Pleadings re: Abandoned Pleadings

SC05-21 : GIFT KONJANA vs DEXTER NDUNA
Ruled By: PATEL JA, BHUNU JA and BERE JA

This appeal emanates from an election petition lodged with the Electoral Court to nullify the election of the respondent and to declare the petitioner (the appellant herein) duly elected as the Member of Parliament for Chegutu West. The disputed election was held on 30 July 2018.BackgroundAfter the relevant election forms ...

Background

After the relevant election forms were collated and compiled, the respondent was declared duly elected by 10,932 votes as opposed to 10,828 votes attributed to the appellant. The appellant asserted that the Zimbabwe Electoral Commission (ZEC) officials made mistakes in capturing data from the ward centres. He lodged a complaint with the ZEC District Elections Officer after the discovery of the mistake which was then admitted by ZEC. Before the Electoral Court, the appellant sought the correction of the erroneous declaration. The respondent took various points in limine.

Judgment of the Electoral Court

The court a quo considered the provisions of the Electoral (Applications, Appeals and Petitions) Rules 1995, S.I.74 of 1995. It found that Rule 21 of the Rules sets out certain peremptory requirements pertaining to the form and content of an election petition. Amongst other things, Rule 21 requires the petitioner to state the grounds of the petition and the exact nature of the relief sought on the face of the petition. The court took the view that Rule 21 is peremptory and must be strictly complied with and that substantial compliance is not acceptable. Consequently, a petition that fails to comply with the form and content as set out in Rule 21 is fatally defective.

In the instant case, the court found that the exact relief sought by the appellant was clear ex facie the petition and that the appellant was entitled to bring the petition in terms of section 167 of the Electoral Act [Chapter 2:13] to rectify the alleged irregularity.

The court further found that the relief seeking the nullification of the declaration by the Zimbabwe Electoral Commission (ZEC) of the appellant as having been duly elected was competent by virtue of section 171 of the Electoral Act. The court accordingly dismissed the points in limine taken by the respondent on these three aspects.

As regards the fourth point in limine, the court reiterated that it was imperative for a petitioner to follow the format prescribed in Rule 21 of the Electoral (Applications, Appeals and Petitions) Rules 1995, S.I.74 of 1995.

In casu, the appellant brought the petition on notice and therefore fell foul of Rule 21 of the Electoral (Applications, Appeals and Petitions) Rules 1995, S.I.74 of 1995.

The form and content of the petition did not comply with Rule 21, rendering it fatally defective. The appellant had failed to present his case in the proper format required by law. There was therefore no valid petition before the court.

In the event, the court could do nothing to salvage the situation, even where the petition might appear to have merit. The court's residual power to condone infractions in electoral matters was curtailed. The petition was accordingly dismissed with costs.

Additionally, the Registrar was directed to serve copies of the order on the Zimbabwe Electoral Commission (ZEC) and the Clerk of Parliament.

Grounds of appeal and respondent's preliminary objections

The gravamen of the appeal against the judgment a quo is threefold:

(i) The first is that the petition was not fatally defective for having been brought on notice as section 169 of the Electoral Act makes such notice mandatory.

(ii) The second is that the court a quo could have condoned non-compliance with the Rules as section 17(9) of the Electoral Act vests the court with such competence to condone.

(iii) The third is that the court failed to consider the merits of the petition despite the Zimbabwe Electoral Commission (ZEC) having acknowledged the error that resulted in the undue return complained against.

On 12 April 2019, the respondent gave written notice, in terms of Rule 51 of the Supreme Court Rules 2018, that he intended to rely on two preliminary objections in the proceedings.

The less consequential objection is that the relief sought in the notice of appeal is both incompetent and defective in seeking that the matter be referred to trial on the merits before a different judge of the Electoral Court.

The more significant and weighty objection is that the adjudication of the present appeal is now statute barred on account of section 182(2) of the Electoral Act.

At the hearing of the appeal, following an exchange with the Court, counsel did not motivate any argument on the former point and focused their submissions on the latter objection.

Appealed
SC06-21 : OLIVER MASOMERA (as Executor Dative of Estate late Bryan James Rhodes) vs GIDEON HWEMENDE and OTHERS
Ruled By: PATEL JA, BHUNU JA and BERE JA

This is an appeal against the judgment of the High Court dismissing an application for the rescission of an earlier judgment granted in favour of the fourth respondent in Case No. HC1589/13. The application was dismissed with costs to be borne by the estate of the late Brian James Rhodes, ...

Background

Prior to his demise, on 29 July 2006, the deceased, B.J. Rhodes, had established two companies, namely, Beverly East Properties (Pvt) Ltd and Karoi Properties (Pvt) Ltd. The appellant, as I have said, is the executor dative of the deceased estate. He was not a party to the proceedings in Case No. HC1589/13 wherein the court granted a declaratory order in favour of the fourth respondent.

In his application before the court a quo, the appellant sought the rescission of that order on the ground that it had been obtained through fraud, and, alternatively, that it had been granted in error.

In Case No. HC1589/13, the court dismissed the claims over the two companies by the first respondent (Gideon Hwemende), who had purported to appoint the fifth to the tenth respondents (Valentine Mushore, Alfred Chademana, Joel Tenderere, Oliver Chibage, Farai Mutizwa and Calisto Vengesai) as directors in the companies in order to protect his own interests.

The court ruled that the lawful shareholder of the two companies was the Phoenix Trust, the assets of which included corporate stock in the two companies.

It found that the fourth respondent (Terrence Cobden Rhodes) was a trustee of the Trust and a Director in both companies owned by the Trust. The court also found that the fourth respondent (Terrence Cobden Rhodes), as trustee, had legal title to the trust property and that any benefits accruing to the companies, including accumulated rentals in the sum of US$70,000, in turn, accrued to the Trust as the shareholder of the companies.

In granting its order, the court imposed the condition that the fourth respondent (Terrence Rhodes) should furnish evidence that the Trust legally owned the companies before the Registrar could release to the Trust the sum of US$70,000 that was deposited with him.

In the application a quo, the appellant adduced the supporting affidavit of the deceased's widow (Elizabeth Anne Rhodes). The admission of this affidavit was challenged by the fourth respondent (Terrence Rhodes) on the ground that it did not comply with the provisions of the High Court (Authentication of Documents) Rules, 1971. The court a quo agreed and held that the affidavit was not admissible as it had not been properly authenticated.

More importantly, the fourth respondent (Terrence Rhodes) also took the point in limine that the applicant did not have locus standi to bring the application because he was only the curator bonis of the deceased estate.

The appellant had initially deposed, in his founding affidavit, that he was acting in his capacity as the executor dative of the estate. However, he had attached the letters of his confirmation as curator bonis rather than his Letters of Administration in respect of the estate. Subsequently, through his answering affidavit, he then attached the Letters of Administration appointing him as the executor dative of the estate. The letters of confirmation were issued on 1 November 2013, while the Letters of Administration were issued on 26 February 2014.

High Court Judgment

As regards the appellant's locus standi, the court a quo found that, as at 20 November 2013, the appellant could not have engaged in Case No. HC1589/13 in terms of section 22(2) of the Administration of Estates Act [Chapter 6:01]. He would therefore not have had locus standi to seek the rescission of the order granted in that matter. That rendered his actions in casu nugatory as the absence of a cause of action could not be cured through the substitution of his capacity in his answering affidavit. He could not properly cure the defect in the founding affidavit pertaining to locus standi through the production of an authorising document in his answering affidavit.

The court accordingly held that his case must fail due to lack of legal standing.

Having found that the application should be dismissed for want of locus standi, the court nevertheless proceeded to address the merits of the matter.

As regards the alleged fraud, the court observed that this was not a ground for setting aside the earlier judgment under Rule 449(1)(a) of the High Court Rules, 1971. The court found that there was clearly no error committed, as envisaged in the Rules, as the earlier judgment had directed that the fourth respondent (Terence Rhodes) was to furnish proof that the deceased had transferred the shares in the two companies to the Trust.

With reference to the allegation that the fourth respondent (Terrence Rhodes) had fraudulently claimed that the deceased had transferred the shares, the court found that the appellant did not produce any authentic documents to counter the alleged fraudulent documents. No documentary evidence was adduced to prove what the appellant alleged to be the correct shareholding in the two companies. The appellant simply attacked the authenticity of the official documents produced by the fourth respondent (Terrence Rhodes), which showed that the Trust owned the entire shareholding in the companies, without any proof to controvert the fourth respondent's evidence.

Consequently, the earlier judgment must stand because it had not been shown that the court had relied on fraudulent evidence in assessing the facts before it.

In the event, the court a quo held that the relief of rescission sought by the appellant must be refused and accordingly dismissed the application on the merits.

Grounds of appeal and relief sought

There are three grounds of appeal in this matter:

(i)...,.

(ii) The second impugns the court a quo for holding that the appellant had no authority to institute proceedings, despite the presence of letters of appointment evincing such authority, and for refusing to accord the appellant an opportunity to furnish further evidence and proof of authority....,.

As regards the second ground of appeal, counsel for the fourth respondent initially took the position that the court was correct in finding that the appellant had no locus standi. However, at the close of his submissions, he was prepared to concede this ground of appeal....,.

Counsel for the appellant agreed that the first ground of appeal was irrelevant. He also conceded that the third ground of appeal was confined to the allegations of fraud and that sub-ground (c) of the third ground was meaningless and was therefore to be abandoned.

In light of these concessions by both counsel on what are essentially technical issues, which concessions were properly made so as to obviate the trappings of formalism, the Court remains seized with the critical and substantive nub of this appeal: and that is whether or not the appellant had established an adequate basis for seeking the rescission of the earlier judgment on the ground that it had been obtained by fraud.

View Appeal
SC161-20 : STANLEY NHARI vs ROBERT MUGABE and DR GRACE MUGABE and GUSHUNGO DAIRY HOLDINGS (PVT) LTD
Ruled By: GARWE JA, MAVANGIRA JA and MAKONI JA

This is an appeal against the judgment of the High Court upholding the special plea by the respondents that the High Court did not have jurisdiction to determine issues of employment and labour law.

At the centre of the dispute between the parties, both in the court a quo and before this Court, is the question whether the High Court, which now enjoys original jurisdiction over all civil and criminal matters throughout Zimbabwe pursuant to section 171 of the Constitution 2013, has jurisdiction to determine all matters including issues of labour and employment.

Having carefully considered all the constitutional provisions that have a bearing on this matter, as well as case law authority, I am in no doubt that the powers of the High Court are not unbounded and that in the sphere of labour and employment law, the court does not have jurisdiction to determine such matters in the first instance.

BACKGROUND FACTS

The appellant was employed as General Manager of the third respondent in terms of an unwritten agreement and commenced such employment in or about January 2007.

It appears, from the pleadings, that, the employment relationship hit stormy waters, and, in 2015, the appellant's employment was terminated.

At the relevant time, the first respondent was the President of the Republic of Zimbabwe whilst the second was his wife and the country's First Lady.

In July 2018, the appellant, as plaintiff, issued a summons against all three respondents claiming various sums of money which he contended were due.

In his declaration, the appellant claimed that the third respondent was the first and second respondents' alter ego and that it constituted the economic entity through which the first and second respondents pursued their economic interests.

He claimed, that, as General Manager, he was required to perform all such tasks as are customarily undertaken by a person in that position and that, in addition, he was required to do work that had nothing to do with his position as General Manager of the third respondent.

On 6 October 2015, “by use of illegitimate influence, force and might”, the first and second respondents “required” him to relinquish his position but was however ordered to continue working until 6 November 2015.

The relief sought consequent upon the above developments is captured in his declaration as follows:

“2.1. As a result of the unlawful termination of the employment relationship, plaintiff is owed by defendants damages for a period extending from 1 October 2015 to 6 November 2015 being the sum of $8,909=14 computed on the basis of the salary that plaintiff was earning, which sum the defendants have refused to pay.

2.2. Plaintiff is also owed $69,492=69 in accrued leave days reckoned from 1 January 2007 to 6 November 2015 such leave accruing at 25 days per year.

2.3. At the time of the termination of relationship between the parties, the plaintiff was entitled, by agreement, to a motor vehicle or to the value of such vehicle being US$90,000. Defendants have refused to allow plaintiff to recover this benefit.

2.4. Upon the enforced termination of the employment relationship, first and second defendants used public media to denigrate plaintiff at various gatherings in a manner that imperilled his future prospects of employment.

2.5. The acts(s) of the defendants in interfering with the plaintiff's prospects are wrongful and deliberate and resulted in plaintiff losing potential employment and has consequently yielded loss of US$588,000 which is due from defendants to plaintiff.”

The respondents, as defendants, filed a plea-in-bar in which they averred that the High Court had no jurisdiction to entertain the matter because it was a purely labour dispute in respect of which the Labour Court had jurisdiction in the first instance as provided for in section 89(6) of the Labour Act [Chapter 28:01].

They further contended that the cause of action was the alleged non-payment of post-termination of employment wages and benefits.

That being the position, in terms of section 13 of the Labour Act, the allegation, if proved, would constitute an unfair labour practice which fell to be dealt with under section 93 of the Labour Act.

In terms of section 89(6) of the Labour Act, the High Court has no jurisdiction in the first instance to hear and determine such a matter. Whilst accepting that in terms of section 171(1) of the Constitution 2013 the High Court has original jurisdiction over all civil and criminal matters throughout Zimbabwe, the respondents further submitted that, by section 172(2) and (3), the same Constitution has circumscribed matters over which the Labour Court has exclusive jurisdiction.

In its determination, the High Court accepted, that, in terms of section 171(1) of the Constitution 2013, the High Court has jurisdiction over all civil and criminal matters in Zimbabwe.

Relying on a number of decisions of the same court, the court found that, regard being had to section 172 of the Constitution 2013 which provides for the establishment of the Labour Court, the intention of the legislature was that, in labour matters, the Labour Court be the court of first instance.

The court further found that the Constitution recognizes the distinction between labour matters and civil matters in general.

It also found that in any event section 13 of the High Court Act [Chapter 7:06] makes it clear that it is subject to the High Court Act itself and any other law.

Since section 2A(3) of the Labour Act provides that the Act prevails over any other enactment inconsistent with it, section 89(6) of the Labour Act would prevail over section 13 of the High Court Act.

The court, after analysing each of the plaintiff's claims, came to the conclusion that they were all rooted in Labour Law, and, therefore, only the Labour Court had jurisdiction to determine them.

The court acknowledged that there were conflicting High Court decisions on the matter, with some holding, that, with the advent of the new Constitution, the High Court now enjoyed jurisdiction to determine all matters, including those that originate from labour and employment, whilst other decisions are to the contrary.

It was "in light of this unhappy state of the law” that the court determined that an award of punitive costs was not warranted. In the result, the court upheld the special plea.

Instead of striking the matter off the roll for want of jurisdiction, the court dismissed it with costs....,.

Unhappy with the above determination, the appellant filed a notice of appeal with this Court. His grounds of appeal are that:

1....,.

2. The court a quo erred in finding that the High Court does not have jurisdiction to deal with the claims that were brought to it by the appellant, more particularly those that related to delictual damages and the motor vehicle....,.

As regards the claim for $558,000 damages for loss of employment prospects, the respondents conceded, during oral argument, that this fell outside the jurisdiction of the Labour Court....,.

The last claim is for US$588,000

This is said to represent damages for loss of employment prospects pursuant to the public media coverage which is said to have denigrated the appellant's personality. This claim, poorly formulated as it was, is clearly not labour related, and appears to be for delictual damages arising from defamatory statements made in the public media.

The claim is not for damages in lieu of reinstatement.

The respondents accept that this claim does not fall to be determined under the Labour Act.

HH63-16 : ASWEL NYANZARA vs MBADA DIAMONDS (PRIVATE) LIMITED
Ruled By: CHITAPI J

The applicant is a former employee of the respondent. He was employed in the position of Asset Protection Officer.

On 11 November 2014, the applicant was served with a notice to terminate his employment with the respondent. The notice period which the applicant was given was three (3) months effective from 11 November 2014, to be served from home i.e. the applicant was not to report for work but would nonetheless be paid his salary.

In the aforesaid notice to terminate the applicant's employment contract the respondent stated:

“…, the corporate hereby undertakes to pay the notice period and all outstanding payments due to you on a monthly basis spreading over a period of four months through the corporate's payroll until all such is extinguished in full. These payments shall be made subject to such statutory deductions as are applicable. A statement of account denoting how much you are entitled to shall be availed to you by the 30th November 2014. Kindly approach the human resources department for your termination clearances and statement of account, and affix your signature to the tear off below to signal your receipt of this letter…,.”

The letter of notice was delivered upon the applicant who refused to sign the tear off slip.

Nothing turns upon the applicant's refusal to sign the tear off slip because the validity of the termination being a unilateral act by the respondent (employer) would not require acceptance by the applicant (employee) through signing the letter. It is sufficient for its validity that the letter was conveyed upon the applicant.

By letter dated 29 November 2014, the respondent wrote to the applicant setting out the amounts which it acknowledged to be owing by it to the applicant. The letter referred to is attached as annexure 'C' to the applicant's founding affidavit and reads in material part as follows:

Re: Statement of account for Aswell Nyanzara EC No. BD1013

“We refer to the above matter.

Please be advised that Mbada Diamonds acknowledges owing you a total amount of USD$9,695=02 which was calculated starting from 1 February 2010 being the date of engagement. The detailed breakdown is as follows:

Item Value
1. Gratuity payable $1,331-95
2. 90 days of CILL payable $3,073-85
3. 0.00 months historic overtime $-
4. April & May 2014 overtime @ 1.5 $-
5. April & May 2014 overtime @ 2.0 $ 102-46
6. Back pay for June & July 2014 $ 576-00
7. Salary for September, October & November $2,305-38
8. 3 months using current work arrangement $2,305-38
Grand Total $9,695-02

Please note that all the above amounts are gross figures, and, as such, are subject to applicable statutory deductions. Mbada Diamonds will deduct any loans or amounts advanced to you from the net amount…,.

A Zindi (Mr)
The Human Resources Manager
For and on behalf of Mbada Diamonds”

As with the letter of termination of employment on notice, which the applicant refused to sign, he also did not sign the letter setting out the statement of account.

The applicant indicates, in his answering affidavit, that, he did not sign his own copy of Annexure C but signed the one which the respondent retained. He attributes his failure to sign the letter to the fact that he is a layman and thought it unnecessary to sign the copy which he retained and has attached to his application.

Although the respondent appears to take issue with the failure by the applicant to sign the statement of account in acknowledgment, it is, in my view, a matter or omission of no great moment because the authenticity of annexure 'C' is common cause between the parties.

I shall advert to analysing its contents later when I consider the jurisdictional issues raised by the respondent.

On 5 May 2015, the applicant filed the present court application whose heading reads 'COURT APPLICATION FOR PAYMENT OF MONEY'. The application is supported by the applicant's brief affidavit consisting of seven (7) paragraphs, the material ones which read as follows:

“4. On 11 November 2014, the respondent terminated my contract of employment on notice. A copy of letter of termination of contract of employment is attached hereto marked “B”.

5. On 29 November 2014, the respondent marked out my terminal benefits which amounted to $9,695=02. A copy of the statement of account from the Human Resources Manager is attached hereto marked 'C'.

6.1. Apart from the $9,695=02, the respondent owed me the following amounts;

(a) Night Allowances - $1,941=10 Annexure 'D'.

(b) Unrefunded portion of the pension fund - $799=20 Annexure “E”.

6.2. Therefore, the total amount of money which I am claiming from the respondent is $12,435=32 arrived at as follows;

7. I have not been paid a single cent from these moneys that are due to me despite demand on several occasions. The respondent has simply neglected, failed and/or refused to pay. I am applying for an order granting me the aforesaid sum for purposes of enforcement …,.

WHEREFORE, I pay for an order in terms of the Draft.

Thus sworn to at Harare this 5th day of May, 2015

Signed: Aswell Nyanzara”

Annexures 'D' and 'E' referred to in paragraph 6.1(a) and 6.1.(b) of the applicant's founding affidavit are, respectively, a letter whose date is not clear but is headed TERMINAL BENEFITS FOR ASWELL NYANZARA…,. NIGHT ALLOWANCE.

Annexure D is addressed to the respondent and is purportedly written by one E Munongerwa representing NUMQUI SWZ. There is a date stamp embossed National Union of Mines Quarrying Iron and Steel Workers of Zimbabwe. It appears that NUMQUISWZ is the abbreviation for the union. The letter purports to calculate the applicant's night allowance at $1,941 as the amount due to the applicant by the respondent.

Annexure E is a letter whose origins are not clear nor stated except that it is dated 4 March 2015, is addressed to the respondent's Principal Officer, a Mr Kennedy Bingwa, and is signed by or on behalf of Alackias Gavure – Administration Manager.

The letter is headed Mbada Diamonds Pension Fund: Retirement – Nyanzara Aswell (BD1013).

The author of Annexure E states in the letter, that, the sum of $1,834=58 was transferred into the “members” NMB Bank account number 290073502 on 2 March 2015. The payment represents the full commutation due to the member (comprising member and employer contributions together with interest thereon). The writer further states, in the letter, that, the 'balance retirement capital could not secure the statutory minimum monthly pension currently pegged at $30. The last paragraph of the letter reads as follows:

“The member has been refunded the 'funded portion' of his contributions made up to 30 November 2013. The unfunded portion, amounting $799-20, has not been refunded pending receipt of the outstanding contributions relating to the period 1 December 2013 to 31 May 2014.”

In the draft order, the applicant prays for an order as follows:

“IT IS ORDERED THAT:

1. Respondent shall pay applicant $12,435-32 together with interest thereon at the rate of 5% calculated from the date of service of the Court Application on Respondent to the date of payment together with costs of suit on attorney–client scale.”

The respondent, in opposing the application, and as shown upon a reading of its opposing affidavit, has raised two issues:

(i)...,.

(ii) The second issue raised by the respondent is in two parts, namely;

(a) That the applicant cannot rely on a document which he has refused to sign in acknowledgment of its contents and which document was written on a without prejudice basis and marked so....,.

The applicant..., stated that there was no prejudice to be suffered by the respondent if Annexure C was admitted because albeit it being marked “without prejudice”, he accepted the respondent's computations and signed the copy which he left at the respondent's office but omitted to sign the one which he retained....,.

I considered the argument raised by the respondent, that, Annexure 'C' setting out how the figure of USD$9,695-02 was arrived at is marked 'Without Prejudice' and therefore should not be relied upon by the applicant as it is inadmissible.

It is not correct that in the law of evidence, it is a rule of thumb that a letter marked “without prejudice” cannot be disclosed or used in proceedings. The words 'without prejudice' ought to be considered as protecting the rights of the writer of the letter. In other words, the without prejudice statement or letter should not prejudice the applicant from adopting a contrary position from that it would have adopted in the without prejudice statement letter or communication.

I do not intend, however, to belabour the issue because of the view which I have taken of the matter, which view or position is favourable and therefore not prejudicial to the applicant, that, the letter in issue does not pass for an acknowledgment of debt since the amounts set out therein are subject to deductions which are not stated nor agreed to by the parties.

I have also considered the judgment of HUNGWE J in Mhangura Copper Mines Limited v Tayengwa Dugmore Muskwe HH443-15 and also took into account the fact that the respondent did not advance the issue of the admissibility of Annexure 'C' in its heads of argument nor indeed during oral argument.

The respondent was concerned more with the issue of the jurisdiction of this court to hear the matter.

HH413-18 : LAFARGE CEMENT (ZIMBABWE) LIMITED vs MUGOVE CHATIZEMBWA
Ruled By: MATHONSI J

The applicant seeks summary judgment for the eviction of the respondent and all those claiming occupation through him from residential premises known as No.16 West Estate, Lafarge Cement in Greendale, Harare.When the respondent received the eviction summons in HC9669/17 in which the applicant sought to vindicate against the respondent, it ...

HH542-15 : THE SHERIFF OF THE HIGH COURT vs RONGXIN MINING (PRIVATE) LIMITED and FREDDY MAKUVISE
Ruled By: MTSHIYA J

This is an interpleader application.On 5 September 2014, the following consent order was granted in favour of the judgement creditor;“IT IS ORDERED BY CONSENT THAT:1. The defendants shall pay US$60,000 being 10% commission on an investment of U$600,000 brokered by the plaintiff.2. The US$60,000 shall be paid through plaintiff's legal ...

This is an interpleader application.

On 5 September 2014, the following consent order was granted in favour of the judgement creditor;

“IT IS ORDERED BY CONSENT THAT:

1. The defendants shall pay US$60,000 being 10% commission on an investment of U$600,000 brokered by the plaintiff.

2. The US$60,000 shall be paid through plaintiff's legal practitioners on or before 30 September 2014.

3. The balance of plaintiff's claim shall be referred to trial in terms of the joint pre-trial conference minute signed by the parties' legal representatives.

4. There be no order as to costs.”

On the basis of the above court order, and on the instructions of the judgment creditor, on 6 November 2014, the Sheriff of Zimbabwe attached various goods allegedly belonging to the judgement debtors who have not been cited in casu. The judgment debtors, in the consent order, were Zhuwakinyu Chazarira (first defendant) and Xingrong Hu (second defendant).

On 19 November 2014 the claimant herein advised the applicant that the attached goods belonged to it. That led to the applicant filing this inter pleader application on 5 December 2014.

The attached goods included mining equipment, vehicles, and office equipment.

As already stated, the claimant alleges that the attached goods belong to it and that it has no relationship with the judgment debtors. It states that the assets were imported into Zimbabwe following the grant to it of an investment licence by the authorities in Zimbabwe. It says the equipment was meant for its mining operations in Zimbabwe and it had legally imported it into the country as evidenced by documentation from the Zimbabwe Revenue Authority (ZIMRA).

The claimant went on to argue that, although the judgement debtors might have had an interest in the claim, the court should recognise the fact that it is a separate legal entity whose property did not belong to them (judgement debtors).

On its party, the applicant, who has no interest in the matter, stated that it would abide by the court's decision.

The judgement creditor initially raised a point in limine, namely, that, the affidavit used to lay a claim to the attached property was not properly signed and therefore there was no claim.

However, that claim was not pursued in submissions.

SC04-18 : ZIMBABWE REVENUE AUTHORITY vs CHESTER MUDZIMUWAONA
Ruled By: CHIDYAUSIKU CJ, GOWORA JA and MUTEMA AJA

This was an appeal against the whole judgment of the Labour Court delivered on 17 May 2012. After perusing the record and hearing the submissions of the parties, this Court allowed the appeal and indicated that the reasons would be availed in due course.

The following are the reasons for the order.

The facts arising in this matter are that, in 2002, the respondent was employed by the appellant as a Revenue Trainee on a fixed term contract of three years. It specifically stated the following:

“Upon successful completion of the probation period, the employment contract shall run for a further period of 24 (twenty-four) months after which the authority may, at its sole discretion, offer you permanent employment on such terms and conditions as determined by it at the time.”

The literal meaning of that clause is that the respondent's contract was subject, first, to the successful completion of the probation period and then would terminate at the end of the 36 month.

In 2005, the respondent was based at the Beitbridge Border post and was charged with failing to uphold ethical and professional standards of behaviour within the workplace as well as carrying out an act inconsistent with the express or implied conditions of the contract of employment.

He was arraigned before a Disciplinary Committee and was found guilty of both charges. He was, as a consequence, dismissed from employment.

He appealed to the Appeals Committee without success.

The respondent appealed against that decision to the Labour Court which upheld the appeal and held that the he had been unlawfully dismissed. The court a quo ordered the appellant to reinstate the respondent without loss of salary or benefits, and, in the event that reinstatement was no longer tenable, to pay damages in lieu of reinstatement.

This decision was not appealed against.

Instead, the parties decided to negotiate the quantum of damages but failed to agree resulting in the respondent applying to the Labour Court for quantification.

He claimed, that, when he was dismissed he had not completed his training period but it was common cause that he was going to continue with his job after training and thus he was entitled to compensation as if he was a permanent employee.

The appellant opposed the quantification on the basis that the respondent was employed on a fixed-term contract and he had failed his examinations and thus the contractual relationship would have ended at the expiry of the 36 months provided in the contract.

The Labour Court ruled in favour of the respondent and ordered the appellant to pay:

(a) US$19,740=16 as back-pay and benefits.

(b) Twelve (12) months' salary that the respondent would have earned in August 2011 minus US$150 earned by the respondent per month for a period of twelve months.

The appellant was aggrieved by the decision, and, with the leave of this court has appealed the order of the court a quo.

It is criticized for the following reasons:

(i) Failing to put due weight to the fact that the respondent was employed as a Revenue Trainee on a fixed term contract of 36 (thirty six) months.

(ii) Failing to give proper weight to the fact, that, when the respondent was dismissed he was left with a period of 6 (six) months before expiration of the contract.

(iii) Failing to give proper weight to Clause 1.3 of the Zimbabwe Revenue Authority offer of employment which provides that permanent employment could only be offered at the sole discretion of the appellant.

(iv) Failing to give proper weight to the submission, that, even if the respondent had not been dismissed, he would not have been offered permanent employment as he had failed two (2) core courses in November 2004 and supplementary exams in 2005.

(v) Failing to distinguish between a permanent employee and an employee on a fixed term contract in its quantification of damages, especially after finding that the respondent did not have a legitimate expectation to be offered permanent employment.

(vi) In finding that the respondent's entitlement to damages accrued up to the date of the court's judgment.

(vii) In failing to deduct the US$150 earned by the respondent per month for a period of twelve (12) months from the total amount awarded as back pay and benefits.

(viii) In failing to appreciate that the respondent could have easily obtained alternative employment within a period of six (6) months.

(ix) In rejecting the evidence of the appellant's expert witness on the factual issues and accepting that of the respondent and his witness on unclear grounds.

The respondent raised three preliminary objections to the appeal. The objections were, respectively, that;

(i) The Notice of Appeal did not state the correct date of judgment;

(ii) The grounds of appeal were not clear and concise; and, lastly

(iii) That the grounds of appeal did not raise questions of law.

The respondent abandoned the first objection after conceding that the Notice of Appeal, in point of fact, reflected the correct date of judgment.

SC13-21 : MOSES MAWIRE vs RIO ZIM LIMITED (PRIVATE) LIMITED
Ruled By: GOWORA JA, PATEL JA and MAVANGIRA JA

After hearing the parties on 9 March 2018, the court was of the unanimous view that the appeal was devoid of any merit and accordingly ordered as follows:“The appeal be and is hereby dismissed with costs. Full reasons will be available in due course.”The following are the reasons:BACKGROUND FACTSThe appellant ...

After hearing the parties on 9 March 2018, the court was of the unanimous view that the appeal was devoid of any merit and accordingly ordered as follows:

“The appeal be and is hereby dismissed with costs. Full reasons will be available in due course.”

The following are the reasons:

BACKGROUND FACTS

The appellant was employed by the respondent as a Human Resources Superintendent on 1 November 2006. He was based at the Head Office in Harare. In February 2009 he was transferred to Renco Mine. His contract of employment provided for, amongst other things, locality allowance, leave bonus, and a company vehicle which was to be fuelled and maintained by the company.

In February 2009, as happened nationwide, the respondent shifted from the use of the Zimbabwean dollar to the United States dollar when the Zimbabwean dollar became moribund.

On 19 February 2009, the respondent wrote a letter to the appellant notifying him, that, following the adoption of the United States dollar, his salary would be US$4,147=43 per month.

The letter was silent on allowances.

On 21 March 2009, through an office memorandum, all the respondent's employees were notified of the changes in their salaries and allowances. The memorandum provided, that, the respondent had implemented salary scales based on regional 'SADC' rates for employees in all grades. Consequently, transport and meals allowances, together with leave bonus payable when employees proceeded on annual leave, were to fall away with effect from 1 March 2009 for all employees in Grade 10 and above. Transport and meals allowances were also removed for employees in Grade 10 and above.

The respondent further indicated that the employees would be kept abreast of further changes.

Following the adoption of the United States dollar, the appellant was being paid a globular salary without any allowances. The respondent did not provide the appellant with the motor vehicle, but, rather, supplied him with fuel and paid for the maintenance of his personal car.

This was regardless of the fact that the respondent's contract of employment stated that he was entitled to allowances and a motor vehicle maintained by the company.

In June 2014, the appellant raised a complaint of unfair labour practice with the Labour Officer. He demanded payment of the following:

1. Outstanding locality allowance for the period from February 2009, when he was transferred to Renco Mine, up to the time when he made the complaint in June 2014;

2. Leave bonus from 2009 to 2013; and

3. Mileage for use of his personal motor vehicle from 1 March 2007 up to the time of the making of the claim.

At conciliation, the parties failed to reach a settlement and the matter was referred to arbitration.

Before the arbitrator, the appellant argued, that, he was entitled to payment of outstanding locality allowances and leave bonus and to a motor vehicle coupled with its maintenance and repairs. The appellant had been using his personal vehicle for the respondent's business as the respondent had failed to provide the motor vehicle. For this reason, he claimed compensation on the mileage of his vehicle on the same basis as if it was on hire to the respondent.

The appellant also contended, that, the respondent had unilaterally varied the contents of the contract of employment.

The respondent raised a preliminary point.

It was to the effect, that, in the event that the appellant's contract was found to have been violated, the appellant's claims had prescribed in terms of section 94(1)(b) of the Labour Act [Chapter 28:01] (herein after referred to as 'the Act').

The respondent also argued, that, none of the respondent's contractual benefits were being violated.

The arbitrator dismissed the preliminary point.

In his award, he made the finding, that, all the claims made by the appellant had been sustained. He thus ordered the respondent to pay the sum of US$197,563 for compensation as had been claimed by the appellant. This was to be paid in two equal monthly instalments of US$98,781=50 with the final payment being paid not later than 1 October 2014.

APPEAL TO THE LABOUR COURT

Dissatisfied with the arbitrator's ruling and award, the respondent appealed to the Labour Court.

A number of grounds of appeal were raised. The court a quo summarized them to amount to:

1. That prescription applied to the claims and those claims that were older than two years had prescribed in terms of section 94(2) of the Labour Act [Chapter 28:01].

2. That the contract of employment was varied by the office memorandum, and by conduct, and that the arbitrator therefore erred at law in his interpretation of the facts.

3. That, there was no prejudice to the employee's remuneration as occasioned by the new method of payment.

4. That, the arbitrator had grossly misdirected himself in the relevant findings of fact so much as to amount to a misdirection at law.

After hearing the parties, the Labour Court allowed the appeal and set aside the arbitral award.

The Labour Court accepted the argument presented by the respondent. It came to the conclusion, that, once an infraction has occurred, and becomes known by the affected party, it prescribes if it is not actioned within two years from the date when the dispute first arose.

The court ruled, that, all the outstanding claims that were more than two years when the claim was instituted by the appellant had prescribed.

On whether or not there was unilateral variation of the contract, the Labour Court found, that, the contract had been unilaterally varied by the respondent.

In its judgment, the Labour Court stated, that, although there was unilateral variation of the contract by the respondent - for five years the appellant received his salary without any complaint. By so doing, the appellant, who was a human resources practitioner, had demonstrated, by conduct, that he accepted the new salary structures.

As a result, the allowances claimed by the respondent were no longer claimable as there was now a new contract in existence.

The Labour Court further found no merit in the appellant's claim which was based on the contention that he had been hiring out his personal motor vehicle to the respondent.

The court a quo found, that, there was no standing agreement between the parties to that effect, and, therefore, to say that the appellant had hired out his vehicle to the respondent would amount to overstretching the contract.

THIS APPEAL

The appellant was aggrieved by the judgment of the court a quo and appealed against its decision on the following grounds:

1. The Labour Court fundamentally misdirected itself on a question of law in failing to find that the claims of the Appellant had not prescribed, they being claims arising from unfair labour practices of a continuing nature covered by section 94(2) of the Labour Act.

2. The Labour Court further erred on a question of law in finding that the contract of employment between the Appellant and the Respondent had been varied such that the appellant would not be paid the claimed allowances.

3. The Labour Court further erred in law in failing to award the Appellant compensation in respect of the usage of his motor vehicle for the business purposes of the respondent.

At the beginning of the hearing, counsel for the appellant indicated that he was abandoning the third ground of appeal which related to the issue of the motor vehicle.

Notably, this ground formed the bulk of the appellant's claim. He therefore restricted his argument to the first two grounds which relate to the claims for outstanding locality allowance and leave bonus.

HH164-18 : TRUSTEES FOR THE TIME BEING OF TONGOGARA COMMUNITY SHARE OWNERSHIP TRUST vs MATRIX REALTY (PVT) LTD
Ruled By: MUREMBA J

This is an application for rescission of a default judgment where the applicant prays for relief in the following terms:

“It is ordered that:

1. The application be and is hereby granted.

2. The apparent delay in bringing an application for rescission of judgment in terms of the rules shall be condoned.

3. Default judgment granted by this court, on 24 May 2017, in Case No. HC1863/17, be and is hereby rescinded.

4. The respondent and its legal practitioners de bonis propriis shall jointly and severally the one paying the other to be absolved pay the costs of this application on a legal practitioner and client scale.”

The background to this matter can be aptly summarized as follows:

The applicant and a company called Kelor Investments (Pvt) Ltd entered into an agreement of sale of immovable property. The contract was brokered by the respondent and the contract stated that the respondent would be entitled to agent's commission at the rate of 5% of $950,000 plus 15% VAT; the said $950,000 being the purchase price at which the immovable property in question was sold.

The parties to the contract agreed, that, the respondent was entitled to agent's commission from the seller, and, further, that, in the event of breach of the contract, the party in breach would be liable for payment of the said commission to the respondent.

It happened, that, the applicant, being the buyer, after signing the contract, did not pay the purchase price by the agreed timeline, only to write a letter to the seller's lawyers saying it was cancelling the contract.

The respondent sued for its commission from the applicant in the sum of US$54,625 on the basis that it was the applicant which had breached the agreement of sale.

The respondent obtained a default judgment after the applicant failed to file opposing papers within the prescribed time.

It is this default judgment, granted by this Court on 24 May 2017, in Case No. HC1863/17, which is now subject of this application for rescission.

At the hearing, the respondent, having abandoned the point raised in limine, that, the application was improperly before the court having been filed out of time, the matter was then argued on the merits.

HH224-22 : MUTSA DENHERE and DEMMUSK ENTERPRISES (PVT) LTD vs FAENSA FRISCO LIMITED
Ruled By: CHIRAWU-MUGOMBA J

The genesis of this matter lies in proceedings held under case number HC8844/12. In that matter, the respondent in casu obtained an order against the applicants as follows:

1. Judgement be and is hereby entered in favour of the plaintiff against defendants jointly and severally the one paying the other to be absolved in the sum of US$43,065.

2. Defendants pay, jointly and severally, the one paying the other to be absolved penalty interest at the rate of 4% per month on the sum of US$41,800 from the 24th of August 2021 to date of payment in full.

3. Costs of suit on an attorney and client scale.

The applicants' case is as follows:

The second applicant entered into a loan facility with the respondent for a total sum of US$45,000 constituting US$15,000 roll over and a new sum of US$30,000. This money was disbursed to the applicants.

It was a material term of the loan agreement that since the respondent is a foreign entity, it had to obtain exchange control approval from the Reserve Bank and this was also in terms of Clause 7:10.

Such proof was never furnished despite the payment supposedly coming from Mauritius.

In pursuance of a writ of execution in case no. HC8844/12, the Sheriff of the High Court visited the first applicant's place of residence armed with a notice of seizure and attachment. This writ was in Zimbabwean dollars and her legal practitioners paid on her behalf the sum of ZW$50,878.

The respondent's legal practitioners however insisted that the payment had to be in United States Dollars. This was ostensibly on the basis that the amount owed was a foreign debt.

The circumstances of the loan however point out to the fact that it was not a foreign obligation as claimed. It was actually a fraud based on the fact that no exchange control authority was sought and obtained.

The loan agreement was executed in Harare, the funds were to be used in Zimbabwe, the laws of Zimbabwe apply and the respondent's representative ordinarily resided in Zimbabwe.

The applicants therefore sought an order declaring the loan agreement entered into by the parties on the 18th of November 2010 as null and void and the discharging of the sureties.

In addition, they sought an order of costs on a higher scale.

Alternatively, they sought a declaratur that the ZW$50,878 is in full and final settlement of the respondents judgment debt.

In responding to the application, the respondent raised points in limine.

They contended that the applicants and respondents entered into the loan agreement in 2010 and the applicants defaulted in 2012 leading to institution of proceedings. They were aware of the existence of the agreement but did not challenge it. They entered into a Deed of Settlement which resulted in the default judgment against them when they failed to honour the agreement. They should have challenged the validity of the agreement within three (3) years but they did not do so. They cannot seek to enforce an agreement nearly nine years after.

Their claim for a declaratur has prescribed.

Additionally, the relief they seek has been overtaken by events. The Deed of Settlement settled the obligations between the parties which Deed became the cause of action resulting in the obtaining of the default judgment. The judgment remains extant and they have not challenged its validity. The applicants are estopped from challenging the validity of the loan agreement.

In any event the applicants are seeking an opinion and not a declaratur.

On the merits, the respondent averred as follows:

It is a duly registered company located in Mauritius. A copy of a certificate of incorporation was attached.

The second applicant and the respondent entered into a loan agreement as stated in the founding affidavit. The advance was made from Mauritius where the respondent is incorporated. Inserted into the loan agreement were warranties to ensure compliance with the laws of Zimbabwe.

The loan agreement did not require exchange control authority as contended by the applicants.

The loan amount was credited into the second applicant's Standard Chartered bank account held in Zimbabwe. The applicants made some payments, specifically a payment of US$2,000 (two thousand) via telegraphic transfer on the 15th of June 2012 to the respondent's bank account held in Mauritius but subsequently defaulted which resulted in the institution of legal proceedings on the 8th of August 2012.

Thereafter, the respondent obtained judgment against the applicants based on a Deed of Settlement.

Further, that the debt is owed to a foreign entity and should be paid in United States Dollars.

The fact that the writ and notice of removal by the Sheriff was in Zimbabwe dollars does not make it less so. The court order upon which the debt is based is expressed in United States dollars. The fact that the loan agreement was executed in Zimbabwe, by a borrower in Zimbabwe, for use in Zimbabwe is irrelevant as is the fact that the respondent's representative was based in Zimbabwe.

What defines whether or not a loan is a foreign obligation is the source of the funds.

The applicants cannot deny that the respondent is registered in Mauritius and funds were transferred from a bank in Mauritius.

At the hearing, after counsel for the respondent had made submissions on the points in limine, counsel for the applicants, in response, abandoned the main relief sought and submitted that the applicants were now only seeking the alternative relief.

The alternative relief is couched as follows:

Alternatively -

(a) It is declared that the applicants payment of ZW$50,878 is a full and final settlement of the respondent's judgment debt.

(b) The respondent shall pay costs of suit on the higher scale of legal practitioner and client scale.

SC25-22 : ELLIOT RODGERS vs PUWAYI CHIUTSI and TENDAYI MASHAMHANDA and REGISTRAR OF DEEDS and SHERIFF OF ZIMBABWE and BARIADE INVESTMENTS PL and LAW SOCIETY OF ZIMBABWE
Ruled By: GWAUNZA DCJ, GUVAVA JA and BHUNU JA

This is an appeal against the whole judgment of the High Court handed down on 14 March 2019, in which the court a quo dismissed the appellant's application for interim relief. The appeal was heard together with that in SC09/20 which involved the same parties, centered around the same dispute and effectively sought the same relief that the appellant seeks in casu.

However, separate judgments for the two appeals have been issued.

The sixth respondent, having applied for the de-registration of the first respondent as a legal practitioner, indicated it would abide by the decision of the court.

FACTUAL BACKGROUND

In 2012, the appellant in this matter sold his house, at No.30 Arundel School Road, with the conveyancing done by the first respondent (a legal practitioner). From a series of actions and applications brought before the courts, it was accepted that the first respondent misappropriated some of the proceeds from the sale of the immovable property.

Consequently, the appellant successfully instituted legal proceedings against the first respondent and obtained a judgment against him in 2015.

Despite a multiplicity of legal proceedings at the instance of the first respondent, the appellant managed to place a caveat on the latter's immovable property, being a certain piece of land situate in the district of Salisbury called the remainder of subdivision C of Lot 6 of Lot 190, 191, 192, 193, 194 and 195 Highlands estate of Welmoed measuring 4,377 square metres, under Deed of Transfer No. 8421/2000.

Pursuant to this, the Sheriff successfully sold the first respondent's property in execution, to the fifth respondent. The first respondent, in a number of applications, challenged the sale in execution which the Sheriff, nevertheless, eventually confirmed.

The High Court as well as this Court further upheld the confirmation of the sale.

Despite these numerous judgments, and the caveat placed upon his property, the first respondent managed to transfer the same property to the second respondent on 8 February 2019. The appellant, in his founding affidavit a quo, averred that such transfer could only have been made possible through some fraudulent conduct on the part of the first respondent in connivance with the Registrar of Deeds.

Subsequently, the appellant filed an urgent application before the court a quo seeking a provisional order in the following terms:

“Terms of final order sought

It is ordered that:

1. Puwayi Chiutsi be and is hereby struck off from the roll of legal practitioners.

2. Puwayi Chiutsi and the Sheriff of Zimbabwe each paying the other to be absolved, pays costs of suit on a scale as between attorney and client.

3. The applicant's legal practitioners be and is hereby given leave to serve the copy of this order to the Registrar of Deeds.

Terms of Interim Order Sought

Pending the final determination of this matter, at the return date, the applicant is granted the following relief;

1. That Deed of Transfer No.708/19, issued in the name of Tendai Mashamhanda in respect of a piece of land in the district of Salisbury called the remainder of subdivision C of Lot 6 of Lot 190, 191, 192, 193, 194 and 195 Highlands estate of Welmoed measuring 4,377 square metres be and is hereby cancelled.

2. That forthwith, the Law Society of Zimbabwe, must place the law firm of Puwayi Chiutsi under curatorship in terms of the Legal Practitioners Act.

3. Puwayi Chiutsi be and is hereby suspended from the practise of the legal profession (at the commencement of proceedings, counsel for the appellant informed the court that both the first respondent and his legal firm had since been de-registered by the Law Society of Zimbabwe).”

On 28 February 2019, the court a quo found that the application was not urgent in as far as it related to the relief sought to compel the Law Society of Zimbabwe to place the first respondent's law firm under curatorship, and, also, his suspension from practice as a legal practitioner.

On 1 March 2019, the court a quo proceeded to hear the rest of the application on the merits.

The court a quo found that the interim relief sought by the appellant, in respect of the cancellation of Deed of Transfer No.708/19, would in fact be a final order. The court brought this issue to the attention of the parties. It was submitted, on behalf of the second respondent, that he was ready to accept an interim interdict to stop any transfer of the property pending determination on the return date. However, the appellant did not move for any relief in the alternative and chose to stand or fall on the final relief being sought.

Consequently, the court a quo held that it was improper to seek final relief on the basis of submissions supporting the grant of an interim order. The court noted, correctly, that such a circumstance would leave nothing for the court to confirm or discharge on the return date.

It also expressed the view that the appellant's interests could have been secured by a temporary interdict prohibiting any transfer of property by the second respondent pending the return date. However, the court took the view that it could not grant such an order as it had not been prayed for, and accordingly, dismissed the application.

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

1. The court a quo grossly erred, holding that there was no urgency in the application in so far as it related to the suspension of Puwayi Chiutsi, the first respondent, from practicing as a legal practitioner.

2. The court a quo grossly erred in not understanding and holding that the court, as well as the appellant, had the duty to ensure the protection of the public and indeed the legal protection against errant lawyer (sic) whose damage to the public and to the legal profession was immense.

3. The court a quo grossly erred, in failing to grant the provisional order sought in terms of the chamber application filed by the appellant.

4. Further, as a question of law, the court a quo erred in not finding, that, in the circumstances of this case, the appellant had shown the legal basis for the granting of the order that was sought whether or not it could be classified as final.

In addition to an order that the appeal be allowed with costs, the appellant seeks an order that the judgment of the High Court be set aside and substituted with an order granting the relief that he originally sought a quo.

This is notwithstanding the fact that he had amended his draft order to leave out the parts of the relief that the court had ruled not to be urgent.

ISSUE FOR DETERMINATION

Notwithstanding the fact that the appellant has four grounds of appeal, as outlined, the only issue that arises for determination in this matter is contained in the appellant's third and fourth grounds of appeal; that is, whether or not the court a quo erred in dismissing the application for what was in fact a final order disguised as provisional order.

The court finds the other two grounds of appeal to be both misplaced and without merit.

As already indicated, the court a quo ruled not to be urgent, two aspects of the appellant's application.

These pertained to the order seeking to compel the Law Society of Zimbabwe to place the law firm of Puwayi Chiutsi under curatorship, and the order seeking the suspension of Puwayi Chiutsi from practising as a legal practitioner (the propriety or otherwise of the splitting of the draft reliefs sought by the appellant a quo was not raised by any of the parties, and has therefore not been considered. Suffice to say that the appellant, according to the learned judge a quo, accepted it and proceeded to amend his draft order accordingly. The matter however becomes academic when regard is had to the fact that the two issues adjudged not urgent have been overtaken by events. This is because by the time this appeal was heard both the first respondent and his legal practice had been de-registered by the Law Society of Zimbabwe).

The court then proceeded to hear the rest of the application on the merits, as outlined thus in its judgment:

“I proceeded to hear the merits of the application on 1 March 2019. The first respondent was in default. Before commencement of submissions, I drew Mr Biti's attention to the fact that the interim relief sought was in fact a final order i.e. the prayer for cancellation of Deed of Transfer No.708/19 issued in the name of the second respondent.

Mr Biti said he was aware of that and was going to seek the order in that form.

He applied for the amendment of the Provisional Order by removal of that part of the prayer for which the court had ruled could (sic) not proceed on urgency. He also sought the removal of all such similar relief from the final order sought and that the final order sought should only contain the issue of costs. This was so, I believe, because the interim relief sought a final order.”...,.

The import of these remarks is that the appellant abandoned, for purposes of the proceedings a quo, paragraphs 1 and 3 of the final relief sought, leaving only paragraph 2, which pertained to the prayer for costs against the first and fourth respondents. Further, that, in so far as the 'Interim Relief' sought was concerned, the appellant abandoned the last two paragraphs. That left only the first paragraph, pertaining to the cancellation of the Deed of Transfer No. 708/19, issued in the name of Tendai Mashamhanda, the second respondent.

Thus, the appellant's amended draft order a quo would have read something like this:

Terms of the Final Order Sought

It is ordered that:

Puwayi Chiutsi and the Sheriff of Zimbabwe each paying the other to be absolved, pays costs of suit on a scale as between attorney and client.

Terms of Interim Order Sought

Pending the final determination of this matter, at the return date, the applicant is granted the following relief;

That Deed of Transfer No.708/19, issued in the name of Tendai Mashamhanda, in respect of a piece of land in the district of Salisbury called the remainder of subdivision C of Lot 6 of Lot 190, 191, 192, 193, 194 and 195 Highlands estate of Welmoed measuring 4,377 square metres be and is hereby cancelled.

Since the urgency referred to in the appellant's first ground of appeal relates to relief that the appellant abandoned, that ground is left with no leg to stand on, as it were.

Ground number two suffers the same fate, since it relates to a part of the application that the court declined to hear for lack of urgency.

The second respondent submits that once the court a quo found that part of the relief sought could not be granted on an urgent basis, the appellant, if dissatisfied, should have requested the reasons for the order, sought leave, and then appealed against it.

Not having done so, the appellant cannot now seek to smuggle the issues that the court a quo did not deal with into his grounds of appeal for consideration by this Court.

It is trite that an Appeal Court, by nature, sits to consider and assess the correctness or otherwise of the decision of a lower court on a particular issue: see Dynamos Football Club (Pvt) Ltd & Another v Zifa & Others 2006 (1) ZLR 346 (S)...,.

Grounds of appeal 1 and 2 are accordingly dismissed.

Appealed
SC24-21 : BIG VALLEY MASTERS (PRIVATE) LIMITED vs SHI JINWU
Ruled By: GWAUNZA DCJ, GUVAVA JA and MAVANGIRA JA

INTRODUCTIONThis appeal arises from the judgment of the High Court in which the court a quo ordered the appellant to pay the respondent the sum of US$89,000 with interest at the prescribed rate calculated from 11 December 2012 to the date of full payment.The appellant is a gold mining company. ...

INTRODUCTION

This appeal arises from the judgment of the High Court in which the court a quo ordered the appellant to pay the respondent the sum of US$89,000 with interest at the prescribed rate calculated from 11 December 2012 to the date of full payment.

The appellant is a gold mining company. It is registered in terms of the laws of Zimbabwe. It owns a gold mine located in Shurugwi (Sky Rocket 16485).

The respondent is a private individual of Chinese origin. He is a foreigner investor based in Zimbabwe.

BACKGROUND FACTS

On 13 January 2011, the appellant and the respondent entered into a joint venture agreement. In terms of the agreement, the parties would constitute a new company. The appellant would provide mining claims and the respondent would be responsible for exploration and providing investment of capital and equipment in respect to the mining venture.

In terms of the agreement, the respondent would get 75 per cent and the appellant 25 per cent of the proceeds from the mine.

The respondent was obliged to grant a loan to the new company in the sum of US$150,000. The loan was to be paid back to the respondent through deductions from profits that would accrue to the appellant when such profit was realized by the company.

The respondent had to pay a down payment in the sum of US$50,000 within ten days of coming into effect of the agreement. In return, the appellant would give the respondent 'blocks of claims' certificate and the company certificate “after agreement of signature of ten days.” (sic)

The new company was to be established before 1 March 2011, and, thereafter, the respondent would pay the remaining US$100,000 to the appellant within ten days after 1 March 2011.

Failure by the respondent to bring reasonable mining equipment and to have the project take off by July 2011 would entitle him to be paid back the loaned amount within six (6) months.

Following signing of this agreement, the respondent, through his erstwhile legal practitioners, wrote a letter to the appellant dated 13 May 2011. In this letter, the respondent informed the appellant that there was a misconception on the terms and conditions of the agreement which had been agreed to by the parties on 13 January 2011. As such, the respondent informed the appellant that he was cancelling the agreement and demanded a refund of the sum of US$88,099 which he had paid to the appellant as a loan amount in terms of the agreement.

Following the letter cancelling the agreement, the parties thereafter entered into a new agreement on 3 October 2011.

In terms of the new agreement, the appellant admitted that it owed the respondent the sum of US$89,000. It was also agreed that the full loan amount, as agreed by the parties, was US$150,000.

It was further agreed that the respondent would recover the loan amount through a tribute to operate and extract ores from the mine. The respondent was to take over the appellant's workers and general control of the mine and recover the amount due to him.

Payment of the loan balance of US$61,000 was to be made before the respondent could take up occupation of the mine.

On 11 December 2012, the respondent issued summons against the appellant claiming the sum of US$89,000 being the amount advanced to the appellant as well as interest at the prescribed rate and cost of suit.

In his declaration, the respondent averred that the new agreement between the parties did not come into fruition due to the appellant's (represented by Philemon Mubata who was cited as the second defendant a quo) failure to perform in terms of the agreement by excluding him from the operations at the mine and using the loan contrary to the provisions of the agreement.

The respondent further averred that he had no choice but to cancel the agreement as the appellant had breached it.

In its plea, the appellant did not dispute entering into a joint venture agreement with the respondent but argued, instead, that, the respondent had not sought to recover his money by mining ore equivalent to the loan sum of US$89 000. It was the appellant's argument that according to the agreement, the appellant was entitled to six months in which to repay the loan. The appellant thus stated that the issuance of summons proceedings was premature.

On 20 November 2013, the appellant amended its plea and averred that the respondent had breached the agreement and failed to provide equipment necessary to carry out exploration work at the mine.

Following breach of the first agreement by the respondent, the parties entered into a second agreement.

The appellant further averred that the second agreement had a suspensive provision to the effect that the respondent had to pay the full amount of US$150,000 before he could recover his monies from production on the mine.

The appellant also filed a counter claim against the respondent with the amended plea for the sum of US$61,000 being payment of the balance of the loan in fulfilment of obligations which the respondent had undertaken in order to fulfill the terms of the agreement.

In response to that claim, the respondent alleged that a condition had to be satisfied, prior to the payment of the US$61,000, which condition was his involvement in management and operations at the mine at the inception of the loan agreement. The respondent averred that he was frustrated by the actions of the appellant. This was the reason why he failed to fulfill his obligation and led to the cancellation of the whole agreement.

PROCEEDINGS BEFORE THE COURT A QUO

At a Pre-Trial Conference, the agreed issues for determination were stated as follows:

“(a) Whether or not the plaintiff was, in accordance with the joint venture agreement, obliged to pay the sum of US$150,000 towards financing the gold mining venture.

(b Whether or not the first and second defendants frustrated the contract resulting in non-fulfillment of the terms and conditions of the agreement between the parties.

(c) Whether or not the first and second defendants were in breach of the fundamental terms of the agreement causing the plaintiff to cancel the whole agreement and demand repayment of the loaned sum of US$89,000.”

During the trial the respondent, Ms. Ding (his assistant at the time when the agreement was made) and one Mr. Wei Ren (the respondent's mining manager from 2005 to 2010-2011) gave evidence.

The three witnesses all testified to the effect that the appellant and respondent entered into two agreements which never materialized and that the appellant denied the respondent access to the mine so that he would recover his monies. Ms Ding further clarified that the second agreement was prepared by Mr Mubata. She denied that the respondent had breached any of the terms of the agreement and insisted that it was the appellant which had breached the terms of the agreement by denying the respondent access to the mine.

Two witnesses led evidence on behalf of the appellant.

Mr. Mubata (the second defendant a quo) testified that the agreement failed to materialize because the respondent failed to bring the requisite equipment to the mine and that the respondent cancelled the agreement because the appellant had refused to sell the mine and transfer the registration certificates to him. The second witness was Mr. Mhere, the appellant's Finance and Administration manager. He testified that the respondent failed to pay the full loan amount which had been agreed between the parties leading to the breach of the agreement.

In its judgment, the court a quo found that the respondent had had the agreement explained to him in Chinese and therefore they were valid agreements.

The court believed the evidence of the appellant that the respondent paid the loan in 'dribs and drabs' contrary to the terms of the agreement. The court a quo also found that the respondent was in breach of both agreements.

The court, however, decided to apply the principle of equity on the basis that the respondent's grasp of English was so bad that he may not have understood the terms of the agreement and decided to reimburse the respondent the amount that he had loaned the appellant. The court stated as follows:

“I (sic) persuaded that it would be appropriate to utilize the equitable principle in coming to a resolution of this matter. I hold the view primarily because the court was uneasy with the plaintiff's level of understanding of the terms of both agreements.”

The court made the following order:

“In the result, it is ordered that:

1. The plaintiff's claim against the 2nd defendant be and is hereby dismissed with costs.

2. The defendant's counter-claim against the plaintiff, for payment of USD$61,000, be and is hereby dismissed with costs.

3. Plaintiff's claim, as against the 1st defendant, Big Valley Masters Private Limited, in the sum of US$89,000, is allowed, together with interest thereon at the prescribed rate calculated from 11 December 2012 to the date of payment in full.

4. 1st defendant shall bear the costs of suit.”

The appellant was dissatisfied and appealed on the following grounds:

1. The court a quo erred in law in deeming the partnership dissolved by a letter at a future date contrary to the principle that dissolution of a contract is exercised ex nunc.

2. The court grossly misdirected itself in adjudging that the respondent was entitled to recover US$89,000 when he was in clear breach of the parties' agreement.

3. The court a quo grossly misdirected itself by allowing the respondent to derive a benefit from his own wrong.

4. The court a quo erred in failing to uphold the appellant's defence of the exceptio non adimpleti contractus.

5. The court a quo further erred in allowing interest on the sum of US$89,000 to run up to the date of payment thus contravening the in duplum rule.

6. The court a quo grossly misdirected itself in awarding costs in favour of the respondent where it had failed to fully succeed in the matter....,.

The appellant, in motivating the point that the court a quo erred in finding that the respondent could recover money he had paid to the appellant, relied on the ground that the court erred in failing to uphold its defense of exceptio non adimpleti contractus.

This point was not pursued in the appellant's heads of argument...,.

SC37-09 : EDDIES PFUGARI (PVT) LTD vs KNOWE RESIDENTS ASSOCIATION and NORTON TOWN COUNCIL
Ruled By: SANDURA JA, ZIYAMBI JA and GARWE JA

This is an appeal against the judgment of the High Court directing the appellant to fully service residential stands in Phase 1 of the Knowe Housing Development in Norton.The facts of this case are these:The appellant, a private company, is a property developer whilst the respondent is an association of ...

SC50-21 : A. ADAM AND COMPANY (PVT) LTD and SGI PROPERTIES (PVT) LTD and HONOURABLE RETIRED JUSTICE SMITH vs GOOD LIVING REAL ESTATE (PVT) LTD
Ruled By: GWAUNZA DCJ, BHUNU JA and MAKONI JA

At the commencement of the appeal hearing, counsel for the respondent indicated that he was abandoning the preliminary objections raised in the respondent's heads of argument which attacked the validity of the appeal. He indicated that he would advance argument on the merits of the case as motivated in the ...

Appealed
SSC62-21 : KIZITO MUTSURE vs THE STATE
Ruled By: MAVANGIRA JA, UCHENA JA and MAKONI JA

This is an appeal against the conviction and sentence of the appellant by the High Court on a charge of murder.The appellant was charged with murder as defined in section 47(1) of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. The allegation was that on 23 October 2011, at ...

View Appeal
HH329-17 : MARINDA FENESEY vs GATEWAY PRIMARY SCHOOL and K M RICQUEBOURG N.O. and GATEWAY PRIMARY SCHOOL PARENTS ASSOCIATION and THE SHERIFF OF ZIMBABWE
Ruled By: MUSAKWA J

Although in the opposing papers the respondents had raised some points in limine, counsel for the respondents abandoned them in favour of the matter being heard on the merits.That is quite commendable, as it has become predictable, in urgent applications, for the opposing side to raise preliminary issues.

Appealed
SC66-21 : TINASHE KAMBARAMI vs 1893 MTHWAKAZI RESTORATION MOVEMENT TRUST and NOMALANGA DABENGWA and CITY OF BULAWAYO and ZIMBABWE ELECTORAL COMMISSION and MOVEMENT FOR DEMOCRATIC CHANGE ALLIANCE
Ruled By: GUVAVA JA, MATHONSI JA and KUDYA AJA

INTRODUCTIONThis is an appeal against the whole judgment of the Electoral Court sitting in Bulawayo dated 29 August 2019. The court granted a declaratory order sought by the first and second respondents ('the respondents) that the appellant's election was in contravention of the Electoral Act [Chapter 2:13], and, as a ...

INTRODUCTION

This is an appeal against the whole judgment of the Electoral Court sitting in Bulawayo dated 29 August 2019. The court granted a declaratory order sought by the first and second respondents ('the respondents) that the appellant's election was in contravention of the Electoral Act [Chapter 2:13], and, as a result, set aside the appellant's election as councilor for Ward 3 in Bulawayo.

BACKGROUND FACTS

The background to the matter may be summarized as follows:

The appellant was elected councilor for Ward 3 Bulawayo. The first respondent is a Trust, established in terms of the law in Zimbabwe. Its objectives are to promote economic and sound development in Matabeleland and Midlands. The second respondent is a registered voter in Ward 3 Bulawayo. The third respondent is a local authority operating in terms of the Urban Councils Act [Chapter 29:15]. The fourth respondent is an independent commission established in terms of section 238 of the Constitution of Zimbabwe. The fifth respondent is an alliance of political parties.

On 14 June 2018, following a proclamation by the President of the Republic of Zimbabwe, in terms of section 144(2) of the Constitution as read with section 38(1)(c)of the Electoral Act [Chapter 2:13] (the Act), the Nomination Court sat and accepted the appellant's nomination papers. This resulted in the appellant being registered as a candidate to contest as a councilor for Ward 3 in Bulawayo under the banner of the fifth respondent.

On 27 June 2018, two weeks after the appellant's nomination, he was arraigned before the Bulawayo Magistrates Court. He was charged with the crime of theft as provided for in section 113 of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. The appellant pleaded guilty to the offence and was fined US$80, or, in default of payment, eighteen (18) days imprisonment.

On 30 July 2018, the elections were held, and, on 2 August 2018, the appellant was declared the duly elected councillor for Ward 3 Bulawayo. Following the election, the first and second respondents made an application before the Electoral Court seeking a declaratur to set aside the election of the appellant on the ground that he was disqualified from holding office following his conviction.

PROCEEDINGS A QUO

The application was opposed by the appellant who argued that the first and second respondents did not have locus standi to bring the application before the court and that the first and second respondents had filed a disguised election petition in the name of an application.

The appellant also argued that the court did not have jurisdiction to entertain the application as he could only be removed from office in accordance with section 278 of the Constitution of Zimbabwe Amendment (No.20) Act 2013 ('the Constitution').

In granting the application, the court found that the Electoral Court had the power to grant an application for a declaratur as long as the application related to the electoral process.

On the argument that the court did not have jurisdiction to set aside the nomination since the respondents had not filed an election petition, the court found that it had the requisite jurisdiction since it was not being called upon to remove the appellant from office, but to declare him as a disqualified person to hold office by virtue of his conviction.

The court also found that the first and second respondents were interested parties and hence were qualified to bring the application.

In the result, the court made the following order:

“1. It be and is hereby declared that the election of first respondent as councilor for Ward 3 in Bulawayo was in contravention of section 119(2)(e) of the Electoral Act [Chapter 2:13] following his conviction of the offence of theft at the Bulawayo Magistrates Court under Criminal Record Book (CRB) number 1981/18 on 27 June 2018, and it is therefore set aside on account of it being null and void and his unsuitability to hold public office.

2. That first respondent pays costs of suit on the ordinary scale.”

Dissatisfied by the decision of the court a quo, the appellant noted this present appeal under the following grounds:

“1. The court a quo erred to hear and determine this matter on the basis that the same was not an election petition filed under section 168 of the Electoral Act [Chapter 2:13] nor was it at law an appeal application or petition in terms of the same Act.

2. The court a quo erred, as a question of law, in failing to hold, that, the first respondent, a Trust, had no legal capacity of suing and being sued and more importantly in failing to hold that the same had no locus standi or legal basis of bringing the application.

3. The court a quo erred to hold that the second respondent, Nomalanga Dabengwa, did not have locus standi to approach the court and could only have done so through an election petition in terms of section 168 of the Electoral Act of which the application in the court a quo was not won (sic).

4. The court a quo erred in its interpretation of section 119(2) of the Electoral Act.

5. More importantly, the court a quo failed in not holding that once a person had been lawfully nominated, such as the appellant, he could only be removed from the office in terms of section 278 of the Constitution of Zimbabwe.”

Although five grounds were raised, the appellant argued the appeal on only one ground which he submitted would resolve the dispute between the parties.

The issue was whether or not the Electoral Court had the jurisdiction to grant the declaratory order sought by the first and second respondents.

SC68-21 : SIBONILE DUBE vs PAUL MUREHWA and MINISTER OF LOCAL GOVERNMENT, PUBLIC WORKS AND NATIONAL HOUSING N.O.
Ruled By: GUVAVA JA, MAVANGIRA JA and KUDYA AJA

This is an appeal against the entire judgment of the High Court sitting at Harare, in which the court granted a declaratur in favour of the first respondent; asserting that he was the lawful holder of rights and interests in the property known as Stand 6401 Retreat, Waterfalls.The court also ...

FACTUAL BACKGROUND

The first respondent made an application before the court a quo seeking to be declared the bona fide holder of rights and interests in the property known as Stand number 6401 Retreat, Waterfalls (hereafter referred to as “the property”). The first respondent also sought to have all those in occupation of the property declared unlawful occupiers and to vacate the property.

The appellant opposed the application.

The first respondent submitted, that, he had joined the Joseph Chinotimba Housing Co-operative Society sometime in 2009, and had, as a member, been allocated the property. He had proceeded to dig a well on the property and to buy the necessary building materials. According to the first respondent, the appellant invaded the property sometime in 2014 claiming that it was her own and proceeded to construct a temporary structure using some of the material that he kept and stored on the property.

With regard to the appellant's claim that the property was hers, as it had been allocated to her by her own co-operative known as Samora Machel Housing Co-operative, the first respondent submitted that her co-operative had no authority to do the alleged allocation. He submitted that this was so because the second respondent (the managing authority), had written to the appellant's cooperative reiterating its consistent position that Stand numbers 6392 to 6414 (under which the property falls) had been allocated to the Joseph Chinotimba Housing Co-operative.

The first respondent further submitted, that, consistent with its position, the second respondent had entered into a lease agreement with him over the said property thereby giving him rights, interests, and title to the property.

The first respondent averred that neither the appellant nor her cooperative had any recognisable interests and rights whatsoever over the said property.

He argued that the purported allocation of the property to the appellant had no legal basis as the second respondent had confirmed that he was the only recognised holder of rights in the property.

The appellant, on the other hand, averred, that, she was allocated the same property by her co-operative, namely, the Samora Machel Co-operative, as a vacant Stand and she had proceeded to make lawful developments thereon.

She argued that there was no basis for the first respondent's application since there had already been a full trial pertaining to the same matter in the Magistrates Court wherein the first respondent had failed to prove his ownership of the property.

The appellant also submitted that there were material disputes of facts which could not be resolved on the papers and that the first respondent had therefore used the wrong procedure in filing the application.

It was the appellant's case, that, the allocation of the property to her found favour with the Apex Board which was the authority responsible for allocating land to its members, including co-operatives. According to her, the second respondent had allocated the property to the Apex Board, which, in turn, allocated the property to her.

She averred that the property had therefore been lawfully allocated to her and the first respondent was accordingly in unlawful occupation of the same.

The appellant therefore argued, that, as the allocation to her was done by her co-operative, with the blessings of the Apex Board, the allocation was above board and remained valid.

She averred that the first respondent's lease agreement was not conclusive proof of ownership and his allocation was based on an illegality.

She therefore sought to have the first respondent's application dismissed with costs.

The second respondent's then Acting Permanent Secretary deposed to an affidavit confirming that the property had been allocated to the first respondent under the Joseph Chinotimba Housing Co-operative. He confirmed that the first respondent had been issued with a lease agreement over the said property. The second respondent further confirmed that the appellant did not have a lease agreement with the Ministry, and, as such, she was an invader on the property.

His stance was therefore that the order that was sought by the first respondent ought to be granted.

THE DECISION OF THE COURT A QUO

The court a quo noted that the cause of action in the Magistrates Court had been for eviction whilst the application before it was for a declaratur.

The court found that the second respondent had made it clear that the property in issue had been allocated to the Joseph Chinotimba Housing Co-operative and had also confirmed that the first respondent had a valid lease agreement for the Stand. The court found that the first respondent had managed to establish that he had rights over the said property emanating from the lease agreement as well as correspondence and a sworn statement from the second respondent and the relevant Ministry's official.

The court a quo also noted that the appellant sought to rely on an allocation form from her co-operative - which form did not have the Ministry's letter-head or logo but only bore a stamp. The court further took into consideration the fact that the said allocation form was a 2012 document, whereas, on record, there were documents from 2014, 2016, 2017 and 2018 indicating the Ministry's position pertaining to the first respondent's co-operative and lending support to the first respondent's claim.

In the result, the court a quo declared the first respondent to be the lawful holder of rights and interests in the property. It further ordered the appellant to vacate the property and give vacant possession to the first respondent.

Aggrieved by the decision of the court a quo, the appellant noted the present appeal on the following grounds;

GROUNDS OF APPEAL

“1. The court a quo grossly erred and misdirected itself in making a finding that there were no material disputes of fact when it was apparent from the papers filed of record that there were issues which could not be resolved without hearing oral evidence.

2. The court a quo erred and grossly misdirected itself in granting the declaratur in circumstances where the first respondent had failed to prove that he had rights and disregarded overwhelming evidence which proved that the appellant had rights in the property.

3. The court a quo grossly erred and misdirected itself on relying (sic) on evidence whose authenticity and origins had been challenged given that same had not been availed at an earlier stage and whose authenticity was only going to be tested through viva voce evidence.

4. The court a quo grossly erred and misdirected itself at law in completely disregarding the decision of the Magistrates Court on the similar facts of the dispute under Case Number 101166/18 and thereby effectively overruling the factual findings of the extant judgment which is already a subject of an appeal in the High Court under Case Number CIV 25/19.

5. The court a quo grossly erred and seriously misdirected itself in failing to apply the principles of estoppel in view of the evidence placed before the court and given that the application was based on the similar set of facts and documents used in an initial litigation between the appellant and first respondent.

6. The court a quo seriously erred and misdirected itself in dismissing appellant's preliminary point to the effect that the matter and dispute between the parties was pending in the High Court under case number CIV 25/19 and further erred in granting eviction that is a subject matter of the pending appeal.”

In her prayer, the appellant prays for the appeal to be allowed with costs and for the order of the court a quo to be set aside so as to dismiss the application for a declaratur with costs on an attorney-client scale.

SUBMISSIONS BEFORE THIS COURT

At the hearing of this appeal, counsel for the first respondent raised a preliminary objection to the appellant's grounds of appeal one, two, three, and five.

He submitted that they were defective on the basis that they were not clear and concise. He therefore moved the court to strike them out.

Counsel for the appellant conceded that some of the grounds were defective and abandoned grounds two, three, five and six.

She therefore motivated the appeal only in terms of grounds of appeal one and four.

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

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

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

This is an application for an Order that:

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

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

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

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

The application is opposed by all the respondents.

The factual background to this matter is as follows:

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

The account was a United States Dollar account.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The letter is signed by the two applicants.

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

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

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

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

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

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

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

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

The Applicants case

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

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

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

The First Respondent's case

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

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

SSC86-21 : MUNYARADZI KEREKE vs FRANCIS MARAMWIDZE and THE PROSECUTOR GENERAL
Ruled By: MAKONI JA

This is an opposed application for leave to appeal made in terms of section 44 of the High Court Act [Chapter 7:06] as read with Rule 20(1) of the Supreme Court Rules, 2018.The applicant was convicted of rape and sentenced to an effective 10 years imprisonment by the Harare Regional ...

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

This is an opposed chamber application for condonation of non-compliance with the Supreme Court Rules 2018 and for extension of time within which to appeal.

Though at the outset the applicant did not state the Rule that was not complied with and the Rule under which this application is brought, it is apparent from the founding papers that the Rule not complied with is Rule 38(1)(a) and the application is in terms of Rule 43(1) of the aforesaid rules.

The intended appeal is against a judgment of the High Court handed down on 29 October 2020 upholding special pleas and dismissing the applicant's claim.

The applicant seeks an order in the following terms:

1. The application for condonation for non-compliance with the Supreme Court Rules 2018 be and is hereby granted.

2. That the application for extension of time within which to file and serve the appeal in terms of the Rules be and is hereby granted.

3. The appeal shall be deemed to have been filed on the date of this order.

4. There will be no order as to costs.

BACKGROUND

The applicant issued summons against the respondents on 9 June 2020 seeking an order:

(a) That the agreement of sale between the applicant and the first respondent be declared valid and still operational;

(b) Declaring the agreement of sale that was entered into between the first, second, and third respondents null and void;

(c) Nullifying the transfer of title of land by the fourth respondent into the third respondent's name; and

(d) That respondents pay costs of suit.

The facts giving rise to the above claim may be encapsulated as follows:

The applicant entered into an agreement of sale with the sellers of an immovable property described as Lot Number 17 Weirmouth Small Holdings of Weirmouth on 23 June 2014, namely, Laureen Tatenda Mvududu and Maureen Mazviita Middleton.

The first and second respondents acted as agents for the sellers in the transaction.

The agreement was in the names of the sellers.

The agreement of sale was subsequently cancelled and the applicant was advised of the same on 14 September 2015.

On 22 January 2016, that same property was sold to the third respondent through the agency of the first and second respondents.

Transfer was subsequently effected to the third respondent in that same year.

In his suit, the applicant did not cite the sellers upon whose mandate the first and second respondents acted.

The three cited respondents filed special pleas seeking the dismissal of the applicant's claim.

The first and second respondents sought the dismissal of the claim on the grounds, that, the claim had prescribed, that they had been wrongly cited, that the matter was res judicata and lis pendens.

The third respondent also sought the dismissal of the claim on the grounds, that, the claim had prescribed, the matter was res judicata, and that the applicant was estopped from claiming the setting aside of the third respondent's title deeds.

The applicant argued, that, the claim has not prescribed and that the matter was neither res judicata nor lis pendens.

He also argued, that, the sale to the third respondent was not above board. He alleged that the sale to the third respondent was fraudulent since there was no proper cancellation or termination of the sale agreement between him and the sellers.

The issues for determination on the special pleas were as follows:

(i) Whether or not the claim had prescribed;

(ii) Whether or not the matter was res judicata;

(iii) Whether or not the matter is lis pendens;

(iv) Whether or not the non-joinder of the former registered owners who sold the immovable property to the third respondent was fatal to the claim; and

(v) Whether or not the applicant was estopped from claiming the setting aside of the third respondent's title deeds.

After hearing submissions on the special pleas, the court a quo noted, that, the issue of lis pendens was not persisted with as the case that had given rise to it, namely, HC67/2020, had since been withdrawn by the applicant.

The court a quo proceeded to make a determination on the other grounds.

View Appeal
HH466-18 : NMB BANK LTD vs THE TRUSTEES FOR THE TIME BEING OF CORNERSTONE TRUST and JULIUS MAKONI and THE TRUSTEES FOR THE TIME BEING OF RYVONNE TRUST
Ruled By: ZHOU J

The plaintiff, a commercial Bank, claims against the three defendants payment of a sum of money amounting to US$1,105,748=90 together with interest thereon at the rate of 15% per annum calculated from the 9th September 2015 to the date of payment in full; such interest to be calculated monthly and ...

SC101-21 : EQUITY PROPERTIES (PVT) LTD vs ALSHAMS GLOBAL BVI LIMITED and REGISTRAR OF DEEDS
Ruled By: BHUNU JA, UCHENA JA and KUDYA AJA

This is an appeal against part of the judgment of the High Court of Zimbabwe sitting at Harare on 20 November 2019 granting an interim interdict in favour of the first respondent.THE FACTSThe appellant and the first respondent have been engaged in a flurry of litigation, and, at other times, ...

This is an appeal against part of the judgment of the High Court of Zimbabwe sitting at Harare on 20 November 2019 granting an interim interdict in favour of the first respondent.

THE FACTS

The appellant and the first respondent have been engaged in a flurry of litigation, and, at other times, with Interfin Banking Corporation Ltd in liquidation (the Bank) in both the High Court and in this Court. Some of the cases have been concluded while others are still pending.

The facts relevant to this appeal are narrow.

On 16 March 2018, in HC2463/18, the appellant brought motion proceedings against the first respondent seeking vindication of its original title deed no. 9068/2008, which pertains to Lot 3 of Bannockburn (the immovable property), within 10 days of the grant of the order failing which the second respondent was to issue a duplicate replacement deed within 90 days of that order.

The order was granted, purportedly in default of the first respondent, on 6 June 2018.

On 18 July 2018, while the application for rescission of the default judgment was pending, the appellant obtained the duplicate replacement title deed from the second respondent.

The first respondent filed three urgent chamber applications to stop the second respondent from issuing the replacement deed and one court application to prevent the appellant from using it.

The three urgent applications were all removed from the roll for lack of urgency while the court application was withdrawn.

The default judgment, upon which the replacement deed was issued, was rescinded a quo, in terms of Rule 449 of the High Court Rules 1971, on 21 November 2018.

The appellant duly appealed against the rescission of the judgment of the court a quo to this Court. The appeal was dismissed with costs on the higher scale on 7 October 2019 in case number SC924/18 for two reasons:

(i) The first was that the substituted service, upon which the rescinded judgment was based, had been effected on legal practitioners who did not have the mandate to represent the first respondent.

(ii) The second was that the order for substituted service had, by consent of the parties, been rescinded by this Court in SC733/18 on 25 March 2019.

It was common cause that the appellant used the duplicate title deed to subdivide an undisclosed number of Stands on Lot 3 of Bannockburn. He also used it to conclude an undisclosed number of agreements of sale with purchasers such as Conradie Tinofirei Mutumbuki, the third respondent in the application for rescission, on 11 October 2019, and to transfer title thereof to three purchasers, one of which was David Madyausiku who took transfer on 12 April 2019.

On 21 October 2019, the first respondent filed the urgent chamber application which has given rise to this appeal. It sought, in the interim, the return of the replacement deed to the second respondent; its cancellation by the second respondent; and the setting aside of all transactions based on it.

On the return date, it sought confirmation of the interim relief and costs de bonis propriis on the higher scale against the appellant's legal practitioner of record, one Mr Kwaramba.

On 29 October 2019, the appellant opposed the application.

It also filed a counter urgent chamber application in terms of Rule 229A of the High Court Rules, 1971. It raised five preliminary points. These were;

(i) That one of the urgent chamber applications that had been removed from the roll was lis pendens;

(ii) There was material non-disclosure of all the urgent applications that had been removed from the roll and the court application that had been withdrawn;

(iii) The application was not urgent;

(iv) There was non-joinder of third parties who had benefited from transactions based on the replacement title deed; and

(v) Lastly, that the relief in the interim order was the same as the one in the final order.

On the merits, it sought the dismissal of the application.

In the counter application, the appellant sought the retention of the replacement deed in the interim and determination of the lawfulness of the first respondent's possession of the original title deed on the return date.

It indicated its avowed intention to utilize the replacement deed to conduct further subdivisions, conclude more agreements of sale, and transfer the subdivisions that had been sold.

One such purchaser was Conrad Tinofirei Mutumbuki, who was joined in the proceedings on his own motion as the third respondent at the hearing on 29 October 2019 and made common cause with the appellant.

The first respondent also raised the preliminary point of lack of urgency against the counterclaim and sought its dismissal on the merits.

THE FINDINGS A QUO

The court a quo dismissed all the preliminary points raised by the appellant.

While it regarded one of the urgent chamber applications that had been removed from the roll to be pending at the instance of the first respondent, it found the cause of action and relief sought to be different from those before it.

It found the non-disclosure of prior urgent chamber applications and court application irrelevant to the determination of whether the main application was urgent.

It held, that, as the appellant had only impugned the interim relief pertaining to the setting aside of all transactions based on the replacement deed, and not the surrender and cancellation relief as final in effect, it could exercise its Rule 240 discretion to grant interim relief that was not final in effect.

It proceeded to do so by suspending, rather than cancelling, all the transactions predicated upon the replacement deed.

The court a quo further determined, that, the relief sought did not seek to stop past events but “recent and ongoing events.”

It also relied on the provisions of Rule 87 to find that the non-joinder of the third parties who purchased or took transfer of the purchased subdivisions was not inimical to their rights and interests as they were not involved in the procurement of the impugned replacement deed.

Lastly, it found that the first respondent had acted with speed after the decision of this Court of 7 October 2019 to launch the urgent chamber application after the subsequent ten-day negotiations for the voluntary surrender of the replacement deed failed.

Under the consequence factor, it held, that, the first respondent had established that the failure to intervene on an urgent basis would result in the attenuation and dissipation of the immovable property to the detriment of the first respondent's rights in the security pending litigation in HC8113/16, the consolidated case under which the application for rescission had also been incorporated.

Regarding the counter-application, it upheld the preliminary point of lack of urgency that was raised by the first respondent and struck it off the roll with costs on the higher scale.

On the merits of the main application, the court a quo was cognisant of the fact that the issue before it concerned the legality of the possession of the duplicate title deed by the appellant and not the legality of the possession of the original title deed by the first respondent.

It held, that, the appellant had fraudulently procured the duplicate title deed through a deliberate omission of the timeous opposition to its application in HC2463/18 from the bundle of documents for default judgment and the improper appeal against the rescission of the default judgment.

It reasoned that the appellant had done so for the twin purposes of obtaining and utilizing the duplicate deed to undertake the transactions it could not do without the original title deed; such as, the advertisements for the sale of Stands, the conclusion of agreements of sale, and the transfer of the Stands.

It also determined, that, the rescission of the default judgment restored the status quo ante, thereby effectively maintaining and preserving the first respondent's possession of the original deed and preventing the appellant from utilizing the duplicate deed to attenuate and dissipate the security by subdividing, selling, and transferring any subdivisions.

Lastly, it held that the first respondent had established all the requirements for a mandamus.

It therefore granted the provisional order for the return of the duplicate deed to the second respondent for cancellation and suspended all pending activities founded on the subdivisions, agreements of sale, and transfers of title predicated upon the duplicate title deed.

The appellant was accordingly estopped from effectuating all activities based on the duplicate title deed.

The court a quo reserved the nature and level of costs for the return day.

GROUNDS OF APPEAL

Aggrieved by the determination a quo, the appellant sought the setting aside of the order in the main application only and its substitution by a dismissal of the urgent chamber application with costs on the following four grounds of appeal:

“1. The court a quo erred in concluding that the 1st respondent's application was urgent when the 'time' and 'consequence' factors of urgency were not satisfied.

2. The court a quo erred in granting the relief of an interdict when all the requirements of an interdict were not met.

3. The court a quo grossly misdirected itself by granting a final interdict on an interim basis.

4. The court a quo grossly misdirected itself by purporting to interdict past events done pursuant to the replacement title deed.”

It is noteworthy that the appellant did not appeal against the striking off order against its counter urgent chamber application.

THE ISSUES

It was common cause that the issues for determination that arise from the grounds of appeal are:

1. Whether the court a quo correctly determined that the matter was urgent.

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

3. Whether or not the court a quo granted a final interdict when the first respondent had sought an interim order....,.

The second preliminary point is that the failure by the appellant to motivate the fourth ground of appeal throws that ground out of court.

Rule 52(2), and not Rule 26(1)(b) as submitted by counsel for the first respondent, requires an appellant to file heads of argument in the prescribed period together with the list of supporting authorities in respect of each ground of appeal.

It is trite, that, a failure to motivate a ground of appeal is treated as an abandonment of that ground.

The second preliminary point is upheld and ground number 4 is accordingly struck out from the notice of appeal.

Appealed
SC103-21 : IRENE MHLANGA vs MIKE MHLANGA
Ruled By: GWAUNZA DCJ, MATHONSI JA and CHITAKUNYE AJA

On 18 May 2021, at the conclusion of the hearing of this appeal, we dismissed the appeal with costs. We indicated that our reasons will follow in due course. These are the reasons.

This is an appeal against the whole judgment of the High Court handed down on 23 July 2020 as judgment Number HH485-20 in which the court a quo ordered the eviction of the appellant and all those claiming occupation through her from House Number 1138, Section 3, Kambuzuma, Harare.

BACKGROUND

The respondent issued summons seeking the eviction of the appellant and all those claiming occupation through her from House Number 1138 Section 3, Kambuzuma, Harare.

In his summons and declaration, the respondent averred, that, he is the owner of the house in question by virtue of Deed of Transfer No.3302/94. He further explained that the appellant was one of his late father's three wives and she is staying at the property despite having her own house as provided to her by her late husband.

Of his late father's three wives, one resided in a house she was left in by his father in Section 5, Kambuzuma, his mother and the appellant were left residing in the house in question in Section 3, Kambuzuma.

The respondent's late father, Mwaoneka Isaac Mhlanga, had a plan to provide all his wives with their own houses.

The property in issue was for the first wife, the respondent's mother. The third wife had a house provided for her in Kambuzuma Section 5, through a co-operative, and, to the appellant, the deceased had arranged that she joins a housing co-operative in Mabvuku in 1989 as a result of which she was allocated Stand Number 10700 in New Mabvuku.

The respondent's father, however, passed on in 1993 before he could build a house in Mabvuku for the appellant. Nonetheless, the co-operative had since built a house for her which she is renting out.

The appellant refused to move out of the house in Section 3, Kambuzuma where she is occupying four of the six rooms.

In her plea, the appellant confirmed that indeed the respondent inherited the house from the deceased estate of his late father as an heir.

She, however, contended that as heir, he has an obligation to provide her with alternative accommodation.

She further contended that no house was acquired for her in New Mabvuku; the house actually belongs to the cooperative as payments for the house were made by her daughter as she was incapacitated to do so.

She further indicated, that, she only uses three rooms and this arrangement was sanctioned by the Master of the High Court at an edict meeting held in 1994, wherein it was ruled that the appellant and the respondent's mother should continue staying at the house.

In essence, her argument was premised on the belief, that, as a surviving spouse to the respondent's late father, she is entitled to continue staying at the property and can only be removed if the respondent provides her with alternative accommodation.

The issues for trial were identified as follows:

(i) Whether or not the respondent still has an obligation to provide the appellant with accommodation, when the appellant now has her own house;

(ii) Whether or not the appellant joined the housing co-operative in Mabvuku at the instigation of the plaintiff's father; and

(iii) Whether or not the appellant should pay arrear rentals, holding over damages, and costs on a higher scale.

The parties agreed on the following admissions:

(i) That the respondent had inherited House Number 1138 Section 3, Kambuzuma in his own right in May 1994;

(ii) That the respondent had provided the appellant with accommodation from 1994 to the date of summons - a period of 21 years;

(iii) That, the appellant had joined a housing co-operative in Mabvuku while her husband was still alive; and

(iv) That the appellant was allocated House No.10700 in New Mabvuku in 2005 and is now a landlady.

At the hearing, the respondent abandoned his claims for arrear rental and holding over damages, but persisted with the claim for eviction.

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

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

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

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

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

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

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

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

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

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

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

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

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

In her plea, the defendant averred as follows:

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

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

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

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

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

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

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

HB27-15 : MONICA DHLIWAYO vs BONGANI NDLOVU (as Executor Dative estate Late Jubane James Jack) and ESTATE LATE JUBANE JAMES JACK and CLEMENTINE JACK and DEPUTY MASTER OF THE HIGH COURT
Ruled By: MAKONESE J

The plaintiff initiated proceedings by way of an Urgent Chamber Application under case number HC1580/10 seeking an order interdicting the first and second defendants, or any beneficiaries of the second defendant's estate, from disposing of the property known as Lot 1 A of Gumtree held under Deed of Transfer number 1793/82 and Lot 3 of Gumtree held under Deed of Transfer number 1326/82C (hereinafter referred to as “the property”).

An interim order was granted in this Honourable Court but its confirmation was opposed by the defendants.

A separate court application was launched by the plaintiff, under case number HC1653/10, wherein she sought to be declared the sole surviving spouse of the second defendant's estate.

That court application was also opposed, and, eventually, by court order granted on 6 June 2012 it was ordered as follows:

“1. The two applications pending before this Honourable court under cover of case number HC1580/10 and HC1653/10 consolidated under cover of case number HC150/11 be and are hereby converted into action proceedings.

2. The papers filed of record by the parties stand as pleadings in this matter.

3. The parties file their discovery affidavits, pre-trial conference minutes, and summaries of evidence within 7 days of this order.

4. In the event of any party failing as directed in paragraph (3) above, the party having complied be and is hereby granted leave to set the matter down, without giving notice, on the unopposed roll.

5. Third respondent pay costs only if she opposed this application.”

The parties consolidated the two applications in terms of the aforesaid order and proceeded to set down the matter for trial.

A joint pre-trial conference memorandum of issues filed by the parties reflects the issues for determination as follows:

1. Whether or not plaintiff bought the immovable properties, namely, Lot 1A Gumtree held under Deed of Transfer number 1793/81 and Lot 3 Gumtree and is therefore entitled to them.

2. Whether the third defendant is the surviving spouse and therefore the lawful heir to the estate of the late Jubane James Jack.

It was resolved and agreed, at the pretrial conference, that, the onus on the first issue was on
the plaintiff and the onus on the second issue was on the third defendant.

Plaintiff's Case

The plaintiff gave evidence in support of her case. She testified, that, she is ordinarily resident at 61 Queensbrooks, Slough in the United Kingdom. She is a State Registered Nurse and also qualified as a Mental Health Nurse.

She was customarily married to the late Jubane James Jack who died on 21 February 2006 in the United Kingdom.

Her evidence was that the deceased and herself commenced living together around December 1980 and formalized the union a year later in 1981 when her husband was customarily accepted as a son-in-law by her family. At the same occasion, she was accepted as a daughter in law by members of the late Jubane James Jack's family.

The plaintiff stated, that, at the time of their marriage, the deceased was working for National Railways of Zimbabwe and then based at Hwange. The deceased disclosed to the plaintiff that he was once married to the third defendant and that the marriage had broken down and he was in the process of legally divorcing the third defendant with whom he was married in terms of the then Marriage Act [Chapter 37].

She was also informed, that, the third defendant had one child with the deceased by the name Violet Jack.

At the time the plaintiff met the deceased, the third defendant was not living with him. They were on separation.

The plaintiff stated, that, in or around 1981 she was looking for a property to buy. She was advised that there was a plot for sale just outside the city of Bulawayo. She said that she negotiated for the purchase of the property, being Lot 1 A Gumtree and Lot 3 Gumtree, situate in the District of Umguza.

The property was registered in the names of the late Jubane James Jack because she did not have a payslip and there was need to have a Bond registered against the title deed for the payment of the balance.

She paid an initial deposit of $3,000 and the balance was paid in monthly instalments of $250. Payments were made at the offices of Messrs Ben Baron and Partners. She indicated, that, on certain occasions, the late Jubane James Jack would pay the instalments.

The total purchase price for the property was $15,000.

The second property, being Lot 3 of Gumtree was sold for $10,000. A second bond was registered over the property.

The plaintiff testified, that, she received part of the deposit for the purchase of the second property from a Mr Joshua Malinga.

After the purchase of the two properties, the plaintiff said she left for the United Kingdom in or around February 1999.

The deceased and the plaintiff had three children, namely, Neville Thamsanqa Jack (born on 26 October 1981, Brian Bekithemba Jack (born on 3 October 1985) and Denise Thembeka Jack (born on 18 January 1990).

The deceased and the children relocated to the United Kingdom in December 1999 where they remained until the demise of the deceased in 2006.

It was the plaintiff's evidence, that, problems started in June 2010 when she received a message on Facebook, from Violet Jack (her husband's only child out of his marriage with the third defendant), advising her that she and her mother were going to be the beneficiaries in the estate of the late Jubane James Jack.

In July 2010, the plaintiff travelled to Zimbabwe to attend the funeral of her sister, Faith Mazaiwana. Whilst at the funeral, she was alerted that the property at Gumtree had been put up for sale.

The plaintiff filed an urgent Chamber Application for an order interdicting the executor of the Estate of late Jubane James Jack and the third defendant from disposing of the immovable properties, being Lot 1A of Gumtree and Lot 3 of Gumtree in the District of Umguza.

The Registrar of Deeds and the Master of the High Court were cited, in those proceedings, as nominal respondents.

Upon the granting of the Provisional Order, the confirmation of such order was resisted by the third defendant. A subsequent court application, under case number HC1653/10, was filed by the plaintiff.

Both applications have now been consolidated.

The plaintiff abandoned her claim that she be declared the sole surviving spouse in the Estate Late Jubane James Jack when it became apparent that the third defendant was still legally married to the deceased at the time of his death.

Appealed
SC110-21 : UPSET INVESTMENTS (PRIVATE) LIMITED vs CHITUNGWIZA MUNICIPALITY
Ruled By: GARWE JA, HLATSHWAYO JA and BHUNU JA

This is an appeal against the judgment of the High Court dismissing the appellant's claim for US$119,300 being the balance of the purchase price for a 20-tonne Hyundai Excavator sold and delivered by the appellant to the respondent.

In dismissing the appellant's claim, the court a quo upheld the respondent's counterclaim and ordered the appellant to refund US$140,000 to the respondent, being the deposit paid towards the purchase of the excavator and front-end loader.

The brief summary of the case

The facts giving rise to the claim and counterclaim are hotly contested. The brief facts of the case are that the respondent is a Municipal Council duly constituted as such in terms of the Urban Councils Act [Chapter 29:15], whereas the appellant is a company in the business of selling excavators and front-end loaders.

Sometime in 2014, the parties concluded a contract of sale of a twenty-tonne excavator. The terms of the contract are in dispute.

The appellant's claim is, that, sometime in 2014, it sold and delivered, in good working order, a refurbished 20-tonne excavator for US$209,300 at the respondent's instance and request. The purchase price was payable in instalments with an initial deposit of US$90,000 and the balance of US$119,300 payable on delivery.

The appellant's complaint is, that, despite effecting delivery at the respondent's premises, on 19 June 2014, the latter refused or neglected to pay the balance of the purchase price.

The respondent denies breaching the contract of sale as alleged or at all and has counterclaimed for a refund of the deposit it paid on account of defective performance.

Its defence is that, on 16 May 2014, it floated a tender for the purchase of a brand new twenty-tonne Tracked Excavator to the tune of US$182,000. The advertisement read:

“MUNICIPALITY OF CHITUNGWIZA TENDER NOTICE NO. 05/11

Tenders are hereby invited, in terms of section 211 of the Urban Councils Act (Chapter 29:15) from reputable and legally registered companies and institutions to provide specified brand new plant and machinery to the Municipality of Chitungwiza….,.

Supply and Provision of Specified Plant and Machinery

1. Jet Machine (high velocity clearing machine).

2. Tracked Excavator (30 tonne).

3. Front End loader (3 tonne).

Tender specifications are available at Chitungwiza Municipality Head Office.”

The appellant won the tender to supply the respondent with a brand new 20-Tonne Tracked Excavator at the cost price of US$182,000 and a brand new 3-Tonne Front End Loader at the cost price of US$105,000.

It was therefore a material term of the contract that the appellant was to deliver a brand new excavator and front end loader.

The appellant, however, in breach of contract, delivered a refurbished dysfunctional excavator.

It was also a material term of the contract that the respondent would pay US$140,000 deposit for both machinery and the balance upon delivery. The respondent paid the deposit in terms of the contract but the appellant, in breach of contract, delivered a pre-owned, dysfunctional excavator without the necessary accessories.

To date, the appellant has not delivered the brand new machinery in terms of the contract.

That being the case, the respondent counterclaimed for specific performance in terms of the contract, or, alternatively, a refund of the deposit of US$140,000 paid in anticipation of the fulfilment of the terms and conditions of the contract.

The respondent also claimed payment of damages in the sum of US$30,000 for breach of contract as well as storage charges at the rate of US$20 per day from the date of summons to the date of collection of the defective refurbished excavator.

The claims for damages and storage charges were not persisted with and are not the subject of this appeal.

View Appeal
HH100-17 : UPSET INVESTMENTS (PRIVATE) LIMITED vs CHITUNGWIZA MUNICIPALITY
Ruled By: MUREMBA J

The plaintiff issued summons claiming the following:“(i) Payment of the sum of US$119,300 being the remaining balance of the agreed purchase price for one x 20 Tonne Hyundai Excavator, sold and delivered by the plaintiff to the defendant, at its specific instance and request.(ii) Interest at the prescribed rate calculated ...

HHH374-19 : MUNYARADZI KEREKE vs FRANCIS MARAMWIDZE N.O.
Ruled By: HUNGWE J and WAMAMBO J

The appellant was convicted of rape, as defined in section 65 of the Criminal Law (Codification and Reform) Act [Chapter 9:23], by the Regional Magistrate, Harare, and sentenced to 14 years imprisonment of which four years were suspended for five years on the usual conditions, on 11 July 2016.The appellant ...

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

This is an appeal against the whole judgment of the High Court Harare, dated 25 July 2019. The court a quo dismissed with costs the application for a declaratory order that had been filed by the appellant.THE FACTSThe appellant is the owner of an immovable property situated in Mabelreign, Harare. ...

THE FACTS

The appellant is the owner of an immovable property situated in Mabelreign, Harare. He leased the property to one Crossland Mupfurutsa between June 2013 and August 2017.

The tenant concluded an agreement for the supply of electricity with the Zimbabwe Electricity Transmission and Distribution Company (ZETDC or the second respondent). The second respondent duly opened an account for the supply of electricity in the name of the tenant. All the supply and payment transactions were recorded in this account.

The tenant abandoned the immovable property in August 2017. He left an unpaid electricity bill of $4,689=89.

In September 2018, the second respondent installed a prepaid meter in the name of the appellant on the property.

Acting in terms of section 3(1) of the Electricity (Unpaid Bills, Prepayment Meters and Smart Meters) Regulations, SI44A of 2013, which was promulgated in terms of section 65 of the Electricity Act [Chapter 13:19] (the enabling Act), the second respondent unilaterally transferred the debt incurred by the tenant to the appellant.

The debt was to be liquidated by the unilateral debit of at least 50% of the prepaid electricity purchases made by the appellant.

On 1 June 2019, S.I.44A of 2013 was repealed by section 12 of SI85 of 2018.

Subsequent to the repeal, the appellant approached the High Court, on 3 September 2019, seeking two declaratory orders:

(i) The first was that section 3 of the Electricity (Unpaid Bills, Prepayment Meters and Smart Meters) Regulations, SI44A of 2013 be declared ultra vires the Electricity Act [Chapter 13:19] (the enabling Act) and therefore a nullity.

(ii) The second declaratory order was predicated on the first. The appellant sought that the transfer of the debt to him be declared unlawful and that the second respondent be ordered to stop the ongoing deductions from his periodic prepaid electricity purchases.

The application was opposed by the second respondent and not by the first respondent (the Minister of Energy and Power Development).

When he filed his application, the appellant was not aware that the enactment he sought to impugn had been repealed.

This is apparent from the manner in which he asserted his cause of action in his founding affidavit. The tenor of his averments tended to suggest that the impugned enactment was still extant.

The second respondent was equally oblivious to this fact, otherwise it would have raised it in its opposing affidavit.

That the enactment had been repealed was only disclosed by the appellant in his answering affidavit. He, however, with this belated knowledge, elected to proceed with the application in its original form.

The first respondent did not file opposing papers or seek an upliftment of the automatic bar. His legal practitioner appeared in the court a quo, where he was, however, granted a watching brief.

It was common cause, that, the second respondent continued to make debits on the appellant's prepaid electricity purchases to defray the outstanding debt after the impugned enactment had been repealed.

This is clearly established by annexures C, D and E dated 15 August 2018, 14 September 2018 and 4 October 2018, respectively.

THE CONTENTIONS A QUO

The appellant advanced three contentions in the court a quo:

(i) The first was that section 3(1) of the Electricity (Unpaid Bills, Prepayment Meters and Smart Meters) Regulations, SI44A/2013 (the repealed subsidiary legislation) was ultra vires section 65(2)(h) of the Electricity Act [Chapter 13:19]. He argued that it was incongruous for the subsidiary legislation to cast liability for outstanding electricity debts on the immovable property when the principal legislation imposed liability therefor on a licensee or consumer. These terms were specifically defined in the Electricity Act (the enabling Act) to mean a person.

(ii) The second was that the implied transference of the debt from the consumer to the owner, contemplated in section 3(2) of the repealed enactment, violated the established doctrine of privity of contract.

(iii) Lastly, that the unabated deductions that continued to take place after the repeal of the enactment were unlawful.

In his heads of argument, counsel for the second respondent took two preliminary points against the relief sought by the appellant:

(i) He argued that it was bad at law for the appellant to seek a declaration of invalidity against an enactment that had been repealed.

(ii) He also argued, that, it was incompetent for the appellant to predicate the second declaratory order on a repealed provision of the repealed enactment.

On the merits, the second respondent made the following counter arguments:

That section 65(1) of the Electricity Act, vests the Minister with the untrammelled power to make any Regulations required or permitted by the Electricity Act which are necessary or convenient for the carrying out or giving effect to the Act. In promulgating any Regulations, the Minister is guided by the 17 requirements that are listed in section 65(2) of the Electricity Act, amongst which are paragraphs (h) and (q).

While paragraph (h) prescribes the promulgation of Regulations in respect of “fees, levies or other charges payable in terms of the Act by licensees or consumers” paragraph (q) confers on the Minister the power to make “such other regulations as may be required.”

The Minister utilized paragraph (q) to make the impugned enactment that placed liability for outstanding debts, at the time a prepaid meter was installed, on the property rather than on a person. The same Regulations also required the user of the prepaid meter to satisfy any debt that was incurred at the property before the installation of the prepaid meter from a portion of the prepaid electricity purchases.

Regarding, the deductions post the repeal of the impugned enactment, the second respondent contended, that, they were saved by the provisions of section 17(1)(c) of the Interpretation Act [Chapter 1:01], which preserved “any right, privilege, obligation or liability acquired or accrued or incurred under the enactment so repealed.”

Counsel for the second respondent further argued, that, the right to debit the prepaid electricity purchases accrued to the second respondent on the date the prepaid meter was installed in September 2018. He, therefore, submitted that the post-repeal deductions were lawful.

THE FINDINGS A QUO

The court a quo held, correctly, that, in terms of section 14 of the High Court Act [Chapter 7:14], it has a discretion to grant a declaratory order.

Regarding the requirements for such an order, it found the appellant to be an interested person. This was because the debt that had been incurred by his tenant was imputed to him. It further held, that, the impugned enactment, save for the accrued rights and obligations, ceased to be part of our legislation on the date on which it was repealed, on 1 June 2018.

Consequently, the appellant could not, on 3 September 2018, after the repeal of the impugned enactment, competently found a cause of action on the non-existent enactment, nor, thereafter, seek a declarator against it.

The learned judge stated…, that:

“It is clear to me that as of 1 June 2018 when SI 44A was repealed, the section complained of ceased to be of legal validity. Thus, as at 3 September 2018, when applicant filed this application, he was seeking to have a nullity (sic) declared ultra vires the enabling Act. There was virtually nothing for this court to declare as ultra vires the enabling Act…..In as far as the fulcrum of the applicant's application was for an order declaring section 3 of SI 44A of 2013 ultra vires the Electricity Act and thus null and void I am of the view that such an application was improper as that SI had already been repealed by the time applicant filed this application.”

The court a quo, therefore, declined to exercise its discretion in respect of the first declaratory order in favour of the appellant on the basis that the impugned section ceased to exist on 1 June 2018.

The court a quo also declined to grant the second declaratory order.

It found that the cause of action pleaded in the founding affidavit did not support such a declaratory order. At p5 of the appealed judgment, the court a quo remarked that:

“Whilst indeed applicant may feel aggrieved by the actions of the second respondent, in making him liable for his tenant's debt, it is my view that the applicant ought to have decided on a proper cause of action especially after learning that the SI in question had been repealed. As it is, clause 2 of the prayer in which he seeks to be declared not indebted to second respondent, is premised on this court first declaring the section in question as ultra vires the enabling Act. It is only after such a declaration that the issue of his indebtedness or otherwise would arise.

In as far as an application stands or falls on the founding affidavit, it follows that the application cannot succeed on the present papers.

Upon realising that the provision in question had been repealed well before filing the application, applicant ought to have withdrawn the application and explored other viable causes of action which recognised the fact that the provision in question had been repealed and any relief had to be on other legal grounds.”

The court a quo further held, that, section 17(1)(c) of the Interpretation Act preserved the accrued rights and the incurred obligations that existed at the time of repeal. It, however, dismissed the second declaratory order sought on the basis that it was consequential to, and dependent on, the grant of the first declaratory order.

Undaunted by the dismissal of his application, the appellant appealed to this court. He raised the following grounds of appeal:

1. The court a quo erred and misdirected itself in law in finding the Statutory Instrument 44A/2013 could no longer be challenged on the grounds that same had been repealed in circumstances where the cause of action arose before the repeal of the Statutory Instrument 44A/2013.

2. Alternatively, the court a quo erred in law in not finding that a repealed statutory instrument can be declared null and void, where, despite its repeal, a litigant is still adversely affected by what the statutory instrument brought into being.

3. The court a quo erred and misdirected itself in law by dismissing the challenge to Statutory Instrument 44A/2013, in the absence of any opposition, given that the second respondent had no locus standi in judicio to oppose the challenge.

The appellant, accordingly, sought the vacation of the whole judgment of the court a quo and its substitution with an order granting the application and a declaration of invalidity against section 3 of the Electricity (Unpaid Bills, Prepayment Meters and Smart Meters) Regulations, SI44A of 2013 (the repealed enactment)....,.

Counsel for the appellant did not motivate the third ground of appeal. We regarded it as abandoned.

Appealed
SC126-21 : PATRICIA DARANGWA vs JULIET KADUNGURE and ANDERSON KADUNGURE and NERIA KADUNGURE and MASTER OF THE HIGH COURT OF ZIMBABWE
Ruled By: MAKONI JA, MATHONSI JA and MWAYERA JA

The question of urgency cannot possibly be a live issue on appeal.This is so because the judge a quo was imbued with judicial discretion whether to hear the matter as urgent or not. Having exercised her discretion in favour of the respondents, given the appellant's conduct of disposing of the ...

SC127-21 : MIDLANDS STATE UNIVERSITY vs GALAXY ENGINEERING DESIGN CONSULTANTS (PRIVATE) LIMITED
Ruled By: GWAUNZA DCJ, BHUNU JA and MATHONSI JA

Regarding the issue of costs, a prayer was made, on behalf of the respondent, for costs to be awarded at an adverse scale. In submissions made before the court, that prayer was not motivated.

View Appeal
SC130-21 : PHILIPPA COUMBIS vs RONALD COUMBIS and DOVES FUNERAL ASSURANCE (PVT) LTD
Ruled By: GARWE JA, GOWORA JA and UCHENA JA

This is an appeal and cross-appeal against parts of the judgment of the High Court dated 4 September 2014 granting a decree of divorce and ancillary relief for and against the appellant (the plaintiff in the court a quo and the appellant in this appeal) and the cross-appellant (the defendant ...

FACTUAL BACKGROUND

The facts of the case can be summarised as follows:

On 1 September 1990, the appellant and the first respondent were married in terms of the then Marriages Act [Chapter 37].

During the subsistence of the marriage, the parties were blessed with three children, namely, Murray John Coumbis, who was already an adult at the commencement of divorce proceedings, and the twins, Julian Ronald Coumbis and Anton Phillip Coumbis. Julian and Anton were minors when divorce proceedings were instituted.

They are now adults, but, Julian remains a perpetual minor on account of his mental incapacity.

On 5 August 2010, the appellant instituted divorce proceedings against the first respondent. As Julian and Anton were minors, the appellant claimed their custody and maintenance. She also claimed personal maintenance and a share of the assets of the parties.

The appellant also claimed €10,400 from the respondent which she had advanced as a loan to Stir Crazy (Pvt) Ltd, a family business. She contended that the money was part of her inheritance. She claimed to have loaned it to the first respondent through Stir Crazy (Pvt) Ltd. She claimed the money from him alleging that the aforementioned company was an alter ego of the first respondent.

The first respondent opposed the appellant's claims and made a claim in reconvention wherein he claimed the custody of the minor children and their maintenance. He contested the appellant's claim for personal maintenance and matrimonial property. He alleged that some of the properties claimed by the appellant did not form part of their matrimonial estate.

The matter proceeded to a joint pre-trial conference where the following issues were identified and referred to trial:

“(a) The custody of Julian and Anton;

(b) What amount of maintenance was to be paid to the plaintiff if custody is awarded to her;

(c) Whether the plaintiff could be awarded the right to reside in the matrimonial home until both children became self-supporting;

(d) Whether the defendant was obliged to pay personal maintenance to the plaintiff;

(e) Which properties constituted the matrimonial estate;

(f) What appropriate order the High Court was supposed to make for the sharing of property.”

PROCEEDINGS IN THE HIGH COURT

When the trial commenced, Julian and Anton were no longer minors. However, the parties agreed that Julian was to be treated as a perpetual minor due to his mental incapacity.

The parties claim for custody and maintenance, therefore, only related to Julian.

The parties adduced a lot of documentary evidence to support their respective claims.

During examination-in-chief, the appellant admitted that she had a broken relationship with Julian. She admitted that she had exchanged nasty emails with him. The appellant also admitted to smoking marijuana. The fact that she smokes marijuana was confirmed by Dr Chibanda who pointed out its adverse effect on her health and especially on her recovery from temporal lobe epilepsy.

After hearing the evidence, the judge a quo interviewed Julian in his chambers.

The court a quo found that Julian was closer to the first respondent and took into consideration the fact that the two had been staying together after the parties separation.

It also found, that, the appellant needed to start a new life independent from the first respondent but still needed financial assistance to cushion her from the effects of the divorce.

The court a quo found that the first respondent was dishonest and not credible in respect of evidence relating to the matrimonial estate.

The order granted by the court a quo, quoted verbatim, reads as follows:

“Accordingly, it is ordered as follows:

1. A decree of divorce be and is hereby granted.

2. Custody of the perpetual minor child, Julian Ronald Coumbis, born on 3 July 1994, be and is hereby awarded to the defendant.

3. The plaintiff be and is hereby granted reasonable access rights to the said perpetual minor child which shall be exercised as follows:

3.1 She shall have the right to stay with the said perpetual minor child on alternate weekends.

3.2 She shall have the perpetual minor child on any other special occasions, including, but not limited to, each alternate Easter holidays and Christmas holidays.

4. The defendant shall solely be responsible for the upkeep of the said perpetual minor child.

5. The defendant shall pay maintenance in respect of the plaintiff in the sum of US$2,000 per month, as per the order granted by the Magistrate's Court, for a period of six (6) months from the date of granting of this order inclusive of the month of September 2014.

5.1 Payments shall be made directly into the plaintiff's Bank Account whose details shall be provided forthwith to the defendant by the plaintiff.

6. The plaintiff is awarded as her sole and exclusive property all household furniture, contents and effects, inclusive of all her personal items and jewellery, at the matrimonial house, No.6 Northwood Rise, Mt Pleasant Harare, excluding the TV set, dinning suite, and lounge suite which are awarded to the defendant.

7. The defendant shall transfer into the plaintiff's name a motor vehicle, Nissan Navara Registration Number ABD 6847, presently being used by the plaintiff, at his sole cost, within thirty (30) days of the grant of this order.

8. The defendant is awarded, as his sole and exclusive property, immovable property known as No.6 Northwood Rise, Mt Pleasant, Harare currently registered in the names of the plaintiff and the defendant.

8.1 The defendant shall transfer, against payment by him of all transfer costs, the said property into his names and the plaintiff shall sign all relevant papers to effect such transfer within 30 days of being requested, failure of which the Sheriff shall sign all the documents.

8.2 The defendant shall be solely responsible for any encumberances, mortgages, or other obligations duly existing or registered by law over the said property.

9. The defendant shall transfer all shares of OPIUM INVESTMENTS (PVT) LTD, a property-owning company whose sole asset is an immovable property known as No.13 Bates Street, Milton Park, Harare to the plaintiff within thirty (30) days of the grant of this order at his cost.

9.1 The defendant shall be solely responsible for any encumberancies or obligations duly existing or duly registered by law over the said property.

9.2 The defendant shall sign all the relevant documents to effect such transfer failure of which the Sheriff is authorised to sign all such documents.

10. The plaintiff is awarded, as her sole and exclusive property, an immovable property known as No.6 Rosefriars, Avondale, Harare.

10.1 The plaintiff shall transfer, against payment by her of all transfer costs, the rights, title, and interest in the said property, No.6 Rosefriars, Avondale Harare.

10.2 The defendant, shall, within thirty (30) days of being requested to, sign all relevant documents to effect such transfer, failure of which the Sheriff is authorized to sign all such documents.

11. The plaintiff's claim for cash, in the sum of US$100,000, be and is hereby dismissed.

12. Absolution from the instance be and is hereby granted in respect of the distribution of the following assets:

(a) 94 Matumi Sands Lonehill (Pty) Ltd.

(b) 112 Matumi Sands, Lonehill (Pty) Ltd.

(c) 182 Shingara (Pty) Ltd.

(f) Theright Investments (Pvt) Ltd.

(g) Stir Crazy (Pvt) Ltd.

(h) Incavat Enterprises (Pvt) Ltd.

(i) Telehic Investments (Pvt) Ltd.

(j) Natsbury Trading (Pvt) Ltd.

(k) Plaintiff's claim of £10,400.

13. The defendant shall bear the costs of suit.”

Aggrieved by parts of the court a quo's decision, the appellant and the first respondent noted the present appeal and cross-appeal respectively.

GROUNDS OF APPEAL

The appeal involved an appeal and a cross-appeal, but, the cross appeal was withdrawn during the hearing of the appeal.

The appellant's grounds of appeal attack the court a quo's decision on the following issues:

1. Custody and maintenance of Julian, the perpetual minor;

2. Her claim for inheritance money loaned to a company from the respondent;

3. The propriety or otherwise of the decision handed down by the court a quo concerning the distribution of the assets of the parties;

4. Her claim for a lump sum maintenance payment in the sum of US$100,000;

5. The granting of absolution from the instance mero motu by the court a quo at the end of the defence case; and

6. Whether or not the respondent should be heard in view of his contemptuous conduct against proceedings in this Court, the court a quo, and its orders.

APPLICATION BY THE APPELLANT

In September 2018, the appellant made an application to adduce further evidence to prove that the respondent had, pending the determination of the appeal, interfered with and defied the High Court's orders.

We, in terms of section 22(1)(b)(ii) and (v) of the Supreme Court Act [Chapter 7:13], ordered that the matter be remitted to MAWADZE J (the trial judge), for him to conduct an enquiry into the appellant's allegations and submit a report to us.

On 3 April 2019, after holding an enquiry, in compliance with our order, MAWADZE J submitted to us his report in which he made the following factual findings:

FINDINGS OF FACT MADE BY MAWADZE J

“1(a) The perpetual minor, Julian Ronald Coumbis (born on 3 July 1994), was removed from Zimbabwe by the respondent and taken to South Africa in 2013 well before the judgment of the court on 4 September 2014.

(b) The respondent has not placed any credible evidence before this Court for such conduct.

(c) Julian remains in South Africa to date.

(d) The appellant, Philippa, has not been able to exercise any access rights in respect of Julian (the perpetual minor) as awarded to her in terms of para 3 of this Court's order.

2(a) The respondent sold two immovable properties in South Africa, being No.94 Matumi Sands and No.112 Matumi Sands and transferred them to third parties.

(b) The only available immovable property in South Africa is No.182 Shingara against which the appellant successfully placed a caveat.

3. The respondent removed all movable household goods which had been awarded to the appellant, Philippa, in terms of para 6 of this Court's order from No.6 Northwood Rise, Mt Pleasant, Harare and took them to South Africa without the appellant's knowledge or consent.

The respondent has not explained his conduct.

4. The motor vehicle, a Nissan Navara, Registration Number ABD 6847, awarded to the appellant, Philippa, in terms of para 7 of this Court's order, was taken by the Vehicle Theft Squad as it was deemed to be subject to criminal investigations for which the respondent is allegedly accountable.

5. The respondent has not done anything to remove the encumbrances on immovable properties either awarded to him or the appellant as per this Court's order.

6. After the order of this Court, the respondent transferred about USD$2.8 million from Stir Crazy (Pvt) Ltd to Incavat Enterprises (Pvt) Ltd.

7. The respondent has not complied with the maintenance order granted in favour of the appellant, Phillipa, in terms of para 5 of this Court's order and has not paid a single cent.

8. Lastly, the following assets are still available;

(a) No.6 Northwood Rise, Mt Pleasant, Harare, Zimbabwe but is still encumbered.

(b) Belgravia House, Harare but is still encumbered.

(c) No.6 Rosefrias, Avondale, Harare, Zimbabwe.

(d) No.13 Bates Street, Milton Park, Harare but is still encumbered.

(e) No.182 Shingara in South Africa.”

APPELLANT'S SUBMISSIONS ON APPEAL

In submissions before this Court, counsel for the appellant argued, that, the report to the Supreme Court, following due inquiry by MAWADZE J, dated 3 April 2019, confirmed that the first respondent was in contempt of the court a quo's order. He further submitted that such disobedience went to the root of the matter.

Counsel for the appellant further submitted, that, the court a quo's decision, on custody, was influenced by the first respondent's alienation of Julian against the appellant and that the decision does not promote a bond between the appellant and the perpetual minor.

Counsel for the appellant submitted, that, from 4 September 2014 to the last date of the hearing, the appellant had not enjoyed access to the perpetual minor because he had been removed from the jurisdiction of this court. He submitted, that, it was in the best interests of the perpetual minor that he be in the custody of the appellant.

In respect of the court a quo granting the first respondent absolution from the instance mero motu, counsel for the appellant submitted, that, the court a quo erred in view of the fact that the first respondent had made offers which were equivalent to an admission. He also submitted, that, the first respondent had given evidence of his shareholding in some of the companies which could have enabled the court a quo to distribute those shares between the parties.

Counsel for the appellant submitted, that, the distribution of the matrimonial assets was limited to three properties.

He contended that evidence led before the court a quo on these assets established that the assets belonged to companies owned by the parties. He further submitted, that, the properties had been encumbered by the first respondent, and, consequently, the appellant was disabled from acquiring any title in them in spite of their having been awarded to her by the court a quo.

In relation to the appellant's inheritance funds loaned to Stir Crazy (Pvt) Ltd, counsel for the appellant argued, that, the latter, being the respondent's alter ego, they had to be returned to the appellant by the first respondent.

He prayed that the appeal succeeds with costs.

THE FIRST RESPONDENT'S SUBMISSIONS ON APPEAL

Counsel for the first respondent submitted, that, even though the first respondent had breached the order of the court a quo, he had a right to be heard in terms of section 69 of the Constitution of Zimbabwe 2013 (the Constitution).

Counsel for the first respondent argued, that, it was in the best interest of the perpetual minor that the first respondent be heard.

He contended, that, even if it was found that the first respondent had no right of audience before this court, there were no documents relating to the companies proving that the court a quo was handicapped in making its determination.

Regarding the issue of the court a quo granting absolution from the instance mero motu, counsel for the first respondent argued, that, the court a quo came to that conclusion because there was no evidence on the ownership of the companies as the appellant failed to present it to the court a quo.

In concluding his submissions, counsel for the first respondent submitted, that, the first respondent was withdrawing his cross-appeal.

APPELLANT'S RESPONSE

In response, counsel for the appellant contended, that, the enjoyment of the constitutional right to be heard comes with an obligation to obey court orders. He argued, that, the first respondent is in court to protect something yet he disobeys court orders.

Counsel further argued, that, the court has inherent jurisdiction in terms of section 176 of the Constitution to determine who can or cannot be heard.

He submitted, that, the perpetual minor's best interests remained with the court as the first respondent's contempt dis-entitles him from saying anything that benefits him.

Counsel for the appellant submitted that an Appellate Court does not only deal with the direct dictates of the judgment but also deals with its effects.

FURTHER SUBMISSIONS

By letter dated 31 January 2020, Musekiwa and Associates, Legal Practitioners for Doves Funeral Assurance (Pvt) Ltd, informed the Registrar of this Court that its client had bought a half share of No.6 Northwood Rise, Mt Pleasant, Harare (the matrimonial home) from a sale in execution conducted by the Sheriff and that that half share of the property had been transferred to their client on 20 February 2019.

As a result of this information, which had not been placed before us when we heard the appeal on 23 January 2020, parties were invited to appear before us on 24 June 2020 to give them an opportunity to address us on this issue. At that hearing we granted the following order:

“IT IS ORDERED BY CONSENT THAT:

1. Doves Funeral Assurance be and is hereby joined as a party to these proceedings as 2nd Respondent with Ronald John Coumbis becoming the 1st Respondent.

2. Mr Musekiwa, for Doves Funeral Assurance, is to avail documentation confirming the transfer of the half share in the property to itself and file heads of argument in connection therewith by the 30th June 2020 and serve the same immediately on the appellant and first respondent's legal practitioners.

3. Advocate Mpofu is to file additional heads of argument in response to the heads of argument filed by Doves Funeral Assurance by Friday 3rd July 2020.

4. Mr Ndlovu, for the 1st Respondent, Ronald John Coumbis, is to file his additional heads of argument, if any, by Wednesday 8 July 2020.”

In his additional heads of argument, counsel for the appellant submitted, that, the matrimonial home, which was jointly owned by the appellant and the first respondent, be awarded to the appellant who will thereafter institute proceedings in the High Court to claim back the half share sold to Doves Funeral Assurance (Pvt) Ltd.

He submitted, that, Doves Funeral Assurance (Pvt) Ltd took a risk when it bought the half share without the consent of the appellant.

The first respondent, whose conduct caused the sale of his half share to Doves Funeral Assurance (Pvt) Ltd, did not file additional heads.

In their heads, Musekiwa & Associates, for Doves Funeral Assurance (Pvt) Ltd, submitted, that, it bought the respondent's half share through the Sheriff's sale in execution after due notice had been given to the appellant. They submitted, that, the half share is no longer part of the appellant and first respondent's matrimonial assets and is no longer available for distribution to either of them.

ISSUES FOR DETERMINATION BY THIS COURT

The appellant raised several grounds of appeal, but, the material issues for determination are as follows:

1. Whether or not the first respondent should be heard in view of his contempt of proceedings of the court a quo and its orders and proceedings before this Court.

2. Whether or not the court a quo erred in awarding custody of Julian to the first respondent.

3. Whether or not the court a quo erred in granting absolution from the instance against part of the appellant's claims.

4. Whether or not the appellant is entitled to claim her monetary inheritance from the first respondent.

5. Whether or not the court a quo erred in distributing the immovable property without taking into account the value of the properties.

6. Whether or not the distribution of the immovable property was fair.

7. Whether or not the appellant's claim for a lump sum maintenance payment in the sum of US$100,000 was correctly dismissed....,.

Whether or not the appellant is entitled to claim her inheritance money from the first respondent

The appellant contends that she advanced a loan of €10,400, which was part of her inheritance, to the first respondent through a company called Stir Crazy (Pvt) Ltd.

She claimed the money from the first respondent alleging that the aforementioned company was his alter ego.

The first respondent disputed that he borrowed the money in his personal capacity and argued that the loan was advanced to Stir Crazy (Pvt) Ltd hence the appellant cannot seek to recover this money pursuant to section 7(1)(a) of the Matrimonial Causes Act but has to claim it as a debt owed by Stir Crazy (Pvt) Ltd.

The appellant did not dispute this clear position of the law.

In his submissions before us, counsel for the appellant did not persist with this ground of appeal. He in fact submitted, that, the value of the claim was not worth pursuing as it has been affected by this Court's decision in Zambezi Gas Limited v NR Barber (Pvt) Ltd & Another SC03-20.

SC145-21 : SARAH CARTER vs KATHLEEN MACINTOSH (Represented by Edward Warhurst, Executor of Estate Late Kathleen McIntosh) and ANOTHER
Ruled By: MAVANGIRA JA, BHUNU JA and CHATUKUTA AJA

Despite having raised seven (7) grounds of appeal, which are, in the main, prolix and argumentative, before us, counsel for the appellant abandoned all the other issues raised in the grounds of appeal leaving only one issue for determination on appeal.

HB36-15 : BULAWAYO CITY COUNCIL vs BUTTON ARMATURE WINDING (PVT) LTD
Ruled By: MUTEMA J

This is an application for summary judgment in the sum of US$86,927=90 said to represent arrear rates for the period spanning from June 2012 to June 2014.

The statement for the bill for what the applicant contends is owed was attached to the founding affidavit as annexure “A”.

The founding affidavit was deposed to by one Spekiwa T. Guta, who, in paragraph 1 thereof stated:

“1. I am the city legal officer of the applicant in this matter and all the facts I depose hereto are to the best of my knowledge true and correct.”

Over and above the amount claimed stated above, the applicant, in the draft order, also seeks an order for collection commission on the said amount; interest at the prescribed rate; costs of suit on an attorney-client scale.

The application was opposed on the following grounds:

In Limine

1. The deponent to the founding/supporting affidavit did not establish authority to depose to the affidavit or that the facts she deposed to are with her knowledge;

2. The relief sought for collection commission is incompetent;

3. In the draft order, the applicant is seeking interest at the rate of 5% per annum yet annexure “A” shows that interest was being charged on the account at 6% per month. In the result, the interest that was levied on the account was therefore unlawful; and

4. The claim is defective for want of compliance with Rule 13(4) of Order 3 of the High Court Rules 1971 in that it does not set out separately the interest component from the capital sum.

On the Merits

1. The respondent has a bona fide defence as advanced in the preceding points in limine;

2. Via publication in the press, the applicant offered a special dispensation whereby if the respondent paid off half the amount owed, the other half would be written off. The respondent accepted the offer and the arrangement became binding on the parties and the agreement is still to run its course;

3. The calculations in annexure “A” are flawed. They are effective from February 2009 to July 2014 yet the claim avers that the period runs from June 2012 to June 2014 and is for arrear rates only, but annexure “A” factored in water levy, rates, road levy, sewage, solid waste and monthly interest of 6%. This informs on the question of whether or not part of the claim has not prescribed as well as the accuracy of the computation of the amount due.

It is proposed to deal first with the points raised in limine....,.

WHETHER THE RELIEF SOUGHT FOR COLLECTION COMMISSION IS COMPETENT

This relief is contained in paragraph 2 of the draft order.

The applicant, in its heads of argument, conceded, that, it is not entitled to collection commission.

Accordingly, the applicant indicated that it was abandoning that claim.

SC180-20 : AIR ZIMBABWE (PRIVATE) LIMITED vs J.V. MATEKO and ELIJAH CHIRIPASI and OTHERS
Ruled By: GARWE JA, MAVANGIRA JA and MATHONSI JA

This is an appeal against confirmatory proceedings conducted by the Labour Court on 8 September 2017 in terms of section 93(5) of the Labour Act. At the end of the proceedings, the Labour Court made a number of alterations to the draft ruling issued by the Labour Officer.

The Labour Court has the power to confirm a draft ruling with or without amendment.

The issue for determination before this Court is the extent to which the Labour Court can, in confirmation proceedings of the draft ruling of a labour officer, amend such a ruling.

FACTUAL BACKGROUND

The 2nd – 301st respondents were employed by Air Zimbabwe (Private) Limited (“the appellant”) in various capacities at diverse occasions. Following the decision of this Court in Nyamande & Anor v Zuva Petroleum (Pvt) Ltd 2015 (2) ZLR 186 (S), on 17 July 2015, the appellant terminated the employment contracts of the respondents on three months notice. The notices of termination were issued on 31 July 2015 and all made it clear that the termination was pursuant to the appellant's common law right to terminate employment on notice.

Aggrieved by the termination of their employment, the respondents collectively lodged a complaint of unfair dismissal with the Labour Officer. They contended, that, the termination of their employment contracts had been carried out contrary to the provisions of section 12(4) of the Labour Act [Chapter 28:01].

The appellant opposed the claims on three bases:

(i) First, that some of the respondents cited in the proceedings were not party to the proceedings as they had been re-engaged and one of them was deceased.

(ii) Second, that the amendment to the Labour Act that sought to impose retrospective application of section 12(4)(b) of the Labour Act was unconstitutional.

(iii) Lastly, that “if the tribunal was inclined to retrospectively apply the section, then, the matter must be referred to the Constitutional Court.”

In her draft ruling, the labour officer (the first respondent in this matter) found, that, the respondents had been unfairly dismissed and that the termination was therefore null and void.

In addition, she ordered the appellant to comply with section 12(C)(2) of the Labour Act and that her ruling be implemented within thirty (30) days of receipt of the order.

Pursuant to that draft ruling, the labour officer filed an application with the Labour Court for the confirmation of that ruling.

The appellant opposed the application before the Labour Court on several grounds:

(i) First, that the labour officer had erred in failing to refer the matter to the Constitutional Court.

(ii) Second, that the ruling related, in part, to employees who were not party to the proceedings.

(iii) Third, that the labour officer had granted a declarator in spite of the fact that she had no power to do so.

(iv) Lastly, that, the order that the appellant complies with section 12(C)(2) of the Labour Act was improper because that section was not applicable to the matter before her.

In its determination, the Labour Court held, that, the first part of the operative portion of the draft ruling was a declarator in respect of which the labour officer and the Labour Court itself had no jurisdiction to grant.

The court further determined, that, the labour officer ought to have removed the names of the employees who had been improperly joined to the proceedings.

The court also held, that, the order that the appellant pay the minimum retrenchment package to the employees was a misdirection because once the labour officer found that the termination of the employment was unlawful, she should have granted an order of reinstatement.

The court was also of the view, that, in light of section 93(5b) of the Labour Act (which provides that the Labour Court may grant the application with or without amendments) it had the power to amend the ruling so that the final ruling would be legally sound.

The court also determined, that, although the labour officer had not dealt with the request for the referral of the matter to the Constitutional Court, it was clear that such a referral could only be made by a court and not a labour tribunal.

Further, that, the Labour Act, as amended, was valid notwithstanding that it imposed financial obligations on employers retrospectively.

Consequently, the Labour Court issued an order in the following terms:

“Consequently, the draft order and ruling of the applicant is confirmed subject to the following amended terms:

1. The 39th, 89th, 90th, 95th, 134th, 154th and 227 respondents are struck off the matter.

2. The first respondent unfairly and unlawfully terminated the contracts of the remaining 2nd to 301st respondents.

3. The first respondent be and is hereby ordered to, within 60 days of this order, reinstate the remaining 2nd to 301st respondents to their positions without loss of pay and benefits. If reinstatement is no longer tenable, the first respondent is to pay the remaining 2nd to 301st respondents, damages in lieu of reinstatement which the parties are to negotiate, failing which either party can approach the applicant for quantification.”

PROCEEDINGS BEFORE THIS COURT

Unhappy with the above determination by the court a quo, the appellant noted an appeal with this Court. In its notice of appeal, it raised five grounds:

At the hearing of the appeal, however, it abandoned all its grounds of appeal except for the third ground.

The first and second grounds, attacking the retrospective application of section 18 of the Labour Amendment Act No.5/15, were abandoned in light of the decision of the Constitutional Court in Greatermans Stores (1979) (Private) Limited t/a Thomas Meikles Stores & Anor v The Minister of Public Service, Labour and Social Welfare & Anor CC02-18 in which the Constitutional Court held that the retrospective operation of the amendment was not unconstitutional.

The fourth and fifth grounds of appeal, were, in turn, abandoned because they were inconsistent with the law.

HH99-18 : C F (PVT) LTD vs ZIMBABWE REVENUE AUTHORITY
Ruled By: KUDYA J

At the commencement of hearing, counsel for the appellant abandoned the appeal in respect of management fees.

HH118-18 : PINKSTONE MINING (PVT) LTD and TIMOTHY MATANGI and AFRICAN MILLS & MINERALS (PVT) LTD vs LAFARGE CEMENT ZIMBABWE LTD and MINISTER OF MINES AND MINES DEVELOPMENT
Ruled By: ZHOU J

This is an urgent application for an order interdicting the first respondent from carrying on mining operations on the applicant's mineral claims described in the papers as Contrica 9 Registered Number 23331BM; Contrica 21 Registered Number 24482BM; Contrica 45 Registered Number 24866BM; and Contrica 46 Registered Number 24867BM.

The order also seeks the barring of the first respondent from coming within two hundred metres of the mining claims referred to above.

The terms of the final order, in addition to seeking the interdict as recited above and costs of suit, asks the court to set aside the first respondent's mining claims under Registration numbers 41334BM and 42332BM.

The mining claims in dispute are in an area falling under the Pfura Rural District Council.

The application is opposed by the first respondent.

The second respondent, through his legal practitioner, advised that he would abide by this court's decision.

The brief facts upon which the application is founded are as set out below:

The third applicant is the holding company in the first applicant. The first applicant is the holder of the mining claims described above. It registered the claims in 1996. The current certificates of registration and inspection are attached to the applicants papers.

At some point, the applicants and the first respondent had business dealings involving minerals from those claims. It appears that the agreement was not pursued.

The respondent went on to register mining claims over a piece of land which included the claims already registered under the applicants names.

The applicants became aware of the first respondent's intention to carry on mining operations on the claims in dispute on 19 February through an article which appeared in The Herald newspaper of 14 February 2018.

The first respondent does not dispute that it has registered the claims in dispute. It, however, contests the relief being sought in this application.

The first respondent, in its opposing affidavit, took the point, that, the matter should not be heard on an urgent basis.

No submissions were made in support of that objection at the hearing.

HB53-15 : ZB BUILDING SOCIETY vs TAKESURE MASANZU
Ruled By: MOYO J

The plaintiff issued summons in this matter seeking an order as follows:(a) Eviction of the defendant and all those claiming right of occupation through him from a property known as House Number 5 Cypress Avenue, Masasa, Kwekwe.(b) Payment of $3,478 being arrear rentals for the period extending January 2013 to ...

HH02-22 : LIVISON CHIKUTU and PHENEAS CHITSANGE and ALBERT DHUMELA vs MINISTER OF LANDS, AGRICULTURE, WATER, CLIMATE & RURAL RESETTLEMENT and OTHERS
Ruled By: MAFUSIRE J

Both parties have abandoned all the preliminary objections that they had initially raised in the papers.

HH823-15 : AT INTERNATIONAL LTD vs ZIMBABWE REVENUE AUTHORITY
Ruled By: KUDYA J

The answer sought in this appeal is whether, the appellant, a foreign registered company is liable to pay value added tax in Zimbabwe.The appellant disputed liability for value added tax (VAT) arising from the purported importation of goods into and the carrying on of trade in Zimbabwe and appealed against ...

The answer sought in this appeal is whether, the appellant, a foreign registered company is liable to pay value added tax in Zimbabwe.

The appellant disputed liability for value added tax (VAT) arising from the purported importation of goods into and the carrying on of trade in Zimbabwe and appealed against a contrary determination of the respondent.

Introduction

The appellant is an International Business Company incorporated on 19 May 2005 in the British Virgin Islands in Guernsey in the Channel Islands but is not permitted to trade in that jurisdiction. The respondent is a body corporate responsible for the collection, amongst other imposts, of value added tax in Zimbabwe.

The Facts

The original intention of the appellant in Zimbabwe, prior to 1992, was to invest in property and participate in the construction of the Chitungwiza road…,.

Instead, the appellant became a supplier of basic commodities to local companies that included the WG (hereinafter referred to as the holding company).

It concluded an agency agreement with D & T, a subsidiary of the holding company, in 1992.

By 1999, it was supplying basic commodities under a US$10 million line of credit registered with the Reserve Bank of Zimbabwe to the holding company and other local customers…,.

On 1 October 2007, the Governor of the Reserve Bank of Zimbabwe unveiled the Basic Commodities Supply Side Intervention, BACOSSI, facility designed to end the chronic shortages of basic commodities in Zimbabwe…,.

The facility commenced in May 2008 and continued until the introduction of the multi-currency regime on 29 January 2009.

In May 2008, officials of the Reserve Bank of Zimbabwe (RBZ) amongst whom was the Governor and the Senior Division Chief Strategic Planning and Special Projects (SDC) visited the warehouse of D & T in Chitungwiza. The RBZ was referred to the appellant by D & T.

The appellant and the Reserve Bank of Zimbabwe (RBZ) commenced negotiations which culminated in the purchase of the non-Bacossi basic commodities that were in the D & T warehouse valued at US$7,987,207=54. The two parties also concluded an agreement in which the appellant supplied basic commodities to the RBZ, in Zimbabwe, the bacossi goods, valued at US$11,698,174 between July and September 2008.

The Baccossi Agreement was reduced to writing…, but was not signed by the parties apparently because the appellant was unhappy with the preamble to the agreement.

A verbal agreement, purportedly concluded between the Reserve Bank of Zimbabwe (RBZ), represented by the Governor, and the appellant, represented by a named Ukrainian lady, governed the supply relationship between them.

The respondent conducted a tax investigation of the purchases, in foreign currency, of the Reserve Bank of Zimbabwe from the appellant for the period between May 2006 and September 2008. The investigations revealed non-payment of value added tax (VAT) on the supplies made in that period…,.

They also revealed that D & T was paid commission, in terms of an agreement between them, on the invoiced supplies from 1 January 2006 to 31 January 2009.

On 9 February 2009…, the respondent made written demand on the Finance Director of the holding company, who was also the public officer of D & T, for the payment of value added tax (VAT) on the invoiced income paid to the appellant during that period.

On 13 February, a meeting was held at the Reserve Bank of Zimbabwe (RBZ) between the Senior Division Chief Strategic Planning and Special Projects, the investigators of the respondent, and the liaison officer of the appellant, who was also the Sales and Marketing Director of the holding company of D & T, the appellant's agent.

On 12 March, the respondent appointed the CEO of the holding company of D & T as the public officer for the appellant in terms of section 61 of the Taxes Act on the ground that his company was closely linked and connected to the appellant's local trading activities.

The CEO objected to the appointment on 17 and 20 March 2009 on the ground, that, he was not an agent, employee, director, or signatory to the bank account of the appellant; but, the respondent did not relent in its demand.

On 20 March 2009, at the respondent's offices, a meeting was held between three representatives of the respondent and two tax advisors from a local firm of accountants.

In reply to counsel for the respondent's oral submissions, counsel for the appellant disputed that the appellant was represented at the meeting and suggested that the tax accountants represented D & T.

The purpose of the meeting was to get the respondent's version on the value added tax (VAT) issues pertaining to both the appellant and D & T.

The VAT head from the tax advisors provided the respondent with two letters of his firm's mandate to represent the client.

It is inconceivable that he would not have received full instructions from his client, as he indicated, were that client D & T.

I am satisfied, from the heading of the minutes minuted by the tax advisors, that, they represented the appellant and not D & T.

In any event, the briefing given him by the respondent related to the alleged activities of the appellant, including the payment of 0.1% commission on the gross sales of the appellant in Zimbabwe to D & T.

On 30 March, the public officer of D & T disputed the legality of the appointment of his CEO as a public officer for the appellant. He, nonetheless, compiled and delivered the monthly breakdowns of the income received by D & T during the period from January 2006 to 31 January 2009 requested in the letter of 9 February.

On 25 March 2015…, the appellant wrote to the respondent objecting to the appointment of the public officer outside its registered place of business in Guernsey and to the tax liability claim.

The basis of the objection was that it did not maintain offices nor employ staff nor was it a value added tax (VAT) registered operator obligated to charge VAT on goods purchased from its foreign based operations and supplied to clients in Zimbabwe.

The relevant part of the letter reads:

“We object to your claim that we have a tax liability in Zimbabwe as we do not have a self-established presence in the country. Our involvement with Zimbabwe clients, and the West Group, is limited to the supply of our stock to agents who operate on a commission basis to store and handle our stock that we hold in Zimbabwe, for which we have always operated with Reserve Bank Approval.”

The objection by the appellant, of 25 March, and the further objection of its compulsorily appointed public officer, were dismissed by the respondent on 31 March 2009.

On 1 April, the respondent proceeded to appoint the holding company, and its subsidiaries, as an agent for the collection of value added tax (VAT) due from the appellant, purportedly in terms of section 48 of the Value Added Tax Act…,.

On 3 April 2009, the appellant, through its authorised signatories, wrote to the CEO of the holding company appointed as its public officer and copied the letter to the head of investigations of the respondent, and the Senior Division Chief Strategic Planning and Special Projects on the tax enquiry conducted by the respondent disputing tax liability on two grounds:

(i) The first was that it was not the importer; and

(ii) The second was that the sale to the importer, the Reserve Bank of Zimbabwe (RBZ), took place outside Zimbabwe.

I believe exhibit 2 may have been written by the compulsorily appointed public officer for the appellant between May 2009 and 17 June 2009, and not on 15 April 2008, as it is highly unlikely that the author possessed prescient powers to predict the events that were to take place between January and May 2009.

It was addressed to the prospective external legal practitioner of the Reserve Bank of Zimbabwe (RBZ).

The writer summarised the history of the relationship between the appellant and the holding company and one of its subsidiaries, D & T, before and during the bacossi period. He also dealt with the relationship between these parties and the Reserve Bank of Zimbabwe and exonerated the appellant from value added tax (VAT) liability.

In response, on 17 June 2009, the external legal practitioner of the Reserve Bank of Zimbabwe (RBZ) wrote a six page legal opinion to the Senior Division Chief on the US$4m tax dispute….,.

The legal practitioner in question had apparently held a meeting, on 21 April, with the Senior Division Chief of the central bank and two representatives of the holding company. He believed, that, his mandate to protect the interests of the Reserve Bank of Zimbabwe (RBZ) coincided with the interests of the appellant. He had engaged the lawyers of record of the appellant.

He identified the common problem to be the demand for value added tax (VAT) on the appellant in respect of the supply of Bacossi goods and its agent on commission received from the appellant.

Apparently, the appellant declined to supply him with information on its business profile, shareholders and directors, summary of significant business activities in the 12 months to the date of the letter and on the nature and extent of its business activities in Zimbabwe, its certificate of registration, any Board resolutions on Bacossi transactions, and its local call account.

In the absence of this information, he could not state, with certainty, that the appellant was not conducting local trading activities nor exclude it from value added tax (VAT) liability other than on the mere say so of its agent, D & T.

He advised that the Reserve Bank of Zimbabwe (RBZ) was liable for the payment of value added tax (VAT), in local currency, on the basis of the bills of entry that identified it as the importer.

He urged the Reserve Bank of Zimbabwe (RBZ), for strategic reasons that he set out in the opinion, to tender the duty in local currency hoping, that, if the respondent accepted the payment, the appellant would automatically be exempted from liability.

On 1 July 2009, the Senior Division Chief wrote to the appellant's legal practitioner of record. She confirmed the importation of Bacossi goods and the acceptance of liability for value added tax (VAT) by the Reserve Bank of Zimbabwe (RBZ)….,.

On 20 August 2009, three members of the respondent investigations team held a meeting with four RBZ employees at the RBZ amongst whom was the Senior Division Chief (SDC).

In that meeting, the Reserve Bank of Zimbabwe (RBZ) repudiated the concession made by the Senior Division Chief (SDC) and laid liability at the doorstep of the appellant.

However, in view of the national importance of the project and the profile of the major beneficiaries, the Reserve Bank of Zimbabwe (RBZ) resolved to seek exemption for payment of value added tax (VAT) on these goods from the Ministry of Finance by 25 August 2009.

A further meeting was held on 7 October 2009, in the Governor's boardroom at the Central Bank, between the Reserve Bank and the holding company, to discuss the appellant/RBZ value added tax (VAT) liability of US$3.2m….,.

In attendance were the Governor, his advisor, bank secretary, and a strategic planning executive for the Reserve Bank of Zimbabwe (RBZ) and the Sales and Marketing Director, indicated in exhibit 2 as the liaison officer of the appellant, and another officer of the holding company.

Notwithstanding that the respondent was not claiming value added tax (VAT) from the central bank, the Governor prevaricated on whether the Reserve Bank of Zimbabwe (RBZ) accepted liability or not. In one vein he accused the Senior Division Chief (SDC) of erroneously accepting liability for the central bank without his express authority, and, in the other, he was prepared to pay the VAT as long as it was charged in Zimbabwe dollars.

The Sales and Marketing Director for the holding company declined to answer for the appellant insisting that D & T acted as liaison for the appellant as the foreign supplier and local buyers.

The underlying suggestion from her contribution was that the appellant was not liable for value added tax (VAT).

In addition, the concluding remarks of the meeting suggested the existence of minutes of meetings between the Reserve Bank of Zimbabwe (RBZ) and the appellant.

The investigation prompted the respondent to raise against the appellant schedules for outstanding value added tax (VAT) on both the non-Bacossi and Bacossi transactions, initially on 17 March and later on 15 July 2009, in the sum of US$6,302,712=13 inclusive of interest and penalties, which it corrected by the exclusion of zero rated products on 13 October 2009 by reducing the amount to the sum of US$6,249,496=70.

The computations of the principal value added tax (VAT) due in each month for the non Bacossi commodities were in the sum of US$1,198,081=13. The respondent added an equal amount in penalties and a further amount of US$206,799=52 in interest and requested payment of US$2,602,961=79 for the non-Bacossi commodities.

In regards to the Bacossi commodities, it claimed a principal sum of US$1,754,726=10 and a penalty in an equal amount and interest from 21 July 2008 to 23 October 2009 in the sum of US$137,082=72 totalling US$3,646,534=92….,.

The appellant lodged an objection to the assessment in terms of section 32 of the Value Added Tax Act [Chapter 23:12] through its legal practitioners of record on 25 September 2009.

It also applied for condonation from the Commissioner for filing the objection outside the normal time limits. It set out four grounds for condonation and eight grounds of objection.

The respondent dismissed the condonation and disallowed the objection.

The appellant appealed both decisions to this Court on 12 October 2009. The respondent filed its reply on 12 November 2009.

In the objection, the appellant denied ever doing business in Zimbabwe and indicated, that, the local transactions were imports carried out by the holding company, the Reserve Bank of Zimbabwe (RBZ), and other local companies.

It averred, that, the appellant was authorised by the Reserve Bank of Zimbabwe (RBZ) to sell the goods in foreign currency using free funds from non-resident entities.

It supplied goods in bond to its local agent, D & T, for commission.

The local buyer took delivery of the goods after paying the appellant from free funds.

On receipt of payment, the appellant instructed D & T to pay duty and value added tax (VAT) before releasing the goods.

The appellant averred, that, the value added tax (VAT) claim on non-Bacossi goods constituted a double claim for VAT already paid by D & T....,.

The founder and chairman of the holding company and director of D & T incorrectly stated that value added tax (VAT) was paid for the non-Bacossi goods.

That VAT was never paid was demonstrated by the abandonment of the double claim ground at the hearing of this appeal.

CC09-21 : GIFT KONJANA vs DEXTER NDUNA
Ruled By: GARWE AJCC, GOWORA AJCCand HLATSHWAYO AJCC

This is an opposed application for leave to appeal against a decision of the Supreme Court (“the court a quo”) made in terms of section 167(5)(b) of the Constitution as read with Rule 32(2) of the Constitutional Court Rules 2016 (“the Rules”).FACTUAL BACKGROUNDThis application emanates from an election petition lodged ...

FACTUAL BACKGROUND

This application emanates from an election petition lodged with the Electoral Court to nullify the election of the respondent and to declare the applicant as a duly elected Member of Parliament for Chegutu West.

The background to the matter is that in July 2018 the applicant took part in a parliamentary election in Chegutu West in which the respondent was declared the winner by 10,932 votes as opposed to 10,828 votes attributed to the applicant. The applicant lodged a complaint with the Zimbabwe Electoral Commission (ZEC) District Elections Officer challenging the results of that election on the basis that ZEC had made mistakes in collating and verifying the results.

The mistake was apparently admitted by the Zimbabwe Electoral Commission (ZEC).

On 10 August 2018, the applicant filed a petition in the Electoral Court seeking the correction of the erroneous declaration. The Electoral Court held, that, the petition fell foul of the peremptory requirements of Rule 21 of the Electoral (Applications, Appeals and Petitions) Rules 1995 which sets out certain peremptory requirements pertaining to the form and content of an election petition.

The applicant had brought the petition on notice and the court held, that, the form and content of the petition did not comply with Rule 21 of the Electoral (Applications, Appeals and Petitions) Rules 1995, rendering it fatally defective. The court found, that, the applicant had failed to present his case in the proper format required by law and there was therefore no valid petition before the court. The petition was accordingly dismissed.

The applicant noted an appeal to the court a quo:

(i) Firstly, he averred that the petition was not fatally defective for having been brought on notice as section 169 of the Electoral Act [Chapter 2:13] made such notice mandatory.

(ii) Secondly, he contended, that, the Electoral Court could have condoned non-compliance with its rules as section 17(9) of the Electoral Act vests the court with such competence to condone.

(iii) Lastly, he contended, that, the court failed to consider the merits of the petition despite the Zimbabwe Electoral Commission (ZEC) having acknowledged the error that resulted in the undue return complained against.

Before the matter was heard, the respondent gave written notice of a preliminary objection in the proceedings.

He averred, inter alia, that the court a quo was barred from adjudicating the appeal on account of section 182(2) of the Electoral Act which requires an election appeal to be disposed of within 3 months. He contended that once the prescribed period of 3 months expired, the court has no jurisdiction to entertain the matter.

Per contra, the applicant submitted, that, section 182 of the Electoral Act did not operate to bar the court from determining the appeal since the applicant had already filed process and the matter was pending. His argument was to the effect that the provision was not intended to non-suit a litigant who was already before the court.

The court a quo held, that, it is a petitioner who is dominus litis in an election petition and that it is he or she who ought to seek directions as envisaged by section 182 of the Electoral Act and should be especially vigilant in monitoring and managing the progress of their own cases in order to meet the stipulated time limits. It further found, that, the 3 months period stated in section 182 of the Electoral Act was mandatory and could not be exceeded under any circumstances.

As a result, the respondent's point in limine, challenging the continued adjudication of the appeal beyond the time limit prescribed by section 182(2) of the Electoral Act was sustained and the appeal was removed from the roll.

Aggrieved by that finding, the applicant filed the present application on 15 April 2021.

The respondent opposed the application and argued, in limine, that the applicant used the wrong form in that he filed a chamber application when he ought to have lodged an ordinary application according to Rule 32(2) of the Constitutional Court Rules....,.

Counsel for the respondent abandoned his preliminary objection at the hearing...,.

HMA21-19 : MR MBOZVI vs CHENGETAI SIDHUNA
Ruled By: MAWADZE J and MAFUSIRE J

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

HMA38-19 : BERRINGTON ZVANYANYA and OTHERS vs ZIMBABWE SUGAR MILLING INDUSTRY WORKERS UNION and OTHERS
Ruled By: MAFUSIRE J

Applicants 1 to 10 (Berrington Zvanyanya, Samuel Jinjika, Nyararai Dembo, Madhuvura Emmanuel, Madzuro Stiriki, Lovemore Muteurwa, Vengai Masungwini, Ngonidzashe Mabina Mudambanuki, Joe Gasva and Masacha Tapiwa) are one faction of a trade union.

Respondents 2 to 6 (Godfrey Katerere, Brawl Chikandiwa, Tavanga Vandirai, Lucia Chirilele and Nokhutula Dube) are the other.

The trade union is the first respondent (Zimbabwe Sugar Milling Industry Workers Union).

The seventh respondent (Tongaat Hulett Ltd t/a Triangle Ltd or Hippo Valley Estates Ltd) is the undertaking or industry in which the trade union is established. It is the employer. It is cited as a nominal party. It did not file any papers, electing to abide by the decision of the court.

Respondents 2 to 6 (Godfrey Katerere, Brawl Chikandiwa, Tavanga Vandirai, Lucia Chirilele and Nokhutula Dube) are members of the National Executive Committee of the trade union.

The applicants allege respondents 2, 3 and 4 (Godfrey Katerere, Brawl Chikandiwa and Tavanga Vandirai) are no longer employees of the seventh respondent (Tongaat Hulett Ltd t/a Triangle Ltd or Hippo Valley Estates Ltd).

For that reason, they allege, these respondents are automatically disqualified from continuous membership of the trade union.

So, the applicants seek two inter-related orders as follows:

(i) That, respondents 2, 3 and 4 are no longer members of the trade union by virtue of the termination of their contracts of employment with the employer; and

(ii) That respondents 2, 3 and 4 are disqualified from holding positions in the trade union's National Executive Committee.

The applicants also seek two inter-related orders in respect of the trade union.

They want it to hold elections to choose members of its National Executive Committee and to hold Annual General Meetings in terms of its Constitution.

Costs of suit are sought against respondents 2, 3 and 4 on an attorney-client scale.

The applicants allege they derive their power to sue from their membership of the trade union and in terms of its Constitution.

The respondents, except the employer, have all vehemently opposed the application. Their grounds are multiple and disparate. They are both technical and substantive. Initially, the technical grounds, or points in limine, were these:

(i) That, in effect, there is only one applicant before the court, the first applicant, all the others having filed defective affidavits in their efforts to support the first applicant;

(ii) That, the matter is res judicata, allegedly this court having previously issued two orders, essentially and among other things, recognising, among other members, respondents 2, 3 and 4 as legitimate members of the trade union, and therefore capable of holding executive positions in it;

(iii) That, the applicants lack the requisite locus standi in judicio to move the court in the manner they have done; and

(iv) That, the applicants should be non-suited for failure to exhaust such of the domestic remedies as are provided for in the Constitution of the trade union, for example, the right of any member to sponsor or motivate a two-thirds majority of the other members for a general meeting to vote anyone out of office.

The points in limine were patently bogus.

A few moments into argument, and following exchanges with the Bench, counsel for the respondents abandoned all of them.

Appealed
HH510-20 : FRANCIS BERE vs JUDICIAL SERVICE COMMISSION and SIMBI MUBAKO and REKAYI MAPHOSA and TAKAWIRA NZOMBE and VIRGINIA MABHIZA and PRESIDENT OF ZIMBABWE and MINISTER OF JUSTICE, LEGAL & PARLIAMENTARY AFFAIRS and ATTORNEY GENERAL OF ZIMBABWE
Ruled By: CHIKOWERO J

In submissions, the Judicial Service Commission (JSC) did not persist in its quest for punitive costs to be granted against the applicant. It was content with costs on the ordinary scale.

CC10-23 : LAW SOCIETY OF ZIMBABWE vs PARLIAMENT OF ZIMBABWE and PRESIDENT OF THE SENATE and SPEAKER OF THE NATIONAL ASSEMBLY and PRESIDENT OF ZIMBABWE and MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS and ATTORNEY-GENERAL N.O.
Ruled By: GARWE JCC, MAKARAU JCC, GOWORA JCC, HLATSHWAYO JCC, PATEL JCC, UCHENA AJCC and MAKONI AJCC

The applicant approaches this Court under section 167(2)(d) as read with section 85(1) of the Constitution of Zimbabwe.It seeks an order declaring that the Constitution of Zimbabwe Amendment No.1 Bill, alternatively, the Constitution of Zimbabwe Amendment No.1 Act, and the Constitution of Zimbabwe Amendment No.2 Act are invalid.Ultimately, the applicant ...

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

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

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

THE PARTIES

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

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

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

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

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

Mr. Mubaiwa appears as amicus curiae.

THE FACTS

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Parliament has raised preliminary points in its opposing papers.

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

At the outset of the matter being heard, counsel for the applicant informed the Court, that, the applicant no longer relied on section 85 of the Constitution to seek relief. He submitted that the applicant did not seek an express declaration of rights.

Therefore, the application would be solely based on the provisions of section 167(2)(d) of the Constitution in that, in respect of both matters, Parliament had failed to fulfil its obligations under the Constitution in the manner in which both Acts were passed into law....,.

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

I take the view that it has been abandoned....,.

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

The prayer for costs was not persisted with in argument.

View Appeal
HH264-21 : MUSA KIKA vs MINISTER OF JUSTICE LEGAL & PARLIAMENTARY AFFAIRS and THE CHIEF JUSTICE HONOURABLE LUKE MALABA N.O. and OTHERS
Ruled By: ZHOU J, CHAREWA J and MUSHORE J

IntroductionThis judgment is in respect of two matters, HC2128/21 and HC2166/21. The two matters were heard together because the substance of their complaints is the same.Both matters were brought by way of application. HC2128/21 was instituted as an urgent court application while HC2166/21 was brought as an urgent chamber application.Both ...

Introduction

This judgment is in respect of two matters, HC2128/21 and HC2166/21. The two matters were heard together because the substance of their complaints is the same.

Both matters were brought by way of application. HC2128/21 was instituted as an urgent court application while HC2166/21 was brought as an urgent chamber application.

Both applications are opposed by some of the respondents.

Opposing papers, answering affidavits, and heads of argument were filed following a case management meeting with the parties representatives at which the dates for filing the papers were set by consent.

In case no. HC2128/21 the applicant, a legal practitioner and director of the Zimbabwe Human Rights NGO Forum, cited the Minister of Justice, Legal and Parliamentary Affairs, and all the judges of the Constitutional Court and Supreme Court as well as some of the judges of the High Court, on the basis that they are acting judges of the Supreme Court or have been called upon to act as such.

The judges were cited in official capacities.

The Judicial Service Commission (JSC) was joined in the proceedings, at its instance, at the case management conference.

In HC2166/21 the respondents cited are the Judicial Service Commission (JSC), the Chief Justice of Zimbabwe, Honourable Luke Malaba N.O. and the Attorney General N.O. The applicants in that case are Young Lawyers Association of Zimbabwe and Frederick Charles Moses Mutanda, a liberation war veteran.

Background

On 7 May 2021, the Constitution of Zimbabwe Amendment (No.2) Act 2021 became law after being assented to by the President. The contentious aspects of the Amendment Act which are the subject of the instant applications are found in its section 13.

That section repealed section 186 of the Constitution 2013 and substituted it with a new section 186.

Upon gathering that section 186 of the Constitution, introduced by the Amendment, would apply to the second to eighteenth respondents (Luke Malaba, Elizabeth Gwaunza, Paddington Garwe, Rita Makarau, Anne-Mary Gowora, Ben Hlatshwayo, Bharat Patel, Antonia Guvava, Susan Mavangira, Chinembiri Energy Bhunu, Tendai Uchena, Nicholas Mathonsi, Charles Hungwe, Felistus Chatukuta, Alfas Chitakunye, Samuel Kudya and Lavender Makoni) the applicants instituted the two applications. The applicant in Case No. HC2128/21 seeks the following relief:

“IT IS DECLARED THAT:

1. In accordance with provisions of sections 186(1)(a) and 186(2) (of the Constitution of Zimbabwe 2013) in their original form and notwithstanding provisions of Constitutional Amendment Number 2, second to eighteenth respondents hold office they reach the age of seventy years, whereupon they must, by operation of law, retire.

2.The attempt to subvert the position encapsulated in the "original" section 186(1)(a) and 186(2) of the Constitution of Zimbabwe 2013 is contrary to law and therefore in breach of applicant's right to the protection of the law as set out in section 56(1) of the Constitution of Zimbabwe 2013.

IT IS CONSEQUENTLY ORDERED THAT:

3. LUKE MALABA, must or did, at midnight on 15 May 2021, cease to hold the office of CHIEF JUSTICE OF ZIMBABWE.

4. Any action, conduct, or deed of LUKE MALABA post the 15th of May 2021, purportedly as CHIEF JUSTICE OF ZIMBABWE, is null and void and of no effect.

5. ln accordance with the provisions of section 181 of the Constitution 2013, with effect from midnight on the 15th of May 2021, ELIZABETH GWAUNZA became/becomes the ACTING CHIEF JUSTICE OF ZIMBABWE until such a time as a substantive CHIEF JUSTICE OF ZIMBABWE is appointed.

6. In accordance with the provisions of section 181 of the Constitution 2013, with effect from midnight on the 15th of May 2021, PADDINGTON GARWE became/becomes the ACTING DEPUTY CHIEF JUSTICE OF ZIMBABWE until such a time as a substantive DEPUTY CHIEF JUSTICE OF ZIMBABWE is appointed.

7.There shall be no order as to costs."

During argument, counsel for the applicant abandoned the relief sought in paragraph 6 of the draft order and moved that the draft be amended accordingly....,.

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

“IT IS DECLARED THAT:

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

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

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

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

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

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

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

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

The relief set out in the first paragraph was not persisted with as it was predicated upon a misreading of the Constitutional provisions pertaining to the appointment of a Chief Justice in Zimbabwe.

The applicants were under the mistaken belief that the first respondent, the Judicial Service Commission (JSC) had the mandate to call for candidates to participate in an interview.

Section 180 of the Constitution provides that the Chief Justice is appointed by the President after consultation with the Judicial Service Commission (JSC)....,.

The relief sought in paragraph 6 of the draft order was abandoned during argument. Also, the applicant did not make any submissions in support of the alternative relief being sought in paragraph 7 of the draft order.

We take it that this relief, seeking the declaration of invalidity in respect of section 13 (which was incorrectly referred to as section 14) of the Constitution of Zimbabwe Amendment (No.2) Act 2021, is not being persisted with.

SC70-19 : ADRIAN READ vs JOHN GARDINER and SAFARI HUNTERS (PRIVATE) LIMITED
Ruled By: HLATSHWAYO JA, PATEL JA and MAVANGIRA JA

This is an appeal against the judgment of the High Court dismissing, with costs on a legal practitioner and client scale, an application for condonation of the failure to apply for the rescission of a default judgment granted in Case No. HC2424/17 within the time stipulated by the High Court ...

HMT02-19 : RUBEN ZIMONDI vs SECRETARY PUBLIC SERVICE COMMISSION and GENERAL COMMISSIONER OF THE PRISONS AND CORRECTIONAL SERVICE and MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS and PRESIDENT OF ZIMBABWE
Ruled By: MUZENDA J

On the 4th July 2018, the applicant (Ruben Zimondi) filed an application seeking the following relief:“IT IS ORDERED THAT:1. It is declared that the discharge of the applicant herein, wherein he held the rank of Superintendent, be and is hereby declared unlawful.2. The 1st respondent be and is hereby ordered ...

On the 4th July 2018, the applicant (Ruben Zimondi) filed an application seeking the following relief:

“IT IS ORDERED THAT:

1. It is declared that the discharge of the applicant herein, wherein he held the rank of Superintendent, be and is hereby declared unlawful.

2. The 1st respondent be and is hereby ordered to entertain the applicant's appeal lodged on 12 February 2015 within twenty one (21) days of this order being granted.

3. The respondents to pay costs of suit jointly and severally, the one paying the other to be absolved.”

Facts

On or about December 2014, the applicant was charged with contravening section 3(46) of the Prisons (Staff) (Discipline) Regulations 1984. It was alleged, that, at Mutare Farm senior officers Mess, the applicant, being a member of the service, did wrongfully and unlawfully utter despicable words against the first lady, Dr Grace Mugabe, saying “Ma problems ese arikuitika mumusangano anokonzereswa nembwa inonzi Dr Grace Mugabe asi isu musangano tinouda.”

This was against the discipline - especially of a commissioned officer.

The disciplinary hearing was conducted in January 2015 in terms of section 10(1) and (11) of the Prisons (Staff) (Discipline) Regulations 1984.

The applicant was found guilty and discharged from service.

He filed an application for review to the Commissioner in terms of section 22(1) of the Prisons (Staff) (Discipline) Regulations 1984. The Commissioner confirmed the Board's decision and dismissed the application for review.

The applicant did not rest, he appealed to the Public Service Commission in terms of section 22(4) of the Prisons (Staff) (Discipline) Regulations 1984.

The Public Service Commission refused to entertain the appeal citing lack of jurisdiction and the relevant portion of the letter of 17 March 2015, addressed to the applicant's legal practitioners, reads as follows:

“It has been noted that you were engaged as a Commissioned officer at the rank of Superintendent in the Zimbabwe Prisons and Correctional Services. In terms of section 9(1)(e) of the Prisons Act (Chapter 7:11) the President may reprimand, suspend, reduce rank or discharge any Commissioned officer. The Prisons and Correctional Service does not have the jurisdiction to preside over cases involving Commissioned officers.

This rests your case with us. Please be guided accordingly.”

The applicant genuinely believes that the Public Service Commission has the jurisdiction to entertain the appeal made in terms of section 22(4) of the Prisons (Staff) (Discipline) Regulations 1984. However, up to now, the first respondent has failed to hear the appeal hence this application.

The application is opposed.

In the opposing papers, the first respondent raises a preliminary point premised upon the citation of the first respondent.

According to the respondents, the first respondent does not, and has no jurisdiction to determine the applicant's appeal in her capacity as Secretary of the Public Service Commission.

The Public Service Commission, she argues, is a separate legal entity to the Prisons and Correctional Services Commission. The Secretary, Public Service Commission acts as the Secretary to the Prisons and Correctional Services is incorrectly cited as she does not represent the Commission, the applicant ought to have cited the Chairperson to the Prisons and Correctional Services Commission.

Further, the first respondent does not deal with appeals in her official capacity, and, as such, she is incorrectly cited.

On the date of hearing, the applicant argued, that, the point in limine was only raised in the opposing affidavit and was not pursued further in the first respondent's heads.

The first respondent admitted that, but, submitted, that, a point in limine, as a question of law, can be raised at any time during the hearing of the application.

The applicant had urged the Court to regard the point in limine as having been abandoned which argument was opposed by the first respondent.

I am with the first respondent on this aspect and I ruled that the point in limine was indeed a legal point which can be raised at any stage during the application. I allowed the first respondent to address the court on the preliminary point.

My view was that if the point in limine was upheld, it will definitely be capable of disposing of the application.

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Law Portal Zimbabwe

Pleadings re: Abandoned Pleadings

SC05-21 : GIFT KONJANA vs DEXTER NDUNA Ruled By: PATEL JA, BHUNU JA and BERE JA

Appealed SC06-21 : OLIVER MASOMERA (as Executor Dative of Estate late Bryan James Rhodes) vs GIDEON HWEMENDE and OTHERS Ruled By: PATEL JA, BHUNU JA and BERE JA

View Appeal SC161-20 : STANLEY NHARI vs ROBERT MUGABE and DR GRACE MUGABE and GUSHUNGO DAIRY HOLDINGS (PVT) LTD Ruled By: GARWE JA, MAVANGIRA JA and MAKONI JA

HH63-16 : ASWEL NYANZARA vs MBADA DIAMONDS (PRIVATE) LIMITED Ruled By: CHITAPI J

HH413-18 : LAFARGE CEMENT (ZIMBABWE) LIMITED vs MUGOVE CHATIZEMBWA Ruled By: MATHONSI J

HH542-15 : THE SHERIFF OF THE HIGH COURT vs RONGXIN MINING (PRIVATE) LIMITED and FREDDY MAKUVISE Ruled By: MTSHIYA J

SC04-18 : ZIMBABWE REVENUE AUTHORITY vs CHESTER MUDZIMUWAONA Ruled By: CHIDYAUSIKU CJ, GOWORA JA and MUTEMA AJA

SC13-21 : MOSES MAWIRE vs RIO ZIM LIMITED (PRIVATE) LIMITED Ruled By: GOWORA JA, PATEL JA and MAVANGIRA JA

HH164-18 : TRUSTEES FOR THE TIME BEING OF TONGOGARA COMMUNITY SHARE OWNERSHIP TRUST vs MATRIX REALTY (PVT) LTD Ruled By: MUREMBA J

HH224-22 : MUTSA DENHERE and DEMMUSK ENTERPRISES (PVT) LTD vs FAENSA FRISCO LIMITED Ruled By: CHIRAWU-MUGOMBA J

SC25-22 : ELLIOT RODGERS vs PUWAYI CHIUTSI and TENDAYI MASHAMHANDA and REGISTRAR OF DEEDS and SHERIFF OF ZIMBABWE and BARIADE INVESTMENTS PL and LAW SOCIETY OF ZIMBABWE Ruled By: GWAUNZA DCJ, GUVAVA JA and BHUNU JA

Appealed SC24-21 : BIG VALLEY MASTERS (PRIVATE) LIMITED vs SHI JINWU Ruled By: GWAUNZA DCJ, GUVAVA JA and MAVANGIRA JA

SC37-09 : EDDIES PFUGARI (PVT) LTD vs KNOWE RESIDENTS ASSOCIATION and NORTON TOWN COUNCIL Ruled By: SANDURA JA, ZIYAMBI JA and GARWE JA

SC50-21 : A. ADAM AND COMPANY (PVT) LTD and SGI PROPERTIES (PVT) LTD and HONOURABLE RETIRED JUSTICE SMITH vs GOOD LIVING REAL ESTATE (PVT) LTD Ruled By: GWAUNZA DCJ, BHUNU JA and MAKONI JA

Appealed SSC62-21 : KIZITO MUTSURE vs THE STATE Ruled By: MAVANGIRA JA, UCHENA JA and MAKONI JA

View Appeal HH329-17 : MARINDA FENESEY vs GATEWAY PRIMARY SCHOOL and K M RICQUEBOURG N.O. and GATEWAY PRIMARY SCHOOL PARENTS ASSOCIATION and THE SHERIFF OF ZIMBABWE Ruled By: MUSAKWA J

Appealed SC66-21 : TINASHE KAMBARAMI vs 1893 MTHWAKAZI RESTORATION MOVEMENT TRUST and NOMALANGA DABENGWA and CITY OF BULAWAYO and ZIMBABWE ELECTORAL COMMISSION and MOVEMENT FOR DEMOCRATIC CHANGE ALLIANCE Ruled By: GUVAVA JA, MATHONSI JA and KUDYA AJA

SC68-21 : SIBONILE DUBE vs PAUL MUREHWA and MINISTER OF LOCAL GOVERNMENT, PUBLIC WORKS AND NATIONAL HOUSING N.O. Ruled By: GUVAVA JA, MAVANGIRA JA and KUDYA AJA

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

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

SSC86-21 : MUNYARADZI KEREKE vs FRANCIS MARAMWIDZE and THE PROSECUTOR GENERAL Ruled By: MAKONI JA

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

View Appeal HH466-18 : NMB BANK LTD vs THE TRUSTEES FOR THE TIME BEING OF CORNERSTONE TRUST and JULIUS MAKONI and THE TRUSTEES FOR THE TIME BEING OF RYVONNE TRUST Ruled By: ZHOU J

SC101-21 : EQUITY PROPERTIES (PVT) LTD vs ALSHAMS GLOBAL BVI LIMITED and REGISTRAR OF DEEDS Ruled By: BHUNU JA, UCHENA JA and KUDYA AJA

Appealed SC103-21 : IRENE MHLANGA vs MIKE MHLANGA Ruled By: GWAUNZA DCJ, MATHONSI JA and CHITAKUNYE AJA

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

HB27-15 : MONICA DHLIWAYO vs BONGANI NDLOVU (as Executor Dative estate Late Jubane James Jack) and ESTATE LATE JUBANE JAMES JACK and CLEMENTINE JACK and DEPUTY MASTER OF THE HIGH COURT Ruled By: MAKONESE J

Appealed SC110-21 : UPSET INVESTMENTS (PRIVATE) LIMITED vs CHITUNGWIZA MUNICIPALITY Ruled By: GARWE JA, HLATSHWAYO JA and BHUNU JA

View Appeal HH100-17 : UPSET INVESTMENTS (PRIVATE) LIMITED vs CHITUNGWIZA MUNICIPALITY Ruled By: MUREMBA J

HHH374-19 : MUNYARADZI KEREKE vs FRANCIS MARAMWIDZE N.O. Ruled By: HUNGWE J and WAMAMBO 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

Appealed SC126-21 : PATRICIA DARANGWA vs JULIET KADUNGURE and ANDERSON KADUNGURE and NERIA KADUNGURE and MASTER OF THE HIGH COURT OF ZIMBABWE Ruled By: MAKONI JA, MATHONSI JA and MWAYERA JA

SC127-21 : MIDLANDS STATE UNIVERSITY vs GALAXY ENGINEERING DESIGN CONSULTANTS (PRIVATE) LIMITED Ruled By: GWAUNZA DCJ, BHUNU JA and MATHONSI JA

View Appeal SC130-21 : PHILIPPA COUMBIS vs RONALD COUMBIS and DOVES FUNERAL ASSURANCE (PVT) LTD Ruled By: GARWE JA, GOWORA JA and UCHENA JA

SC145-21 : SARAH CARTER vs KATHLEEN MACINTOSH (Represented by Edward Warhurst, Executor of Estate Late Kathleen McIntosh) and ANOTHER Ruled By: MAVANGIRA JA, BHUNU JA and CHATUKUTA AJA

HB36-15 : BULAWAYO CITY COUNCIL vs BUTTON ARMATURE WINDING (PVT) LTD Ruled By: MUTEMA J

SC180-20 : AIR ZIMBABWE (PRIVATE) LIMITED vs J.V. MATEKO and ELIJAH CHIRIPASI and OTHERS Ruled By: GARWE JA, MAVANGIRA JA and MATHONSI JA

HH99-18 : C F (PVT) LTD vs ZIMBABWE REVENUE AUTHORITY Ruled By: KUDYA J

HH118-18 : PINKSTONE MINING (PVT) LTD and TIMOTHY MATANGI and AFRICAN MILLS & MINERALS (PVT) LTD vs LAFARGE CEMENT ZIMBABWE LTD and MINISTER OF MINES AND MINES DEVELOPMENT Ruled By: ZHOU J

HB53-15 : ZB BUILDING SOCIETY vs TAKESURE MASANZU Ruled By: MOYO J

HH02-22 : LIVISON CHIKUTU and PHENEAS CHITSANGE and ALBERT DHUMELA vs MINISTER OF LANDS, AGRICULTURE, WATER, CLIMATE & RURAL RESETTLEMENT and OTHERS Ruled By: MAFUSIRE J

HH823-15 : AT INTERNATIONAL LTD vs ZIMBABWE REVENUE AUTHORITY Ruled By: KUDYA J

CC09-21 : GIFT KONJANA vs DEXTER NDUNA Ruled By: GARWE AJCC, GOWORA AJCCand HLATSHWAYO AJCC

HMA21-19 : MR MBOZVI vs CHENGETAI SIDHUNA Ruled By: MAWADZE J and MAFUSIRE J

HMA38-19 : BERRINGTON ZVANYANYA and OTHERS vs ZIMBABWE SUGAR MILLING INDUSTRY WORKERS UNION and OTHERS Ruled By: MAFUSIRE J

Appealed HH510-20 : FRANCIS BERE vs JUDICIAL SERVICE COMMISSION and SIMBI MUBAKO and REKAYI MAPHOSA and TAKAWIRA NZOMBE and VIRGINIA MABHIZA and PRESIDENT OF ZIMBABWE and MINISTER OF JUSTICE, LEGAL & PARLIAMENTARY AFFAIRS and ATTORNEY GENERAL OF ZIMBABWE Ruled By: CHIKOWERO J

View Appeal HH264-21 : MUSA KIKA vs MINISTER OF JUSTICE LEGAL & PARLIAMENTARY AFFAIRS and THE CHIEF JUSTICE HONOURABLE LUKE MALABA N.O. and OTHERS Ruled By: ZHOU J, CHAREWA J and MUSHORE J

SC70-19 : ADRIAN READ vs JOHN GARDINER and SAFARI HUNTERS (PRIVATE) LIMITED Ruled By: HLATSHWAYO JA, PATEL JA and MAVANGIRA JA

HMT02-19 : RUBEN ZIMONDI vs SECRETARY PUBLIC SERVICE COMMISSION and GENERAL COMMISSIONER OF THE PRISONS AND CORRECTIONAL SERVICE and MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS and PRESIDENT OF ZIMBABWE Ruled By: MUZENDA J

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Zimbabwe

SC05-21 : GIFT KONJANA vs DEXTER NDUNA
Ruled By: PATEL JA, BHUNU JA and BERE JA

Appealed
SC06-21 : OLIVER MASOMERA (as Executor Dative of Estate late Bryan James Rhodes) vs GIDEON HWEMENDE and OTHERS
Ruled By: PATEL JA, BHUNU JA and BERE JA

View Appeal
SC161-20 : STANLEY NHARI vs ROBERT MUGABE and DR GRACE MUGABE and GUSHUNGO DAIRY HOLDINGS (PVT) LTD
Ruled By: GARWE JA, MAVANGIRA JA and MAKONI JA

HH63-16 : ASWEL NYANZARA vs MBADA DIAMONDS (PRIVATE) LIMITED
Ruled By: CHITAPI J

HH413-18 : LAFARGE CEMENT (ZIMBABWE) LIMITED vs MUGOVE CHATIZEMBWA
Ruled By: MATHONSI J

HH542-15 : THE SHERIFF OF THE HIGH COURT vs RONGXIN MINING (PRIVATE) LIMITED and FREDDY MAKUVISE
Ruled By: MTSHIYA J

SC04-18 : ZIMBABWE REVENUE AUTHORITY vs CHESTER MUDZIMUWAONA
Ruled By: CHIDYAUSIKU CJ, GOWORA JA and MUTEMA AJA

SC13-21 : MOSES MAWIRE vs RIO ZIM LIMITED (PRIVATE) LIMITED
Ruled By: GOWORA JA, PATEL JA and MAVANGIRA JA

HH164-18 : TRUSTEES FOR THE TIME BEING OF TONGOGARA COMMUNITY SHARE OWNERSHIP TRUST vs MATRIX REALTY (PVT) LTD
Ruled By: MUREMBA J

HH224-22 : MUTSA DENHERE and DEMMUSK ENTERPRISES (PVT) LTD vs FAENSA FRISCO LIMITED
Ruled By: CHIRAWU-MUGOMBA J

SC25-22 : ELLIOT RODGERS vs PUWAYI CHIUTSI and TENDAYI MASHAMHANDA and REGISTRAR OF DEEDS and SHERIFF OF ZIMBABWE and BARIADE INVESTMENTS PL and LAW SOCIETY OF ZIMBABWE
Ruled By: GWAUNZA DCJ, GUVAVA JA and BHUNU JA

Appealed
SC24-21 : BIG VALLEY MASTERS (PRIVATE) LIMITED vs SHI JINWU
Ruled By: GWAUNZA DCJ, GUVAVA JA and MAVANGIRA JA

SC37-09 : EDDIES PFUGARI (PVT) LTD vs KNOWE RESIDENTS ASSOCIATION and NORTON TOWN COUNCIL
Ruled By: SANDURA JA, ZIYAMBI JA and GARWE JA

SC50-21 : A. ADAM AND COMPANY (PVT) LTD and SGI PROPERTIES (PVT) LTD and HONOURABLE RETIRED JUSTICE SMITH vs GOOD LIVING REAL ESTATE (PVT) LTD
Ruled By: GWAUNZA DCJ, BHUNU JA and MAKONI JA

Appealed
SSC62-21 : KIZITO MUTSURE vs THE STATE
Ruled By: MAVANGIRA JA, UCHENA JA and MAKONI JA

View Appeal
HH329-17 : MARINDA FENESEY vs GATEWAY PRIMARY SCHOOL and K M RICQUEBOURG N.O. and GATEWAY PRIMARY SCHOOL PARENTS ASSOCIATION and THE SHERIFF OF ZIMBABWE
Ruled By: MUSAKWA J

Appealed
SC66-21 : TINASHE KAMBARAMI vs 1893 MTHWAKAZI RESTORATION MOVEMENT TRUST and NOMALANGA DABENGWA and CITY OF BULAWAYO and ZIMBABWE ELECTORAL COMMISSION and MOVEMENT FOR DEMOCRATIC CHANGE ALLIANCE
Ruled By: GUVAVA JA, MATHONSI JA and KUDYA AJA

SC68-21 : SIBONILE DUBE vs PAUL MUREHWA and MINISTER OF LOCAL GOVERNMENT, PUBLIC WORKS AND NATIONAL HOUSING N.O.
Ruled By: GUVAVA JA, MAVANGIRA JA and KUDYA AJA

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

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

SSC86-21 : MUNYARADZI KEREKE vs FRANCIS MARAMWIDZE and THE PROSECUTOR GENERAL
Ruled By: MAKONI JA

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

View Appeal
HH466-18 : NMB BANK LTD vs THE TRUSTEES FOR THE TIME BEING OF CORNERSTONE TRUST and JULIUS MAKONI and THE TRUSTEES FOR THE TIME BEING OF RYVONNE TRUST
Ruled By: ZHOU J

SC101-21 : EQUITY PROPERTIES (PVT) LTD vs ALSHAMS GLOBAL BVI LIMITED and REGISTRAR OF DEEDS
Ruled By: BHUNU JA, UCHENA JA and KUDYA AJA

Appealed
SC103-21 : IRENE MHLANGA vs MIKE MHLANGA
Ruled By: GWAUNZA DCJ, MATHONSI JA and CHITAKUNYE AJA

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

HB27-15 : MONICA DHLIWAYO vs BONGANI NDLOVU (as Executor Dative estate Late Jubane James Jack) and ESTATE LATE JUBANE JAMES JACK and CLEMENTINE JACK and DEPUTY MASTER OF THE HIGH COURT
Ruled By: MAKONESE J

Appealed
SC110-21 : UPSET INVESTMENTS (PRIVATE) LIMITED vs CHITUNGWIZA MUNICIPALITY
Ruled By: GARWE JA, HLATSHWAYO JA and BHUNU JA

View Appeal
HH100-17 : UPSET INVESTMENTS (PRIVATE) LIMITED vs CHITUNGWIZA MUNICIPALITY
Ruled By: MUREMBA J

HHH374-19 : MUNYARADZI KEREKE vs FRANCIS MARAMWIDZE N.O.
Ruled By: HUNGWE J and WAMAMBO 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

Appealed
SC126-21 : PATRICIA DARANGWA vs JULIET KADUNGURE and ANDERSON KADUNGURE and NERIA KADUNGURE and MASTER OF THE HIGH COURT OF ZIMBABWE
Ruled By: MAKONI JA, MATHONSI JA and MWAYERA JA

SC127-21 : MIDLANDS STATE UNIVERSITY vs GALAXY ENGINEERING DESIGN CONSULTANTS (PRIVATE) LIMITED
Ruled By: GWAUNZA DCJ, BHUNU JA and MATHONSI JA

View Appeal
SC130-21 : PHILIPPA COUMBIS vs RONALD COUMBIS and DOVES FUNERAL ASSURANCE (PVT) LTD
Ruled By: GARWE JA, GOWORA JA and UCHENA JA

SC145-21 : SARAH CARTER vs KATHLEEN MACINTOSH (Represented by Edward Warhurst, Executor of Estate Late Kathleen McIntosh) and ANOTHER
Ruled By: MAVANGIRA JA, BHUNU JA and CHATUKUTA AJA

HB36-15 : BULAWAYO CITY COUNCIL vs BUTTON ARMATURE WINDING (PVT) LTD
Ruled By: MUTEMA J

SC180-20 : AIR ZIMBABWE (PRIVATE) LIMITED vs J.V. MATEKO and ELIJAH CHIRIPASI and OTHERS
Ruled By: GARWE JA, MAVANGIRA JA and MATHONSI JA

HH99-18 : C F (PVT) LTD vs ZIMBABWE REVENUE AUTHORITY
Ruled By: KUDYA J

HH118-18 : PINKSTONE MINING (PVT) LTD and TIMOTHY MATANGI and AFRICAN MILLS & MINERALS (PVT) LTD vs LAFARGE CEMENT ZIMBABWE LTD and MINISTER OF MINES AND MINES DEVELOPMENT
Ruled By: ZHOU J

HB53-15 : ZB BUILDING SOCIETY vs TAKESURE MASANZU
Ruled By: MOYO J

HH02-22 : LIVISON CHIKUTU and PHENEAS CHITSANGE and ALBERT DHUMELA vs MINISTER OF LANDS, AGRICULTURE, WATER, CLIMATE & RURAL RESETTLEMENT and OTHERS
Ruled By: MAFUSIRE J

HH823-15 : AT INTERNATIONAL LTD vs ZIMBABWE REVENUE AUTHORITY
Ruled By: KUDYA J

CC09-21 : GIFT KONJANA vs DEXTER NDUNA
Ruled By: GARWE AJCC, GOWORA AJCCand HLATSHWAYO AJCC

HMA21-19 : MR MBOZVI vs CHENGETAI SIDHUNA
Ruled By: MAWADZE J and MAFUSIRE J

HMA38-19 : BERRINGTON ZVANYANYA and OTHERS vs ZIMBABWE SUGAR MILLING INDUSTRY WORKERS UNION and OTHERS
Ruled By: MAFUSIRE J

Appealed
HH510-20 : FRANCIS BERE vs JUDICIAL SERVICE COMMISSION and SIMBI MUBAKO and REKAYI MAPHOSA and TAKAWIRA NZOMBE and VIRGINIA MABHIZA and PRESIDENT OF ZIMBABWE and MINISTER OF JUSTICE, LEGAL & PARLIAMENTARY AFFAIRS and ATTORNEY GENERAL OF ZIMBABWE
Ruled By: CHIKOWERO J

View Appeal
HH264-21 : MUSA KIKA vs MINISTER OF JUSTICE LEGAL & PARLIAMENTARY AFFAIRS and THE CHIEF JUSTICE HONOURABLE LUKE MALABA N.O. and OTHERS
Ruled By: ZHOU J, CHAREWA J and MUSHORE J

SC70-19 : ADRIAN READ vs JOHN GARDINER and SAFARI HUNTERS (PRIVATE) LIMITED
Ruled By: HLATSHWAYO JA, PATEL JA and MAVANGIRA JA

HMT02-19 : RUBEN ZIMONDI vs SECRETARY PUBLIC SERVICE COMMISSION and GENERAL COMMISSIONER OF THE PRISONS AND CORRECTIONAL SERVICE and MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS and PRESIDENT OF ZIMBABWE
Ruled By: MUZENDA J