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.

The court a quo, in a well-reasoned judgment, dismissed all the preliminary points raised by the Judicial Service Commission (JSC) and the appellant.

None of the parties appealed against the court a quo's dismissal of the points in limine.

It will therefore, not be necessary, for the determination of this matter, to relate to the findings of the court a quo on the preliminary points.

On the merits, the court a quo held that in so far as the procedure for dealing with judges accused of acts of misconduct is concerned, section 187(3) of the Constitution and Part III of the Judicial Service (Code of Ethics) Regulations (Code of Ethics) provide distinct dichotomous routes.

The court held, that, section 187 is principally aimed at investigating the suitability or otherwise of the imperiled judge in continuing to hold office in light of the alleged acts of misconduct and the Code of Ethics is mainly aimed at some other disciplinary measures short of removal from office.

It was the court's position, that, the applicability of the abovementioned provisions is a question that is dependent on the gravity of the offence.

It held that the use of the words “gross incompetence” and “gross misconduct” in section 187(3) of the Constitution, which words are absent in section 21 of the Code of Ethics, conveys the notion that it is reserved for indiscretions that are deemed serious. The court concluded, on this point, by finding that:

“The appellant's argument that no distinction can and should be drawn between 'disciplining' of judges and 'removal' of judges cannot be sustained because a reading of those sections clearly conveys such a distinction.”

The court also opined, that, the fact that the outcomes of the two procedures are different lends further credence to the existence of the dichotomy. Whereas, the outcome under section 187 of the Constitution is the possible removal of a judge from office, under the Code of Ethics, there are various possible outcomes.

The court a quo further held, that, if the procedure under the Code of Ethics was meant to be antecedent to the referral in terms of section 187(3) of the Constitution, then, either the Constitution or the Code of Ethics, or both, would have said so.

Sections 21, 24, 25, and 26 of the Code of Ethics make it clear that they are subject to the Constitution.

Further, the Sixth Preamble to the Code of Ethics clearly conveys the meaning that the Code of Ethics was intended to plug the lacuna obtaining before its promulgation, namely, that there was no formal complaints mechanism for conduct falling short of impeachable conduct.

The court also noted that subsection (3) of section 24 of the Code of Ethics makes it clear that nothing contained in it shall be construed as taking away or derogating from the powers bestowed upon a person to make a direct referral for impeachable conduct.

It further found, that, in any event, the Code of Ethics was promulgated in 2012, and, therefore, predates the current Constitution which came into effect a year later.

Concerning the allegations of bias, mala fides, and non-observance of the audi alteram partem rule levelled against the second, third, and fourth respondents (Chief Justice, Judge President of the High Court and the Judicial Service Commission) in handling her matter, the court a quo made a finding that the appellant rejected the invitation to respond to the complaints against her, and, thus, cannot claim that her right to be heard was violated.

To that end, the court a quo held that the appellant did not manage to establish a prima facie right let alone a clear one entitling her to be subjected to the Code of Ethics first before a referral as contemplated under section 187(3) of the Constitution.

In light of that, the court a quo held that it was not necessary to interrogate the remaining requirements for an interim interdict as the application before it did not establish a prima facie right.

In accordance with the above findings, the court a quo dismissed the application with costs.

Aggrieved by the decision of the court a quo, the appellant noted an appeal on the following grounds:

“1. The court a quo erred and misdirected itself in placing reliance on section 187(3) of the Constitution when the principle of subsidiarity required that reliance be on the Judicial Service (Code of Ethics) Regulations 2012 in taking any disciplinary measures against the appellant.

2. The court a quo erred and misdirected itself when it held that the Judicial Service (Code of Ethics) Regulations 2012 is aimed at some disciplinary measure other than the removal of a judge from office but also holding that the outcome of a disciplinary process instituted under the Judicial Service (Code of Ethics) Regulations, 2012 may result in a referral in terms of section 187(3) of the Constitution.

3. The court a quo erred and misdirected itself when it held that section 187(3) of the Constitution 2013 and Part III of the Judicial Service (Code of Ethics) Regulations 2012 provide for different procedures for dealing with the question of misconduct of a sitting judge of the High Court when such distinct procedures are not contained in the Constitution and the Judicial Service (Code of Ethics) Regulations 2012.

4. The court a quo erred and misdirected itself when it held that section 187(3) of the Constitution is reserved for transgressions that are deemed serious and that the Judicial Service (Code of Ethics) Regulations 2012 is reserved for minor transgression when such a distinction is not contained in either the Constitution, the Judicial Services Act, or the Judicial Service (Code of Ethics) Regulations 2012.”

She sought the following relief;

“1. That, the instant appeal succeeds with costs.

2. That, the judgment of the court a quo be set aside and the following be substituted in its place and stead;

'1. Pending the final determination of the legality of 4th respondent's decision to advise the 1st respondent to establish a tribunal in the absence of due process, the 1st respondent be and 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 hereabove is already set up by the 1st respondent to investigate the applicant's conduct, then, the Tribunal's proceedings be stayed until the determination of the legality of the 4th respondent's decision to advise the 1st respondent to establish a tribunal.

3. That this matter be and is hereby remitted to the High Court for continuation of proceedings on the return date.'”

In the concluding paragraph in her heads of argument, the appellant's position was as follows:

“In light of the above, the appellant prays that the appeal succeeds with costs. However, in light of the fact that the interim relief sought has been overtaken by events, it is prayed that the judgment of the court a quo be set aside and the matter be remitted back to the court a quo for determination of the final relief sought.”…,.

At the hearing of the appeal, the court asked counsel for the appellant to first address the court on the question whether the matter before the court had become moot first before addressing the merits of the matter.

The request was made on the basis, that, on the recommendation of the Judicial Service Commission (JSC), the President constituted a Tribunal to consider the removal of the appellant from office. The Tribunal has already conducted investigations and held an inquiry which consequently led to the removal of the appellant from the office of a judge.

Counsel for the appellant submitted, that, the issue of mootness did not arise in the present appeal.

It was her submission, that, when the President acted upon receipt of the referral, he did so in the belief that all due and proper processes had been followed as provided for in the Judicial Service (Code of Ethics) Regulations (Code of Ethics). If those processes were not followed, and the necessary transparent investigations carried out, the referral would have been invalid and everything that followed would be invalid. As such, the matter cannot be moot.

Notwithstanding her submissions that the matter was not moot, and despite the concession in the Heads of Argument, counsel for the appellant submitted that mootness is not a bar to hear a matter. The court retains a discretion to hear the merits of the appeal if it is in the interests of justice to do so. In casu, it was particularly important for the court to give guidelines for referral of a judge to the President.

For authority she relied on the case of Francis Bere v Judicial Service Commission & Ors SC01-22 where this Court proceeded to hear the appeal on the merits after having made a finding that the appeal was moot.

She further submitted, that, in that case, the provisions of the Code of Ethics had been followed. There had been participatory investigations by a panel of three judges which was set up in terms of the Code of Ethics.

On the merits, counsel for the appellant submitted, that, the Code of Ethics was not adhered to, therefore, all the proceedings thereafter were void.

It was her submission that in terms of the principle of subsidiarity, the appellant ought to have been subjected to the subsidiary legislation, therefore, the second respondent ought to have followed the procedure in the Code of Ethics before looking for recourse to the Constitution.

She further submitted, that, the second respondent did not conduct an investigation and failed to ensure that all processes before the referral were followed.

She also submitted, that, the court a quo erred in relying on the constitutional provisions on the investigative part of the proceedings. She maintained that if the legislature intended that there be two processes, one for serious infractions, and the other for non-serious infractions, it would have said so.

Finally, counsel made an application to amend the relief sought. She moved the court to grant an order declaring that the removal of the appellant from office was a nullity.

Per contra, counsel for the first and fifth respondents submitted that the relief the appellant was seeking in the instant appeal had been overtaken by events.

It was his submission that the Tribunal appointed by the President had duly carried out its Constitutional mandate resulting in the removal of the appellant from office. He further submitted that the appellant has taken those proceedings on review in the High Court. She has also filed an appeal in the Labour Court against the decision of the President to remove her from office.

Counsel for the second, third, and fourth respondents submitted that the test in respect of mootness is factual.

That the appellant was no longer a judge of the High Court is a fact. The question is not whether the matter is moot or not because on the facts the matter is moot.

The question should be whether this Court has a basis of exercising its discretion, in the interests of justice, to still hear the matter. He submitted that the following points militate against the exercise of that discretion.

(i) Firstly, the appellant voluntarily attended the Tribunal and fully participated in its enquiry. The Tribunal completed its work and the legal process of her removal from office has occurred. The appellant continues to seek legal remedies in other courts, namely, in the High Court and the Labour Court.

(ii) Secondly, when the appeal was filed, it was open to the appellant to seek an expedited hearing. He submitted that no effort was made to seek such an expedited hearing of the matter, as provided in the Rules, and secure the relief she seeks in her notice of appeal. As a result, this Court is unable to grant the relief sought by the appellant.

(iii) Thirdly, the Judicial Service Commission (JSC) advised the appellant of the complaints against her, provided her with the details of the complaints, and invited her to comment. The appellant, through her erstwhile legal practitioners, took a position that she had no obligation to address the complaint. As a result, the JSC resolved to refer the matter to the President in terms of section 187(3) of the Constitution. The actions of the JSC are unimpeachable. This Court cannot issue a declaratur nullifying the actions of the JSC. He concluded by submitting that there was nothing exceptional about this case warranting this Court exercising its discretion to hear this moot case.

On the merits, counsel submitted that the Code of Ethics makes it clear that it does not purport to supersede section 187(3) of the Constitution. The Code of Ethics recognises the supremacy of the Constitution, in particular sections 21, 24, 25 and 26 of the Code. He further submitted that the Code is limited to administrative complaints and impeachment processes are dealt with in terms of section 187(3) of the Constitution.

The appellant approached the court a quo in an urgent chamber application seeking the Provisional Order outlined above.

As is clear from the Provisional Order, the appellant sought, in the interim, an interdict preventing the President from setting up a Tribunal to investigate the removal of the appellant from office and in the event that it had already been set up, an order staying the proceedings of such Tribunal.

It is common cause that the Tribunal was set up, executed its mandate, and the appellant was removed from being a Judge of the High Court in terms of section 187(3) of the Constitution.

It is on this basis that the respondents take the position that the appeal before the court has been overtaken by events.

At this point in time, it is appropriate to deal with the doctrine of mootness as I believe it could be dispositive of this instant appeal.

A matter is moot if the dispute becomes academic by reason of changed circumstances, thus making the jurisdiction of the court unsustainable.

The issue was comprehensively dealt with by the Constitutional Court in Thokozani Khupe & Anor v Parliament of Zimbabwe & Ors CC20-19…, where it held as follows:

“A court may decline to exercise its jurisdiction over a matter because of the occurrence of events outside the record which terminate the controversy. The position of the law is that if the dispute becomes academic, by reason of changed circumstances, the Court's jurisdiction ceases and the case becomes moot…,.

The question of mootness is an important issue that the Court must take into account when faced with a dispute between parties. It is incumbent upon the Court to determine whether an application before it still presents a live dispute as between the parties.

The question of mootness of a dispute has featured repeatedly in this and other jurisdictions.

The position of the law is that a court hearing a matter will not readily accept an invitation to adjudicate on issues which are of 'such a nature that the decision sought will have no practical effect or result.'”

The above principle was followed in MDC & Ors v Mashavira & Ors SC56-20…, where it was stated:

“…,. A court may decline to exercise its jurisdiction over a matter because of the occurrence of events outside the record which terminate the controversy between the parties….,. [I]f the dispute becomes academic by reason of changed circumstances, the case becomes moot and the jurisdiction of the court is no longer sustainable.”

In ZIMSEC v Mukomeka and Anor SC10-20…, PATEL JA, at pp6-7, set out a two–stage approach in determining whether or not an appeal is moot. The learned Judge cited the Supreme Court of Canada, in Borowski v Canada (Attorney General) [1989] 1 SCR 342, where it was held that:

“It is first necessary to determine whether the requisite tangible and concrete dispute has disappeared rendering the issues academic. If so, it is then necessary to decide if the court should exercise its discretion to hear the case.”

In respect of the second stage of an inquiry on mootness, PATEL JA held, at p7, that:

“The next step in the analysis is to decide whether or not the court should exercise its discretion to hear the case. In that respect, courts are guided by the rationale and policy considerations underlying the doctrine of mootness: Borowski's case, supra.

The overriding consideration is whether or not it is in the interests of justice to hear a moot case. The factors to be taken into account in that regard were lucidly enunciated by the Constitutional Court of South Africa in Independent Electoral Commission v Langeberg Municipality 2001 (3) SA 925 (CC) at para 11:

'…,. Discretion must be exercised according to what the interests of justice require.

A pre-requisite for the exercise of the discretion is that any order which this Court may make will have some practical effect either on the parties or on others. Other factors that may be relevant will include the nature and extent of the practical effect that any possible order might have, the importance of the issue, its complexity, and the fullness or otherwise of the argument advanced.'”…,.

The doctrine is well developed in American law. A case is moot if it:

“…, seeks to get a judgment on a pretended controversy, when in reality there is none, or a decision in advance about a right before it has actually been asserted and contested, or a judgment upon some matter which, when rendered, for any reason, cannot have any practical effect upon a then existing controversy.”

See Ex Parte Steel 162 Fed. 694, 701 (N.D.Ala. 1908).

Furthermore, a case is moot:

“If the parties are not adverse, if the controversy is hypothetical, or if the judgment of the court, for some other reason cannot operate to grant any actual relief…, and the court is without power to grant a decision.”

See Diamond, Sidney A. “Federal Jurisdiction to Decide Moot Cases” University of Pennsylvania Law Review Vol. 94…,.

Barron and Dienes Barron J (eds) Barron J and Dienes T (eds) Constitutional Law (West St Paul, Min 1995) put it succinctly when they observed that "a case or controversy requires present flesh and blood dispute that the courts can resolve."

In South African Jurisprudence, mootness is when a matter “no longer presents an existing or live controversy”: see National Coalition for Gay and Lesbian Equality & Ors v Minister of Home Affairs 2000 (2) SA 1 (CC)…,.

Section 16(2)(a)(i) of the South African Supreme Court Act provides as follows:

“(i) When, at the hearing of an appeal, the issues are of such a nature that the decision sought will have no practical effect or result, the appeal may be dismissed on this ground alone.”

It can be gathered from the above authorities that mootness essentially restricts the court's jurisdiction to hear or determine a matter, particularly if giving the judgment in that matter will produce no tangible result but merely an opinion. It is based on the notion that judicial resources ought to be utilised efficiently and not dedicated to advisory opinions.

However, the fact that a matter is moot is not an absolute bar for the court to decide an appeal where the interests of justice so require.

An analysis of decisions in which Zimbabwean Courts proceeded to determine matters despite the fact that they had become moot exposes the application of the foregoing principles.

In the case of Stevenson v Minister of Local Government & Ors 2002 (1) ZLR 498 (S)…, the court heard a matter that was moot for the purpose of determining the party liable to pay costs. SANDURA JA held as follows:

“In the circumstances, the learned judge in the court a quo should have dealt with the issues raised in the appellant's application.

However, it is pertinent to note that after the appeal in this matter had been noted, mayoral and council elections for Harare were held in March 2002. It follows, therefore, that the reason for the appellant's application has now fallen away.

Nevertheless, a determination of the issues raised in the application is essential for the purpose of determining which party should pay the costs of the application in the court a quo….,.”…,.

See also Francis Bere v Judicial Service Commission & Ors SC01-22.

The South African courts have attempted to outline factors to be considered when a court wishes to break through the veil of mootness to decide an appeal that is moot for justice's sake. In VINPRO NPC v The President of the Republic of South Africa & Ors (741/2021) [2021] ZAWHCHC 149 the court opined as follows:

“[50] Moreover, this Court has proffered further factors that ought to be considered when determining whether it is in the interests of justice to hear a moot matter. These include -

(a) Whether any order which it may make will have some practical effect either on the parties or on others;

(b) The nature and extent of the practical effect that any possible order might have;

(c) The importance of the issue;

(d) The complexity of the issue;

(e) The fullness or otherwise of the arguments advanced; and

(f) Resolving the disputes between different courts.”

In casu, under the first consideration in the test for mootness, it is apparent from the record that the appellant sought an order in the court a quo interdicting the President from establishing a Tribunal to investigate the question of removing her from office in terms of section 187(3) of the Constitution, and a stay of the Tribunal proceedings in the event that it had already been set up, pending the determination of the legality of the Judicial Service Commission's decision to advise the President to establish a Tribunal.

It is common cause that the Tribunal was set up and its proceedings were conducted and concluded - with the full participation of the appellant.

At this point, the issue of the Judicial Service Commission's referral of the matter to the President, the setting up of the Tribunal by the President, and the legality thereof has undoubtedly been overtaken by events.

The judgment, if rendered in favour of the appellant 'cannot operate to grant any actual relief' to her. There is no longer any 'present flesh and blood dispute that the court can resolve'.

In light of the above, it is my position that the appeal before this court is now moot.

Additionally, the fact that the appellant belatedly sought to amend the relief sought confirms that the matter is indeed moot and the relief sought no more than a brutum fulmen.

It must have been clear to her that it would not be competent for this Court to grant the relief she sought in her Notice of Appeal as conceded in the last paragraph of her Heads of Argument. The tangible and concrete dispute between the parties had disappeared by the time the appeal was heard rendering the issues academic.

This leads to the next stage of enquiry as highlighted in ZIMSEC v Mukomeka and Anor SC10-20 to the effect, that, where a matter is found to be moot, the overriding consideration is whether or not it is in the interests of justice to hear a moot case.

As alluded to above, the appellant, at the eleventh hour, applied to amend the relief sought in her prayer amidst queries raised by this Court as to whether it was competent for the court to grant the relief sought by the appellant in her Notice of Appeal.

The Court enjoined the appellant to file supplementary heads in motivating why the application should be granted. The court also enjoined the respondents to file supplementary heads of argument in respect of the application to amend the prayer by the appellant.

It is to be commended that the supplementary heads of argument were promptly filed.

It is the appellant's submission, that, in terms of section 22(1)(a) of the Supreme Court Act, this Court is empowered to grant an amended relief sought provided that the relief sought is underpinned by the case made by the appellant. Further, she submitted that this Court enjoys wide powers which include granting a declaratory order.

She prayed that the appeal succeeds in terms of the amended draft order motivated during arguments which read as follows:

“The appellant prays that this Honourable Court declares that her referral to the President in terms of section 187(3) of the Constitution, without first subjecting her to the provisions of the SI107 of 2012, was unlawful hence null and void.”…,.

Counsel for the second, third, and fourth respondents submitted that the declaratur which the appellant seeks is not clear as it is couched inelegantly and offends the mandatory provisions of the Rules that require proper drafting of pleadings.

He further submitted, that, the appellant is trying to surreptitiously seek a declaratory order whereas in the court a quo she sought an interdict. He submitted that the court a quo did not deal with the question of a declaratur, and, in the circumstances it cannot be the subject matter of the instant appeal.

In that regard, he prayed that the application to amend be dismissed with costs.

I have deliberately underlined the word “declares” in the amendment sought. This is so for the following reasons:

(i) Firstly, the appellant is raising an issue that was not before the court a quo. The proceedings a quo related to an application for an interdict preventing the President from appointing a Tribunal and an order staying the work of such a Tribunal if it had already been appointed.

It is settled that this Court is not a court of first instance especially in matters relating to granting a declaratur.

In Guwa & Anor v Willoughbys Investments (Pvt) Ltd 2009 (1) ZLR 368 (S)…, this Court held that:

“It is clear from these provisions that the Supreme Court is a creature of Statute and that it derives its jurisdiction specifically from the Supreme Court Act and other legislative provisions. In other words, although it is the highest court in the land, its powers are regulated strictly by Statute. It is not a Court of first instance. It has no original jurisdiction but only appellate, since it was created by statute purely as a Court of Appeal.

Nowhere in the Supreme Court Act, nor in the Rules of the Court, is the Supreme Court given jurisdiction to entertain, in the first instance, an application for a declaratur. Whilst in terms of section 25 of the Supreme Court Act every Judge of the Supreme Court shall have the same review power and authority as are vested in the High Court to review proceedings, no person has the right to institute any review in the first instance before the Supreme Court.”

Similarly, in Mutasa & Anor v The Registrar of the Supreme Court & Ors 2018 (1) ZLR 461 (S) it was held that…,:

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

Counsel for the appellant's argument, that the appellant sought a declaratur in the final relief and therefore the issue was ventilated before the court a quo, is untenable.

The judgment of the court a quo is clear that it did not relate to the requirements of a declaratur but to those of an interim interdict.

It is thus my view, that, the appellant seeks to make this Court a second court of first instance.

The case before the court a quo was one for an interim interdict, it examined the requirements of such interdict. It did not deal with the question of a declaratur at all, and, in the circumstances, it cannot be the subject matter of this appeal.

I agree with counsel for the second, third, and fourth respondents, that, in making the application to amend the relief sought, the appellant is trying to surreptitiously seek a declaratory order from this Court.

The above authorities are categoric that this Court cannot grant a declaratur in the first instance.

In my view, what the appellant seeks cannot be termed an amendment, but, rather, an abandonment of the original relief and the replacement or substitution with a totally different and new relief.

The application to amend the relief sought cannot therefore succeed.

This is an application for spoliation.

The first respondent has opposed the application and raised several preliminary objections, which, if sustained, would be dispositive of the matter.

The order sought by the applicant is in the following terms:

“IT IS ORDERED THAT:

1. The first respondent and all persons claiming occupation, rights, title and interest through him, shall remove or cause the removal of themselves and all such persons occupying the mining claims Tigress held under registration number 10098BM and as identified by the 2nd respondent.

2. Failing such removal, the Sheriff of this Honourable Court (5th respondent) be and is hereby authorised and directed to evict 1st respondent and all persons claiming occupation, rights, title and interest through and under him from the mining claim being Tigress number 10098BM as identified by the 2nd respondent.

3. 2nd respondent shall identify the mining location Tigress number 10098BM for 5th respondent to enable him to serve and execute this order on the correct mining location.

4. The 3rd and 4th respondents (Officer in Charge Zimbabwe Republic Police, Filabusi and Officer Commanding Zimbabwe Republic Police, Matabeleland South) be and are hereby directed to provide an escort and any other physical assistance necessary for the 5th respondent (Sheriff of Zimbabwe) during the service and execution of this order.

5. The 1st respondent and all those claiming with or through them are barred from carrying out any mining activities on the mining claim Tigress registration number 10098BM.

6. The 1st respondent is ordered to pay the costs of suit on an attorney and client scale.”

The applicant and the first respondent are engaged in litigation in various cases under case numbers HC261/21; HC274/21; HC826/21; HC884/21; HC1024/21; HC127/22; HC127/22; HC131/22; HC190/22; HC373/22; HC325/22.

In the midst of this flurry of cases filed in this court, the applicants have filed this Urgent Chamber Application for a spoliation order.

The first respondent has been conducting mining operations on claims situate in Insiza District, Matebeleland South, on claims known as Lion West 25, registration number 9133BM and extracting gold ore from these claims since 2005 when the claim was registered with the Ministry of Mines.

It is not disputed that the applicant is the holder of mining claims known as Tigress, registration number 10098BM.

The two mining locations are adjacent to each other.

Sometime in February 2022 a dispute arose between the applicant and the first respondent. The first respondent insisted that he was carrying out mining operations on his mining claims, Lion West 25 for the past 17 years without interruption and that there was no encroachment. On 8 March 2022, the second respondent wrote to the parties indicating that they had adjudicated on the dispute and made a finding that the first respondent had encroached onto the applicant's mining claims.

The first respondent has taken the matter to this Honourable Court.

The second respondent advised that the applicant should seek an interdict from this court since the matter was pending in this court.

Under case number HC325/22, the applicant has instituted contempt of court proceedings in respect of an earlier order of this court. The matter is still pending.

Under case number HC373/22, the first respondent instituted a Court Application for a Declaratory Order seeking an order declaring that its title to Lion West 25 is valid and lawful. This matter is pending in this court.

The applicant contends, that, he was lawfully handed possession of the mining claims in issue by the Deputy Sheriff on 1 February 2022. The applicant further contends, that, on 16 February 2022, the first respondent recruited a mob of 15 to 20 individuals who forcibly removed the applicant from its mining claims.

This version is disputed by the first respondent who contends, that, under case number HC190/2022 he obtained an order to evict persons who had violently taken over his mining claims.

The first respondent contends, that, he carried out the removal of invaders on his claims in accordance with a court order obtained in this court.

The first respondent denies that he dispossesed the applicant's employees of the (Tigress) mining claims.

In response to the specific allegations of spoliation, the first respondent denies that he despoiled the applicant and contends that he is still operating from the same mining location he has been working on since 2005.

In any event, the first respondent avers that it is trite law that a holder of Base metal registration certificates, such as the applicant, cannot seek to interfere with exclusive gold mining rights held by the first respondent. In that regard, the first respondent points out that he has filed an application for a declaratur which is currently pending under case number HC373/2022.

Before dealing with the merits of the application, it is necessary to address the preliminary points raised by the first respondent.

The first respondent contends, that, it is procedurally incorrect for the applicant, who has instituted contempt proceedings under case number HC325/22, which are pending before this court, to turn around in the same breath and allege and pursue a spoliation order.

The first respondent argues, that, the correct procedure in the circumstances would have been to file an Urgent Chamber Application to have the proceedings heard on an urgent basis instead of filing an Urgent Chamber Application for a Spoliation order.

In response, the applicant states that there is nothing precluding it from proceeding with spoliation proceedings. It is argued that the proceedings are mutually exclusive.

It is my view, that, whilst there may be nothing preventing the applicants from proceeding with contempt of court proceedings at the same time pursuing an order for spoliation, this seems to me to be inundating this court with a multiplicity of actions.

The applicant claims that this matter is urgent.

It has not escaped my notice that contempt of court proceedings were initiated in this court on 23 February 2022. The first respondent filed its Notice of Opposition on 25 February 2022.

The applicant has not prosecuted that matter to date.

On 14 March 2022, more than two weeks later, this urgent application for spoliation was filed.

No explanation is given by the applicant why the contempt of court proceedings were not pursued. This does not render the current proceedings a nullity. The court does not, however, encourage the filing of multiple actions concerning the same dispute.

I would not uphold this point in limine....,.

The first respondent contends, that, the order sought by the applicant is incompetent in view of the fact that it seeks to smuggle in a dispute through an order couched as one for spoliation by roping in the second respondent (Provincial Mining Director, Matabeleland South) to identify the mining location, Tigress registration number 10098BM for the fifth respondent (Sheriff of Zimbabwe) to enable him to serve and execute his order on the correct mining location.

The first respondent notes that the matters filed of record and pending before this court, HC373/22 and HC325/22, are premised on the need for the proper identification of the correct mining locations of the disputed mining claims together with the disputed mining rights of the parties concerned being determined.

The first respondent avers that the premature pointing out of mining locations renders the pending matters filed of record brutun fulmen.

The applicant denies that the order sought is incompetent.

Further, the applicant alleges that the second respondent (Provincial Mining Director, Matabeleland South) has already determined the boundaries of the respective mining locations.

The applicant avers that the first respondent has already invaded the applicant's mining location.

There can be no doubt that the order sought in paragraph 3 is evidently incompetent for a number of reasons:

The first respondent maintains, that, he is operating from his mining location at Lion West 25. He has never conceded that he is on Tigress Mine. The pointing out of the boundaries, as proposed by the applicants, gives credence to the fact that the boundaries of the respective mining locations has not been properly established.

There is merit in the point in limine.

The basis of an order for a mandamante van spolie is to restore the applicant to property that has been despoiled. To suggest, in paragraph 3 of the Draft order, that “2nd respondent shall identify the mining location known as Tigress number 10098BM for 5th respondent to enable him to serve and execute the order on the correct mining location” leads credence to the inference that the mining claim to be restored to the applicant is not easily ascertained.

The first respondent's assertion is that he is working on his correct mining location.

If the Draft Order suggests, as it does in paragraph 3, that the second respondent must point out the “correct” mining location, the competency of the order for spoliation in those circumstances is put into issue.

To that extent, the point in limine raised by the first respondent does have merit and is upheld.

This does not, however, dispose of the matter....,.

The first respondent avers, that, the order sought by the applicant is fatally defective and cannot be enforced in view of the fact, that, it is established law that a holder of a Base Metal Registration Certificate, such as the applicant, who holds mining title in Tigress Registration number 10098BM, cannot seek to interfere with existing gold mining rights held by the first respondent.

The first respondent alleges that the rights enjoyed by the applicant and the first respondent, in respect of their registration certificates, are mutually exclusive to the parties.

The first respondent contends, that, the applicant has no authority or recognisable legal mining rights to mine and extract gold from the first respondent's mining location.

The first respondent forcefully argues, that, the order sought is fatally defective as it seeks the eviction of a gold miner and the elevation of base metal miners over exclusive gold mining rights.

The first respondent avers that this is a contentious matter in which the court is tasked with making a finding under case number HC373/22.

The applicant's response to this point in limine is that, in spoliation proceedings, the court does not concern itself with the substantive rights of the parties. Spoliation proceedings are concerned with the restoration of the parties to the status quo ante: see Blue Rangers Estates (Pvt) Ltd v Muduvuri SC29-09.

This point in limine was not well taken as it seeks to drag the court into the substantive issues to be decided by the court at a future date.

A judgment cannot be granted on the basis of a claim and cause of action that ceased to exist.

Lastly, on the unavailability of provisions of the High Court Rules to the applicants, the respondents relied, again, on the judgment of MANGOTA J which I dealt with extensively above.

I found no merit in such submissions and the points in limine are dismissed.

On 6 April 2022, after hearing a contested urgent application for an interdict made by the first respondent, the High Court (“the court a quo”) granted a final order in the following terms:

“Accordingly, it is ordered as follows:

(a) Pending the finalisation of the applicant's claim under case number HC5227/21 the first respondent is hereby interdicted from dealing in any manner with the immovable property known as number 2 Glynde Avenue, Mabelreign, Harare held under Deed of Transfer number 2120/2017 registered in the name of the first respondent that may cause encumbrances or dispose by selling it to any third party.

(b) The first respondent be and is hereby ordered and directed not to alienate or remove any such improvement made on the property specified in para (a) until the matter under case number HC5227/21 is finalised.

(c) The second respondent, pending the finalisation of the applicant's claim under case number HC5227/21, be and is hereby ordered and directed to place a caveat on the property specified in para (a).

(c) There shall be no order as to costs.”

This appeal is against the whole judgment of the court a quo.

The appellant, a female adult, and the first respondent, a male adult, entered into an unregistered customary union in August 2015 and were delighted to commence living together as husband and wife about October 2015.

During the subsistence of their customary union, they acquired both movable and immovable property, including House Number 2 Glynde Avenue, Mabelreign, Harare which is solely registered in the name of the appellant.

The mortgage finance sourced to acquire the house was secured in the appellant's name and in her account.

The first respondent however alleges, with significant assertiveness, that he also directly contributed to the acquisition of the property and the repayment of the loan. He further asserts that he added improvements to the house which enhanced its value.

The customary union broke down in February 2021.

As a result, the first respondent sued a summons against the appellant in the court a quo, under case number HC5227/21, seeking an order for the division of the parties property acquired during the subsistence of the customary union.

In his declaration, the first respondent pleaded, in part, thus:

“3. The plaintiff and the defendant entered into an unregistered customary union on or around the first of August 2015; with the traditional rites having been done, they began to reside together as husband and wife from November 2015. In terms of the tacit universal partnership;

(a) Each party worked independently and contributed individually to the acquisition of the property, both movable and immovable, for the joint ownership of the union.

(b)…,.

(c)…,.

4. Pursuant to the establishment of a tacit universal partnership by the parties, the parties acquired both movable and immovable property as shall appear in Annexure A attached.

5….,.

6….,.

7….,.

8. Pursuant to the universal tacit partnership, the plaintiff went on to further contribute by way of making improvements to the property, being complete renovation of the kitchen, painting the interior and exterior of the main house, gate, garage and external rooms, re-wiring of the whole house electrical system, plumbing of the kitchen, bathroom, servant's quarters, storage/laundry room, installation of solar geyser, water tank and pump, installation of the security system and planting of lawn around the yard, installation of a back-up power solution on the main gate, which renovations cost a total of USD16,000…, thereby increasing the market value of the said property as well as making it habitable for the parties.”…,.

The appellant entered appearance to defend the claim and filed a plea.

As the matter was pending before the court a quo, the parties engaged each other through correspondence as they bickered over the distribution of the immovable property, among other issues.

It was during the course of their engagement that the appellant admitted part of the averments made by the first respondent.

By letter dated 10 December 2021, to the first respondent's legal practitioners, the appellant's legal practitioner stated:

“RE: ANDREW ZIGORA v SAMANTHA NHENDE CASE NO. HC5227/21

Reference is made to the above and to your letter dated 26th November 2021, which we received on 30th of November 2021, the contents of which have been noted….,.

Further, our client disputes yours claim for improvements amounting to US$16,000.

We are advised that your client only contributed to the painting of the house and some kitchen renovations of which our client is prepared to offer US$2,500. Our client further advises that she believes that the other improvements, including solar system, alarm system, electric gate motor, and water tank are fixtures and fittings which can be removed and the plaintiff can collect same….,.“…,.

According to the first respondent, in February 2022, he got to know that the appellant intended to sell the immovable property forming the subject of the pending summons action.

His concerns were registered in a letter addressed to the appellant's legal practitioners which drew the attention of the appellant and her legal practitioner to the fact that he had become aware that she was sourcing agents and prospective buyers.

The letter entreated the appellant to assure the first respondent that the property was safe.

In response, the appellant did not give any such assurances. In fact, the letter written in response thereto was vague and unhelpful.

In the wake of those developments, the first respondent moved swiftly, filing an urgent chamber application on 24 February 2022.

In his founding affidavit, the first respondent attested to a reasonable apprehension that the appellant would dispose of the house, given that it is registered in her name only, in order to defeat his claim for division of the universal partnership property. He implored the court a quo to grant him protection from “the whims and decisions” of the appellant.

To the application, the first respondent attached a draft provisional order, the grant of which was motivated. It reads in relevant part:

“TERMS OF FINAL ORDER SOUGHT

1. Pending the finalisation of the applicant's claim under case number HC5227/21 the first respondent is hereby interdicted from dealing in any manner with the immovable property that may cause encumbrances and/or dispose by selling it to any third party.

2. The first respondent be and is hereby ordered and directed not to alienate or remove any such improvements made on the immovable property until the matter under case number HC5227/21 is finalised.

3. First respondent shall pay costs of suit on an attorney-client scale only if it (sic) opposes this application.

The second respondent, pending the finalisation of the applicant's claim under case number HC5227/21, be and is hereby ordered and directed to place a caveat on the immovable property, mainly, Stand Number 2 Glynde Avenue, Mabelreign, Harare held under Deed of Transfer number 2120/2017 registered in the name of Samantha Nhende, the first respondent herein.”

The application was strenuously opposed by the appellant who raised quite a substantial number of points in limine.

The appellant protested that the matter was not urgent; that the first respondent had not established a causa, having failed to plead the choice of law; and, finally that the relief sought was incompetent.

On the merits, the appellant argued that the first respondent had not presented any evidence to show that she intended to dispose of the house.

She rounded off by submitting that she, as the registered owner of the house, had exclusive rights over it unlike the first respondent who could not possibly claim any share to it.

The court a quo found, that, the application passed the test of urgency.

Regarding the objection that the application did not disclose a cause of action as it sought to import general law into a dispute governed by customary law, the court a quo found that the issue was not before it.

In the court a quo's view, that was an issue to be resolved when determining the claim for division of property in HC5227/21. The court a quo refused to be drawn to “pre-empt the dispute” in the main action.

The objection relating to the competency of the relief sought was also dismissed on the basis that the court had the discretion to grant an order that was competent and established by the case before it.

On the merits of the application, the court a quo found that indeed the first respondent was labouring under a reasonable apprehension that the appellant may dispose of the house before the finalization of the main claim. It took the view, that, those fears were bolstered by the unsatisfactory response to his enquiries given by the appellant.

As already stated, the court a quo granted final relief in favour of the first respondent. In doing so, it reasoned:

“With respect to the nature of the relief, there is no need of having terms of final order since there is no need for the return day. The provisional order has its final sunset clause being the finalisation of the matter under case number HC5227/21. Once the dispute for the division of the property has been finalised, the caveat will be no longer necessary.”

It is significant to note, that, the relief that the court a quo granted is what was set out both in the terms of the final order sought and the interim relief of the draft provisional order.

The appellant was discontented by the judgment of the court a quo. She noted an appeal to this Court on the following grounds:

“1. The court a quo grossly erred at law in and misdirected itself in fact in granting an interdict (sic) as regards appellant's immovable property in circumstances where there was no evidence or at all that the appellant intended to alienate the property.

2. The court a quo erred at law in granting an interdict where the requirements of such relief had not been met, particularly where a clear right had not been established.

3. The court a quo grossly misdirected itself and erred in failing to consider that the issue of the choice of law was crucial in the determination of whether or not there was a cause of action against the appellant.

4. The court a quo grossly misdirected itself in fact in ordering appellant not to remove improvements on the property where no evidence or indications of the said improvements were made or proved by the respondent.

5. The court a quo misdirected itself in fact and subsequently erred at law in granting a final order in an urgent chamber application where an interim relief had been sought thereby denying the appellant the opportunity to make representations on the return date.”

At the hearing of the appeal, both counsel were in agreement that the grounds of appeal raise only three issues for determination in this appeal. These are:

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

2. Whether the court a quo erred in refusing to determine the choice of law question; and

3. Whether the court a quo was correct in granting a final order.

Counsel for the appellant adopted a three-pronged approach in motivating the appeal:

(i) Firstly, on the choice of law, he submitted that the first respondent ought to have pleaded the application of general law for him to sustain a valid cause of action. For that reason, so it was argued, the court a quo fell into error by proceeding to determine the application despite the first respondent's failure to plead a choice of law.

(ii) On the evidence placed before the court a quo, counsel for the appellant submitted, that, it did not sustain the relief that was sought.

In counsel's view, the first respondent did not substantiate his suspicion that the appellant intended to dispose of the house. In that regard, the requirements for the grant of a final interdict were not satisfied, and, as such, the application should have been dismissed.

(iii) Finally, counsel for the appellant strongly submitted, that, the court a quo misdirected itself in mero motu granting a final relief where the application had been one for interim relief and a case was not made for the grant of a final one. Counsel for the appellant insisted, that, by so doing, the court a quo also deprived the appellant the opportunity to contest the terms of the final order sought on the return date.

Counsel urged the court to intervene, bearing in mind the irrational manner in which the court a quo exercised its discretion to grant final relief.

Counsel for the first respondent defended the judgment of the court a quo.

In his view, the fact that there was a pending matter between the parties, in which the first respondent lay a claim to the house, which claim would be prejudiced if the status quo ante was not preserved, meant that a good case was made for the grant of an interdict. The choice of law argument was not before the court a quo and could not detract from the need to grant an interdict.

Counsel for the first respondent took the view, that, the moment the appellant failed to give the first respondent assurance that the house would not be disposed of, a basis for the issuance of an interdict arose because there was a reasonable apprehension of irreparable harm or prejudice.

Regarding the appellant's complaint against the grant of a final order, counsel for the first respondent submitted, that, there is room for the court a quo to grant it in the exercise of its discretion. This is so because such final relief is granted in spoliation proceedings. As such, nothing could stop the court a quo from granting it in the present case....,.

Counsel for the appellant dedicated a lot of time and energy arguing on choice of law. In the process, he clouded his view of that which the court a quo was required to determine.

The application of Customary Law is regulated by section 3(1) of the Customary Law and Local Courts Act [Chapter 7:05]. It provides:

“3. Application of Customary Law

(1) Subject to this Act and any other enactment, unless the justice of the case otherwise requires -

(a) Customary law shall apply in any civil case where -

(i) The parties have expressly agreed that it should apply; or

(ii) Regard being had to the nature of the case and the surrounding circumstances, it appears that the parties have agreed it should apply; or

(iii) Regard being had to the nature of the case and the surrounding circumstances, it appears just and proper that it should apply;

(b) The general law of Zimbabwe shall apply in all other cases.”

Where any one of the factors set out in subsection (1)(a) of section 3 of the Customary Law and Local Courts Act is present, customary law applies.

It is however settled, that, where customary law is incapable of providing an avenue for the resolution of a dispute, rights, or obligations, general law will apply: see Chiwenga v Mubaiwa SC86-20…,.

I discuss this aspect for purposes of completeness only because the court a quo declined to be drawn to determine it.

The question whether the court a quo failed to relate to that issue, or that the first respondent did not establish a cause of action by not pleading it, was of no moment at all for two reasons:

(i) Firstly, the first respondent pleaded a general law concept of a tacit universal partnership, which I have said was enough to establish a prima facie right deserving protection by the court.

(ii) Secondly, what was before the court a quo was an application for an interdict pendente lite - that was the causa.

The court a quo cannot be faulted for refusing to be drawn to the aspect of choice of law because an interdict pendente lite is incapable of resolution through customary law. The appellant is at liberty to pursue that argument in the main action, if he is so inclined.

There is therefore no merit in the third ground of appeal.

In Mashonaland Tobacco Company (Private) Ltd v Mahem Farms (Pvt) Ltd & Another SC152-20..., this Court summed up the general principle regarding the necessity of pleading a cause of action in these words:

“As a general rule, judgment cannot be granted on a cause of action that is not pleaded. The pleadings must clearly set out the precise parameters of the issues contested between the parties. Thus, in the Namibian case of Courtney-Clarke v Bassingthwaighte 1991 (1) SA 684 (Nm), at 698, it was explained that:

'…, there is no precedent or principle allowing a court to give judgment in favour of a party on a cause of action never pleaded, alternatively, there is no authority for ignoring the pleadings…, and giving judgment in favour of a plaintiff on a cause of action never pleaded. In such a case, the least a party can do if he requires a substitution of or amendment of his cause of action, is to apply for an amendment.'

In Medlog Zimbabwe (Pvt) Ltd v Cost Benefit Holding (Pvt) Ltd 2018 (1) ZLR 449 (S) at 455G, this Court aptly stated the position as follows:

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

And, at page 456E-G that:

'25.6 In Jowell v Bramwell-Jones & Ors 1998 (1) SA 836 (W) at 898, the court cited with approval the following remarks by Jacob and Goldrein, Pleadings: Principles and Practice at pp 8-9:

'As the parties are adversaries, it is left to each of them to formulate his case in his own way, subject to the basic rules of pleadings…,. For the sake of certainty and finality, each party is bound by his own pleading and cannot be allowed to raise a different or fresh case without due amendment properly made.

Each party thus knows the case he has to meet and cannot be taken by surprise at the trial.

The court itself is as much bound by the pleadings of the parties as they are themselves. It is not part of the function of the court to enter upon any inquiry into the case before it other than to adjudicate upon the specific matters in dispute which the parties themselves have raised by their pleadings.

Indeed, the court would be acting contrary to its own character and nature if it were to pronounce upon any claim or defence not made by the parties.

To do so would be to enter the realm of speculation….,.

The court does not provide its own terms of reference or conduct its own inquiry into the merits of the case, but accepts and acts upon the terms of reference which the parties have chosen and specified in their pleadings.

In the adversary system of litigation, therefore, it is the parties themselves who set the agenda for the trial by their pleadings and neither party can complain if the agenda is strictly adhered to.'”…,.

See also DD Transport (Pvt) Ltd v Abbot 1988 (2) ZLR 92 (S)...,.; City of Harare v Everisto Mungate SC86-22.

When the respondent issued summons, the appellant was in arrears in its rental obligations. The default was admitted, and, the evidence on record is that the last instalment on the arrears was paid on 9 July 2012.

Thus, the summons claiming arrear rentals was justified.

This is an Urgent Chamber Application wherein the applicant seeks the following relief:

“1. The 2nd respondent and all persons claiming occupation through it shall remove or cause the removal of themselves and all such persons occupying the mining claim, being Valentine 56 held under registration number GA 2786.

2. Failing such removal, the Sheriff of this Honourable Court be and is hereby authorised and directed to evict the 2nd respondent and all persons claiming through and under them from the mining claim being Valentine 56 held under registration number GA 2786.

3. The 3rd respondent be and is hereby directed to provide an escort, and any other physical assistance necessary for the Sheriff, during the service and execution of this order.

4. The 2nd respondent and all persons claiming through and under him are interdicted and barred from continuing to carry out mining activities on the mining claim being Valentine 56 held under registration number GA 2786.

5. The 2nd respondent shall pay the costs of this application on the legal practitioner and client scale.”

It is important to give a brief background of how this matter, being an Urgent Chamber Application, took almost a month and a half to be heard.

The background is this:

The matter was placed before me on Tuesday 29 June 2021. I then instructed that the applicant serve same on the respondents together with a notice of set down for 5 July 2021. The matter could not be heard on that date as I had to attend a meeting in Harare. It was then postponed to 12 July 2021.

On that date, the parties agreed on an order by consent which was to the following effect:

“(a) All parties cease mining operations on Valentine 56 Mine claim and Valentine Q Mine claim forthwith.

(b) 4th respondent be and is hereby ordered to carry out a ground verification on the disputed ground and submit a report to this Honourable Court on the 16th of July 2021 and serve the parties.

(c) The court will set the matter down for finalisation.”

The parties arrived at this consent order so as to determine the real dispute between them with some measure of finality.

It being an order by consent, the court was of the view that this was premised on the parties desire to have an order dispositive of the matter.

That report was duly availed and the matter was set down for 29 July 2021. Counsel for the first and second respondents was, however, ill-disposed necessitating a postponement to 26 August 2021.

On 26 August 2021, counsel for the first and second respondents insisted on arguing the matter as originally filed, which was an application for spoliation.

This position was at variance with the consent order.

That being so because had counsel not consented to the 12 July 2021 order, the matter would have been argued on that date, and, given the requirements of a spoliation order, the referral of the matter to the fourth respondent would not have been necessary.

I must express my displeasure at the manner in which counsel appeared to be bent on stalling the resolution of the matter.

That said, I propose now to consider the matter on the basis of the spoliation application.

The applicant approached the court on the basis that it had been in peaceful and undisturbed possession of a mining claim known as Valentine 56 GA2786. It had been conducting exploration in the form of diamond drilling from 2020 until May 2021. The exploration results were to assist the applicant in determining how it was to proceed with its operations at this mine.

The drilling was temporarily ceased and it was at that time that the second respondent forcefully took occupation of the mine.

The applicant engaged the fourth respondent who issued an injunction ordering cessation of operations at the mining location.

Attempts to resolve the issue at that level hit a snag as the second respondent refused to submit itself to the process. Efforts to enlist the assistance of the police also hit a snag, culminating in the applicant approaching the court for a spoliation order.

The first and second respondents opposed the application.

One Thomson Moyo deposed to the opposing affidavit wherein he stated that he was representing the first and second respondents.

The first respondent authorised Thomson Moyo to so act through a Special Power of Attorney, which Special Power of Attorney however referred to Valentine Q GA5328 and not Valentine 56.

No issue was taken on this and I do not intend to dwell on it.

In opposing the application, the respondents took points in limine. These are:

1. The application purports to be one for spoliation, but, it is actually an application for eviction, and, as such, cannot be sought on an urgent basis.

2. The second respondent is an artificial person and so is incapable of despoiling the applicant. The application is therefore fatally defective.

3. There are material disputes of fact as the first respondent is the registered owner of Valentine Q mine and there is no clarity as to which mine the injunction issued by fourth respondent relates to.

4. The form used, and the certificate of urgency, are defective. The form is alien to the Rules, and the certificate of urgency does not show when the need to act arose, rendering it fatally defective.

As regards the merits, the respondents opposition referred to HC731/21 claiming that there was no forceful occupation of the applicant's claim and the first respondent is the registered owner of the claim, an issue which HC731/21 is meant to address. The first and second respondents have therefore not forcefully occupied the applicant's mining claim.

I propose to deal with the points in limine first: Heywood Investments (Pvt) Ltd t/a GDC Hauliers v Zakeo SC32-13.

These points in limine will not be dealt with necessarily in the order they were raised....,.

Spoliation, by its very nature, speaks to the unlawful deprivation of possession of a res. The relief is a restoration of that res into the possession of the one despoiled. If the res is a movable property, then, such movable property is restored to the applicant. If, as in casu, the res is an immovable property, and spoliation is proved, such restoration inevitably means the eviction of the one who despoiled.

The court looks to the cause of action, which cause of action must speak to spoliation to determine whether the applicant's application is one of eviction or not.

The applicant in casu's papers stated that “application is hereby made for a spoliation order directing the ejectment of the 1st respondent and all those claiming occupation through him in terms of the draft order annexed to this application and the restoration of peaceful and undisturbed occupation of the applicant….,.”

The certificate of urgency, and the founding affidavit, make reference to the fact that the applicant was in peaceful and undisturbed possession of the property and seeks to be restored to such possession.

The fact that such restoration entails removing the respondent does not make the application any less a spoliatory one.

This point in limine equally lacks merit and is also dismissed.

This is a chamber application for condonation of the late filing of an appeal and extension of time within which to appeal launched in terms of Rule 43(1) of the Supreme Court Rules 2018.

The application is opposed.

The applicant and the respondent are joint owners of an immovable property, Stand 24 Philadelphia Township of Philadelphia, Harare held under Deed of Transfer 4986/02.

On 16 February 2017, they executed a Deed of Settlement on the disposal of the immovable property in question, whose terms were incorporated in consent orders granted by the High Court in other cases that were pending between them.

The parties agreed to engage two estate agents, Guest and Tanner and Dawn Properties, to value the immovable property. The mean of the two valuations was to be the value of the property. If, however, any party was dissatisfied with any of the two valuations, the parties legal practitioners would jointly choose a third estate agent, whose valuation would be final.

Thereafter, the applicant had the right to buy out the respondent's one-half share in the property within six (6) months of receipt of the acceptable valuation, failing which the respondent had the same right to buy out the applicant's one half share within a further period of six (6) months.

In the event that the parties failed to exercise their respective rights, the property was to be sold by private treaty, with the parties sharing the net proceeds equally.

The parties jointly instructed the two estate agents to value the property. Dawn Properties valued it at US$250,000 while Guest and Tanner valued it at US$292,000.

The two valuators submitted their respective reports on 28 March 2017 and 30 March 2017 to the parties respective legal practitioners.

The applicant's legal practitioners failed to appreciate the valuation methodology applied by Guest and Tanner. Consequently, on 26 May 2017, they sought the estate agent's comments on these aspects without copying their correspondence to the respondent's legal practitioners.

In response, the estate agent cryptically asserted that the valuation amount constituted a typographical error and proceeded to rectify the earlier amount by substituting it with the lower figure of US$192,000.

The respondent's legal practitioners were oblivious of the communication between the applicant's legal practitioners and Guest and Tanner. They simply filed away the original valuation report without much thought.

The respondent's legal practitioners forwarded the corrected Guest and Tanner valuation report to the applicant's legal practitioners. Apparently, the respondent's legal practitioners, again, simply filed away the rectified report.

Thereafter, the respondent's legal practitioners computed the value of the property at US$221,000 being the mean of the lower Guest and Tanner figure and the Dawn Properties figure.

The respondent exercised his right of first refusal, and, on the directions of the applicant's legal practitioners, deposited, within the prescribed payment period, on 5 January 2018, the one-half share due to the applicant in the sum of US$110,500 into her nominated bank account and transmitted proof of payment.

Thereafter, he sought transfer of the property into his name, but, the applicant refused to co-operate.

He applied to the High Court for an order compelling the applicant to make transfer. She contested it on the basis, that, the respondent's legal practitioners were guilty of material fraudulent non-disclosure of failing to copy the inquiry letter to Guest and Tanner to her legal practitioners, which induced her to accept payment of US$110,500.

She averred that the material non-disclosure influenced Guest and Tanner to reduce the value of the property to her prejudice.

The court a quo accepted that the respondent's legal practitioners had acted unethically, but, dismissed the objection and granted the application for the transfer of the applicant's one-half share in the property to the respondent.

The applicant appealed to this Court on two grounds of appeal in case number SC909/2018. The appeal was heard on both the preliminary point raised by the respondent and on the merits, on 30 June 2019.

The preliminary point raised was that the two grounds of appeal were prolix and argumentative.

Judgment was reserved and handed down on 24 October 2019, as Judgment No. SC85-19. The appeal was determined on the preliminary point.

The two grounds of appeal were found to be “prolix and argumentative.” The appeal was accordingly struck off the roll on the basis that the Notice of Appeal was fatally defective.

On 13 November 2019, the applicant's legal practitioners of record wrote to the Registrar of this Court seeking the correction of the judgment in terms of Rule 73 of the Supreme Court Rules as read with Rule 449(1)(b) of the High Court Rules.

Out of an abundance of caution, the applicant filed the present application on 21 November 2019.

It was opposed on 28 November 2019.

The answering affidavit was irregularly filed on 6 December 2019, outside the period prescribed in Rule 43(5) of the Supreme Court Rules 2018.

The matter was set down in chambers on 20 December 2019 and removed from the roll for the reason, that, the letter of 13 November 2013, seeking correction of the judgment of this Court, constituted lis pendens.

The applicant managed to save her application by withdrawing the letter of 13 November 2019, on 27 January 2020.

Consequently, the respondent filed his heads of argument on 30 January 2020, while the applicant did so on 4 February 2020.

The application is silent on the events between that date and 2 October 2020, when the matter was placed before me - without the heads of argument.

I set it down for hearing on 9 October 2020, on which date the parties handed copies of their heads of argument from the bar.

At the hearing, the respondent raised five preliminary points. These concerned:

(i) The use of the wrong form;
(ii) The lack of authority by the deponent to the founding affidavit to depose to it;
(iii) Lis pendens;
(iv) Defective grounds of appeal in the draft Notice of Appeal; and
(v) An invalid draft order.

I heard argument on both the preliminary points and on the merits.

I indicated to the parties that I would not proceed to determine the matter on the merits if I upheld any of the preliminary points raised, and reserved judgment.

I deal with each preliminary point in turn.

Counsel for the applicant conceded, that, the draft order to the proposed Notice of Appeal did not comply with Practice Direction No.1 of 2017 in that it did not seek condonation for the late noting of the appeal.

Counsel for the respondent reluctantly conceded to the production, at the hearing, of an amended draft order, which effectively disposed of the fifth preliminary point.

The applicant, one Lovedale Mangwana (“Mangwana”), filed this application through the urgent Chamber Book.

He filed it in terms of Rules 59(6) and 107 of the High Court Rules 2021.

He is moving me to grant him a declaratur and consequential relief.

He premises his application on section 85(1) of the Constitution of Zimbabwe as read with section 23(3) of the Electoral Act [Chapter 2:13] (“the Act”).

His suit is against one Saviour Kasukuwere (“Kasukuwere”) whom he cites as the first respondent and also against the Zimbabwe Electoral Commission (“the Commission”) and the Minister of Justice, Legal and Parliamentary Affairs (“the Minister”) who are, respectively, the second and third respondents herein.

His bone of contention is that the Commission, which sat as the Nomination Court on 21 June 2023, acted in error when it accepted Saviour Kasukuwere's nomination paper for election to the office of the President of Zimbabwe in the election which shall be held on 23 August 2023.

He insists that Saviour Kasukuwere, whom he claims was out of Zimbawe for more than eighteen (18) consecutive months, is, in terms of section 23(3) of the Electoral Act, no longer a registered voter.

He claims, that, as a person who ceased to be a registered voter, Saviour Kasukuwere cannot vote in the forthcoming election, and, because he cannot vote, he cannot be voted into any public office, let alone that of the President of Zimbabwe.

He, accordingly, seeks a declaration which is to the effect that the decision of the Nomination Court, which accepted Saviour Kasukuwere's papers as a candidate for election to the office of the President of Zimbabwe, violated section 91(1)(d) of the Constitution of Zimbabwe as read with section 23(3) of the Electoral Act.

The decision, he alleges, is a violation of his rights as contained in section 67(1)(a) and 67(1)(d) of the country's Constitution.

He, in short, moves me to grant him an order which is to the effect that Saviour Kasukuwere cannot be a candidate for election to the office of the President of Zimbabwe in the 23rd August 2023 plebiscite. He moves me, in consequence, to direct the Zimbabwe Electoral Commission (the Commission) and the Minister of Justice, Legal and Parliamentary Affairs (the Minister) not to include the name of Saviour Kasukuwere in their preparation of ballot papers which will be used in the electoral process of 23 August 2023. He moves me, further, to interdict Saviour Kasukuwere from holding himself out to the public and to the electorate in this country, as well as abroad, physically or through any form of media, as a Presidential candidate for the forthcoming election.

Saviour Kasukuwere opposes the application.

The Zimbabwe Electoral Commission (the Commission) and the Minister of Justice, Legal and Parliamentary Affairs (the Minister) did not file any notice of opposition. The Commission filed what it terms its notice to abide with the decision of the court. It filed the notice on 30 June 2023.

My view is that the Minister is also of the same view.

The non-attendance of the Zimbabwe Electoral Commission (the Commission) and the Minister of Justice, Legal and Parliamentary Affairs (the Minister) leaves Lovedale Mangwana and Saviour Kasukuwere in the question.

Saviour Kasukuwere raises five (5) in limine matters, after which he proceeds to deal with the merits of the application. The preliminary issues which he raises are that:

(i) The court does not have the jurisdiction to hear and determine the matter;

(ii) The application is one for review which is disguised as a declarataur;

(iii) Lovedale Mangwana does not have what is normally referred to as the locus standi in judicio;

(iv) Lovedale Mangwana approached the court in terms of an incorrect law and in an incompetent forum; and

(v) Lovedale Mangwana violated the principle of subsidiarity.

He denies, on the merits, that he was out of his constituency, and, therefore, out of Zimbabwe, for more than eighteen (18) consecutive months.

He challenges Lovedale Mangwana to prove the allegation which he (Lovedale Mangwana) is making.

He avers that he is duly nominated to be a Presidential candidate in the forthcoming general election because he meets the legal requirements for nomination.

He challenges Lovedale Mangwana to state the manner in which his candidature would affect Lovedale Mangwana's constitutional rights.

He insists that he has a local address where he resides and is domiciled.

He claims that he left Zimbabwe on a temporary basis on medical grounds.

He avers that he is a registered voter and that the Zimbabwe Electoral Commission (the Commission) verified his address in terms of section 23(3) of the Electoral Act.

It is his appearance on the voters roll which makes him compliant with section 91 of the Constitution of Zimbabwe, according to him.

He alleges that he appears on the voters roll of Ward 40, Pfura Rural District Council, Mount Darwin South Constituency. He gives Chiunye Primary School A as his polling station.

He claims that Lovedale Mangwana makes bare allegations regarding his absence from Zimbabwe.

He contends that Lovedale Mangwana has not established any right which the court should protect.

Lovedale Mangwana has not, according to him, shown that he is a registered voter in the ward or the constituency he alleges to be registered. He insists that his inclusion on the ballot paper does not interfere with Lovedale Mangwana's right to vote.

Lovedale Mangwana, he claims, has not set out any substantial interest in the matter nor a factual cause to motivate the relief which he seeks.

There is, according to him, no legal basis for the Zimbabwe Electoral Commission's conduct to be set aside, and, consequently, for his nomination to be quashed.

He insists that the application does not meet the requirements of urgency.

Lovedale Mangwana, he avers, should have engaged the processes in terms of the Electoral Act well before 21 June 2023. The conduct of Lovedale Mangwana, he claims, is self-inflicted urgency.

He alleges that the application is no more than Lovedale Mangwana's attempt to curtail his right as it is provided for in section 67 of the country's Constitution.

He moves me to dismiss the application with costs which are at attorney and client scale.

The application succeeds.

An election is, by its nature, a very emotive subject. Once it is at hand, people push and shove each other. They do so with one object in mind. They do so to either get into, or deny others from, entering or participating in the electoral race.

More often than not, the protagonists fail to find each other.

Where such occurs, they take each other to court which will resolve the dispute between them.

The court takes no side. All it does is to listen to the respective narratives of those who have approached it, the facts of each in particular, apply the relevant law to the same, and render a decision which, in its view, accords with the applicable law.

In this jurisdiction, a judicial officer wears two hats during the period which leads onto, during, and after an election.

Depending on the facts of the case, the judicial officer can sit as an ordinary court or as an electoral court.

The position which he/she assumes largely depends on the substance of the suit which the parties place before him/her.

Because the case can fall into one law and its rules to the exclusion of the other law and its rules, it more often than not occurs that one litigant, plaintiff or applicant, files his/her case under one law and its rules which, from a prima facie perspective, are divorced from the substance of the case.

Where the litigant does so, he/she creates fertile ground for his/her adversary, defendant or respondent, who will be quick to tell the court that the litigant's suit is misplaced. Misplaced in the sense, that, it should have been lodged in terms of the other law and its rules.

What I stated in the foregoing paragraphs of this judgment applies to the current application, whose substance is that of an electoral matter which has been filed in terms of the High Court Act and its rules and not in terms of the Electoral Act and its rules.

Lovedale Mangwana's adversary, for instance, remains of the view that the same should have been filed under the latter, and not the former piece of legislation.

Whether or not the stated matter reflects the correct position of the law depends, in a large measure, on the substance of the application, which, as is evident from Lovedale Mangwana's founding papers, is one for a declaratur and consequential relief.

It is pertinent for me, at this stage, to deal with Lovedale Mangwana's application.

In doing so, I remain alive to the preliminary issues which Saviour Kasukuwere raises.

Those technical issues are allowed by law. They are more often than not raised by the parties legal practitioners who are schooled in substantive law as well as in the law of practice and procedure.

The issues colour the case of the parties for better or for worse. Where they are properly raised, they have the effect of stifling the suit of the plaintiff or the applicant to a point where no further debate of it may be entertained by the court. They cannot therefore be wished away. They should be taken account of on the basis of the audi alteram partem rule which, simply considered, enjoins a court to hear both parties before it determines their dispute.

The first matter which Saviour Kasukuwere raises on this aspect of the case is that I do not have the jurisdiction to hear and determine this application.

Jurisdiction, simply considered, means the power or competence of a court to hear and determine a matter which has been placed before it.

Various courts have various jurisdictions to hear a matter. Jurisdiction, in some cases, is conferred upon a court by law - statute or otherwise.

Section 171(1)(a) and (c) of the Constitution of Zimbabwe (No.20) Act of 2013 (“the Constitution”), for instance, confers upon me the jurisdiction to hear and determine all civil and criminal matters throughout Zimbabwe, as well as to decide constitutional matters, except those that only the Constitutional Court may decide.

A near example of where I have no power or competence to hear and determine a matter is, as counsel for Lovedale Mangwana correctly submits, my competence to hear or determine a Presidential election dispute.

That, it stands to reason and logic, remains a preserve of no court in Zimbabwe other than the Constitutional Court of Zimbabwe. It, in other words, falls into the exceptions category which are stated in the last part of paragraph (c) of subsection (1) of section 171 of the Constitution.

It is on the strength of section 171(1)(a) and (c) of the Constitution that I hold the view, that, I have the requisite jurisdiction to hear the application which Lovedale Mangwana placed before me.

Saviour Kasukuwere's argument would have held if Lovedale Mangwana invited me to hear a Presidential election dispute.

What he placed before me is not such. It is an ordinary urgent court application for a declaratur and consequential relief.

I, accordingly, have the requisite jurisdiction to hear and determine the application, both as a civil and a Constitutional case.

I do have that, on the basis that it is filed in terms of the Rules of this court.

In holding the view which I hold on this aspect of the application, I take comfort in the decision which the Supreme Court made in Guwa & Anor v Willoughby's Investments (Pvt) Limited 2009 (1) ZLR 368 (S) in which it is remarked that:

“In terms of jurisdiction, the distinction between the Supreme Court and the High Court may be summarized as follows:

Except where specifically empowered, the Supreme Court has no jurisdiction to hear or determine any matter, and may only exercise powers in respect of an appeal in terms of the provisions of the Act and Rules of Court. The High Court, on the other hand, has the jurisdiction to hear all matters except where limitations are imposed by law.

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

Saviour Kasukuwere's assertion on this aspect of the case is opaque.

Opaque in the sense, that, he does not state the actual reason why he denies me the opportunity to hear Lovedale Mangwana's case.

He seems to suggest, that, because the application is election-related, I cannot, as a judge of this court, hear it. He also suggests that Lovedale Mangwana should proceed in terms of provisions of the Electoral Act to review the decision of the Zimbabwe Electoral Commission (the Commission) and have it set aside, if such is his intention.

His argument is misplaced.

The application, though it has a bearing on the events of 21 June 2023, in terms of which he was nominated to stand for the office of President for Zimbabwe, is filed as an ordinary urgent court application, and not as an application which falls under the Electoral Act.

It states in clear and categorical terms, that, it is an urgent court application which is filed in terms of Rule 107 of the High Court Rules 2021 as read with section 85(1) of the Constitution.

It, accordingly, falls within my domain to hear and determine it.

The in limine matter which he raises, on me having or not having the jurisdiction to entertain the application is, therefore, without merit. It is dismissed.

It must be reiterated that issues regarding the cause of action are rooted in law and not abstract personal convictions.

On 25 January 2022, the applicant filed an application seeking direct access to this Court in terms of section 167(5)(a) of the Constitution of Zimbabwe 2013 (“the Constitution”) as read with Rule 21(2) of the Constitutional Court Rules 2016 (“the Rules).

If leave is granted, it is his intention to file an application in terms of section 85(1) of the Constitution for the vindication of two of the fundamental rights that he alleges were violated by a High Court decision.

The two fundamental rights in question are the right to access the courts and the right to equal protection and the benefit of the law, respectively.

The allegation made in the application is that the common law remedy that permits execution of a judgment pending appeal violates the Constitution....,.

An application for direct access to the Court is premised on the provisions of section 167(5)(a) of the Constitution. The section requires that the application be brought in terms of the rules of the Court. Rule 21(2) of the Constitutional Court Rules is relevant.

The principles governing applications for direct access are contained in Rule 21(3) of the Constitutional Court Rules which reads as follows:

“(3) An application in terms of subrule (2) shall be filed with the Registrar and served on all parties with a direct or substantial interest in the relief claimed and shall set out –

(a) The grounds on which it is contended, that, it is in the interests of justice that an order for direct access be granted; and

(b) The nature of the relief sought and the grounds upon which such relief is based; and

(c) Whether the matter can be dealt with by the Court without the hearing of oral evidence, or, if it cannot, how such evidence should be adduced and any conflict of facts resolved.”

The importance of compliance with the rules of this Court in an application for direct access to the Court was stressed in the case of Liberal Democrats & Ors v President of The Republic of Zimbabwe E.D. Mnangagwa N.O. & Ors CC07-18, wherein MALABA CJ advanced the following:

“An application for direct access is regulated by the Rules. An applicant has to satisfy all the requirements of the Rules. The Court found that the applicants failed to comply with the Rules in this regard. There has to be actual compliance with the contents of the provisions of the applicable Rule. It is not a question of mere formality. Direct access to the Constitutional Court is an extraordinary procedure granted in deserving cases that meet the requirements prescribed by the relevant rules of the Court.”…,.

Section 167(5) of the Constitution provides, that, any person may bring a constitutional matter before the court, directly, subject to the Rules of the court.

The applicants are importunate. They want back their money, $142,000, all in the currency of the United States dollars [USD].

If the first respondent, their banker, will not pay, then the second and third respondents, collectively the monetary authorities, should.

The applicants allege these monetary authorities are partly the reason the first respondent will not pay.

The applicants want a whole range of some financial legislation, and certain monetary policies or directives, set aside on the grounds of constitutional invalidity.

They first came to this court in 2019. The subject matter was the same. This court ruled in their favour. It directed the first respondent to pay: see Stone & Anor v CABS & Ors HH287-20.

The first respondent did not pay.

All the respondents appealed separately. The appeals succeeded. The judgment of this court was vacated: see CABS & Ors v Stone & Ors SC15-21.

That was in March 2021.

In August 2021, the applicants were back in this court. It is still the same subject matter. But the thrust is now different. They seek the following orders:

(i) That, Exchange Control Directive No. R120/2018 issued by the Reserve Bank [is] unconstitutional and invalid as it violates section 71 of the Constitution;

(ii) That, the Exchange Control Directive No. RT120/2018 is grossly unreasonable and ultra vires section 35(1) of the Exchange Control Regulations, SI 109 of 1996, and is invalid;

(iii) That, section 44B(3) and (4) of the Reserve Bank Act are unconstitutional and invalid as they violate section 71 of the Constitution;

(iv) That, section 22(1)(b) and (d), section 22(4)(a) and section 23(1) and (2) of the Finance (No.2) Act of 2019 are unconstitutional and invalid as they violate section 71 of the Constitution;

(v) That, the conversion of the applicants USD142,000 to RTGS142,000 is unconstitutional and invalid as it violates section 71 of the Constitution;

(vi) That, the first respondent should pay to the applicants the amount of USD142,000;

(vii) That, the first respondent is to pay interest on the aforestated amount at the rate of 5% per annum from 28 November 2016 to the date of payment; and

(viii) That, the respondents must pay costs of suit, jointly and severally, the one paying the other[s] to be absolved.

The first respondent is a building society. It is a bank or an authorised dealer for the purposes of exchange control regulations.

At all relevant times, the applicants were in business as architects. They banked with the first respondent. As at 28 November 2016 the balance in their account was $142,000. The designation of the account was USD.

That designation was in line with the currency regime in force at the time. At the time, the national economy was on a multi-currency system. That had been the situation since 2009.

In terms of that system, the currencies of other countries, specifically the British pound, the euro, the USD, the South African rand and the Botswana pula had been made legal tender in Zimbabwe, courtesy of an amendment to the Reserve Bank Act [Chapter 22:15]: see section 17 of the Finance (No.2) Act No.5 of 2009.

The local currency would float and find its own level in the basket of all these other currencies.

Over the years, the local currency depreciated in value so much that it practically became non-existent. In 2015, the State President officially demonetized it through statutory instrument S.I.70 of 2015: see Reserve Bank of Zimbabwe (Demonetisation of Notes and Coins) Notice 2015, SI70 of 2015.

After the demonetization as aforesaid, there followed some rapid developments in the monetary system.

These were achieved through policy pronouncements and legislative changes by the State President in terms of the Presidential Powers (Temporary Measures) Act [Chapter 10:20], or via the second respondent, as the Central Bank, and the third respondent, as the Minister in charge of finance.

Among other such changes, the third respondent, was empowered in 2016, through a statutory instrument, to reintroduce some form of local currency: see Presidential Powers (Temporary Measures) (Amendment of Reserve Bank of Zimbabwe Act and Issue of Bond Notes) Regulations 2016, SI133 of 2016.

Such currency would comprise what would become known as 'bond notes' and 'bond coins'.

It would become legal tender. It would be exchangeable at par value with any specified currency. Each unit of a bond note would be exchangeable for one USD. The bond notes and coins eventually came into operation in March 2017. This was achieved through an amendment to the Reserve Bank Act: Reserve Bank Amendment Act No.1 of 2017.

The amendment practically reproduced S.I.133 of 2016. But, there were two significant additions:

(i) The amendment was deemed to have come into operation on 31 October 2016 (section 1 thereof) the date of SI 133 of 2016; and

(ii) The bond note would be backed by a guarantee extended to the Reserve Bank by one or more international financial institutions: see section 44B(1) of the Reserve Bank Act.

In a press statement on 4 May 2016, the second respondent had disclosed the extent of that financial guarantee. It was in the sum of USD$200 million. It had been issued by the African Export-Import Bank [Afreximbank].

The next significant development was on 4 October 2018.

On that date, the second respondent issued the Exchange Control Directive RT120/2018. The second respondent is empowered to issue such directives by section 35(1) of the Exchange Control Regulations 1996, SI 109 of 1996.

The background to the Exchange Control Directive RT120/2018 is this.

At that time, the economy was still operating in the multi-currency system. Bank accounts were all Nostro foreign accounts. “Nostro” is an accounting term used by banks and monetary authorities. A bank in Zimbabwe will operate a Nostro account with a foreign or correspondent bank in the world financial centres where a float of money designated in foreign currency is maintained. The Nostro account is for settling foreign obligations of the local bank.

The local bank account transactions are replicated or “mirrored” in the Nostro account of the correspondent bank.

Of the basket of currencies in use, the USD was the most predominate. Thus, most Nostro foreign currency accounts were predominantly in USD.

The intrinsic provision of the Exchange Control Directive RT120/2018 directed banks to separate foreign currency accounts into two categories, namely, Nostro foreign currency accounts [Nostro FCAs] and Real Time Gross Settlement [RTGS] foreign accounts [RTGS FCAs].

For the present narrative, RTGS would be the new form of the local currency.

It would eventually be brought into circulation by the Central Government via SI33 of 2019. Its effective date was 22 February 2019: see the Presidential Powers (Temporary Measures) (Amendment of Reserve Bank of Zimbabwe Act and Issue of Real Time Gross Settlement Electronic Dollars (RTGS Dollars) Regulations 2019, SI 33 of 2019.

Exchange Control Directive RT120/2018 was directed at authorised dealers, principally banks.

It addressed a number of issues. It said its purpose was to “operationalise” the measures which had been incepted earlier on to strengthen the multi-currency system to enhance business viability and price stabilization; to increase export generation capacity and to improve market confidence.

It explained, further, that, the measures were aimed at encouraging diaspora remittances, the banking of foreign currency into the Nostro FCAs and to eliminate the co-mingling effect or dilution of Nostro FCAs by RTGS balances.

It was further stated, that, the relationship between the two categorise of the foreign currency accounts would continue to be at parity in order to preserve value for money for the banking public and the investors during the transition to a more market-based foreign currency allocation system. The market based foreign currency allocation system would be implemented once the economic fundamentals had become appropriate.

Before this court, the third respondent has provided some further insights into the thought process behind the implementation of the measures above, particularly the split of people's bank balances into Nostro FCAs and RTGS FCAs.

In summary, and as I have understood him, the multi-currency regime had come with its own problems.

Market distortions, liquidity crunches, cash shortages, and so on, dogged the economy. Public confidence became difficult to maintain. Pressed by international financial institutions, such as the Bretton Woods, it became imperative to initiate currency reforms. Key amongst such reforms would be the adoption of a domestic currency.

As at 1 October 2018, the currencies in use in the economy were both the USD and another which had been created by the State, through borrowing from the second respondent, and the issuance of treasury bills. The latter currency was at first nameless even though it continued to pass off as USD. It was not a physical currency. It was a currency that could only be transacted through the RTGS system.

It was not a genuine USD currency.

The third respondent further explains, that, the purpose of borrowing by Government from the Central Bank, and the issuance of treasury bills, had been to cover the domestic debt of State-owned entities.

So, to achieve the intended reforms, particularly the currency reforms, it became necessary to separate the two types of currencies in use. In pursuance of that policy, and through the second respondent's monetary statement of 1 October 2018, financial institutions had been directed to separate their customers bank accounts into two categories:

(i) Those holding actual dollars of the United States; and
(ii) Those holding this other nameless currency still passing off as USD.

Banks would open Nostro FCAs into which genuine dollars of the United States would be deposited. That other non-United States dollar currency would remain as the existing customers accounts.

Such process of separation would take about ten days. The modalities would be left to the financial institutions themselves. They would use their own data bases, such as the Know Your Customer [KYC] principles, to determine the source of the deposits in their individual customers accounts. Henceforth, deposits or remittances from sources outside the country would be channelled into the Nostro FCAs which would automatically be created by the banks at no cost to their customers. All other deposits would continue to be channelled into the existing accounts.

The separation of the FCAs in terms of the Exchange Control Directive RT120/2018 entailed that foreign currency realized from offshore or foreign currency cash deposits would be credited into individual or corporate Nostro FCAs. The sources specifically listed in these regards included export proceeds, offshore loan proceeds, offshore funds from foreign investors, diaspora remittances, and so on.

On the other hand, all RTGS or mobile transfers and deposits in bond notes or coins would be credited into individual or corporate RTGS FCAs.

The third respondent eventually gave the nameless currency a name. This was through SI 33 of 2019 aforesaid.

That currency would be called the RTGS dollar.

SI33 of 2019 empowered the second respondent to issue the RTGS dollar as an electronic currency. It would be legal tender in Zimbabwe. The RTGS balances, expressed in USD immediately before the effective date, would be, from that date, deemed to be opening balances in RTGS dollars at par with the USD at a rate of one-to-one.

Thereafter, any variance in parity would be determined by market forces on a willing-seller willing-buyer basis.

Bond notes and coins in circulation at the time would continue to be legal tender exchangeable at parity with the RTGS dollar on the same ratio of one-to-one.

All the aforesaid changes and reforms would formally be incorporated into the statute books, primarily through appropriate amendments to the Reserve Bank Act. The details are not important for the moment, save just to mention that this is the gamut of the legislation the applicants want knocked down.

They aver that watching those changes from 2016, they feared the value of their deposit would devalue significantly. To them, the unfolding situation was not without precedence.

They cite the bearer cheque dispensation of 2007 and 2008 when inflation had risen phenomenally. Money would be counted in quintillions of dollars.

When the economy had dollarized, people's savings had been wiped out.

Therefore, to avert another disaster, the applicants say they instructed the first respondent, on 28 November 2016, to “freeze” their account so that no deposits or withdrawals from it would be effected except upon the written instructions by the authorised signatories.

It did not work.

The first respondent cited the policy and legislative changes above and said it had to comply.

The applicants aver that their bank account, which previously reflected a balance of USD142,000 now reflected the same figure - but in RTGS.

Due to the movement of the exchange rate between the USD and the RTGS dollar and the depreciation of the RTGS dollar against all the other major currencies, the applicants allege that their deposit has become a minuscule fraction of its original value.

They submit that this cannot be right. They will not accept it. Apparently, neither will so many other customers: As a matter of fact, there has been persistent litigation over the same subject matter since the changes in the monetary regime.

So, in 2019 the applicants sued the first respondent, their Bank, on the basis of the banker-customer principles of the common law. In the alternative, they sued the monetary authorities, the second and third respondents, in the main impugning Exchange Control Directive RT120/2018.

As mentioned at the beginning of this judgment, the applicants cause found favour with this court. But, they lost on appeal. They are now back again in this court, their cause of action having been re-formulated.

But, inevitably, and quite characteristically in matters such as this, the court has been called upon to first determine the numerous points in limine which have been raised by the respondents.

These are dealt with below, not necessarily in the order that they have been raised in the affidavits, but rather on the basis of their individual likelihood or potential to dispose of the entire application without going into the merits.

The second respondent alleges, that, by reason of the doctrine of res judicata or issue estoppel, the applicants are barred or estopped from bringing this claim in the form that they have, or at all.

Singled out for impeachment under this objection are paragraphs 1, 2, 3, 7, 8 and 9 in the applicants draft order.

Respectively, these are the paragraphs alleging that the Exchange Control Directive RT120/2018 is unconstitutional; that it is ultra vires the Exchange Control Regulations 1996; that section 44B(3) and (4) of the Reserve Bank Act are unconstitutional; that the first respondent should refund them the contentious USD142,000 together with interest and costs of suit on the higher scale.

Paragraphs 4, 5 and 6 that the second respondent has not expressly singled out, respectively, contain the claim for the impeachment of section 44C of the Reserve Bank Act; the impeachment of certain provisions of the Finance (No.2) Act of 2019 (sections 22(1)(b)(d); section 22(4)(a) and (2) thereto) and the impeachment of the act of converting the applicants bank balance from USD142,000 to RTGS142,000, all on the basis of unconstitutionality.

The second respondent argues, that, the substance of the applicants claim then and now, was, and is the payment of USD142,000 irrespective of the form in which it was, and is being pleaded.

It further argues, that, this substantive claim was determined to finality by both this court and the Supreme Court.

In particular, this court declared the Exchange Control Directive RT120/2018 invalid. It then went on to order the first respondent to refund the applicants the USD142,000 in question. But, the judgment of this court was vacated by the Supreme Court. There ended the case. There is no right of appeal beyond the Supreme Court.

The second respondent cites widely case authorities from around the globe on res judicata and issue estoppel.

Many jurists and scholars, here and abroad, have written extensively on res judicata and issue estoppel. Without in any way being presumptuous and pre-emptive, it is doubtful whether there remains anything that can usefully be added to the body of knowledge on this subject. So, I merely paraphrase the principles:

Issue estoppel is a species of res judicata: Munemo v Muswera 1987 (1) ZLR 20 (SC)…,.
They are almost analogous concepts: Galante v Galante (1) 2002 (1) ZLR 144 (H)…,.

Issue estoppel has been described in Mills v Cooper [1967] 2 ER 100, per LORD DIPLOCK, as follows…,.:

“A party to civil proceedings is not entitled to make, as against the other party, an assertion, whether of fact or of legal consequences of facts, the correctness of which is an essential element in his cause of action or defence, if the same assertion was an essential element in his previous cause of action or defence in previous proceedings between the same parties or their predecessors in title and was found by a court of competent jurisdiction in such previous civil proceedings to be incorrect, unless further material which is relevant to the correctness or incorrectness of the assertion and could not by reasonable diligence have been adduced by that party in the previous proceedings has since become available to him.”

Quoted by KHOSA JA in Willowvale Mazda Motor Industries v Sunshine Rent-a-Car 1996 (1) ZLR 415 (S)…,.

In Carl Zeiss Stiftung v Rayner & Keeler [1976] 1 AC 853 (quoted by KHOSA JA in Willowvale Mazda Motor Industries v Sunshine Rent-a-Car 1996 (1) ZLR 415 (S)…,.) the three essential requirements of res judicata or issue estoppel were listed as follows:

(i) That, the same question has been decided;
(ii) That, the judicial decision which is said to create the estoppel was final; and
(iii) That, the parties to the judicial decision, or their privies, were the same persons as the parties to the proceedings in which estoppel is raised.

I disagree with the second respondent, that, the applicants are estopped from bringing their claim in the manner that they have.

Admittedly, the impeachment of the Exchange Control Directive RT120/2018 and section 44B(3) and (4) of the Reserve Bank Act had been issues before the courts in the applicants previous claim - albeit as alternative claims.

Admittedly, this court had gone on to determine the issue of the constitutional validity of the Exchange Control Directive. It had expressly declined to determine the constitutional validity of section 44B(3) and (4) of the Reserve Bank Act on the grounds that it had become unnecessary to do so.

The Supreme Court, in CABS & Ors v Stone & Ors SC15-21, declared the whole approach by this court a faux pas.

According to the Appellate Court, and in summary, the applicants main claim being one ad pecuniam solvendum (i.e. a claim for the payment of a sum of money); that claim having been made expressly against the first respondent only, this court having found against the applicants on it; the claim for the constitutional invalidity of, inter alia, Exchange Control Directive RT120/2018 not having been made at all, this court had gone on a frolic of its own to assume that it could determine that aspect of the claim.

What is worse, according to the Appellate Court, this court had gone on to pronounce judgment against the first respondent in circumstances in which neither the constitutional validity of the Exchange Control Directive RT120/2018 had been pleaded by the applicants as against the first respondent, nor the conditions dealt with by this court argued by any of the parties in those proceedings.

On that basis, the Appellate Court set aside the judgment of this court in its entirety.

I disagree that in the present application issue estoppel or res judicata can be invoked successfully for the reason, that, the Supreme Court has determined that the consideration of the constitutionality of the Exchange Control Directive RT120/2018 had not been properly motivated before this court in those proceedings and had therefore been improperly decided. The decision of this court on that point has been vacated.

Manifestly, it remains open.

In other words, the question of the constitutional validity of the Exchange Control Directive RT120/2018 and of section 44B(3) and (4) of the Reserve Bank Act has not been determined....,.

Another point in limine raised by the second respondent is that the applicants claim being for the nullification of Exchange Control Directive RT120/2018 on the basis that it is ultra vires section 35(1) of the Exchange Control Regulations 1996, and the consequential claim for the return of the contentious USD142,000, together with the corollary claims for interest and costs thereon, the doctrine of subsidiarity in constitutional matters is such that this court is precluded from determining the claim as a constitutional matter under section 85(1)(a) of the Constitution of Zimbabwe.

Section 85(1)(a) of the Constitution of Zimbabwe entitles any person acting in their own interests to approach a court for the vindication of a fundamental right or freedom, as enshrined, which may have been, or is being, or is likely to being infringed.

Counsel for the second respondent argues, that, it is incompetent for one to seek a relief that can be granted under some other law or legislation without invoking a constitutional provision because norms of greater specificity should be relied upon before resorting to norms of greater abstraction.

The constitutional principle of subsidiarity says that a litigant who avers that his or her constitutional right has been infringed must rely on the legislation that was enacted to protect that right. He or she may not rely directly on the underlying constitutional provision in proceedings which have been brought to protect that right unless he or she wants to attack the constitutional validity or efficacy of the legislation itself: Majome v Zimbabwe Broadcasting Corporation & Ors 2016 (2) ZLR 27 (CC); Moyo v Chacha & Ors 2017 (2) ZLR 142 (CC).

Once legislation to fulfil a constitutional right exists, the Constitution's embodiment of that right is no longer the prime mechanism for enforcement. The legislation is primary. The right in the Constitution plays only a subsidiary or supporting role: Mazibuko & Ors v City of Johannesburg & Ors [2009] ZACC 28.

Counsel for the second respondent's point is that in the present case, the validity of the Exchange Control Directive RT120/2018 can simply be tested against section 35(1) of the Exchange Control Regulations 1996 without invoking the constitutional provision.

The situation now appears such a procedural bog and a legal minefield.

It will be remembered, that, as one of the reasons for upsetting the judgment of this court in the previous proceedings, the Supreme Court held that this court's unprompted consideration of the constitutionality or otherwise of the Exchange Control Directive RT120/2018 violated the doctrine of subsidiarity in constitutional matters.

The Appellate Court said that it had been incumbent for this court to consider and determine the constitutional validity of section 44B(3) and (4) of the Reserve Bank Act before addressing the validity of the Exchange Control Directive RT120/2018 itself, not only because the applicants had specifically sought such relief, but also on the basis of the principle of subsidiarity.

Now, it seems as if the applicants have simply wheeled back into the present proceedings the same problems and the same issues as before.

However, that does not seem to be the case.

The applicants do seek the setting aside of section 44B(3) and (4) of the Reserve Bank Act on the basis of constitutional invalidity. It is just that in their draft order the remedies sought are arranged in such a way that the order for the impeachment of the Exchange Control Directive RT120/2018 comes first ahead of the order for the impeachment of the statutory provisions.

The applicants also seek the impeachment of the other statutory provisions.

But, none of all this should be a reason to non-suit them, or else the whole approach would sound pedantic and a miscarriage of justice.

Whilst the Exchange Control Directive RT120/2018 purported to address the multiple problems dogging the economy at that time, and possibly now, its intrinsic component about which the applicants are severely aggrieved, was the conversion of their deposit from USD to RTGS.

The prelude to this conversion was, firstly, the aforesaid S.I.133 of 2016 (Presidential Powers (Temporary Measures) Amendment of Reserve Bank of Zimbabwe Act and Issue of Bond Notes) Regulations 2019) which became section 44B(3) and (4) of the Reserve Bank Act.

Those intrinsic provisions of the Exchange Control Directive RT120/2018 were also cemented by section 21 of the Finance (No.2) Act No.7 of 2019 the provisions of which eventually became section 44C of the Reserve Bank Act.

The one-to-one parity ratio of the RTGS to the USD became expressed in section 22 of the Finance (No.2) Act No.7 of 2019 aforesaid.

It is all these statutory provisions that the applicants want struck down on the grounds of constitutional invalidity.

There is therefore nothing precluding this court, in the present proceedings, from determining the constitutional validity of the intrinsic provisions of the Exchange Control Directive RT120/2018.

Holistically, what the applicants want in these proceedings is the impeachment of the device by which the monetary authorities managed to convert their USD142,000 bank balance into an RTGS bank balance, and, thereafter, to be able to stop the applicants from accessing the amount in the original currency of the deposit.

The applicants suit is an omnibus approach, presumably because the device employed by the monetary authorities to achieve their goals was not a single statute or directive, but a series of new laws or amendments.

But, significantly, in paragraph 6 of the draft order, the applicants seek the setting aside of the conversion of their USD142,000 to RTGS142,000 on the basis of unconstitutionality, specifically section 71 of the Constitution.

This is the crux of the dispute. It shall be the focus of the determination.

For these reasons, the second respondent's objection No.2 is hereby dismissed.

There remains the aspect of the Exchange Control Directive RT120/2018 allegedly being ultra vires the enabling legislation, namely, section 35(1) of the Exchange Control Regulations.

Unhappily, counsel have not exhaustively and systematically synthesised this particular point, either in their heads of argument or in oral submissions. But, evidently, the applicants can properly motivate the impeachment of the Exchange Control Directive RT120/2018 on the basis that it is ultra vires section 35(1) of the Exchange Control Regulations.

In that regard, there would be no constitutional point before the court. This is a separate enquiry which is not constricted by what went on before....,.

The first respondent's sole point in limine, distilled, is that it is incompetent for the applicants to seek a declaration of invalidity of the range of legislation that they have singled out, and then, in the same claim, seek consequential relief in the form of an order directing the respondents to pay back the USD142,000 in contention.

The first respondent's point is that in terms of section 175(1) of the Constitution, a declaration of constitutional invalidity made by any court has no force until confirmed by the Constitutional Court.

The first respondent avers, that, the applicants are seeking to be paid the money before any order of constitutional invalidity which this court may make is confirmed by the Constitutional Court.

The first respondent concludes, that, by reason of the fact that the applicants draft order fails to reflect this position, it is fatally defective. The defect cannot be cured by an amendment. As such, the application ought to fail in its entirety.

With all due respect, this objection lacks merit.

By operation of the law, any declaration of unconstitutionality this court, or any other, may make, stands suspended until confirmed by the Constitutional Court. That should mean that any consequential relief that the court may see fit to grant also stands suspended until the declaration of unconstitutionality is confirmed. If the unconstitutionality is not confirmed, then, the consequential relief that is based upon the constitutional point should automatically fall away.

But, such a position cannot preclude a litigant from claiming consequential relief where a declaration of constitutional invalidity is sought. He or she brings his or her claims in one motion to avoid a multiplicity of proceedings.

The first respondent's objection is hereby dismissed....,.

In respect of the constitutional matter, the applicants seek the setting aside of the Exchange Control Directive RT120/2018 and a raft of some legislative provisions, being section 44B(3) and (4), and section 44C of the Reserve Bank Act; section 22(1)(b) and (d), section 22(4)(a) and section 23(1) and (2) of the Finance (No.2) Act, No.7 of 2019.

In reality, and as stated already, the applicants dominant and overall desire is the reversal of the act of the conversion by the first respondent of their bank deposit in the sum of $142,000 from USD to RTGS, which they allege was done on the authority of the monetary policy statements, the Exchange Control Directive RT120/2018, and, the legislative architecture as set out above.

The applicants allege the process was an infringement of their constitutional right to property.

Therefore, it is necessary to determine the constitutionality or otherwise of the act of that conversion as prayed for in paragraph 6 of the draft order.

Manifestly, this is a claim for a declaratur under section 85(1) of the Constitution. As in all claims for declaratory orders, a court does not decide abstract or hypothetical questions: Munn Publishing (Pvt) Ltd v Zimbabwe Broadcasting Corporation 1994 (1) ZLR 337 (S); 1995 (4) SA 675 (S), [1995] 3 All SA 444 (Z); and Johnsen v Agricultural Finance Corp 1995 (1) ZLR 65 (S).

Therefore, only such core provisions of the Exchange Control Directive RT120/2018 and the impugned statutes as had the authority claimed and used by the second and third respondents to the prejudice of the applicants, as alleged, fall for consideration, not the rest of the other provisions....,.

What is at the epicentre of the applicants grievance, as compacted under paragraph 6 of their draft order, was the conversion of their USD142,000 to RTGS142,000.

This is an application for direct access to this Court.

If the application is granted, it is the applicant's intention to approach this Court in terms of section 85(1)(a) of the Constitution of Zimbabwe, alleging and arguing that a judgment of the Supreme Court, handed down on 31 December 2020, infringed his dual rights to equal protection and benefit of the law and to a fair hearing before an independent and impartial court.

The applicant owed the second respondent the sum of US$327,345=77 plus interest thereon at the rate of fifty percent per annum. On a date that is not material, the second respondent obtained judgment in the High Court against the applicant for the payment of the debt together with the accrued interest.

The applicant failed to satisfy the judgment debt.

In due course, the first respondent attached the applicant's farm and sold it by public auction. The sale realized the sum of US$205,000. The applicant successfully objected to the sale. The first respondent set the sale aside, accepting that the sale had been conducted in an irregular manner.

It had not been preceded by a nulla bona return against the applicant's movables and the property had been poorly described in the advertisement flighted before the sale.

In his ruling setting aside the sale, the first respondent indicated that he would offer the property for sale by private treaty for the following thirty days on certain specified conditions.

The first respondent proceeded to sell the property to the fourth respondent by private treaty for the sum of US$825,000.

Clearly not anticipating any further objections from the applicant, the first respondent advised the judgment creditor's legal practitioners of the sale by letter, which he also copied to the applicant.

In the same breath, he advised the parties that he had declared the fourth respondent the purchaser of the property and had consequently confirmed the sale in accordance with the rules of court.

The germane part of the letter reads:

“I refer to the sale in the above matter and advise that on 27 February 2018, the Sheriff declared and confirmed the highest bidder, Paperhole Investments (Pvt) Limited, to be the purchaser at the sum of US$825,000 after the property was sold by private treaty.”

The letter advising and confirming the sale at the same time was written on 27 February 2018, the same date on which the sale was concluded.

Upon receipt of his copy of the letter, the applicant approached the first respondent, intending, once again, to object to the sale.

The first respondent raised the defence of functus officio. He advised the applicant that after confirming the sale, his mandate was discharged and the applicant had to approach the High Court for any possible relief.

In due course, the applicant filed an application for review in the High Court, seeking an order setting aside the confirmation of the sale. He alleged that such confirmation was irregular and not in accordance with the rules of the High Court.

The application was opposed by all the respondents save for the third.

In opposing the application before the High Court, the first respondent stated in his opposing affidavit, that, he had declared the fourth respondent as the purchaser and had confirmed the sale in the same breath because it was his reading of the rules of court that the applicant had no right to object to the second sale. It was his considered position that the rules did not permit him to entertain multiple objections in respect of the same property sold in execution.

Dismissing the first respondent's contentions, the High Court upheld, and correctly so in my view, the applicant's right to challenge the second sale.

It found that the applicant's right to object to any sale of his property in execution was not limited by the certain number of objections he had taken. For as long as there was a sale in execution against his property, the applicant had the right to object to any such sale on the grounds given in the law.

The High Court, however, went on to dismiss the application for review on the basis that the applicant had failed to disclose in the papers before the court the grounds of his objection to the second sale.

Aggrieved by the dismissal of the application for review, the applicant appealed to the Supreme Court.

Before that court, he contended that once the High Court had upheld his right to object to the second sale, it ought to have given him an opportunity to lodge his objection with the first respondent in accordance with the Rules.

It was his argument, that, the nature and content of his objection, embodying the recognised grounds of objecting to the sale, was not an integral part of the application for review such that its absence would be fatal to that application.

Fully developed, it was his argument that the law did not require him to lodge his objection to the sale with the court in the application for review, but to lodge it with the first respondent once the court had upheld and protected his right to object.

Viewed differently, he argued that the High Court had wrongfully conflated the application seeking the declaration of his right to object to the second sale with the procedure that he had to adopt to enjoy that right.

In its judgment, the Supreme Court took a few steps backwards, and, without making any reference to the Notice of Appeal or seeking further submissions from the parties, found that the applicant had not lodged with the first respondent an objection to the second sale as was required of him by Rule 359(1) of the High Court Rules 1971 (now Rule 71(38)).

After setting out the relevant Rule in detail, the Supreme Court found that the applicant had not complied with the provisions of the Rule, which, in its view, is worded in peremptory terms.

For emphasis, the court a quo went further to hold that there was no provision in the Rule that imposes a duty on the first respondent to invite persons to submit objections to the confirmations of the sale of immovable property in execution of court judgments.

The above finding became the ratio decidendi of the Supreme Court judgement....,.

It is his intention to bring an application alleging that the Supreme Court judgment breaches his right to equal protection and benefit of the law and the right to a fair hearing before an independent and impartial court.

He submitted, in this regard, that the Supreme Court judgement is erroneous both in fact and in law....,.

I turn, first, to the Supreme Court decision.

The finding by the Supreme Court, that, the applicant had not lodged an objection with the first respondent to trigger the exercise of discretion by the first respondent in terms of the then Rule 359 of the High Court Rules was clearly not in answer to any of the issues that arose from the appeal or could have risen therefrom.

This is so because it was common cause amongst the parties, that, the applicant was not afforded the mandatory fifteen days within which to lodge the objection to the second sale.

It was this denial of the right, created and afforded him by the law, which triggered the litigation before the High Court.

In the circumstances of this application, the conclusion that the Supreme Court did not determine the real issue that was placed before it by the appeal is unavoidable.

The import of a failure by the Supreme Court to deal with the issues raised by the appeal has been discussed in a number of decisions of the Supreme Court itself: see Nzara & Others v Kashumba N.O. and Others SC18-18; A Adam & Company (Private) Limited & Others v Good Living Real Estate (Private) Limited & Others SC18-21; Zimbabwe Revenue Authority v Packers International (Private) Limited SC28-16; and Gwaradzimba N.O. v C.J. Petron & Company (Proprietary) Limited SC12-16.

It is the settled position that any failure to determine the issue or issues arising from the dispute between the parties is a misdirection gross enough to vitiate the order made at the end of the hearing.

The Supreme Court has held, that, it is improper for any court to either stray from the issues arising from the pleadings or to pick up an issue for the parties and determine the dispute on the basis of the issue so created by it.

This is the standard that the Supreme Court, as the apex court in all common law matters, has, since time immemorial, set and enforced upon the procedures and decisions of lower courts.

It is therefore the standard against which its own procedures and decisions must, in turn, be measured.

The relief sought by the applicant is two-pronged:

(i) The first prong is a declaration that the respondent failed to fulfil its constitutional obligation under section 152(3)(c) of the Constitution in respect of the Electoral (Nomination of Candidates) (Amendment) Regulations 2022 (No.1), SI 144 of 2022.

(ii) The second prong is a declaration that the Regulations embodied in the Electoral (Nomination of Candidates) (Amendment) Regulations 2022 (No.1), S.I. 144 of 2022 are null and void and of no force or effect.

Section 175(6) of the Constitution sets out the powers exercisable by the courts when dealing with constitutional matters. It provides as follows:

“When deciding a constitutional matter within its jurisdiction a court may –

(a) Declare that any law or conduct that is inconsistent with the Constitution is invalid to the extent of the inconsistency;

(b) Make any order that is just and equitable, including an order limiting the retrospective effect of the declaration of invalidity and an order suspending, conditionally or unconditionally, the declaration of invalidity for any period to allow the competent authority to correct the defect.”

Counsel for the applicant initially argued, that, once the Court decides to grant the first declarator, the only just and equitable remedy available was to set aside or invalidate the impugned statutory instrument.

The remedy granted must vindicate the Constitution and the Court has a special role to deal with sensitive political matters. He further argued, that, while an order of mandamus was acceptable, the more effective remedy was to set aside the Electoral (Nomination of Candidates) (Amendment) Regulations 2022 (No.1), S.I. 144/22.

Counsel for the respondent countered, that, neither remedy was acceptable.

In any case, he was averse to an order of mandamus as the Parliamentary Legal Committee (PLC) had not as yet completed its process of examining the impugned instrument. The PLC was awaiting a dialogue with the Zimbabwe Electoral Commission (ZEC) before issuing its adverse report or non-adverse certificate.

In the peculiar circumstances of this case, I take the view that a declaration of nullity or invalidity would be inappropriate and incompetent, even though that might settle the question as to the intrinsic constitutionality of the Electoral (Nomination of Candidates) (Amendment) Regulations 2022 (No.1), SI 144/22.

Firstly, the Court cannot deal with that question because the applicant has not directly asked it to do so.

Secondly, the basis of the declaration of invalidity sought by the applicant, as it appears from the draft order, is that the Electoral (Nomination of Candidates) (Amendment) Regulations 2022 (No.1),S.I.144/22 be declared invalid as a specific consequence of the respondent's failure to examine the instrument, and not because it was inherently unconstitutional.

This is an application brought in terms of Rule 10(2) of the Constitutional Court Rules 2016 (“the Rules”). The applicant sought leave to be admitted as amicus curiae in the matter of Douglas Togaraseyi Mwonzora and Another v Zimbabwe Electoral Commission and Others, which application was filed under case number CCZ 20/23 (“the main matter”)....,.

Counsel for the applicant submitted, that, the applicant had the onus of proving the considerations set out in Rule 10(3)(a)–(d) of the Constitutional Court Rules....,.

The Constitutional Court Rules 2016 define and set out the procedural mechanism for the admission of amicus curiae in the Constitutional Court. It is to that Rule that a litigant must turn to understand the requirements for admission as amicus curiae.

The defendants (who are the excipients in this matter) have excepted to the plaintiff's (who is respondent) declaration, and, I have to decide whether that exception has merit or not.

The plaintiff is a Government Minister, being the Minister of Defence, and a senior member of a political party known as the Zimbabwe African National Union Patriotic Front (Zanu PF) which is one of the ruling parties in the current Government of National Unity.

The defendants are the owner of a publication which is said to enjoy wide circulation in Zimbabwe, namely, The Zimbabwe Independent, and its editor.

In The Zimbabwe Independent edition of 11 May 2012, an article was published in the front page under the title “Mnangagwa Ready to Rule.” The article reads, in pertinent part, thus:

“Defence Minister, Emmerson Mnangagwa (pictured), has, for the first time, openly declared his interest in taking over from President Robert Mugabe as the leader of Zanu PF and the country, in remarks showing the succession battle in the party is intensifying. Mnangagwa told the Zimbabwe Independent last Friday at Heroes Acre, during the burial of Zanu-PF politburo member, Edson Ncube, he was ready to govern if given an opportunity. This virtually confirmed he is positioning himself to succeed Mugabe, remarks which could anger senior Zanu PF officials and fuel factionalism and internal power struggles ahead of the next elections.

'I am ready to rule if selected to do so' Mnangagwa said.

'Zanu PF is about observing the will of the people, and I will respect the people's wishes if they choose me'…,.

In remarks which show succession is now hotly-contested, Zanu-PF secretary for administration, Didymus Mutasa, this week poured cold water on Mnangangwa's ambitions, saying he would not waste his time commenting on individuals dreams;

'I do not want to be drawn into baseless arguments by commenting on individuals wishes' said Mutasa.

'I will comment on that issue when the time comes, that is, when the people, here I mean Zanu PF, have chosen him as the leader of the party.'

Mutasa, who is number five in the hierarchy, recently said Mnangagwa, who is not in the top 10, was far down the pecking order to succeed Mugabe compared to Mujuru and others….,.

Mnangagwa has been battling the Mujuru faction for years in a sustained turf war to succeed Mugabe. The Zanu PF fight for power has escalated as evidence mounts that Mugabe is struggling with old age complications and ill health. Factionalism and infighting recently flared up in Zanu PF forcing Mugabe, last Friday, to slam faction leaders and greed, saying they were destroying his party.

Mnangangwa has been fighting to take over from Mugabe for a long time. He first tried to position himself as heir apparent by vying for the vice-presidency in the run up to the 2004 congress but was ruthlessly crushed by Mugabe and the Mujuru faction. His camp was also trounced during the 2009 congress but is now gaining ground….,.

Zanu PF spokesperson, Rugare Gumbo, also appeared to dismiss Mnangagwa's ambitions, saying, his party had laid down procedures to be followed on succession;

'In Zanu PF, we have a hierarchy and this is adhered to whenever there is need for promotion' said Gumbo.

'Whilst people may harbour presidential ambitions, it is unfortunate (for Mnangagwa) that we follow this hierarchy'…,.

The Zanu-PF Youth league said factional leaders causing chaos in the party should be confronted and dealt with head on;

'These are pretenders (factional leaders) and we don't work with pretenders but the person elected at the congress. We deal with reality – that is the person in power;' National Deputy Youth Secretary for External Affairs, Tongai Kasukuwere, said.

'If people are named for fanning divisions, they must be disciplined. We don't want to work with people who cause confusion.'”

The plaintiff took issue with the article and instituted summons action against the defendants seeking defamation damages of US$1 million.

In paragraphs 2.6 to 2.9 of his declaration, he made the following averments;

“2.6 The article specifically alleges that (the) plaintiff, is a leader of a 'faction' fighting and involved in a power struggle with other Government officials to succeed the President of Zimbabwe.

2.7. The article is false in that the plaintiff never made the remarks attributed to him in the article nor did he speak to the Zimbabwe Independent or anybody else as alleged.

2.8. The article is defamatory per se of (the) plaintiff to whom it refers, in both his personal as well as his professional capacities.

2.9. As a result of the defamation, (the) plaintiff has been damaged in his good name and reputation and suffered damages in the amount of USD1,000,000.”...,.

The defendants have excepted as follows:

“The defendants hereby note an exception to (the) plaintiff's declaration as disclosing no cause of action in that the words complained of are not defamatory per se and can under no circumstances be damaging to (the) plaintiff's good name and reputation.

Wherefore (the) defendants pray that (the) plaintiff's claim be struck down with costs on the scale of legal practitioner and client.”

Where exception is taken on a defamation suit, the law is as was set out by the learned author J.M. BURCHELL, The Law of Defamation in South Africa, Juta & Co. Ltd…, where he said:

“Where exception is taken to the plaintiff's declaration, the test of what constitutes defamatory matter is different from that at the trial stage.

TINDALL JA said in Basner v Trigger 1945 AD 229 & 32 (this case involved an innuendo, but the test on exception is the same):

'In other words, all the court is called on to decide, at this stage, is whether a reasonable person of ordinary intelligence, having heard the defendants words, and having knowledge of the circumstances…, might reasonably understand these words as meaning that the plaintiff had been guilty of illegal or criminal conduct….,.'

The test on exception is, therefore, whether a reasonable person of normal intelligence, and with knowledge of the circumstances, could or might regard the statement as defamatory, whereas, at the trial stage, the test is whether a reasonable person would regard it as defamatory.”

The above passage in J M BURCHELL, The Law of Defamation in South Africa, Juta & Co. Ltd was adopted in our jurisdiction by SANDURA JP…, in Zvobgo v Mutjuwadi & Ors 1985 (3) SA 1055 (ZH)…, where the learned judge pronounced:

“I must now deal with the fourth defendant's exception to the plaintiff's declaration. The fourth defendant excepts to the plaintiff's declaration on the ground, that, it is bad in law because it discloses no cause of action in that the words relied upon are not reasonably capable of conveying a defamatory meaning.

I ought to make it quite clear right from the outset, that, I do not have to determine, at this stage, whether or not the article in question is in fact defamatory. What I must decide is whether the words complained of are reasonably capable of conveying, to the average reader, the defamatory meaning assigned to them by the plaintiff. This is made quite clearly by Burchell in his new book, The Law of Defamation in South Africa at 102-3.”

In Auridiam Zimbabwe (Pvt) Ltd v Modus Publications (Pvt) Ltd 1993 (2) ZLR 359 (H)…, ROBINSON J added the following:

“The test is undoubtedly an objective one. See Botha en'n Ander v Marais 1974 (1) SA 44 (A) at 48E and Demmers on appeal supra at 842A-B. In Visse's cases supra at 447, MURRAY J went on to say:

'The test to be applied by the court in determining whether these words are reasonably capable of the alleged defamatory meaning is the effect on the mind of the ordinary reader, an average reasonable person of ordinary intelligence; Basner v Trigger 1945 AD at p32, who reads the article with ordinary care, but not as 'an astute lawyer or a super critical reader would read the passage'; per WESSELS JA in Johnson v Rand Daily Mails 1928 AD at p204.'

The learned judge went on, at 371C-G, to say:

'Accordingly, putting aside, as I am told I must do, my training and my logical, critical, and analytical habits of mind as a lawyer and stepping into the shoes of the ordinary reader of the Financial Gazette, the question which I must answer is: what immediate impact would the contents of the article in question have on the mind of such a reader and what would be the overall impression gained by him? Or, put another way, in the contest of the article as a whole, are the words used reasonably capable of conveying to the reasonable reader the defamatory meanings ascribed to them by the plaintiff in para 5 of his declaration?'”

BEADLE AJ…, made the point in McKelvey v Cowan NO 1980 (4) SA 525 (Z) that:

“It is a first principle in dealing with matters of exception, that, if evidence can be led which can disclose a cause of action alleged in the pleading, that particular pleading is not excipiable. A pleading is only excipiable on the basis that no possible evidence led on the pleadings can disclose a cause of action. That is the manner in which I approach this case.”

Counsel for the defendants submitted, that, the article complained of does not in fact specifically allege that the plaintiff is a faction leader - although the implication is there....,.

Counsel for the plaintiff pointed to passages in the article which, in his view, would be understood by the ordinary reader to mean that the respondent is of a diminished reputation and character.

According to counsel for the plaintiff, the crux of the matter lies in paragraph 2.8 of the declaration which avers, that, the article complained of is defamatory per se. For that reason, the article must be examined in its entirety to determine whether it would convey the message complained of.

I agree.

I am mindful of the fact, that, I am not being called upon, at this point in time, to determine whether the article is defamatory. That is the province of the trial court. What I have to determine, at this stage, is whether the article is reasonably capable of conveying to the average reader the defamatory meaning assigned to it by the plaintiff.

In doing so, I must, as suggested by ROBINSON J in Auridiam Zimbabwe (Pvt) Ltd v Modus Publications (Pvt) Ltd 1993 (2) ZLR 359 (H) put aside my training and my logical, critical, and analytical habits of mind as a lawyer and step into the shoes of the ordinary reader of The Zimbabwe Independent in order to answer that question.

The article states, that, the respondent is “positioning himself to succeed Mugabe, remarks which could anger senior Zanu PF officials and fuel factionalism and internal power struggles.”

It also states, that, Zanu-PF has laid down succession procedures which it follows whenever there is a need for promotion. The ambitions of the plaintiff, who is not even in the top 10 of that hierarchy, to succeed the President are therefore misplaced and at variance with the procedures of that party.

It is the kind of ambition which could fuel factionalism and internal struggles, which have already flared up, resulting in President Mugabe slamming faction leaders for greed and destroying his party.

Indeed, even the youth wing of Zanu PF has taken a stand against faction leaders for fanning divisions, insisting that they should be disciplined.

To the extent that the declaration makes the averment that the entire article is defamatory per se, and that one has to therefore look at it in its entirety, one cannot avoid the conclusion, that, in the context of the article as a whole, the words used are reasonably capable of conveying to the reasonable reader of The Zimbabwe Independent the defamatory meaning ascribed to them by the plaintiff.

Generally, factionalism is presented as a sticking problem for Zanu PF and faction leaders as not only undisciplined but also as destroying the party.

I do not agree with counsel for the defendants, that, the article does not allege that the plaintiff is a faction leader. In fact, that argument is made half-heartedly because counsel conceded, at the same time, that, the implication is there.

This is a court application made in terms of section 85(1) of the Constitution of Zimbabwe (No.20) Act 2013 (the Constitution') which section provides for direct access to this Court in the pursuance of the protection of fundamental rights and freedoms as enshrined in Chapter 4 of the Constitution, and also, alternatively, direct access ostensibly motivated pursuant to section 167(5) of the Constitution.

The applicant seeks an order declaring the Petroleum (Mandatory Blending of Anhydrous Ethanol with Unleaded Petrol) Regulations S.I.17 of 2013 (hereinafter referred to as “the Petroleum Regulations”') and the Petroleum (Mandatory Blending of Anhydrous Ethanol with Unleaded Petrol) Amendment Regulations (No.1) S.I. 147A, 2013 (hereinafter referred to as 'the Amendment Regulations') to be ultra vires the Constitution and that they be set aside....,.

The issue that remains before this Court is whether the allegation, that, the Petroleum (Mandatory Blending of Anhydrous Ethanol with Unleaded Petrol) Regulations S.I.17 of 2013 are ultra vires the parent Act entitles the applicant to approach this Court, directly, in terms of section 134(c) of the Constitution....,.

On the second inquiry, this Court…, is simply being asked to determine whether the Petroleum (Mandatory Blending of Anhydrous Ethanol with Unleaded Petrol) Regulations SI 17 of 2013 are in breach of any human right as defined in Chapter 4 of the Constitution….,.

With the latter inquiry, the applicant has the right to approach the Court in terms of section 85 of the Constitution of Zimbabwe….,.

With the former, it can be argued that the applicant's right to approach this Court is based on the common law. If that is the case, then, the old common law principles which require an individual to show some legitimate Constitutional interest must be applied.

The latter inquiry has already been exhaustively dealt with in the discussion on locus standi in the context of section 85(1) of the Constitution.

With regard to the former, the so-called "common law based” approach, it has been argued in this section, that, the applicant's position is akin to a request for direct access and that he should show it is in the interest of justice to grant access by, firstly, demonstrating at least a prima facie case, which he has failed to do as shown above, and, secondly, exhaustion of other remedies.

Now, as far as exhausting other remedies is concerned, section 167(1)(b) of the Constitution, which the applicant urges this Court to rely on, provides that the Constitutional Court "decides only constitutional matters and issues connected with decisions on constitutional matters, in particular, references and applications under section 131(8)(b) and paragraph 9(2) of the Fifth Schedule."…,.

The applicant does not purport to bring the application in terms of section 131(8)(b) of the Constitution or related provision, and, indeed, would not be able to do so as this is a legislative function or prerogative.

Paragraph 9(2) of the Fifth Schedule of the Constitution bears quoting in full:

“(2) If, after considering a report of the Parliamentary Legal Committee, that a provision of a statutory instrument contravenes this Constitution, the Senate or the National Assembly resolves that the provision does contravene this Constitution, the Clerk of Parliament must report the resolution to the authority which enacted the instrument, and that authority must, within 21 days after being so notified, either —

(a) Apply to the Constitutional Court for a declaration that the statutory instrument is in accordance with this Constitution; or

(b) Repeal the statutory instrument.”

This is an appeal against the whole judgment of the High court handed down on 15 June 2016, granting a declaratory order in favour of the respondent.

The judgment declared binding and enforceable certain agreements concluded between the respondent and Interfin Bank Ltd and further compelled the first and second appellants to honour the terms of the agreements.

The respondent purchased certain bankers acceptances from Interfin Bank Limited ("the Bank”) on a buy back basis. This was between 2011 and 2012. As security for the payment of the purchase price upon the maturity of the bankers acceptances, the Bank ceded to the respondent various agreements that it had with the drawers and issuers of the bankers acceptances. In addition, the parties concluded two agreements, in April 2012, styled Security Assignment Agreement and Security Trust Deed, respectively, detailing the terms of the transaction.

In simple terms, the respondent made available to Interfin Bank Limited (the Bank) a certain sum of money (whose amount is not disclosed in any of the written agreements), in exchange for the Bank's debts. As security that the respondent would recover part or the whole of its outlay, the Bank ceded to it the agreements and rights that the Bank had against the debtors and the debts due therefrom.

Thus, it was specifically agreed between the parties that:

(i) The security and contracts assigned to the respondent would be re-assigned to Interfin Bank Limited (the Bank) upon repayment of all amounts due to the respondent;

(ii) The Bank would provide the respondent with any information or documents concerning the security held in respect of the advance;

(iii) The Bank would promptly commence legal proceedings against any issuer of the bankers acceptances or assigned contracts who defaulted thereof; and

(iv) The Bank would, at the request of the respondent, provide all reasonable administrative and operational support in connection with the enforcement of any judgment or award given against a party to an assigned contract.

On 11 June 2012, Interfin Bank Limited (the Bank) was placed under curatorship by the Reserve Bank in terms of section 53 of the Banking Act [Chapter 24:20]. This is the law that authorises and empowers the Reserve Bank to curate a bank which is in an unsound financial position and is not operating in accordance with sound administrative and accounting practices or has failed to comply with the minimum prescribed financial requirements.

A curator was duly appointed.

The agreements that Interfin Bank Limited (the Bank) had concluded with the respondent, in April 2012, were brought to his attention. He agreed to be bound by the terms of the agreements. Up to the time when his curatorship ended, in December 2014, the curator collected on some of the debts on behalf of the Bank and remitted these to the respondent in accordance with the terms of the two agreements.

In February 2015, Interfin Bank Limited (the Bank) was placed under final liquidation. The second appellant was appointed as the liquidator.

Once again, the respondent brought to the attention of the liquidator the two agreements, at the same time seeking confirmation that the second respondent would honour the agreements. The first appellant, in his capacity, then, as Chief Executive Officer of the second appellant, did not respond to the inquiry.

This prompted the respondent to file an application with the court a quo four months after making the inquiry.

In the application, the respondent sought a declaratory order that the agreements were binding on the appellants. As consequential relief, it prayed that the appellants be compelled to honour the terms of the agreements.

The application was opposed.

The appellants, as respondents a quo, filed a counter application seeking an order setting aside the agreements and compelling the respondent to refund the remittances he had received from the curator.

At the hearing of the application, the appellants took a number of points in limine. These included the following:

(i) That, there were material disputes of facts which could not be resolved on the basis of the papers filed of record;

(ii) That, there was no prior exchange control approval for the agreements;

(iii) That, the respondent, being a foreign company, was illegally trading in the jurisdiction without a locally registered office;

(iv) That, the transactions between the respondent and Interfin Bank Limited (the Bank) were impeachable under the insolvency laws; and

(v) That, the respondent had proceeded to file the court application without the prior leave of the court.

After dismissing all the preliminary points and the counter-claim, the court a quo, as stated above, granted the declaratory order and consequential relief.

Aggrieved by that decision, the appellant noted this appeal, raising eight grounds of appeal. It is not necessary that I recite the eight grounds in this judgment.

At the hearing of the matter, counsel for the appellants argued, and correctly so in my view, that, one or more of the first three grounds of appeal would resolve the appeal. These included the issue raised in the last point in limine taken by the appellants a quo, to the effect that the respondent had proceeded to file the proceedings a quo without the prior leave of the court.

This appeal turns on whether the proceedings a quo were properly before that court. Put differently, it turns on whether leave was required before the application could be made?

As indicated above, the issue whether leave was required before the proceedings a quo could be brought was specifically raised before the court a quo. Agreeing with the argument by the respondent, that, the cause before it was not against Interfin Bank Limited (the Bank) but was against the liquidator, as an administrative authority, under the Administrative Justice Act [Chapter 10:28], the court a quo held that its prior leave was not necessary in the circumstances.

It was of the further view, that, the cause before it sought to coerce the first appellant, in his official and personal capacity, to respond to the questions that the respondent had posed to him as to whether the second appellant would recognise and honour the two agreements.

In its view, where a liquidator acts unreasonably or unfairly, he or she can be sued without the leave of the court.

It is not necessary that I determine whether the court a quo was correct in holding, that, where the liquidator, as an administrative authority, is sued to respond to questions posed to him or her in connection with the liquidation process, leave of the court is not required before such proceedings are commenced.

This is so because the proceedings before the court a quo were not to compel the liquidator to respond to the questions that had been posed to it by the respondent or to compel the liquidator to act reasonably and fairly.

The cause before the court was against Interfin Bank Limited (the Bank) in liquidation, founded as it was on the two contracts between the Bank and the respondent. The cause was contractual and not administrative in nature. This is clear from the terms of the order that was sought and granted.

Per contra, no order was sought against the first appellant in his personal capacity.

Whilst it is common cause that the first appellant had not responded to the inquiry by the respondent, the draft order did not seek to compel him to so respond.

Thus, if the application was to compel the first appellant to respond to the inquiry, as the court a quo held, then, the draft order would have sought a mandamus and the order of the court would have equally been a mandamus directing the appellants to respond to the inquiry and nothing more.

It was not.

Instead, the order sought, and granted, required the second appellant to step into the shoes of Interfin Bank Limited (the Bank) and apply the assets of the Bank to meet the terms of the agreements....,.

It is therefore my finding, that, the court a quo erred in construing the cause that was before it.

The application a quo was not against the appellants in their personal capacities. It was against Interfin Bank Limited (the Bank) in liquidation. It sought to compel the second appellant to perform under the two agreements that the respondent had with the Bank - as if it was the Bank.

Such proceedings ought to have been with the leave of court.

The respondent issued summons out of the High Court seeking an order for the release of its plastic bags which were being retained by the appellant, payment of the sum of US$157,350=05 representing the business it lost as a result of such retention, and costs of suit on the scale of legal practitioner and client.

The respondent also sought payment of interest from the date of issue of summons to the date of payment in full.

After hearing evidence and submissions from the parties, the court a quo ordered the appellant to pay the sum of $157,350=05 to the respondent being damages for loss of business, interest on that sum at the prescribed rate, and costs of suit on the ordinary scale.

The present appeal is against that order.

The appellant is a company registered in accordance with the laws of Zimbabwe and carries on business from premises in Avondale, Harare. It is an agent of the Mediterranean Shipping Company (“Mediterranean Shipping”) a company that operates worldwide with its core business being the carriage of containers.

As agent, appellant's responsibility is to fulfil the obligations of Mediterranean Shipping by facilitating delivery of containerised cargo to the clients of Mediterranean Shipping in Zimbabwe.

In this particular instance, at the behest of Mediterranean Shipping, the appellant supervised the movement, by road, of the plastic bags, which were in a container, from the Port of Beira to Mutare Dry Port.

In Mutare, the appellant instructed the employees of the Port not to release the goods until certain monies were paid by the respondent.

It is common cause, that, initially, the appellant refused to release the container until a sum of money owed by the wife of one of the directors of the respondent had been paid. Upon realizing that the debt had nothing to do with the respondent, the appellant then demanded payment of the sum of $80=50 in respect of handling charges.

The respondent, believing the bags had been unlawfully retained by the appellant, instituted proceedings in October 2012 for the release of the bags, damages for loss of business, and interest thereon at the prescribed rate.

The sum of $80=50 was only paid in August 2013 after which the plastic bags were then retrieved.

In its declaration, the respondent alleged that it had imported a container of plastic bags from Hong Kong and that it had engaged the appellant as its agent to facilitate the importation and clearing of the goods with the Zimbabwe Revenue Authority(“ZIMRA”).

It alleged, that, notwithstanding the fact that it had paid the import duty and the appellant's clearing fees, the appellant had refused to release the container on the basis that it was owed money from a previous transaction by the wife of one of the respondent's directors.

It alleged, that, consequent upon the refusal by the appellant to release the container, a client who had placed an order with it for plastic bags had cancelled the order as a result of which the respondent had suffered damages in the amount claimed.

In its plea, the appellant, as defendant, denied that it had entered into a contract of agency with the respondent.

It alleged, that, it had been contracted by the shipper (a term used in the freight business to denote the person who prepares the necessary documentation for the carriage of goods), Hong Kong Richer Int'l Group Limited (”Richer International”) to transport the cartons of plastic bags cif Mutare. It alleged, that, it duly discharged its obligations to deliver the container to Mutare Dry Port after which the respondent became liable to pay its administration fee relating to the Bill of Lading and the container in the sum of $80=50.

The appellant accepted that it refused to release the container before payment of the administration fee in the sum of $80=50 had been made.

At a pre-trial conference before a judge in chambers, the parties agreed the issues to be determined at the trial.

The issues included, inter alia, whether a contract existed between the parties, and, if so, the terms thereof. Further, whether the appellant was entitled to refuse to release the container until payment of the handling fee of $80=50 had been made, and, if not, whether the respondent had suffered damages in the amount claimed in the summons.

During viva voce evidence, the respondent, represented by its managing director, Albert Kuwaza, stated as follows:

His company ordered the plastic bags from China, and, through the supplier, engaged the appellant at its offices in China to transport the merchandise from China to Mutare, Zimbabwe. Once the goods were in Mutare, the appellant then demanded payment of the sum of $1,750 which it alleged was owed by a Mrs Kuwaza, wife of one of the respondent's directors, in respect of a previous transaction.

The issue of the handling fee of $80=50 was raised by the appellant for the first time in October 2012, way after a client who had placed an order for the bags had cancelled the purchase.

Under cross-examination, he conceded, that, in fact, the company with which he contracted in China was Hong Kong Richer Int'l Group Limited (Richer International) and that Richer International, in turn, contracted with Mediterranean Shipping to transport the goods to Mutare. He further conceded, that, the clearing fees were paid directly to Green Motor Services, the company that was operating Mutare Dry Port and not to the appellant. He told the court, further, that, as far as he was concerned, the appellant, Mediterranean Shipping, and Green Motor Services were part of the same company.

Following the dismissal of an application for absolution at the close of the plaintiff's case, the appellant's managing director, Dr Giorgio Spambinato, gave evidence before the court a quo. His evidence was as follows:

The appellant, which operates from offices situate at 27 Natal Road, Belgravia, Harare is an agent of Mediterranean Shipping. It has no offices outside Zimbabwe. The appellant's role was to assist Mediterranean Shipping to execute its contractual obligation of moving cargo into and out of Zimbabwe. In this case, the appellant only supervised the movement, by road, of the container from the Port of Beira to Mutare. It was not involved in the clearance of the goods with the Zimbabwe Revenue Authority (ZIMRA).

He confirmed that, initially, the appellant had insisted on payment of the sum of $1,750 owed by a Mrs Kuwaza in respect of a previous transaction, but, on realizing the error, had personally instructed that the container be released on payment of the sum of $80=50.

That sum represented the handling fee for facilitating the necessary documentation and supervising the speedy execution of delivery by sub-contractors and service providers.

He explained, that, in Zimbabwe, it is customary for the agent handling the cargo on behalf of Mediterranean Shipping to recover the costs directly from the recipients of the cargo. In other countries, the handling fee is paid by Mediterranean Shipping.

Whatever role the appellant played in this case was in fulfilment of its agency agreement with Mediterranean Shipping.

In its closing address a quo, the respondent submitted, that, the question whether there was a contract was “of no real consequence” and that “there needn't have been a contract between them because the scenario can be resolved by the principles of depositum…,.” Further, that, as depositary, the appellant had an obligation to return the goods to the respondent upon demand.

The respondent further submitted, that, it was clear from the summons and declaration that the claim “was vindicatory in nature, not contractual.”

Accordingly, the respondent prayed for its claim for damages and interest thereon to be granted on the basis of depositum.

In its address a quo, the appellant submitted, that, on the evidence led before the court, no contract had been proven. The person with whom the respondent had communicated in China was not the appellant but an employee of Mediterranean Shipping. More critically, the terms of the alleged contract between the respondent and the appellant had not been established. Moreover, at no stage had the respondent deposited the goods with the appellant.

In its judgment, the court a quo found, that, Mr Kuwaza, the managing director of the respondent had been unclear as to the nature of the relationship between the appellant, Mediterranean Shipping, Hong Kong Richer Int'l Group Limited (Richer International) and the respondent.

The court remarked as follows at page 10 of its judgment:

“What is apparent from Mr Kuwaza's evidence is that he did not produce any documents to show the existence of a contract between the plaintiff and the defendant. From the evidence that is before me, it is clear that the plaintiff entered into a shipping agreement with Mediterranean Shipping Company in Hong Kong, China in April 2012 for the shipment of its plastic container from China to Zimbabwe. That contract did not involve the defendant.”

However, at pages 10-11 of the cyclostyled judgment, the court a quo stated:

“I am of the considered view, that, the circumstances of this case show, that, there was a contract between the plaintiff and the defendant. Although the defendant said that it was acting as an agent of Mediterranean Shipping Company, its conduct towards the plaintiff shows that it also contracted with the plaintiff separately. It is not disputed that the defendant facilitated the importation of the plaintiff's cargo from the Port of Beira to Mutare.

Thereafter, it demanded payment from the plaintiff for the service that it had rendered.

The parties did not enter into this contract verbally or in writing, but, they did so by their conduct.

By demanding payment from the plaintiff for the costs it incurred in facilitating the importation of the plaintiff's cargo, the defendant created a contract between itself and the plaintiff. It made it a condition of the contract, that, if the administration fee was not paid, the plaintiff's cargo was not going to be released.

If there was no contract between the plaintiff and the defendant, the defendant should have simply demanded payment of its fees from Mediterranean Shipping Company which it alleges to be its principal.

At law, an agent's duty is to perform his mandate on behalf of his principal and he accounts to his principal. The agent's remuneration is paid by the principal and not by a third party.

I therefore take it, that, the moment an agent starts demanding payment from the third party and not from his principal, then, it means that he is no longer acting in terms of the contract between himself and his principal, but he would have created his own contract with the third party.

That contract he would have created with the third party is separate from his contract with his principal.

In casu, this is what the defendant did. It created its own contract with the plaintiff, which contract was separate from the one it had with Mediterranean Shipping Company.”

At page 12 of its judgment, the court, without commenting on the submission by the respondent, that, it now relied on a contract of depositum, concluded by stating:

“If there was no contract between the 2 companies, then, the defendant should and would have demanded its fee from Mediterranean Shipping Company which is its principal. If there was on (sic) contract, the defendant had no business demanding that money from the plaintiff. It also had no business withholding or refusing to release the plaintiff's container on the basis that the handling fee had not been paid. All the defendant's payments would have been due from Mediterranean Shipping Company. The plaintiff managed to prove that there was contract between itself and the defendant.”

Based on the above findings, the court concluded, that, the appellant had wrongfully refused to release the container and that the respondent had proved its contractual damages. It consequently made the order which is the subject of this appeal.

In its notice of appeal, the appellant raised five grounds. These are:

(i) The court a quo erred in finding, that, there was a contract between the appellant and the respondent when the latter was unable to identify the nature of the contract it relied upon and its terms – i.e. whether the contract was one of carriage, depositum, or agency.

(ii) The court a quo erred in finding, that, there was a contract between the appellant and the respondent despite a contrary indication in the Bill of Lading and the respondent's lack of knowledge of the terms of the contract it alleged.

(iii) The court a quo erred in placing the onus of proving the terms of the contractual relationship between the appellant and the respondent on the former, albeit obliquely.

(iv) The court a quo erred in finding that -

(1) The contract for the sale of the plastic bags between the respondent and Nedol Investments (Private) Limited was not a sham; and

(2) The loss suffered by the respondent, if any, was reasonably foreseen by the appellant at the time of the conclusion of the alleged contract, and, despite the fact that the reasonable foreseeability was not specifically pleaded and proved.

(v) The court a quo erred in finding that the respondent had mitigated its loss.

In its submissions before this Court, the appellant has argued, that, the respondent did not sufficiently identify the nature of the contract between the parties, in particular, whether it was one of agency or depositum. The terms of the agreement, be it agency or depositum, remained unknown.

It further submitted, that, the case for the respondent was muddled and that the judgment of the court a quo was equally confusing and confused. Lastly, it submitted that whilst the facts show some relationship between the parties, the respondent had not proved the nature of the relationship that existed between them.

In its heads of argument, the respondent has submitted as follows:

Its declaration in the court a quo made it clear, that, what it sought was the release of its goods arising from their unlawful detention. Further, that, even if there was no contract of agency between the parties, the respondent “was not without a remedy” and that there was a tacit contract of depositum between the parties.

In paragraph 3 of its heads of argument, it has further stated:

“The respondent had contended that the claim was of a vindicatory nature and that any contract between the parties was one of depositum…,. As the appellant states, the court did not deal with these issues. It is here noted, that, by the time the matter came before the court, the goods had been released, and, if the claim had originally been vindicatory in nature, it no longer was, which was probably the reason why the court a quo allowed itself to be misled by the appellant to believe that the claim fell to be decided in contract.”…,.

At paragraph 10 of its heads of argument, the respondent has also stated:

“The absence of a contract, however, would not have left the respondent without a remedy because he would have a claim in delict for any loss incurred as a result of the unlawful possession of his property…,.”

Finally, at paragraphs 13 and 14 of its heads, the respondent has further argued:

“13. Thus, as the respondent's counsel contended at p239, the issue whether there was a contract between the parties was really of no consequence and the appeal cannot succeed on the basis that no such contract was brought into being.

The court a quo found, in effect, that, there was a tacit contract between the parties based on the fact, that, the appellant raised charges mentioned above against the respondent.”

It is clear from the foregoing that the respondent, as plaintiff, changed its cause of action as the trial progressed.

In the declaration, the claim clearly arises from a contract of agency. When the respondent realised that the evidence did not establish such agency…, it then claimed, without amending its pleadings, relief on the basis of the rei vindicatio and a contract of depositum.

In its submissions before this Court, the respondent says, whatever the correct position might be on whether or not it had a contract with the appellant, it cannot be without a remedy.

The suggestion was made that it even had a claim arising out of delict.

I am inclined to agree with learned counsel for the appellant, that, the cause of action a quo was most confusing.

The cause of action based on a contract of agency was abandoned in favour of the rei vindicatio and depositum, which had not been pleaded. No evidence was led on the terms of such contract.

To add to the confusion, before this Court, the possibility of the claim arising out of delict has also been thrown in.

The manner in which the respondent handled its cause of action in the court a quo, and before this Court, is most unsatisfactory and not permissible. Implicit in the submissions by the respondent, in support of the judgment of the court a quo, is that pleadings serve no purpose.

The manner in which the respondent has handled its case, both a quo, and in this Court, brings to the fore the question as to what the purpose of pleadings is.

In general, the purpose of pleadings is to clarify the issues between the parties that require determination by a court of law. Various decisions of the courts in this country, and elsewhere, have stressed this important principle.

In Durbach v Fairway Hotel Ltd 1949 (3) SA 1081 (SR) the court remarked:

“The whole purpose of pleadings is to bring clearly to the notice of the court, and the parties to an action, the issues upon which reliance is to be placed.”

HARWOOD BA in his text Odgers Principles of Pleading & Practice in Civil Actions in the High Court of Justice (16th edn, Stevens & Sons Ltd, London, 1957) states…,:

“The function of pleadings, then, is to ascertain with precision the matters on which the parties differ and the points on which they agree; and thus arrive at certain clear issues on which both parties desire a judicial decision.”

In Kali v Incorporated General Insurance Ltd 1976 (2) SA 179 (D)…, the court remarked:

“The purpose of pleading is to clarify the issues between the parties, and, a pleader cannot be allowed to direct the attention of the other party to one issue, and then, at the trial, attempt to canvass another.”

In Courtney–Clarke v Bassingthwaighte 1991 (1) SA 684 (Nm), the court remarked…,:

“In any case, there is no precedent or principle allowing a court to give judgment in favour of a party on a cause of action never pleaded; alternatively, there is no authority for ignoring the pleadings…, and giving judgment in favour of a plaintiff on a cause of action never pleaded. In such a case, the least a party can do, if he requires a substitution of or amendment of his cause of action, is to apply for an amendment.”

In Imprefed (Pty) Ltd v National Transport Commission 1993 (3) SA 94 (A) 108, the court cited with approval the case of Robinson v Randfontein Estates GM Co. Ltd 1925 AD 173 where…, it was stated as follows:

“The object of pleading is to define the issues; and parties will be kept strictly to their pleas where any departure would cause prejudice or would prevent full enquiry. But, within those limits, the court has a wide discretion. For pleadings are made for the court, not the court for pleadings. And, where a party has had every facility to place all the facts before the trial court and the investigation into all the circumstances has been as thorough and as patient as in this instance, there is no justification for interference by an appellate tribunal, merely because the pleading of the opponent has not been as explicit as it might have been.”

In Jowell v Bramwell-Jones 1998 (1) SA 836…, the court cited with approval the following remarks by the authors JACOB and GOLDREIN in their text Pleadings: Principles and Practice…,.:

“As the parties are adversaries, it is left to each of them to formulate his case in his own way, subject to the basic rules of pleadings….,. For the sake of certainty and finality, each party is bound by his own pleading and cannot be allowed to raise a different or fresh case without due amendment properly made.

Each party thus knows the case he has to meet and cannot be taken by surprise at the trial. The court itself is as much bound by the pleadings of the parties as they are themselves. It is not part of the duty or function of the court to enter upon any enquiry into the case before it other than to adjudicate upon the specific matters in dispute which the parties themselves have raised by their pleadings.

Indeed, the court would be acting contrary to its own character and nature if it were to pronounce upon any claim or defence not made by the parties. To do so would be to enter the realm of speculation….,.

Moreover, in such event, the parties themselves, or, at any rate, one of them, might well feel aggrieved; for a decision given on a claim or defence not made, or raised by or against a party, is equivalent to not hearing him at all and may thus be a denial of justice.

The court does not provide its own terms of reference or conduct its own inquiry into the merits of the case, but, accepts and acts upon the terms of reference which the parties have chosen and specified in their pleadings. In the adversary system of litigation, therefore, it is the parties themselves who set the agenda for the trial by their pleadings and neither party can complain if the agenda is strictly adhered to.”…,.

The authors, CILLIERS AC, LOOTS C and NEL HC in their text, Herbstein and Van Winsen, The Civil Practice of the High Courts of South Africa (5th edn, Juta and Co. Ltd, Cape Town 2009) quote the following passage from Halsbury's Laws of England, 4th edn (Reissue), Vol 36 para 1 in which the function of pleadings is said to be:

“…, to give a fair notice of the case which has to be met, and to define the issues on which the court will have to adjudicate in order to determine the matters in dispute between the parties. It follows, that, the pleadings enable the parties to decide, in advance of the trial, what evidence will be needed. From the pleadings, the appropriate method of trial can be determined. They also form a record which will be available if issues are sought to be litigated again. The matters in issue are determined by the state of pleadings at the close, if they are not subsequently amended.” (at page 558)

In Farrell v Secretary of State for Defence (1980) 1 All ER 166…, Lord Edmund-Davies stated as follows:

“It has become fashionable these days to attach decreasing importance to pleadings, and, it is beyond doubt that there have been times when an insistence on complete compliance with their technicalities put justice at risk, and, indeed, may, on occasion, have led to its being defeated.

But, pleadings continue to play an essential part in civil actions, and, although there has been…, a wide power to permit amendments, circumstances may arise when the grant of permission would work injustice or, at least, necessitate an adjournment which may prove particularly unfortunate in trial with a jury. To shrug off criticism as 'a mere pleading point' is therefore bad law and bad practice. For the primary purpose of pleadings remains, and it can still prove of vital importance. That purpose is to define the issues and thereby to inform the parties, in advance, of the case they have to meet and so enable them to take steps to deal with it.”

In a paper: A Judge's View Point, the Role of Pleadings presented by Justices Rares of the Federal Court of Australia and Richard White of the Supreme Court of New South Wales, at a judge's symposium, the learned judges remarked:

“Precise formulation of the applicant's rights in the initiating document is of central importance. This is because the pleading is the source from which many other consequences flow in the life of the litigation, from filing at first instance through to final resolution in the High Court. The pleading will be used as the reference point for the seeking of particulars, the administering of interrogatories (which is virtually extinct), the obtaining of an order for discovery if the court is satisfied this is required, the issue of subpoenas, the calling of evidence, the relevance and admissibility of evidence, the closing arguments, the reasons for judgments, and the availability of arguments on appeal.

At all of these points, the following questions arise: “Was this issue pleaded?” and “How was this issue pleaded?”

The question is not the loose one, whether the argument could possibly be raised on the evidence at the conclusion of a hearing, but, whether the issue has been pleaded….,.”

I associate myself entirely with the above remarks made by eminent jurists both in this jurisdiction and internationally.

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..

In an action based on a contract, the material averments that must usually be made are the existence of the contract, the relevant terms of the contract, and the applicability of those terms to the particular right forming the basis ex contractu of the claim: see HERBSTEIN & Van WINSEN, The Civil Practice of the High Courts of South Africa (5th edn, Juta and Co. Ltd, Cape Town 2009)…,.

This is an application for condonation for late noting of appeal and extension of time within which to note an appeal.

The background relevant to the determination of this matter is as follows:

In July 2009, the applicant purported to note an appeal against a judgment of the Labour Court. On 30 October 2009, the applicant made an application for condonation for late noting of appeal and extension of time within which to note an appeal in this Court. The application was granted by ZIYAMBI JA on 21 December 2009.

The order given reads as follows:

“IT IS ORDERED THAT:

1. The applicant be and is hereby granted leave to note an appeal against the entire judgment of the Honourable B.T. Chivizhe, President of the Labour Court, under Case No; LC/H218/2008 dated 24 February 2009, and extension of time within which to appeal.

2. The applicant shall file his notice and grounds of appeal within 5 days of the date of this order.”

The applicant proceeded to note his appeal.

The appeal was set down for hearing on 16 March 2010. On that day, the respondent raised a point in limine to the effect that there was no proper appeal before the court as the applicant had failed to comply with the Rules of this Court, in particular, Rule 4(1) of the Supreme Court (Miscellaneous Appeals and References) Rules 1975.

This Rule provides, that, the notice of appeal shall be served upon the Labour Court Registrar.

Such service, as required, was not done, and, as a result, the matter was struck off the roll for non-compliance with this particular Rule.

At that stage, there was no proper appeal pending before this Court.

On 18 March 2010, after having regularized the defects in his notice of appeal, the applicant approached this Court, for the second time, with an application for condonation for late noting of appeal and extension of time within which to note an appeal.

The respondent opposed the application, but, filed his notice of opposition out of time.

The applicant's application was then set down for hearing on 20 October 2010 before CHEDA AJA as an unopposed matter.

The matter proceeded on this day and judgment was reserved. It was then delivered on 30 August 2011.

It was on this day that the applicant's application for condonation for late noting of appeal and extension of time within which to note an appeal was dismissed.

CHEDA AJA went further and held that there were no prospects of success on appeal.

In dismissing the application, the learned judge placed reliance on the principles outlined in the case of De Kuszaba-Dabrowskiet Uxor v Steel NO 1966 RLR 60 (A).

Aggrieved by the decision of CHEDA AJA, the applicant, on 1 June 2012, made another application for condonation for late noting of appeal and extension of time within which to note an appeal for the third time.

The application was placed before me.

The application was opposed.

The applicant filed his heads of argument on 22 June 2012. The respondent did not file any heads of argument.

Counsel for the respondent submitted, that, he had briefed an advocate who was supposed to draft heads of argument and file them, but, the advocate had failed to do so.

Counsel for the respondent apologized and stated that he would present oral submissions.

At the commencement of the hearing, counsel for the applicant was asked as to whether or not the application filed ought to be heard by a single judge, sitting in chambers or by three judges in open court.

Following consultations with counsel for the respondent, counsel for the applicant indicated that the matter should be heard in chambers before a single judge. Counsel for the respondent agreed with this approach.

The question now before me is whether there is any law that provides for such an application to be made.

If there does exist such legal authority, then, the next issue is whether or not CHEDA AJA had dealt with the merits of the application.

Counsel for the applicant submitted, that, there was no law upon which this application was based.

Counsel for the applicant stated, that, he required clarity as to whether or not the applicant had prospects of success on appeal since there were two “conflicting” decisions of this court on this aspect. He made reference to the decision by ZIYAMBI JA on 21 December 2009 and the other by CHEDA AJA on 30 August 2011.

Counsel for the applicant submitted, that, CHEDA AJA erred and misdirected himself by dismissing the second application for condonation and extension of time within which to appeal when ZIYAMBI JA had earlier acceded to a similar application.

The applicant in this application is asking me to overturn the findings of CHEDA AJA, that the appeal has no prospects of success.

The applicant is not clear whether the application before me is for review or is an appeal....,.

The applicant conceded, that, there is no law that provides for such an application. The relief sought is not provided for by law.

Accordingly, this application must therefore fail.

Rule 61 of the Supreme Court Rules being inapplicable, this application is not properly before me.

This is a chamber application for condonation of the late noting of appeal and extension of time within which to appeal, purportedly in terms of Rule 38(1) of the Supreme Court Rules 2018.

The brief facts giving rise to this application may be stated as follows:

On 22 September 2016, the first respondent made a decision allowing the second respondent to effect developments on Stand 18962 Boundary Road, Eastlea, Harare, whose location the applicant contends is a wetland.

The decision was made under section 130(3) of the Environmental Management Act [Chapter 20:27].

Section 130 of the Environmental Management Act prescribes a period of 28 days within which an appeal must be filed in these terms:

“(1) Subject to this section, any person who is aggrieved by any decision of any authority in terms of this Act, may, within twenty-eight days after being notified of the decision or action of the authority concerned, appeal in writing to the Minister, submitting with his appeal such fee as may be prescribed:

Provided that such appeal shall not suspend the operation of any order, decision or action of the authority issued by the Authority.

(2) For the purpose of determining an appeal noted in terms of subsection (1), the Minister (if he is not the authority concerned in the appeal) may require the authority to furnish him with the reasons for the decision or action that is the subject of the appeal and a copy of any evidence upon which the reasons are based.

(3) The Minister, after due and expeditious inquiry, may make such order on any appeal noted in terms of subsection (1) as he considers just.

(4) An appeal shall lie to the Administrative Court against any order of the Minister in terms of subsection (3).

(5) An appeal in terms of subsection (4) shall be made in the form and manner and within the period prescribed in the rules of court.

(6) On appeal, in terms of subsection (4), the Administrative Court may confirm, vary, or set aside the decision or action appealed against and may make such order, whether as to costs or otherwise, as the court thinks just.”

The Minister, having made his decision on 22 September 2016, it was apparent that when the applicant sought to appeal against the Minister's decision, in March 2019, it was out of time.

The applicant therefore approached the Administrative Court with an application for condonation of late filing of appeal on 18 March 2019 under Rule 6 of the Administrative Court Rules, SI 122 of 1980.

On 7 June 2019, the applicant's application for condonation of late noting of appeal was dismissed by the Administrative Court for lack of prospects of success.

Aggrieved by that decision, the applicant filed a notice of appeal with this Court on 1 July 2019 and served the same on the other party on 2 July 2019.

The appeal was subsequently set down for hearing on 10 July 2020.

On that date, counsel for the respondent advised counsel for the appellant that the notice of appeal had been filed one day out of time and he was going to raise that as a preliminary point. Counsel for the applicant, without much reflection, conceded and opted to have the matter removed from the roll.

It is in an endeavour to overcome the alleged late filing of the notice of appeal that the applicant has now approached this Court with this application.

In the founding papers, the applicant averred that its notice of appeal was filed one day out of time and proffered reasons for that delay. Those reasons pertained essentially to administrative issues at the law firm of the applicant's legal practitioners.

The applicant asserts, in its founding affidavit, that this is an application for condonation of the applicant's failure to file its notice of appeal against the judgment of the Administrative Court within fifteen days in terms of Rule 38(1)(a) of the Supreme Court Rules 2018 and for an extension of time within which to appeal.

The relief sought was couched as follows:

“It is ordered that:

The failure to file a notice of appeal within fifteen days of the date the judgment appealed against was given, in terms of Rule 38(1)(a) of the Supreme Court Rules 2018, be and is hereby condoned.

The extension of time within which to note an appeal be and is hereby granted. The appeal is to be deemed to have been noted on the date of this order.”

The second respondent opposed the application.

In its opposition, it raised some preliminary points. The preliminary points were that:

(i) The application was not in the form provided for in terms of Practice Direction Number 1 of 2017;

(ii) This is a Rule 43 of the Supreme Court Rules application, yet, the applicant appears to be lodging one in terms of Rule 38 of the Supreme Court Rules; and

(iii) The relief sought is incompetent as Rule 38 of the Supreme Court Rules does not provide for condonation.

The applicant, in its answering affidavit, maintained that the application was compliant with Practice Direction Number 1 of 2017, Form 3. On the appropriate Rule, the applicant agreed that this was an application under Rule 43 of the Supreme Court Rules and that reference to Rule 38 of the Supreme Court Rules was only for the fifteen-day period for lodging an appeal.

On the date of hearing, counsel for the parties maintained their positions on the points in limine.

It was apparent that both counsel were of the view that the appeal in question was under Part VI of the Supreme Court Rules 2018 hence reference to Rule 38 and Rule 43 of the Supreme Court Rules.

It was only after I pointed out that Part VI pertains to civil appeals from the High Court and the appeal in question was from the Administrative Court that counsel for the applicant realized the error and submitted, that, in that case, the application should be under Part VII of the Supreme Court Rules.

She submitted that any reference to Rule 38(1) of the Supreme Court Rules should be substituted with Rule 60(1) of the Supreme Court Rules.

Unfortunately, this belated effort to amend the application, from the bar, could not amend the applicant's founding affidavit in which the applicant was clear on the Rules under which the application was being brought and attempted to provide requirements for condonation under those Rules.

I am of the view, that, where an application is brought under Part VI of the Supreme Court Rules and the founding affidavit is specific in this respect, as in this case, a legal practitioner cannot purport to amend it.

It is also pertinent to note, that, the legal practitioner was not the deponent of the affidavit. She could, therefore, not, in any event, seek to amend an affidavit deposed to by another person and seek to substitute it with provisions under Part VII of the Supreme Court Rules.

It is apparent from a reading of the relevant provisions under those parts that their requirements are not exactly the same.

For instance, Rule 61 of the Supreme Court Rules is to the effect, that, condonation can only be granted if special circumstances are shown by way of application in writing. The applicant must thus address the issue of special circumstances in the application. A Part VI application, on the other hand, does not require the applicant to establish special circumstances (see Rule 43 of the Supreme Court Rules).

The submission by the applicant's counsel, to simply substitute Rule 38(1) with Rule 60(1) of the Supreme Court Rules, is thus untenable.

The application must stand or fall on its founding papers.

After reading papers filed of record and hearing counsel in this matter, I dismissed the application that was before me with costs, and indicated that the reasons for judgment would be available in due course.
These are they.

The facts of this case can be summarised as follows:

The applicant, Yunus Ahmed, was the Director of a company known as Foldaway Investments (Private) Limited. The respondent, Docking Station Safaris (Private) Limited t/a CC Sales is a company duly registered in accordance with the laws of Zimbabwe.

The respondent and Foldaway Investments used to conduct business together, and, during the course of doing business, Foldaway Investments fell into debt with the respondent.

This caused the respondent to institute legal proceedings against it for the recovery of the debt.

The respondent was successful against Foldaway Investments and it obtained an order for the recovery of the debt.

The respondent then instituted proceedings against the applicant, imploring the court a quo to make an order declaring that the applicant be jointly and severally liable with Foldaway Investments for all the debts of Foldaway Investments to the respondent.

The dispute went for trial, and, the court a quo held that the applicant should rightly be found jointly liable with Foldaway Investments for all the debts it owed the respondent.

On 19 July 2017, the applicant noted an appeal against the judgement of the court a quo. The applicant, however, did not serve the notice of appeal on the Registrar of the High Court as stipulated by Rule 29(2) of the Supreme Court Rules 1964 thereby necessitating the present application.

Before I delve into the merits of this application, I find it pertinent to highlight the irregularities that accompany this application.

On the face of the application, it is indicated that the application is for condonation and extension of time in terms of Rule 31 of the Rules of the Supreme Court 1964.

The contents of the founding affidavit tell a different story.

The application is said to be an application for condonation and reinstatement of appeal arising from the fact that the applicant did not serve the Notice of Appeal on the Registrar of the High Court.

The applicant seems to be confused as to the nature of the application that he is supposed to bring before this Court.

It is trite, that, an application stands or falls on its founding affidavit: see Fuyana v Moyo SC54-06; Muchini v Adams & Ors SC47-13; and Austerlands (Pvt) Ltd v Trade and Investment Bank Ltd & Ors SC80-06.

In cases where the headings on the cover of an application tell one thing, and the contents of the founding affidavits tell another, the nature of the application that is before the court is determined by the contents of the founding affidavit and not the headings on the cover of the application.

This was aptly captured by GOWORA JA in Zimbabwe Posts (Pvt) Ltd v Communication & Allied Services Union SC20-16 as followings:

“The issue that begs an answer is how the court a quo should have dealt with the matter given the apparent confusion that had been created by the appellant in settling its papers. An application must be disposed of on the basis of the founding affidavit….,.”…,.

In casu, it is averred, twice, in the applicant's founding affidavit, that, the application is for condonation for non-compliance with the rules and reinstatement of appeal.

The contents of the founding affidavit thus take precedence over what is written on the headings of the application.

It is however expected, generally, that, the headings of an application should marry with the contents of the founding affidavit.

This application is thus one for condonation and reinstatement of appeal as averred in the founding affidavit.

An application for condonation and reinstatement of appeal is not the proper application to make given the circumstances of this case.

The applicant failed to comply with Rule 29(2) of the Supreme Court Rules 1964, a peremptory rule of the court which reads:

“The notice of appeal shall be served on the Registrar, the Registrar of the High Court, and the respondent.”

Failure to comply with a peremptory rule therefore renders the Notice of Appeal fatally defective.

In Econet Wireless (Pvt) Ltd v Trustco Mobile (Proprietary) Ltd & Anor SC43-13, GARWE JA stated as follows:

“The position is now well established, that, a notice of appeal must comply with the mandatory provisions of the Rules and that if it does not, it is a nullity and cannot be condoned or amended: see Jensen v Acavalos 1993 (1) ZLR 216 (S).”

The notice of appeal that the applicant seeks of reinstatement is therefore a nullity.

A nullity cannot be reinstated, it is dead at law and hence it cannot be resuscitated by means of an application for reinstatement of an appeal.

This point was clearly made in Bindura Municipality v Mugogo SC32-15 where GUVAVA JA stated that:

“It however seems to me, that, the applicant has filed a wrong application. Where a matter has been struck off the roll because it has failed to comply with the rules of court, one cannot simply apply for reinstatement of the appeal as such an appeal is a nullity. This position has been stated in a number of decisions of this Court.”

In view of the above, it is clear that the applicant has approached this court with a wrong application.

The circumstances of this case require the applicant to make an application for condonation for non-compliance with the rules and extension of time within which to file and serve a notice of appeal.

This, the applicant failed to do.

The net effect of bringing a wrong application before the court is that there will be virtually nothing placed before it, and, to that end, this application cannot stand.

Apart from the above irregularity, the applicant`s draft order is in shambles. It reads as follows:

“WHEREUPON, after perusing documents filed of record;

IT IS ORDERED AS FOLLOWS:

1. The Application for condonation for non-compliance with the rules of the Supreme Court and is hereby granted. (sic)

2. The application for extension of time with which (sic) to file and serve a notice of appeal in terms of the rules and is hereby granted.

3. The Applicant be and is hereby ordered to serve the Registrar of the Labour Court (sic) the notice of appeal within 7 days of this order.

4. No order as to costs.”…,.

This draft order is incompetent in various ways.

Apart from the several typographical errors, paragraph 1 does not state the Rule that the applicant failed to comply with, which the court should condone. Secondly, having established that this is an application for condonation and reinstatement of an appeal, paragraph 2 does not pray for the reinstatement of an appeal. Lastly, the applicant, in paragraph 3, prays that the notice of appeal be served on the Registrar of the Labour Court when it is common cause that he seeks to appeal against a decision of the High Court.

The sum effect of these errors render the draft order meaningless and inevitably fatally defective.

Such tardiness is least expected in court process that is drafted by a legal practitioner. Legal practitioners must be meticulous in drafting pleadings and process. Shoddily drawn process confuse the court and the other party.

The need to be meticulous is most important when drafting the relief sought. If the relief sought is imprecise and defective, the court cannot grant it.