Costs re: Approach

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

Costs are at the discretion of the court.

SC115-21 : ANDREW CHIGOVERA vs MINISTER OF ENERGY AND POWER DEVELOPMENT and ZIMBABWE ELECTRICITY TRANSMISSION AND DISTRIBUTION COMPANY (ZETDC)
Ruled By: GUVAVA JA, MAVANGIRA JA and KUDYA AJA

Costs are always in the discretion of the court.

SC144-21 : FARAI MATSIKA and FAIRGOLD INVESTMENTS (PRIVATE) LIMITED vs MOSES CHINGWENA and 38 OTHERS
Ruled By: BHUNU JA

COSTSIn view of the first applicant's deplorable unbecoming behaviour, in manufacturing fraudulent documents to deceive the court, costs at the punitive scale were eminently deserved in the court a quo.In the current proceedings before me, there is no reason for departure from the general rule that costs follow the result.

HH28-16 : FARPIN INVESTMENTS [PVT] LTD vs NETONE CELLULAR [PVT] LTD and JUSTICE L.G. SMITH [RETD] - ARBITRATOR
Ruled By: MAFUSIRE J

The award of costs is wholly a matter in the discretion of the judicial officer: see Graham v Odendaal 1971 [2] SA 611 [AD]; Kruger Brothers Wassermen v Ruskin 1918 AD 63 and Rautenbach v Symington 1995 SA 583 [O].

CC08-18 : JOYCE MUJURU vs PRESIDENT OF ZIMBABWE and PARLIAMENT OF ZIMBABWE and MINISTER OF FINANCE AND ECONOMIC DEVELOPMENT and RESERVE BANK OF ZIMBABWE and GOVERNOR OF THE RESERVE BANK and ATTORNEY GENERAL
Ruled By: CHIDYAUSIKU CJ, MALABA DCJ, GWAUNZA JCC, GARWE JCC, HLATSHWAYO JCC, PATEL JCC, GUVAVA JCC, MAVANGIRA JCC and UCHENA JCC

COSTSThe general consideration in constitutional litigation is that the promotion or advancement of constitutional justice should not be hindered by litigants who are discouraged from pursuing constitutional matters for fear of an order of costs being mulcted against them.Du PLESSIS M, PENFOLD G BRICKHILL J, in their text, ...

COSTS

The general consideration in constitutional litigation is that the promotion or advancement of constitutional justice should not be hindered by litigants who are discouraged from pursuing constitutional matters for fear of an order of costs being mulcted against them.

Du PLESSIS M, PENFOLD G & BRICKHILL J, in their text, Constitutional Litigation (1st edn, Juta & Co. Ltd, Cape Town, 2013) outline the reason underlying the general principle adopted by courts in South Africa that constitutional matters are generally decided without orders of costs. At page 129 they state as follows:

“The treatment of costs is important in all litigation but it is especially important in constitutional litigation. It is not in the interests of advancing constitutional justice that persons should be deterred from litigating to enforce and protect fundamental rights (in the case of Bill of Rights issues) or to uphold the principles and requirements of our foundational legal text (in litigation relating to non-Bill of Rights issues) through fear of an adverse costs order against them.”

In Motsepe v Commissioner of Inland Revenue 1997 (2) SA 898 (CC)…, the court stated as follows:

“In my view, one should be cautious in awarding costs against litigants who seek to enforce their constitutional right against the State, particularly where the unconstitutionality of a statutory provision is attacked, lest such orders have an unduly inhibiting or 'chilling' effect on other potential litigants in this category.”

However, inasmuch as it is generally undesirable to grant costs in constitutional matters, one must always be mindful that the award of costs is one within the discretion of the court unless otherwise specified by legislation.

This is further reinforced by the proviso to Rule 55(1) of our own Constitutional Court Rules 2016 which provides as follows:

“(1) Generally, no costs are awarded in a constitutional matter: Provided that, in an appropriate case, the Court or the Judge, as the case may be, may make such order of costs as it or he or she deems fit.”…,.

In Constitutional Litigation (1st edn, Juta & Co. Ltd, Cape Town, 2013)…, the learned authors state as follows;

“Any person deciding whether or not to litigate will need to assess the pros and cons of doing so. In this balancing exercise, the risk of a costs order, in the event that one is not ultimately successful, may act as a significant deterrent to bringing or defending litigation in the first place. It is one thing to pay the fees of one's own legal team, and quite another to take on the risk of also having to pay the other side's costs in the event of losing the case.”

The court, in Motsepe v Commissioner of Inland Revenue 1997 (2) SA 898 (CC), also stated as follows;

“This cautious approach cannot, however, be allowed to develop into an inflexible rule so that litigants are induced into believing that they are free to challenge the constitutionality of statutory provisions in this Court, no matter how spurious the grounds for doing so may be or how remote the possibility that this Court will grant them access. This can neither be in the interest of the administration of justice nor fair to those who are forced to oppose such attacks.”

Attention is also drawn to the recent decision of MALABA CJ in Liberal Democrats & Ors v President of the Republic of Zimbabwe E.D. Mnangagwa N.O. & Ors CC07-18, and, in particular, pages 24-26 of the judgment.

It is the court's view, that, this is an appropriate case for an order of costs.

As correctly pointed out by the first and third respondents, it is apparent that the applicant seeks to have section 2(2) of the Presidential Powers (Temporary Measures) Act [Chapter 10:20] declared unconstitutional.

That is also made clear in paragraphs 2 and 4 of her draft order quoted earlier in this judgment.

That is not the approach she adopted.

Where the constitutionality of subsidiary legislation is challenged, the proper channel is to approach this Court by way of direct access, in terms of section 85(1) of the Constitution, alleging that the particular statute or its provisions violate one or more of a person's fundamental rights.

It is one thing to allege that Parliament and the President have failed to fulfil a constitutional obligation and quite another to seek a declaratur that the conduct by either or the two is not in line with one or more provisions of the Constitution.

In the former instance, a litigant, by virtue of Rule 27(1) of the Constitutional Court Rules, as read with section 167(2)(d) of the Constitution, may make a court application supported by an affidavit setting out the constitutional obligation in question and what Parliament or the President has failed to do in respect of such obligation.

In the latter instance, however, the proper procedure would be to make an application in terms of section 85(1) of the Constitution seeking an order that such conduct be declared null and void for violating any one or more of the fundamental rights provided for in the Constitution.

The applicant clearly failed to follow the proper procedure before bringing her case before the court.

The defect was pointed out to her in the first and third respondents opposing affidavit and in their heads of argument.

The applicant had the opportunity to assess the pros and cons of proceeding with the application despite the indication that it was not properly before the court. She took a calculated risk. It was highlighted to her, at all times, that the application was opposed and that the respondents were seeking an order for costs upon its failure.

Moreover, an application based on similar facts had been filed by the applicant but had been dismissed by this Court in November 2016 on the basis that the application was speculative as no bond notes had been issued and the legal basis for their issuance had not, despite public announcements, been disclosed.

About three months after that dismissal, she filed the present application.

In all the circumstances, therefore, it is clear that an order for costs against the applicant is in the interests of justice. The principle that costs follow the event is therefore applicable.

For the above reasons, the preliminary point taken by the first and third respondents was upheld and the application consequently struck off the roll with costs.

HH95-16 : MANICA ZIMBABWE LTD vs GRINDSBERG INVESTMENTS (PVT) LTD and OTHERS
Ruled By: DUBE J

Any costs, of whatever nature, are not merely for the asking and require to be justified.

The approach to take in determining the issue of costs was discussed in Nhari v Public Service Commission 1998 (1) ZLR 574 (HC)…,. The court quoted the following except from Fripp v Gibbon & Co 1913 AD 353 per De VELLIERS JP as follows:

“Questions of costs are always important and sometimes difficult and complex to determine, and, in leaving the magistrate discretion, the law contemplates that he should take into consideration the circumstances of each case, the conduct of the parties, and any other circumstances…, and, if he does this and brings his judgment to bear upon the matter and does not do so capriciously or upon a wrong principle, I know of no right on the part of a court or a court of appeal to interfere with the honest exercise of his discretion.”

Another case in point is Kruger Bros and Wasserman v Ruskin 1918 AD 63…, where the court said the following:

“The rule of our law is that all costs, unless expressly enacted, are in the discretion of the judge. His discretion must be judicially exercised, but, it cannot be challenged taken alone and apart from the main order without his permission.”

A court assessing the question of costs is required to take into account all the relevant factors.

The subject of costs is always in the discretion of the court.

The court has a discretion in considering whether any costs are payable to any party. If it decides to make an award of costs, it is usually guided by the general rule that the unsuccessful party pays the costs of the successful party. The court's discretion is required to be exercised judicially. The court will not allow costs that have been unreasonably incurred. The court also has to be satisfied that the costs sought are payable by one party to another. The court must, in determining which party to award costs to, and the appropriate scale of costs to impose, have regard to -

(a) The conduct of the parties before and during the proceedings;

(b) Whether a party has been wholly or partly successful in his case;

(c) Whether the other party has offered to settle the matter;

(d) Any other pertinent circumstances.

Costs are not merely there for the asking.

HH149-16 : ZIMASCO (PRIVATE) LIMITED vs COMMISSIONER GENERAL OF THE ZIMBABWE REVENUE AUTHORITY
Ruled By: HLATSHWAYO J

As for the costs, the general rule is that they follow the outcome...,.

Appealed
SC06-22 : JOEL SILONDA (SUBSTITUTED BY EXECUTOR, VUSUMUZI SILONDA) vs VUSUMUZI NKOMO
Ruled By: GUVAVA JA, UCHENA JA and KUDYA AJA

This is an appeal against part of the judgment of the High Court sitting at Bulawayo, dated 2 May 2019.

The court a quo granted the following order:

1. That, the purported Deed of Sale concluded by the parties on 26 January 2010, in respect of a portion of Umguza 100 Acre Lot 5A be and is hereby confirmed to be null and void for want of compliance with the mandatory provisions of the Regional, Town and Country Planning Act [Chapter 29:12].

2. That, the plaintiff's claim for payment by the defendant of reasonable rentals and holding over damages be and is hereby dismissed with costs.

3. That, the plaintiff be and is hereby ordered to pay to the defendant the sum of $125,000 being compensation for improvements effected by the defendant on the plaintiff's property.

4. That, the prescribed rate of interest be levied on the amount under (3), supra, with effect from 24 June 2015 to the date of full payment.

5. That, the plaintiff pays costs of suit.

The part under appeal relates to paragraphs 3, 4 and 5 of the order. The appellant is also aggrieved by the court a quo's failure to pronounce itself on the claim for eviction in that order.

THE FACTS

The facts that are relevant to this appeal are common cause. The appellant sadly passed away on 24 August 2019, before the appeal was heard. He was, by order of this Court, substituted, on 22 July 2020, by his duly appointed executor dative, who also happens to be his son.

The appellant is the registered title holder of Umguza 100 Acre Lot 5A in the District of Bulawayo measuring 67,2123 hectares held under Deed of Transfer No.74/91 (the immovable property). It is situated in the outskirts of Bulawayo and falls under the administrative jurisdiction of the Umguza Rural District Council.

On 17 August 2000, the appellant sought, but failed, to obtain a sub-division permit for the property into units of less than five (5) hectares. The responsible authority adjudged any plots that were less than five (5) hectares not to be viable for agriculture.

The respondent resided on a fully developed six (6) acre plot in the vicinity of the appellant's immovable property.

On 12 January 2010, in anticipation of an agreement of sale to be consummated with the appellant, the respondent sold his plot for the sum of R225,000.

On 26 January 2010, the parties concluded a written agreement for the sale of 10 acres (4,047ha) of the immovable property (the plot) for the sum of US$20,000.

A deposit of US$10,000 was to be paid before the respondent could take occupation.

The balance was payable at the rate of US$2,000 per month from 1 May 2010.

The other terms and conditions of the agreement were that the respondent would “pay the cost of all transactions connected with the transfer of the property, all charges of capital gains, and draw electric power to the homestead of the seller.”

The respondent duly paid the deposit and took occupation on 1 April 2010.

His building plans were approved by the Umguza Rural District Council on 3 April 2010. He constructed a three bedroom cottage and a four bedroom main house in 2010. In 2011, he installed electricity infrastructure for his two dwellings and the appellant's homestead but only drew electricity to his dwellings. He flushed a borehole previously sunk by the appellant, constructed two (2) septic tanks and two (2) blair toilets. He also put up a perimeter fence around “his” plot.

It was common cause that he expended the total sum of US$34,158=75 and R2,220 on these developments.

The relationship between the appellant and the respondent deteriorated soon after the respondent took occupation of the property.

The appellant refused to accept the instalments tendered by the respondent and demanded that the respondent keep his money while he kept his land.

The respondent tendered the balance of the purchase price, and, when it was rejected, he issued summons for specific performance in HC491/11.

Thereafter, with the help of their legal practitioners, a compromise was reached between the parties but was not honoured.

In the result, the appellant then sued the respondent for the payment of the balance of the purchase price, in the sum of US$10,000, in HC2828/12.

During this tumultuous period, unbeknown to the respondent, the appellant sought to regularize the sale of the plot by applying for a subdivision permit to the department of Physical Planning Offices in Bulawayo on 10 January 2011.

It was only in or about October 2012 that the respondent became aware that the appellant did not have a sub-division permit entitling him to subdivide the immovable property and sell the plot.

On 27 February 2013, acting on the appellant's request, the respondent paid US$550 to the appellant's former legal practitioners for the processing of a belated sub-division permit.

Notwithstanding that the immovable property measured 67,2123ha, a permit for the subdivision of the immovable property into two Stands measuring 4,047 and 37,6961 hectares was duly issued on 29 April 2013.

The permit, however, turned out to be a fake document.

Acting on the erroneous belief that the permit was genuine, on 6 June 2013 and 30 January 2014, the respondent paid US$5,000 and US$4,000, respectively, towards the purchase price.

The respondent, therefore, paid to the appellant a total sum of US$19,000 for the purchase of the plot.

He, in addition, expended US$34,158=75 and R2,220 in the development of the immovable property.

By the time a pre-trial conference was held a quo, both parties had withdrawn their earlier actions against each other.

THE PARTIES RESPECTIVE CLAIMS IN THE COURT A QUO

At the pre-trial conference, the parties agreed, inter alia, that their agreement of sale was invalid and illegal for breaching section 39(1)(i) and section 40 of the Regional, Town and Country Planning Act. This was because it had been concluded without a subdivision permit.

Consequently, the appellant tendered the purchase price of US$19,000 and sought the eviction of the respondent from the plot.

He also claimed an ascertainable amount for unjust enrichment for the period of the respondent's stay to the date of his eviction.

The quantum for the enrichment claim was based on what the appellant perceived to be the reasonable rentals that the respondent would have paid for the occupation of the property.

He, therefore, claimed US$18,000 for the occupation of the plot from March 2010 to April 2015 and “holding over damages at the rate of US$10 per day…, from 1 May 2015 to the date of vacation” and costs on the higher scale.

The respondent contested the action.

He disputed being unjustly enriched and averred, that, he was a bona fide occupier by virtue of the invalid agreement. He also averred, that, in the absence of a lease agreement, the appellant did not have a valid cause of action for the payment of reasonable rentals and holding over damages.

He, in turn, counter claimed for unjust enrichment for the improvements he had made on the immovable property.

He averred that the appellant was enriched at his expense by these improvements.

He further alleged that the appellant was enriched by the payment of US$19,000 towards the purchase price and US$550 for the procurement of the subdivision permit.

The respondent, therefore, sought the repayment of the denominated amounts; a refund of the expenses incurred in erecting the electricity infrastructure; and the depreciated replacement cost (being the current cost of reproduction or replacement of an asset less deductions for physical deterioration, obsolescence and optimization) of the improvements he made on the plot.

He specially entreated the court to award him “such payments as will be sufficient to enable the defendant to purchase a property of comparable value including all the improvements he had effected.”

He also sought interest at the prescribed rate from the date of summons to the date of payment in full and costs on the higher scale.

In his plea to the counter-claim, the appellant, again, tendered the refund of US$19,000.

He disputed to being unjustly enriched by the developments made by the respondent on the immovable property. He averred, that, the respondent had failed to draw electricity to his homestead and had fraudulently facilitated the issuance of the fake permit. He also alleged that the respondent's dwellings were constructed without his authority and that he was therefore a mala fide occupier. Lastly, he stated that these dwellings would not be useful to him.

The two issues referred to trial a quo where whether or not:

1. The appellant was entitled to a reasonable rental arising from the respondent's occupation of the plot; and

2. The defendant has been unjustly impoverished, and plaintiff unjustly enriched, as a result of the alleged developments made by the defendant upon the plot; and, if so, the quantum thereof.

THE FINDINGS OF THE COURT A QUO

The court a quo confirmed the invalidity of the agreement of sale on the ground that it was contrary to the mandatory dictates of sections 39(1)(i) and 40 the Regional, Town and Country Planning Act.

The confirmation was in accordance with established authority emanating from this Court in such cases as X-Trend–A Home (Pvt) Ltd v Hoselaw (Pvt) Ltd 2000 (2) ZLR 348 (S) and City of Gweru v Kombayi 1991 (1) ZLR 333 (S).

It held, on the authority of Magodora & Ors v Care International Zimbabwe 2014 (1) ZLR 397 (S)…, that a lease agreement could not possibly be extrapolated from the invalid agreement of sale; and, resultantly, dismissed the claim for rentals and holding over damages sought by the appellant in the main.

It is clear from a reading of the judgment, that, the court a quo did not relate the request for reasonable rentals and holding over damages to the appellant's own enrichment claim against the respondent.

The appellant pleaded such a cause of action.

He testified during the trial, that, the respondent derived benefit from the farming activities he conducted on the plot. He also asserted that another benefit that accrued to the respondent was in the form of rental savings that he would have been obliged to pay elsewhere but for his stay on the plot.

These assertions were not, and could not, be controverted by the respondent.

However, it appears that counsel for the appellant misconceived the appellant's case and did not pursue the claim to fruition.

The court a quo, on the basis of credibility findings and the probabilities of the case, further found the respondent to have been a bona fide occupier and the appellant a mala fide seller.

Consequently, it relaxed the in pari delicto rule in favour of the respondent.

It, thus, held that the appellant had been unjustly enriched at the expense of the respondent, who was concomitantly impoverished by the transaction.

The court a quo, therefore, upheld the respondent's counter claim.

In computing the measure of the benefit that accrued to the appellant, the court a quo applied the pari delictum rule.

In the exercise of its broad discretion, it relaxed the pari delictum rule in a bid to do justice between the two protagonists.

It had no difficulties in finding the appellant to have been enriched in the sum of US$19,550 constituted by the payments towards the purchase price and the facilitation of the procurement of the sub division permit.

The correctness of this finding is beyond question.

After all, the appellant did not retract his tender of US$19,000, and conceded the payment of US$550 for the stated purpose.

The parties disagreed on whether or not the respondent was entitled to compensation for the improvements that he made on the immovable property.

The appellant submitted a quo that the respondent was not entitled to the value of the improvements:

(i) Firstly, because the respondent had not properly framed them under the enrichment cause of action in his pleadings.

(ii) The second was that the improvements were not, nor would they be, useful to him.

He, in any event, agitated for their urgent removal from his property.

The court a quo held, that, while on the pleadings, the cause of action for the improvements was poorly and inelegantly framed, the respondent had obliquely included them in his enrichment cause.

Further, that the purported defective pleadings had, in any event, been amplified and cured:

(i) Firstly, by the inclusion of the developments in the second issue referred to trial at the pretrial conference; and

(ii) Secondly, by the overwhelming evidence adduced by the respondent at the trial together with the scope and tenor of the questions asked and answers rendered during cross examination.

The court a quo also held, on the authority of Reza v Nyangani 2001 (1) ZLR 202 (S)…, that usefulness was to be measured objectively, and not subjectively, on the basis of added value.

It, therefore, found the improvements to be objectively useful to the appellant. It also found that they could not be removed because they were fixed to the immovable property.

The court a quo estimated the added value of the improvements at $125,000 and not US$132,833=33 claimed by the respondent.

It adopted the lowest depreciated replacement value of $90,000 provided in one of the three valuation reports produced in January 2018. The court a quo then added the depreciated replacement value of the plot, estimated in two of the valuation reports at $35,000, to this figure.

It, therefore, awarded the aggregate amount of $125,000 to the respondent as a fair and equitable amount that adequately represented the enrichment that accrued to the appellant and constituted his concomitant impoverishment.

Lastly, the court a quo declined to immediately evict the respondent from the immovable property on two grounds:

(i) The first was that he had a real improvement lien on the property, dischargeable on full payment of the award.

(ii) The second was that the respondent had invested all the resources he had on the plot.

To evict him from the plot, empty-handed, would not only be intolerable, but, would consign him and his family to the indignity of homelessness and destitution.

I quote below the concluding remarks of the court a quo in this regard. At p15 of its cyclostyled judgment, it stated that:

“This Court firmly believes that this is a proper case to exercise its discretion in the interest of equity and fairness by ordering that the defendant be evicted only upon payment of the full compensation ordered by the court per the defendant's counter-claim. This is mainly because the defendant has a real lien over the portion of the land in issue.”…,.

Notwithstanding the firm belief, the court a quo omitted to make the contemplated order of eviction in the final order that issued.

THE GROUNDS OF APPEAL

The appellant initially raised six grounds of appeal. At the commencement of the appeal hearing, in Bulawayo, counsel for the appellant moved for the deletion of the second ground of appeal and the amendment of the fourth ground.

Counsel for the respondent did not oppose the amendments.

We, accordingly, granted the amendments by consent of the parties.

Resultantly, the following five grounds of appeal remained in contention:

1....,.

2....,.

3....,.

4....,.

5. The Honourable Court a quo misdirected itself at law by ordering that the appellant pays the costs, when, in fact, the appellant was partially successful in the court a quo....,.

COSTS

In respect of the costs a quo, it seems to me that the appellant was properly mulcted with costs on the ordinary scale. He sold the plot to the respondent well knowing from his 2000 debacle that he could not sell an unsubdivided plot let alone one less than five (5) hectares in size.

SC32-22 : CUTHBERT DUBE vs PREMIER MEDICAL INVESTMENTS (PVT) LTD and PREMIER SERVICE MEDICAL AID SOCIETY
Ruled By: MAKONI JA, MATHONSI JA and KUDYA JA

Regarding the issue of costs, both a quo and before this Court, there is no explanation why the authorities upon which the matter has now been resolved were not brought to the attention of the court a quo.This is moreso regard being had that the principles set out in Guardforce ...

SC50-22 : LONRHO LOGISTICS (PRIVATE) LIMITED vs RAM PETROLEUM (PRIVATE) LIMITED
Ruled By: UCHENA JA, MATHONSI JA and KUDYA JA

Regarding costs, they normally follow the result. It has not been suggested, and I see no reason why the costs should not be awarded in favour of the successful party.

SC59-22 : DELTA BEVERAGES (PRIVATE) LIMITED vs BLAKEY INVESTMENTS (PRIVATE) LIMITED
Ruled By: BHUNU JA, MAKONI JA and CHITAKUNYE AJA

As regards the costs of this appeal, there is nothing warranting a departure from the general rule that costs follow the cause. There was equally no justification for costs on a higher scale.Costs will thus be on the ordinary scale.

View Appeal
HB188-22 : BATANDI MPOFU N.O. vs FELIX DZUMBUNU and CHIKOTI DORO and ASSISTANT MASTER OF THE HIGH COURT OF ZIMBABWE
Ruled By: DUBE-BANDA J

The general rule is that the costs follow the result. There is no reason why this court should depart from such rule in this case.The first defendant is to pay the plaintiff and the second defendant's costs on the scale as between party and party. There is no justification for ...

SC80-22 : MSWELANGUBO FARM (PVT) LTD and OBERT MPOFU and SIKHANYISIWE MPOFU vs KERSHELMAR FARMS (PVT) TD and ZEPHANIAH DHLAMINI and CHARLES MOYO and SIPHOSAMI MALUNGA
Ruled By: GWAUNZA DCJ, CHITAKUNYE JA and MWAYERA JA

As regards costs, there is no reason why we should depart from the normal trend that costs follow the result.

Appealed
SC92-22 : VALENTINE ZISWA and MARGARET ZISWA vs GRAEME CHADWICK and LANDOS FARM (PRIVATE) LIMITED
Ruled By: UCHENA JA, MAKONI JA and KUDYA AJA

On 11 March 2015, the High Court granted part of the claim sought by Valentine Ziswa and his wife Margaret Ziswa (the cross appellants) against Graeme Shaun Chadwick and Landos (Pvt) Ltd (the cross respondents).

The court a quo dismissed the claims of the cross-appellants as against the second cross-respondent in their entirety and granted part of the claims as against the first cross respondent.

The cross appellants seek a reversal of the dismissal orders issued a quo.

The order issued by the court a quo reads as follows:

“In the result, it is ordered that:

1. The plaintiffs claims against the second defendant are hereby dismissed with costs.

2. The plaintiffs claim (a) against the first defendant succeeds only in the sum of $8,808 which the first defendant is directed to pay the plaintiffs.

3(a) The plaintiffs claim (e) partially succeeds to the extent of the 4km LTC Electric cable while the rest is hereby dismissed.

(b) The first defendant shall pay to the plaintiffs the sum of $84,000 being the replacement value of the LTC electric cable removed from the plaintiffs farm.

4. The first defendant shall pay the plaintiffs the sum of $780 being value of labour hired to clear tobacco stalks and related expenses.

5. The plaintiffs claims (b), (c), (d), (f), (g), (j) and (l) are hereby dismissed.

6. Absolution from the instance is granted in respect of plaintiffs claims (h) and (k).

7. The plaintiffs shall pay 20% of the first defendant's costs of suit.”

The first cross appellant is Valentine Ziswa (Ziswa) while the second cross-appellant is his wife, Margaret Ziswa. I will cumulatively refer to them in this judgment as the lessor.

The first cross-respondent is Graham Shaun Chadwick (Chadwick) and the second cross-respondent is Landos (Pvt) Ltd (the Company).

Graham Shaun Chadwick was a director in Landos (Pvt) Ltd, which he also used as his special purpose vehicle or agent to conduct his farming operations on Ziswa Farm (the farm) and on three other surrounding farms, namely, Gijima, Kelvin, and Landos.

THE BACKGROUND

On 20 March 2015, Graham Shaun Chadwick filed a defective Notice of Appeal against the cross appellants, which did not indicate the part of the judgment he sought to impugn.

He, thereafter, filed a contested chamber application for condonation and extension of time within which to appeal on 11 January 2018, which was dismissed with costs on 21 March 2018.

The effective disposal of the main appeal in this manner left the cross appeal pending.

FACTS

On or before 1 September 2008, Valentine Ziswa and Graham Shaun Chadwick entered into a verbal agreement for the lease of the farm and the inventoried equipment. The description, quantities, and state of the leased equipment was recorded in the comprehensive inventory the parties drew in October 2008.

The tobacco season in Zimbabwe generally runs from September to August and sales generally take place between March and June.

Graham Shaun Chadwick was on the farm during the 2008-2009, 2009-2010, 2010-2011, and 2011-2012 seasons (hereinafter called the first, second, third, and fourth seasons, respectively).

On 9 January 2009, Valentine Ziswa and Graham Shaun Chadwick signed a 10-year lease agreement.

On the same date, Valentine Ziswa and his wife (the First Partner) executed a second “Joint Venture Agreement” (JVA) with Graham Shaun Chadwick (Second Partner) for the “long term development” of the farm.

The two agreements were backdated to 1 September 2008.

Graham Shaun Chadwick not only leased the farm and the inventoried property, but, in addition, undertook to erect permanent structures (in each season) of an equivalent value to the seasonal rental payable.

In terms of clause 1 and clause 2, Graham Shaun Chadwick leased “the land, together with all buildings and other permanent improvements and certain immovables” for the ten year period from 1 September 2008 to 31 August 2018 for the purpose of growing “30ha of tobacco, 40ha of maize, 20ha of wheat and any other crop agreed between the parties.”

In terms of clause 3, the rental payable would be “6 per cent on the US$ of the gross turnover of the crops produced on the said land inclusive of bonuses and hailstorm insurances.”

In respect of tobacco, the rent was to be paid into the lessor's FCA by stop order raised at the auction floor, and cash payments were to be made in respect of other crops.

In addition to the rental, Graham Shaun Chadwick would, in terms of clause 4(d), be responsible for the repairs and maintenance of tractors and the inventoried equipment leased to him with effect from 1 September 2008.

Lastly, clause 9 stipulated that:

“This agreement constitutes the entire agreement between the parties, and no representation or undertakings given by one of them to the other of them prior to the execution hereof, and no variation of the conditions hereof, shall have any force or effect unless recorded in writing and executed by the parties hereof.” (The underlining covers the handwritten portions of the otherwise typeset agreement).

The Joint Venture Agreement (JVA) substantially duplicates the lease agreement. Clause 3 thereof reads as follows:

“3. The rent payable by the lessee to the lessor shall be 6 per cent per centum of the gross turnover in respect of the crops produced on the said land, and payment of such rent/lease shall be secured by means of STOP ORDER given by the lessee in favour of the Company against proceeds of tobacco sold through TOBACCO SALES FLOOR. Such PAYMENT shall be executed and registered as soon (sic) may be after the signing of this lease. 31 MARCH, 3 APRIL, 6 END OF JULY. MAIZE 1.5 TON MONTHLY.” (The underlined words and figures are handwritten)

It was common cause that the two agreements are complementary and separate and distinct. The requirements of the Joint Venture Agreement (JVA) were additional to the rental payable.

It was also common cause, that, Graham Shaun Chadwick was an active councillor for the Zimbabwe Tobacco Association (ZTA) for six (6) years and had been its Vice-President for another two (2) years.

He introduced the Zimbabwe Tobacco Association (ZTA) proforma lease and Joint Venture (JV) agreements, and, together with Valentine Ziswa, supplemented and annotated the terms and conditions therein by hand.

Graham Shaun Chadwick grew maize during the first season only and abandoned it in subsequent seasons in preference to the more lucrative tobacco crop. He never grew wheat on the farm.

Graham Shaun Chadwick did not abide by the direct deduction method prescribed in the agreements. He did not disclose to the lessor his prior preferential stop order obligations to the Zimbabwe Leaf Tobacco Company (Pvt) Ltd.

By 10 May 2010, Graham Shaun Chadwick had repaired a weir, put in a pump and generator, laid underground irrigation pipes, erected a centre pivot, paid for the labour for the reconstruction of a burnt down tobacco barn “maintained” all 14 barns by putting in place the necessary appurtenances for curing tobacco, repaired furnaces and sheds, and, at a cost of US$2,700 constructed 11 two roomed staff houses.

By letter dated 22 February 2011, Graham Shaun Chadwick offered to increase lease rental to 8%.

The offer was not accepted.

Instead, the lessor made the counter offer proposed in the detailed draft agreement, which the lessor signed on 13 March 2011.

The counter-offer was, in turn, rejected by Graham Shaun Chadwick.

Between 10 January 2012 and 18 May 2012, the parties failed to amicably resolve the lessor's demands for arrear rentals, maintenance of the leased equipment, and the repatriation of leased property that Graham Shaun Chadwick allegedly took to other farms.

In frustration at the impasse, the lessor sought to exercise a lien over the tobacco produce that was on the farm.

They were, by consent, interdicted by Graham Shaun Chadwick and Landos (Pvt) Ltd, on 24 May 2012 in case No. HC5477/12.

On 10 June 2012, the Ziswas instigated the arrest of Graham Shaun Chadwick for theft of some of the 2008 inventoried property. The complete police docket, compiled by Sergeant N'andu (IO), was produced by consent as exhibit 5.

Sergeant N'andu (the IO) first attended at the farm on 12 June 2012. On 19 June 2012, he conducted a verification or “exit” inventory with Valentine Ziswa and a proxy of Graham Shaun Chadwick, at the direction of the Area Public Prosecutor for Rusape (APP).

By letter dated 2 July 2012, Graham Shaun Chadwick cancelled the lease agreement and immediately vacated the farm.

On 5 September 2012, the Area Public Prosecutor for Rusape declined to prosecute, adjudging the criminal complaint to be a civil dispute.

On 26 September 2012, the lessor issued summons against the defendants claiming an aggregate sum of US$456,699 under 13 heads. These comprised of the following claims:

(a) Arrear rentals of US$64,160 for the fourth farming season;

(b) A refund of rates and levies of US$1,980 paid to the Makoni Rural District Council for the fourth farming season;

(c) The lessor's share of the hailstorm insurance proceeds of US$5,500 in respect of the second farming season;

(d) The outstanding developments for the first three farming seasons, represented by the value of the centre pivot that was removed from the farm, in the sum of US$67,507;

(e) Other enumerated property valued at US$187,707 that was also removed from the farm;

(f) The estimated damages to recovered property of US$15,905;

(g) US$7,600 for the damage to the fence and gates on the farm;

(h) US$15,008 for the repairs to the damaged tobacco barns and flue pipes;

(i) US$780 for removing the fourth season tobacco stalks;

(j) US$26,313 for vandalized overhead water storage tanks, pipes, workers houses, electrical underground cables, dams, pump unit, boreholes, and transformer;

(k) US$15,000 for maize deliveries contractually due to the lessor during the second to fourth farming seasons;

(l) US$4,240 for the tobacco seedlings grown on the farm and sold to other farmers;

(m) US$45,000 damages for loss of income in respect of the 2012/2013 tobacco cropping season caused by the premature and abrupt termination of the agreements.

THE PROCEEDINGS A QUO

The lessor made the following contentions:

The two agreements had separate and distinct obligations. Landos (Pvt) Ltd had a direct and substantial interest in the two agreements, and was, together with Graham Shaun Chadwick, therefore liable for the various contractual breaches that gave rise to the 13 claims.

The lessor's documentary and oral evidence established both liability and quantum in respect of claim (a), (d), (e), (f), (g), (h), (j), (k) and (l) at the higher rate of 8 per cent and not at the 6 per cent in the two agreements.

The lessor abandoned claim (m) and conceded that Graham Shaun Chadwick and Landos (Pvt) Ltd be absolved from the instance in respect of claims (b), (c) and (i) on the ground that the lessor had failed to established the due amounts.

Graham Shaun Chadwick conceded that the annotations formed part of the terms agreed by the parties on 9 January 2009.

Counsel for Graham Shaun Chadwick argued, that, the lessor failed to establish both liability and quantum.

He submitted, on the authority of Agricultural Finance Corporation v Pocock 1986 (2) ZLR 229 (S), that, the oral variation of the rental rate from 6 per cent to 8 per cent in violation of the non-variation clause (Clause 9 of both agreements) of the agreements was inefficacious and invalid.

He also relied on the twin principles of privity and sanctity of contracts enunciated in CHRISTIE: The Law of Contract in South Africa, 6th ed, 2010 Lexis Nexis…, to call for the dismissal of all the claims sought against Landos (Pvt) Ltd.

Counsel, however, conceded that Graham Shaun Chadwick was liable for unpaid rental of US$8,808 for the fourth season and US$36,000 for the LTC line [falling under claim (e)] and not the respective US$64,160 and US$84,000 sought by the lessor.

He further contended, that, as the lessor had failed to establish liability or where liability had been established, the quantum thereof in respect of claims (b), (c), (d), the remainder of (e), (f), (g), (h) and (j), the claims fell to be dismissed.

Counsel requested the court a quo to discard the evidence of the valuator for the reason that it was unconventional and unprofessional.

He argued, that, the valuation was in breach of the 'objective' and 'appreciable help' standards expected of expert evidence that are propounded in Stock v Stock 1981 (3) SA 1280 (A)…,; Gentiruco AG v Firestone SA (Pty) Ltd 1972 (1) SA 589 (A)…,; and Menday v Protea Assurance Co. Ltd 1976 (1) SA 565 (E)…, and articulated in SCHWIKKARD & Van der MERWE's Principles of Evidence, Juta 2009…,.

He, therefore, prayed for the dismissal of claims (d) (e), (f), (g), (h) and (j), which rested on the valuator's computations.

Counsel further contended, that, the claims ought to be dismissed for the further reason that the lessor had not amended the quantum to reflect the new amounts touted by the valuator some of which were higher than the individual breakdowns set out in annexures 2 and 3 to the summons.

THE FINDINGS A QUO

The court a quo made the following findings:

The only effectual agreements were the lease and the Joint Venture agreements dated 9 January 2009 and not the draft agreement of 13 March 2011.

The operational rental rate was 6 per cent and not 8 per cent. This was because the offer of 22 February 2011 had not been accepted nor had the non-variation clause been invoked.

Valentine Ziswa was an inconsistent, unreliable, untruthful, and greedy witness.

He prevaricated on whether the tenure of the agreements was 5 years, 8 years, or 10 years and whether the rental rate was 6 per cent, 8 per cent, or 10 per cent.

He was greedy because he unjustifiably claimed for municipal imposts, maize deliveries, seedlings, and hailstorm insurance proceeds, which were all not covered by the two agreements. He also demanded for the value of the centre pivot, which he had categorically rejected as constituting a permanent structure.

The court a quo also excoriated the valuator for flaunting his professional qualifications and experience at the expense of conventional valuation principles. It, therefore, discarded his depreciated replacement cost computations.

Graham Shaun Chadwick, whose demeanour was highly extolled, was found to be a truthful, good, and reliable witness.

His status as an accomplished tobacco farmer with 20 years experience, and who exuded confidence and conceded where he was liable, endeared himself to the court a quo at the expense of Valentine Ziswa whose penchant for renting out instead of farming on his own account was deplored by the court.

Notwithstanding the contrary general findings on credibility of Valentine Ziswa and the valuator, the court a quo believed Valentine Ziswa's oral testimony on the US$780 claim on tobacco de-stalking and the chartered accountant's valuation of the LTC line. It, however, dismissed the rest of their evidence on the valuation of all the other claims. It further held that seedlings were not a crop as they could not be sold at the auction floors.

The court a quo dismissed the claims against Landos (Pvt) Ltd on the twin basis of lack of privity of contract and sanctity of contracts.

It held, that, these cardinal legal principles could not be negated by Graham Shaun Chadwick's directorship of the company, his use of the company's letterhead in correspondence with the lessor and bank account to effect payment of his lease obligations.

It issued the order that I adverted to at the commencement of this judgment.

Aggrieved by the order granted a quo, the lessor appealed to this Court on the following grounds:

“1. The court a quo erred in not finding that the reduction of part of the agreement between the parties to writing and the existence of the non-variation clause notwithstanding, on the entirety of the evidence before the court, the agreement between the parties consisted in part of the written portion and in part of the oral agreement sworn to by the cross appellants.

2. The court a quo erred, for the stronger reason, in not finding that the second cross respondent was privy to the whole of the agreement between the parties and in dismissing the claim against it.

3. The court a quo erred in its treatment of the evidence and assessment of the cross appellants claim with the result, that, the court misdirected itself in its gratuitous conclusions on the first cross-appellant's demeanour and motives culminating in the rejection of the cross-appellants claims on this flawed basis.

4. The court a quo erred in not finding that the rent for the use of the cross-appellants farm varied from 6 per cent to 8 per cent of the gross annual turnover realised on the farm.

5. The court a quo erred, in any event, in accepting the appellant's bare testimony that the sum of US$21,000 paid to the cross appellants was towards the rental for the 2011-12 season and in deducting the same from the rental due and owing to the cross appellants.

6. The court a quo erred in its treatment of the evidence in concluding, that, the claim for the tonnage of maize was not within the parameters of the agreement of the parties and in rejecting the cross-appellants testimony regarding the quantum thereof.

7. The court a quo erred in holding, that, the claims for the centre pivot and generator did not fall within the parameters of the developmental agreement.

8. The court a quo erred in holding that the seedlings produced on the cross appellants farm, but sold elsewhere, were not produce for the purposes of the parties agreement, and in rejecting the cross-appellants quantification thereof.

9. The court a quo erred in finding, as it did, that there was no evidence to substantiate the cross appellants claim (e) (property removed and not returned) and claim (g) (removed and/or damaged fences and gates) and in finding the property could have been unusable.

ALTERNATIVELY

The court a quo erred, in any event, in dismissing the said claims as opposed to granting absolution from the instance.

10. The court a quo erred in rejecting the evidence of Pange purely on the basis that he had used one as opposed to three quotations which had been sourced by the cross-appellants, and had applied the general accounting depreciation formulae without a physical examination of the property in question.

11. The court a quo erred in not awarding the claim for the irrigation pump, which the appellant conceded in his evidence and offered to compensate for the same.

12. The court a quo erred in accepting as true the appellant's testimony based solely on the fact that he managed to impress the judge in terms of his demeanour.”

The cross-appellants sought the success of the cross appeal with costs, the amendment of the judgment a quo by granting, jointly and severally, the one paying the other to be absolved:

(i) Arrear rentals of $67,502=40 for the 2011-12 season (being 8 per cent of gross realization of US$843,780 from sale of 205,800kgs at US$4=10 per kg);

(ii) Alternatively, judgment in the sum of US$50,626=80 being 6 per cent of the above gross realisation;

(iii) Judgment in respect of claims (d), (f), (j) and (i);

(iv) Judgment for the reduced sum of US$364,729 as particularised in exhibit 3; and

(v) Costs of suit against the cross respondents.

THE ISSUES

The issues that arise from the grounds of appeal are the following:

1. Whether the variation clause was waived by the parties to the lease agreement.

2. Whether the second cross-respondent was liable to the lessor's claims.

(a) Rentals for the fourth season (a portion of claim (a)).

(b) The value of the developments in lieu of the Centre Pivot (claim (d)).

(c) Damages for missing equipment (including the irrigation diesel pump whose liability was conceded) (claim (e)) and for damaged property and equipment on the farm (claim (f)).

(d) Repairs to tobacco barns (claim (h)).

(e) Vandalized overhead water tanks, reservoirs, boreholes, and staff houses and their connecting pump unit, cables, electrics, and pipes claim (j).

(f) Maize deliveries due for the second to fourth seasons (claim (k)).

(g) Value of tobacco seedlings (claim (l)).

3. Whether or not the court a quo properly exercised its discretion in respect of costs.

THE ARGUMENTS BEFORE THIS COURT

At the onset of his submissions before this Court, counsel for the lessor abandoned claims (b), (c) and (g).

He persisted with the appeal against the dismissal of the entire claim against the company, the part dismissed in respect of claims (a) and (e), and the dismissals against claims (d), (f) (h), (j), (k) and (l).

Counsel for the lessor contended, that, the dismissal of the lessor's claims against Landos (Pvt) Ltd was erroneous.

He argued, that, the resolution passed by Landos (Pvt) Ltd, on 18 May 2012, authorising Graham Shaun Chadwick to “represent the company in any legal matter against Mr and Mrs Ziswa” before the institution of action proceedings on 26 September 2012, showed that it had a direct and substantial interest in the two agreements.

He further argued, that, the main credibility findings in favour of Graham Shaun Chadwick and against Valentine Ziswa, upon which the court a quo premised its dismissal of the lessor's claims were, on the totality of the adduced evidence, irrational.

He argued, that, notwithstanding the embodiment of the non-variation clause in the lease agreement, the lessor had, contrary to the finding a quo, established that Graham Shaun Chadwick had, by conduct, waived the lease rental rate from 6 per cent to 8 per cent on the second and subsequent seasons.

He further argued, that, the valuation testimony of the chartered accountant had proved the damages suffered by the lessor as at the date Graham Shaun Chadwick cancelled the agreements and vacated the farm.

Lastly, he contended that the costs order granted a quo constituted a patent failure in the exercise of discretion warranting interference by this Court.

Per contra, counsel for Graham Shaun Chadwick and Landos (Pvt) Ltd vehemently supported the impugned findings and conclusions of the court a quo.

He argued, that, the claims against Landos (Pvt) Ltd were rightly dismissed because it was not privy to the lease agreements.

He strongly contended, that, having acted as an agent, it could not be sued either separately or together with its principal.

He further contended, that, the non-variation clause precluded the lessor from relying on any variation derived from an oral agreement or on the offer to increase the rate to 8 per cent which they did not accept.

He submitted, that, an oral agreement could not waive a non-variation clause.

He further contended, that, the court a quo had not relied on the demeanour of the witnesses only but also on the inconsistencies that characterized the evidence of the lessor's star witness, Valentine Ziswa.

Lastly, he contended that the valuator's testimony was rightly discarded for being both unconventional and unprofessional.

Counsel impugned his competence on two bases:

(i) The first was that he had relied on the quotations availed to him by Valentine Ziswa without conducting a physical inspection of the equipment.

(ii) The second was that he had further relied on internet sites, that he failed to disclose, in ascertaining the life span of some of the equipment listed in exhibit 3.

ANALYSIS OF THE LAW AND THE FACTS

COSTS

The conduct of the second defendant in HC5477/12 and in assuming a leading role in the first defendant's contractual obligations misled the lessor into believing that it had a direct and substantial interest which attracted liability against it in the present matter.

This rightly dis-entitles it from a favourable costs order in this Court.

In the light of my findings above, the costs order granted against the lessor constituted a wrong exercise of the court a quo's discretion.

In its judgment, the court a quo did not explain the basis for awarding costs in favour of Graham Shaun Chadwick. There was no discernible basis for denying the lessor's costs against the first defendant on the ordinary scale.

SC101-22 : MASTER OF HIGH COURT N.O. and RUGARE MANDIMA N.O. and HOUSE OF SARI PL vs DAVID TAKAENDESA and OTHERS and HOUSE OF SARI and RUGARE MANDIMA and REGISTRAR OF DEEDS and MASTER OF HIGH COURT
Ruled By: GUVAVA JA, KUDYA JA and MWAYERA JA

INTRODUCTIONAt the hearing, the appeals were consolidated with the consent of the parties, and heard in the following manner:The appellant in SC109/21 (Master of the High Court of Zimbabwe) made submissions as the first appellant, the appellant in SC15/21 (Rugare Mandima) as the second appellant, and the appellant in SC17/21 ...

INTRODUCTION

At the hearing, the appeals were consolidated with the consent of the parties, and heard in the following manner:

The appellant in SC109/21 (Master of the High Court of Zimbabwe) made submissions as the first appellant, the appellant in SC15/21 (Rugare Mandima) as the second appellant, and the appellant in SC17/21 (House of Sari (Pvt) Ltd) as the third appellant.

The first to third respondents (David Takaendesa, Macdonald Takaendesa and Den Takaendesa) in all the appeals remained as previously cited, with the Registrar of Deeds being the fourth respondent, though there was no appearance on his behalf.

Although there were three different appeals attacking the same judgment, I intend to address all the appeals in one composite judgment as the issues raised are similar.

In this judgment, I will also refer to the first appellant as 'the Master' the second appellant as 'the executor' the third appellant as 'the purchaser' and the first to third respondents as 'the beneficiaries'.

The three appeals herein are against judgment no. HH806-20 of the High Court ('court a quo') dated 16 December 2020, which granted an application to set aside “two consents of sale” issued by the Master of the High Court, agreements of sale signed between the executor and the purchaser, and finally set aside the transfer of title made in favour of the purchaser.

BACKGROUND FACTS

The first to third respondents (David Takaendesa, Macdonald Takaendesa and Den Takaendesa) are beneficiaries of the estate of the late Kudzai Takaendesa (the deceased), who died on 15 July 2015.

The second appellant (Rugare Mandima) was appointed as the executor of the estate in terms of a Will in which the deceased directed that the senior partner of Danziger and Partners be appointed as such upon her passing.

The estate comprised three farms being; certain piece of land situated in the District of Gatooma called Koppies measuring 1,358,0053 hectares; certain piece of land situated in the District of Hartley called Lorraine of Richmond measuring 595,5918 hectares; and certain piece of land situated in the District of Hartley called Remainder of Richmond measuring 679,7636 hectares ('the farms') and a butchery in Kwekwe situated at Stand 2040 Amaveni Township, Kwekwe.

The estate had liabilities amounting to USD$16,287=13 arising from administrative costs inclusive of the Master of the High Court's fees, Value Added Tax, advertising, valuation charges, and a provision for duty.

The executor, in the execution of his duties, requested the beneficiaries to settle the estate liabilities.

The beneficiaries only managed to pay USD$2,625 leaving a balance of USD$14,047 as at 10 January 2018.

Following the beneficiaries failure to settle the full amount, the executor wrote to the Master of the High Court, on 10 January 2018, seeking authority to sell the three farms by private treaty in order to liquidate the estate liability.

The Master of the High Court issued a consent to the sale in terms of section 120 of the Administration of Estates Act [Chapter 6:01] (the Administration of Estates Act) on 25 January 2018 in respect of two farms known as Koppies measuring 1358,0053 hectares and Lorraine Richmond measuring 595,5918 hectares, and, on the 17 October 2019 in respect of the farm known as remainder of Richmond measuring 679,7636 hectares.

The consents were granted on condition that the executor would first communicate the decision to dispose the farms to the beneficiaries.

As a result of the “consents to sell” all three farms were sold to the purchaser represented by one Mr. Arafas Mtausi Gwaradzimba, who owns a neighbouring farm, for a total amount of USD$700,000.

On 12 March 2018, the beneficiaries wrote an email to the executor with an instruction that he should not sell the farms but that he should rather sell the butchery in Kwekwe to recover the estate liabilities.

On 20 July 2018, legal practitioners representing all the beneficiaries wrote to the executor objecting to the proposed sale of the farms on the basis that:

(i) Firstly, they did not consent to the sale of the farms; and

(ii) Secondly, that the proceeds from the sale of the Kwekwe butchery would be sufficient to settle the estate's liabilities.

This letter was copied to the Master of the High Court.

It was further alleged, that, the executor was advancing his own personal interest in insisting on the sale of the farms rather than the interests of the beneficiaries.

By letter dated 6 of August 2018, the Master of the High Court informed the beneficiaries that their objections had been noted, but, however, the consent to sale could not be revoked as the decision had already been made.

Dissatisfied by the Master of the High Court's decision to grant the executor's request for “consent to sell” the three farms, the beneficiaries made an application before the court a quo, in terms of section 4 of the Administrative Justice Act [Chapter 10:28] ('the Administrative Justice Act'), seeking the setting aside of the decision of the Master of the High Court on the basis that he acted unlawfully, unreasonably, and in an unfair manner in granting the consent.

DECISION OF THE COURT A QUO

The court a quo, in dealing with the application, held that the Master of the High Court failed to conduct a 'due inquiry' in accordance with section 120 of the Administration of Estates Act.

The court a quo further held, that, the decision to issue the “consent to sell” the three farms, without holding an inquiry in terms of section 120 of the Administration of Estates Act, was illogical and grossly unreasonable.

The court a quo reasoned, that, the Master ought to have enquired into the propriety or otherwise of the sale of the three farms in light of other possible assets that could have been sold, and whether or not it was in the best interest of the beneficiaries to sell the farms.

The court found that the Master of the High Court ought to have granted the beneficiaries an opportunity to be heard before making his decision.

The court a quo accordingly found, that, as section 120 of the Administration of Estates Act had not been complied with, the decision by the Master of the High Court, authorising the executor to sell the three farms, was unlawful, unreasonable, and unfair.

It also found that the sales of the farms were a nullity and ordered that they be set aside.

The court consequently vacated the agreements of sale entered into between the executor and the purchaser.

It set aside the consents to the sales of the farms issued by the Master of the High Court, cancelled the transfers of the farms, and ordered the resuscitation of the Estate Deed of Transfer Number 6708/2019 back into the deceased's estate.

With regards to costs, the court ordered that the Master of the High Court and the purchaser pay the beneficiaries costs on a party and party scale with the executor being ordered to pay costs de bonis propriis on the basis that there was collusion between him and the purchaser.

Aggrieved by the decision of the court a quo, the three appellants each noted separate appeals attacking the judgment, essentially on the basis that it erred in failing to find that the Master of the High Court's decision was properly made after due compliance with the Administration of Estates Act.

ISSUES FOR DETERMINATION

An examination of the grounds of appeal shows, that, the single thread that runs through the three appeals is the question of whether or not the Master of the High Court complied with the provisions of section 120 of the Administration of Estates Act before issuing the “consent to sell” the three farms.

SUBMISSIONS BEFORE THIS COURT

Counsel for the first appellant argued, that, the Master of the High Court had no real interest in this case and was essentially a passenger in the litigation. This was, so the argument went, because once he had made a decision in respect of the sale of the three farms, he became functus officio.

He contended, that, the Master of the High Court reached the decision to “consent to the sales” after due consideration of the facts of the case as placed before him by the executor.

It was his submission, that, section 120 of the Administration of Estates Act does not place an obligation on the Master of the High Court to carry out a judicial investigation before issuing a “consent to sell”. He asserted that the inquiry which must be conducted by the Master merely related to whether or not there are any restrictions to sell that may be contained in the Will of the deceased. He thus submitted that it was a very limited inquiry.

Counsel for the first appellant further asserted, that, there was nothing unlawful about issuing a consent with a condition that the executor must inform beneficiaries about the sale.

He, however, conceded that the absence of consent to sale at the time when the agreement of sale was executed in respect of the third farm meant that the agreement was void as there was no condition in the agreement stating that the agreement would only become perfecta once the consent from the Master of the High Court on the third farm had been obtained.

In the final analysis, he submitted that the decision by the Master was not unreasonable or unfair in the circumstances because the finalisation of the estate had been outstanding for a long time.

Further, that the order of costs made against the Master of the High Court was unwarranted and ought to be set aside as the decision was made in the course of his administrative functions.

He prayed for the appeal to be allowed with costs.

Counsel for the executor argued, that, the Master of the High Court correctly exercised his discretion in granting the “consent to the sale” based on the documentation placed before him.

He asserted that there was nothing unreasonable or unfair about the Master of the High Court's decision to “consent to the sale” of the three farms as he acted in accordance with the law.

Counsel also submitted, that, the phrase 'due inquiry' under section 120 of the Administration of Estates Act is limited only to the question of the mode of disposal of the property and not to any other issue.

He argued, that, the order of costs de bonis propriis made against the executor was improper because the order was not sought by the applicants a quo but was imposed by the court, without inquiry, as required by law.

He therefore prayed for the appeal to succeed.

Counsel for the purchaser submitted, that, the beneficiaries could not challenge the sale of the farms without surrendering the proceeds of sale that had been transferred into their accounts.

He argued, that, the due inquiry in terms of section 120 of the Administration of Estates Act is restricted only to the question of whether to sell by private treaty or public auction.

He asserted, that, the Master of the High Court's decision was lawful. He thus prayed for the appeal to be allowed.

Per contra, counsel for the beneficiaries submitted, that, the Master of the High Court's decision violated section 68 of the Constitution of Zimbabwe Amendment (No.20) Act 2013 (hereinafter referred to as 'the Constitution') and section 3 of the Administrative Justice Act.

She contended, that, the Master of the High Court's decision, to sell three farms for USD$700,000 to settle estate liabilities totalling USD$14,047 when other properties of less value could have been sold, was grossly unreasonable and unfair.

Counsel submitted that due inquiry, as interpreted in past decisions of the courts, is not a superficial inquiry but meant an informed, independent inquiry that involves considering the submissions of beneficiaries of the estate.

She asserted, that, in this case, no due inquiry was done and thus both the Master of the High Court and the executor did not ultimately act in the best interests of the beneficiaries of the estate as mandated by the law.

She further argued, that, the order of costs made against the Master of the High Court and the executor were justified because both acted unlawfully, unreasonably, and unfairly.

In the result, she prayed for the appeal to be dismissed.

ANALYSIS

With regards to costs a quo, this Court finds that the actions of the Master of the Master of the High Court were conducted in the course of his duties.

It has always been the practice of this Court not to mulct administrative bodies with costs unless it is proved that they were mala fide. As such, the order of costs awarded by the court a quo against the Master of the Master of the High Court cannot be allowed to stand.

I take the further view, that, it is trite that a court may not make an award of costs de bonis propriis unless they have been sought and the person affected has been given an opportunity to be heard.

The executor was not heard on this point a quo.

This award cannot be upheld and warrants interference by this Court.

The purchaser was equally a victim of circumstances as his right to purchase emanated from the decision of the Master of the High Court.

In our view, the justice of the cases require that, with respect to the costs a quo, each party should bear its own costs.

The appeal will thus succeed in this respect.

SC103-22 : BENSON MAKACHI and MR. MUGAVA and SIMON NOTA and SILAS GWESHE and GIBSON MUTSAKA and EVERSON BREAKFAST and DAVISON CHIVESO and FREDSON GAMA vs EVANGELICAL CHURCH OF ZIMBABWE
Ruled By: UCHENA JA, CHITAKUNYE JA and CHATUKUTA JA

There was nothing submitted justifying a departure from the general principle that costs follow the cause.

View Appeal
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Ruled By: KABASA J

As regards costs, the matter exercised my mind in a manner that makes it difficult to hold that the respondents opposed the application out of sheer vindictiveness and calculated to put the applicant out of pocket.For this reason, the costs will be at the ordinary scale.There is, however, no reason ...

HH329-13 : RICHARD JAMBO vs CHURCH OF THE PROVINCE OF CENTRAL AFRICA and ANGLICAN DIOCESE OF MASVINGO and DEPUTY SHERIFF CHIVHU N.O.
Ruled By: GUVAVA J

With regards to costs, it was my view, that, the applicant should pay the respondents costs as not only did he cite a non-existent persona but he sought to hide material facts from the court. The application itself did not comply with the Rules and was clearly not urgent but ...

SC86-22 : CITY OF HARARE vs EVARISTO MUNGATE
Ruled By: GOWORA JA, MAKONI JA and BERE JA

After hearing counsel, in the matter, we dismissed the appeal with costs and indicated that reasons would follow in due course. Below are the reasons for judgment.This is an appeal against the whole judgment of the High Court upholding the respondent's claim for damages arising from the appellant's negligence.THE BACKGROUND ...

After hearing counsel, in the matter, we dismissed the appeal with costs and indicated that reasons would follow in due course. Below are the reasons for judgment.

This is an appeal against the whole judgment of the High Court upholding the respondent's claim for damages arising from the appellant's negligence.

THE BACKGROUND FACTS

On 28 March 2014, at around 19:00 hours, near Lyon's Maid offices, along Simon Mazorodze Road, the respondent fell into the appellant's uncovered drainage tunnel commonly referred to as a “catch pit.” He was rushing to board a commuter omnibus which he had waved down. He broke his leg, sustaining a permanent limp. The catch pit is situated on a traffic island which is between Simon Mazorodze Road and a pedestrian or foot path.

Subsequently, on 23 September 2014, the respondent issued summons against the appellant claiming damages amounting to US$305,796; interest thereon, and costs of suit.

The breakdown of the damages claimed by the respondent was as follows:

(a) Shock, pain, and suffering US$50,000;
(b) Loss of amenities of life US$100,000;
(c) Disability US$100,000;
(d) Medical expenses US$5,796;
(e) Contumelia US$50,000;

The respondent averred, that, the appellant was liable for the injuries he suffered and ensuing damages as it had failed to either cover or put up any cautionary signs to warn pedestrians of the existence of the uncovered catch pit.

In its plea, the appellant denied liability in toto stating that it was not negligent in any way, nor was it liable for the respondent's injury, loss incurred, and damages claimed. It put the respondent to the strict proof thereof.

It further averred, that, the misfortune that befell the respondent was a result of the respondent's negligence since he failed to keep a proper lookout and acted without due care and attention.

The appellant prayed for the dismissal of the respondent's claim.

PROCEEDINGS IN THE COURT A QUO

The following issues were referred to trial:

“(i) Whether or not the defendant(s) are liable for injuries allegedly suffered by the plaintiff.

(ii) Whether the plaintiff's injuries were not a result of Plaintiff's own negligence and failure to keep a proper outlook.

(iii) Whether or not the defendant(s) are liable to pay any damages whatsoever.

(iv) If the defendant(s) are liable, what is the quantum thereof.”

The respondent was the sole witness in his case.

He testified that he fell into a pit whilst running to catch a lift that he had waved down. He stated that several factors contributed to his fall:

(i) Firstly, the area was unlit because of the absence of street lights.

(ii) Secondly, the area surrounding the pit was covered with tall grass which obscured the pit.

(iii) Thirdly, there was no cover over the catch pit.

(iv) Fourthly, there was no warning sign to caution him of the existence of the pit.

The respondent stated, that, under such circumstances, it was difficult for him to see the catch pit.

He also stated, that, the appellant was liable since council's employees had admitted the pit had been constructed and was under the maintenance of the appellant.

The respondent also produced photographs showing the surrounding area and the pit which he had fallen into, the evidence of the medical expenses which he incurred as a result of the injuries sustained and a report by a medical doctor stating that he suffered a 15 percent permanent disability.

The respondent substantiated his claim for damages stating, that, further to the injuries he sustained from the fall, he had been subjected to embarrassment, had suffered, and continued to suffer pain and shock, had lost amenities of life in that he could not earn extra income as he used to, or attend festivals, run, jog or dance.

In its defence, the appellant led evidence through one George Munyonga, who is a Deputy Chief Engineer employed by the appellant, responsible for maintaining road infrastructure.

He conceded that the catch pit belonged to the appellant and that from the evidence presented before the court, the catch pit was not covered by a steel grating.

However, he took issue with the alleged severity of the respondent's injuries and argued that the injuries sustained by the respondent were not consistent with a fall into a catch pit.

He also testified, that, even if it was established that the respondent had fallen into the appellant's pit and sustained injuries as claimed, these were as a result of the respondent's own negligence.

He stated, that, the respondent had been negligent in crossing the road as he did since he was familiar with the road and would have known of the existence of the various catch pits along the road. He further stated, that, he must have known that there was a possibility of an accident. Further to that, the respondent ran across a traffic island instead of using the pedestrian path. He also sought to board a vehicle at an undesignated bus stop and he ought to have taken more care as the area was unlit.

Issue was also raised in relation to the fact, that, there was a three months delay between the occurrence of the accident and the time the respondent notified the appellant of the accident.

Mr Munyonga conceded that a catch pit without a cover poses a hazard to humans and that it is the appellant's duty to carry out regular maintenance by carrying out inspections and repairs to catch pits every three months. He also conceded that if it was dark, the respondent could not have seen the catch pit, even with a proper lookout. He also affirmed, that, it was impossible for one to board transport from the pedestrian path without crossing over the island where the catch pit was located. He also stated that along the road in question several theft cases of stolen steel gratings covering the pits had been reported.

He however stated, that, the process of replacing the steel covers required funding and since the appellant was going through a cash crunch, there were delays in procuring the necessary infrastructure.

DETERMINATION OF THE COURT A QUO

After considering the parties arguments and evidence placed before it, the court a quo found in favour of the respondent.

It concluded, that, the respondent broke his leg as a result of falling into the appellant's catch pit. The court further held, that, the appellant was liable for the respondent's injuries and that the requirements of the standard test for negligence, as enunciated in Kruger v Coetzee 1966 (2) SA 428…, had been met. The harm was reasonably foreseeable; a diligens pater familias would have taken reasonable steps to guard against such occurrence and no such steps were taken.

The court a quo further held, that, uncovered catch pits posed a deadly hazard to the public and the appellant had a legal duty to ensure that they were regularly inspected and properly covered. It was reasonably foreseeable that an uncovered catch pit could pose danger to the public. Further to this, the appellant was aware of such cases, as several cases of such a nature had been reported to the appellant before. The appellant should have carried out regular inspections of the catch pits; replacing the missing lids; mowing the grass around the catch pits to ensure visibility; maintaining adequate street lighting to ensure visibility at night; erecting danger warning signs to warn members of the pubic of the existence of open catch pits; and erecting barriers to block public access to the catch pits.

The appellant had failed to take these steps and thus failed to do its duty and could not be absolved from liability. It further held, that, the respondent's explanation for the delay was plausible considering the severity of the injuries he sustained.

The court a quo further found, that, the respondent may have been negligent by running in the dark when he could not properly see where he was stepping, as he was obscured by tall grass. The risk of tripping and falling, even in the absence of a catch pit, could not be ruled out.

The court, however, concluded that the respondent's negligence was not the proximate cause of the fall.

The proximate cause of the fall was the absence of the catch pit cover. The court stated that if the catch pit had been covered, even if the plaintiff had walked on the island where he was not supposed to, or if he had run in the dark when he could not properly see, he would not have fallen into the catch pit.

Accordingly, the court upheld the respondent's claim and awarded damages amounting to US$9,769. The computation was as follows:

1. US$796 being damages for medical expenses.
2. US$2,000 being damages for shock, pain and suffering.
3. US$1,000 being damages for loss of amenities of life.
4. US$1,000 being damages for disability.

The court, however, dismissed the respondent's claim for damages for contumelia on the basis that he had failed to prove intention, on the part of the appellant, to humiliate him or cause embarrassment to him.

Regarding costs, the court awarded the respondent costs of suit since he had succeeded in his claim.

However, it expressed displeasure at the respondent's ridiculously high and unrealistic claims for damages which, in its view, would have hindered chances of the matter being settled at pre-trial conference stage. It stated that damages are meant to compensate the injured party and not to punish the wrongdoer, and, further, that damages should reflect the state of economic development and the current economic conditions of the country.

Aggrieved by this outcome, the appellant noted this present appeal based on the following grounds:

GROUNDS OF APPEAL

“(i) The court a quo erred in coming to the conclusion, that, there was no contributory negligence by the respondent. It also erred in that it misapplied the 'proximate cause' principle leading to the incorrect conclusion, that, despite being negligent, plaintiff did not contribute to the accident.

(ii) Furthermore, the court erred in its apportionment of damages as a consequence of its failure to apportion blame. It so erred in that an appropriate apportionment of blame would have reduced the amount of damages payable by the appellant at least by half.

(iii) In any event, the decision of the court a quo, as it relates to the issue of contributory negligence, is so outrageous in its defiance of logic that no reasonable person applying his mind to the question to be decided would have arrived at such a conclusion.

(iv) At any rate, the court erred by ordering appellant to pay costs having found that the respondent was equally to blame for the litigation which could have been avoided.”

SUBMISSIONS IN THIS COURT

The appellant's major contention was that some measure of liability must be attributed to the respondent as this was a classical case where the doctrine of contributory negligence was applicable.

Counsel for the appellant submitted, that, the court a quo misapplied the 'proximate cause' principle in the sense that there was more than one proximate cause of the accident. He argued that there were multiple acts of negligence by both the appellant and the respondent which contributed to the accident.

Accordingly, damages should be apportioned in terms of section 4 of the Damages (Apportionment and Assessment) Act [Chapter 8:06], reducing the damages payable by the appellant in half.

Pertaining to the issue of costs, counsel for the appellant argued, that, each party ought to bear its own costs since the respondent was equally to blame for the accident and the litigation because of the unrealistic claims he made which militated against a possible settlement.

Counsel for the respondent, on the other hand, contended that the appellant should have specifically pleaded the defence of contributory negligence and the appropriate relief for apportionment of damages.

It ought to have, at least, set out detailed grounds showing the respondent's negligence and how he contributed to the occurrence of the accident. The issue was not covered in the pleadings, as such, the court a quo could not have canvassed the issue in its judgment in the circumstances.

Counsel for the respondent further stated, that, the court a quo was correct in finding that whatever negligence attributable to the respondent, such negligence was not the cause of the loss. He averred that whatever negligence attributable to the respondent was “negligence in the air” as the respondent would not have been injured but for the existence of the uncovered catch-pit.

The respondent also argued, that, the determinant factor before damages could be apportioned is that the respondent's negligence must have caused the loss. However, the court a quo found, as a fact, that the appellant was the actual cause of the harm suffered by the respondent.

Regarding costs, counsel for the respondent submitted, that, in the absence of a demonstration that the court a quo grossly erred in its exercise of discretion, there would be no basis for interfering with the court a quo's order of costs.

As for the damages, the respondent also argued, that, the appellant had not established a substantial variation or striking disparity between the trial court's award and what the Appellate Court would have awarded, neither had it been proved that the court a quo did not have a sound basis for awarding damages at that scale.

ISSUES FOR DETERMINATION

The appeal raises the following issues for determination by this Court:

(i) Whether or not the court a quo fell into error when it found that the respondent was negligent and then failing to find that there was contributory negligence thereby misapplying the proximate cause principle?

(ii) Whether the court a quo erred in ordering the appellant to pay the costs of suit?...,.

COSTS

It is trite, that, the award of costs is entirely in the discretion of the court, and, generally, costs follow the result.

The basis of the appellant's grief with the order of costs is that the court a quo held that the respondent was partly to blame for the litigation because of the unrealistic claims he made which militated against any possible settlement.

A close reading of the judgment reveals, that, the remarks made by the court a quo, regarding the unrealistic claims made by the appellant, which could possibly militate against a possible settlement, were made obiter. This was after it had made a finding that the respondent was entitled to his costs as he had succeeded in the suit.

HERBSTEIN and VAN WINSEN in The Civil Practice of the High Court, Vol.2, 5th ed…, succinctly set out the purpose of an award of costs as follows:

“…, to indemnify him for the expense to which he has been put through, having been unjustly compelled to initiate or defend litigation, as the case may be.”

The appellant has not demonstrated that the court a quo grossly erred in its exercise of discretion in this regard. I see no reason to interfere with the award of costs against the appellant.

Appealed
SC70-18 : YUNUS AHMED vs DOCKING STATION SAFARIS (PRIVATE) LIMITED t/a CC SALES
Ruled By: BHUNU JA

There being no reason to depart from the general rule, that, costs follow the result, the general rule shall prevail.

SC17-24 : TENDAI MASHAMHANDA vs BARIADIE INVESTMENTS (PRIVATE) LIMITED and SHERIFF OF THE HIGH COURT
Ruled By: BHUNU JA

As regards costs, I see no basis for departing from the norm, that, costs follow the result. I am not persuaded that costs at the higher scale are merited....,.1. The application be and is hereby dismissed with costs.

SC38-23 : SOUTH AFRICAN AIRWAYS LIMITED vs MINISTER OF ENVIRONMENT, WATER AND CLIMATE and CIVIL AVIATION AUTHORITY OF ZIMBABWE
Ruled By: MATHONSI JA, KUDYA JA and MUSAKWA JA

The imposition of costs is always in the discretion of a court seized with the matter.

SC41-23 : CASSIAN MANUHWA vs SEEDCO ZIMBABWE (PRIVATE) LIMITED
Ruled By: GWAUNZA DCJ, KUDYA JA and MWAYERA JA

CostsThe employer has substantially succeeded in this appeal. However, as this is a labour case, we see no reason why each party should not bear its own costs....,.1....,.2....,.3....,.4. Each party shall bear its own costs.

SC45-23 : ZONDIWA NYAMANDE vs ISAAC MAHACHI and CHITUNGWIZA MUNICIPALITY and MANYAME RURAL DISTRICT and MINISTER OF LANDS
Ruled By: GUVAVA JA, MUSAKWA JA and MWAYERA JA

The High Court (the 'court a quo') granted an application filed by the first respondent, on an urgent basis, for spoliatory relief. The appellant, disgruntled by the decision, appealed to this Court.

At the commencement of the hearing, counsel for the appellant raised a point in limine, that, the second respondent's heads of argument were improperly before the court as they were filed in support of the appeal. He thus prayed that they be struck out with no order as to costs.

Counsel for the second respondent was not opposed to the striking out of the heads of argument. As a result, an order by consent was issued striking out the second respondent's heads of argument.

There was, therefore, no appearance for the second respondent before the court.

FACTUAL BACKGROUND

The first respondent is the holder of an offer letter for subdivision 6 of Braemar Farm in Seke District (the farm) under the jurisdiction of the Manyame Rural District Council. The farm was allocated to him on 17 November 2009 and is 122,540ha in extent. The farm had been gazetted on 3 September 2004 in the Government Gazette Extraordinary Vol. LXXXII, No. 72.

The acquisition of the farm by Government is still extant.

On 10 May 2022, the first respondent filed an urgent chamber application for a spoliation order against the appellant.

The first respondent alleged, that, on 5 May 2022, at around 3:00pm, the appellant instructed his workers to build a two roomed house and a surrounding wall in his cattle grazing area. The appellant proceeded to dig trenches for the wall and completed building the two-roomed house.

Upon enquiring from the appellant about the reason why he had built a structure on his farm, the appellant responded, that, he had been allocated the piece of land by the second and third respondents for the purpose of constructing a school.

The first respondent requested for a meeting with the appellant as a means to iron out the issue, but, the appellant declined to attend.

The first respondent reported the invasion by the appellant to the police, but, did not get much assistance. The first respondent, thereafter, made an application for a spoliation order in a bid to recover the portion of the farm that had been taken by the appellant.

The appellant opposed the application.

In his opposing affidavit, he raised five preliminary objections:

(i) Firstly, he alleged, that, the first respondent had no cause of action against him.

It was the appellant's position, that, he was entitled to occupy and possess the portion of the farm as it was now Stand Number 7727 Nyatsime Township (the 'Stand'). The appellant further stated, that, he acquired the Stand through a lease agreement entered into between him and the second respondent.

He further stated, that, the Stand was not part of a farm but was a planned urban settlement which fell under the jurisdiction of the Manyame-Chitungwiza Joint Committee.

The appellant also stated, that, the land on which the first respondent was entitled to occupy was different from where his Stand was situated as evidenced by the layout plan and site plan for the area;

(ii) The second preliminary point was that the remedy of spoliation was wrongly sought. It was the appellant's view, that, any charge against the appellant should have been for trespass and not spoliation;

(iii) The third point was that the application was made using the wrong form thus failing to comply with the rules of court;

(iv) The fourth point was that the matter was not urgent; and finally

(v) That the first respondent ought to have joined the Minister of Local Government and Public Works as well as the Manyame-Chitungwiza Joint Committee to the proceedings.

On the basis of these preliminary points, the appellant sought an order that the application be dismissed.

On the merits of the matter, the appellant denied sending his workers onto the first respondent's farm. He argued, that, the piece of land belonged to him and that he was developing it in order to build a school. He maintained, that, the first respondent was never in peaceful and undisturbed possession of the land where the appellant built his structure as such piece of land did not belong to him. The appellant further averred, that, the first respondent was mistaken in thinking that the Stand was part of his farm as evidenced by the lease agreement.

The second respondent opposed the application and raised a preliminary point, that, the application was not urgent.

On the merits, the second respondent averred, that, the gazetted land, on which the farm stood, had since been placed under the jurisdiction of the Manyame-Chitungwiza Joint Committee as established under S.I. 211/21.

The second respondent averred, that, the Stand was allocated to the appellant lawfully with all processes duly followed.

It was also the second respondent's averment, that, the offer letter issued to the first respondent had since been withdrawn by the fourth respondent.

The second respondent thus prayed for the dismissal of the application.

The third respondent also opposed the application and raised two preliminary points:

(i) The first point being, that, there was non-joinder of the Manyame-Chitungwiza Joint Committee; and

(ii) Secondly, that, the matter was not urgent.

On the merits of the matter, the third respondent averred, that, the first respondent failed to furnish any proof that he was in peaceful and undisturbed possession of the land occupied by the appellant. Further, that, the first respondent failed to fulfil the requirements to be satisfied in an application for spoliation.

Not to be outdone, the fourth respondent also opposed the application and raised the preliminary point, that, the matter was not urgent.

On the merits, the fourth respondent averred, that, the offer letter giving the first respondent authority over the farm was withdrawn on 7 February 2015 and the land was subsequently parceled out to the Ministry of Local Government and Public Works.

Thus, the fourth respondent suggested that the offer letter in the possession of the first respondent was null and void and therefore he had no legal right to be on the farm.

DETERMINATION BY THE COURT A QUO

The court a quo, in dealing with the application, found no merit in the preliminary points raised. The court a quo held, that, an application for spoliation is urgent by its nature and thus the application was properly before it. It also found, that, there was a valid cause of action before it as the first respondent had an offer letter in his possession which gave him a right to be on the land. It held further, that, the form which had been used by the first respondent was not the correct one but found that there was substantial compliance with the Rules. It further found, that, non joinder of a party to proceedings did not necessarily vitiate the proceedings.

With regards to the merits of the case, the court a quo found, that, the land occupied by the first respondent was a commercial farm held by the fourth respondent. As it was a commercial farm, it fell outside the jurisdiction of the Ministry of Local Government and Public Works, the second, and third respondents. They thus had no mandate over the farm.

The court found, that, the Minister of Local Government and Public Works had no power or authority to establish or expand an urban settlement. The court held, that, the second and third respondents could not come on the first respondent's farm and impose conditions on that land.

It held further, that, the appellant had no legal basis to take the land from the first respondent as this was the sole prerogative of the President.

The court a quo noted, that, the actions by the second respondent, in issuing a lease agreement to the appellant, amounted to an exercise of authority reposed only in the President and that such actions were therefore illegal and criminal.

The court a quo accordingly found, that, the first respondent was despoiled of his farm and granted the application for spoliation against the appellant. It also ordered, that, the appellant, and all those claiming occupation through him, must vacate the farm. It made a further order, that, the appellant must remove all structures which he had constructed and refill all the trenches that he had dug on the farm.

Aggrieved by the decision of the court a quo, the appellant appealed to this Court on the following grounds of appeal;

“(1) The court a quo erred in finding, that, the requirements for spoliation were satisfied in circumstances where the 1st respondent failed to establish that the appellant was in occupation of subdivision 6 of Braemar Farm Plot thereby despoiling him.

(2) The court a quo erred in granting spoliatory relief in circumstances where there was no evidence before it that the appellant's lease agreement with 2nd respondent related to a farm and not a designated Stand.

(3) The court a quo erred in affording the relief of spoliation in circumstances where there existed material dispute of fact as to which land belonged to the appellant and which land belonged to the respondent.

(4) The court a quo erred in holding, that, the matter was urgent in circumstances where the urgency was self-created by the 1st respondent.

(5) The court a quo erred in determining, that, the appellant had a cause of action against the appellant in circumstances where they were in occupation of different pieces of land.

(6) The court a quo erred in ordering the appellant to pay costs of suit on a higher scale in the absence of evidence on record justifying such a course.”...,.

With regards to costs granted a quo, it is apparent that the court granted costs on a legal practitioner and client scale without giving the reasons for the order.

The court fell into error in this regard.

It is trite, that, while the award of costs is in the discretion of the court, a court that awards costs on a legal practitioner and client scale must establish a legal basis for doing so. These are punitive costs, and, the court must justify why the party so saddled with this cost has raised the ire of the court.

Whilst the award may have been justified, unfortunately, the reasons for this decision remained embedded in the mind of the judge.

In the absence of such reasons, the order of costs made by the court a quo cannot stand and all that can be done is to substitute the award to an award on the ordinary scale.

In this regard, the appeal will succeed only to the extent that the order for costs on a higher scale is set aside....,.

1....,.

2. Paragraph 3 of the order of the court a quo is set aside and substituted with the following:

“3. The first respondent shall pay costs on an ordinary scale.”

SC81-23 : DISCENT BAJILA and FRANK MHLANGA and ADELAIDE MHLANGA and SANPOULOS MAPLANKA and OTHERS vs TATENDA MADZIRASHE and RAMSON CHINGWARA and LINDA MPOFU and OTHERS
Ruled By: UCHENA JA, CHITAKUNYE JA and MWAYERA JA

Regarding costs, they are at the discretion of the Court. We find no reason to depart from the general principle that costs follow the cause.

SC85-23 : ZIMBABWE REVENUE AUTHORITY vs MUROWA DIAMONDS (PRIVATE) LIMITED
Ruled By: UCHENA JA, KUDYA JA and MWAYERA JA

COSTSThere is no reason for a departure from the general rule that costs must follow the result....,.1. The appeal be and is hereby dismissed.2. The appellant shall pay the respondent's costs on the ordinary scale.

SC119-23 : QUICKLINK INVESTMENTS (PRIVATE) LIMITED vs CMAL (PRIVATE) LIMITED and THE SHERIFF OF ZIMBABWE
Ruled By: BHUNU JA, CHIWESHE JA and MUSAKWA JA

As regards costs, there is no reason why we should depart from the normal trend that costs follow the result....,.It is ordered that the appeal be and is hereby dismissed with costs.

SC122-23 : BERNARD KUJINGA vs OLD MUTUAL LIFE ASSURANCE (PRIVATE) LIMITED
Ruled By: MAVANGIRA JA, CHIWESHE JA and MUSAKWA JA

As is the general norm, costs will follow the event....,.It is ordered that the appeal be and is hereby dismissed with costs.

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Ruled By: MATHONSI JA, KUDYA JA and MUSAKWA JA

SC41-23 : CASSIAN MANUHWA vs SEEDCO ZIMBABWE (PRIVATE) LIMITED
Ruled By: GWAUNZA DCJ, KUDYA JA and MWAYERA JA

SC45-23 : ZONDIWA NYAMANDE vs ISAAC MAHACHI and CHITUNGWIZA MUNICIPALITY and MANYAME RURAL DISTRICT and MINISTER OF LANDS
Ruled By: GUVAVA JA, MUSAKWA JA and MWAYERA JA

SC81-23 : DISCENT BAJILA and FRANK MHLANGA and ADELAIDE MHLANGA and SANPOULOS MAPLANKA and OTHERS vs TATENDA MADZIRASHE and RAMSON CHINGWARA and LINDA MPOFU and OTHERS
Ruled By: UCHENA JA, CHITAKUNYE JA and MWAYERA JA

SC85-23 : ZIMBABWE REVENUE AUTHORITY vs MUROWA DIAMONDS (PRIVATE) LIMITED
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SC119-23 : QUICKLINK INVESTMENTS (PRIVATE) LIMITED vs CMAL (PRIVATE) LIMITED and THE SHERIFF OF ZIMBABWE
Ruled By: BHUNU JA, CHIWESHE JA and MUSAKWA JA

SC122-23 : BERNARD KUJINGA vs OLD MUTUAL LIFE ASSURANCE (PRIVATE) LIMITED
Ruled By: MAVANGIRA JA, CHIWESHE JA and MUSAKWA JA

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Law Portal Zimbabwe

Costs re: Approach

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

SC115-21 : ANDREW CHIGOVERA vs MINISTER OF ENERGY AND POWER DEVELOPMENT and ZIMBABWE ELECTRICITY TRANSMISSION AND DISTRIBUTION COMPANY (ZETDC) Ruled By: GUVAVA JA, MAVANGIRA JA and KUDYA AJA

SC144-21 : FARAI MATSIKA and FAIRGOLD INVESTMENTS (PRIVATE) LIMITED vs MOSES CHINGWENA and 38 OTHERS Ruled By: BHUNU JA

HH28-16 : FARPIN INVESTMENTS [PVT] LTD vs NETONE CELLULAR [PVT] LTD and JUSTICE L.G. SMITH [RETD] - ARBITRATOR Ruled By: MAFUSIRE J

HH95-16 : MANICA ZIMBABWE LTD vs GRINDSBERG INVESTMENTS (PVT) LTD and OTHERS Ruled By: DUBE J

HH149-16 : ZIMASCO (PRIVATE) LIMITED vs COMMISSIONER GENERAL OF THE ZIMBABWE REVENUE AUTHORITY Ruled By: HLATSHWAYO J

Appealed SC06-22 : JOEL SILONDA (SUBSTITUTED BY EXECUTOR, VUSUMUZI SILONDA) vs VUSUMUZI NKOMO Ruled By: GUVAVA JA, UCHENA JA and KUDYA AJA

SC32-22 : CUTHBERT DUBE vs PREMIER MEDICAL INVESTMENTS (PVT) LTD and PREMIER SERVICE MEDICAL AID SOCIETY Ruled By: MAKONI JA, MATHONSI JA and KUDYA JA

SC50-22 : LONRHO LOGISTICS (PRIVATE) LIMITED vs RAM PETROLEUM (PRIVATE) LIMITED Ruled By: UCHENA JA, MATHONSI JA and KUDYA JA

SC59-22 : DELTA BEVERAGES (PRIVATE) LIMITED vs BLAKEY INVESTMENTS (PRIVATE) LIMITED Ruled By: BHUNU JA, MAKONI JA and CHITAKUNYE AJA

View Appeal HB188-22 : BATANDI MPOFU N.O. vs FELIX DZUMBUNU and CHIKOTI DORO and ASSISTANT MASTER OF THE HIGH COURT OF ZIMBABWE Ruled By: DUBE-BANDA J

SC80-22 : MSWELANGUBO FARM (PVT) LTD and OBERT MPOFU and SIKHANYISIWE MPOFU vs KERSHELMAR FARMS (PVT) TD and ZEPHANIAH DHLAMINI and CHARLES MOYO and SIPHOSAMI MALUNGA Ruled By: GWAUNZA DCJ, CHITAKUNYE JA and MWAYERA JA

Appealed SC92-22 : VALENTINE ZISWA and MARGARET ZISWA vs GRAEME CHADWICK and LANDOS FARM (PRIVATE) LIMITED Ruled By: UCHENA JA, MAKONI JA and KUDYA AJA

SC101-22 : MASTER OF HIGH COURT N.O. and RUGARE MANDIMA N.O. and HOUSE OF SARI PL vs DAVID TAKAENDESA and OTHERS and HOUSE OF SARI and RUGARE MANDIMA and REGISTRAR OF DEEDS and MASTER OF HIGH COURT Ruled By: GUVAVA JA, KUDYA JA and MWAYERA JA

SC103-22 : BENSON MAKACHI and MR. MUGAVA and SIMON NOTA and SILAS GWESHE and GIBSON MUTSAKA and EVERSON BREAKFAST and DAVISON CHIVESO and FREDSON GAMA vs EVANGELICAL CHURCH OF ZIMBABWE Ruled By: UCHENA JA, CHITAKUNYE JA and CHATUKUTA JA

View Appeal HBHB160-21 : BLANKET MINE (1983) (PVT) LTD vs FISANI MOYO and VALENTINE MINE (Represented by THOMSON MOYO) and ZIMBABWE REPUBLIC POLICE, GWANDA and PROVINCIAL MINING DIRECTOR N.O. Ruled By: KABASA J

HH329-13 : RICHARD JAMBO vs CHURCH OF THE PROVINCE OF CENTRAL AFRICA and ANGLICAN DIOCESE OF MASVINGO and DEPUTY SHERIFF CHIVHU N.O. Ruled By: GUVAVA J

SC86-22 : CITY OF HARARE vs EVARISTO MUNGATE Ruled By: GOWORA JA, MAKONI JA and BERE JA

Appealed SC70-18 : YUNUS AHMED vs DOCKING STATION SAFARIS (PRIVATE) LIMITED t/a CC SALES Ruled By: BHUNU JA

SC17-24 : TENDAI MASHAMHANDA vs BARIADIE INVESTMENTS (PRIVATE) LIMITED and SHERIFF OF THE HIGH COURT Ruled By: BHUNU JA

SC38-23 : SOUTH AFRICAN AIRWAYS LIMITED vs MINISTER OF ENVIRONMENT, WATER AND CLIMATE and CIVIL AVIATION AUTHORITY OF ZIMBABWE Ruled By: MATHONSI JA, KUDYA JA and MUSAKWA JA

SC41-23 : CASSIAN MANUHWA vs SEEDCO ZIMBABWE (PRIVATE) LIMITED Ruled By: GWAUNZA DCJ, KUDYA JA and MWAYERA JA

SC45-23 : ZONDIWA NYAMANDE vs ISAAC MAHACHI and CHITUNGWIZA MUNICIPALITY and MANYAME RURAL DISTRICT and MINISTER OF LANDS Ruled By: GUVAVA JA, MUSAKWA JA and MWAYERA JA

SC81-23 : DISCENT BAJILA and FRANK MHLANGA and ADELAIDE MHLANGA and SANPOULOS MAPLANKA and OTHERS vs TATENDA MADZIRASHE and RAMSON CHINGWARA and LINDA MPOFU and OTHERS Ruled By: UCHENA JA, CHITAKUNYE JA and MWAYERA JA

SC85-23 : ZIMBABWE REVENUE AUTHORITY vs MUROWA DIAMONDS (PRIVATE) LIMITED Ruled By: UCHENA JA, KUDYA JA and MWAYERA JA

SC119-23 : QUICKLINK INVESTMENTS (PRIVATE) LIMITED vs CMAL (PRIVATE) LIMITED and THE SHERIFF OF ZIMBABWE Ruled By: BHUNU JA, CHIWESHE JA and MUSAKWA JA

SC122-23 : BERNARD KUJINGA vs OLD MUTUAL LIFE ASSURANCE (PRIVATE) LIMITED Ruled By: MAVANGIRA JA, CHIWESHE JA and MUSAKWA JA

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Law Portal
Zimbabwe

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

SC115-21 : ANDREW CHIGOVERA vs MINISTER OF ENERGY AND POWER DEVELOPMENT and ZIMBABWE ELECTRICITY TRANSMISSION AND DISTRIBUTION COMPANY (ZETDC)
Ruled By: GUVAVA JA, MAVANGIRA JA and KUDYA AJA

SC144-21 : FARAI MATSIKA and FAIRGOLD INVESTMENTS (PRIVATE) LIMITED vs MOSES CHINGWENA and 38 OTHERS
Ruled By: BHUNU JA

HH28-16 : FARPIN INVESTMENTS [PVT] LTD vs NETONE CELLULAR [PVT] LTD and JUSTICE L.G. SMITH [RETD] - ARBITRATOR
Ruled By: MAFUSIRE J

HH95-16 : MANICA ZIMBABWE LTD vs GRINDSBERG INVESTMENTS (PVT) LTD and OTHERS
Ruled By: DUBE J

HH149-16 : ZIMASCO (PRIVATE) LIMITED vs COMMISSIONER GENERAL OF THE ZIMBABWE REVENUE AUTHORITY
Ruled By: HLATSHWAYO J

Appealed
SC06-22 : JOEL SILONDA (SUBSTITUTED BY EXECUTOR, VUSUMUZI SILONDA) vs VUSUMUZI NKOMO
Ruled By: GUVAVA JA, UCHENA JA and KUDYA AJA

SC32-22 : CUTHBERT DUBE vs PREMIER MEDICAL INVESTMENTS (PVT) LTD and PREMIER SERVICE MEDICAL AID SOCIETY
Ruled By: MAKONI JA, MATHONSI JA and KUDYA JA

SC50-22 : LONRHO LOGISTICS (PRIVATE) LIMITED vs RAM PETROLEUM (PRIVATE) LIMITED
Ruled By: UCHENA JA, MATHONSI JA and KUDYA JA

SC59-22 : DELTA BEVERAGES (PRIVATE) LIMITED vs BLAKEY INVESTMENTS (PRIVATE) LIMITED
Ruled By: BHUNU JA, MAKONI JA and CHITAKUNYE AJA

View Appeal
HB188-22 : BATANDI MPOFU N.O. vs FELIX DZUMBUNU and CHIKOTI DORO and ASSISTANT MASTER OF THE HIGH COURT OF ZIMBABWE
Ruled By: DUBE-BANDA J

SC80-22 : MSWELANGUBO FARM (PVT) LTD and OBERT MPOFU and SIKHANYISIWE MPOFU vs KERSHELMAR FARMS (PVT) TD and ZEPHANIAH DHLAMINI and CHARLES MOYO and SIPHOSAMI MALUNGA
Ruled By: GWAUNZA DCJ, CHITAKUNYE JA and MWAYERA JA

Appealed
SC92-22 : VALENTINE ZISWA and MARGARET ZISWA vs GRAEME CHADWICK and LANDOS FARM (PRIVATE) LIMITED
Ruled By: UCHENA JA, MAKONI JA and KUDYA AJA

SC101-22 : MASTER OF HIGH COURT N.O. and RUGARE MANDIMA N.O. and HOUSE OF SARI PL vs DAVID TAKAENDESA and OTHERS and HOUSE OF SARI and RUGARE MANDIMA and REGISTRAR OF DEEDS and MASTER OF HIGH COURT
Ruled By: GUVAVA JA, KUDYA JA and MWAYERA JA

SC103-22 : BENSON MAKACHI and MR. MUGAVA and SIMON NOTA and SILAS GWESHE and GIBSON MUTSAKA and EVERSON BREAKFAST and DAVISON CHIVESO and FREDSON GAMA vs EVANGELICAL CHURCH OF ZIMBABWE
Ruled By: UCHENA JA, CHITAKUNYE JA and CHATUKUTA JA

View Appeal
HBHB160-21 : BLANKET MINE (1983) (PVT) LTD vs FISANI MOYO and VALENTINE MINE (Represented by THOMSON MOYO) and ZIMBABWE REPUBLIC POLICE, GWANDA and PROVINCIAL MINING DIRECTOR N.O.
Ruled By: KABASA J

HH329-13 : RICHARD JAMBO vs CHURCH OF THE PROVINCE OF CENTRAL AFRICA and ANGLICAN DIOCESE OF MASVINGO and DEPUTY SHERIFF CHIVHU N.O.
Ruled By: GUVAVA J

SC86-22 : CITY OF HARARE vs EVARISTO MUNGATE
Ruled By: GOWORA JA, MAKONI JA and BERE JA

Appealed
SC70-18 : YUNUS AHMED vs DOCKING STATION SAFARIS (PRIVATE) LIMITED t/a CC SALES
Ruled By: BHUNU JA

SC17-24 : TENDAI MASHAMHANDA vs BARIADIE INVESTMENTS (PRIVATE) LIMITED and SHERIFF OF THE HIGH COURT
Ruled By: BHUNU JA

SC38-23 : SOUTH AFRICAN AIRWAYS LIMITED vs MINISTER OF ENVIRONMENT, WATER AND CLIMATE and CIVIL AVIATION AUTHORITY OF ZIMBABWE
Ruled By: MATHONSI JA, KUDYA JA and MUSAKWA JA

SC41-23 : CASSIAN MANUHWA vs SEEDCO ZIMBABWE (PRIVATE) LIMITED
Ruled By: GWAUNZA DCJ, KUDYA JA and MWAYERA JA

SC45-23 : ZONDIWA NYAMANDE vs ISAAC MAHACHI and CHITUNGWIZA MUNICIPALITY and MANYAME RURAL DISTRICT and MINISTER OF LANDS
Ruled By: GUVAVA JA, MUSAKWA JA and MWAYERA JA

SC81-23 : DISCENT BAJILA and FRANK MHLANGA and ADELAIDE MHLANGA and SANPOULOS MAPLANKA and OTHERS vs TATENDA MADZIRASHE and RAMSON CHINGWARA and LINDA MPOFU and OTHERS
Ruled By: UCHENA JA, CHITAKUNYE JA and MWAYERA JA

SC85-23 : ZIMBABWE REVENUE AUTHORITY vs MUROWA DIAMONDS (PRIVATE) LIMITED
Ruled By: UCHENA JA, KUDYA JA and MWAYERA JA

SC119-23 : QUICKLINK INVESTMENTS (PRIVATE) LIMITED vs CMAL (PRIVATE) LIMITED and THE SHERIFF OF ZIMBABWE
Ruled By: BHUNU JA, CHIWESHE JA and MUSAKWA JA

SC122-23 : BERNARD KUJINGA vs OLD MUTUAL LIFE ASSURANCE (PRIVATE) LIMITED
Ruled By: MAVANGIRA JA, CHIWESHE JA and MUSAKWA JA