The dispute between the parties centred on a property described as Stand 238 Phase 1 Checheche (“the property”). It is one of those council-owned township properties that local authorities sell on a rent-to-buy basis. It is under the Chipinge Rural District Council.

In the court a quo, the respondent (“Chengetai”) sued the appellant (“Mbozvi”) for eviction and holding over damages. The court granted the orders.

Mbozvi appealed. We heard argument on 27 March 2019 and reserved judgment.

This now is the appeal judgment.

In her claim, Chengetai alleged that Mbozvi “…, unilaterally entered…,” her property in January 2017 without her authority. She alleged she had acquired the property in November 2007; that she had partially developed it to window level but that the defendant was staying there illegally and without paying rentals.

The claim was poorly presented. The drafting was sloppy. For example, there was no reason why Mbozvi's name was not cited in full when all his particulars were available.

But, that is besides the point.

In his defence, Mbozvi took an objection in limine. He said Chengetai had no locus standi in judicio to evict him or to seek holding over damages because the property was his.

But, it seems this objection went nowhere. It seemed abandoned or forgotten somewhere along the way. It was not even on the list of issues at the pre-trial conference.

The objection was ill-conceived anyway, especially if regard is had to the nature of the claim and the nature of the defence.

On the merits, Mbozvi denied that he had “…, unilaterally entered…,” the property. He alleged he had lawfully acquired it from one Tafirenyika Maturo (“Tafirenyika”), to whom Chengetai had transferred her right, title, and interest.

In its judgment, the court a quo ruled, that, there had never been a transfer from Chengetai to Tafirenyika but that what had happened had all been a fraudulent scheme to strip Chengetai of her ownership. As such, since no thief or fraudster can in law transfer rights in a thing, Mbozvi's claim to the property was held to be defective. The court also ruled that Chengetai was entitled to holding over damages.

The case went like this.

Chengetai opened and shut her case with only the evidence from herself. She said the property was allocated to her by the Chipinge Rural District Council in 2007. She produced the offer letter from Council dated 29 November 2007. All this was common cause.

But, there was a subtle detail on the letter that was at war with her case.

The letter had two parallel lines drawn in long hand running diagonally across it and between which the words “Stand No.238 PHASE 1” were inscribed, also in long hand. Mbozvi said that was the evidence of the cession of the property from Chengetai, or of the original allocation to her having been cancelled. She denied it. But, she proffered no other explanation for that endorsement.

In a boxing match, that would be a point for Mbozvi.

Chengetai said she had submitted some developmental plans to the Council for the construction of a 3-roomed cottage on the property. As proof, she produced some drawings endorsed with a date stamp from the Chipinge Rural District Council in 2012.

But, again, a subtle detail on the drawings contradicted the flow of her evidence.

Mbozvi said the plans were for a different property, not Stand 238. Indeed, the drawings cited a different property. They were titled “PROPOSED COTTAGE ON STAND No.120 INFILL CHECHECHE GROWTH POINT”. Chengetai said the reference to Stand 120 was a mistake which the Council had promised to rectify but had never done.

But, again, in a boxing match, this would be another point for Mbozvi.

Beyond this evidence and these two documents, Chengetai's evidence proved nothing further. Everything else she said was a bare denial of the cogent and overwhelming evidence by Mbozvi through himself and his very relevant witnesses, namely, Tafirenyika, his wife Leona or Loren Chiona (“Leona”) and Mbozvi's friend, Collen Gapara (“Collen”) who had facilitated the sale deal between Tafirenyika and Mbozvi.

Mbozvi's case was this.

He heard the property was on sale. He went to inspect it. He liked it. Together with a sister and his wife, they went to inspect Council records. These reflected Tafirenyika as the “owner”. Tafirenyika worked and stayed in South Africa. Mbozvi called him. They agreed on a purchase price of fifty thousand Rand (R50,000).

Tafirenyika referred them to his wife, Leona, whom he said had all the authority to represent him.

The sale deal was concluded. The purchase price was paid. They went to Council offices for the usual cession. This was done.

He took occupation in 2015 and started building the partially constructed house. He completed the structure; tiled the floors; installed water and electricity; planted some trees and flowers around the yard; put up a security wall along the perimeter and started staying there from January 2016.

Until he received her summons, in March 2018, he had never heard of Chengetai and her claim to the property.

To all that, Chengetai denied ever selling the property to anyone.

She denied ever dealing with Tafirenyika or his wife, Leona. She was adamant none of them was known to her.

Mbozvi set to demolish her case. He called Collen.

Collen's evidence corroborated Mbozvi's in relation to the sale by Tafirenyika. One important aspect of that corroboration was that it was his advice to Mbozvi to clear the property first with the Council before committing himself to Tafirenyika. He was present at the Council offices when the records were pulled out and inspected. They all reflected Tafirenyika as the “owner”. Another important aspect of the corroboration was that when Mbozvi took occupation there was a partially built structure which Mbozvi completed in 2016.

Even the court a quo accepted Collen gave his evidence very well and that he remained unshaken under cross-examination.

But, the sale and transfer from Tafirenyika to Mbozvi was less contentious. Fireworks were in respect of the sale and transfer from Chengetai to Tafirenyika.

Chengetai swore she knew nothing about it or that Tafirenyika and his wife, Leona, were ever known to her.

So, Mbozvi called Leona.

She stayed at Checheche Growth Point. She said it was Chengetai herself that had come to her house, personally, on 4 February 2015, to inform her that she had sold the property to her husband, Tafirenyika. Tafirenyika had already telephoned her (Leona) about the deal. Before coming to Leona's house, Chengetai had first telephoned her for directions. The purpose of Chengetai's visit was to arrange transfer of cession at the Council offices. They agreed on a date, 6 February, i.e. two days later.

Leona's evidence, on the cession transfer at the Council's office, was quite elaborate. In brief, it was this:

She had her husband's national registration particulars. Chengetai had hers. Together, they were moving from office to office signing documents. Chengetai would sign first. She would sign in place of Tafirenyika.

After completion of the sale and transfer she and Chengetai actually became friends.

Next, Mbozvi called Tafirenyika.

His formal evidence was that he worked and lived in South Africa. He was married to Leona under customary law. They had three children together. He was the one who sold the property to Mbozvi. Everything was done through Leona, his wife, whom he had granted all the authority.

Critical aspects of Tafirenyika's evidence were these:

He met Chengetai for the first time in South Africa. He did not know her before. She had been in the company of two people, one of them Zviedzo Chipfunde (“Zviedzo”), an old school mate of his. Zviedzo was then married to Chengetai. He told him Chengetai was selling a Stand for thirty thousand Rand (R30,000). He reached an agreement with her. He paid her a deposit of twenty thousand Rand (R20,000). The balance of ten thousand Rand (R10,000) would be paid on the transfer of cession.

Tafirenyika's critical evidence continued:

Towards December, Chengetai was demanding the balance of the purchase price. He told her they needed to change ownership first. They agreed that since he was busy he would give her his wife's contact details through whom the transactions would be carried out.

Back in Zimbabwe, Chengetai did contact Leona and went to see her at home. Together, they arranged and facilitated the change of ownership. Chengetai subsequently returned to South Africa and collected the balance of R10,000 after both she and Leona had confirmed the cession at Council offices.

To all that testimony, Chengetai's position was just a bare denial.

She denied she knew Tafirenyika or his wife, Leona. She denied she had sold her property to them. She denied she had been to South Africa during the period mentioned by Tafirenyika. She denied she had received that kind of money from Tafirenyika or anyone else in connection with the property. She denied the cession at the Council offices and alleged that all the documents suggesting a cession of rights by her were forgeries or fraudulent.

Mbozvi's witnesses were forthright, straightforward, and unshaken. Cross-examination was lame.

For example, counsel for Chengetai, put it to Tafirenyika, that, Leona was a mere concubine of his since there was no registered marriage between them. He pestered Tafirenyika why he did not apply to be joined to the proceedings if ever he wanted to defend his sale of the property to Mbozvi and protect him!

This was absolutely ironic.

It was the process issued by counsel for Chengetai himself, on behalf of Chengetai, and his presentation of the case that were patently incompetent.

For example, the summons excluded very relevant parties like Tafirenyika and the Chipinge Rural District Council, the true owner of the property, and the records for which reflected Tafirenyika as the owner. Not only that, but Chengetai's case was closed with no evidence from any of the Council officials testifying on what had really transpired regarding the property and whether there had really been a fraud.

There was an aspect of Mbozvi's evidence and that of his witnesses that left Chengetai rather exposed.

They asked how on earth they could have ever guessed Chengetai's national registration particulars which were inserted on the cession documents. At first, she denied they were hers. But, she subsequently admitted them. She gave no explanation how Mbozvi and his witnesses could have got them.

Mbozvi's documentary evidence should have won him the case. In a boxing match, it would be the technical knock-out punch. It was completely in consonant with his testimony and that of his witnesses.

Firstly, he relied on Chengetai's own original offer letter from Council and highlighted the cancellation endorsed on it. Next, he discredited the drawings or building plans as belonging to a different property altogether.

The critical cession document from Chengetai to Tafirenyika was produced through Leona.

It was one of those standard cession forms used by rural district councils which are printed on council stationery. Blank spaces were completed in long hand. It had four sections: the first for completion and signing by the cedent; the second for completion and signing by the cessionary; the third for official use, and the fourth, and last, for approval by the Minister of Local Government.

Completed, the relevant portions of the cession document read as follows:

“The undersigned…,___CHENGETAI SIDHUNA___, National Reg. No: ___13–174976 A 13___ do hereby cede, assign and transfer to…,___MATORO (sic) TAFIRENYIKA___ Nat Reg No: ___13 – 200661 T 13___ All my rights and title to and interest in lease number ___238___ at ___CHECHECHE___ Business centre in Chipinge Rural District from ___6___ day of ___FEBRUARY 2015___.”

Above the word “CEDENT” was a signature, in very clear print: “C h e n g e t a i” with the letter “e” quite distinct and somewhat stylish. There were also signatures by two witnesses.

The section for the cessionary read as follows:

“I … ___MATORO (sic) TAFIRENYIKA___ Nat Reg No ___13–200661 T 13___ Address ___1107 Phase 2 CHECHECHE___ Do hereby accept transfer of the Agreement of number _____(blank)____ Business Centre in Chipinge Rural District, as from the ___6___ day of ___February 2015___”

As with the cedent, the cessionary's signature was a distinct name in print “LOREEN CHIONA”. There were also signatures by two witnesses.

The last two sections of the cession document, which were for official use and approval, were left blank.

Counsel for Chengetai latched onto this.

He said the alleged cession was incomplete and unapproved.

He said it was defective and fraudulent because Leona purported to be Tafirenyika and to sign as him. He said she had no power of attorney.

The court a quo accepted the argument. It fell into error.

There is nothing magical about a cession of rights. In Chauke & Anor v Mangena HMA09-19 in which a similar argument arose, I said there is wise Shona saying: “kupedzera miseve pamakunguwo idzo hanga dziripo!” meaning, wasting all the arrows on worthless crows when more treasured guinea fowls abound: in other words, to major in minors.

Simply put, a cession is the transfer or giving up of rights and interest by one party which the other party accepts or receives. The cession is pivoted on an agreement that is legitimate. The transferor or giver of the right is the cedent. The receiver is the cessionary.

No formalities are required for a valid cession: see R.H. CHRISTIE: Business Law in Zimbabwe, Juta & Co Ltd, 1998…,.

In Mberi v Mbewe & Anor HH420-15, after reviewing a number of cases on the point such as Gomba v Makwarimba 1992 (2) ZLR 26 (SC); Hundah v Murauro 1993 (2) ZLR 401 (SC); Pedzisa v Chikonyora 1992 (2) ZLR 445 (SC) and Magwenzi v Chamunorwa & Anor 1995 (2) ZLR 332 (S), I said, in a great number of cases of this nature, the local authority, which is the true owner of the property, is little concerned with what the tenant-to-buy does with his rights and interest in the property.

The local authority normally consents in advance of the alienation or disposal of such rights, or it subsequently ratifies. The consent can be tacit or express.

In the present case it was both.

That, when Mbozvi and his team went to inspect the Council records, before he committed himself to Tafirenyika, they found the property reflecting Tafirenyika as the owner was not challenged.

Thus, unless the Council had given tacit approval to the sale from Chengetai to Tafirenyika, there could be no explanation why the records were in Tafirenyika's name.

But, there was more.

Produced in evidence was a very detailed rent-to-buy agreement between the Chipinge Rural District Council and Tafirenyika in respect of the property. It was signed by Leona as lessee and by Chengetai as a witness.

Nothing could be better evidence of the express consent by the local authority and of the transfer of rights from Chengetai to Tafirenyika.

The court a quo said all these documents were a fraud to strip Chengetai of her ownership of the property.

It said Leona had no power of attorney to sign the documents as Tafirenyika.

It went on to quote from some authority defining a power of attorney as generally being a physical document under seal, and concluding, that, the purported power of attorney relied upon by Leona, not having been a document under a seal, all that she had done in the name of Tafirenyika had been a “farce”.

With all due respect, the court seriously misdirected itself on this aspect.

Mbozvi and his witnesses never said Leona had a power of attorney. The term 'power of attorney' was introduced into the matrix by counsel for Chengetai in cross-examination. All Mbozvi and his witnesses said was that Leona had authority from her husband to transact on his behalf, and that that authority had been given over the telephone.

Whilst a power of attorney gives authority - not all authority is given by a power of attorney.

All that the court a quo had to be satisfied with was whether Leona had her husband's authority to transact on his behalf.

These were unsophisticated people. The court had to be satisfied, by the substance of the arrangements, and not be concerned with fancy legal niceties, or with form over substance.

But, whatever might have been lacking in form was given substance by the Chipinge Rural District Council itself. It gave its badge of authority to the two cessions: the first and crucial one from Chengetai to Tafirenyika, and the second and uncontentious one from Tafirenyika to Mbozvi.

The triangle was complete.

That Council itself and the Ministry of Local Government might not have signed their sections on the cession document seemed to be mere carelessness or plain inadvertence that did not in the least detract from the fact that the parties had agreed and that the Council had granted both tacit and express approval.

Everything else was subterfuge.

Counsel for Chengetai successfully persuaded the court a quo to find meaning and substance in a letter from the Chipinge Rural District Council, written to himself by the Growth Point Manager on 10 April 2018 and which he had solicited for.

Relevant portions of that letter read as follows:

“Your letter dated 25 March, 2018 refers. Ms Chengetai's Sidhuna's letter on same subject dated 18 September, 2017 also refers.

Please note that the Stand cession process is a long and arduous process which takes place at five different levels, namely, the sub-office at Checheche, then Heads of Departments have to consent to it before submitting to ZIMRA. After ZIMRA's concurrence, the matter will finally come back to the Lands and Assets Office at the Main Office before being finally presented to the Chief Executive Officer to complete the signing of a lease agreement thereto.

As you observed, there is no complete cession yet and there is no lease agreement yet between Council and the incumbent, Tawanda Mbozvi. The forms are still at the Checheche sub-office, held back because of an incomplete process. Implicitly, the first level has therefore not yet been satisfied by the parties to warrant it to move up to the second stage where the Heads of Departments will peruse the documents before they can be passed on to ZIMRA.

The Stand is therefore not yet formally…, in the buyer's or cessionary's ownership, albeit the nominated cessionary already having been clearly cited for practical functional purposes – and this we always do as instructed and agreed between the seller and the buyer. In the case of any objection by the parties, we always delay or defer process until we are granted a green light by the parties…,.

In the matter at hand, there is agreement between the incumbent, Tawanda Mbozvi, and Tafirenyika Matoro who claims to have bought the property from Chengetai Sidhuna…,. The dispute, therefore, lies between Chengetai Sidhuna and Tafirenyika Matoro who passed ownership of Sidhuna's property to Mbozvi.

Essentially, therefore, Council fully recognises Sidhuna's objection to processes that were transacted in our offices. She is the holder of the more critical Council stand documents and her consent to the process is therefore paramount.

To that effect, Council has deferred the cession process of Stand 238, given the apparent validity of Chengetai Sidhuna's formal complaint since September 2017.

By copy of this letter, we advise the three parties on our records (being Mbozvi, Matoro and Sidhuna) to convene or otherwise resolve matters and instruct us accordingly….,.”

The letter is an example of double-speak.

But, the highlighted portions are a fabulous give-away. There is an acknowledgement of the double cession.

The cession from Chengetai to Tafirenyika was complete as signified by the lease-to-buy agreement between the Council and Tafirenyika. The cession between Tafirenyika and Mbozvi was complete as signified by, firstly, a handwritten agreement between Tafirenyika and Mbozvi, and, secondly, the cession addendum from Tafirenyika to Mbozvi, both in December 2015.

All these documents were part of the Council records.

And yet neither counsel for Chengetai, nor the court, saw it fit to have Council officials called to give evidence.

Chengetai proved no fraud or any form of unlawful misrepresentation.

On the contrary, the evidence established, that, she had sold her rights and interest in the property to Tafirenyika, who, in turn, had sold his rights and interest to Mbozvi.

The court a quo failed to appreciate that the conclusion in Council's letter above, to the effect that the rights, title, and interest in the property still lay with Chengetai, was the very aspect it was being asked to adjudicate upon.

(i)...,.

(ii)...,.

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

(iv) The first respondent shall hold an Annual General Meeting in terms of its Constitution by not later than the 31st of December 2019.

This is an application lodged in terms of Rule 32 of the Constitutional Court Rules 2016, for leave to appeal against the whole judgment of the Supreme Court (the court a quo) handed down on 14 January 2022 as Judgment SC01-22.

The decision of the court a quo had dismissed the applicant's appeal against the judgment of the High Court in Case No. HC2302/20.

The applicant is a former judge of the Supreme Court. He has cited seven respondents in all. The first respondent is the Judicial Service Commission. The second, third, and fourth respondents (Simbi Veke Mubako, Rekayi Maposa and Takawira Nzombe) were the members of a Tribunal that was established to inquire into the question of the applicant's removal from judicial office. The fifth respondent (Virginia Mabhiza) was the Secretary of that Tribunal. The sixth respondent is the President of Zimbabwe, while the seventh respondent is the Minister of Justice, Legal and Parliamentary Affairs.

Both the sixth and seventh respondents are cited in their official capacities.

On 3 March 2020, the applicant was suspended from judicial office following the appointment of the aforementioned Tribunal by the sixth respondent (hereinafter “the President”). The Tribunal was established to consider the applicant's suitability to hold the office of a judge. The suspension was pursuant to a resolution by the first respondent (hereinafter “the JSC”) made on 13 December 2019 to refer the question of his removal from office to the President.

The applicant was dissatisfied with the manner in which his case had been referred to the President.

Consequently, on 13 May 2020, he filed an application in terms of section 4 of the Administrative Justice Act [Chapter 10:28] alleging, that, the Judicial Service Commission (JSC) had failed to comply with section 3(1)(a) of the Administrative Justice Act by failing to act lawfully, reasonably, and in a fair manner when it gave advice to the President, in terms of section 187(3) of the Constitution.

The High Court dismissed the application before it with costs in favour of the Judicial Service Commission (JSC). The court found that the question of the applicant's alleged gross misconduct was a matter for the Tribunal to determine.

On appeal to the Supreme Court, the applicant raised five grounds of appeal, which are largely replicated in the intended grounds of appeal to this Court in the event that the instant application for leave to appeal is granted.

The Supreme Court upheld the finding of the High Court, that, the deponent to the Judicial Service Commission's opposing affidavit was lawfully authorised to do so. The court a quo also upheld the finding of the High Court, that, the applicant had failed to prove that the JSC was inquorate and functus officio at its meeting held on 13 December 2019. Lastly, the court held, that, the applicant's right to be heard had not been violated.

In the event, the court dismissed the applicant's appeal with no order as to costs.

The intended appeal before this Court is predicated on the assertion, that, the court a quo erred by avoiding an in-depth determination of various constitutional issues before it, despite having been alive to those issues.

The applicant accordingly asserts, that, the question of whether or not there was a constitutional matter before the court a quo must be answered in the affirmative. He further avers that the intended appeal to this Court does enjoy prospects of success.

As paraphrased, the intended five grounds of appeal asseverate that the court a quo erred and thereby misdirected itself in the following respects:

(i) In determining that the appeal was moot when the challenge to the referral by the Judicial Service Commission (JSC), under section 187(3) of the Constitution, was that it was unconstitutional.

(ii) In not finding, that, any person who was not a member of the Judicial Service Commission (JSC) was prohibited from representing it in any application pursuant to section 187(3), and, consequently, in not finding that the JSC was not properly before the High Court.

(iii) In not finding that section 344 of the Constitution places the onus to prove that it had a quorum on the Judicial Service Commission (JSC) and not on the appellant.

(iv) In not finding that section 187(3) of the Constitution requires the Judicial Service Commission (JSC) to grant a judge the full scope of the audi alteram partem rule before sending its advice to the President.

(v) In not finding that the Judicial Service Commission (JSC) is required to determine the existence or otherwise of the jurisdictional facts under section 187(3) before sending its advice to the President.

The applicant avers that the foregoing grounds of appeal enjoy prospects of success for a number of reasons:

(i) As regards the first ground, he contends, that, mootness does not arise when a thing is void for being unconstitutional.

(ii) On the second ground, he states, that, the Constitution does not permit the Judicial Service Commission (JSC) to delegate to its Secretary the critically important duty of defending in court its advice to the President under section 187(3) of the Constitution.

(iii) With respect to the third ground, he argues, that, section 344 of the Constitution would be undermined if a constitutional body is not obliged to prove that it had a quorum and that the independence of the judiciary would be threatened by the possibility of an inquorate Judicial Service Commission (JSC) proceeding in terms of section 187(3) of the Constitution.

In relation to the fourth and fifth grounds, he avers, that, a rigorous process preceding the tendering of advice in terms of section 187(3) of the Constitution requires the full scope of the audi alteram partem rule and a finding by the Judicial Service Commission (JSC) on the existence of the jurisdictional facts contemplated in section 187(1) of the Constitution.

(iv) Lastly, the applicant asserts, that, the intended appeal is of public importance because it is central to the independence of the judiciary. He contends, that, the position of this Court on the issues raised will clarify the law and protect the Constitution.

In the premises, he prays for an order for leave to appeal to be granted.

The Judicial Service Commission (JSC), through an affidavit deposed to by its Secretary, firmly opposes the instant application.

It denies that there are any constitutional issues or matters to be decided as contemplated by Rule 32(2) of the Rules. It also asserts, that, the issues that were before the court a quo were resolved on non-constitutional bases. It further disputes the argument, that, it is in the public interest to grant leave to appeal. It is contended that the application does not satisfy the requirements for leave to appeal under Rule 32 of the Constitutional Court Rules.

The sixth and seventh respondents (President of Zimbabwe and the Minister of Justice, Legal and Parliamentary Affairs) also oppose the application through an affidavit deposed to by the seventh respondent.

In essence, it is averred, that, the court a quo did not decide any constitutional matter. Consequently, it is argued that the applicant has failed to show that his application has any prospects of success.

Both respondents pray that the application be dismissed with costs.

Applications for leave to appeal to this Court are governed by Rule 32 of the Constitutional Court Rules. The requirements to be satisfied by an applicant seeking leave to appeal are now firmly established in the jurisprudence of the Court. They are as follows:

(i) The constitutional matter raised in the decision to be appealed against, and any other connected issues, must be clearly and concisely set out.

(ii) The applicant must intend to apply for leave to appeal against the decision of the subordinate court on a constitutional matter.

(iii) The applicant must demonstrate prospects of success on appeal.

(iv) The intended appeal must be in the interests of justice which are a paramount consideration.

See Cold Chain (Pvt) Ltd t/a Sea Harvest v Makoni 2017 (1) ZLR 14 (CC)…,.; Muza M v Saruchera N.O. & Ors CC05-19; Bonnyview Estate (Pvt) Ltd v Zimbabwe Platinum Mine (Pvt) Ltd & Anor CC06-19; Ismail v St. Johns College & Ors CC19-19; TBIC Investments (Pvt) Ltd v Mangenje & Ors CC15-20; Rita Mbatha v National Foods CC06-21; Gift Konjana v Dexter Nduna CC09-21.

I shall address each of the above requirements ad seriatim in their application to the facts and circumstances of the present matter.

The application in casu, at its outset, relates to the requirements of Rule 32(3)(c) of the Constitutional Court Rules and proceeds to set out “the constitutional matters raised in the decision sought to be appealed against.”

These matters tally with the five grounds of appeal delineated in the draft notice of appeal. They are further elaborated in the applicant's founding affidavit.

There can be no doubt, and this appears to be common cause, that the applicant has satisfied and complied with the requirements of Rule 32(3)(c) of the Constitutional Court Rules.

The more difficult question that arises herein is whether or not the decisions of the High Court and the Supreme Court, being the decisions impugned in casu, bear upon any constitutional issue or matter.

Counsel for the applicant answers that question in the affirmative.

He submits, that, the relevant constitutional matters were raised, both in the High Court and before the Supreme Court. In support of his position, he refers to several passages in the applicant's founding affidavit before the High Court and in his heads of argument before both of the subordinate courts.

Counsel for the applicant further submits, that, the fact that the Supreme Court wrote its judgment without reference to these points is irrelevant.

He nevertheless accepts, that, the mere reference to a constitutional point, whether in the pleadings or in the judgment to be appealed against, is not sufficient to satisfy the requisite test.

He is absolutely correct in that respect: see Moyo v Sgt. Chacha & Ors CC19-17; Chani v Mwayera J & Ors CC02-20.

He also contends, much less persuasively so in my view, that a constitutional matter does not cease to be so simply because there is no reference to the Constitution itself.

It is necessary to pinpoint the relevant references adverted to by counsel.

In the founding affidavit in Case No. HC2302-20 at paragraph 12, the applicant avers, that, the President can only act under section 187(3) of the Constitution, if the advice given to him is lawful in compliance with section 3(1)(a) of the Administrative Justice Act. At paragraphs 55 and 56, the applicant asserts that no jurisdictional circumstances exist that would have entitled the Judicial Service Commission (JSC) to refer the matter to the President.

In particular, he avers that the JSC does not appear to have addressed its mind at all to the grounds for removal from judicial office prescribed by section 187(1) of the Constitution. He then argues, that, if the decision to refer the matter to the President was premised on facts incapable of sustaining any of the three grounds for the removal of a judge “such a decision was grossly unreasonable and irrational.”

At paragraph 57, the applicant attacks the decision of the Judicial Service Commission (JSC) to revisit his case on the basis of new allegations without having been availed an opportunity to consider and respond to those allegations. This was in violation of the audi alteram partem rule and “the dictates of natural justice.”

At paragraphs 63, 65 and 66, the applicant avers that the JSC was both inquorate and improperly constituted when it took the decision to refer his matter to the President and the subsequent decision to suspend him.

These decisions were made outside its constitutive instruments, in particular section 189 of the Constitution, and, therefore “liable to be set aside as being unlawful and grossly irregular.”

At paragraph 68, the applicant assails the failure of the Judicial Service Commission (JSC) to place before the High Court a record of its minutes and deliberations, in keeping with its mandate under section 191 of the Constitution to conduct its business in “a just, fair, and transparent manner.”

At paragraph 70, the applicant observes that the office of a judge is sacrosanct; and, at paragraph 77, he affirms the need for the JSC to protect its judges from unmeritorious attacks on their dignity and standing.

He then concludes that the JSC's advice to the President “was contrary to section 3(1)(a) of [the Administrative Justice Act] and thus null and void”. Accordingly “the subsequent acts of [the President are a nullity and must be set aside.”

Turning to the applicant's heads of argument in the High Court, paragraphs 2 to 4 address the point, that, the Judicial Service Commission (JSC) cannot delegate its constitutional duties, in particular, the defence of its conduct under section 187(3) of the Constitution, to its Secretary or Acting Secretary. The same point is addressed at paragraphs 2 to 7 of the applicant's heads of argument before the Supreme Court.

The applicant reiterates the argument that the JSC was not properly before the High Court, as the deponent to its opposing affidavit was prohibited by the Constitution from representing it in an application brought by a judge pursuant to section 187(3) of the Constitution.

At paragraphs 11 to 17, the applicant sets out his attack on the quorum of the Judicial Service Commission (JSC) at the meeting whereat it decided to refer his matter to the President under section 187(3) of the Constitution. Reliance is placed upon section 341(1) and (2) of the Constitution pertaining to the quorum of any constitutional body.

It is argued, that, the decision of the JSC “was unconstitutional, unlawful and null and void” and that, consequently, the onus to prove that it was quorate at the meeting in question shifted to and lay upon the JSC rather than the applicant.

At paragraphs 36 to 43, the applicant canvasses the alleged failure of the High Court to determine the existence or otherwise of the jurisdictional facts under section 187(1) of the Constitution warranting the referral of the applicant's case to the President in terms of section 187(3). It is argued, that, the actions of the JSC, under section 187(3) of the Constitution, are “clearly subject to review” and that “what was before the court a quo was a challenge to the prior administrative action of advising [the President] under section 187(3) of the Constitution.”

It is further argued that the failure of the Judicial Service Commission (JSC) to “indicate the ground under section 187(1) that is being “relied on” rendered “the action under section 187(3) unconstitutional, unlawful and null and void.”

Lastly, it is submitted that “section 187(1) requires [the JSC] to first reach the conclusion that there is a prima facie case…, before acting under section 187(3)” and that “to reach the prima facie verdict, [the JSC] must carry out an adjudicative process and set out reasons for its conclusions…, before invoking section 187(3).”

Counsel for the first respondent submits, that, the application before the High Court was clearly premised on the provisions of the Administrative Justice Act. The court was not seized with any specific constitutional challenge. In essence, so it is argued, the applicant did not file any constitutional matter before the High Court or the Supreme Court.

Consequently, the doctrines of subsidiarity and avoidance come into play. Additionally, leave to appeal is a very limited right, and, in the present case, there is no basis for appealing to this Court.

Counsel for the sixth and seventh respondents adopts the same stance.

He submits, that, the applicant did not directly impugn the conduct of the Judicial Service Commission (JSC) on any constitutional ground. He filed what was essentially an Administrative Law matter and he cannot deviate from that position. Furthermore, the applicant attacks the Supreme Court for not making various findings. This shows that there was no proper basis for that court to adjudge any constitutional matter.

It is further argued, that, references to the Constitution before the High Court and the Supreme Court were purely incidental and not directly relied upon. Such references were only ancillary and in support of section 3 of the Administrative Justice Act. Accordingly, both subordinate courts were correct in not dealing with the case as involving any constitutional matter.

In reply, counsel for the applicant argues, that, where a constitutional issue arises in any litigation, the court may deal with it, and, if it does address that issue, then a constitutional appeal must lie against its decision.

Moreover, a point raising a constitutional issue may be taken at any time.

Co-counsel for the applicant submits, that, when one relates to the Administrative Justice Act then one is seeking to enforce the Constitution itself.

As regards referrals to the President under section 187(3) of the Constitution, the Judicial Service Commission (JSC) must apply its mind to that process and choose to apply the procedures available under the Judicial Code of Ethics as opposed to a referral to the President in terms of section 187(3) of the Constitution.

The application before the High Court, in its heading, declares, categorically and unequivocally, that, it is a court application in terms of section 4 of the Administrative Justice Act.

Again, in paragraphs 5 and 6 of the application, it is asserted that the Judicial Service Commission (JSC), being an administrative authority, failed to act in accordance with section 3(1)(a) of the Administrative Justice Act and that its decision, to refer the matter to the President, was “unlawful, grossly irregular and therefore invalid.”

In similar vein, the founding affidavit in the High Court sets out the nature of the application in paragraph 11 as being made in terms of section 4 of the Administrative Justice Act and on the premise that the JSC did not comply with section 3(1)(a) of the Administrative Justice Act in that it failed “to act lawfully, reasonably, and in a fair manner.”

On the other hand, paragraph 7(5) of the application, relating to the alternative prayer sought, is framed on the basis that Proclamation No.1 of 2020 does not set out the jurisdictional circumstances necessary to found a prima facie case for the dismissal of a judge as envisaged by section 187(3) of the Constitution. This is also mirrored in paragraph 5 of the draft order sought in the High Court.

Additionally, the founding affidavit, in paragraph 56 refers to the failure of the JSC to apply its mind to the grounds for the removal of a judge in terms of section 187(1) of the Constitution.

However, very notably, the conclusion drawn in that regard is that the decision of the Judicial Service Commission (JSC), to refer the matter to the President, was “grossly unreasonable and irrational.”

Turning to the record of proceedings before the High Court, counsel for the applicant, in addressing the propriety of the JSC's opposing affidavit, its allegedly inquorate status, and the absence of jurisdictional circumstances warranting referral of the matter to the President, certainly appears to have relied upon various provisions of the Constitution in order to buttress his arguments.

Nevertheless, it is abundantly clear, that, the judgment of the High Court, and its reasoning in arriving at its conclusions, are not in any way grounded upon any constitutional principle or requirement. On the contrary, the judgment and the reasons therefor are firmly anchored in the relevant provisions of the Administrative Justice Act.

Having regard to the pleadings and proceedings in the High Court, it appears to me, that, the applicant did not raise any specific constitutional issue for determination by that court.

To the extent that he did allude to certain provisions of the Constitution, he did so purely incidentally in order to demonstrate the alleged failure of the Judicial Service Commission (JSC) “to act lawfully, reasonably and in a fair manner” in compliance with section 3(1)(a) of the Administrative Justice Act.

The applicant's cause of action, as expounded throughout the application and his founding affidavit, was essentially predicated on the perceived unlawful, unreasonable, and unprocedural conduct of the JSC, in alleged violation of its duties and obligations as an administrative authority, albeit as a creature of the Constitution.

After hearing argument on a point in limine raised by the first and third respondents (President of Zimbabwe and Minister of Finance and Economic Development) this Court issued the following order:

“1. The preliminary point raised by the respondents is upheld.

2. The matter is struck off the roll with costs.

3. The reasons for this order are to follow in due course.”

What follow are the reasons for that order.

The Presidential Powers (Temporary Measures) Act [Chapter 10:20] (“the Presidential Powers Act”) provides as follows:

“2 Making of Urgent Regulations

(1) When it appears to the President that -

(a) A situation has arisen or is likely to arise which needs to be dealt with urgently in the interests of defence, public safety, public order, public morality, public health, the economic interests of Zimbabwe or the general public interest; and

(b) The situation cannot adequately be dealt with in terms of any other law; and

(c) Because of the urgency, it is inexpedient to await the passage through Parliament of an Act dealing with the situation; then, subject to the Constitution and this Act, the President may make such regulations as he considers will deal with the situation.

(2) Regulations made in terms of subsection (1) may provide for any matter or thing for which Parliament can make provision in an Act: Provided that such regulations shall not provide for any of the following matters or things -

(a) Authorizing the withdrawal or issue of moneys from the Consolidated Revenue Fund or prescribing the manner in which withdrawals may be made therefrom; or

(b) Condoning unauthorized expenditure from the Consolidated Revenue Fund; or

(c) Providing for any other matter or thing which the Constitution requires to be provided for by, rather than in terms of, an Act; or

(d) Amending, adding to or repealing any of the provisions of the Constitution.

3….,. (not relevant)

(1) Copies of all regulations made in terms of section two shall be laid before Parliament no later than the eighth day on which Parliament sits next after the regulations were made.

(2) If Parliament resolves that any regulations that have been laid before it, in terms of subsection (1), should be amended or repealed, the President shall forthwith amend or repeal the regulations accordingly.

(3) Where any regulations have been amended or repealed in terms of subsection (2) in accordance with a resolution of Parliament, the President shall not, within a period of six months thereafter, make any further regulations in terms of section two that are identical in substance to the regulations before they were so amended or repealed, as the case may be.

Regulations made in terms of section two shall, to the extent of any inconsistency, prevail over any other law to the contrary, apart from regulations that have been made and are in force in terms of the Emergency Powers Act [Chapter 11:04].”

Pursuant to the provisions of section 2 of the Presidential Powers (Temporary Measures) Act, the President of the Republic of Zimbabwe, in a supplement to the Zimbabwe Government Gazette dated 31 October 2016, issued the Presidential Powers (Temporary Measures) (Amendment of Reserve Bank of Zimbabwe Act and Issue of Bond Notes) Regulations, 2016 (“the Bond Notes Regulations”).

Sections 2 and 3 of the Regulations, contained in Statutory Instrument 133/16, S.I.133 of 2016 provide:

“2. (1) The Reserve Bank of Zimbabwe Act [Chapter 22:15] (No.5 of 1999) (“the principal Act”) is amended by the insertion in Part VI ('Banknotes and Coinage') of the following section after section 44A -

“44B Legal Tender of Bond Notes and Coins

(1) The Minister may, by notice in a statutory instrument, prescribe that a tender of payment of bond notes and coins issued by the Bank that are exchangeable at par value with any specified currency other than Zimbabwean currency prescribed as legal tender for the purposes of section 44A shall be legal tender in all transactions in Zimbabwe to the same extent as that prescribed currency.

(2) Section 42 shall apply to bond notes prescribed under subsection (2) as they apply to banknotes.”

Following the publication of the above Regulations, the applicant filed a court application which she said was made in terms of section 167(2)(d) of the Constitution of Zimbabwe as read with Rules 15 and 27 of the Constitutional Court Rules 2016. She sought an order in the following terms:

“1. That, the first respondent be and is hereby declared to have failed to fulfil his constitutional obligation to obey section 134(a) of the Constitution of Zimbabwe 2013 by exercising Parliament's primary law-making powers through his making of Statutory Instrument 133 of 2016.

2. As a consequence arising from 1, that it be and is hereby declared that the Presidential Powers (Temporary Measures) (Amendment of Reserve Bank of Zimbabwe Act and Issue of Bond Notes) Regulations 2016 (SI133 of 2016) be and are hereby declared null and void and of no force or effect, having arisen from 1st Respondent failure to fulfil his constitutional obligation within the contemplation of section 167(2) as read with section 2 of the Constitution of Zimbabwe 2013.

3. That the 2nd Respondent be and is hereby declared to have failed to fulfil its constitutional obligation to protect section 134(a) of the Constitution of Zimbabwe 2013 by allowing section 2(2) of the Presidential Powers (Temporary Measures) Act (Chapter 10:20) to remain on the statute books long after the enactment of the Constitution of Zimbabwe 2013.

4. As a consequence arising from 2, that, section 2(2) of the Presidential Powers (Temporary Measures) Act (Chapter 10:20), to the extent to which it permits the making of a statutory instrument that amends an Act of Parliament be and is hereby declared null and void and of no force or effect, having remained on the statute books from 2nd Respondent failure to fulfil its constitutional obligation within the contemplation of section 167(2) as read with section 2 of the Constitution of Zimbabwe 2013 (sic).

5. That, the proposed introduction of bond notes by the Respondents be and is hereby declared unconstitutional and therefore null and void for arising from the failures by the 1st and 2nd Respondents to fulfil their constitutional obligations as aforesaid (sic).

6. That, the Respondents (if they oppose this application) jointly and severally pay the costs of this application the one paying the others to be absolved.”

In her founding affidavit, the applicant avers, that, in terms of section 90 of the Constitution, the first respondent, as President, has a constitutional obligation to uphold, defend, obey and respect the Constitution as the law of the nation.

Paragraph 10 of Schedule 6 to the Constitution provides, that, all existing laws continue in force but must be construed in conformity with the Constitution.

The law therefore imposes a constitutional obligation on the President not to invoke section 2(2) of the Presidential Powers Act which is clearly inconsistent with the Constitution.

He has a constitutional obligation not to resort to section 2(2) of the Presidential Powers Act to the extent that it purports to empower him to amend an existing Act of Parliament. That section fell away the moment section 134(a) of the Constitution became law.

Section 134 of the Constitution provides that Parliament's primary law making function cannot be delegated.

This means a Statutory Instrument cannot purport to amend an Act of Parliament.

The President's constitutional obligation is to ensure that he does not make statutory instruments that amend Acts of Parliament. Instead, he is obligated to initiate legislation to repeal such legislation.

In respect of Parliament, the applicant avers, that, the Bond Notes Regulations have usurped Parliament's primary law making power.

Parliament must not allow the President, or any member of the executive, to usurp legislative powers.

Parliament has therefore failed to fulfil its constitutional obligation in two respects:

(i) First, it ought not to have allowed section 2(2) of the Presidential Powers (Temporary Measures) Act to remain on the statute books for more than three years after the promulgation of the 2013 Constitution. Instead, it should have repealed that section.

(ii) Secondly, it ought to have taken steps, within 24 hours of the gazetting of the Bond Notes Regulations, to direct the President to repeal them.

The applicant made it clear that this was not an application made in terms of section 85(1) of the Constitution, but, rather, one under section 167(2) of the Constitution.

She submitted that it was not necessary, therefore, to allege a breach of any of her fundamental rights.

Having said so, however, and in order to demonstrate how the failure by the President and Parliament, in upholding their constitutional obligations, is affecting her, she listed the rights violated as:

(a) Equal protection and benefit of the law – section 56(1) of the Constitution;

(b) Private property rights – section 71(2) of the Constitution; and

(c) Choosing and carrying on any profession, trade or occupation – section 64 of the Constitution.

The third respondent (the Minister of Finance and Economic Development) filed opposing papers on behalf of both respondents (the President of Zimbabwe and Minister of Finance and Economic Development). He took a point in limine.

It was this.

The Presidential Powers (Temporary Measures) Act, under which the President acted, is still part of our law and the President is duty bound, in the exercise of his duties, to make use of it.

The opinion by the applicant that the Presidential Powers (Temporary Measures) Act is constitutionally invalid cannot be used to claim that the President has failed to discharge a constitutional obligation.

In fact, by using an existing law, the President is discharging his constitutional obligation, and, in these circumstances, one cannot approach the court in terms of section 167(2) of the Constitution.

If the complaint were on the constitutionality of the Presidential Powers (Temporary Measures) Act, then, the applicant could only have approached this Court in terms of section 85(1) of the Constitution and allege a breach of one or other of her rights.

The third respondent further stated, that, the validity of the Bond Note Regulations is currently before Parliament. That institution has the right to amend or repeal the said Regulations.

Further, in terms of section 9 of the Fifth Schedule to the Constitution, Parliament may also apply to this Court for a declaration of invalidity in respect of the Regulations.

Accordingly, the matter is not ripe for constitutional determination as there exists a process within the law for the determination of the fate of the statutory instrument.

Lastly, he submitted, that, since the applicant is not applying for redress of any breach of her rights in terms of section 85(1) of the Constitution, she does not have the right to directly make an application to this Court but should have made an application to the High Court which could have adequately dealt with the matter.

In its opposing papers, Parliament, represented by its Speaker, has submitted that section 117(1)(c), read together with section 134(a) of the Constitution, allows Parliament to confer legislative powers on another body or authority.

The Speaker has denied that Parliament has failed to fulfil its constitutional mandate since the statutory instrument in question is undergoing scrutiny by its Legal Committee.

In his opposing affidavit, the Governor of the Reserve Bank prays for the dismissal of the application with costs on the higher scale. He has stated as follows:

The Bond Note Regulations were meant to fortify and underpin the existing legal framework for the issuance of bond notes. That instrument was promulgated by the President pursuant to the lawful authority given to him by the Presidential Powers (Temporary Measures) Act, which Act remains part of our law as it has not been repealed by the Constitution.

In any event, paragraph 10 of the Sixth Schedule to the Constitution provides that all existing laws remain in force but must be construed in conformity with the Constitution.

He denies that the President has exercised primary law-making power as envisaged in section 134(a) of the Constitution.

On the basis of the papers before this Court, the first issue that arises for determination is whether the applicant has properly approached this Court in terms of section 167(2)(d) of the Constitution.

Should that question be answered in the positive, the issue that will follow is whether the President and Parliament have failed to fulfil their constitutional obligations.

I deal first with the preliminary point taken by the first and third respondents.

There is a presumption of validity in respect of all subsisting laws. Until such laws are set aside, they have legal effect and must therefore be complied with.

A court cannot, generally speaking, make an order declaring an act illegal, if, at the time the act was performed, it was done in terms of a valid law.

Once an act is done in terms of a valid law, that act is legal.

The only exception to this position is where the legislature, in clear and unambiguous language, or by necessary implication, retrospectively prohibits the doing of something that was legal at the time it was performed, that is to say, where the law expressly states that something that was not prohibited before the promulgation of the retrospective law is illegal – Greatermans Stores (1979) (Pvt) Ltd t/a Thomas Meikles Stores and Anor v The Minister of Public Service, Labour and Social Welfare & Anor CC02-18…,.

This Court has, on several occasions, held that there is a presumption of constitutionality of a law that has not been challenged for alleged unconstitutionality.

The court has further held, that, not only does an unchallenged law compel full obedience but that even a law that is under challenge commands the same level of obedience unless declared invalid.

In this regard, in In Re: Prosecutor General of Zimbabwe on his Constitutional Independence and Protection from Direction and Control CC13-17, this court remarked…,:

“…, it is important to acknowledge the well-known canons that the Constitution is the supreme law and that the rule of law is a founding principle of our nation (section 3(b) of the Constitution).

The quintessence of the rule of law is this, and simply this, that, where there is a law, it must be complied with…,.”

The court further cited with approval the Supreme Court decision in Econet Wireless (Pvt) Ltd v Minister of Public Service, Labour and Social Welfare & Ors 2016 (1) ZLR 268 (S) where…, the court remarked thus:

“It is a basic principle of our law, which needs no authority, that, all subsisting laws are lawful and binding until such time as they have been lawfully abrogated. If, however, any authority is required for this proposition, one need not look further than Black on the Construction and Interpretation of the Laws (1911) page 10 para 41, where the learned author says:

'Every act of the legislature is presumed to be valid and constitutional until the contrary is shown. All doubts are solved in favour of the validity of the Act. If it is fairly and reasonably open to more than one construction, that construction will be adopted which will reconcile the statute with the Constitution and avoid the consequence of unconstitutionality.'

What it means is that all questioned laws and administrative acts enjoy a presumption of validity until declared otherwise by a competent court.

Until the declaration of nullity, they remain lawful and binding, bidding obedience of all subjects of the law.

The doctrine of obedience of the law until its lawful invalidation was graphically put across by Lord Radcliffe in Smith v East Elloe Rural District Council [1956] AC 736 at 769 when he observed that:

'An Order, even if not made in good faith, is still an act capable of legal consequences. It bears no brand of illegality on its forehead. Unless the necessary procedures are taken at law to establish the cause of invalidity and to get it quashed or otherwise upset, it will remain as effective for its ostensible purpose as the most impeccable of orders.'”

The Presidential Powers Act is still part of our law, no court having declared it unconstitutional.

The opinion expressed by the applicant, that it is no longer valid law following the coming into force of the new Constitution, cannot be correct.

The Constitution itself has not said so.

To the contrary, the Constitution provides, in paragraph 10 of Part 4 of the Sixth Schedule, that, all existing laws remain valid, but are to be construed in conformity with the Constitution.

Implicit also in the opinion of the applicant is the suggestion that it is the constitutional obligation of the President to analyse all the laws under which he purports to act in order to ascertain their compliance with the Constitution.

Surely, that cannot be the correct legal position.

In the absence of a specific provision in the Constitution invalidating a law previously enacted, it cannot be the duty of a sitting President to embark upon such an inquiry. That is a role for the courts.

Section 134 of the Constitution does not impose such an obligation on the President.

What is sought before this Court is a declaration, in terms of section 167(3) of the Constitution, that the President and Parliament have both failed to fulfil obligations imposed on them by the Constitution.

The relief sought is predicated upon conduct of the President acting in terms of an Act of Parliament which allows him to make Regulations to deal with urgent situations and which Regulations have supremacy over any other law to the contrary.

It is clear that the applicant should have sought, but did not do so, a declaration that the Presidential Powers Act is unconstitutional.

However, having come under section 167(2)(d) of the Constitution, that is not the issue before the court.

Further, having proceeded in terms of section 167(2)(d), the question whether section 2 of the Presidential Powers Act amounts to unlawful delegation of Parliament's primary law-making function is not an issue before the court.

I agree with learned counsel for the first and third respondents, that, since, as it appears, the gravamen of the complaint by the applicant is on the constitutional validity of section 2 of the Presidential Powers Act, the applicant should have, in these circumstances, approached this Court in terms of section 85(1)(a) of the Constitution, alleging a violation of one or more of her constitutional rights.

In Berry (Nee Ncube) & Anor v Chief Immigration Officer & Anor 2016 (1) ZLR 38 (CC), the first applicant in that case approached the court, both in her own interest and that of her husband, seeking an order to the effect that her fundamental right to freedom of movement and residence, under section 66 of the Constitution, had been violated because the respondents, acting in terms of section 17 of the Immigration Act [Chapter 4:02] had refused to grant her husband entry into and residence in Zimbabwe.

It was common cause that the applicants had not sought to challenge the constitutional validity of section 17 of the Immigration Act.

At page 45G-H, this Court (per GWAUNZA JCC…,.) remarked:

“The applicants, therefore, take issue with the mere fact of the respondents doing their job, in other words, the respondents actions in properly applying an unchallenged law that falls under their direct responsibility.”

And, at p46C-D the court concluded:

“…, one cannot impugn, on a constitutional basis 'conduct' that constitutes a proper, lawful application of the law, without challenging the constitutional validity of the same law, or actions premised on a misinterpretation of it.”

The conclusion is therefore inescapable, that, the application is not properly before this Court and that it stands to be struck off the roll.

The applicant approaches this Court under section 167(2)(d) as read with section 85(1) of the Constitution of Zimbabwe.

It seeks an order declaring that the Constitution of Zimbabwe Amendment No.1 Bill, alternatively, the Constitution of Zimbabwe Amendment No.1 Act, and the Constitution of Zimbabwe Amendment No.2 Act are invalid.

Ultimately, the applicant seeks an order that both be set aside following a declaration of invalidity.

The applicant herein, the Law Society of Zimbabwe (hereinafter 'the LSZ') is a statutory corporate body set up in terms of the Legal Practitioners Act [Chapter 27:07]. It is the body responsible for the welfare and regulation of and for representing the legal fraternity in the country. It is capable of suing and being sued in its own right.

The first respondent is the Parliament of Zimbabwe (“Parliament”), with the second and third respondents being the heads of the Senate and the National Assembly, respectively.

The third respondent (hereinafter the 'Speaker') has deposed to the opposing affidavit on behalf of Parliament and the second respondent.

The fourth respondent is the President of Zimbabwe (hereinafter referred to as the 'President'), and the fifth respondent is the Minister of Justice, Legal and Parliamentary Affairs (hereinafter referred to as the 'Minister').

The sixth respondent is the Attorney-General of Zimbabwe. He is the Chief Legal Adviser to the government and has deposed to the opposing affidavit on behalf of the fourth and fifth respondents as well as himself.

Mr. Mubaiwa appears as amicus curiae.

Sometime in 2017, Parliament enacted the Constitutional Amendment No.1 Act after it had gone through both the National Assembly and Senate. Its promulgation was challenged in this Court on the premise that it had not been validly enacted.

On 31 March 2020, the Constitutional Court set aside the proceedings of the Senate of 1 August 2017 because a two-thirds majority had not been reached. The Senate was directed to conduct a vote by the procedure set out in section 328(5) of the Constitution within a prescribed period.

For reasons not germane to this dispute, the Senate could not conduct a vote and applied to the Constitutional Court for an extension of the time to do so.

On 6 April 2021, the Senate passed the Constitution Amendment No.1 Bill pursuant to an order of the Constitutional Court granting an extension.

The applicant contends, that, the Constitution Amendment No.1 Bill, alternatively, Constitution Amendment No.1 Act 2021, is invalid for the reason that Parliament failed to fulfil a constitutional obligation, in that:

(i) It passed the Constitution Amendment No.1 Bill 2017 in violation of section 147 of the Constitution;

(ii) It failed to follow the procedure set out in section 328 of the Constitution;

(iii) It acted contrary to its constitutional duty, under section 119 of the Constitution, in failing to protect the Constitution and promote democratic governance in Zimbabwe;

(iv) In conformity with its constitutional duty, under section 119 of the Constitution, it still needs to ensure that its provisions are upheld and that it acts constitutionally and in the national interest.

On 17 January 2020, Parliament gazetted the Constitutional Amendment No.2 Bill.

On 8 June 2020, Parliament notified the public, through the Clerk to Parliament, that the Portfolio Committee on Justice, Legal & Parliamentary Affairs was to conduct nationwide public hearings on the Constitutional Amendment (No.2) Bill. The dates scheduled in the notice were 15 to 19 June 2020.

The record shows that the hearings were conducted from 14 to 19 June 2020.

On 20 April 2021, Parliament passed the Constitutional Amendment (No.2) Bill of 2019.

The applicant contends, that, Parliament failed to comply with the provisions of section 328(4) of the Constitution in that it did not immediately invite members of the public, as required by the section, to express their views on the proposed Bill in public meetings.

The applicant contends, that, Parliament should have convened meetings or availed facilities for holding public meetings for the said consultations.

In this regard, the applicant argues that Parliament failed to fulfil a constitutional obligation.

Consequently, it seeks relief against Parliament only, in respect of both Constitutional Amendment No.1 Act and Constitutional Amendment No.2 Act, more specifically, an order declaring that both were promulgated in violation of the Constitution and are thus invalid.

The respondents have all filed papers opposing the application on various bases.

Parliament has raised preliminary points in its opposing papers.

Although the other respondents did not raise any preliminary objections in their sole opposing affidavit, counsel for the fourth, fifth and sixth respondents, has, in oral argument before the Court, set out several points in limine, which I will advert to hereunder before determining the merits of the application.

At the outset of the matter being heard, counsel for the applicant informed the Court, that, the applicant no longer relied on section 85 of the Constitution to seek relief. He submitted that the applicant did not seek an express declaration of rights. Therefore, the application would be solely based on the provisions of section 167(2)(d) of the Constitution in that, in respect of both matters, Parliament had failed to fulfil its obligations under the Constitution in the manner in which both Acts were passed into law.

The first, second, and third respondents have raised several points in limine, which they contend are dispositive of the application, thus obviating the need to determine it on the merits.

The fourth, fifth, and sixth respondents did not raise any objections in the opposing affidavit or their heads of argument. The objections were, however, raised in oral argument by counsel at the inception of the hearing.

They are all on points of law relating to the procedural aspects of the application, and, therefore, stand for resolution by the Court.

This is a trite position in our court system which requires, that, any issue placed before the court by the parties must be determined and a decision rendered in respect of the same.

The first objection raised by Parliament, the first respondent herein, is that the applicant lacks the required locus standi to approach this court for the relief sought.

Counsel for the first respondent argued, that, the concession by the applicant, that it was no longer proceeding under section 85 of the Constitution, left it without a cause of action.

Secondly, it is contended on behalf of Parliament, that, the matter is not properly before the Court.

In this regard, Parliament suggests, that, the challenge by the applicant, of both the Constitution of Zimbabwe Amendment No.1 Act and the Constitution of Zimbabwe Amendment No.2 Act, on the basis that the respondents have failed to fulfil a constitutional obligation, cannot be bundled up in one application. The obligations sought to be invoked are disparate and distinct.

A challenge to the alleged absence of jurisdiction on the part of the Court, raised in the opposing affidavit, was not motivated in the written submissions, nor was it moved in the oral argument.

I take the view that it has been abandoned.

The last objection is that the applicant has no causa for the relief it seeks from the Court.

Counsel for the first respondent submitted, that, the applicant conceded that the Constitution of Zimbabwe Amendment No.1 Act was promulgated pursuant to an order of court. It is the position of counsel for the first respondent, that, once the applicant accepted that the amendment was effected in compliance with an order from the Court, then, it cannot found a cause of action under section 167(2)(d) of the Constitution alleging that the respondents had failed to fulfil a constitutional obligation.

Counsel for the fourth, fifth, and sixth respondents, submitted that the application was invalid.

This objection stemmed from the fact, that, in the founding affidavit, the applicant states that the application was premised on section 167(2)(d) as read with section 85 of the Constitution and Rule 27 of the Constitutional Court Rules 2016. He argued, that, the validity of the application was determinable at the date of filing at which stage the applicant had stated that it was proceeding in terms of the provisions stated above.

Counsel argued further, that, the Constitutional Court enjoys exclusive jurisdiction under section 167(2)(d) of the Constitution, and the joinder of an application under section 85 of the Constitution was impermissible.

In this instance, he argued, that, the combination of the two causes of action rendered the application a nullity.

The second objection related to the relief being sought.

He argued that the draft order was defective as it was unclear whether the Court was being asked to invalidate the Act or the Bill.

Regarding the issue of locus standi, counsel argued that the relief in the application was not sought in terms of section 85 of the Constitution. The applicant did not seek a declaratur that a fundamental right had been violated and that consequential relief be issued by way of redress. Consequently, the cause of action had failed to relate to the relief being sought from the Court.

Counsel for the applicant made the following submissions in response:

Counsel submitted, that, the applicant had not sought an express declaration of a violation of a right enshrined in [Chapter 4] of the Constitution. As a result, he was no longer relying on section 85 of the Constitution for relief.

Instead, he would pray for an order to the effect that Parliament had failed to fulfil its constitutional obligation in passing both Constitutional Amendment Act No.1 and No. 2 and that, consequently, both are invalid and should be set aside.

Regarding locus standi, counsel submitted, that, the applicant had standing under the Legal Practitioners Act. He contended, that, the applicant had alleged that it had a substantial and direct interest in the matter, thus establishing its standing.

He argued further, that, his counterparts were misconstruing the principle in Mudzuri & Anor v Minister of Justice, Legal and Parliamentary Affairs 2016 (2) ZLR 45 (CC) and that instead of limiting standing, the authority extended the basis on locus for any approach to the Constitutional Court.

Mr. Mubaiwa, who appeared as amicus curiae at the behest of the Court, made the following submissions:

He suggested that the applicant had pleaded standing under section 85 of the Constitution. As a result, it was his view that its reliance on section 167 of the Constitution, for standing, did not pass muster.

He contended, that, the applicant must have pleaded standing under section 167 of the Constitution, but failed to do so. The abandonment of section 85 of the Constitution left the applicant needing locus standi to approach the Court.

He prayed that, as a consequence, the application should be dismissed....,.

I turn next to the objections raised by the respondents. In this regard, I propose to address the alleged absence of a cause of action in so far as such causa is linked to the locus standi pleaded by the applicant.

Depending on its determination, I will proceed to determine the remaining objections ad seriatim.

The respondents have all taken issue with the alleged absence of a cause of action on the papers.

Even though counsel for the applicant abandoned reliance on section 85 of the Constitution for relief, this remains the sole cause of action pleaded by the applicant. The respondents contend that the cause of action has been destroyed by the applicant failing to plead and establish locus standi in terms of section 167(2)(d) of the Constitution before the Court.

I proceed to consider that objection simultaneously with the second objection, which is that the applicant has joined two causes of action in a single application.

This objection is premised on the averment in the founding affidavit that the application is brought in terms of section 167(2)(d) of the Constitution as read with section 85 of the Constitution.

It is contended by the fourth, fifth, and sixth respondents, that, an application under section 167 of the Constitution does not permit the citation of any party other than the President or Parliament.

Under section 167(2)(d) of the Constitution, so the argument went, this court enjoys exclusive jurisdiction, and the joinder of an application under section 85 of the Constitution is bad at law and highly improper.

Counsel also argued, that, the joinder of the two applications is improper and renders the application a complete nullity.

This court has previously considered and determined the impropriety of joining two causes of action in one application premised on the above provisions.

The jurisdiction exercised by the Constitutional Court under section 167(2)(d) of the Constitution is clear and distinct from that exercised under section 85 of the Constitution.

Regarding section 167(2)(d) of the Constitution, only the Constitutional Court may determine whether the President or Parliament has failed to fulfil a constitutional obligation. On the other hand, under section 85 of the Constitution, the Constitutional Court enjoys parallel jurisdiction with different courts as it permits any person to approach any court alleging the violation of a fundamental right enshrined under Chapter 4.

Section 85(3) of the Constitution is pertinent in this regard. It provides that “the rules of every court must provide for the procedure to be followed in cases where relief is sought under subsection (1) and those rules must ensure that…,.”

Thus, the conflation of the two causes of action under one application is impermissible and bad at law.

This Court underscores this in Zimbabwe Human Rights Association v Parliament of Zimbabwe & Ors CC06-22. In that decision, PATEL JCC stated…:

“For the sake of completeness, it is necessary to point out, that, the application, to the extent that it is premised on section 85(1) of the Constitution, has been made without leave in terms of Rule 21 of the Rules.

The need to comply with the Rules, generally, and with Rule 21 in particular, was forcefully reaffirmed by MAKARAU JCC in the recent case of Museredza & Ors v Minister of Agriculture, Lands, Water and Rural Resettlement & Ors CC11-21, at pp9, 11, 13-14 and 15.

The Court noted the critical distinction between the jurisdiction of a court, which is a matter of substantive law, and access to that jurisdiction, which is a question of adjectival or procedural law. It was further observed that applications for leave to obtain direct access, under Rule 21, serve the dual purpose of confirming that it is in the interests of justice to determine the matter at hand and as a gate-keeping function to sieve matters that this Court must determine in the interests of justice. The learned judge accordingly held, at p15, that:

'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 above remarks apply with equal force in casu.

Not only has the applicant not properly pleaded its cause of action, it has also conflated two causes of action into a single in a situation where the rules of the Constitutional Court set different procedural requirements in any approach to the court justifying the exercise of its specialized jurisdiction.

Section 167(5) of the Constitution provides that the Rules of the Court must permit any person, when it is in the interests of justice, with or without leave, to bring an application directly to the Court or to appeal directly to the Court from any other court.

Thus, section 167(5) of the Constitution speaks directly to those persons approaching the Constitutional Court, either directly, or wishing to appeal against the decision of a subordinate court, on the premise that it is in the interests of justice for the Court to grant them direct access.

In my view, the important phrase therein is “when it is in the interests of justice.”

There is no suggestion by the applicant that it seeks to approach the Court for relief and that its application falls in the category of applications contemplated under section 167(2)(d) of the Constitution.

From a construction of the provisions of section 85 and section 167(2)(d) of the Constitution, I find that the former is an application brought in the interests of justice whereas an application under section 167(2)(d) is not.

It seems to me that there is a clear distinction between applications under section 85 and applications under section 167(2)(d) of the Constitution.

While an application under section 85 of the Constitution may, depending on the peculiar circumstances of the case, require leave of court, one under section 167(2)(d) of the Constitution does not; whilst the Rules have therefore made provision for the requirement of leave under Rule 21, the requirement for leave has been dispensed with in an application under section 167(2)(d) of the Constitution.

It seems to me, therefore, that, the objection by counsel for the fourth, fifth and sixth respondents, on the joinder of two causes of action, was properly taken.

The objection is therefore upheld.

Ordinarily, this should be dispositive of the application, but, I take the view that it is pertinent and necessary to determine the issue of whether or not the applicant has satisfied the obligation to plead locus standi which is linked to or premised on the cause of action and relief sought before the Court.

The starting point, in my view, is the court's approach to standing under the common law, which is stringent and restrictive.

In general terms, under the common law, a litigant who approaches the court for relief must establish that he or she has a direct and substantial interest in the matter in question. To be properly before the court, such a litigant must show the infringement of some right or that his or her personal interests have been adversely affected, resulting in the litigant approaching the court for redress.

Thus, a party must show that he or she has a direct, personal, and substantial interest in the matter in contention.

In Zimbabwe Stock Exchange v Zimbabwe Revenue Authority SC56-07, MALABA JA…, said:

“The common law position on locus standi in judicio of a party instituting proceedings in a court of law is that to justify participation in the action, the party must show that he or she has a direct and substantial interest in the right, which is the subject matter of the proceedings and the relief sought.”…,.

Locus standi in judicio refers to one's right, ability, or capacity to bring legal proceedings in a court of law.

One must justify such right by showing that one has a direct and substantial interest in the subject-matter and outcome of the litigation: see Zimbabwe Teachers Association & Ors v Minister of Education and Culture 1990 (2) ZLR 48 (HC).

See also Dalrymple & Ors v Colonial Treasurer 1910 TS 372; Henri Viljoen (Pty) Ltd v Awerbuch Brothers 1953 (2) SA 151 (O); United Watch Diamond Co (Pty) Ltd & Ors v Disa Hotels Ltd & Anor 1972 (4) SA 409 (C); Deary NO v Acting President & Ors 1979 RLR 200 (G); SA Optometric Association v Frames Distributors (Pty) Ltd t/a Frames Unlimited 1985 (3) SA 100 (O); Molotlegi & Anor v President of Bophuthatswana & Ors 1989 (3) SA 119 (B).

In Sibanda & Ors v The Apostolic Faith Mission of Portland Oregon (Southern African Headquarters) Inc SC49-18, HLATSHWAYO JA…, considered the principle of locus standi and stated the following:

“It is trite that locus standi is the capacity of a party to bring a matter before a court of law. The law is clear on the point, that, to establish locus standi, a party must show a direct and substantial interest in the matter: see United Watch & Diamond Company (Pty) Ltd & Ors v Disa Hotels Ltd & Anor 1972 (4) SA 409 (C) at 415 AC and Matambanadzo v Goven SC23-04.”

In accordance with the general rule, that the party instituting proceedings must allege and prove that he has locus standi, the onus of so establishing rests upon the applicant.

Consequently, a litigant must show that he has the right or capacity to bring a matter to court and a right to appear in court.

Locus standi is the other side of the coin to jurisdiction.

It is incumbent, therefore, that, the applicant establishes locus standi in judicio to invoke the jurisdiction of the court to exercise its power in its favour: see Mars Incorporated v Candy World (Pty) Ltd 1991 (1) SA 567 (AD)…,.

A party instituting legal proceedings of any nature must show that both he and the party being sued, in layperson's terms, have a real interest in the matter being brought to court. A litigant must show his authority to sue or be sued and that the other party is one over which the court can exercise its jurisdiction. Any party instituting process in which relief is sought from the court is obliged to place itself as a party before the court seized with the dispute.

The applicant approached the court pursuant to section 85 of the Constitution. It did so more specifically in terms of section 85(1)(e) as the association has an obligation, in terms of the Legal Practitioners Act, to represent the interests of the legal fraternity in the country.

The applicant also states that it has “a direct and substantial interest to see that laws are passed and/or amended in compliance with the Constitution, including the Constitution itself.”…,.

The contention made on the respondents behalf is that the applicant has not pleaded any basis upon which it could be found as having locus standi in judicio under section 167(2)(d) of the Constitution in terms of which it sought relief.

In casu, in its papers, particularly the founding affidavit, the applicant had specifically pleaded that it is approaching this Court in terms of section 85 of the Constitution. The reasonable expectation that arises from this statement or averment is that a litigant approaching a court in terms of section 85 of the Constitution intends to enforce a fundamental human right or freedom.

The approach of the courts, generally, on the question of locus standi under the common law is rather restrictive.

The South African Supreme Court of Appeal in Four Wheel Drive Accessory Distributors CC v Rattan NO 2019 (3) SA 451 (SCA) considered the requirements of locus standi. It held that –

“The logical starting point is locus standi — whether, in the circumstances, the plaintiff had an interest in the relief claimed, which entitled it to bring the action.”

Generally, the requirements for locus standi are these:

The plaintiff must have a sufficient interest in the subject matter of the litigation, usually described as a direct interest in the relief sought; the interest must not be too remote; the interest must be actual, not abstract or academic; and it must be a current interest and not a hypothetical one.

The duty to allege and prove locus standi rests on the party instituting the proceedings.

On the other hand, the courts have adopted a broad and generous approach when it comes to standing to give access to court to those litigants wishing to enforce rights under the Constitution.

The principle upon which the courts exercise this discretion is that the effective enforcement of a justiciable Bill of Rights requires that courts adopt a broad approach in so far as standing under the Constitution is concerned.

This Court has extensively canvassed the issue of locus standi in the case of Gonese & Anor v President of Zimbabwe & Ors CC10-18, wherein PATEL JCC elucidated the approach of this Court as follows:

“In the Doctors for Life case (supra), at para 218, NCGOBO J recognized the need to find a proper balance between avoiding improper intrusions into the domain of Parliament and ensuring that constitutional provisions are sufficiently justiciable so as not to be rendered nugatory.

The latter consideration, in my view, behoves this Court to adopt a liberal and generous approach to locus standi in matters involving constitutional rights and obligations. This is so notwithstanding the constitutional and statutory independence enjoyed by Parliament in the control of its own affairs: see Smith v Mutasa N.O. & Anor 1989 (3) ZLR 183 (SC) at 208 & 209. See also Mudzuru & Anor v Minister of Justice, Legal and Parliamentary Affairs N.O. & Ors CC12-15, at pp.13-15, where this Court, per MALABA DCJ (as he then was), eschewed the narrow traditional conception of locus standi in favour of a broad and generous approach to standing in constitutional matters.”…,.

What I must consider, therefore, is whether the applicant has sufficiently placed enough factual allegations to lead to a conclusion that it has the necessary locus standi to approach the Constitutional Court for relief under section 167(2)(d) of the Constitution.

From a perusal of the founding affidavit, in setting out the premise of its locus standi, the applicant avers that, in addition to it approaching the Court in terms of section 85, on behalf of its members, it “has substantial interest to see that laws are passed and/or amended in compliance with the Constitution - including amendments to the Constitution.”

Although the applicant pleads that it has primarily approached the Court in terms of section 85 of the Constitution, in other portions of its founding affidavit, it purports to approach the Court in terms of section 167(2)(d) of the Constitution.

As already noted, the Rules relating to standing for each approach are different.

Whilst the applicant brought the matter premised on an alleged violation of a fundamental right enshrined in Chapter 4 of the Constitution, the relief sought, however, is an order to the effect that Parliament failed to fulfil a constitutional obligation in the manner in which the amendments were passed into law.

Section 85(1) of the Constitution defines the different classes of people who may approach the Constitutional Court to seek redress in terms of that section. This Court has settled the position that section 85(1) of the Constitution has liberalised standing, thus allowing a person who ordinarily could not seek redress for an injury another person had suffered to do so.

See M & Anor v Minister of Justice, Legal and Parliamentary Affairs N.O. & Ors 2016 (2) ZLR 45 (CC) and Mawarire v Mugabe & Ors 2013 (1) ZLR 466 (CC).

Section 167(2)(d) of the Constitution, however, is silent on the nature of standing entitling a person to approach this Court under it.

Rule 27 of the Constitutional Court Rules is also silent on the nature of standing that an applicant is expected to set out.

The generous approach to locus standi, in constitutional matters, does not excuse a litigant from satisfying the Court that he or she has the requisite standing to bring the suit.

A comparison of the provisions of Rule 21of the Constitutional Court Rules, allowing for access under section 85 of the Constitution, and Rule 27 of the Constitutional Court Rules, in terms of which the conduct of the President or Parliament may be impugned for failing to comply with a constitutional obligation, shows that those provisions are very different.

Whereas Rule 21 of the Constitutional Court Rules obliges an applicant to establish that the application is in the interests of justice, the latter Rule premises the application on an allegation of failure to comply with a constitutional obligation.

The requirement for a litigant approaching the court in terms of a provision of the Constitution to properly plead its cause and adhere to the Rules was emphasized in Zimbabwe Human Rights Association v Parliament of Zimbabwe & Ors CC06-22, wherein PATEL JCC opined:

“I should also highlight the other imperative of the rules of practice and procedure, to the effect, that, the pleadings relied upon by every litigant must be framed with crystal clarity to enable the court and the other parties involved to comprehend and respond to that litigant's cause of action and assertions.

This aspect was crisply underscored by GARWE JA (as he then was) in Medlog Zimbabwe (Pvt) Ltd v Cost Benefit Holdings (Pvt) Ltd 2018 (1) ZLR 449 (S), at 455G:

'In general, the purpose of pleadings is to clarify the issues between the parties that require determination by a court of law.'

After citing various authorities, both in this jurisdiction and elsewhere, the learned judge concludes, at 457G:

'The position is therefore settled, that, pleadings serve the important purpose of clarifying or isolating the triable issues that separate the two litigants. It is on those issues that a defendant prepares for trial and that a court is called upon to make a determination. Therefore, a party who pays little regard to its pleadings may well find itself in the difficult position of not being able to prove its stated cause of action against an opponent.'”…,.

Attention may also be drawn to the cautionary sentiments of MAKARAU JCC in Mliswa v Parliament of the Republic of Zimbabwe CC02-21, on the need to plead one's cause of action with precision.

In casu, a perusal of the founding affidavit reveals that even though the applicant pleaded locus standi under section 85 of the Constitution, there is no cause of action linked to section 85 of the Constitution on the papers. Instead, all the averments in the affidavit point to an alleged failure to fulfil a constitutional obligation on the part of Parliament.

It seems to me that the applicant, in framing the application, wished to place itself before the Court under section 85 of the Constitution in order to establish its locus standi, but sought relief under section 167(2)(d) of the Constitution.

It is apparent, that, the applicant assumed, and, was under the mis-apprehension that it was entitled to plead both section 85 and section 167(2)(d) of the Constitution as the vehicle to place itself before the Constitutional Court.

What an applicant needs to plead to establish locus standi under section 167(2)(d) of the Constitution was clarified by the Constitutional Court in Chirambwe v President of the Republic of Zimbabwe & Ors CC04-23.

This Court remarked as follows from paragraph 40 of the judgment:

“…,. That the new Constitution expanded the locus standi of persons seeking to approach the court is now settled. For example, in direct applications brought under section 85(1) of the Constitution, torch bearers are now permitted to seek redress on behalf of the general public or in the interests of a group or class of persons.

In respect of an application alleging that the President or Parliament has failed to fulfil a constitutional obligation, Rule 27 of the Constitutional Rules 2016 requires an applicant to depose to an affidavit setting out the constitutional obligation in question and what it is alleged the President or Parliament failed to do in respect of such obligation.

That the locus standi of applicants seeking constitutional protection and enforcement has been extended is now accepted by this Court.

In Everjoy Meda v (1) Maxwell Matsvimbo Sibanda (2) Zambe Nyika Gwasira (3) The Sheriff of the High Court of Zimbabwe (4)The Registrar of Deeds CC10-16, MALABA CJ made pertinent remarks…, that:

'The purpose of the section is to allow litigants as much freedom of access to the courts on questions of violation of fundamental human rights and freedom with minimal technicalities…,.'

Similarly, in Innocent Gonese (2) Jesse Majome v (1) The President of Zimbabwe (2) Parliament of Zimbabwe (3) Minister of Local Government, Public Works and National Housing N.O. CC10-18, PATEL JCC, writing for the court, remarked…, that:

'…, the latter consideration, in my view, behoves this Court to adopt a liberal and generous approach to locus standi in matters involving constitutional rights and obligations: See also Mudzuru & Anor v Minister of Justice, Legal & Parliamentary Affairs N.O. & Ors CC12-15 at pp13-15 where this Court, per MALABA DCJ (as he then was), eschewed the narrow traditional conception of locus standi in favour of a broad and generous approach to standing in constitutional matters…,. In my view, the applicants have an unquestionable right, both as citizens and as legislators, to vindicate any perceived violation of the Constitution….,.

Considering the whole tenor of the current Constitution and the cases cited above, I have no doubt in my mind, that, it is no longer a requirement for an applicant in a constitutional application, such as the present, to demonstrate that a particular constitutional right has been violated in respect of him/her personally.

The applicant makes it clear that he approaches the court in his capacity as a citizen and resident of Zimbabwe. The point in limine taken on this aspect must therefore fail.”

Given the above dicta, as clearly expressed by this Court, it is apparent that the applicant must aver, in its affidavit, facts which, if proved, would establish a failure to fulfil a constitutional obligation.

The complete absence of a factual basis upon which to approach the Constitutional Court for relief under section 167(2)(d) of the Constitution may leave a litigant without obtaining relief.

When describing the nature of the application, the applicant stated, that, it was an application brought in terms of section 167(2)(d) of the Constitution as read with section 85 of the Constitution.

This is all that it pleaded in justifying its approach to the Constitutional Court under section 167(2)(d) of the Constitution.

This must be read in conjunction with its claim to locus standi under section 85 of the Constitution wherein it states that it has a direct and substantial interest to see that laws are passed and/or amended in compliance with the Constitution, including amendments to the Constitution itself.

This statement is vague as it only speaks to laws being passed and/or amended in compliance with the Constitution, including amendments to the Constitution itself. It does not make specific reference to the intention to hold Parliament to account and the standing upon which the applicant considers that it is clothed with the requisite locus standi to do so.

This is against the settled position that legal standing should be pleaded or established.

The need to comply with the Rules in any application under the Constitution was re-affirmed by PATEL JCC in Zimbabwe Human Rights Association v Parliament of Zimbabwe & Ors CC06-22 wherein the learned judge stated:

“Having regard to the relevant passages in the founding affidavit that I have referred to earlier, it is abundantly clear that the applicant has predicated its locus standi on section 85(1) of the Constitution. On the other hand, its cause of action is specifically founded on the alleged failure of the first and second respondents to fulfil their constitutional obligations. Thus, the applicant's claim to activate the jurisdiction of this Court is exclusively anchored in section 167(2)(d) of the Constitution. This is then mirrored in the declaratory and substantive relief that it seeks both of which are confined to the juridical ambit of section 167(2)(d). The order prayed for makes no mention whatsoever of any infringement of a fundamental right giving rise to locus standi under section 85(1) and the jurisdictional competence of this Court under that provision.

In essence, what the applicant has purported to do is to proceed under two mutually exclusive provisions of the Constitution, viz. section 85(1) and section 167(2)(d).

This course of action was pointedly frowned upon in Central African Building Society v Stone & Ors SC15-21…, where GWAUNZA DCJ observes that:

'…,. An application under section 85 of the Constitution should not be raised as an alternative cause of action…,. Section 85(1) is a fundamental provision of the Constitution, and, an application under it, being sui generis, should ideally be made specifically and separately as such.'”

I find myself in agreement with the dicta in the above authorities and I respectfully associate myself with the remarks therein.

The applicant was obliged to plead its locus standi with the precision and clarity required. It ought to have pleaded a cause of action properly, starting with locus standi, thus enabling the court to exercise its special jurisdiction under section 167(2)(d) of the Constitution.

I find, that, in the circumstances, the matter can be resolved in favour of the respondents. The applicant, therefore, has not established locus standi in judicio to approach the court for relief under section 167(2)(d) of the Constitution.

Thus, it is the duty of the party instituting court proceedings to make out a case that he or she has locus standi to approach the Court for appropriate relief and that the Court can exercise jurisdiction over the party on the other side.

If he fails to do so, his case will fail. He will not have an opportunity to correct his error.

An opposing party can raise the issue of an absence of locus standi at any time in the proceedings.

The Court may not condone the lack of locus standi, even if the parties agree between them to litigate with one another. If locus standi is absent, the proceedings are invalid.

While the question of locus standi, to an extent, is a procedural issue, it is also a matter of substance. It concerns the sufficiency and directness of a person's interest in litigation justifying a basis for that person to be accepted as a litigating party. The sufficiency or the existence of the requirement of interest depends on the facts of each case. It is for the party instituting proceedings to allege and prove its locus standi.

The onus to establish any issue rests on that party relying upon it.

It is thus necessary for a party, in all cases, to allege, in its pleadings, facts sufficient to show that it has locus standi to bring an action. This applies to all proceedings, whether by application or summons.

The applicant has not met the onus to establish locus standi in judicio.

In addition, the applicant has conflated two causes of action, and, in practical terms, this resulted in the applicant placing itself out of the Court's jurisdiction. The application must therefore fail and should be dismissed.

In opposing the application, the respondents prayed for the application to be dismissed with costs.

The prayer for costs was not persisted with in argument.

This is a proper approach, as, the general principle is that courts should not order costs against the losing litigant, in constitutional matters, lest deserving litigants are discouraged from approaching the courts for redress.

In the premises, I make the following order:

The application is dismissed with no order as to costs.

ln Case No. HC2166/21 the applicant sought declaratory relief as follows:

“IT IS DECLARED THAT:

1. The first respondent (Judicial Service Commission) in failing to activate the provisions of section 180 of the Constitution of Zimbabwe Amendment (No.20) Act 2013 and/or the provisions of section 180 of the Constitution of Zimbabwe as amended by Constitution of Zimbabwe Amendment (No.2) Act 2021 (No.2 of 2021) diligently and without delay violated section 324 of the Constitution of Zimbabwe as amended.

2. The second respondent (Chief Justice Luke Malaba) cannot, by virtue of section 328(7) of the Constitution of Zimbabwe, as amended, benefit from the term limit extension as introduced by an amendment of section 186 by the Constitution of Zimbabwe Amendment (No.2) Act 2021.

3. As a consequence of 2 above, the second respondent shall vacate office as the Chief Justice of Zimbabwe on (sic) midnight of 15 May 2021.

4. Any action, conduct, act, or deed of second respondent post the 15th of May 2021, purportedly as Chief Justice of Zimbabwe, is null and void and of no force or effect.

5. Any attempt to continue in office by second Respondent as Chief Justice of Zimbabwe and/or any continuation in office by second respondent, purportedly as Chief Justice of Zimbabwe, violates applicants right of access to a court of law established by law and applicants right to protection of the law in accordance with section 69(4) and section 56(1) of the Constitution 2013 as amended.

6. The second respondent, in any event, can no longer be a judge of the Constitutional Court for more than 15 years in violation of section 186(1) of the Constitution 2013 as amended.

7. ln the alternative, section 14 of the Constitution of Zimbabwe Amendment (No.2) Act 2021 (No.2 of 2021) is invalid for violating section 56(3) of the Constitution 2013 and is accordingly struck down.

8. There shall be no order as to costs."...,.

The relief sought in paragraphs 2, 3, 4 and 5 is the same one being sought by the applicant in HC2128/21 save for the reference to section 69(4) of the Constitution.

This is an ordinary opposed application which the applicant turned into an urgent one. He did so through a letter which he addressed to the Registrar of this court. The letter is dated 20 February 2018. It reads, in part, as follows:

“2. As you will be aware, the application, among other things, seeks to challenge the constitutionality of the Presidential Powers (Temporary Measures) Act [Chapter 10:20] amended to Electoral Act Regulations 2016 published in Statutory Instrument 117/2017.

3. As you are aware of, the regulations we (sic) enacted on 15 September 2017 and therefore they will naturally expire by 15 March 2017.

4. In order to avoid a situation where arguments will be academic on aspects of the regulations, and given the fact that both parties have filed heads of argument in this matter, we seek that the matter be determined urgently.”…,.

It is evident, from the foregoing, that, the applicant was rushing against time.

However, the application was, in my view, not urgent. It was more of self-created urgency than it was urgent in the sense which the rules of court contemplate.

The Regulations were published on 15 September 2017. The applicant did not apply, as he should have done, shortly after the publication of the Regulations. He only filed his application some thirty-five (35) days after the event. He filed it on 20 October 2017. He did not explain the cause of the delay.

The form which he employed showed, that, the application should not have been enrolled on applications which fall under Rule 244 of the High Court Rules 1971. It did not have a certificate from a legal practitioner. It did not give reasons for its urgency. It was filed under Form 29 instead of under Form 29B of the rules of this court.

Urgency was, therefore, created by the applicant himself.

He suddenly became aware of the date of the expiration of the Regulations. He, accordingly, requested the Registrar to draw the court's attention to his predicament, and, in the process, he moved the court to hear the application before the period of the expiration of the Regulations.

The applicant used the Regulations as his point of entry into the substance of the application.

The application has less business with the Regulations. It, in fact, has more business with the constitutionality or otherwise of the Presidential Powers (Temporary Measures) Act [Chapter 10.20].

Paragraph 2 of the applicant's letter of 20 February 2018 is relevant in the mentioned regard.

He states, in the same, that, the application seeks to challenge the constitutionality of the Presidential Powers (Temporary Measures) Act [Chapter 10:20].

This, in my view, is the thrust of the application....,.

I have already stated, in the foregoing portions of this judgment, that, the Presidential Powers (Temporary Measures) Amendment of Electoral Act Regulations, S.I.117 of 2017 are not the subject of this application.

The subject, from the perspective of the applicant, is the Presidential Powers (Temporary Measures) Act itself.

If the Regulations were the issue, the applicant would have invoked section 3(1)(b) of the Presidential Powers (Temporary Measures) Act as read with subsection (2) of the same. He would, in other words, have objected to the publication of the Regulations when the President made his intention known to him, and others, through the Government Gazette Extraordinary, Volume XCV No.61.

The fact that the applicant did not object to the publication of the Regulations, at the time that the President's intention appeared in the Gazette, shows his real intention.

The intention is that he wanted to use the Regulations, after they had been published, as his entry point into criticizing the substance of the Presidential Powers (Temporary Measures) Act.

The observed matter, therefore, takes the discourse to the substantive legality or otherwise of the Presidential Powers (Temporary Measures) Act.

This is an opposed matter in which the applicant (defendant in the main matter) filed a special plea, that the respondent's (plaintiff in the main matters) action be stayed, pending the final determination of the dispute by the arbitrator in terms of the parties agreement.

Both parties are companies which are duly incorporated in accordance with the laws of Zimbabwe.

This case brings to the fore the vexing question of the effect, that, the raising of a special plea ought to have on the proceedings in the main matter.

Various other contentious issues come to mind, such as; whether a special plea should only be raised in circumstances where, if it is upheld, it is likely to dispose of the matter, and, what the purpose of a special plea is as a tool in litigation?

These interesting legal conundrums aside, the issue that arises for determination in this matter is simple.

Does the existence of an arbitration clause in an agreement between parties preclude one of the parties from instituting legal proceedings until the matter has been referred to and determined by an arbitrator?

The background to this special plea is that the respondent issued summons against the applicant on 16 February 2015 in which it claimed payment of the sum of USD$17,313=75 being the 5% retention fund held in terms of the agreement between the parties, as well as costs of suit.

On 5 February 2013, the parties entered into an agreement in terms of which the respondent undertook to supply and fix air-conditioning and mechanical ventilation systems as a nominated sub-contractor in the Nestle new laboratory and administration block project. The respondent averred in the summons, that, it completed its mandate by 4 February 2014 and that it was issued with a certificate of practical completion of works by the Architect.

It is common cause, that, on 13 May 2014, the final certificate of payment in the sum of USD$17,313=75, the 5% retention fund held in terms of the agreement, was issued to the applicant for onward transmission to the respondent. The respondent averred, that, the applicant had failed or refused to release this money to it, in breach of the parties agreement.

The applicant filed notice of entry of appearance to defend on 3 March 2015, and, on 24 June 2015, after further particulars and further and better particulars had been sought and supplied, the applicant filed its special plea.

The basis of the special plea was clause 27 of the CIFOZ Conditions of Building Subcontracts, which the applicant averred provided, that, any dispute or difference that arose between the parties would be referred to arbitration.

According to the applicant, the dispute between the parties arose from the fact that the retention money, to the value claimed by the respondent, was and is still being held in a retention fund trust at Tetrad Investment Bank Limited for Nestle Zimbabwe (Private) Limited (Nestle) and the respondent.

The retention fund was created on 16 November 2012 under the instruction of the respondent and a nominated architect, together with the applicant for the benefit of Nestle.

The applicant contended, that, the respondent ought to have sued Nestle in its summons.

The applicant contended further, that, in terms of clause 13(c) of the CIFOZ Conditions of Building Sub-contracts, the respondent accepted the cession of the retention money to it by the applicant, therefore its claim ought to be against Nestle.

It is common cause that Tetrad Investment Bank Limited (Tetrad) was placed under judicial management, that is why the applicant has not been paid from the retention fund....,.

In the case before me, it is common cause that the main contractor has failed to pay the sub-contractor. It is also common cause that the parties agreed to place certain funds in an escrow account with Tetrad Investment Bank Limited which is now in liquidation. It is common cause that the reason why the main contractor is unable to pay the sub-contractor is that the escrow funds are stuck at Tetrad Investment Bank Limited, the account has been frozen in the process of liquidation. The amount due and payable is not disputed.

There is no dispute between the parties which requires resolution...,.

On 23 July 2018, Mr Forward Kapiya (the respondent) of Stand 254 Headlands Location issued summons at Rusape Magistrate's Court against the appellant, Stella Masunga, where he was seeking eviction of the appellant from a commercial Stand No.193, Headlands known as Kapiya General Dealer.

In the summons, he averred that the appellant was his ex-wife and he had since separated with her, and, since she was then co-habiting with other men, she ought to move out of the property.

The defendant filed her appearance to defend, and, on 3 August 2018 she filed her plea. In her plea she contended that the respondent herein was not the owner of the property. She is the one who bought Stand 193 in 2004 and started constructing it alone before customarily marrying the respondent in 2006.

When she married the respondent, in 2006, the shop was about to be roofed.

In 2010, she admitted changing the name from her name to that of the respondent since the respondent was going to marry her. When the appellant changed the names, she did not know that the respondent wanted to grab her shop.

On 12 September 2018, the matter proceeded to trial and both parties led evidence to prove their cases and called witnesses.

After hearing, the court granted eviction against the appellant and ordered her to vacate the premises by 31 December 2018. The order was granted on 19 November 2018.

On 30 November 2018, the appellant noted an appeal against the whole judgment of the magistrate and outlined the grounds of appeal as follows:

“1. The learned Magistrate erred in ordering the eviction of the appellant by 31 December 2018 on Stand No.193 Headlands, despite the following:

(a) The Stand in question belongs to the appellant.

(b) That responsible authority, which is in Makoni Rural District Council, through its representative, Fungai Misi, having been given subpoena, confirmed that appellant is the one who had purchased the said Stand.

2. The learned Magistrate misdirected herself by failing to appreciate the evidence of the responsible authority to the effect that the Stand is registered in appellant's name.

3. The learned magistrate erred and misdirected herself by failing to consider the evidence of the responsible authority to the effect that indeed there was an attempt to do a cession but that was not done because there were issues which needed to be ironed out first.

4. The court failed to appreciate that indeed appellant has a clear right over the Stand hence could not be evicted.

5. The court failed to appreciate that respondent was lying and sought to rely on his evidence.

6. The court erred and misdirected itself in relying with the evidence of a brick moulder.

7. The judgment imposed by the trial magistrate is shocking and should be set aside.

WHEREFORE appellant prays that an order for eviction imposed by the trial magistrate be set aside with costs that she be allowed to carry out her business as the owner of Stand 193 Headlands.”

I have cited the prayer of the appellant to show that it is defective. However, we condoned that defect in the interests of justice and allowed the appellant to argue its appeal.

For the record, the prayer in an appeal should be framed as follows:

“(a) The appeal is upheld with costs.

(b) The judgment of the court a quo is set aside and substituted by the following:

The claim for eviction of the defendant from Stand 193 Headlands is dismissed with costs.”

The appellant's legal practitioner, on the date of hearing, sought the leave of the court to consolidate grounds of appeal 1, 2 and 3 to be represented by ground 1. Effectively, the appellant chose to abandon ground 2 and 3.

The appellant also abandoned ground of appeal 7, though, in counsel's submission, he smuggled it back whilst seeking an order allowing the court to take into account the proprietary right of the appellant over Stand 193 Headlands.

We allowed the consolidation and refinement of the grounds of appeal for there was no prejudice on the respondent.

The grounds of appeal to be dealt with by this court were then 1, 4, 5 and 6.

The appellant submitted, that, Stand No.193 Headlands belonged to her because it is still registered in her name on the papers held by Makoni Rural District Council.

In the appellant's own pleadings filed of record, she unreservedly and voluntarily contended, that, although she is the one who bought the Stand (a fact which is disputed by the respondent herein) she changed ownership in 2010 when she was about to wed the respondent.

To consolidate that commitment towards change of ownership, there are copies of affidavits signed by both the appellant and the respondent and submitted at Headlands District office.

Whether those papers were forwarded to Makoni Rural District Council offices for cession remains, in our view, academic.

The evidence of Fungai Misi was of no effect because the appellant, in her own papers, concedes, that, in 2010, she changed ownership of the Stand to that of the respondent.

The affidavits of cession signed by the appellant were not revoked nor set aside, they remain extant up to this date.

In any case, the court a quo dealt extensively on the evidence of the appellant, more particularly on the aspect of the purchase price.

The appellant, in her pleadings, contended, that, she bought the Stand for ZW$800. She later on changed the purchase price to ZW$8,000.

The purchase price of ZW$800,000, through a cheque paid by the respondent, was the one confirmed by the Rural Council employee and the court a quo justifiably impugned the appellant's evidence on that aspect questioning how and why the appellant conflicted herself on the price if she was the one who purchased the Stand?

This aspect was based on the credibility, and, the trial court believed the respondent.

There is no basis for this court to interfere with that finding of credibility and we find no misdirection on the part of the learned Magistrate.

That element of the purchase price only added weight to the fact, that, the issue of ownership was resolved by the appellant herself on the date she deposed to an affidavit ceding her rights to that of the respondent.

Ground of appeal number 6 denigrates the evidence of the brick moulder.

We fail to see the legal basis for criticising the learned magistrate in placing probative value on that witness's evidence.

The brick moulder, Mr John Rwapungu, was contracted to mould bricks (usually called “home-made”) by the respondent. He agreed and did the work. He also ferried the bricks to the site using an animal drawn cart. There were no developments at the site. The moulder's bricks were the ones which were used by the respondent's builder to construct development at Stand 193 Headlands.

The court a quo accepted the moulder's evidence, and also the respondent's evidence, to the effect, that, the developments at Stand 193 Headlands were effected by the respondent and belongs to him.

We find no misdirection by the learned magistrate.

When all these aspects are considered, cumulatively, the finding by the court a quo, that Stand 193 Headlands was bought by the respondent and developed by him, is unimpeachable, and, in fact, belongs to the respondent.

The appellant had to be evicted from that Stand since she is not occupying it with the permission of the owner, hence the appellant was an unlawful occupier.

The appellant contends, that, she found a clear right and focuses her argument on the issue of registration of that Stand with the local authority, Makoni Rural District Council.

As already ruled, if the appellant had not pleaded change of ownership in her papers, as well as signing affidavits ceding such rights to the respondent, the interpretation of the situation might have been different.

In our view, the intention to cede those rights by the appellant was done voluntarily and had not been reversed.

The respondent's evidence, that, the property is now in his name, has not been challenged in cross examination.

The application before the court a quo was that of eviction and not sharing of property.

The appellant did not counter claim the Stand ownership and does not raise fraud preceding her cession of rights.

We are unable to agree with the appellant's submissions, that, the court a quo failed to appreciate that the appellant had a clear right. On the date the appellant agreed to cede her rights to the respondent, in 2010, the respondent acquired real rights over the Stand....,.

What is clear from the papers is that the appellant was assigned to go and pay for the Stand in her name without the approval of the respondent. Upon discovery of the situation by the respondent, the parties, for whatever reason, agreed to sign papers where the appellant ceded her rights over the Stand to the respondent. Now that the appellant had separated from the customary union with the respondent, she surreptitiously seeks to have this court re-distribute the property....,.

This ground of appeal has equally no merit.

In March 2016, the applicant, Grandwell Holdings (Grandwell), which owns a 50% shareholding in Mbada Diamonds [Private] Limited (Mbada), a joint venture initiative for diamond mining in Chiadzwa, obtained an interim order under HC1977/16 (HH193-16).

The other 50% shareholding in Mbada is owned by Marange Resources [Private] Limited (Marange), a Government-owned company.

According to the applicant, the elements of the order which was granted entitled its security personnel, and its entire chain, to return to Chiadzwa in order to safeguard its assets. Among these are said to be diamond ore and unprocessed diamonds that are kept in a vault. The diamond ore, which has been crushed, awaits removal of diamonds.

What is not in dispute is that from March last year, the applicant's security personnel went on site as per the order by the court in HC1977/16.

What has brought the applicants back to court, on an urgent basis, is its allegation that their security personnel at the diamond site have now been removed and that massive looting of their diamond ore has taken place at the instance of the first respondent, Zimbabwe Consolidated Diamond Company Limited (ZCDC), and continues to take place - aided and abetted by the Zimbabwe Republic Police (the police), as the second respondent.

The ore is said to being loaded without any recording or chain of command making it impossible to ascertain what is being taken.

With the core mingling of the diamond ore with that being mined by the Zimbabwe Consolidated Diamond Company Limited (ZCDC), the fear is that it would be impossible to tell which diamonds come from which ore and that therein lies the irreparable harm.

Mbada Diamonds [Private] Limited's security personnel have been sterilised by these actions of ZCDC.

To compound the problem, the Zimbabwe Consolidated Diamond Company Limited (ZCDC) is said to have brought onto the mining site security personnel previously hired by Mbada Diamonds [Private] Limited who know how to open the vault locks. As such, a real fear is that of the diamonds being stolen.

Further, if the ore and the diamonds are taken, an equally real fear is that the pending appeal before the Supreme Court would be rendered nugatory.

Having invested US$100m in Mbada Diamonds [Private] Limited, Grandwell Holdings says it has a real and substantial interest in protecting the interests of Mbada Diamonds and its own investment.

An attempt is said to have been made to file the application on behalf of Mbada Diamonds [Private] Limited, but, it had failed to secure the signatures of representatives on the Board of Mbada Diamonds who represent Marange Resources [Private] Limited.

Grandwell Holdings, being a 50% shareholder in Mbada Diamonds [Private] Limited had therefore brought a derivative action to enforce the rights of Mbada Diamonds and to seek a possessory remedy to restore possession.

The basis upon which Grandwell Holdings says that Mbada Diamonds [Private] Limited has been despoilt is paragraph 7 of the Order that was granted in HC1977/16. The paragraph was couched as follows:

“Paragraph 7

For the purposes of safeguarding assets, all of the fifth respondent's security personnel, with all their chain of command, shall be entitled, authorised, and empowered to remain at the fifth respondent's mining site at Chiadzwa Diamond Concession, as directed in paragraph 2 of the order of this court on 29 February 2016, until the resolution of this matter.”

The police, as second respondents, were said not to have appealed against the order, whilst the Zimbabwe Consolidated Diamond Company Limited (ZCDC) which had indeed appealed, had only done so against the finding that it had committed acts of spoliation.

The appeal was therefore said to be in part, leaving paragraph 7, in essence, extant.

In addition, the fact, that, there was no appeal against the presence of security personnel, as per the court order, which is said to be extant, was said to be supported by the fact, that, for almost a year Mbada Diamonds [Private] Limited's security personnel remained firmly on site even as the appeal was pending.

However, the Zimbabwe Consolidated Diamond Company Limited's position is that any removal that has taken place has been as per the court order and arises from the fact, that, the mining grants which were acknowledged to have expired in the said order of the court have not been renewed.

Spoliation per se is denied.

The police say they are there in terms of their constitutional mandate, in section 219 of the Constitution, to maintain peace and order and safeguard property. They have asserted, that, they cannot be interdicted from carrying out a lawful mandate. Furthermore, their standpoint is that no police report was made regarding any theft to diamonds.

They too, essentially, deny despoiling Mbada Diamonds [Private] Limited....,.

I turn now to the merits.

The merits against the backdrop of facts I have already outlined, the bulk of counsel for the first respondent's submission were on the competing rights to the ore stemming from the non-renewal of the mining grants.

This, indeed, was of no relevance to an application for spoliation since its purpose is: “not the protection and vindication of rights in general, but, rather, the restoration of the status quo ante where the spoliatus has been unlawfully deprived of a thing, a movable or immovable, that he had been in possession or quasi-possession of:” see Zulu v Minister of Works, KwaZulu and Others 1992 (1) SA 181 (T).

Key to the remedy is the need to stop and reverse self-help in the resolution of disputes between parties.

Furthermore, as explained in Yeko v Qana 1973 (4) SA 735 (A)…, drawing in Voet 41.2.16:

“…, the injustice of the possession of the person despoiled is irrelevant as he is entitled to a spoliation order even if he is a thief or a robber. The fundamental principle of the remedy is that no one is allowed to take the law into his own hands. All that the spoliatus has to prove is possession of the kind which warrants protection of the remedy and that he was unlawfully ousted.”

An applicant in spoliation proceedings has to establish that they were in peaceful and undisturbed possession of the thing in question at the time they were deprived of possession.

As stated in the case of Gondo NO v Gondo 2001 (1) ZLR 376…,:

“In order to obtain a spoliation order, an applicant needs to prove no more than that -

(a) He was, at the time of the act of spoliation, in peaceful and undisturbed possession of the property; and

(b) He was forcibly or wrongfully, and against his consent, deprived of possession.”

Therefore, what is of relevance here is whether an act of spoliation has taken place entitling the return of possessory right to Mbada Diamonds [Private] Limited.

Fundamentally, also as observed in the case of Chikodzi & Anor v Mashonaland Tobacco (Pvt) Limited & Anor HH392-15, self help itself materially runs against the grain of rule of law as articulated in section 3(1)(a) and (b) of the Constitution of Zimbabwe Amendment Act (No.20) Act 2013 which states in section 3 in its founding values and principles that:

“Zimbabwe is founded on respect of the following values and principles –

(a) Supremacy of the Constitution.

(b) The rule of law.”

Self-help is inimical to a society in which the rule of law prevails as observed in the case of Chief Lesapo v Northwest Agricultural Bank 2000 (1) SA 409.

Notably, this dispute pits a joint venture entity with its foreign investor against a State-created entity.

It is as such important to bear in mind the broader picture.

Among the multitude of factors that have a bearing on investment anywhere in the world is observance of the rule of law in the settlement of disputes. It matters not that one of the parties feels contractually short-changed or thereby entitled to its actions. The rule of law ought to be the guiding principle and it is the duty of the courts to fearlessly foster dispute resolution through the proper channels at all times.

Disregard for the rule of law ultimately does nothing towards fostering a climate of trust for productive investment.

Much of the focus by counsel for the first respondent addressed the question of rights.

The dispute, in so far as this aspect is concerned, is under appeal.

The applicants were emphatic, that, the gravamen of their complaint is the removal of the security personnel who remain at Chiadzwa but have been confined to the residential areas.

In view of the order that was granted in HC1977/16, of which paragraph 7 has indeed, from an examination the notice of appeal, not been appealed against by the Zimbabwe Consolidated Diamond Company Limited (ZCDC), the first respondent, then, Mbada Diamonds (Private) Limited is entitled to an interim relief in the spirit of part of that remains extant.

It has been argued, that, Mbada Diamonds (Private) Limited has alleged spoliation and yet it seeks an interdict.

It is clearly in terms of the rights accorded in paragraph 7 of that Order that it bases its application for an interdict. As such, the argument that they have not satisfied the requirements of an interdict therefore cannot hold. It has merely sought a remedy that is appropriate to the facts. The interdict seeks, among things, to stop the removal of its ore.

No evidence was placed before the court for this hearing to challenge the applicant's assertion, that, Mbada Diamonds (Private) Limited's security personnel had in fact been on the site undisturbed from the time of the granting of the Order up until the recent developments of dispossession.

The matter came before me on the unopposed roll on 1 September 2016. I dismissed it on the basis that:

(a) There is no cause of action, therefore, the relief sought is incompetent.

(b) The papers are defective in that they do not comply with Order 32 of the Rules of this court.

After having been subjected to a barrage of letters by the applicant, the contents of which are self explanatory, and which form part of the record of proceedings, this is a formal setting out of the reasons for the dismissal of the application.

The court application filed of record, on 8 July 2016, made reference to five other applications filed before this court: HC11009-12, HC9428-14, HC2826-16, HC1511-16 and HC2622-16.

The draft order…, is a prayer for an order that the applicant be granted his wish to be allowed to pay lobola at his own convenience, on a date to pay that he will request from the inlaws - only if the respondent is a virgin.

The court was asked, further, to order the respondent to stop her part in the “beaming”.

The court was unable to determine, from the founding affidavit, what the cause of action was.

The court was unable to accede to an order that the respondent accept the applicant as a prospective husband; an order that the parents allow the applicant to pay lobola for her hand in marriage at his convenience; an order that she demonstrates that she is still a virgin; or an order that the respondent stops her part of the 'beaming'.

A cause of action is defined as “the facts that entitle a person to sue:” see Oxford Dictionary of Law, 8th ed Southern Law…,.

The cause of action may be a wrongful act, such as trespass, or the harm resulting from a wrongful act, as in negligence.

A reading of the founding affidavit suggests, that, the applicant's cause of action purports to be founded in delict.

A 'delict' is a civil wrong: see Principles of Delict, JONATHAN BURCHELL…,.

In a delictual claim, the plaintiff normally seeks damages as compensation from the defendant for infringement of his or her rights.

There is nothing in the applicant's founding affidavit which shows what civil wrong the respondent committed.

There is nothing in the founding affidavit to justify the relief sought by the applicant, in delict or in any other recognisable cause of action.

The court was not furnished with sufficient information or averments to understand what 'beaming' is.

To order the respondent to stop her part in the 'beaming' without sufficient foundation as to what this 'wrong' is would be incompetent.

It would be incompetent to order 'that the respondent' furnish the applicant with evidence of her virginity or that she agree to be 'lobolaed' by him.

The applicant approached this court seeking rescission of default judgment entered against him in Case No. HC9544/15 on 8 March 2016.

The background to the matter is that the applicant, as plaintiff, sued the respondent, then the defendant, in the Magistrates Court. The particulars of claim were not clear and concise but they referred to some breach of contract by the respondent; a delictual claim based on the mental suffering that the applicant suffered as a result of the breach of contract.

The magistrate granted absolution from the instance at the close of the applicant, then the plaintiff's case.

The applicant appealed against the decision, in CIV “A” 457/14.

On the day of the hearing, the appeal was dismissed because the applicant defaulted by not appearing.

The applicant, in Case No. HC9542/15, applied for rescission of the default judgment.

Again, at the hearing of Case No. HC9542/15 the applicant was in default and the case was dismissed.

The applicant now seeks rescission of the judgment in terms of Rule 63 of the High Court Rules 1971 (Rules).

In terms of Rule 63, the court may set aside a judgment if there is good and sufficient cause to do so.

Good and sufficient cause has been defined, in a number of jurisdictions, as:

(i) A reasonable explanation for the default;

(ii) Where there is a bona fide defence to the main claim; and

(iii) Where the application for rescission is itself bona fide.

See Chivhayi Enterprises (Pvt) Ltd v Attish Investments (Pvt) Ltd 2007 (2) 89 (S).

The applicant avers, that, the matter was set down in Court “M”. On the day of hearing, the matters were moved to Court “O”. By the time he realized that the matters had been moved, and by the time he managed to get to Court “O” his matter had been dismissed.

The explanation given by the applicant has not been controverted. It sounds probable. I will take that that is what transpired. The detail that he gives regarding the notice that was affixed at the courtroom door has some ring of truth.

The next issue is whether the applicant has a bona fide claim in HC9542/15.

He is seeking rescission of the judgment through which his appeal was dismissed.

The proper procedure would have been for the applicant to apply for reinstatement of the appeal. The applicant has adopted the wrong procedure.

His application, thus, has no prospects of success and it is likely to be dismissed.

In the result, the applicant has not satisfied the requirement that he show good and sufficient cause to have the default judgment rescinded.

Before concluding the matter, I feel compelled to comment on the applicant's papers.

From the analysis I did above, one can tell, that, it is a very simple matter; but, I had to plough through a 100 paged record with endless repetitions and unnecessary material to come up with the judgement.

The bulk of what is contained in the record is irrelevant and incomprehensible.

Pleadings should be concise and clear.

In Meikles Limited Zimbabwe v Stock Exchange HH66-16, in dealing with pleadings which were not concise, I quoted with approval Fungai Nhau v Memory Kipe & Anor HH73-15 where he had this to say:

“By definition, pleadings must be concise and to the point. They must identify the branch of the law under which the claim or defence to it is made and should not contain evidence. Pleadings which are long winding and argumentative should not find their way to these courts. It is a serious dereliction of duty for legal practitioners to continue presenting such offensive pleadings when they have the aid of literature guiding the drafting of pleadings.

I associate myself fully with the sentiments of MAKARAU JP…, in Chifamba v Mutasa & Ors HH16-08 that:

'Legal practitioners are urged to read on the law before putting pen to paper to draft pleadings; in any matter is that what they plead is what the law requires their clients to prove to sustain the remedy they seek…,. Litigation in the High Court is serious business and the standard of pleadings in the court must reflect such.'”

Although the above matters involved legal practitioners, the same can be said of self-actors.

The question, then, is, whether the court, and other litigants, should be subjected to the agony of reading through such process and be expected to come up with a sound judgment or a meaningful response to such processes.

The authors, HERBSTEIN and Van WINSEN. The Civil Practice of the High Courts in South Africa, 5ed…, state the following:

“The High Court possess an inherent jurisdiction to prevent vexatious litigation as being an abuse of its own process.”

They go on to explain, that, such power is one which must be exercised with very great caution and only in a clear case, as the courts of law are open to all.

In De Wet and Ors v Western Bank Ltd 1977 (4) SA 770 T…, the court held:

“A court obviously has inherent power to control the procedure and proceedings in its court. This is to facilitate the work of the courts and enable litigants to resolve their differences in a speedy and inexpensive manner as possible…,.”

The proceedings in this matter can safely be described as vexatious.

The court must be able to protect and control the procedure and its proceedings to avoid abuse by litigants.

It is my view, that, this is the sort of case where a litigant will, in future, be required to seek leave before filing and serving other litigants with his or her process. This would be in a bid to prevent abuse of its own process and to protect other litigants from being harassed and being put out of pocket by vexatious litigants.

It is fortuitous that the respondent, in this matter, did not oppose the application.

In the result, I will make the following order:

1. The application is dismissed.

2. The applicant is required to seek leave of this court before he can issue any process out of this court.

3. No order as to costs.

The applicant and his son, Ian Masamba, in HC0051/15 sued the respondent claiming damages for what they termed “professional negligence for mental suffering” in the sum of USD1,200,000.

The applicant further claimed payment of USD1,400,000 for what he termed “defamation libel.”

The respondent excepted to the summons as well as filed a Special Plea.

The matter was determined by MUNANGATI-MANONGWA J who made the following order:

“1. The special pleas raised by the defendant be and is hereby upheld.

2. The first and second plaintiffs claims against the defendant be and are hereby dismissed.

3. The first and second plaintiffs to pay defendant's costs on an attorney–client scale jointly and severally, the one paying the other to be absolved.”

The applicant now approaches this court seeking an order in the following terms:

“1. The order in case no: HC6051/15 be and is hereby set aside/rescinded against both plaintiffs.

2. Ian Farai Masamba be reinstated as the (1st) first plaintiff in case no: HC6051/15 in which he will invest me with a power of attorney in compliancy with High Court Rules book: Rule 5(4) with the caveat that the rules book itself does not reflect rule 5(4) only Form 1 is reflected and indicates as being originated by Rule 5(4).

3. An Independent Committee of Enquiry be hereby instituted within 3 months from the date of the issuing of this order respondent's ZIMSEC to hold an inquiry into this matter and related matters on the basis of cited record numbers found in this record and the others as the records are perused new records for perusal are found up until they are finished at the magistrate's court and high court report its findings including the performance of the magistrates and judges in the matters in terms of competence and bias and report whether or not the president of the country's hands are clean as well as whether or not his father was Malawian sourcing information from him and from wherever else possible so as to immortalize the correct official history as need to verify has arisen because there is the possibility that history could be falsified and enquiry about the beaming.”

The applicant's affidavit is 33 pages.

I have waded through the prolix affidavit and the draft order and have failed to decipher what exactly the applicant seeks from the court.

The record of the matter itself is 268 pages.

Most of the material is irrelevant to the issue at hand.

There is mention somewhere in the founding affidavit that he seeks the setting aside of the judgement in terms of Order 49 Rule 449(1)(b).

Rule 449(1)(b) provides:

“The court or a judge, in addition to any other power it or he may have mero motu or upon the application of any party affected, correct, rescind, vary any judgement or order -

(a)…,.

(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)…,.”

The applicant and his son, Ian Masamba, in HC0051/15 sued the respondent claiming damages for what they termed “professional negligence for mental suffering” in the sum of USD1,200,000.

The applicant further claimed payment of USD1,400,000 for what he termed “defamation libel.”

The respondent excepted to the summons as well as filed a Special Plea.

The matter was determined by MUNANGATI-MANONGWA J who made the following order:

“1. The special pleas raised by the defendant be and is hereby upheld.

2. The first and second plaintiffs claims against the defendant be and are hereby dismissed.

3. The first and second plaintiffs to pay defendant's costs on an attorney–client scale jointly and severally, the one paying the other to be absolved.”

The applicant now approaches this court seeking an order in the following terms:

“1. The order in case no: HC6051/15 be and is hereby set aside/rescinded against both plaintiffs.

2. Ian Farai Masamba be reinstated as the (1st) first plaintiff in case no: HC6051/15 in which he will invest me with a power of attorney in compliancy with High Court Rules book: Rule 5(4) with the caveat that the rules book itself does not reflect rule 5(4) only Form 1 is reflected and indicates as being originated by Rule 5(4).

3. An Independent Committee of Enquiry be hereby instituted within 3 months from the date of the issuing of this order respondent's ZIMSEC to hold an inquiry into this matter and related matters on the basis of cited record numbers found in this record and the others as the records are perused new records for perusal are found up until they are finished at the magistrate's court and high court report its findings including the performance of the magistrates and judges in the matters in terms of competence and bias and report whether or not the president of the country's hands are clean as well as whether or not his father was Malawian sourcing information from him and from wherever else possible so as to immortalize the correct official history as need to verify has arisen because there is the possibility that history could be falsified and enquiry about the beaming.”...,.

The relief that he seeks in paragraph 2 and 3 is incomprehensible and meaningless and the court cannot be of assistance to him.

This was an urgent chamber application. At the end of the hearing, I dismissed it with costs on a legal practitioner-and-client scale. I deprecated the conduct of the applicant's legal practitioners.

The purported urgent chamber application was not only bad in many respects, it was incurably bad.

What I was particularly concerned with were the patent falsehoods in the applicant's papers.

Furthermore, there was an apparent disconnection between the order sought, the facts laid out in support thereof, and the allegations in the certificate of urgency.

Here are the details....,.

The applicant's draft order was couched thus:

“TERMS OF FINAL ORDER SOUGHT

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

1. That, the 1st and 2nd Respondents be and are hereby interdicted from interfering with Applicant's operations on the Remainder of the Farm Ordar situate in the district of Salisbury pending determination of an application seeking the setting aside of title transfer under Deed No.2807/2015;

2. That, the 1st Respondent and 2nd Respondents (sic) shall bear the costs of this application on a legal practitioner and client scale.

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

1. That, the 1st Respondent be and is hereby interdicted from harassing Applicant's members and/or beneficiaries in any way whatsoever in respect of the Remainder of the Farm Odar immediately upon service of this order.”

The background to this case, in summary, and in my own words, as I understood it, and avoiding much of the contentious stuff, was that the applicant was a consortium or joint venture of some 56 members, comprising, among many others, companies, and State enterprises.

The first respondent was a private company fronted by one Phillip Chiyangwa (“Chiyangwa”).

The second respondent represented the Government.

It was said, in 2006, the Government, in terms of two written agreements, allocated to the applicant some 605,8092 hectares of a property known as Ordar Farm (“the property”).

The allocation was so that the consortium could develop, at its own cost, housing units for its members.

One important feature of the joint venture agreement was that the consortium would, through the Government, pay compensation to the former owner of the land at levels pegged by Government.

This former owner was identified in the agreements as the Zimbabwe Tobacco Association (“ZTA”).

Another feature of the agreements was that the parties to the joint venture would establish a partnership whose members contributions to the capital costs and whose entitlement to the individual land units would be in the proportions as set out.

The day to day management of the partnership would be entrusted to a committee of twelve persons appointed by the partners.

In due course, the Government would pass title to the owners of the individual units of land.

The applicant's case before me, again in my own words, and largely staying clear of the hotly contested facts, was that it had kept its side of the agreement.

Among other things, the relevant developmental permits had been put in place. The property had substantially been developed.

Yet, the Government had blatantly reneged on virtually every other undertaking that it had made to the applicant.

Among other things, the Government had surreptitiously surrendered the property to Phillip Chiyangwa, through his company, the first respondent herein.

A week before the application, the Government had, nicodemously, executed a Deed of Grant over the property in favour of Phillip Chiyangwa's company.

The applicant's members were now at Phillip Chiyangwa's mercy.

They were facing constant harassment from him as he relentlessly pursued compensation from them in return for individual title to the individual units occupied by them in terms of the agreements with the Government.

He was busy flighting malicious adverts in the media and making malicious reports to the police against the applicant's Management Committee.

The applicant did not recognise Phillip Chiyangwa or his alleged rights or title to the property.

In separate proceedings before this court, the applicant said it was challenging Government's actions. In particular, the applicant wanted the title to Phillip Chiyangwa's company reversed.

So. the applicant's case before me was that pending determination of the main case, it wanted a temporary interdict.

It was the nature of that temporary interdict that was the bone of contention.

Prima facie, the applicant had made out a case of double-dealing by the Government.

The Government's conduct was put into serious question.

It had acquired the property; it had allocated it to the applicant; the applicant had expended vast sums of money in line with the agreements; the applicant's members anticipated getting title to the individual units of land over which they had taken occupation, or were in the process of doing so; the level of compensation was, or had to be assessed by the Government.

Then, Phillip Chiyangwa zooms from nowhere, brandishing a title deed issued by the same Government - over the same property.

And the same Government was now tossing the applicant's members to Phillip Chiyangwa to whom payment of the compensation had to be made.

Thus, the Government was in the dock. It owed an explanation.

It was its secret execution of the title deed in favour of Phillip Chiyangwa's company that had prompted the applicant to approach the court on an urgent basis.

That, basically, was the applicant's case.

Unfortunately, it was not the one before me.

It was the case pending before this court for determination at another time and by another judge.

The case before me, as summarised in the interim relief sought, was that I should interdict Phillip Chiyangwa's company from “…, harassing Applicant's members and/or beneficiaries in any way whatsoever….,.”

On 21 January 2015, the respondent obtained judgment in its favour against the applicant under case number HC1548/13. The judgment is for the payment of $35,873 with interest at the rate of 5% per annum from 1 January 2013, and legal costs in the sum of $2,500.

The judgment debt led to the attachment of the applicant's dwelling, namely, Stand 907 Mt Pleasant Heights, Mt Pleasant, Harare.

The applicant received the notice of attachment on 18 January 2016 and filed this application on 29 January 2016.

The applicant wants the sale of the dwelling suspended because, firstly, if the sale is allowed to proceed, her family will suffer great hardship. Secondly, the applicant says she is making a reasonable offer to settle the debt at the rate of $1,000 per month.

The following is the relief that she is asking for:

“Terms of final order sought

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

1. The sale in execution of the said dwelling is suspended on condition that the applicant carries out fully the terms of the offer of settlement made above, and, if applicant defaults on any one instalment, execution shall proceed.

2. No order as to costs.

Interim relief granted:

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

1. The Deputy Sheriff shall suspend the action towards the sale in execution of the said dwelling.

2. A copy of this order shall be served on the respondent's legal practitioners.”

The history of the case is as follows:

The applicant was in the employment of the respondent, as Human Resources Director, for 12 years before 2010. In 2010, she sought to leave the respondent's employment due to harsh economic conditions that were prevailing at the time.

On 10 September 2010, she made an application to the respondent for a voluntary retrenchment package which was being offered by the respondent which she found attractive. In response, the respondent persuaded her to stay with a staff retention proposal of a housing loan of $120,000.

The same offer was extended to the Chief Executive Officer and the Finance Director.

According to the housing loan offer, the title deeds of the house that she would purchase would be surrendered to the respondent as security.

The repayment of the loan was going to be upon separation; in other words, upon the applicant's termination of employment.

During her tenure, she was only supposed to pay interest of $600 per month.

Upon termination of employment, the applicant was supposed to repay the loan using her terminal benefits.

The applicant was persuaded to stay by the housing loan offer and took the loan on 23 October 2010.

This staff retention proposal was signed by the Chief Executive Officer, C Mutasa, and the Board Chairman, P.F Timba.

The applicant stated that in 2012, there was a change of management at chairman and CEO levels of the respondent.

She said that relations were not good between herself and them. She further stated, that, it became clear to her that the employment relationship could not continue.

On 17 December 2012, she tendered her resignation from employment in acknowledgement of the breakdown of the relationship.

She said that upon her resignation, her terminal benefits went towards settling the loan - but it was not extinguished.

It was only reduced from $67,124 to $35,172.

She said that she failed to agree with the respondent's new managers as to how the balance was to be settled.

As a result, litigation ensued resulting in the parties signing a Deed of Settlement in December 2014, and the respondent obtaining judgment which gave rise to the attachment of her dwelling.

The applicant stated, that, if the house is sold her family will likely suffer great hardship.

She said that she has always acknowledged her indebtedness to the respondent and has always intended to pay the debt; but, because she was not employed from January 2013 to June 2015 she was unable to pay anything.

She said that now that she is in employment she is making an offer to pay off the debt at the rate of $1,000 per month which offer she says is reasonable.

The applicant attached proof to show, that, from July 2015, when she took up employment with Pan African Mining (Pvt) Ltd, she had only managed to pay $4,000 to the respondent.

The amount was not disputed by the respondent.

Although the applicant does not state in her application that she is making this application in terms of Order 40 Rule 348A(5a), I do agree with the respondent, that, looking at the nature of the application, it is indeed being made in terms of Order 40 Rule 348A(5a) which deals with applications for the postponement or suspension of the sale of a dwelling where that dwelling has been attached and is occupied by the execution debtor or members of his family.

Legal practitioners should keep up to date with and give cognizance to rules of the courts. They should not waste the court's time by bringing ludicrous applications before the court. The determination of cases should not be slowed or deferred un-essentially because a legal practitioner has failed to assimilate the Rules.

This was the case in this matter.

This was an application brought before the court on an urgent basis; but, before the court could hear the matter on the merits, the respondents took a technical objection in points in limine.

I reserved judgement, and, so here is my judgement.

The first point in limine raised by the respondent was that there was no application before me, based on the fact, that, the application did not comply with Rule 241.

Rule 241 states:

“(1) A chamber application shall be made by means of an entry in the chamber book and shall be accompanied by Form 29B duly completed and except as is provided in subrule (2) shall be supported by one or more affidavits setting out the facts upon which the application relies:
Provided, that, where a chamber application is to be served on an interested party, it shall be in Form No. 29 with appropriate modifications.”

However, the form in which this application was brought was neither in Form 29 nor 29B; I have no idea which form was used, nor do I know where the legal practitioner for the applicant got it from.

However, the lawyer for the applicant still managed to waste the court's time by referring the court to Rule 241 and Form 29B as read with Rule 244.

I do not have time to start teaching legal practitioners how to interpret statutes.

Rule 241 states that a chamber application should be in Form 29B; but, if it needs to be served, should be in Form 29.

Rule 244 is of no importance in answering a point in limine raised by the respondent: see Marick Trading (Pvt) Ltd v Old Mutual Life Assurance Company of Zimbabwe Ltd and Another 2015 (2) ZLR 343.

When such a chamber application is brought before the court, it should be in Form 29 as it would need to be served on all interested parties.

This was an application that was truly defective.

Fortunately, the law is very lenient with legal practitioners and allows such lawyers to correct their mistakes by making an application for condonation to rectify any faulty applications.

However, the applicant's lawyer denied that the application was defective.

The applicant thus never made any application: instead, he submitted that the application is not fatal and stated that so long as he is able to show that there is compliance with the Rules, the application should be heard.

In National Social Security Authority v D Chipunza SC116-04 the court had this to say on rules of court:

“…,. Rules of court are enacted for purpose of regulating the conduct of matters brought before the court and that condonation of failure to observe them is not automatic or there for the asking. An applicant must make out a good case for condonation of its non-compliance with the rules. Failure to do so is fatal to his application.”

The applicant herein was alerted of its failure to comply with the Rules but decided not to apply for condonation.

Without an application before me, I cannot mero motu grant condonation.

As soon as a party realizes it has not complied with any of the Rules, that party should file an application for condonation: see De Beer En'N Aner v Westen Bank Ltd 1981 (4) SA 255.

In addition, as I have stated above, condonation for non-observance of rules of court is by no means a mere formality. It is for the applicant to satisfy the court, that, there is sufficient cause for excusing the non-compliance: see Meinfjres v H–D Combrinck (EDMS) BPK 1961 (1) SA 262 (AD)…,.

In this instance, although it became clear to counsel for the applicant that he had not complied with Rule 241(1) - but he insisted he had breached no Rules.

It was clear that the application by the applicant was one which required to be served on the other party. It had to be in Form 29B.

Counsel for the applicant argued, that, the applicant was allowed, in terms of the proviso to Rule 241(1), to use the procedure with modification. He argued that what he did was to simply modify the procedure.

The proviso to Rule 241(1) reads;

“Provided that, where a chamber application is to be served on an interested party, it shall be in Form 29 with appropriate modification.”…,.

Modification has been defined as an act or process of changing parts of something. It is a change or alteration that makes something work better. Modification must leave some resemblance to the original form.

The original Form 29 informs the respondent that if he intends to oppose the application he should file a Notice of Opposition in Form 29A, together with opposing affidavits. It also states that such opposition must be served on the applicant.

The applicant's application reads;

“TAKE NOTICE THAT an application is hereby made for an order in terms of the provisional order annexed to this application on the grounds that;

1….,.

2….,.

3….,.

FURTHER TAKE NOTICE THAT THE accompanying affidavit and documents shall be used in support thereof.

Dated at Harare this 3rd of February 2017.”

Obviously, such format is very different from Form 29.

The format used does not inform the respondents of what they must do upon receiving the application.

As I said above, modification must be done in a manner which leave the Form 29, as provided, better. One cannot reduce the requirements in Form 29 and call such modification.

I am of the view, that, the applicant has failed to comply with Rule 241(1) of this court's Rules.

Whilst it is within my power to condone such non-compliance, it is trite I must do so upon request.

I have not been requested to condone such derogation from the Rules.

The only remedy I have is to strike off the matter from the roll: see Forestry Commission v Moyo 1997 (1) ZLR 254 (S).

The respondent also submitted, that, the relief of spoliation is final in nature and cannot be sought on an interim basis.

The applicant has premised his application on a prima facie right as opposed to a clear right.

I was referred to the case of Blue Ranges Estates (Pvt) Ltd v Muduviri and Another 2009 (1) ZLR 368 (S) where the court, at 369A, said;

“A spoliation order cannot be granted on evidence of a prima facie right only. Once the order was made and fully executed it was discharged.”

At p377D the court had this to say;

“The finding of the fact in issue was a final and definitive determination of the fact in question. There would have been no other final determination of the issue of spoliation on the return day. A clear right in the applicant to be restored to the possession of the property would have been established. A spoliation order cannot be granted on evidence of a prima facie right.”

HERBSTEIN and Van WINSEN, Civil Practice of the Supreme Court of South Africa 4ed states…, that:

“A mandament van spolie is a final order although it is frequently followed by further proceedings between the parties concerning their rights to the property in question. The only issue in the spoliation application is whether there has been a spoliation. The order that the property be restored finally settles that issue as between the parties.”

Counsel for the applicant conceded the above position.

Such concession was properly made. Accordingly, the application fails on this ground alone....,.

I am also of the view that this matter is fraught with material disputes of facts. The matter cannot be resolved on papers. Viva voce evidence ought to be led to establish the facts.

I am also of the view that this matter calls for costs on a higher scale.

The applicant was informed of the defects in the application but stubbornly continued with the matter without attending to those defects.

Accordingly, this application is dismissed with costs on a higher scale.

On 26 March 2015, we dismissed the appellant's appeal with costs on the attorney-client scale. We indicated that full reasons will follow. These are the reasons for the dismissal.

The appellant owns an immovable property, namely, Flat No.4 Resdale, 56 Selous Avenue, Harare. The appellant is resident in New Zealand and she was represented in these proceedings by her brother, Ignatius Masamba, by virtue of a General Power of Attorney she granted to him in the year 2011.

In 2011, the appellant, through Ignatius Masamba, sued the defendant for the sum of $1,960 broken down as follows:

“Their statements are a Nuisance $150;
Professional negligence $1,500;
Mental distress/physical inconvenience/time $300;
Transport/stationery/photocopying $10.”

The summons commencing action was not clear on the cause of action or the legal basis for the various claims.

The particulars of claim are, to say the least, confusing and incoherent. The particulars of claim do not disclose the legal basis for the claims.

It is trite, that, particulars of claim must clearly disclose the cause of action being relied upon.

If it is based on contract, the nature and extent of the contractual obligations and their breach must be clear. If it is a suit for damages, the summons and particulars of claim must clearly spell out whether such damages are being claimed in contract or under an Aquilian action.

In casu, the summons and particulars of claim did not disclose whether the damages being claimed were for breach of contract or for a delict.

If the damages are in delict, the summons did not properly establish the cause of action. No wrongful or unlawful conduct on the part of the respondent is alleged, let alone established from the summons and particulars of claim: see Nyaguse v Skinners Autobody Specialists & Another 2007 (1) ZLR 296 (H) and Border Timbers Limited v ZIMRA 2009 (1) ZLR 131 (H).

Based on the above, there was virtually no case to try.

The plaintiff claimed, that, in or about October 2009, the defendant, through its employees, unlawfully and wrongfully removed electrical gadgets from her farm in Nyazura.

On the employees being apprehended, the defendant went on to make a total of four undertakings to restore electricity supply at the farm.

The undertakings were accompanied by assurances to the plaintiff to proceed with her farming activities as the restoration of electricity would enable her to irrigate her crop.

On the basis of the undertakings, the plaintiff, who had planted ten hectares of tobacco, went on to plant an additional twenty hectares of tobacco and twenty-five hectares of sugar beans.

The undertakings, or promises, were not honoured by the defendant. The plaintiff could not therefore irrigate her tobacco and sugar bean crop.

It suffered moisture stress and wilted. The soya bean crop for the 2009-2010 season was a total write off. The tobacco harvest for the same season was bad. It could not even cover her labour costs. It was therefore a total loss.

She therefore claimed US$500,000 as damages for the actual loss of earnings in respect of the total of thirty hectares tobacco crop and twenty hectares sugar bean crop. In addition, she claimed US$200,000 being damages for consequential loss.

By way of further particulars, the plaintiff claimed that US$400,000 were damages in respect of the thirty hectares of tobacco for the 2009-2010 as well as the 2010-2011 farming seasons. The US$100,000 were damages in relation to the twenty hectares of sugar beans over the same period.

In its plea, the defendant averred, that, no electrical fittings were removed by it from the plaintiff's fields.

A further averment was made to the effect, that, the plaintiff's field had no crops and was not being irrigated because it was not connected to the national grid.

The plaintiff's farm had no electricity since 2006 as the power lines transmitting electricity to the dam, and the dam transformer, were vandalised.

The defendant averred, that, the operation of 5 October 2009, at the plaintiff's homestead, which the plaintiff foiled, was lawful as it was intended to recover some electrical equipment for use elsewhere. The same was lying idle and thus at risk of being stolen or vandalised.

Although inelegantly drafted, and containing evidence, the cause of action is the aquilian action.

The requirements of the acquilian action are:

(i) Wrongful or unlawful conduct (act or omission) on the part of the defendant.

(ii) The conduct must have led to financial loss.

(iii) The defendant must have inflicted the financial loss intentionally or negligently.

(iv) There must be a causal link between the defendant's conduct and the loss.

The applicant is a Member of Parliament representing the Mutare Central Constituency. He filed this application, essentially, in terms of section 167(2)(d) of the Constitution of Zimbabwe, 2013 (hereafter 'the Constitution') albeit with passing references to section 85 of the Constitution. In fact, in his answering affidavit, the applicant made it abundantly clear that the application was indeed solely in terms of section 167(2)(d) of the Constitution.

Thus, any references to section 85 of the Constitution shall be taken merely as means to bolster the principal cause of action, and not as a separate cause of action.

Initially, the applicant sought an order in the terms set out below:

“IT IS HEREBY DECLARED THAT:

1. The passage of Constitutional Amendment Bill (No.1) of 2017 in Parliament on the 4th of May 2021 be and is hereby set aside on the basis that the bill had lapsed in July of 2018 and therefore its passage was in breach of section 147 of the Constitution of Zimbabwe:

Therefore:

(i) The actions of Parliament, in passing Constitutional Amendment Bill No.1 of 2017, are in breach of the provisions of section 147 of the Constitution of Zimbabwe.

(ii) The actions of the President of the Republic of Zimbabwe, in assenting to Constitutional Amendment Bill No.1, are in breach of section 147 of the Constitution of Zimbabwe.

(iii) Constitutional Amendment No.1 Act of 2017, gazetted on the 7th of September 2017, be and is hereby set aside.

2. That, the judgment of the Constitutional Court, in the case of Innocent Gonese & Jessie Majome v The Speaker of Parliament & Others CC04-20, directing that part of the disposition of the Constitutional Court directing Senate passes Constitutional Amendment Bill No.1, within 180 days from the declaration of invalidity, be and is hereby declared to be a nullity in breach of section 147 of the Constitution of Zimbabwe.

3. 2nd Respondent must pay cost (sic) of suit.”

I have deliberately used the word “initially” for reasons that will shortly become apparent.

The application relates to the enactment of Constitution of Zimbabwe Amendment (No.1) Act 2017. The relevant facts are all common cause:

On 25 July 2017, the National Assembly passed Constitutional Amendment (No.1) Bill 2017. Thereafter, on 1 August 2017, the Senate purported to pass the same Bill. On 7 September 2017, the President assented to the Bill. The Bill was published in the Government Gazette, promulgated as law, and thereafter became known as Constitution of Zimbabwe Amendment (No.1) Act, 2017.

It is crucial to note, that, a few days prior to the President's assent, the applicant, and a fellow Member of Parliament, had filed an application, under case number CCZ57/17, in terms of section 167(2)(d) of the Constitution, alleging that the second respondent had failed to fulfil a constitutional obligation.

Subsequent to the promulgation of Constitution of Zimbabwe Amendment (No.1) Act 2017, the applicant, together with his fellow Member of Parliament aforesaid, filed another constitutional application, under case number CCZ58/17, on 13 September 2017. They alleged that the second respondent had failed to fulfil a constitutional obligation by its passing of a constitutional bill in the absence of a two-thirds majority as required by section 328 of the Constitution.

The applications under CCZ57/17 and CCZ58/17 were consolidated and heard on 31 January 2018. After hearing the parties submissions in respect of those applications, this Court reserved its judgment.

Pending the delivery of the judgment, the country underwent harmonised general elections on 30 July 2018. Thus, Parliament stood dissolved at midnight on 29 July 2018, the day before the first polling day of the general election in terms of section 143 of the Constitution.

On 31 March 2020, this Court passed judgment in respect of the applications under CCZ57/17 and CCZ58/17. That is, the judgment of Gonese & Anor v Parliament of Zimbabwe & Ors CC04-20 (hereafter referred to as 'CC04-20').

The operative part of that judgment reads as follows:

“1. It is declared that the passing of Constitutional Amendment Bill (No.1) of 2017 by the Senate on 01 August 2017 was inconsistent with the provisions of section 328(5) of the Constitution, to the extent that the affirmative votes did not reach the minimum threshold of two-thirds of the membership of the House. Constitutional Amendment Bill (No.1) of 2017 is declared invalid to the extent of the inconsistency. The declaration of invalidity shall have effect from the date of this order but is suspended for a period of one hundred and eighty days, subject to the provisions of paragraph 1(b).

Accordingly, the following order is made –

(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 paragraph (1) shall become final.

2. The applicants allegation, 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 applicants 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.”

For reasons that are not pertinent to the present application, the Senate failed to conduct another vote within the period that was set out in paragraph 1(b) of the judgment under CC04-20.

As a result, the first and second respondents, and the Speaker of the National Assembly, implored this Court, by application, to extend the period that had been set out for conducting a second vote under case number CCZ11/20. The application was heard on 10 November 2020 and judgment was reserved.

On 25 February 2021, judgment was delivered in that application as the judgment of President of the Senate & Ors v Gonese & Ors CC01-21 (hereafter referred to as 'CC01-21'). The order passed in CC01-21 reads:

“Accordingly, I make the following order:

1. The application is granted.

2. The period referred to in para (b) of the order handed down on 31 March 2020 is extended by a further ninety days from the date of this order.

3. Each party shall bear its own costs.”

I digress briefly to foreshadow that I will advert to more comprehensively later in this judgment.

In view of the above order, the Senate conducted another vote on the Constitutional Amendment (No.1) Bill of 2017.

On 4 May 2021, it passed the Constitutional Amendment Bill (No.1).

The applicant contends, that, the passage of the Bill in the manner aforesaid, on 4 May 2021, is unconstitutional.

He principally considers the second and third respondents to have failed to fulfil constitutional obligations in the passage of the Bill contrary to the provisions of section 147 of the Constitution.

The applicant also considers the impugned conduct of the respondents to have been accentuated by the simultaneous violation of his rights under section 56(1) of the Constitution.

However, this last contention does not appear to have been persisted in with much vigour and conviction considering that the applicant stated, unambiguously, that, his application was solely in terms of section 167(2)(d) of the Constitution. In fact, the amicus considers this as the applicant's “fringe” contention.

At any rate, in my view, there would be no need to invoke section 56(1) of the Constitution where the cause of action is one of failure to fulfil a constitutional obligation as that situation is specifically provided for sufficiently in section 167(2)(d) of the Constitution, and requires no additional colouring through such invocation: compare Central African Building Society v Stone & Ors SC15-21.

All the respondents opposed the application.

They deny that their conduct, in the passage of Constitutional Amendment (No.1) Bill of 2017, was in violation of section 147 of the Constitution. Instead, they contend, that, their actions are predicated on a valid order of this Court handed down under CC04-20. They also maintain that none of the applicant's rights was violated by their conduct....,.

On 15 March, the parties then advanced their oral submissions in respect of the application.

Counsel for the applicant stated, that, the critical issue for determination was whether the passage of Constitution of Zimbabwe Amendment (No.1) Act of 2017, on 4 May 2021, breached section 147 of the Constitution.

To him, the crucial thing was to assess the status of the Bill as of 29 July 2018, which is the date on which Parliament stood dissolved.

The date the judgment of this Court, in Gonese & Anor v Parliament of Zimbabwe & Ors CC04-20 was delivered was immaterial.

Citing decisions of this Court and the Supreme Court, counsel for the applicant stated, that, the order of this Court in CC04-20 merely confirmed the invalidity of Constitution of Zimbabwe Amendment (No.1) Act, which occurred in August 2017 when that Act was purportedly passed. It was, therefore, not a licence for the Senate to violate section 147 of the Constitution.

Accordingly, he submitted, that, Constitution Amendment (No.1) Bill lapsed when Parliament was dissolved on 29 July 2018.

In respect of the allegations that the applicant's constitutional rights were violated by the conduct of the respondents, counsel for the applicant submitted, that, section 56(1) of the Constitution does not qualify the nature of protection afforded by the section. In his view, the subsection had the same meaning as the equivalent provision under the previous Constitution of Zimbabwe.

Regarding the relief sought by the applicant, counsel for the applicant emphasised that the applicant simply sought a declaration that the passage of Constitution of Zimbabwe Amendment (No.1) Act, on 5 May 2021, was in breach of section 147 of the Constitution.

He formally abandoned the second paragraph of the applicant's draft order set out above.

He added, that, should the Court grant the declaratory relief sought, the order should not have retrospective effect.

Counsel for the applicant also abandoned his preliminary challenges to the authorities of the deponents to the first and second as well as the third respondent's opposing affidavits.

Counsel for the first and second respondents indicated, that, he was persisting with the preliminary points that he raised:

(i) Firstly, he submitted, that, the Court had no jurisdiction as the applicant had improperly joined the President of the Senate to the President and Parliament in an application under section 167(2)(d) contrary to the judgment of this Court in Mliswa v Parliament of the Republic of Zimbabwe CC02-21.

(ii) Secondly, he submitted, that, the applicant had no cause of action because the conduct of the respondents was in compliance with an order of this Court.

On the merits, counsel for the first and second respondents stated, that, the retrospective application of the order passed in CC04-20 was limited. Further, the Court had the power to limit the retrospective application in terms of section 175(6)(b) of the Constitution. Therefore, the provisions of section 147 could not have been breached, so his submissions went.

Counsel for the third respondent also put up ardent opposition to the application.

Essentially, he took three points in response to counsel for the applicant's submissions. He prefaced those points by stating that there are three broad steps in the enactment of a law. These are:

(i) The consideration of a Bill by the National Assembly;

(ii) The consideration of the same Bill by the Senate;

(iii) The President's assent to the Bill as the last step;

Counsel for the third respondent's first point was, that, the Presidential assent to the Bill, in 2017, was not set aside by this Court. Therefore, there was no failure by the third respondent to “re-gazette” the Bill as the applicant had pleaded.

His second point was that when Parliament was dissolved, in July 2018, there was no Constitution Amendment (No.1) Bill. It had become an Act. This meant, that, the declaration by this Court could not have affected the status of that Act as it had limited retrospective effect.

Counsel for the third respondent's third point was, that, section 147 of the Constitution does not impose an obligation on the third respondent. In the absence of such, there cannot be a constitutional obligation that the third respondent breached.

All the respondents prayed for the dismissal of the application.

Mr Zhuwarara, the amicus curiae, made submissions last.

His first submission was, that, the moment the applicant adverted to violations in terms of section 85 of the Constitution, he was obliged to allege that a fundamental right was infringed and to seek relief that is consistent with Chapter 4 of the Constitution. He further submitted, that, the applicant failed to base his relief on Chapter 4 of the Constitution and that ought to be the end of the matter.

On the merits of the application, the amicus submitted, that, judgments of the Constitutional Court are final. On this basis, the judgment in CC04-20 could not be revisited.

While agreeing that the Constitutional Court cannot pass unconstitutional judgments, he stated that this was not the situation in casu.

Proceeding from this point, he added, that, in terms of section 175(6)(b) of the Constitution, this Court passes corrective orders. For this reason, the order of this Court, and the subsequent passage of the Bill by the Senate, did not violate the Constitution.

Mr Zhuwarara concluded his submissions by stating, that, the applicant's rights, in section 56 of the Constitution, could not have been violated because the applicant failed to identify a similarly positioned person who was afforded a favour.

The respondents raised several preliminary objections in these proceedings. However, in their oral submissions they emphasized and focused only on the following:

(a) That, there is no cause of action against the respondents.

(b) That, it was improper to cite the first respondent in an application under section 167(2)(d) of the Constitution.

While counsel for the first and second respondents is of the view, that, there cannot be any perceivable cause of action against the respondents as they were acting in accordance with an order of this Court, counsel for the third respondent considers the cause of action to be unclear.

Without exception, the Rules require an applicant to set out all essential averments that are necessary to clarify and motivate the cause of action: see Rule 14(4)(d) of the Constitutional Court Rules.

See also Apex Holdings (Pvt) Ltd (in liquidation) & Anor v Venetian Blinds Specialists CC11-19…,.

This rule is in line with the salutary principle of pleading, which has become the gold standard in our jurisdiction, that, an application stands or falls on the founding affidavit: see Kufa & Anor v President of the Republic of Zimbabwe & Ors CC22-17…,.; Chani v Justice Hlekani Mwayera & Ors CC02-20…,.; Chironga & Anor v Minister of Justice, Legal & Parliamentary Affairs CC14-20…,.; and Mpofu v ZERA & Ors CC13-20…,.

A failure to set out the cause of action entitles a respondent to seek the dismissal of an application as of right: see HERBSTEIN and Van WINSEN “The Civil Practice of the High Courts and the Supreme Courts of Appeal of South Africa” 5th Ed. Vol 1…,.

The requirements of an application made in terms section 167(2)(d) of the Constitution are that one must identify a functionary [the President/Parliament] and a constitutional obligation that the functionary is alleged to have failed to fulfil: see Chirambwe v President of the Republic of Zimbabwe & Ors CC04–21…,. and Mliswa v Parliament of the Republic of Zimbabwe CC02–21…,.

It automatically follows, that, the applicant cannot sustain a cause of action against the first respondent because the first respondent is not a functionary against whom an application in terms section 167(2)(d) of the Constitution can be made.

Thus, the case as against the first respondent stands to be struck off without further ado.

In respect of the second and third respondents, I am inclined to hold, that, there is a cause of action against those functionaries.

In his founding affidavit, the applicant does identify the second and third respondents as functionaries upon whom constitutional obligations rest. He also identifies the constitutional obligations that Parliament and the President failed to fulfil.

Against the President, he states that failure to gazette Constitutional Amendment Bill (No.1) of 2017 in terms of section 131(6) of the Constitution is an illegality. Against Parliament, he essentially alleges, that, it failed to respect the Constitution by conducting a vote on a Bill that had lapsed contrary to section 147 of the Constitution.

However, the truthfulness or otherwise of the applicant's allegations against the second and third respondents stands to be determined in the process of the assessment of the merits of his application.

Accordingly, I am satisfied that there is a cause of action against the second and third respondents in so far as the application is based on section 167(2)(d) of the Constitution.

This is an appeal against part of the judgment of the High Court sitting at Bulawayo, dated 2 May 2019.

The court a quo granted the following order:

1. That, the purported Deed of Sale concluded by the parties on 26 January 2010, in respect of a portion of Umguza 100 Acre Lot 5A be and is hereby confirmed to be null and void for want of compliance with the mandatory provisions of the Regional, Town and Country Planning Act [Chapter 29:12].

2. That, the plaintiff's claim for payment by the defendant of reasonable rentals and holding over damages be and is hereby dismissed with costs.

3. That, the plaintiff be and is hereby ordered to pay to the defendant the sum of $125,000 being compensation for improvements effected by the defendant on the plaintiff's property.

4. That, the prescribed rate of interest be levied on the amount under (3), supra, with effect from 24 June 2015 to the date of full payment.

5. That, the plaintiff pays costs of suit.

The part under appeal relates to paragraphs 3, 4 and 5 of the order. The appellant is also aggrieved by the court a quo's failure to pronounce itself on the claim for eviction in that order.

The facts that are relevant to this appeal are common cause. The appellant sadly passed away on 24 August 2019, before the appeal was heard. He was, by order of this Court, substituted, on 22 July 2020, by his duly appointed executor dative, who also happens to be his son.

The appellant is the registered title holder of Umguza 100 Acre Lot 5A in the District of Bulawayo measuring 67,2123 hectares held under Deed of Transfer No.74/91 (the immovable property). It is situated in the outskirts of Bulawayo and falls under the administrative jurisdiction of the Umguza Rural District Council.

On 17 August 2000, the appellant sought, but failed, to obtain a sub-division permit for the property into units of less than five (5) hectares. The responsible authority adjudged any plots that were less than five (5) hectares not to be viable for agriculture.

The respondent resided on a fully developed six (6) acre plot in the vicinity of the appellant's immovable property.

On 12 January 2010, in anticipation of an agreement of sale to be consummated with the appellant, the respondent sold his plot for the sum of R225,000.

On 26 January 2010, the parties concluded a written agreement for the sale of 10 acres (4,047ha) of the immovable property (the plot) for the sum of US$20,000.

A deposit of US$10,000 was to be paid before the respondent could take occupation.

The balance was payable at the rate of US$2,000 per month from 1 May 2010.

The other terms and conditions of the agreement were that the respondent would “pay the cost of all transactions connected with the transfer of the property, all charges of capital gains, and draw electric power to the homestead of the seller.”

The respondent duly paid the deposit and took occupation on 1 April 2010.

His building plans were approved by the Umguza Rural District Council on 3 April 2010. He constructed a three bedroom cottage and a four bedroom main house in 2010. In 2011, he installed electricity infrastructure for his two dwellings and the appellant's homestead but only drew electricity to his dwellings. He flushed a borehole previously sunk by the appellant, constructed two (2) septic tanks and two (2) blair toilets. He also put up a perimeter fence around “his” plot.

It was common cause that he expended the total sum of US$34,158=75 and R2,220 on these developments.

The relationship between the appellant and the respondent deteriorated soon after the respondent took occupation of the property.

The appellant refused to accept the instalments tendered by the respondent and demanded that the respondent keep his money while he kept his land.

The respondent tendered the balance of the purchase price, and, when it was rejected, he issued summons for specific performance in HC491/11.

Thereafter, with the help of their legal practitioners, a compromise was reached between the parties but was not honoured.

In the result, the appellant then sued the respondent for the payment of the balance of the purchase price, in the sum of US$10,000, in HC2828/12.

During this tumultuous period, unbeknown to the respondent, the appellant sought to regularize the sale of the plot by applying for a subdivision permit to the department of Physical Planning Offices in Bulawayo on 10 January 2011.

It was only in or about October 2012 that the respondent became aware that the appellant did not have a sub-division permit entitling him to subdivide the immovable property and sell the plot.

On 27 February 2013, acting on the appellant's request, the respondent paid US$550 to the appellant's former legal practitioners for the processing of a belated sub-division permit.

Notwithstanding that the immovable property measured 67,2123ha, a permit for the subdivision of the immovable property into two Stands measuring 4,047 and 37,6961 hectares was duly issued on 29 April 2013.

The permit, however, turned out to be a fake document.

Acting on the erroneous belief that the permit was genuine, on 6 June 2013 and 30 January 2014, the respondent paid US$5,000 and US$4,000, respectively, towards the purchase price.

The respondent, therefore, paid to the appellant a total sum of US$19,000 for the purchase of the plot.

He, in addition, expended US$34,158=75 and R2,220 in the development of the immovable property.

By the time a pre-trial conference was held a quo, both parties had withdrawn their earlier actions against each other.

At the pre-trial conference, the parties agreed, inter alia, that their agreement of sale was invalid and illegal for breaching section 39(1)(i) and section 40 of the Regional, Town and Country Planning Act. This was because it had been concluded without a subdivision permit.

Consequently, the appellant tendered the purchase price of US$19,000 and sought the eviction of the respondent from the plot.

He also claimed an ascertainable amount for unjust enrichment for the period of the respondent's stay to the date of his eviction.

The quantum for the enrichment claim was based on what the appellant perceived to be the reasonable rentals that the respondent would have paid for the occupation of the property.

He, therefore, claimed US$18,000 for the occupation of the plot from March 2010 to April 2015 and “holding over damages at the rate of US$10 per day…, from 1 May 2015 to the date of vacation” and costs on the higher scale.

The respondent contested the action.

He disputed being unjustly enriched and averred, that, he was a bona fide occupier by virtue of the invalid agreement. He also averred, that, in the absence of a lease agreement, the appellant did not have a valid cause of action for the payment of reasonable rentals and holding over damages.

He, in turn, counter claimed for unjust enrichment for the improvements he had made on the immovable property.

He averred that the appellant was enriched at his expense by these improvements.

He further alleged that the appellant was enriched by the payment of US$19,000 towards the purchase price and US$550 for the procurement of the subdivision permit.

The respondent, therefore, sought the repayment of the denominated amounts; a refund of the expenses incurred in erecting the electricity infrastructure; and the depreciated replacement cost (being the current cost of reproduction or replacement of an asset less deductions for physical deterioration, obsolescence and optimization) of the improvements he made on the plot.

He specially entreated the court to award him “such payments as will be sufficient to enable the defendant to purchase a property of comparable value including all the improvements he had effected.”

He also sought interest at the prescribed rate from the date of summons to the date of payment in full and costs on the higher scale.

In his plea to the counter-claim, the appellant, again, tendered the refund of US$19,000.

He disputed to being unjustly enriched by the developments made by the respondent on the immovable property. He averred, that, the respondent had failed to draw electricity to his homestead and had fraudulently facilitated the issuance of the fake permit. He also alleged that the respondent's dwellings were constructed without his authority and that he was therefore a mala fide occupier. Lastly, he stated that these dwellings would not be useful to him.

The two issues referred to trial a quo where whether or not:

1. The appellant was entitled to a reasonable rental arising from the respondent's occupation of the plot; and

2. The defendant has been unjustly impoverished, and plaintiff unjustly enriched, as a result of the alleged developments made by the defendant upon the plot; and, if so, the quantum thereof.

The court a quo confirmed the invalidity of the agreement of sale on the ground that it was contrary to the mandatory dictates of sections 39(1)(i) and 40 the Regional, Town and Country Planning Act.

The confirmation was in accordance with established authority emanating from this Court in such cases as X-Trend–A Home (Pvt) Ltd v Hoselaw (Pvt) Ltd 2000 (2) ZLR 348 (S) and City of Gweru v Kombayi 1991 (1) ZLR 333 (S).

It held, on the authority of Magodora & Ors v Care International Zimbabwe 2014 (1) ZLR 397 (S)…, that a lease agreement could not possibly be extrapolated from the invalid agreement of sale; and, resultantly, dismissed the claim for rentals and holding over damages sought by the appellant in the main.

It is clear from a reading of the judgment, that, the court a quo did not relate the request for reasonable rentals and holding over damages to the appellant's own enrichment claim against the respondent.

The appellant pleaded such a cause of action.

He testified during the trial, that, the respondent derived benefit from the farming activities he conducted on the plot. He also asserted that another benefit that accrued to the respondent was in the form of rental savings that he would have been obliged to pay elsewhere but for his stay on the plot.

These assertions were not, and could not, be controverted by the respondent.

However, it appears that counsel for the appellant misconceived the appellant's case and did not pursue the claim to fruition.

The law on what constitutes a cause of action is settled.

A cause of action is simply a factual conspectus, the existence of which entitles one person to obtain from the court a remedy against another person. In other words, it is an entire set of facts upon which the relief sought stands: see Peebles v Dairiboard (Private) Limited 1999 (1) ZLR 41 (H)…, and Abrahamse & Sons v SA Railways and Harbours 1933 CPD 626…,.

This is an appeal against part of the judgment of the High Court sitting at Bulawayo, dated 2 May 2019.

The court a quo granted the following order:

1. That, the purported Deed of Sale concluded by the parties on 26 January 2010, in respect of a portion of Umguza 100 Acre Lot 5A be and is hereby confirmed to be null and void for want of compliance with the mandatory provisions of the Regional, Town and Country Planning Act [Chapter 29:12].

2. That, the plaintiff's claim for payment by the defendant of reasonable rentals and holding over damages be and is hereby dismissed with costs.

3. That, the plaintiff be and is hereby ordered to pay to the defendant the sum of $125,000 being compensation for improvements effected by the defendant on the plaintiff's property.

4. That, the prescribed rate of interest be levied on the amount under (3), supra, with effect from 24 June 2015 to the date of full payment.

5. That, the plaintiff pays costs of suit.

The part under appeal relates to paragraphs 3, 4 and 5 of the order. The appellant is also aggrieved by the court a quo's failure to pronounce itself on the claim for eviction in that order.

The facts that are relevant to this appeal are common cause. The appellant sadly passed away on 24 August 2019, before the appeal was heard. He was, by order of this Court, substituted, on 22 July 2020, by his duly appointed executor dative, who also happens to be his son.

The appellant is the registered title holder of Umguza 100 Acre Lot 5A in the District of Bulawayo measuring 67,2123 hectares held under Deed of Transfer No.74/91 (the immovable property). It is situated in the outskirts of Bulawayo and falls under the administrative jurisdiction of the Umguza Rural District Council.

On 17 August 2000, the appellant sought, but failed, to obtain a sub-division permit for the property into units of less than five (5) hectares. The responsible authority adjudged any plots that were less than five (5) hectares not to be viable for agriculture.

The respondent resided on a fully developed six (6) acre plot in the vicinity of the appellant's immovable property.

On 12 January 2010, in anticipation of an agreement of sale to be consummated with the appellant, the respondent sold his plot for the sum of R225,000.

On 26 January 2010, the parties concluded a written agreement for the sale of 10 acres (4,047ha) of the immovable property (the plot) for the sum of US$20,000.

A deposit of US$10,000 was to be paid before the respondent could take occupation.

The balance was payable at the rate of US$2,000 per month from 1 May 2010.

The other terms and conditions of the agreement were that the respondent would “pay the cost of all transactions connected with the transfer of the property, all charges of capital gains, and draw electric power to the homestead of the seller.”

The respondent duly paid the deposit and took occupation on 1 April 2010.

His building plans were approved by the Umguza Rural District Council on 3 April 2010. He constructed a three bedroom cottage and a four bedroom main house in 2010. In 2011, he installed electricity infrastructure for his two dwellings and the appellant's homestead but only drew electricity to his dwellings. He flushed a borehole previously sunk by the appellant, constructed two (2) septic tanks and two (2) blair toilets. He also put up a perimeter fence around “his” plot.

It was common cause that he expended the total sum of US$34,158=75 and R2,220 on these developments.

The relationship between the appellant and the respondent deteriorated soon after the respondent took occupation of the property.

The appellant refused to accept the instalments tendered by the respondent and demanded that the respondent keep his money while he kept his land.

The respondent tendered the balance of the purchase price, and, when it was rejected, he issued summons for specific performance in HC491/11.

Thereafter, with the help of their legal practitioners, a compromise was reached between the parties but was not honoured.

In the result, the appellant then sued the respondent for the payment of the balance of the purchase price, in the sum of US$10,000, in HC2828/12.

During this tumultuous period, unbeknown to the respondent, the appellant sought to regularize the sale of the plot by applying for a subdivision permit to the department of Physical Planning Offices in Bulawayo on 10 January 2011.

It was only in or about October 2012 that the respondent became aware that the appellant did not have a sub-division permit entitling him to subdivide the immovable property and sell the plot.

On 27 February 2013, acting on the appellant's request, the respondent paid US$550 to the appellant's former legal practitioners for the processing of a belated sub-division permit.

Notwithstanding that the immovable property measured 67,2123ha, a permit for the subdivision of the immovable property into two Stands measuring 4,047 and 37,6961 hectares was duly issued on 29 April 2013.

The permit, however, turned out to be a fake document.

Acting on the erroneous belief that the permit was genuine, on 6 June 2013 and 30 January 2014, the respondent paid US$5,000 and US$4,000, respectively, towards the purchase price.

The respondent, therefore, paid to the appellant a total sum of US$19,000 for the purchase of the plot.

He, in addition, expended US$34,158=75 and R2,220 in the development of the immovable property.

By the time a pre-trial conference was held a quo, both parties had withdrawn their earlier actions against each other.

At the pre-trial conference, the parties agreed, inter alia, that their agreement of sale was invalid and illegal for breaching section 39(1)(i) and section 40 of the Regional, Town and Country Planning Act. This was because it had been concluded without a subdivision permit.

Consequently, the appellant tendered the purchase price of US$19,000 and sought the eviction of the respondent from the plot.

He also claimed an ascertainable amount for unjust enrichment for the period of the respondent's stay to the date of his eviction.

The quantum for the enrichment claim was based on what the appellant perceived to be the reasonable rentals that the respondent would have paid for the occupation of the property.

He, therefore, claimed US$18,000 for the occupation of the plot from March 2010 to April 2015 and “holding over damages at the rate of US$10 per day…, from 1 May 2015 to the date of vacation” and costs on the higher scale.

The respondent contested the action.

He disputed being unjustly enriched and averred, that, he was a bona fide occupier by virtue of the invalid agreement. He also averred, that, in the absence of a lease agreement, the appellant did not have a valid cause of action for the payment of reasonable rentals and holding over damages.

He, in turn, counter claimed for unjust enrichment for the improvements he had made on the immovable property.

He averred that the appellant was enriched at his expense by these improvements.

He further alleged that the appellant was enriched by the payment of US$19,000 towards the purchase price and US$550 for the procurement of the subdivision permit.

The respondent, therefore, sought the repayment of the denominated amounts; a refund of the expenses incurred in erecting the electricity infrastructure; and the depreciated replacement cost (being the current cost of reproduction or replacement of an asset less deductions for physical deterioration, obsolescence and optimization) of the improvements he made on the plot.

He specially entreated the court to award him “such payments as will be sufficient to enable the defendant to purchase a property of comparable value including all the improvements he had effected.”

He also sought interest at the prescribed rate from the date of summons to the date of payment in full and costs on the higher scale.

In his plea to the counter-claim, the appellant, again, tendered the refund of US$19,000.

He disputed to being unjustly enriched by the developments made by the respondent on the immovable property. He averred, that, the respondent had failed to draw electricity to his homestead and had fraudulently facilitated the issuance of the fake permit. He also alleged that the respondent's dwellings were constructed without his authority and that he was therefore a mala fide occupier. Lastly, he stated that these dwellings would not be useful to him.

The two issues referred to trial a quo where whether or not:

1. The appellant was entitled to a reasonable rental arising from the respondent's occupation of the plot; and

2. The defendant has been unjustly impoverished, and plaintiff unjustly enriched, as a result of the alleged developments made by the defendant upon the plot; and, if so, the quantum thereof.

The court a quo confirmed the invalidity of the agreement of sale on the ground that it was contrary to the mandatory dictates of sections 39(1)(i) and 40 the Regional, Town and Country Planning Act.

The confirmation was in accordance with established authority emanating from this Court in such cases as X-Trend–A Home (Pvt) Ltd v Hoselaw (Pvt) Ltd 2000 (2) ZLR 348 (S) and City of Gweru v Kombayi 1991 (1) ZLR 333 (S).

It held, on the authority of Magodora & Ors v Care International Zimbabwe 2014 (1) ZLR 397 (S)…, that a lease agreement could not possibly be extrapolated from the invalid agreement of sale; and, resultantly, dismissed the claim for rentals and holding over damages sought by the appellant in the main.

It is clear from a reading of the judgment, that, the court a quo did not relate the request for reasonable rentals and holding over damages to the appellant's own enrichment claim against the respondent.

The appellant pleaded such a cause of action.

He testified during the trial, that, the respondent derived benefit from the farming activities he conducted on the plot. He also asserted that another benefit that accrued to the respondent was in the form of rental savings that he would have been obliged to pay elsewhere but for his stay on the plot.

These assertions were not, and could not, be controverted by the respondent.

However, it appears that counsel for the appellant misconceived the appellant's case and did not pursue the claim to fruition.

The court a quo, on the basis of credibility findings and the probabilities of the case, further found the respondent to have been a bona fide occupier and the appellant a mala fide seller.

Consequently, it relaxed the in pari delicto rule in favour of the respondent.

It, thus, held that the appellant had been unjustly enriched at the expense of the respondent, who was concomitantly impoverished by the transaction.

The court a quo, therefore, upheld the respondent's counter claim.

In computing the measure of the benefit that accrued to the appellant, the court a quo applied the pari delictum rule.

In the exercise of its broad discretion, it relaxed the pari delictum rule in a bid to do justice between the two protagonists.

It had no difficulties in finding the appellant to have been enriched in the sum of US$19,550 constituted by the payments towards the purchase price and the facilitation of the procurement of the sub division permit.

The correctness of this finding is beyond question.

After all, the appellant did not retract his tender of US$19,000, and conceded the payment of US$550 for the stated purpose.

The parties disagreed on whether or not the respondent was entitled to compensation for the improvements that he made on the immovable property.

The appellant submitted a quo that the respondent was not entitled to the value of the improvements:

(i) Firstly, because the respondent had not properly framed them under the enrichment cause of action in his pleadings.

(ii) The second was that the improvements were not, nor would they be, useful to him.

He, in any event, agitated for their urgent removal from his property.

The court a quo held, that, while on the pleadings, the cause of action for the improvements was poorly and inelegantly framed, the respondent had obliquely included them in his enrichment cause.

Further, that the purported defective pleadings had, in any event, been amplified and cured:

(i) Firstly, by the inclusion of the developments in the second issue referred to trial at the pretrial conference; and

(ii) Secondly, by the overwhelming evidence adduced by the respondent at the trial together with the scope and tenor of the questions asked and answers rendered during cross examination.

The court a quo also held, on the authority of Reza v Nyangani 2001 (1) ZLR 202 (S)…, that usefulness was to be measured objectively, and not subjectively, on the basis of added value.

It, therefore, found the improvements to be objectively useful to the appellant. It also found that they could not be removed because they were fixed to the immovable property.

The court a quo estimated the added value of the improvements at $125,000 and not US$132,833=33 claimed by the respondent.

It adopted the lowest depreciated replacement value of $90,000 provided in one of the three valuation reports produced in January 2018. The court a quo then added the depreciated replacement value of the plot, estimated in two of the valuation reports at $35,000, to this figure.

It, therefore, awarded the aggregate amount of $125,000 to the respondent as a fair and equitable amount that adequately represented the enrichment that accrued to the appellant and constituted his concomitant impoverishment.

Lastly, the court a quo declined to immediately evict the respondent from the immovable property on two grounds:

(i) The first was that he had a real improvement lien on the property, dischargeable on full payment of the award.

(ii) The second was that the respondent had invested all the resources he had on the plot.

To evict him from the plot, empty-handed, would not only be intolerable, but, would consign him and his family to the indignity of homelessness and destitution.

I quote below the concluding remarks of the court a quo in this regard. At p15 of its cyclostyled judgment, it stated that:

“This Court firmly believes that this is a proper case to exercise its discretion in the interest of equity and fairness by ordering that the defendant be evicted only upon payment of the full compensation ordered by the court per the defendant's counter-claim. This is mainly because the defendant has a real lien over the portion of the land in issue.”…,.

Notwithstanding the firm belief, the court a quo omitted to make the contemplated order of eviction in the final order that issued.

The appellant initially raised six grounds of appeal. At the commencement of the appeal hearing, in Bulawayo, counsel for the appellant moved for the deletion of the second ground of appeal and the amendment of the fourth ground.

Counsel for the respondent did not oppose the amendments.

We, accordingly, granted the amendments by consent of the parties.

Resultantly, the following five grounds of appeal remained in contention:

1. The Honourable Court a quo misdirected itself in law in holding, that, despite the respondent's failure to plead unjust enrichment with regards to the improvements upon the property at issue, such failure to specifically plead unjust enrichment was curable by the evidence.

2. The court a quo misdirected itself at law by failing to order either for or against the appellant on a claim of eviction of the respondent from the appellant's land when such a claim was put before the court a quo for determination by that court.

3. The court a quo misdirected itself in its application of the law in awarding what amounts to contractual damages in the relaxation of the in pari delicto principle in that the court a quo relied on valuations provided by the respondent, when, in fact, the court a quo could only have relied on the actual proof of expenditure upon such land having been pleaded and proof provided.

4. The Honourable Court a quo erred in ordering that interest on the judgment debt be paid by the appellant from 24 June 2015, when, in fact, the valuation relied upon for the monetary award in issue was done in 2018.

5. The Honourable Court a quo misdirected itself at law by ordering that the appellant pays the costs, when, in fact, the appellant was partially successful in the court a quo.

The relief sought from these grounds of appeal was:

(i) Firstly, that the appeal succeeds with costs.

(ii) Secondly, that the judgment a quo be altered by setting aside the paragraphs relating to the payment of the sum of $125,000, interest, and costs. These were to be substituted by an award for the payment of the purchase price paid of $19,000 and the actual expenditure proved to have been incurred in the improvements to the immovable property in the sum of $34,158=75 and ZAR2,220. The interest on these sums was to run from the date of the order and each party was to bear his own costs.

The appellant further sought the inclusion of an order of eviction to the substituted order.

The issues that arise from the grounds of appeal are these:

1. Whether or not the court a quo erred in finding that the respondent had proved his case and was therefore entitled to damages for unjust enrichment.

2. Whether or not the court a quo erred in relaxing the pari delicto rule and in awarding the respondent compensation in the nature of contractual damages.

3. The date on which interest should commence to run and the appropriateness of a cost order against the appellant a quo.

During counsel for the appellant's oral submissions, it appeared to the court that the parties required an opportunity to attempt settlement of the matter. Counsel for the respondent was amenable to such a course of action.

The parties requested for a period of three (3) weeks to pursue the attempt at settlement.

We accorded them the opportunity to do so. The matter was accordingly postponed for continuation in Harare on 24 August 2020.

The attempt at settlement was, however, not successful.

The appeal proceeded in Harare.

Mr G Ndlovu, substituted Mr Masiye-Moyo as counsel for the appellant at the resumed hearing.

Counsel for the appellant made the following submissions:

That, the court a quo erred in awarding compensation for improvements under the enrichment cause in circumstances where the respondent had not specially pleaded such a cause.

While he conceded that the respondent had, in oral testimony, specifically premised his claim for compensation for the improvements on unjust enrichment, he argued that oral testimony could not, in law, cure such a glaring defect in his pleadings.

We directed counsel for the appellant's attention to the averments, as amended by consent of the parties at the hearing a quo on 16 January 2018, embodied in paragraphs 3, 4 and 5 of the respondent's counterclaim (on p40 of the record of proceedings) and paragraph 4.1 of his replication to the appellant's plea in reconvention (on p48 of the record of proceedings).

Counsel maintained, that, these averments did not specifically plead unjust enrichment in respect of the improvements but only did so in regard to the purchase price and the amount paid to procure the subdivision permit.

Counsel for the appellant further argued, that, as no contractual rights could ever arise or be enforceable from an illegal agreement, it was incompetent:

(i) Firstly, for the respondent to pray for “contractual damages” under an enrichment claim; and

(ii) Secondly, that while the court a quo correctly relaxed the in pari delicto principle in this case, it was also incompetent for it to award such “contractual damages” to the respondent.

The court a quo had done so, the argument went, by awarding compensation which included the amount of money that the respondent would require to purchase a piece of land similar in size to the one he had lost; and, by further awarding an aggregate sum which would enable the respondent to erect structures of an equivalent value to the improvements.

He contended, that, an award of compensation based on improvements was limited to the actual expenses incurred by the respondent.

He also contended, that, it was against public policy, and therefore improper, for any court of law to accord judicial recognition to and approval of an illegal and void agreement. To do so would undermine the tenets of public policy upon which the in pari delicto principle was premised.

Lastly, he conceded that an improvement lien constituted part of our law.

He, however, argued that such a right of retention could not avail any party whose improvements flowed from an illegal agreement.

Concomitantly, the court a quo, therefore, misdirected itself in failing to grant the order of eviction to the appellant.

Counsel for the respondent made contrary submissions:

(i) Firstly, he contended that the respondent had actually pleaded unjust enrichment not just for the actual expenditure he incurred in purchasing the plot, in procuring the permit, and drawing electricity to the appellant's homestead, but, also for the improvements.

(ii) Secondly, that, on the authority of Reza v Nyangani 2001 (1) ZLR 202 (S) and Derby Farms (Pvt) Ltd v Chirunga HH82-07…, once the court relaxed the in pari delicto rule it had the further discretion to do justice between the parties by awarding an equitable amount of the value added by the improvements. In so doing, the court could consider the real and not the nominal value of the improvements.

He argued, that, in Reza v Nyangani 2001 (1) ZLR 202 (S), this Court had ignored the exact expenditure that had been incurred in favour of the depreciated replacement value of the improvements. This was because, by the time the dispute was adjudicated, the actual expenses were too negligible while the depreciated replacement value, which catered for the fall in the value of money, represented the fair and equitable value added to the property by the improvements.

He, therefore, contended, that, the respondent was entitled to the value added to the immovable property by the improvements and not just the actual expenditure he had incurred.

Hence, his submission that the correct value added to the immovable property by the improvements was constituted by the depreciated replacement value of such improvements.

Finally, he submitted that the invocation of the improvement lien was again an exercise of the court's discretion, which the appellant had not, and could not, impugn on any of the irrationality grounds known to our law articulated in the case of Hama v National Railways of Zimbabwe 1996 (1) ZLR 664 (S).

He, however, conceded, in exchanges with the court, that the court a quo failed to capture the conditional eviction of the respondent in the operative part of its order.

He entreated us to exercise the powers conferred on the Supreme Court by section 22(1)(b)(ix) of the Supreme Court Act [Chapter 7:13] to “correct” the order and achieve justice between the parties.

In reply, counsel for the appellant, argued that both this Court and the High Court had adopted the depreciated replacement value in decided cases because of the endemic hyperinflation that characterized the local economy at the time.

He sought to distinguish the two cases cited by counsel for the respondent from the present case on the basis, that, this country did not experience similar inflationary pressures but was stable between 2010, when the actual expenses were incurred, and 2019, when the enrichment order was granted.

Counsel for the appellant, however, conceded that this Court could, in terms of section 22(1)(b)(ix) of the Supreme Court Act, correct the omission to grant the conditional eviction in the operative part of the order of the court a quo rather than remit the case for this to be done.

The requirements for an action of unjust enrichment were set out by ZIYAMBI JA in Gamanje (Pvt) Ltd v City of Bulawayo SC94-04…, in the following terms:

“The requirements for an action for unjust enrichment are:

(i) Firstly, that the defendant has been enriched by the receipt of a benefit;
(ii) Secondly, that he has been so enriched at the expense of the plaintiff;
(iii) Thirdly, that the enrichment is unjustified (in the sense that it would be unjust to allow the defendant to retain the benefit);
(iv) Fourthly, that the enrichment must not come within the scope of one of the classical enrichment actions; and
(v) Fifthly, there must be no positive rule of law which refused an action to the impoverished person.

See Industrial Equity v Walker 1996 (1) ZLR 269 AT P 300; See also Wille's Principles of South African Law, 8th edition, at pp633-5.”

To the same effect is Du PLESSIS in his seminal work The South African Law of Unjustified Enrichment, Juta, 2012…, where he writes that:

“To succeed with a claim based on unjustified enrichment, the plaintiff must meet four general requirements, or, as it is sometimes said, four general elements of enrichment liability have to be present. (i) First, the defendant must be enriched;
(ii) Secondly, the plaintiff must be impoverished;
(iii) Thirdly, the defendant's enrichment must be at the plaintiff's expense; and
(iv) Finally, the defendant's enrichment must be unjustified, which means that it must be without legal ground (sine causa).”

In the court a quo, and in this Court, the appellant conceded that the respondent had pleaded and proved unjust enrichment in respect of the part payment of the purchase price in the sum of US$19,000.

Counsel for the appellant, however, argued a quo, and in this Court, that, the respondent was not entitled to the measure of enrichment based on the valuations produced a quo:

(i) Firstly, because unjust enrichment was not specifically pleaded and could not, as held by the court a quo, be properly cured by evidence.

(ii) Secondly, because the award granted a quo was for contractual damages and not for unjust enrichment.

The law on what constitutes a cause of action is settled.

A cause of action is simply a factual conspectus, the existence of which entitles one person to obtain from the court a remedy against another person. In other words, it is an entire set of facts upon which the relief sought stands: see Peebles v Dairiboard (Private) Limited 1999 (1) ZLR 41 (H)…, and Abrahamse & Sons v SA Railways and Harbours 1933 CPD 626…,.

To determine whether the respondent raised an enrichment cause on the improvements, regard must be had to his plea to the appellant's declaration in the main matter, and to the subsequent averments he made in his counterclaim.

The facts pleaded by the respondent, upon which his relief rested appear in paragraph 10.2 of his plea and paragraph 3 of the appellant's replication in convention; paragraphs 2, 3, 4 and 5 of his counterclaim, as amended on the first day of trial a quo (16 January 2018). It is also necessary, for completeness, to refer to paragraph 1 of the appellant's plea to the counter-claim and paragraph 1 of the respondent's replication.

I set these below:

“RESPONDENT'S PLEA IN CONVENTION

10.2 The defendant avers that if the contract were to be found to be null and void then he stands to be prejudiced and the plaintiff to be unjustly enriched, because, in pursuit of his obligations in terms of the sale, he had built a house on the land, paid US$19,000 to the plaintiff, commenced to draw electricity to the plaintiff's homestead, and, through his own funds, facilitated the issue of a subdivision.

WHEREFORE, the defendant prays for the dismissal of the plaintiff's claims with costs on the punitive scale.

In the event, however, that the Honourable Court holds that the agreement is null and void, then, the defendant prays that the plaintiff be ordered to compensate the defendant in such sum of money as at the time of judgment would be sufficient for the defendant to acquire a property of comparable value including all improvements effected by the defendant on the land in issue, a refund of the money spent in drawing electricity for the plaintiff's benefit, and money spent in procuring a subdivision permit.

1….,.

2. On 26 January 2010, the parties entered into an agreement of sale wherein the plaintiff sold and the defendant purchased an undeveloped piece of land identified in the agreement of sale as 'a portion of land 10 acres in extent being part of Plot 5A 100 Acres Lot, Bulawayo'.

3. In pursuit of his obligation in terms of the agreement of sale, the defendant paid to the plaintiff the total sum of US$19,000, and, inter alia, for the benefit of the plaintiff, commenced drawing electric power to the defendant's homestead and paid for the procurement of a subdivision permit by the plaintiff.

4. The defendant avers, that, the plaintiff has been unjustly enriched at his expense in that the defendant paid to the plaintiff the sum of US$19,000 which the plaintiff accepted, and further commenced to draw electricity for the benefit of the plaintiff, and paid to the plaintiff US$550 to procure or cause the procurement of a sub-division permit at his expense.

5. The defendant, as he is entitled to do, had developed the piece of land and he will be unfairly prejudiced if the improvements were to accrue to the plaintiff without any compensation from him.”

Plaintiff denies that he stands to be unjustly enriched from the property built by the defendant and avers that:

3.1 Defendant built the property contrary to a warning against such development by the plaintiff.

3.2 Plaintiff has no use for the property so built by the defendant as he already has other plans with regards to the use of the land upon which the defendant built the property.

1. There is no cause of action disclosed in the counter-claim.

1. Ad para 1

This is disputed. The defendant's cause of action is founded on a claim of unjust enrichment.

4.1 The defendant will accept payment in the sum of US$19,550 and persist in its claim for damages as contained in the counterclaim.”…,.

The above pleadings clearly show, that, the respondent specifically pleaded to an enrichment claim in respect of improvements in defence to the main action, but, did not specifically carry this through to the counterclaim.

The substance of the enrichment cause is, however, embodied in paragraph 5 of the counterclaim.

The deliberate use of choice words such as 'developed piece of land' 'improvements' 'unfairly prejudiced' 'accrued to plaintiff without compensation' connote a direct benefit to the appellant at the expense of the respondent and clearly encapsulate all the four requirements of an enrichment cause recognised in our law.

I am satisfied that the court a quo's finding, that the respondent did plead unjust enrichment in his counterclaim, is unassailable.

This is an appeal against the whole judgment of the High Court handed down on 1 June 2020 granting an interdict in favour of the first and second respondents (Lilian Timveos and Thabitha Kuhumalo).

On 3 April 2020, the second appellant (Douglas Mwonzora), in his capacity as Secretary General of the first appellant (Movement for Democratic Change-Tsvangirai), sent identical letters to the third and fourth respondents (Speaker of the National Assembly and President of the Senate) recalling the first and second respondents from the Parliament of Zimbabwe.

The reason for the recalls was that they had ceased to be members of the first appellant, Movement for Democratic Change-Tsvangirai (MDC-T).

On 5 May 2020, the third and fourth respondents informed their respective houses of the receipt of the second appellant's letter and vacancies created thereby.

The Zimbabwe Electoral Commission (ZEC) was duly informed of the same so that the electoral process could begin in terms of section 39(3) of the Electoral Act [Chapter 2:13] (herein after referred to as the Act).

The first and second respondents were aggrieved by the recalls. They approached the High Court with an urgent chamber application in a bid to stop the appellants from replacing their seats in Parliament.

The provisional order they sought was couched as follows:

“TERMS OF FINAL ORDER SOUGHT

It is ordered that:

1. It is hereby declared that first, second, and third respondents or anyone acting through them or on their behalf have no power or authority to replace second and third applicants (sic) who are members of the MDC–Alliance as members of the Senate and National Assembly respectively by members of the MDC-T, or any of their appointees and that such replacement of applicants is unlawful.

2. Pending a resolution of the applications in Case Nos. HC2308/20, HC2351/20 and HC2352/20 the replacements of applicants as Members of Parliament by the respondents be and is hereby stayed.

3. Respondents to bear the costs, jointly and severally, the one paying the other to be absolved.

Pending confirmation or discharge of the provisional order, it is ordered that:

1. First, second, and third respondents or anyone acting through them or on their behalf be and are hereby interdicted, barred, and stopped from replacing applicants as members of the Senate and National Assembly, respectively, by members of MDC-T or any of their appointees.

2. Sixth respondent be temporarily interdicted from Gazetting the existence of vacancies in applicants Constituencies for purposes of taking steps to have them filled by nominees of first, second, and third respondents.”

In their founding affidavit, the first and second respondents alleged that they did not belong to (MDC-T) but to Movement for Democratic Change Alliance (MDC-A) led by Nelson Chamisa, a party completely different from MDC-T.

According to them, only MDC-A could recall them from Parliament.

They further alleged that they were nominated to be voted into Parliament under MDC-A.

In opposing the application, the second appellant (Douglas Mwonzora) contended, that, the first appellant (MDC-T) was entitled to replace the first and second respondents as they were voted into office under the MDC-T party.

Further, he averred that the relief sought by the first and second respondents had an effect of interfering with the first appellant's right to replace its own members of Parliament.

He further stated, that, MDC-A is a pre-election pact of seven political parties that were constituted in terms of a Composite Political Agreement. The nominated candidates did not individually belong to the MDC-A, but to their respective political parties which formed the Alliance.

Further, he averred that the matter was not urgent.

The third appellant (Dr. Thokozani Khupe) raised the following preliminary points, that:

(i) The certificate of urgency was defective in that it did not state the date on which the need to act arose;

(ii) The Zimbabwe Electoral Commission ought to have been cited as a party and not citing the Chairperson;

(iii) The matter was not urgent as the founding affidavit did not have a cause of action;

(iv) There was material non-disclosure of the judgment under SC56-20 which nullified the appointment of Nelson Chamisa as president;

(v) The interim and final relief sought was the same;

(v) The court could not grant interim relief as the vacancies should be filled within 90 days.

On the merits, the third appellant associated herself with the arguments raised by the second appellant in as much as the argument that MDC-A is not a political party on its own.

She further averred, that, the first and second respondents have an alternative remedy which was to have the main matter resolved expeditiously.

The third and fourth respondents (Speaker of the National Assembly and President of the Senate) also filed their opposition.

In their opposition, they averred that the matter was not urgent as the alleged urgency was self-created.

They further contended, that, the High Court did not have jurisdiction to entertain the matter as the matter was a constitutional one.

They submitted, that, the first and second respondents case was based on the allegation that Parliament failed to fulfil its constitutional obligations by violating section 129(1)(k) of the Constitution. This allegation therefore placed the matter within the exclusive jurisdiction of the Constitutional Court in terms of section 167(2)(d) of the Constitution.

The court a quo dismissed all the points in limine.

It held that the certificate of urgency was not defective as it contained crucial information relating to the fears of the first and second respondents.

It further held that the matter was urgent.

On the question of non-citation of the Zimbabwe Electoral Commission (ZEC) the court a quo held, that, the citation of the Chairperson of ZEC, instead of the Zimbabwe Electoral Commission was proper.

It reasoned, that, the citation of the Zimbabwe Electoral Commission (ZEC) in legal proceedings is governed by section 14 of the Electoral Act which provides that the State Liabilities Act [Chapter 8:14] applies whenever ZEC is to be cited in legal proceedings.

The State Liabilities Act provides that when suing a Ministry, the Minister is to be cited.

The court held, that, equating the Zimbabwe Electoral Commission (ZEC) to a Ministry, the citing of the Chairperson of ZEC is proper.

In this regard, the court a quo also relied on the case of Shumba & Anor v ZEC & Anor 2008 (2) ZLR 65 (S)...,.

On the issue of material non-disclosure, the court a quo held that judgments of the courts are in the public domain.

It further held that the Supreme Court judgment declared what the position in the MDC was and this did not pertain to the expulsion of the first and second respondents from Parliament.

It also found that the substance of the interim relief sought and the final order sought was not the same.

On the merits, the court a quo found that the first and second respondents had established a prima facie right which must be protected. It thus granted the order on the premise, that, the first and second respondents had established a prima facie case for the grant of the provisional order.

The order granted reads as follows:

“Pending the determination, or disposal by this Court, of the proceedings under the reference case nos. HC2351/20 and HC2352/20, the first, second and third respondents, or anyone acting through them, or on their behalf, shall refrain and desist from, and they are hereby interdicted, barred, and restrained from submitting any nomination papers in terms of section 39(4)(b) of the Electoral Act [Chapter 2:13], or submitting or supplying the names of any other person for the purposes of filling up any perceived vacancies in the Parliament of Zimbabwe in respect of the seats held by the first and second applicants in the Senate and National Assembly, respectively, as at 3 April 2020.”

Dissatisfied with the decision of the court a quo, the appellants noted this appeal. The appellants raised ten (10) grounds of appeal.

In motivating the appeal, counsel for the appellants, on reflection, abandoned the first two grounds relating to findings on urgency. He also seemed to have abandoned grounds 4 and 10 as he did not address these grounds.

The grounds that remained pertained to:

(i) The findings that the joinder of the Zimbabwe Electoral Commission (ZEC) was not necessary;
(ii) That, the interim relief was not the same as the final relief;
(iii) That, the court a quo had jurisdiction to grant the interdict as it did not interfere with the process by the Zimbabwe Electoral Commission (ZEC); and
(iv) That, the respondents had established a case for the interdict.

Before counsel could make detailed submissions on the remaining grounds of appeal, the court drew the attention of counsel for the parties to the order granted by the court a quo and whether such was in sync with the relief the first and second respondents had approached the court for.

In addressing this point, counsel for the appellants submitted that though the grounds of appeal had not succinctly captured this anomaly, grounds 8 and 9, on the interim relief being the same as the final relief, were in fact intended to address the fact that the order granted was not proper as it was final in nature when the respondents had only sought a provisional order.

He further submitted, that, the court a quo erred in granting a final order upon a finding that only a prima facie case had been established.

It was his view that this Court may exercise its powers in terms of section 25 of the Supreme Court Act [Chapter 7:13].

As regards the citation of the Chairperson of the Zimbabwe Electoral Commission (ZEC) and not ZEC, counsel for the appellants submitted that the court a quo also erred in finding that the joinder of the Zimbabwe Electoral Commission was not necessary and the non-joinder was not fatal.

He also submitted, that, the court a quo erred in law in not finding that it had no jurisdiction to interdict a lawful process, namely, that it could not interdict the filling of vacancies that have arisen by operation of law.

Counsel for the first and second respondents conceded, that, the court a quo erred by granting a final order based on a finding that the first and second respondents had only established a prima facie case.

He submitted, that, the only amendment he made to the interim relief sought was the abandonment of paragraph 2 which sought to temporarily interdict the Zimbabwe Electoral Commission (ZEC) from gazetting the existence of vacancies in their respective constituencies. There was thus no other amendment to their prayer warranting the order that was granted.

He confirmed that what the court a quo granted was not what his clients had approached the court for.

Just as with the appellants counsel, he submitted that he only saw that the court had granted such an order upon reading the judgment.

In the circumstances, he was not averse to this Court exercising its powers in terms of section 25 of the Supreme Court Act in resolving the irregularity.

Regarding the citation of the Chairperson of the Zimbabwe Electoral Commission (ZEC) instead of ZEC, counsel insisted that the citation or joinder of the Zimbabwe Electoral Commission was not necessary, and failure to do so was not fatal, as no order was made against it.

Counsel for the third and fourth respondents (Speaker of the National Assembly and President of the Senate) had no submissions to make save to indicate that his clients would abide by the decision of the court.

Counsel for the fifth respondent (Chairperson of the Zimbabwe Electoral Commission) indicated that whilst his client would abide by the court's decision, there was, however, an unsatisfactory position of the law regarding whether the Zimbabwe Electoral Commission (ZEC) should have been cited or not.

In this regard, he alluded to section 14 of the Electoral Act as amended by Act 3 of 2012 and Shumba & Anor v ZEC & Anor 2008 (2) ZLR 65 (S).

He juxtaposed these with section 4A of the Electoral Act as amended by Act 3 of 2012 on the corporate status of the Zimbabwe Electoral Commission (ZEC) and the Constitution of Zimbabwe Amendment (No.20) Act of 2013 which provides corporate status for independent commissions, of which ZEC is one.

Upon a careful consideration of the submissions made we are of the view that this appeal may be disposed of on the basis of the order granted.

The issue of citation is only pertinent in as far as it is necessary to bring to the fore the inconsistency alluded to.

The issues for determination may thus be restricted to:

(i) Whether or not the order granted by the court a quo was proper in the circumstances.

(ii) Whether or not the court a quo erred in finding that the citation of the chairperson of the Zimbabwe Electoral Commission (ZEC) was proper and that non-joinder of the Zimbabwe Electoral Commission, as a party, was not fatal to the proceedings as it was not necessary in terms of section 14 of the Electoral Act.

The appellants counsel submitted, that, the order granted by the court a quo was not in sync with the relief that the first and second respondents had approached the court for.

The order was not a provisional order at all and should not have been granted.

The appellants counsel submitted, that, the first and second respondents, in the urgent chamber application, had only established a prima facie case.

Counsel for the first and second respondents conceded, that, whilst his clients approached the court a quo seeking a provisional order, the court a quo granted a final order. He, in effect, conceded that the respondents had set out to establish a prima facie case for the grant of the interim relief.

That the order granted is not the one the first and second respondents sought is thus common cause....,.

In casu, the court a quo misdirected itself in granting a relief that had not been sought....,.

It is common cause that the first and second respondents approached the court a quo seeking an interim relief as outlined above. The only amendment they made was to abandon the paragraph interdicting the Zimbabwe Electoral Commission. Thus, their draft order remained as before save for the removal of paragraph 2 of the interim relief.

Thus, whilst the first and second respondents sought interim relief pending the confirmation or discharge of the provisional order on the return day, the court a quo went on a frolic of its own and granted them a final order that they had not asked for.

In doing so, the court simply plucked paragraph 2 of the draft final order and embellished it with verbosity after which it granted the order under the pretext that it was a provisional order....,.

In Nzara & Others v Kashumba & Others SC18-18 this Court reiterated the need for a court to adhere to issues placed before it and not to go on a frolic of its own on issues not motivated by the parties. At page 13-14 of the cyclostyled judgment, the court aptly stated that:

“The function of a court is to determine the dispute placed before it by the parties through their pleadings, evidence and submissions. The pleadings include the prayers of the parties through which they seek specified orders from the court.

This position has become settled in our law.

Each party places before the court a prayer he or she wants the court to grant in its favour. The Rules of court require that such an order be specified in the prayer and the draft order. These requirements of procedural law seek to ensure that the court is merely determining issues placed before it by the parties and not going on a frolic of its own.

The court must always be seen to be impartial and applying the law to facts presented to it by the parties in determining the parties issues.

It is only when the issues or the facts are not clear that the court can seek their clarification to enable it to correctly apply the law to those facts in determining the issues placed before it by the parties.

The judgment of the court a quo unfortunately fell short of these guiding principles.

In seeking to find middle ground, the court a quo granted orders which had not been sought by either party. It granted the first and fourth respondents a further grace period and a referral to arbitration. The first and fourth respondents had not sought such orders.

Such orders cannot be sustained at law….,.

Where a court is of the view that an order not sought by the parties may meet the justice of the case, it must put that possible relief to the parties and allow them an opportunity to address it on such an order.”…,.

In casu, in granting an order whose genesis is in paragraph 2 of the draft final order, the court a quo indirectly accepted, that, the interim relief sought was essentially the same as the final relief despite its earlier ruling that the two were not the same.

The court a quo found itself entangled in a web of uncertainty on what order to give.

In the process, it considered factors not placed before it and granted an order which was final in effect without seeking the input of the parties on the order it intended to grant as this order was materially different from the order sought and upon which the parties had argued.

Whilst Rule 240 of the High Court Rules 1971 provided, that, in granting an order, the court may vary the order, this is not a licence to substitute a provisional order sought by a litigant with a final order.

Any variation of the order sought must still leave the order granted as a provisional order subject to confirmation or discharge on the return date.

The order was thus improper and cannot stand. It must be set aside....,.

In terms of section 25 of the Supreme Court Act [Chapter 7:13] this Court may review proceedings where it finds that an irregularity was committed.

The court a quo erred and misdirected itself in granting an order that had not been sought by the parties. The order must be set aside.

Accordingly, it is ordered as follows:

1. The matter be and is hereby struck of the roll.

2. In the exercise of the court's review powers, in terms of section 25 of the Supreme Court Act [Chapter 7:13], the judgment of the court a quo, in case number HC2527/20, be and is hereby set aside.

This composite application for condonation and extension of time for leave to appeal, and leave to appeal raises an interesting question.

It is whether an applicant who seeks and is denied condonation for the late filing of an application for leave to appeal in a lower court and therefore fails to make the actual application for such leave in that court, can procedurally seek leave to appeal from a judge of this Court in chambers.

The applicant filed the present application on 25 March 2021.

It seeks condonation and extension of time for leave to appeal and leave to appeal against the original judgment handed down by the Labour Court on 24 February 2017.

The application is opposed by both respondents.

The applicant is a constitutional body established in terms of section 254 of the Constitution of Zimbabwe 2013. It is charged with the responsibility of combating corruption in all its manifestations in Zimbabwe.

The two respondents are former employees of the applicant. The first respondent was a General Manager Finance, Administration and Human Resources and the second respondent was a Chief Accountant.

The two were charged with misconduct, found guilty and discharged from employment on 14 July 2016.

They filed an application for review against the composition and findings of the Disciplinary Committee. The review application was based on 10 grounds. They sought, firstly, the nullification of their suspension, verdict and sentence, and, secondly, their reinstatement to their previous positions on full benefits.

The applicant refuted each and every ground of review.

On 24 February 2017, the court a quo dismissed the first three grounds of review that impugned the procedural propriety of amending the statute under which they were charged from the Anti-Corruption Act [Chapter 9:22] to the Labour (National Employment Code of Conduct) Regulations, 2006, SI15 of 2006 model law.

It found, on the authority of Standard Chartered Bank v Matsika 1996 (1) ZLR 12 (S), that, the amendment of the statute under which they were charged, from the Anti-Corruption Act to the National Employment Code Model, was proper.

The amendment did not alter the charges of domiciling Treasury funds in their own company instead of in the account of the applicant nor was it prejudicial to the two as they were afforded adequate time, of at least a month, within which to respond to the charges and prepare their defences.

The Labour Court, however, upheld grounds 4 and 5, which it found to be dispositive of the review application without considering the remaining grounds of review.

It found that the Disciplinary Committee was improperly constituted, and held, on the authority of Madoda v Tanganda Tea Co. 1999 (1) ZLR 374, that, it was voidable at the instance of the prejudiced respondents. It set aside the proceedings and remitted the matter to a properly constituted Disciplinary Committee.

The remittal was based on the sentiments of MUCHECHETERE JA in Standard Chartered Bank of Zimbabwe Ltd v Chikomwe & Ors SC77/2000, SC77-00 that:

“…, reinstating the respondent in the circumstances implies a finding that respondents were innocent of the charges of misconduct against them by the hearing officers…,. A setting aside of the proceedings of the disciplinary committees should therefore lead the parties to the same position before the hearing in the disciplinary committees - appeals before a properly constituted disciplinary committee.”

The two respondents therefore remained on suspension but on full salary and benefits.

In terms of Rule 36 of the Labour Court Rules SI59/06, the applicant had 30 days from the date of the judgment within which to apply for leave to appeal to the Supreme Court against the judgment of 24 February 2017.

It failed to do so.

On 5 October 2017, it applied for the upliftment of the bar and condonation for late filing of an application for leave to appeal.

It did not co-join this application with an application for leave to appeal.

On 23 February 2018, the Labour Court dismissed the application for upliftment and condonation.

The requirements for such an application were the extent of the delay, the reasonableness of the delay and prospects of success, and the absence of prejudice to the other parties.

The Labour Court found the delay inordinate and the explanation for the delay unreasonable. It was unable to assess whether or not there were prospects of success in the absence of a draft notice of appeal. It reasoned, that, without the draft notice of appeal, it was unable to ascertain whether the grounds of appeal were based on points of law as mandated by section 92F(1) of the Labour Act [Chapter 28:01].

This was despite the fact, that, the applicant had raised substantive points of law impugning the review judgment.

The Labour Court clearly abdicated its responsibility to determine whether, on the averments and arguments submitted in the application for condonation, there were prospects of success.

This Court has, in numerous cases, emphasized that the duty of a legal practitioner is to be knowledgeable about the rules of this Court. It is not to make excuses, based on their ignorance of the rules of court, on behalf of the clients.

The Constitutional Court authoritatively laid down, inter alia, that the Labour Court's jurisdiction to confirm a labour officer's draft ruling, in respect of a dispute or unfair labour practice, which is a dispute of right, could only be invoked if the labour officer strictly complied with all the prescribed procedural steps and substantive requirements of sections 93(1)(3) and 95(5)(c) of the Labour Act in making the draft ruling.

This principle was derived from the ratio decidendi of Tsvangirai v Mugabe & Anor 2006 (1) ZLR 148 (S), which was that the action or application commencing proceedings must be in accordance with the procedure prescribed by law to bring the dispute before the appropriate court for it to exercise jurisdiction to hear and determine the matter.

At p27 MALABA CJ pertinently held that:

“This means that a matter that is not a product of compliance with the procedural and substantive requirements of these provisions would not fall within the class of matters over which the Labour Court would have jurisdiction in terms of section 93(5a) of the Act. It would not be a matter which would be subject of the procedure for bringing such matters to the court a quo, as prescribed under section 93(5a) of the Act. Bringing such a matter to the court a quo under the guise of invoking the procedure prescribed in the subsection would not validly institute proceedings in that court in terms of section 93(5a) of the Act. The court a quo would not have a valid matter over which to exercise jurisdiction.”

The position is however different in respect of the issue of prescription which is not provided for by Article 16 of the Arbitration Act.

The appellant also challenged the court a quo's decision on the dismissal of its application challenging the abitrator's finding that the first respondent's claim had not prescribed.

Counsel for the appellant, relying on several cases from international jurisdictions such as India, Indonesia, United States of America, and Singapore submitted, that, an interim award can be set aside in terms of Article 34 of the Model Law.

I agree.

On the other hand, counsel for the first respondent submitted, that, cases from Indonesia and India referred to by counsel for the appellant should not be followed because the decisions are based on modified Model Laws of those jurisdictions.

While caution should be exercised in following decisions made on the basis of modified Model Laws, a court should first consider the modifications made by those jurisdictions.

In this case, counsel for the first respondent's concern is that these jurisdictions have added to their Model Laws a definition of an award which includes interim awards.

That, in my view, is not of critical importance.

The real issue should be: are the definitions contrary to the contextual interpretation of the word “award” as it is used in Article 34 of the Model Law?

I have already found that the use of the word “award” in Article 34 of the Arbitration Act is generic and accommodates all types of awards. The framers of the Model Law could have used the words “final award” which they were aware of as they used them in Article 32(1) of the Model Law. The choice of the word “award” in Article 34 of the Model Law, which is repeated in various parts of the Article instead of the restrictive words “final award” means the intention was to allow applications for the setting aside of other types of awards in terms of Article 34 of the Arbitration Act.

The court a quo therefore erred when it held that only final awards can be set aside in terms of Article 34 of the Model Law.

It also erred when it dismissed the whole application for that reason as the application for the setting aside of the arbitrator's award on prescription was properly before it.

It is clear that the arbitrator's decision/award on prescription could not be challenged in terms of Article 16(3) of the Model Law which only applies to the arbitrator's jurisdiction and the existence and validity of arbitral agreements.

I am satisfied, that, the finding of the arbitrator on prescription can be classified as an interlocutory, interim, or partial award as provided by Article 31(7) of the Model Law.

The appellants reliance on Article 34(2)(b)(ii) of the Arbitration Act, in respect of the second respondent's decision on prescription, is, in my view, permissible because Article 16(3) of the Arbitration Act does not provide a procedure applicable to an arbitrator's decision other than that on jurisdiction and the existence and validity of an arbitral agreement.

I am satisfied, that, the appellants are entitled to be heard in respect of their application challenging the arbitral award on prescription.

This is an appeal against the whole judgment of the High Court (court a quo) dated 18 October 2018. The court a quo granted an application for absolution from the instance made jointly by the respondents, granted claims in reconvention, and ordered the appellant to pay costs of the counterclaims on a legal practitioner and client scale.

The court a quo erred in this regard and the appellant was correctly aggrieved by the judgment of the court a quo.

There is no evidence in the record that the first, third, fourth, fifth, sixth, and seventh respondents (Formscaff (Pvt) Ltd, Rodney Callaghan, Millicent Callaghan, Charles Cannings, Clifford Johnson and Lesley Bennet) had filed counterclaims and the court a quo erred in granting counter claims that were not before the court.

Although the second respondent was properly before the court a quo, the requirements for the grant of absolution from the instance were not met.

Accordingly, the judgment must be vacated. I set out hereunder the reasons for this finding.

The appellant is a registered commercial bank operating in Zimbabwe. The first respondent is a private company registered in accordance with the laws of Zimbabwe. The third to seventh respondents (Rodney Callaghan, Millicent Callaghan, Charles Cannings, Clifford Johnson and Lesley Bennet) are private individuals who bound themselves as sureties and co-principal debtors in respect of a loan granted to the first respondent. The second respondent is a private limited company duly incorporated in Zimbabwe.

The appellant issued summons against the respondents on 13 March 2017 for the payment of US$368,706=62 being capital and US$20,654=10 being interest on the sum of US$368,706=62 at the rate of 18% per annum, which rate was subject to change from time to time, with effect from 26 November 2016 to date of payment in full and costs of suit on a legal practitioner and client scale.

At the commencement of trial, by consent of the parties, the claim was amended to read as follows:

“(i) By deletion of the capital amount of US$368,706=62 and the substitution thereof with the amount of US$361,034=23.

(ii) By deletion of the interest amount of US$20,654=10 and the substitution thereof with the amount US$28,246=49.”

The total amount claimed by the appellant amounted to US$389,362=72.

In its particulars of claim, the appellant averred that in or around November 2015, the appellant and the first respondent entered into an agreement in terms of which the appellant extended to the first respondent a loan for the sum of US$373,000.

The loan was accessed through the first respondent's operating account and was for the purpose of assisting the first respondent in financing its working capital requirements.

Interest was to accrue on the facility at the rate of 12% per annum subject to change from time to time and 18% per annum in the event of default by the first respondent in making due and punctual payment of any instalment.

The loan advanced was repayable to the appellant as follows:

“(a) US$2,000 on the 30th November 2015;

(b) US$1,500 on the 30th December 2015;

(c) US$2,000 on the 30th January 2016; and thereafter

US$15,200 per month with effect from the 28th of February 2016 until full payment.”

It was a term of the agreement, that, in the event of the first respondent defaulting in making due and punctual payment of any instalment, the total outstanding amount would immediately become due and payable.

The second, third, fourth, fifth, sixth and seventh respondents (Penniwill (Pvt) Ltd, Rodney Callaghan, Millicent Callaghan, Charles Cannings, Clifford Johnson and Lesley Bennet) bound themselves jointly and severally as sureties and co-principal debtors with the first respondent for payment of any and all monies due to the appellant.

The respondents defaulted in making due payment of the loan under the agreement giving rise to the total outstanding amount claimed by the appellant of US$389,362=72.

All the respondents jointly entered an appearance to defend, and, in their plea, denied that the amount claimed by the appellant arose from the agreement dated 2 November 2015.

The first respondent denied owing the appellant any money as it argued that the loan advanced through the loan agreement was repaid in full on the 30th of December 2015. The first respondent further denied owing the appellant any interest under the loan facility and maintained that the appellant actually recovered more interest from it than was lawfully due.

The second to the seventh respondents (Penniwill (Pvt) Ltd, Rodney Callaghan, Millicent Callaghan, Charles Cannings, Clifford Johnson and Lesley Bennet) averred that all the suretyship deeds held by the appellant were void for vagueness as they covered an unlimited liability. They contended, that, a suretyship deed must contain a limit in monetary terms so as to be valid.

The second respondent (Penniwill (Pvt) Ltd) averred that the deed of suretyship between it and the appellant was void as it was not authorised by its Board of Directors.

The first respondent (Formscaff (Pvt) Ltd) further stated, that, the acknowledgment of debt executed by it in favour of the appellant was unenforceable as it was not signed by its representatives.

The second respondent (Penniwill (Pvt) Ltd) also averred, that, it never authorised the registration of a mortgage bond in favour of the appellant over its property known as Subdivision A of Subdivision H of N'Thaba of Glen Lorne situate in the District of Salisbury held under Deed of Transfer number 1998/95 ('the property').

Together with its plea, the second respondent (Penniwill (Pvt) Ltd) filed a claim in reconvention against the appellant and averred, that, the appellant fraudulently procured a suretyship and mortgage bond in its favour over the second respondent's property. The second respondent prayed that the suretyship deed and mortgage bond be cancelled.

The appellant entered a plea against the claim in reconvention and denied all the averments made by the respondents.

On 30 May 2017, the third to seventh respondents (Rodney Callaghan, Millicent Callaghan, Charles Cannings, Clifford Johnson and Lesley Bennet) indicated their intention to apply to amend their pleas and file a claim in reconvention at the pre-trial conference.

The amendments sought alleged that all the respondents purported suretyships had expired by effluxion of time, having been signed more than three years before the loan was granted. It was also averred, that, the suretyships were in contravention of section 12 of the Moneylending and Rates of Interest Act [Chapter 14:14] ('the Moneylending Act') and, as such, were invalid and unenforceable.

In the proposed claim in reconvention, the third to seventh respondents sought an order that their respective suretyships be declared null and void.

The second, third and fourth respondents (Penniwill (Pvt) Ltd, Rodney Callaghan and Millicent Callaghan) prayed that the mortgage bonds in their names be cancelled.

There is, however, no evidence in the record that the amendment was ever granted at the pre-trial conference or at the trial.

On 27 July 2017, the parties signed a Joint Pre-Trial Conference Minute and the issues for determination by the court a quo were stated as follows:

“1. Whether 2nd, 3rd, 4th, 5th, 6th, and 7th Defendants Deeds of Suretyship are valid and enforceable.

2. Whether 2nd Defendant's 1st and 2nd Mortgage Bonds (numbers 1557/13 and 1656/13) in favour of Plaintiff are valid and enforceable or whether they should be cancelled.

3.Whether 1st Defendant is indebted to Plaintiff under the Loan Agreement dated 2 November 2015 in the sums of US$368,706=62 as capital and US$20,654=10 as interest, and, was there novation or termination of the loan agreement.

4. Whether 1st, 2nd, 3rd, 4th, 5th, 6th and 7th Defendants, jointly and severally, one paying the others to be absolved, are indebted to Plaintiff as alleged or at all.”

At the trial, the appellant led evidence through two witnesses, namely, Mr. C. Gunundu (Gunundu) the appellant's Account Relationship Manager and Mr. V.S. Nyangulu (Nyangulu) a registered legal practitioner and conveyancer.

Mr. C. Gunundu testified, that, the appellant and the first respondent had a long business history spanning many years. They agreed that the Bank would advance a loan to the first respondent which loan would, in turn, re-finance the existing loan already held by the first respondent.

He further testified, that, the first respondent and its sureties had failed on numerous occasions to fulfil the loan obligations which it owed to the appellant. The new arrangement was meant to assist the respondents.

Gunundu maintained, that, the surety deeds and mortgage bonds made by the second to seventh respondents (Penniwill (Pvt) Ltd, Rodney Callaghan, Millicent Callaghan, Charles Cannings, Clifford Johnson and Lesley Bennet) in the appellant's favour were all valid and properly constituted. He further maintained, that, the sureties were open and unlimited, and, as such, covered all the money obtained through loans by the first respondent from the appellant.

The second witness, Mr. V.S. Nyangulu, testified that the mortgage bonds he registered on behalf of the second respondent (Penniwill (Pvt) Ltd) in favour of the appellant were valid and were registered after due process and Board resolutions had been passed.

At the close of the appellant's case, the first to seventh respondents (Formscaff (Pvt) Ltd, Penniwill (Pvt) Ltd, Rodney Callaghan, Millicent Callaghan, Charles Cannings, Clifford Johnson and Lesley Bennet) made an application for absolution from the instance.

In making the application, the first and third to seventh respondents (Formscaff (Pvt) Ltd, Rodney Callaghan, Millicent Callaghan, Charles Cannings, Clifford Johnson and Lesley Bennet) averred that the appellant sued the respondents on a cause of action which had already been discharged on 31 December 2015.

They also alleged that their sureties were not valid.

In making its application, the second respondent (Penniwill (Pvt) Ltd) averred that the appellant failed to prove a valid cause of action that the mortgage bonds against its property, registered in favour of the appellant, were valid.

In response to the applications for absolution from the instance, the appellant argued that the applications were frivolous.

It vehemently denied receiving any payment from the first respondent in repayment of the loan. It also maintained that all the documents in respect of the security for the loan were valid and that the obligation of the sureties had not been extinguished by prescription or on any other basis.

The court a quo, in dealing with the matter, found that the appellant's first witness Mr. C. Gunundu (Gunundu) was not a credible witness and that he contradicted himself on material issues.

The court further found, that, the appellant failed to prove a prima facie case against the respondents.

The court went on to find, that, the first respondent repaid the loan of US$350,000 on 31 December 2015 as evidenced by the appellant's own books of account and statements.

The court a quo also found, that, the suretyships made in favour of the appellant by the second to seventh respondents were invalid and unenforceable as they were not in compliance with section 12 of the Moneylending and Rates of Interest Act. Further, that, the sureties did not relate to the 2 November 2015 loan facility, and, as such, could not be relied upon by the appellant in making a cause of action for the repayment of a loan under that facility.

The court a quo further held, that, the mortgage bonds executed in the second respondent's name were invalid as they were not made in compliance with the law and that the sureties and mortgage bonds could not be held to have an unlimited clause to their operation as such a clause was contrary to public policy.

The court concluded, that, as the appellant had failed to prove a prima facie case against the respondents, the respondents claims in reconvention had merit and that there was no need to put the respondents to their defence.

In the result, the court made the following order:

“1. The application for absolution from the instance, made by the defendants, succeeds with costs.

2. The surety ships (sic) in favour of the plaintiff entered into by 2nd, 3rd, 4th, 5th, 6th and 7th defendant and plaintiff be and are hereby cancelled.

3. The mortgage bonds passed by 2nd, 3rd and 4th defendants in favour of plaintiff, namely, Numbers 2416/2011, 4889/2011, 1557/2013 and 1656/2013 be and are hereby cancelled.

4. The plaintiff to pay costs of counterclaim to the defendants on attorney-client scale.”

Dissatisfied with the decision of the court a quo, the appellant noted the present appeal on the following grounds of appeal:

“1. The court a quo erred in holding that any amounts which were due to Appellant under the agreement dated 2 November 2015 were repaid in full and that Plaintiff sued on a cause of action that was discharged in full on the 30th of December 2015, in so doing, the court a quo failed to appreciate that the agreement (dated 2 November 2015) was entered into to enable the 1st respondent to settle previously existing debts.

1.1 The court a quo erred in strictly evaluating and rejecting the appellant's evidence and effectively demanding of it more than a prima facie (sic) as if it had (sic) evidence from defendants.

1.2 The court a quo erred in granting respondents 1, 3 to 7 counter-claims which were not before it.

1.3 The court a quo erred in granting the counterclaims by respondents 1, 3 to 7 when those respondents had not moved it to grant same as at that stage.

1.4 The court a quo erred in itself cancelling the parties agreements when it was not a party thereto and in violation of the sanctity thereof.

2. The court a quo erred in holding that:

(a) The Suretyship agreements executed by 2nd, 3rd, 4th, 5th, 6th and 7th Respondents did not relate to the agreement dated 2 November 2015, and that neither did they cover any amounts due thereunder.

(b) The Suretyship agreements had prescribed. In so holding, the court a quo grossly failed to appreciate that, at law, a Surety's obligations only arise upon demand.

(c) The 2nd, 3rd, 4th, 5th, 6th and 7th Respondents were released from their Suretyship due to material variation of the principal obligation, when this was not pleaded and no evidence proving actual prejudice was placed.

(d) That 2nd, 3rd, 4th, 5th, 6th and 7th Respondents suretyship agreements were void for being contrary to public policy.

3. In agreeing with 2nd, 3rd, 4th, 5th, 6th and 7th Respondents entire submissions on the application for absolution from the instance, the court a quo grossly erred in holding 2nd to 7th Respondents averment that the suretyship agreements are invalid for violation of Section 12 of the Money Lending (sic) and Rates of Interest Act [Chapter 14:14].

4. The court a quo erred in holding that the Mortgage Bond passed by 2nd Respondent, and 3rd and 4th Respondents are invalid and grossly failed to appreciate, that, at law, the Mortgage Bonds are valid as an instrument of both debt and hypothecation.

5. Consequent to the gross misdirection referred to in Paragraph 1, 2, 3 and 4 above, the court a quo erred in granting 1st to 7th Respondents application for absolution from the instance and entering Judgment in favour of Respondents as per their claim in reconvention for cancellation of the suretyship agreements and Mortgage Bonds.

6. The court a quo erred in awarding costs against Appellant in respect of the Respondents claim in reconvention on a higher scale, when there was no legal basis for so doing.”

On the merits, counsel for the appellant argued that it was improper for the court a quo to grant counterclaims that were not filed in terms of Rule 121 of the High Court Rules 1971 ('the High Court Rules').

Counsel further argued, that, the judgment of the court made factual findings without hearing the evidence of the first respondent. The factual findings could only have been made after hearing the defence case.

He also argued, that, the inference drawn by the court in respect of the statement of account was not the only inference in the circumstances of the case, and, in any event did not prove that the debt owed by the respondents had been repaid.

It was also counsel's argument, that, the appellant proved a prima facie case in establishing that the loan facility was disbursed to the first respondent and it was for the respondents to prove that the loan was repaid in full.

He prayed that the appeal be allowed with the matter being remitted to the court a quo for continuation of trial and an order for costs.

Per contra, counsel for the first, third to seventh respondents argued that the court a quo correctly found that the appellant failed to establish a prima facie case as there was no valid cause of action.

Counsel further argued, that, the documentary evidence produced before the court a quo showed that the loan was repaid in full on 31 December 2015, and, as such, the appellant had no basis to sue.

He also argued, that, the appellant's witness, Gunundu, contradicted himself in his evidence, and, as such, a prima facie case could not have had been established by the appellant.

Counsel further argued, that, the purported sureties made in the names of the third to seventh respondents were invalid and void.

Counsel prayed for the dismissal of the appeal.

Counsel for the second respondent also prayed for the dismissal of the appeal and argued, that, the appellant had no cause of action against the second respondent as no loan facility was ever advanced to it.

Counsel submitted, that, the loan was repaid on 31 December 2015 and that the appellant had admitted that this was the position in evidence.

He further submitted, that, there was no valid mortgage bond in the name of the second respondent upon which the appellant could execute. The mortgage bond made by the second respondent, in favour of the appellant, related to a 2011 loan facility and not the 2015 loan facility.

Counsel further maintained, that, the second respondent had only one director in Zimbabwe, and, as such, no valid resolution could have been made in the absence of the second director. As such, counsel argued that the power of attorney and mortgage bond were not properly executed.

It is my view, that, the appellant's grounds of appeal raise a single issue, i.e. whether or not the court a quo erred in granting the application for absolution from the instance.

The cause of action of the appellant, against the first respondent (Formscaff (Pvt) Ltd), was based on a credit facility dated 2 November 2015. It was alleged that the first respondent had failed to repay the loan advanced to it under that facility.

The cause of action as against the second to seventh respondents (Penniwill (Pvt) Ltd, Rodney Callaghan, Millicent Callaghan, Charles Cannings, Clifford Johnson and Lesley Bennet) was based on the various surety and mortgage bonds filed of record which were made in favour of the appellant by the respondents at different times.

The court a quo, in granting the respondents application for absolution from the instance, found that the loan advanced to the first respondent was repaid on 31 December 2015. The basis of this finding was an accounting entry made by the appellant in its statement of accounts, which showed a credit entry in the sum borrowed as having been paid.

On the basis of this entry, the court reasoned that there was no cause of action upon which the appellant could claim as there was no outstanding debt.

The law to be applied in an application for absolution from the instance is well settled. In United Air Charters (Pvt) Ltd v Jarman 1994 (2) ZLR 341 (S)…, the Court held that:

“The test in deciding an application for absolution from the instance is well settled in this jurisdiction. A plaintiff will successfully withstand such an application if, at the close of his case, there is evidence upon which a court, directing its mind reasonably to such evidence, could or might (not should or ought to) find for him:” see also Oesthuizen v Standard General Versekeringsmaa & Kappy BPK 1981 (A) 1035 (H)).”

In Gordon Lloyd Page & Associates and Rireira & Another 2001 (1) SA 88 (SCA)…, it was held that:

“The test for absolution to be applied by a trial court at the end of plaintiff's case was formulated in Claude Neon Lights (SA) Ltd v Daniel 1976 (4) SA 403 (A) at 409G-H in these terms:

'…, when absolution from the instance at the close of plaintiff's case, the test to be applied is not whether the evidence led by the plaintiff established what would finally be required to be established, but, whether there is evidence upon which a court applying its mind reasonably to such evidence could or might (not should or ought) find for the plaintiff…,.'

This implies that the plaintiff has to make out a prima facie case in the sense that there is evidence relating to all elements of the claim…,.”

Absolution from the instance is thus granted by the court when an application has been made by a defendant at the close of a plaintiff's case who fails to prove a prima facie case.

A prima facie case was noted in Fillieks and Others v S [2014] ZAWHC 34 as follows:

“Prima facie evidence, in its more usual sense, is used to mean prima facie proof of an issue, the burden of proving which is upon the party giving that evidence. In the absence of further evidence from the other side, the prima facie proof becomes conclusive and the party giving it discharges his onus…,.”

In granting the application for absolution from the instance, the court a quo thus had to be guided by the question of whether or not the appellant made out a prima facie case against the respondents on the basis of which the court could or might have found for the appellant.

The appellant's cause of action was based on the credit facility which it advanced to the first respondent on the 2nd of November 2015 for the sum of US$350,000. The purpose of the facility was to assist the first respondent in financing its working capital requirements.

The facility further provided, under clause 6, that, the security for the amount advanced as the loan was secured by sureties and mortgage bonds registered in the names of the respondents in favour of the appellant.

Under clause 12 of the facility, all previous facility letters advanced to the first respondent, by the appellant, were cancelled.

The accounting statements of the appellant, filed of record, show that on 17 November 2015, under transaction number LD1532460482, and described as “Loan Drawdown” the appellant credited the first respondent's account with the sum of US$350,000. On the 30th of December 2015, under transaction number LD1532460482 and described as “Payment of Principal” the sum of US$350,000 was reversed from the first respondent's account into the appellant's account.

The first respondent remained with a debit balance of US$375,671=35.

The appellant's witness, Gunundu, explained that the first entry meant that the appellant was crediting the first respondent with the proceeds of the loan. The second entry showed that those proceeds were meant to pay off an existing debt that the first respondent already had with the Bank.

It is important to quote the exchange between counsel for the appellant and the witness where he states that:

“Q. If you move further down, you will see that the same $350,000 appears on that page?

A. Yes, the second entry for $350,000 which in this instance now appears as a debit on the borrowers account, was passed on 30th December 2015. The second entry that was passed by the Bank on the 30th of December 2015 for 350,000 entailed that the Bank was now debiting the customer's account to confirm that this was now a new loan agreement with terms as contained in the facility letter offer of 2nd November 2015.”

The first respondent however maintained the argument a quo, and before this Court, that, the loan was repaid on the 30th of December 2015 under the transaction description of “Payment of Principal”.

On the basis of the above exchange, the court a quo found that the witness of the appellant did not establish its claim at all. The court concluded that Gunundu was not a credible witness and found that the appellant had failed to make out a prima facie case upon which the respondents could be placed on their defence.

It is our view, however, that the court a quo fell into error in arriving at this finding.

It should be noted from the onset, that, the appellant and the first respondent have had a long standing relationship of a banking nature.

The record shows, that, from 2011 to 2015, when the credit facility which is the subject of this appeal was entered into, the appellant was advancing the first respondent different loan facilities and overdrafts.

These loan facilities were advanced on the basis of the securities which were made by the second to seventh respondents.

For over five (5) years, the appellant was advancing money to the first respondent on the basis of those securities with no issues arising.

Emails filed of record further show correspondence between the third respondent (Rodney Callaghan), the first respondent's Finance Manager, one Jill Ngwerume Gunundu, on behalf of the appellant, and Nyangulu, which correspondence shows how some of the securities were registered.

Emails between Rodney Callaghan and Darryn Blumears (acting on behalf of the second respondent) are also part of the record which shows the parties acknowledging that certain sums of money were owed and that the respondents would raise money to pay the debts.

Although these emails were written in 2013 to 2014, this confirms the nature of the relationship between the appellant and the respondents, and that, as at 2014, there was a debt owed to the appellant.

Having found that there existed a banking relationship between the appellant and the respondents, the next question relates to the credit facility advanced to the first respondent on 2 November 2015 and whether or not that facility was repaid.

There is no documentary evidence in the record which shows that the first respondent wrote to the appellant seeking a refinancing loan to cover its existing debts.

However, given the history between the parties on how the appellant advanced several loans to the first respondent over the years, it can be taken that the first respondent must have approached the appellant seeking a loan to repay its outstanding debts.

A reading of the appellant's accounting statement shows, that, before the “loan drawdown” was made to the first respondent's account, the account showed a debit balance of US$367,981=74. When the loan sum was deposited, the balance was reduced to US$17,981=74. This means that the loan reduced an existing debt. When the loan was reversed back to the appellant's account on 30 December 2015, the balance returned to US$375,671=35.

This summary shows, that, the loan was advanced by the appellant to refinance an existing debt.

The credit facility, though not clearly labelled as a refinancing loan, appears to have been made in order to give the first respondent time to repay the loan. This explains the creation of a repayment plan on how the first respondent would repay its debt.

In my view, the credit facility, though not specified as a re-financing loan, must have been made for the purpose of extending the period in which the first respondent had to repay its debts.

It is important to borrow the words quoted with approval by GUBBAY CJ in Chikoma v Mukweza 1998 (1) ZLR 541 (SC)…, wherein the Court noted that:

“Not to be overlooked, as well, are the wise words of Lord Wright in Hillas & Co. Ltd v Arcos Ltd [1932] All ER Rep 494 (HL) at 503I; (1932) 147 LT 503 (HL) at 514:

'Businessmen often record the most important agreements in crude and summary fashion; modes of expression sufficient and clear to them in the course of their business may appear to those unfamiliar with the business far from complete or precise. It is, accordingly, the duty of the court to construe such documents fairly and broadly, without being too astute or subtle in finding defects; but, on the contrary, the court should seek to apply the old maxim of English Law, verba ita sunt intelligenda ut res magis valeat quam pereat.'

See also Burroughs Machines Ltd v Chenille Corp of SA (Pty) Ltd 1964 (1) SA 669 (W) at 670G-H.”

Thus, essentially, what was before the court a quo was a claim for the repayment of a loan.

The appellant had a duty, after all the evidence had been led by both the appellant and the respondents, to prove its case on a balance of probabilities.

The argument in the respondents plea, that the loan was repaid in less than a month, does not carry much weight and is an argument which the respondents had to prove in evidence....,.

Gunundu explained how the transactions under the credit facilities were made and how they operated. He further explained how the appellant had always worked with the first respondent in trust and on the basis of the securities which had been lodged with the Bank by the first respondent over the years.

It seems to me that his evidence was sufficient to establish a prima facie case for the appellant with regard to whether or not the respondent owed the appellant.

After initially reserving its judgment at the end of the hearing in this matter, the court later allowed the appeal and issued the following order;

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

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

(1) The first respondent and all persons claiming occupation rights, title and interest through him, shall remove or cause the removal of themselves and all such persons occupying the mining claim, Tigress, held under registration number 10098BM and as identified by the second respondent.

(2) Failing such removal, the Sheriff of Zimbabwe be and is hereby authorised and directed to evict the first respondent and all those claiming occupation, rights, title and interest through and under him from mining claim being Tigress number 100098BM as identified by the second respondent.

(3) The first respondent and all those claiming with or through him are barred from carrying out any mining activities on the mining claim Tigress registration number 10098BM.

(4) The first respondent is ordered to pay the costs of suit on an attorney and client scale.”

The court indicated that full reasons for the judgment would follow in due course. These are they.

This appeal is against the entire decision of the High Court handed down on 31 March 2022 in which the court dismissed the appellant's application for a spoliation order against the respondents.

The appellant and the first respondent have engaged in a litany of disputes in the court a quo, all related to their respective entitlements to the mining claims that they operate on. The two mining claims are situate in Insiza District, Matebeleland South and are adjacent to each other. The appellant is the holder of mining claims known as Tigress, while the first respondent has been conducting mining operations on claims known as Lion West 25.

Sometime in 2021, a boundary dispute arose between the appellant and the first respondent.

The former alleged that the latter had encroached onto its mining location and proceeded to mine gold ore, thereby depleting the finite resource on its mine. At the time that the boundary dispute arose, the first respondent had amassed a substantial amount of gold ore which was stockpiled on the part of the appellant's claim that he was accused of encroaching onto.

In disputing the allegations of encroachment onto the appellant's claim, the first respondent insisted that he had been carrying out mining operations on his mining claim, that is Lion West 25, for the past 17 years without interruption and that no encroachment had taken place.

On 8 March 2021, the second respondent (Provincial Mining Director, Matebeleland South) wrote to the parties to the effect that after attending at the disputed claims to ascertain the co-ordinates of the parties mining claims, as ordered by the High Court at the instance of the appellant (HC276/21), his finding was that the first respondent had indeed encroached onto the appellant's mining claim.

The second respondent went on to direct the first respondent to vacate the appellant's claim and revert to his own coordinates.

The latter did not comply, prompting the appellant to later on request the second respondent's intervention.

The second respondent subsequently advised the appellant of his failure to prevail upon the first respondent to vacate the part of the appellant's claim that he had encroached onto. He consequently suggested that the appellant could seek an interdict against the first respondent, from the court a quo, since the court was already seized with the matter.

It is pertinent to note that both the appellant and the first respondent attended at the mining claims together with the second respondent, in compliance with the order of the court.

An interdict sought by the appellant was subsequently granted against the first respondent under case number HC884/21. This was after the first respondent, who had consented to the provisional order sought against him, failed to oppose the confirmation of the final order interdicting him from further encroaching onto the appellant's claim.

Faced with imminent eviction from the appellant's claim, the first respondent sought to have the interdict rescinded but later withdrew the application. This circumstance led to the enforcement of a Warrant of Ejectment by the Deputy Sheriff that saw the first respondent being evicted from the part of the appellant's claim onto which the encroachment had taken place.

The appellant submits that this action, conducted by the Deputy Sheriff on 1 February 2022, restored it to its peaceful and undisturbed possession of the disputed part of its claim, as well as the stockpiles of gold ore that the first respondent had 'unlawfully' extracted therefrom.

The appellant further averred, that, on 16 February 2022, the first respondent recruited a mob of about twenty (20) men who forcibly removed it and its workers from the same portion of its mining claim from which the first respondent had been evicted barely two weeks earlier.

It is not disputed that the first respondent, thereafter, and despite the presence of the police to whom the appellant had appealed for assistance, loaded and removed around 400 truckloads of gold ore from the same stockpile that he had left on the disputed part of the appellant's claim upon his earlier eviction therefrom.

The estimation of the quantity of the gold ore carried away by the first respondent was given in a sworn statement deposed to by an eye witness to the event.

The appellant claims that the first respondent thereafter took the gold ore to a stamp mill.

In evicting the appellant and its workers from the same place that he had been evicted from two weeks earlier, the first respondent acted on the strength of a spoliation order granted against persons other than the appellant, on 16 February 2022, in case no HC190/2022.

The appellant's workers, who had earlier been served with a copy of the court order in question, correctly pointed out, firstly, that the order was issued in a matter in which the first respondent had not cited the appellant, but other parties unknown to it, and therefore having no connection to the appellant's claim.

Secondly, that the order related to the first respondent's mining claim Lion West 25, and not Tigress, the appellant's claim from which the first respondent had earlier been evicted.

The appellant submits further, that, the invasion of and eviction of its workers from the disputed part of Tigress, its claim, had been carried out without the assistance of the Deputy Sheriff of Zimbabwe, and so was a case of self-help by the first respondent.

It then emerged, that, unbeknown to the appellant, the first respondent, after being evicted from the appellant's claim, had successfully filed an urgent application for spoliation against parties other than the appellant.

It is also evident from the order in question, that it was granted in default, as those cited as the perpetrators did not appear in court.

The appellant wrote urgent letters of protest to the first respondent's legal practitioners, urging them to stop the first respondent from invading its claim under the guise of enforcing a spoliation order that in any case, did not cite the appellant as a respondent.

The appellant received a delayed response denying that the first respondent had despoiled the appellant of any part of its mining claim.

The first respondent echoed this denial in his defence to the spoliation proceedings in casu.

While not expressly disputing that the appellant had not been cited as a party to the proceedings in HC190/22, he denied that any violence had been perpetrated against the appellant's workers.

His contention was that all he had done was to obtain an order to evict persons who had violently taken over his own mining claims. Further, that the removal of such invaders from his claims was therefore properly orchestrated, the order in question having restored Lion West 25 claims into his possession.

The first respondent reiterated that he was still operating from the same mining location he had been working on since 2005.

The first respondent advanced the further defence, that, in any case, it was trite law that the holder of base metal registration certificates, such as the appellant, could not seek to interfere with the exclusive gold mining rights that he himself held. That being the case, he further contended, he had applied for a declaratur under case number HC373/2022, which was still pending before the court.

He did not articulate a response as to why he had acted on the basis of a court order not issued against the appellant, nor concerning its mining claim, to access its claim, and cart away the very same mining ore that he had been prevented from taking away upon his eviction from what was ruled to be a part of the appellant's mining claim.

In determining the merits of the matter, and after properly citing the law on spoliation, the court a quo found, that, the appellant had failed to satisfy the essential elements for the relief of the spoliation order that it sought.

This, so the court reasoned, was because the appellant and the first respondent had competing interests in the mining location in question, and, further, that the former had not shown by clear proof that it was forcibly dispossessed of the disputed part of the alleged mining claim.

The court found, that, the appellant held certificates to base minerals and had been extracting nickel on its own claims. On the other hand, the first respondent had exclusive gold mining rights and had been extracting gold ore at its mining location for close to 20 years.

The court found, further, that the parties mining rights were mutually exclusive.

Having opined that the matter concerning the determination of those mining rights was not before it, the court a quo noted that the first respondent was in any case armed with an extant order of the court (HC190/22) in terms of which Lion West 25 mining location was restored to him.

The court did not advert to the order, also extant and coincidentally issued by the very same judge, in terms of which the first respondent had earlier been evicted from the same claim from which he had evicted the appellant and its workers. Nor did the court comment on the propriety or otherwise of the situation where an order authorising the eviction of persons other than the appellant from the first respondent's mining claim, Lion West 25, was used to evict the appellant from its own claim, Tigress.

Be that as it may, the court ultimately found against the appellant and dismissed its application for a spoliation order.

Irked by the decision of the court a quo, the appellant noted the present appeal on the following grounds:

“1. The court a quo erred and contradicted itself in holding, that, the appellant had not established a clear right for the grant of a mandament van spolie on the basis that appellant and first respondent had competing interests in the mining location in question;

2. The court a quo erred and grossly misdirected itself in finding that appellant had failed to satisfy the elements for the grant of a mandament van spolie on the basis that appellant had not shown clear proof that it had been forcibly deprived of possession when the evidence presented showed a contrary position.

3. The court a quo erred grossly in failing to find that the appellant had been unlawfully or wrongfully deprived of possession when the evidence from the first respondent clearly confirmed that he had dispossessed the appellant by taking the law into his own hands.

4. The court a quo erred in law in holding that appellant had failed to show 'clear proof” that it had been despoiled when the law only requires a party to show proof on a balance of probabilities.

5. The court a quo erred in holding appellant had not shown a clear right for the relief sought on the basis that there was an extant order of court under HC190/22 restoring Lion West 25 mine to 1st respondent when in fact the spoliation complained of took place at a different location, being Tigress Mine, and the cited parties were distinct from appellant.

6. The court a quo erred and grossly misdirected itself in failing to acknowledge that there was an extant order of court under HC884/21 which had already determined the boundaries of appellant's mines and further caused the vacation of first respondent from the appellant's mine.”

There is no dispute between the parties, nor between the parties and the court a quo, as to the essential elements and import of an order of mandament van spolie. This is evidenced by the citation of apposite authorities by both parties and the court.

The point of departure, as is clear from the evidence, was the application of the principles of spoliation, established in the cited authorities, to the facts of the matter before the court.

The court a quo, in its judgment, appositely cited the following passage from the case of Diana Farm (Pvt) Ltd v Madondo N.O. & Anor 1998 (2) ZLR 410 (H)…,.;

“The law relating to the basis on which a mandament van spolie will be granted is well settled. In Davis v Davis 1990 (2) ZLR 136 (H) at 141, Adam J quoted with approval the following statement by Herbstein J in Kramer v Trustees Christian Coloured Vigilance Council, Grassy Park 1948 (1) SA 748 (C) at 753:

'…, two allegations must be proved, namely:

(a) That applicant was in peaceful and undisturbed possession of the property; and
(b) That the respondent deprived him of the possession forcibly or wrongfully against his consent.'…,.

The onus is on the applicant to prove two essential elements set out above. Past the second element is lack of consent.

In Botha & Anor v Barrett 1966 (2) ZLR 73 (S) at 79-80, it was said by Gubbay CJ:

'It is clear law that in order to obtain a spoliation order two allegations must be made and proved. These are;

(a) That the applicant was in peaceful and undisturbed possession of the property;
(b) That the respondent deprived him of the possession forcibly or wrongfully against his consent.'”

These excerpts need no elaboration as they clearly postulate the law on spoliation.

The facts of the matter that are not seriously disputed, are salient, or based on cogent documentary evidence comprising court orders, co-ordinates, maps, and sworn affidavits, are the following;

(i) Pursuant to a dispute between the parties concerning the coordinates of their adjacent mining claims, the court a quo, at the instance of the appellant, ordered the second respondent, together with the parties, to attend at the disputed claims and ascertain the parties respective co-ordinates (HC276/21).

(ii) The second respondent thereafter determined, that, the first respondent had indeed encroached onto the appellant's claim, Tigress, but his direction to the former to vacate the area encroached upon was defied. The first respondent continued extracting gold ore from the appellant's claim;

(iii) The appellant thereafter successfully obtained a final order interdicting the first respondent from further encroaching onto its location and mining ore from it (HC884/21). Execution of this order by the Deputy Sheriff resulted in the first respondent being evicted from the disputed part of the appellant's mining claim, leaving behind the stock piles of gold ore that it had mined from it;

(iv) The effect of the first respondent's eviction from Tigress was to restore the appellant to full possession thereof, including control of the gold ore previously extracted by the first respondent;

(v) Sixteen days later, on the basis of a spoliation order in HC190/22, obtained by the first respondent against persons unknown to the appellant, and concerning the first respondent's claim, Lion West 25, not Tigress, a gang of some 20 people forcefully dispossessed the appellant's workers of the part of the appellant's claim from which the first respondent had been evicted.

(vi) This included substantial amounts of the gold ore that was stockpiled at the location, which, on the instruction of the first respondent, was carted away in truck loads.

(vii) Efforts by the appellant to get the first respondent to desist from despoiling it thus yielded no results, leading to the unsuccessful filing by it of the urgent application in casu for spoliation against the first respondent.

From the facts of the matter as outlined, the sole issue arising for determination in this appeal, in the court's view, is the following:

The court will now consider this issue.

The appellant contends, in its heads of argument, that, the court a quo erred in three main respects:

(i) Firstly, although accepting that in spoliation proceedings the substantive rights of the parties are not relevant, since the court is only concerned with the restoration of the status quo ante, it nevertheless went on to improperly determine that there were “competing interests” in the mining location in question.

(ii) Secondly, that, on the basis of those competing interests, the court a quo held that the appellant had failed to establish a clear right to an order for spoliation.

(iii) Thirdly, that, the court erred in failing to acknowledge that there was an extant order of the same court under HC884/21 which had already determined the boundaries of the appellant's mining location, and, further, led to the eviction of the first respondent therefrom.

This court finds that there is merit in the appellant's contentions, as the following excerpts from the court's judgment make abundantly clear;

“Applicant alleges that the order was served on certain individuals not connected to it. I am mindful of the fact that the facts disclose competing claims over the mining locations of the respective parties. In spoliation proceedings the court does not concern itself and must not delve into the substantive rights of the parties. The simple point made is that there are competing interests. The applicant does not have a clear right to an order for a mandament van spolie. The alleged spoliation is denied.”...,.

Later in the same judgment, specifically the Disposition, the court stated as follows;

“The point was made that applicant holds certificates to base minerals and has been extracting nickel on its own. First respondent has been extracting gold ore on its mining location for close to 20 years. The mining rights of the parties are mutually exclusive....,.

To the extent that first respondent is armed with an extant order of this Court which has not been set aside, under case number HC190/22, wherein Lion West 25 mining location was restored to first respondent, Applicant has not established a clear right for an order for a mandament van spolie....,.”

The excerpts cited above, which in effect constitute the ratio decidendi of the judgment of the court a quo in dismissing the appellant's application for a spoliation order, serve to illuminate the court's misdirection in its determination of the matter before it.

On the basis of the court's own correct interpretation of the requisite law on spoliation, an applicant must prove;

(i) That the he or she applicant was in peaceful and undisturbed possession of the property; and

(ii) That the respondent deprived him or her of the possession forcibly or wrongfully against their/his consent.

Instead of applying the law to the proven facts of the case, the court did exactly as it had noted should not be done, that is, concern itself with the substantive rights of the parties.

Competing interests, in the court's view, go to the root of the dispute concerning the parties rights or lack thereof, in the subject of the dispute. Their existence may in fact properly found an application for a determination on the substantive rights of the parties to or in the subject matter of the dispute.

In other words, the type of application for a declaratur, that the first respondent submits it has already filed with the court in HC373/22.

The law, as cited above, is clear that spoliation is concerned only with restoring the status quo ante pending a determination on the merits of the main dispute between the parties.

The existence or otherwise of competing interests in the subject matter of the dispute was therefore, in casu, not relevant to a decision on whether or not spoliation had taken place.

In the same vein, the court delved into matters concerning the parties substantive rights by declaring that such rights were 'mutually exclusive.'

Based on the same reasoning, the court also held, that, as the first respondent had regained possession of his mining location pursuant to HC190/22, the appellant had not established a clear right to the spoliation order that it sought.

It is thus evident, that, in order to reach its determination in casu, the court a quo went beyond the parameters constituting just cause for a mandament van spolie.

Its pronouncements in this respect had the effect of pre-judging the application said to be pending before the same court, for a declaratur in HC373/22, concerning the parties substantive rights in the disputed mining claim.

Alternatively, the court may have improperly traversed and ruled on issues already determined in the proceedings leading to the final interdict issued against the second respondent in HC884/21. Not having been rescinded or appealed against, this order has final effect.

The court a quo did this in circumstances where the applicant had not, and properly so, founded its claim for spoliation on any other ground except that it had been wrongfully and forcibly despoiled of its peaceful and undisturbed possession of the mining claim in question.

It is trite that an application stands or falls on its founding affidavit.

The founding affidavit sets out the case that a respondent is called upon to answer.

The principle was aptly set out in Austerlands (Pvt) Ltd v Trade & Investment Bank Limited & Ors SC92-05. CHIDYAUSIKU CJ remarked…, as follows:

“The general rule that has been laid down in this regard is that an application stands or falls on the founding affidavit and the facts alleged in it. This is how it should be, because the founding affidavit informs the respondent of the case against the respondent that the respondent must meet. The founding affidavit sets out the facts which the respondent is called upon to affirm or deny.”

This is an appeal against the whole judgment of the High Court (the court a quo) in which it dismissed the appellant's urgent chamber application wherein she sought an interdict to prevent the first respondent (the President) from establishing a Tribunal in terms of section 187(3) of the Constitution of Zimbabwe 2013 ('the Constitution').

The appellant is a former judge of the High Court of Zimbabwe having been removed from office by the President on the recommendations of a Tribunal he set up.

What led to the intended establishment of the Tribunal were complaints relating to the appellant's performance as a judge.

In particular, the complaints related to her work output, which was deemed unsatisfactory and below the expected standard. One of the complaints was that the appellant issued a review judgment in respect of criminal proceedings without having properly perused the record of proceedings. As a consequence, she ordered the release, from prison, of a person who had previous convictions which militated against his release.

The position of the fourth respondent, Judicial Service Commission (JSC), was that the appellant's conduct, inter alia, amounted to gross misconduct and/or gross incompetence warranting the referral of the matter to the President in terms of section 187(3) of the Constitution.

It is common cause, that, by letter dated 15 September 2020, the appellant was advised by the Judicial Service Commission (JSC) that she was under investigation for impeachable acts of misconduct.

In response, the appellant's erstwhile legal practitioners, in a letter dated 30 September 2020, wrote back to the Judicial Service Commission (JSC) indicating that the appellant was not obliged to respond to that matter. Their view was that the JSC had no legal authority to deal with the complaints raised against the appellant and that the second respondent (Chief Justice) had no authority to direct the JSC to attend to any complaints against a sitting judge of the High Court.

Further, the letter highlighted, that, in any event, it was premature for the Judicial Service Commission (JSC) to invoke section 187(3) of the Constitution before compliance with the provisions of the Judicial Service (Code of Ethics) Regulations SI107 of 2012 (Code of Ethics).

Consequently, the Judicial Service Commission (JSC) resolved that the question of the appellant's removal from office ought to be investigated by a Tribunal appointed to inquire into the matter in terms of section 187(3) of the Constitution.

It advised the appellant of this resolution by letter dated 12 October 2020.

A day after receipt of the letter, the appellant, through her erstwhile legal practitioners, filed an urgent chamber application under case number HC6128/20 which she subsequently withdrew.

On 26 October 2020, the appellant, through her current legal practitioners, filed yet another application through the chamber book, seeking the Provisional Order which is the subject matter of this appeal. The Provisional Order sought reads as follows:

“INTERIM RELIEF GRANTED

IT IS ORDERED THAT:

1. Pending the final determination of the legality of the fourth respondent's decision to advise the first respondent to establish a Tribunal in the absence of due process, the first respondent be is hereby interdicted from setting up a Tribunal to investigate the question of removing the applicant from office in terms of section 187(3) of the Constitution.

2. In the event that a Tribunal referred to here above is already set up by the first respondent to investigate the applicant's conduct, then, the Tribunal's proceedings be stayed until the determination of the legality of the fourth respondent's decision to advise the first respondent to establish a Tribunal.

That the first, second, third, fourth, and fifth respondents show cause to this Honourable Court why a final order should not be granted in the following terms:

1. The fourth respondent's decision advise to the first respondent to set up a Tribunal to inquire into the question of whether the applicant should be removed as a judge be and is hereby declared unlawful and set aside (sic).

2. It is hereby declared that any disciplinary action against the applicant must be done in compliance with Statutory Instrument 107 of 2012 being the Judicial Services (Code of Ethics) Regulations, 2012 as read with the Constitution of Zimbabwe.”

At the commencement of the proceedings, the fourth respondent (Judicial Service Commission) raised five points in limine which the second and third respondents (Chief Justice and Judge President of the High Court) associated themselves with.

The appellant also raised a point in limine.

On the merits, the appellant contended that she managed to satisfy all the pre-requisites for the granting of an interim interdict. She argued that a proper construction of section 187(3) and section 190(4) of the Constitution, as well as Part III of the Judicial Service (Code of Ethics) Regulations, S.I.107 of 2012 (Code of Ethics) reveals that a judge accused of any act of misconduct is entitled to be subjected to the provisions of the latter enactment before any contemplated referral to the President can be done.

The appellant submitted, that, the interpretation given by the Judicial Service Commission (JSC) to section 187(3) of the Constitution, to the effect that it is empowered to refer such a matter directly to the President without resorting first to the Judicial Service (Code of Ethics) Regulations, SI107 of 2012 (Code of Ethics) will have the effect, inter alia, of not only eroding the independence of the judiciary but also negates the very notion of security of tenure of the judges, deprives the appellant of her right to administrative justice as enshrined in section 68 of the Constitution, results in the negation of her right to protection against unfair discrimination and equal protection of the law in that other judges accused of misconduct were subjected to the Code of Ethics, and, finally that the procedure adopted by the JSC attenuates the principle of certainty in that whereas some judges are first subjected to the Judicial Service (Code of Ethics) Regulations, others, like herself, do not get to enjoy that “two- rung” process.

The appellant further contended, that, the Judicial Service (Code of Ethics) Regulations, SI 107 of 2012 (Code of Ethics) was a direct consequence of section 190(4) of the Constitution.

She also contended, that, the gravity or nature of the alleged infraction was immaterial and irrelevant in so far as the procedure to be followed is concerned.

In her view, the provisions of the Judicial Service (Code of Ethics) Regulations (Code of Ethics) are prescriptive and no departure therefrom is permissible. No distinction is drawn, in terms of the legislation and as far as procedure is concerned, between the disciplinary action against judges in terms of the Code of Ethics vis a vis their removal from office as the latter is a species of the former.

The Judicial Service Commission (JSC), per contra, contended that it did no more than what section 187(3) of the Constitution entitled it to do.

It disputed the interpretation given to the said provision by the appellant and argued that impeachable conduct referred to the President does not have to be preceded by proceedings under the Judicial Service (Code of Ethics) Regulations, S.I. 107 of 2012 (Code of Ethics).

Furthermore, the respondents submitted that it was clear ex facie the record that the appellant was potentially guilty of gross misconduct, or, in the alternative, gross incompetence, and, as such, the existence of a prima facie case against her meant that the provisions of section 187(1)(a) and (b) as read with section 187(3) of the Constitution had been properly triggered by the Judicial Service Commission (JSC).

It was their submission, that, the aforementioned sections relate to impeachable conduct and thus it had a basis to refer the matter to the President.