to a shareholder via his shareholding in the company, and depending on the type of shares, are the right to dividends when they are declared, and the right to participate in a distribution on liquidation. There is also the right to vote at meetings, and so on.

For the applicant to have sued the first respondent directly to recover what would have accrued to Zellco, simply by virtue of an alleged breach of clause 13.2 of the Agreement of Sale of Shares, which, in any case, did not provide for such a right, amounted to the applicant assuming some derivative right of action but which it has not explained, let alone link to any tenet of Company Law.

The applicant's claim before the arbitrator was evidently based on numerous assumptions, not least, that Zellco had not been in breach of the Service Provider Agreement – despite the judgment of this court; that Zellco was trading profitably and would have made money, not only for the first respondent, but also for itself via the commissions – despite Zellco filing for voluntary liquidation; that Zellco would have declared dividends in all the succeeding years up to November 2016 when the Service Provider Agreement would expire, if it had been renewed, and so on.

I am satisfied, that, when the arbitrator refused to recognise such a formulation for a damages claim, there was nothing palpably iniquitous in his decision that could be said to be far reaching and outrageous in its defiance of logic that sensible and fair minded persons would consider that the conception of justice would be intolerably hurt.

Therefore, on this ground, again, I find against the applicant.

[iv] Did the arbitrator misdirect himself by awarding the first respondent costs on the higher scale and ordering the applicant to meet the costs of the arbitrator alone?

The applicant's claim before the arbitrator was dismissed with costs on the higher scale of attorney and client. Further, the applicant was ordered to meet the costs of the arbitrator on its own.

It has not been clear to me the basis upon which such scale of costs was ordered, or why the applicant was made to meet the costs of the arbitrator all by itself.

The first respondent did not ask for such a scale.

The arbitration clause in the Agreement of Sale of Shares made no provision for the costs of the arbitration. The only provision relating to costs was clause 15. But, this confined itself to the costs of, or incidental to, the negotiation, preparation and execution of the Agreement of Sale of Shares.

In his award, the arbitrator did not explain why he granted such a scale of costs, or why he ordered that his costs be paid by the applicant alone.

In casu, the applicant has made a frontal challenge on the arbitral award on this point. The first respondent's response has been rather muted or equivocal.

The award of costs is wholly a matter in the discretion of the judicial officer: see Graham v Odendaal 1971 [2] SA 611 [AD]; Kruger Brothers & Wassermen v Ruskin 1918 AD 63 and Rautenbach v Symington 1995 SA 583 [O].

Unless a party is guilty of some misconduct, costs are normally awarded on the ordinary scale. That is my understanding of the general principle in the civil courts. But, I see no reason why, in the absence of an agreement to the contrary, or of some other factors affecting it, the principle should not be extended to other fora or bodies exercising judicial or quasi-judicial functions.

In my view, the arbitrator misdirected himself when he awarded costs on the higher scale.

The applicant's claim may have been misconceived, but, the misconception was not so out of the ordinary as to warrant the applicant being mulcted in costs.

Although, even in these proceedings, the applicant may still be kicking against the legal pricks [see Corderoy v Union Government [Minister of Finance] 1918 AD 512…,.], in my view, it has not so gone out of bounds as to attract an adverse order of costs beyond the ordinary scale.

Regarding the order that the costs of the arbitrator should be borne by the applicant alone; again, I have found no explanation anywhere for this.

In my experience, the costs of the arbitrator are generally met by the parties in equal shares.

In the absence of an explanation for a departure from this practice, the arbitrator's costs have to be shared by the parties equally.

In the circumstances, the order of costs by the arbitrator, against the applicant, is set aside and substituted with one of costs on the ordinary scale, with the costs of the arbitrator being shared equally between the parties.

In casu, the applicant has only been partially successful, i.e. on the question of costs. But, to me, such success has been so infinitesimal as to warrant interference with the general principle that the costs should follow the result. Therefore, I make no special order as to costs.

DISPOSITION

1. The application is hereby dismissed with costs.

2. Paragraph 2 of the arbitration award by the Honourable Justice L. G. Smith [Retired], on 2 December 2014, relating to costs, is hereby set aside and substituted by the following:

2.1 The Claimant shall pay the Respondent's costs.

2.2 The costs of the arbitrator shall be borne by the parties in equal shares.

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Law Portal Zimbabwe

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

SC78-21 : ZIMBABWE HOMELESS PEOPLES FEDERATION and OTHERS vs MINISTER OF LOCAL GOVERNMENT AND NATIONAL HOUSING and OTHERS Ruled By: GARWE JA, MAVANGIRA JA and MATHONSI JA

SC81-21 : FRANK HUMBE vs DESMOND MUCHINA and SPARKLES SERVICES (PVT) LTD and GODFREY MUNYAMANA and SHERIFF OF ZIMBABWE and FADZAYI MUNYAMANA Ruled By: BHUNU JA, MATHONSI JA and KUDYA AJA

Appealed HH287-20 : PENELOPE STONE and RICHARD BEATTIE t/a THE STONE/BEATTIE STUDIO vs CENTRAL AFRICAN BUILDING SOCIETY and RESERVE BANK OF ZIMBABWE and MINISTER OF FINANCE & ECONOMIC DEVELOPMENT Ruled By: ZHOU J

View Appeal SC15-21 : CENTRAL AFRICAN BUILDING SOCIETY vs PENELOPE STONE and RICHARD BEATTIE and RESERVE BANK OF ZIMBABWE and MINISTER OF FINANCE AND ECONOMIC DEVELOPMENT Ruled By: GWAUNZA DCJ, MAKONI JA and KUDYA AJA

View Appeal HMA28-20 : TRIANGLE LIMITED and HIPPO VALLEY ESTATES vs ZIMBABWE REVENUE AUTHORITY and OTHERS Ruled By: ZISENGWE J

Appealed SC87-21 : RIO ZIM (PVT) LIMITED vs TRUST BANK CORPORATION LIMITED (In Liquidation) Ruled By: MAKARAU JA, HLATSHWAYO JA and UCHENA JA

View Appeal HH534-18 : RIOZIM (PVT) LTD vs TRUST BANK CORPORATION LTD (IN LIQUIDATION) Ruled By: KWENDA J

SC91-21 : ELPHAS MAPHISA vs CITY OF BULAWAYO Ruled By: GUVAVA JA, UCHENA JA and CHITAKUNYE AJA

HH309-15 : IRENE ZINDI vs ZIMBABWE FARMERS DEVELOPMENT COMPANY LIMITED Ruled By: MWAYERA J

HH25-08 : ZIMBABWE DEVELOPMENT BANK and INTERNATIONAL FINANCE CORPORATION vs DAVID SCOTT and OTHERS Ruled By: GOWORA J

SC93-21 : RINOS TERERA vs GEORGE LOCK and CK HOLLAND t/a HOLLAND ESTATE AGENT and ZIMBABWE HOUSING COMPANY (PVT) LTD and THE REGISTRAR OF DEEDS Ruled By: CHITAKUNYE AJA

SC98-21 : M COMPANY (PRIVATE) LIMITED vs ZIMBABWE REVENUE AUTHORITY Ruled By: HLATSHWAYO JA, GUVAVA JA and GOWORA JA

SC98-21 : M COMPANY (PRIVATE) LIMITED vs ZIMBABWE REVENUE AUTHORITY Ruled By: HLATSHWAYO JA, GUVAVA JA and GOWORA JA

SSC99-21 : JAISON ZHUWAKI vs THE STATE Ruled By: CHITAKUNYE AJA

SC102-21 : DOVES FUNERAL ASSURANCE (PVT) LTD vs FERNABY INVESTMENTS (PVT) LTD and QUECOM ENGINEERING (PVT) LTD and DENNIS NGORIMA and STANDARD CHARTERED BANK LTD and HOMELAND REAL ESTATE and THE SHERIFF Ruled By: BHUNU JA, MATHONSI JA and CHITAKUNYE JA

View Appeal HH485-20 : MIKE MHLANGA vs IRENE MHLANGA Ruled By: CHIRAWU-MUGOMBA J

HH169-13 : TROJAN NICKEL MINE LIMITED vs RESERVE BANK OF ZIMBABWE Ruled By: MATHONSI J

HH366-18 : ALAIN GRANT vs TIRINGEI JEFTA and THE MASTER OF THE HIGH COURT and NELLIE TIYAGO (in her capacity as curator ad litem) Ruled By: CHIRAWU-MUGOMBA J

SC115-21 : ANDREW CHIGOVERA vs MINISTER OF ENERGY AND POWER DEVELOPMENT and ZIMBABWE ELECTRICITY TRANSMISSION AND DISTRIBUTION COMPANY (ZETDC) Ruled By: GUVAVA JA, MAVANGIRA JA and KUDYA AJA

HB28-15 : SIMELENI DUBE vs CHRISTOPHER DUBE Ruled By: MAKONESE J

SC116-21 : ALFRED MWAZHA and OTHERS vs ERNEST MHAMBARE Ruled By: MAVANGIRA JA, UCHENA JA and CHIWESHE JA

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

Appealed SC119-21 : MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS and OTHERS vs CONCILIA CHINANZVAVANA and THE NATIONAL PEACE AND RECONCILIATION COMMISSION Ruled By: GWAUNZA DCJ, GUVAVA JA and BHUNU JA

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

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

HH586-15 : TEMBA MLISWA vs THE CHAIRPERSON (ZEC) and ZIMBABWE ELECTORAL COMMISSION and OTHERS Ruled By: UCHENA J

SC129-21 : SONY PICTURES TELEVISION UK RIGHTS LTD vs C MEDIA AFRICA (PVT) LTD and ZIMBABWE BROADCASTING CORPORATION (PVT) LTD Ruled By: MAVANGIRA JA, MAKONI JA and KUDYA AJA

HB31-15 : TAMIRA OVERSEAS S.A. vs AQUIRIUM TRADING (PVT) LTD Ruled By: TAKUVA J

HB32-15 : ANDREW NDLOVU and CHIHWA TOURS vs THEMBINKOSI SIBINDI Ruled By: MUTEMA J and MOYO J

SC145-21 : SARAH CARTER vs KATHLEEN MACINTOSH (Represented by Edward Warhurst, Executor of Estate Late Kathleen McIntosh) and ANOTHER Ruled By: MAVANGIRA JA, BHUNU JA and CHATUKUTA AJA

HB36-15 : BULAWAYO CITY COUNCIL vs BUTTON ARMATURE WINDING (PVT) LTD Ruled By: MUTEMA J

View Appeal SC59-16 : ZIMRE PROPERTY INVESTMENTS LIMITED vs SAINTCOR (PVT) LTD t/a V. TRACK and JOHN SHUMBA Ruled By: ZIYAMBI JA, GARWE JA and GOWORA JA

CC06-20 : ISOQUANT INVESTMENTS (PRIVATE) LIMITED t/a ZIMOCO vs MEMORY DARIKWA Ruled By: MALABA CJ, GWAUNZA DCJ, GARWE JCC, MAKARAU JCC, GOWORA JCC, HLATSHWAYO JCC, PATEL JCC, GUVAVA JCC and BHUNU JCC

HH801-22 : EQUITY PROPERTIES (PVT) LTD vs AL SHAMS GLOBAL BVI LIMITED and REGISTRAR OF DEEDS N.O. Ruled By: MANGOTA J

HB57-15 : SIPIWO NKOMO vs MLWELIWENKULULEKO NCUBE Ruled By: MUTEMA J

HH02-22 : LIVISON CHIKUTU and PHENEAS CHITSANGE and ALBERT DHUMELA vs MINISTER OF LANDS, AGRICULTURE, WATER, CLIMATE & RURAL RESETTLEMENT and OTHERS Ruled By: MAFUSIRE J

CC01-21 : PRESIDENT OF THE SENATE and PARLIAMENT OF ZIMBABWE and SPEAKER OF THE NATIONAL ASSEMBLY vs INNOCENT GONESE and JESSIE MAJOME and MINISTER OF JUSTICE, LEGAL & PARLIAMENTARY AFFAIRS and PRESIDENT OF REPUBLIC OF ZIMBABWE Ruled By: MAKARAU AJCC, GOWORA AJCC and PATEL AJCC

CC01-21 : PRESIDENT OF THE SENATE and PARLIAMENT OF ZIMBABWE and SPEAKER OF THE NATIONAL ASSEMBLY vs INNOCENT GONESE and JESSIE MAJOME and MINISTER OF JUSTICE, LEGAL & PARLIAMENTARY AFFAIRS and PRESIDENT OF REPUBLIC OF ZIMBABWE Ruled By: MAKARAU AJCC, GOWORA AJCC and PATEL AJCC

CC02-21 : TEMBA MLISWA vs PARLIAMENT OF THE REPUBLIC OF ZIMBABWE Ruled By: MALABA CJ, GWAUNZA DCJ, GARWE AJCC, MAKARAU AJCC, GOWORA AJCC, HLATSHWAYO AJCC and PATEL AJCC

HH11-06 : ZAKEYO MEREKI vs BELL INN (PVT) LTD and MICHAEL BELINSKY and OFFICER COMMANDING MASHONALAND WEST Ruled By: KAMOCHA J

Appealed CC01-20 : WILLMORE MAKUMIRE vs MINISTER OF PUBLIC SERVICE, LABOUR & SOCIAL WELFARE and ATTORNEY-GENERAL OF ZIMBABWE Ruled By: MALABA CJ, GARWE JCC, MAKARAU JCC, GOWORA JCC, PATEL JCC, GUVAVA JCC, MAVANGIRA JCC, MAKONI JCC and BERE JCC

Appealed CC07-21 : MARX MUPUNGU vs MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS and OTHERS Ruled By: GWAUNZA ACJ, GARWE JCC, MAKARAU JCC, GOWORA JCC, HLATSHAWAYO JCC, PATEL JCC and GUVAVA AJCC

Appealed CC07-21 : MARX MUPUNGU vs MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS and OTHERS Ruled By: GWAUNZA ACJ, GARWE JCC, MAKARAU JCC, GOWORA JCC, HLATSHAWAYO JCC, PATEL JCC and GUVAVA AJCC

CC08-21 : ZIMBABWE BANKS AND WORKERS UNION and TIRIVANHU MARIMO vs MINISTER OF PUBLIC SERVICE, LABOUR AND SOCIAL WELFARE and THE SHERIFF OF ZIMBABWE and ZB BANK LIMITED Ruled By: GARWE AJCC, GOWORA AJCC and HLATSHWAYO AJCC

CC11-21 : LIZIWE MUSEREDZA and 385 OTHERS vs MINISTER OF AGRICULTURE, LANDS, WATER AND RURAL RESETTLEMENT and MAPARAHWE PROPERTIES (PVT) LTD and OTHERS Ruled By: GWAUNZA DCJ, GARWE JCC, MAKARAU JCC, GOWORA JCC, HLATSHWAYO JCC, PATEL JCC and UCHENA AJCC

CC13-21 : ZIMBABWE WOMEN LAWYERS ASSOCIATION vs THE MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS and OTHERS Ruled By: GARWE JCC, MAKARAU JCC and GOWORA JCC

HMA18-19 : BRIAN GAVA vs CHAMISA MAWERE and CHAMPION CHAKANETSA (as Executor of Estate Late Claudio Chakanetsa) and MISHECK MIZEKE and MESSENGER OF COURT – GWERU and CITY OF GWERU and REGISTRAR OF DEEDS – BULAWAYO N.O. Ruled By: MAFUSIRE J

CC01-22 : LIZIWE MUSEREDZA and 303 OTHERS (LISTED) vs MINISTER OF AGRICULTURE, LANDS, WATER AND RURAL RESETTLEMENT and MAPARAHWE PROPERTIES (PRIVATE) LIMITED and OTHERS Ruled By: GOWORA JCC, HLATSHAWYO JCC and PATEL JCC

CC01-22 : LIZIWE MUSEREDZA and 303 OTHERS (LISTED) vs MINISTER OF AGRICULTURE, LANDS, WATER AND RURAL RESETTLEMENT and MAPARAHWE PROPERTIES (PRIVATE) LIMITED and OTHERS Ruled By: GOWORA JCC, HLATSHAWYO JCC and PATEL JCC

HH28-16 : FARPIN INVESTMENTS [PVT] LTD vs NETONE CELLULAR [PVT] LTD and JUSTICE L.G. SMITH [RETD] - ARBITRATOR Ruled By: MAFUSIRE J

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Law Portal
Zimbabwe

SC78-21 : ZIMBABWE HOMELESS PEOPLES FEDERATION and OTHERS vs MINISTER OF LOCAL GOVERNMENT AND NATIONAL HOUSING and OTHERS
Ruled By: GARWE JA, MAVANGIRA JA and MATHONSI JA

SC81-21 : FRANK HUMBE vs DESMOND MUCHINA and SPARKLES SERVICES (PVT) LTD and GODFREY MUNYAMANA and SHERIFF OF ZIMBABWE and FADZAYI MUNYAMANA
Ruled By: BHUNU JA, MATHONSI JA and KUDYA AJA

Appealed
HH287-20 : PENELOPE STONE and RICHARD BEATTIE t/a THE STONE/BEATTIE STUDIO vs CENTRAL AFRICAN BUILDING SOCIETY and RESERVE BANK OF ZIMBABWE and MINISTER OF FINANCE & ECONOMIC DEVELOPMENT
Ruled By: ZHOU J

View Appeal
SC15-21 : CENTRAL AFRICAN BUILDING SOCIETY vs PENELOPE STONE and RICHARD BEATTIE and RESERVE BANK OF ZIMBABWE and MINISTER OF FINANCE AND ECONOMIC DEVELOPMENT
Ruled By: GWAUNZA DCJ, MAKONI JA and KUDYA AJA

View Appeal
HMA28-20 : TRIANGLE LIMITED and HIPPO VALLEY ESTATES vs ZIMBABWE REVENUE AUTHORITY and OTHERS
Ruled By: ZISENGWE J

Appealed
SC87-21 : RIO ZIM (PVT) LIMITED vs TRUST BANK CORPORATION LIMITED (In Liquidation)
Ruled By: MAKARAU JA, HLATSHWAYO JA and UCHENA JA

View Appeal
HH534-18 : RIOZIM (PVT) LTD vs TRUST BANK CORPORATION LTD (IN LIQUIDATION)
Ruled By: KWENDA J

SC91-21 : ELPHAS MAPHISA vs CITY OF BULAWAYO
Ruled By: GUVAVA JA, UCHENA JA and CHITAKUNYE AJA

HH309-15 : IRENE ZINDI vs ZIMBABWE FARMERS DEVELOPMENT COMPANY LIMITED
Ruled By: MWAYERA J

HH25-08 : ZIMBABWE DEVELOPMENT BANK and INTERNATIONAL FINANCE CORPORATION vs DAVID SCOTT and OTHERS
Ruled By: GOWORA J

SC93-21 : RINOS TERERA vs GEORGE LOCK and CK HOLLAND t/a HOLLAND ESTATE AGENT and ZIMBABWE HOUSING COMPANY (PVT) LTD and THE REGISTRAR OF DEEDS
Ruled By: CHITAKUNYE AJA

SC98-21 : M COMPANY (PRIVATE) LIMITED vs ZIMBABWE REVENUE AUTHORITY
Ruled By: HLATSHWAYO JA, GUVAVA JA and GOWORA JA

SC98-21 : M COMPANY (PRIVATE) LIMITED vs ZIMBABWE REVENUE AUTHORITY
Ruled By: HLATSHWAYO JA, GUVAVA JA and GOWORA JA

SSC99-21 : JAISON ZHUWAKI vs THE STATE
Ruled By: CHITAKUNYE AJA

SC102-21 : DOVES FUNERAL ASSURANCE (PVT) LTD vs FERNABY INVESTMENTS (PVT) LTD and QUECOM ENGINEERING (PVT) LTD and DENNIS NGORIMA and STANDARD CHARTERED BANK LTD and HOMELAND REAL ESTATE and THE SHERIFF
Ruled By: BHUNU JA, MATHONSI JA and CHITAKUNYE JA

View Appeal
HH485-20 : MIKE MHLANGA vs IRENE MHLANGA
Ruled By: CHIRAWU-MUGOMBA J

HH169-13 : TROJAN NICKEL MINE LIMITED vs RESERVE BANK OF ZIMBABWE
Ruled By: MATHONSI J

HH366-18 : ALAIN GRANT vs TIRINGEI JEFTA and THE MASTER OF THE HIGH COURT and NELLIE TIYAGO (in her capacity as curator ad litem)
Ruled By: CHIRAWU-MUGOMBA J

SC115-21 : ANDREW CHIGOVERA vs MINISTER OF ENERGY AND POWER DEVELOPMENT and ZIMBABWE ELECTRICITY TRANSMISSION AND DISTRIBUTION COMPANY (ZETDC)
Ruled By: GUVAVA JA, MAVANGIRA JA and KUDYA AJA

HB28-15 : SIMELENI DUBE vs CHRISTOPHER DUBE
Ruled By: MAKONESE J

SC116-21 : ALFRED MWAZHA and OTHERS vs ERNEST MHAMBARE
Ruled By: MAVANGIRA JA, UCHENA JA and CHIWESHE JA

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

Appealed
SC119-21 : MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS and OTHERS vs CONCILIA CHINANZVAVANA and THE NATIONAL PEACE AND RECONCILIATION COMMISSION
Ruled By: GWAUNZA DCJ, GUVAVA JA and BHUNU JA

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

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

HH586-15 : TEMBA MLISWA vs THE CHAIRPERSON (ZEC) and ZIMBABWE ELECTORAL COMMISSION and OTHERS
Ruled By: UCHENA J

SC129-21 : SONY PICTURES TELEVISION UK RIGHTS LTD vs C MEDIA AFRICA (PVT) LTD and ZIMBABWE BROADCASTING CORPORATION (PVT) LTD
Ruled By: MAVANGIRA JA, MAKONI JA and KUDYA AJA

HB31-15 : TAMIRA OVERSEAS S.A. vs AQUIRIUM TRADING (PVT) LTD
Ruled By: TAKUVA J

HB32-15 : ANDREW NDLOVU and CHIHWA TOURS vs THEMBINKOSI SIBINDI
Ruled By: MUTEMA J and MOYO J

SC145-21 : SARAH CARTER vs KATHLEEN MACINTOSH (Represented by Edward Warhurst, Executor of Estate Late Kathleen McIntosh) and ANOTHER
Ruled By: MAVANGIRA JA, BHUNU JA and CHATUKUTA AJA

HB36-15 : BULAWAYO CITY COUNCIL vs BUTTON ARMATURE WINDING (PVT) LTD
Ruled By: MUTEMA J

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SC59-16 : ZIMRE PROPERTY INVESTMENTS LIMITED vs SAINTCOR (PVT) LTD t/a V. TRACK and JOHN SHUMBA
Ruled By: ZIYAMBI JA, GARWE JA and GOWORA JA

CC06-20 : ISOQUANT INVESTMENTS (PRIVATE) LIMITED t/a ZIMOCO vs MEMORY DARIKWA
Ruled By: MALABA CJ, GWAUNZA DCJ, GARWE JCC, MAKARAU JCC, GOWORA JCC, HLATSHWAYO JCC, PATEL JCC, GUVAVA JCC and BHUNU JCC

HH801-22 : EQUITY PROPERTIES (PVT) LTD vs AL SHAMS GLOBAL BVI LIMITED and REGISTRAR OF DEEDS N.O.
Ruled By: MANGOTA J

HB57-15 : SIPIWO NKOMO vs MLWELIWENKULULEKO NCUBE
Ruled By: MUTEMA J

HH02-22 : LIVISON CHIKUTU and PHENEAS CHITSANGE and ALBERT DHUMELA vs MINISTER OF LANDS, AGRICULTURE, WATER, CLIMATE & RURAL RESETTLEMENT and OTHERS
Ruled By: MAFUSIRE J

CC01-21 : PRESIDENT OF THE SENATE and PARLIAMENT OF ZIMBABWE and SPEAKER OF THE NATIONAL ASSEMBLY vs INNOCENT GONESE and JESSIE MAJOME and MINISTER OF JUSTICE, LEGAL & PARLIAMENTARY AFFAIRS and PRESIDENT OF REPUBLIC OF ZIMBABWE
Ruled By: MAKARAU AJCC, GOWORA AJCC and PATEL AJCC

CC01-21 : PRESIDENT OF THE SENATE and PARLIAMENT OF ZIMBABWE and SPEAKER OF THE NATIONAL ASSEMBLY vs INNOCENT GONESE and JESSIE MAJOME and MINISTER OF JUSTICE, LEGAL & PARLIAMENTARY AFFAIRS and PRESIDENT OF REPUBLIC OF ZIMBABWE
Ruled By: MAKARAU AJCC, GOWORA AJCC and PATEL AJCC

CC02-21 : TEMBA MLISWA vs PARLIAMENT OF THE REPUBLIC OF ZIMBABWE
Ruled By: MALABA CJ, GWAUNZA DCJ, GARWE AJCC, MAKARAU AJCC, GOWORA AJCC, HLATSHWAYO AJCC and PATEL AJCC

HH11-06 : ZAKEYO MEREKI vs BELL INN (PVT) LTD and MICHAEL BELINSKY and OFFICER COMMANDING MASHONALAND WEST
Ruled By: KAMOCHA J

Appealed
CC01-20 : WILLMORE MAKUMIRE vs MINISTER OF PUBLIC SERVICE, LABOUR & SOCIAL WELFARE and ATTORNEY-GENERAL OF ZIMBABWE
Ruled By: MALABA CJ, GARWE JCC, MAKARAU JCC, GOWORA JCC, PATEL JCC, GUVAVA JCC, MAVANGIRA JCC, MAKONI JCC and BERE JCC

Appealed
CC07-21 : MARX MUPUNGU vs MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS and OTHERS
Ruled By: GWAUNZA ACJ, GARWE JCC, MAKARAU JCC, GOWORA JCC, HLATSHAWAYO JCC, PATEL JCC and GUVAVA AJCC

Appealed
CC07-21 : MARX MUPUNGU vs MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS and OTHERS
Ruled By: GWAUNZA ACJ, GARWE JCC, MAKARAU JCC, GOWORA JCC, HLATSHAWAYO JCC, PATEL JCC and GUVAVA AJCC

CC08-21 : ZIMBABWE BANKS AND WORKERS UNION and TIRIVANHU MARIMO vs MINISTER OF PUBLIC SERVICE, LABOUR AND SOCIAL WELFARE and THE SHERIFF OF ZIMBABWE and ZB BANK LIMITED
Ruled By: GARWE AJCC, GOWORA AJCC and HLATSHWAYO AJCC

CC11-21 : LIZIWE MUSEREDZA and 385 OTHERS vs MINISTER OF AGRICULTURE, LANDS, WATER AND RURAL RESETTLEMENT and MAPARAHWE PROPERTIES (PVT) LTD and OTHERS
Ruled By: GWAUNZA DCJ, GARWE JCC, MAKARAU JCC, GOWORA JCC, HLATSHWAYO JCC, PATEL JCC and UCHENA AJCC

CC13-21 : ZIMBABWE WOMEN LAWYERS ASSOCIATION vs THE MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS and OTHERS
Ruled By: GARWE JCC, MAKARAU JCC and GOWORA JCC

HMA18-19 : BRIAN GAVA vs CHAMISA MAWERE and CHAMPION CHAKANETSA (as Executor of Estate Late Claudio Chakanetsa) and MISHECK MIZEKE and MESSENGER OF COURT – GWERU and CITY OF GWERU and REGISTRAR OF DEEDS – BULAWAYO N.O.
Ruled By: MAFUSIRE J

CC01-22 : LIZIWE MUSEREDZA and 303 OTHERS (LISTED) vs MINISTER OF AGRICULTURE, LANDS, WATER AND RURAL RESETTLEMENT and MAPARAHWE PROPERTIES (PRIVATE) LIMITED and OTHERS
Ruled By: GOWORA JCC, HLATSHAWYO JCC and PATEL JCC

CC01-22 : LIZIWE MUSEREDZA and 303 OTHERS (LISTED) vs MINISTER OF AGRICULTURE, LANDS, WATER AND RURAL RESETTLEMENT and MAPARAHWE PROPERTIES (PRIVATE) LIMITED and OTHERS
Ruled By: GOWORA JCC, HLATSHAWYO JCC and PATEL JCC

HH28-16 : FARPIN INVESTMENTS [PVT] LTD vs NETONE CELLULAR [PVT] LTD and JUSTICE L.G. SMITH [RETD] - ARBITRATOR
Ruled By: MAFUSIRE J