Review re: Terminated or Complete Proceedings iro Approach, Review Jurisdiction, Powers, Grounds & Record of Proceedings

SC26-21 : JOSEPH LUNGU and OTHERS vs RESERVE BANK OF ZIMBABWE
Ruled By: GUVAVA JA, MAVANGIRA JA and MAKONI JA

The undesirability of having an Appellate Court sitting as a court of first instance was put across in Dormehl v Minister of Justice and Others [2000] ZACC 4; 2000 (2) SA 825, where the court dealing with issues of direct access to the Constitutional Court of South Africa stated:“(b) It ...

HH656-14 : DERDALE INVESTMENTS (PVT) LTD vs ECONET WIRELESS (PVT) LTD and THE CITY OF HARARE and HONOURABLE JUSTICE MANDEYA
Ruled By: DUBE J

This is an application for review brought in terms of section 27 of the High Court Act [Chapter 7:06].

The brief facts surrounding this application are as follows:

On 22 November 2013, the Administrative Court granted leave to the applicant to file an appeal out of time against the second respondent's decision granting a permit to the first respondent to establish a cellular base at a place in Mt Pleasant, Harare.

On 4 December 2013, the first respondent made a chamber application to the Administrative Court for leave to appeal to the Supreme Court against the interlocutory order. The chamber application was served on the applicant on 5 December 2013. The court dealt with and granted the application in chambers on 18 December 2013 before the 10-day period within which the applicant was required to file a response had elapsed.

A default order was in effect granted.

The next day, the applicant filed its notice of opposition. The court, on being advised that it had granted the order in error, accepted its error and requested the parties to appear before it in chambers to map the way forward.

The meeting did not produce any fruitful results.

The first respondent refused to abandon the order granted in its favour resulting in the court ruling that it was functus officio.

The first respondent (hereinafter referred to as the respondent) has proceeded to erect the base station which is the subject of litigation between the parties. An appeal, premised on the leave to appeal granted to the respondent in default by the Administrative Court on 18 December 2013, has already been filed in the Supreme Court under SC535\13 and is pending.

The applicant seeks a review of the proceedings of the Administrative Court under T16/13 granting leave to appeal to the respondent.

The parties are at variance concerning this court's jurisdiction to review proceedings of the Administrative Court.

The applicant maintained that the High Court, being a court of original and inherent jurisdiction, has the power to review proceedings of all inferior courts. The applicant further submitted that the Administrative Court is a court inferior to the High Court and that this fact clothes the High Court with jurisdiction in terms of sections 26 and 27 of the High Court Act [Chapter 7:06] (hereinafter referred to as the High Court Act) to review proceedings of that court.

On the merits of the application for review, the applicant contended, that, the Administrative Court erred when it failed to afford the applicant an opportunity to oppose the application before it. The applicant maintained that the Administrative Court, in determining and granting the application without affording the applicant an opportunity to oppose the application, committed a gross irregularity which is subject to review by this court.

The first respondent defends the application.

It contends, that, the High Court does not have the power to exercise review jurisdiction over proceedings and decisions of the Administrative Court, let alone set aside a decision of the court. The first respondent submitted that the Administrative Court is a court of record whose proceedings are subordinate only to the Supreme Court.

The respondent did not suggest that the High Court and the Administrative Court are at par.

The first respondent urged this court not to grant the order sought as such order will render nugatory proceedings pending in the Supreme Court and have the effect of expunging leave granted by the Administrative Court thereby rendering the appeal already filed to have been filed without leave of court.

Counsel for the respondent submitted that the question of whether the appeal is properly before the court is an issue that the Supreme Court may be seized with if brought up by the parties and if it is their position that the appeal is premature.

The respondent insisted that this point should be taken in the Supreme Court, and argued that the applicant has failed to lay a basis for the court to depart from the norm and intervene in proceedings held before a higher court.

At the hearing of this matter, I queried the wisdom of bringing the dispute over the propriety of the order granted in default to this court as a review.

An alternative procedure was available to resolve the dispute between the parties.

Both parties agreed that the applicant had the simpler option of placing before the Administrative Court an application for rescission of judgment in terms of Order 49 Rule 449 of the High Court Rules, 1971.

The Rule provides for correction, variation, and rescission of judgments or orders erroneously granted in the absence of any party affected thereby.

The Administrative Court (Miscellaneous Appeals) Rules 1980, do not make provision for rescission of a judgment or order - particularly where there is an allegation that the order or judgement was erroneously made or granted.

In any case, where the conduct of proceedings is not covered by the Administrative Court rules, the practice embraced in that court is to resort to application of the High Court Rules. This course of action is made possible by the provisions of section 13(3)(a) of the Administrative Court Act [Chapter 7:01]. The section reads as follows;

“13(3) In any proceedings not covered by rules in terms of subsection (1) or any other enactment —

(a) The rules relating to practice and procedure in the High Court shall, where appropriate, apply;”

Invoking Rule 449 could have saved the day here.

Being seized with the application, I decided, in my discretion, to investigate the contentious issue regarding the jurisdiction of the High Court to review proceedings of the Administrative Court and further determine the arguments advanced for and against review of the proceedings by this court in the face of the appeal subsequently filed in the Supreme Court and premised on the order challenged.

The parties requested me to resolve the following issues:

1. Whether this court has the competency to review and set aside proceedings of the Administrative Court.

2. Whether the pendency of the appeal in SC535\13 is fatal to the present application.

THE HIGH COURT

Both the High Court and the Administrative Court are provided for in the Constitution of the country. The Lancaster House Constitution of 1979, which came into effect in 1980, made provision for the courts in section 79. It read as follows:

“79 Judicial Authority

(1) The judicial authority of Zimbabwe shall vest in —

(a) The Supreme Court; and (b) the High Court; and (c) such other courts subordinate to the Supreme Court and the High Court as may be established by or under an Act of Parliament.”

The High Court and Supreme Courts were specifically and directly provided for in the old Constitution. Other subordinate courts could be established under Acts of Parliament and were not named. Such other courts would be subordinate to the High Court and Supreme Court.

The effect of this provision was to render all other courts established by Acts of Parliament courts subordinate to the Supreme Court and High Court.

Subsequent to the coming into effect of the Constitution, the Administrative Court was established through an enabling statute.

The current Constitution makes provision for the High Court in section 170. The section reads as follows:

“170 High Court

The High Court is a superior court of record and consists of -

(a) The Chief Justice, the Deputy Chief Justice and the judge President of the High Court; and

(b) Such other judges of the High Court as may be appointed from time to time.”

The jurisdiction of the court is outlined in section 171 of the Constitution. The section reads as follows;

“171 Jurisdiction of High Court

(1) The High Court —

(a) Has original jurisdiction over all civil and criminal matters throughout Zimbabwe;

(b) Has jurisdiction to supervise magistrate's courts and other subordinate courts and to review their decisions;

(c) May decide constitutional matters except those that only the Constitutional Court may decide; and…,.”

The High Court has original jurisdiction over all people in Zimbabwe.

ORIGINAL AND INHERENT JURISDICTION OF THE HIGH COURT

The High Court is a superior court of record and has original jurisdiction in all civil and criminal matters. It has unlimited original jurisdiction which it exercises unless its jurisdiction is specifically ousted. It has concurrent jurisdiction and may exercise its jurisdiction over matters which other courts have jurisdiction.

It is given the power to supervise the Magistrate's Court and other subordinate courts and to review their decisions.

It may also decide constitutional matters except those that only the Constitutional Court may decide.

The High Court also has inherent power, conferred upon it by section 176 of the Constitution, to protect and regulate its own process and to develop the common law or the customary law.

Section 176 of the Constitution provides as follows;

“The Constitutional Court, the Supreme Court, and the High Court have inherent power to protect and regulate their own process and to develop the common law or the customary law, taking into account the interests of justice and the provisions of this Constitution.”

The concept of inherent jurisdiction has its roots in the English common law, that, a superior court has the inherent jurisdiction to hear any matter that comes before it unless that authority is expressly excluded or limited by some statute or rule of law.

The concept of inherent jurisdiction is described by JEROLD TAITZ, in, The Inherent Jurisdiction of the Supreme Court, Cape Town, South Africa; Juta Publishers, 1985, as follows;

“The inherent jurisdiction of the Supreme Court may be described as the unwritten power without which the court is unable to function with justice and good reason. As will be observed below, such powers are enjoyed by the court by virtue of its very nature as a superior court modelled on the lines of an English superior court…,.”

In HALSBURY's Laws of England, 4ed, London, Butterworth's, inherent power is defined as follows;

“In sum, it may be said that the inherent jurisdiction of the court is a virile and viable doctrine, and has been defined as being the reserve or fund of powers, a residual source of powers, which the court may draw upon, as necessary, whenever it is just or equitable to do so, in particular to ensure the observance of due process of law, to prevent vexation or oppression, to do justice between the parties, and to secure a fair trial between them,”

In Martin Sibanda and Anor v Benson Chinemhute and Anor HH131-04 MAKARAU J gives a graphic distinction between a court of inherent jurisdiction and one without and remarks thus;

“I have always visualised the difference between a court of inherent jurisdiction and one without as two buildings open to the citizenry. One has all its doors and windows open to all and for all reasons (and in all seasons), apart from those expressly and clearly forbidden entry by statute.

Where a point of entry is hitherto non-existent for a member of the public, in the form of procedure, one is inherently created in the interests of justice.

This is the court of inherent jurisdiction.

The sentry manning the building is less stern and less demanding than his counterpart at the gates of the other building. This other building, representing the court without inherent powers, is generally closed up apart from a few windows to allow access to those expressly defined in the statute creating the court, on certain terms and for certain specified purposes.

Where the statute does not create a point of entry, the court cannot open one for anyone.

In this country, that distinction boils down to classification of courts on the basis of superior courts and inferior courts.”

These sentiments succinctly summarise the concept of inherent jurisdiction.

The concept of inherent jurisdiction has its foundation in common law and is reserved for the highest courts in the land. In this country, only the superior courts, thus, the Constitutional Court, the Supreme Court, and the High Court are courts of superior jurisdiction.

The power of the High Court to review and supervise the decisions of subordinate and inferior courts enshrined in the Constitution and codified in the enabling act derives from its inherent jurisdiction or power.

Inherent power is unwritten power which superior courts are endowed with.

Inherent power gives the court wide ranging and all embracing powers to deal with any matter that may be placed before them. This means that a court of inherent jurisdiction has default powers which it can exercise in the absence of express power and can deal with all areas of the law and all procedural matters involving the administration of justice.

The mischief behind the concept is to ensure that justice is done between the parties by ensuring that due process of law is observed, proceedings are fair, and are conducted in accordance with real and substantial justice.

It is an issue of the interests of justice and access to justice rather than some perceived wrestling match for power and supremacy.

Such jurisdiction extends to all matters - including those over which other courts have jurisdiction.

If a litigant chooses to go to the High Court, the court can assume jurisdiction over that person. It can hear any matter that comes before it. It can also review all proceedings of all inferior courts.

The High Court will refrain from exercising its inherent jurisdiction only where its jurisdiction is specifically excluded or ousted by a statute or other law.

Because the High Court has inherent jurisdiction, its jurisdiction cannot be excluded by implication.

An example of express exclusion of the jurisdiction of the High Court is found in section 89(6) of the Labour Court Act [Chapter 28:01] which expressly excludes the jurisdiction of any other court in labour matters in the first instance.

HIGH COURT'S POWER OF REVIEW

The High Court is given power to review proceedings and decisions of inferior courts by sections 26 and 27 of the High Court Act. Section 26 of the High Court Act reads as follows;

“26 Power to review proceedings and decisions

Subject to this Act and any other law, the High Court shall have power, jurisdiction, and authority to review all proceedings and decisions of all inferior courts of justice, tribunals, and administrative authorities within Zimbabwe.”

This section empowers the High Court to review all proceedings and decisions of all inferior courts of justice, tribunals, and administrative authorities within Zimbabwe.

There is no ambiguity in this section.

The intention of the legislature, in giving the court powers to review proceedings and decisions of all inferior courts of justice, is clear from the language of the statute. That power, as previously stated, derives from the court's inherent jurisdiction.

In any case, where it has been shown that a court is an inferior court, the jurisdiction of the High Court over it is not limited. It must follow that the High Court has review jurisdiction over it. Decisions of inferior courts are reviewable by the High Court except where the law provides otherwise thereby ousting its jurisdiction.

Grounds upon which the court may review decisions and proceedings of inferior courts are laid down in section 27 of the High Court Act and these will be dealt with at a later stage.

INFERIOR AND SUBORDINATE COURTS

The Constitution, in section 171, gives the High Court the jurisdiction to supervise and review decisions of the Magistrate's courts and other subordinate courts.

Section 26 and 27 of the High Court Act gives the court power to review decisions of inferior courts of justice, tribunals, and administrative authorities.

The ordinary meaning of the word 'subordinate' denotes something that is secondary, lesser, lower, minor, or inferior.

It appears to me that reference a subordinate court refers to an inferior court and that the two references refer to a court of a similar status. Reference to one includes the same. The two descriptions of the courts mean the same - it is a distinction without a difference.

When the Constitution makes reference to a subordinate court, it includes all inferior courts, tribunals, and administrative authorities.

The purpose of the legislature, in making proceedings of subordinate courts reviewable by the High Court, was purposeful and was to have all proceedings of subordinate courts subject to supervision of the High Court in the interest of the due administration of justice.

It is not necessary to split hairs over a non-existent distinction between an inferior court and subordinate court.

I will proceed and determine what an inferior court is, as requested, and resolve whether or not the Administrative Court is a court inferior to the High Court.

The High Court and Supreme Court Acts do not define what an inferior court is. A legal dictionary, by JOHN BOUVIER, 1856, defines an 'inferior court' as a court of limited jurisdiction. In Ex Parte Kearny, (1880) 55 Cal 212 the court remarked that:

“Inferior courts are those whose jurisdiction is limited and special and whose proceedings are not according to the course of the common law.”

See also Smith v Andrews 6 Cal 652 for the same proposition.

HERBSTEIN and Van WINSEN in The Civil Practice of the South African High Courts, 5ed…, says of inferior courts;

“…, whereas inferior courts may do nothing that the law does not permit, superior courts may do anything the law does not forbid.”

An inferior court is a court of limited and specified jurisdiction. It is a special court whose jurisdiction is specified and does not apply the common law. It is not a superior court.

What governs what an inferior court is the nature of the jurisdiction that it exercises and nothing more.

All courts that do not apply the common law do not have original and inherent jurisdiction, exercise limited and specified jurisdiction, and are inferior courts.

The superior courts of this country are the Constitutional Court, the High Court, and the Supreme Court. All other courts are inferior and\or subordinate to these courts. All courts which are not superior courts are inferior courts.

The High Court, being a superior court of original and inherent jurisdiction, is empowered to review decisions of inferior courts. In the absence of any law that ousts its jurisdiction, the High Court is entitled to exercise its supervisory and review power over an inferior court.

THE ADMINISTRATIVE COURT

It has already been highlighted that the Administrative Court was created by an Act of Parliament. This was in compliance with the provisions of section 79 of the old Constitution. The court was created by Act No.39 of 1979. The old Constitution did not mention this court by name.

The position with the court was that it was a specialist court dealing with review of decisions of administrative and statutory bodies and dealt only with matters of an administrative nature.

The Administrative Court Act, as created under the old Constitution, was placed in the category of subordinate courts and was subordinate to the High Court and Supreme Court and was therefore an inferior court.

Its decisions and proceedings were, in terms of section 26 and 27 of the High Court Act, reviewable by the High Court.

The Administrative Court is now specifically provided for in the new Constitution. Section 173 of the Constitution reads as follows;

“173 Administrative Court

(1) The Administrative Court is a court of record and consists of —

(a) A Judge President; and

(b) Such other judges of the Administrative Court as may be appointed from time to time.

(2) The Administrative Court has such jurisdiction over administrative matters as may be conferred upon it by an Act of Parliament.

(3) An Act of Parliament may provide for the exercise of jurisdiction by the Administrative Court and for that purpose may confer the power to make rules.”

The Administrative Court has jurisdiction over administrative matters only. Its jurisdiction remains the same as that under the old Constitution and may be provided for by an Act of Parliament.

The Administrative Court is now a court of record.

The Constitution does not specifically list it as one of the courts that are subordinate to the High Court.

A notable achievement is that the court is now specifically provided for in the new Constitution by special reference to it. Its jurisdiction as well as its composition is specified. However, nothing has been gained with regards the jurisdiction of the court.

Faced with this information, the court will now resolve whether the Administrative Court is an inferior court whose proceedings are reviewable by the High Court.

The Constitution does not define what an inferior court is nor does it describe the Administrative Court as an inferior court.

A breakdown of the provisions that establish the courts and govern the powers and jurisdiction conferred upon each court reveals the status of each court. In order to discern whether this court is an inferior court one has to scrutinise its jurisdiction.

The Administrative Court is a specialist court with limited and specified jurisdiction. It deals with administrative matters only. Specifics of its jurisdiction are outlined by the Administrative Court Act and enabling statutes that confer jurisdiction on the court. It is generally a statutory court and its jurisdiction is limited to the four corners of enabling statutes. It mainly deals with applications, appeals, and reviews emanating from decisions of administrative and statutory bodies.

The Administrative Court does not have original and inherent jurisdiction and does not apply the common law. The Constitution does not define it as a superior court. There is no provision in the Administrative Court Act or its Rules that ouster the review jurisdiction of this court in administrative matters.

A presumption exists, when interpreting statutes, against the ouster of this court's jurisdiction unless it is specifically ousted by statute: see Martin Sibanda and Anor v Benson Chinemhute and Anor HH131-04 where the court held that this court guards jealously its inherent jurisdiction and that the rationale is to ensure access to justice.

Similar sentiments were expressed in Chawora v RBZ HH59-06.

The High Court can do anything that it is not prohibited by law to do whilst the Administrative Court can only do that which it is empowered by the law to do.

Where the jurisdiction of the High Court is not specifically ousted, the court may, in terms of its inherent jurisdiction, found jurisdiction in order to ensure access to justice to litigants.

This narrative leaves no doubt in my mind that the Administrative Court falls squarely within the four corners of an inferior court, and, consequently, its decisions and proceedings are subject to review by the High Court in terms of section 26 of the High Court Act.

COURT OF RECORD

The respondent submitted, that, the Administrative Court is a court of record whose proceedings are subordinate only to the Supreme Court.

No authorities were cited in support of that proposal.

The word 'record' connotes a permanent inscription of the proceedings. That is the ordinary grammatical meaning.

Only the High Court and Supreme Court were described as superior courts of record in the old Constitution. The current Constitution now describes the Administrative and Labour Courts as courts of record.

This, in my view, does not reveal that the legislature intended that the status of the court be uplifted to that of a superior court.

The Constitutional Court, Supreme Court, and High Court remain the only superior courts of record and superior courts.

There is nothing magical about a court being a court of record.

The fact that it is a court of record does not make it a superior court. Moreover, the Administrative Court is not described as a superior court of record.

What is clear is that the Administrative Court is not at the same level as the High Court which is a superior court of record. It remains an inferior court to the High Court, placing its proceedings within the ambit of section 26 of the High Court Act.

Section 174(c) of the Constitution makes provision for the establishment of other courts and tribunals subordinate to the High Court.

The Administrative Court is not a superior court, but an inferior court subordinate to the High Court. It is not at the same level as the High Court.

The use of the word 'other' in the provision seems to me to imply that the legislature intended to leave room for the creation of other subordinate courts to be established by Acts of Parliament. They were not closing the door to the creation of other subordinate courts. The provision does not exclude the Administrative Court from the category of inferior courts. The Administrative Court remains an inferior court on the basis of its limited jurisdiction. The reference to it being a court of record does not make it a superior court.

In the ordinary run of things, this would be an appropriate case for this court's exercise of its review powers.

HH656-14 : DERDALE INVESTMENTS (PVT) LTD vs ECONET WIRELESS (PVT) LTD and THE CITY OF HARARE and HONOURABLE JUSTICE MANDEYA
Ruled By: DUBE J

The High Court's power of review over inferior courts is similar to that exercisable by the Supreme Court: see Kwaramba v The Honourable Justice Bhunu SC46-12.This power derives from sections 17(h) and 25 of the Supreme Court Act [Chapter 7:13] which give the Supreme Court similar powers of review as ...

HHH63-21 : ROBERT GUMBURA B157/21 and BLESSING CHIDUKE B136/21 vs THE STATE
Ruled By: CHITAPI J

The above two applications have been consolidated only for purposes of preparing one judgment that disposes of both applications.

The motivation for the consolidation is based upon the considerations that both applicants are co-accused in case no. Harare Magistrates Court CRB4105–4113/15 wherein they were arraigned for trial with six other co-accused. They are also co-applicants with their co-accused in case no. HC4098/19 wherein they seek a review of the criminal proceedings.

The applicants and their co-accused were charged with three offences. These are;

“Count 1: Attempt to escape from lawful custody (as defined in section 189(6) as read with section 185(1)(b)(4) of the Criminal Law Codification and Reform Act [Chapter 9:23].

Count 2: Incitement in aggravating circumstances in relation to malicious damage to property or negligently causing serious damage to property (as defined in section 187(i)(b) as read with sections140 and 143(a)(i)(ii) or (b) (of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. Alternatively; Conspiracy in aggravating circumstances in relation to malicious damage to property or negligently causing serious damage to property (as defined in section 188(1)(b) as read with section 143(a)(i)(ii) or (b) (of the Criminal Law (Codification and Reform) Act [Chapter 9:23].

Count 3: Incitement to assault or resist a peace officer as defined in section 187(10)(b) as read with section 176 of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. Alternatively: Conspiracy to assault or resist a peace officer as defined in section 188(1)(b) as read with section 143(a)(i)(ii) or (b) of the Criminal Law (Codification and Reform) Act [Chapter 9:23.].”

The brief background to the charges was that the applicants and their co-accused were convicts and inmates at Chikurubi Maximum Security Prison - and they remain so. It was alleged, that, on 13 February 2015, the inmates, with the applicant, Robert Martin Gumbura, as leader, incited other inmates to protest the quality of food which they were being fed on at the prison.

He allegedly incited the prisoners to protest by singing and hitting cell bars - which they did the whole night.

A month later, on 13 March 2015 the applicants and their co-accused revived the food protests leading to inmates being disorderly, and, in the process, damaging property resulting in prison officers firing warning shots in an endeavor to restore order.

Some officers were injured in the process.

It was also alleged that the applicant and co-accused attempted to escape from prison. Some prisoners were shot and some died.

When the applicants and the co-accused appeared before the Magistrates Court for trial, they pleaded not guilty on 3 September 2015 and trial commenced. The trial progressed in fits and starts owing to logistics and challenges of conducting a trial with several accused persons. One accused would fall ill or be indisposed and trial would stall.

The trial progressed until the State closed its case.

The applicants and the co-accused applied for their discharge at the close of the State case.

The application failed.

They were dissatisfied with the dismissal of the application. They filed an application for review of the decision to dismiss their discharge application. That application was argued before me on 22 January 2020. I reserved judgment, and, though judgment has delayed owing to a heavy workload and voluminous records to be received, the same should be available inside this first term.

The applicants have applied for bail pending the determination of the review application.

In the case of applicant Robert Martin Gumbura, he attached the record of the Magistrates Court proceedings and a transcript of submissions in argument presented before me in the application for review.

The application by applicant Blessing Makomborero Chiduke did not have a record attached to it.

I should mention that Blessing Makomborero Chiduke appeared before CHINAMORA J in Bail Court on 9 February 2021. His record was referred to me because I already had heard a similar application by Gumbura on 4 February 2021 and had reserved judgment thereon.

On receiving the record for Blessing Makomborero Chiduke, and noticing that his application was circumstantially similar to Gumbura's I resolved to deal with the application in chambers in terms of the Chief Justice's direction which allows for such a course.

I was also comfortable to deal with the application on the papers without calling upon the applicant to appear before me because there are no factual matters in contention. The prayers sought by the applicants are, in any event, to be answered on a question of law.

The question to be answered is; whether or not I have competent or valid applications before me. I must answer the question on whether or not it is permissible to grant bail pending the determination of the review application.

The applicants' applications were instituted as a court application for review in terms of Order 33 Rule 256 of the High Court Rules 1971. Rule 256 provides as follows:

“256 Review proceedings by notice of motion

Save where any law provided, proceedings to bring under review the decision or proceedings of any inferior court, or of any tribunal, board or officer performing judicial, quasi-judicial, or administrative functions, shall be by way of court application directed and delivered by the party seeking to review such decision or proceedings to the magistrate, presiding officer or chairman of the court, tribunal or board or to the officer as the case may be and to all interested parties.”

Rule 256 derives from the general power of review which is reposed in the High Court by section 26 of the High Court Act [Chapter 7:06] which provides as follows:

“26 Powers to review proceedings and decisions

Subject to this Act, and any other law, the High Court shall have power to review all proceedings and decisions of all inferior courts of justice, tribunals, and administrative authorities within Zimbabwe.”

Sections 27, 28 and 29, respectively, provide for the grounds of review, powers of the court upon a review of civil proceedings, and, last, powers of the court on review of criminal proceedings.

The observation which requires emphasis is that Part V of the High Court Act, which provides for the High Court's power of review, does not deal with nor refer to the liberty status of the applicant pending criminal review instituted by the accused person.

It is trite that the institution of review proceedings does not suspend the proceedings whose reveiw is sought.

Where a review of proceedings is sought in the course of the trial, the trial proceeds unless a stay of proceedings pending review is granted by the court.

It is for the record noted that the continuation of the trial of the applicants, and their co-accused, stands stayed pending review.

In regard to whether or not it is open to the applicants in this case to apply for bail pending review, the starting point is therefore to acknowledge that the High Court Act, in so far as it provides for powers, procedures, and orders which can be made on review, does not provide that bail may be applied for pending review.

If such an application may be made, then, it would have to be by reference to some other statute or law.

Applicant Gumbura based his application on the provisions of section 123(2) of the Criminal Procedure and Evidence Act [Chapter 9:07].

The reference to subsection (2) of section 123 of the Criminal Procedure and Evidence Act aforesaid is an obvious error because that sub-section simply provides that the provisions of section 117 and 117A shall mutatis mutandis apply to applications made in terms of section 123 of the Criminal Procedure and Evidence Act.

Section 123(1)(a) and (b) of the Criminal Procedure and Evidence Act is relevant to the determination I must make in regard to applicant Gumbura. The provisions thereof read -

“Power to admit to Bail Pending Appeal or Review

1. Subject to this section, a person may be admitted to bail or have his bail conditions altered -

(a) In the case of a person who has been convicted and sentenced, or sentenced by the High Court, and who applies for bail;

(i) Pending the determination by the Supreme Court of his appeal; or

(ii) Pending the determination of an application for leave to appeal or for an extension of time within which to apply for such leave by a Judge of the Supreme or High Court;

(b) In the case of a person who has been convicted or sentenced by a Magistrates Court and who applies for bail -

(i) Where the record of a case is required or permitted, in terms of section 57 or 58 of the Magistrate Court Act [Chapter 7:10] to be transmitted for review; pending the determination of the review; or

(ii) Pending the determination by the High Court of his appeal: or

(iii) Pending the determination of an application for leave to appeal or for an extension of time within which to apply for such leave by a Judge of the High Court or by any magistrate within whose area of jurisdiction he is in custody.”

The provisions of section 123 of the Criminal Procedure and Evidence Act therefore do not apply to an accused who is in the shoes of the two applicants who are not yet convicted and sentenced.

Applicant Gumbura's application, to the extent that he bases it on the provisions of section 123 of the Criminal Procedure and Evidence Act is not provided for and therefore an incompetent application. It must be struck off the roll.

Applicant, Chiduke's application somewhat sits on a different footing.

He has headed it an appeal against the denial of bail pending trial.

The applicants' trial is not pending. It commenced.

Bail pending trial is applied for by an accused whose trial is yet to commence.

The proceedings of the applicants' trial are on review at the instance of the applicant and his co-accused.

The application by applicant Chiduke, which purports to be an appeal, must be struck off the roll.

It is noted that the provisions of section 121(1)(b) of the Criminal Procedure and Evidence Act provides that accused whose bail has been refused by a magistrate or Judge may, at any time, appeal to the High Court or Supreme Court Judge, as the case may be, against the refusal or in relation to any bail condition.

Technically speaking, the applicant herein can therefore note an appeal against the refusal by the magistrate to admit him to bail. However, the appeal would have to be based on the record of proceedings as at the date of the decision appealed against. At that stage, the applicant had not yet been tried.

That position has been overtaken by events. Applicant Chiduke can only now apply for bail in the course of trial. Different considerations will apply because the prospects of conviction or acquittal have to be considered.

The applicants appeal is therefore academic.

There is yet another reason why the appeal or application of Blessing Makomborero Chiduke is incompetent.

It does not comply with Rule 6(1)(f) of the High Court Bail Rules 1991 which provides that; “where the appeal is brought against the refusal by a magistrate to grant bail,” the appeal should additionally provide details of;

“(i) The grounds on which it (bail) was refused if the grounds are known to the applicant; and

(ii) The date on which it was refused.”

Applicant Chiduke did not provide a copy of the bail judgment appealed against nor the transcript. The appeal cannot be determined in the air. The appeal is therefore not in order.

The applicant filed the appeal precipitately before putting his house in order. There is no valid appeal before the court for reasons I have alluded to and the purported application must be struck off the roll.

The two applications are therefore disposed as follows: IT IS ORDERED THAT:

(a) Both applications, case nos. B157/21 and B136/21 are each struck off roll.

HHB14-15 : THE STATE vs ZONDIWE NCUBE
Ruled By: TAKUVA J and MUTEMA J

This matter was placed before me in terms of section 57(1)(b) of the Magistrates' Court Act [Chapter 7:10].

The facts are that the accused was charged with and convicted of contravening section 114(2)(b) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] (stock theft).

It was alleged in the summary jurisdiction, that, on a date unknown to the prosecutor, but during the month of February 2013, and at Plot 10 Egypt, Inyathi, Zondiwe Ncube unlawfully and intentionally took four heifers, the property of Mnkandla Mbokodo, either intending to permanently deprive him of his ownership, possession, or control or realizing that there is real risk or possibility that she may so deprive Mnkandla Mbokodo of his ownership, possession, or control.

The circumstances, as outlined by the State, are that the complainant is the accused's brother. On 3 November 2012, the complainant bought six heifers from one Morros Mguni. Subsequently, on a date unknown to the prosecutor, but during the month of February 2013, the complainant tasked the accused person to transport the cattle from Plot 10 Egypt, Inyathi to Plot 13 Esimnyangeni, Shangani. Instead, the accused person transported four heifers to Kennilworth Resettlements, Inyathi without the knowledge of the complainant.

The four heifers are valued at $1,600 and they were not recovered.

The accused appeared before a magistrate and pleaded guilty. She was found guilty as charged and sentenced to 15 years imprisonment after the court made a finding that there were no special circumstances. All the essential elements of the charge were put and admitted by the accused.

However, in mitigation the accused said, “I took the cattle with an intention to recover a debt owed by the complainant.”

Further, during the inquiry into whether or not special circumstances exist, the accused stated; “The complainant owed me $1,454 and I thought of recovering my money from the cattle. My brother (complainant) kept on changing goal posts.”

It has been said time and again that there is an inherent danger of convicting persons upon guilty pleas. This is so because this procedure may result in injustice if not properly followed.

It is true that before acting on a plea of guilty the court must be satisfied that the admission of guilt is genuine, unqualified, and unequivocal. Put differently, the court must be satisfied that the accused is guilty in fact and in law: see S v Chirodzero HH14-88 and S v Kawocha SC22-92.

In respect of property crimes, such as theft, robbery, or malicious damage to property, the court should always investigate whether the accused committed the crime under any sort of claim of right.

A claim of right is a “decently clothed” ignorance or mistake of law.

Such an ignorance or mistake of law is said to be decently clothed where the accused either knows or suspects that his actions would normally be illegal but due to some extraneous factual basis, he believes that his actions will not be unlawful in present circumstances.

Where there is doubt as a result of this defence, the court should alter the plea to one of not guilty in order to determine the contentious issues.

The rationale for this principle is to ensure that there is a fair trial especially where an accused is unrepresented and/or where the case involves a mandatory minimum sentence.

On a charge of stock theft, a defence of claim of right must be sufficiently investigated: see S v Kawocha SC22-92.

In casu, the accused's explanation amounts to an extraneous factor that made her believe that her actions will not be unlawful. This defence should have been investigated and a plea of not guilty entered.

It was not, and that is a misdirection.

Consequently, the proceedings are not in accordance with real and substantial justice. The conviction is quashed and the sentence set aside. The matter is remitted to the Magistrates' Court for a trial upon a plea of not guilty.

SSC46-12 : CHARLES KWARAMBA vs THE HONOURABLE MR JUSTICE BHUNU N.O.
Ruled By: CHIDYAUSIKU CJ

The legal practitioners representing Mr Charles Kwaramba (hereinafter referred to as "the applicant") placed before the Registrar of this Court the following letter:"REQUEST FOR DIRECTIONSWe act on behalf of Mr Charles Kwaramba at whose instance we write. Mr Kwaramba, who is a legal practitioner and an officer of this Court, ...

The legal practitioners representing Mr Charles Kwaramba (hereinafter referred to as "the applicant") placed before the Registrar of this Court the following letter:

"REQUEST FOR DIRECTIONS

We act on behalf of Mr Charles Kwaramba at whose instance we write. Mr Kwaramba, who is a legal practitioner and an officer of this Court, was representing accused persons in the case of Tungamirai Madzokere and 28 Others, Case No. CRB55/12. He applied for bail on their behalf, and, in the judgment dismissing the bail application, the court also made adverse findings against Mr Kwaramba.

A copy of the judgment is attached.

Some time ago we received instructions from Mr Kwaramba to seek a review of the decision as he felt that there were irregularities in the manner the court arrived at the decision affecting him.

As we were preparing the application, we noticed that there is a challenge with regard to review proceedings before the Supreme Court. Section 25(3) of the Supreme Court Act seems to suggest that there is no right to approach the Supreme Court for review as a court of first instance.

However, sections 17(h) and 25(1) of the same Act both seem to confer review powers on the Supreme Court.

In light of the above, we became very averse to filing an application without first seeking the Court's directions on the matter.

We note, however, that, in terms of section 25(3) of the Act, the Supreme Court or a Judge of the Supreme Court can give directions whether a review in the nature of this one can be instituted before it in the first instance.

We attach a draft copy of the application which is intended to be filed.

We therefore request you to kindly place our request before a Judge for directions. We look forward to your urgent attention to the matter."

It would appear to me that two requests emerge from the above correspondence –

(1)...,.

(2) The legal practitioners for the applicant request that a Judge of this Court give directions in terms of section 17(h) or section 25(3) of the Supreme Court Act that a review of this matter be instituted.

Section 17(h) of the Supreme Court Act provides:

"17 Supplementary powers of Supreme Court

For the purposes of this Part, the Supreme Court may, if it thinks necessary or expedient in the interests of justice –
…,.

(h) Exercise any of the powers of review conferred upon the High Court by section 29 of the High Court Act [Chapter 7:06]:…,."

While section 25 of the Supreme Court Act provides:

"25 Review powers

(1) Subject to this section, the Supreme Court, and every judge of the Supreme Court, shall have the same power, jurisdiction and authority as are vested in the High Court, and judges of the High Court, respectively, to review the proceedings and decisions of inferior courts of justice, tribunals, and administrative authorities.

(2) The power, jurisdiction, and authority conferred by subsection (1) may be exercised whenever it comes to the notice of the Supreme Court, or a judge of the Supreme Court, that, an irregularity has occurred in any proceedings or in the making of any decision notwithstanding that such proceedings are, or such decision is, not the subject of an appeal or application to the Supreme Court.

(3) Nothing in this section shall be construed as conferring upon any person any right to institute any review, in the first instance, before the Supreme Court or a judge of the Supreme Court, and provision may be made in rules of court, and a judge of the Supreme Court may give directions, specifying that any class of review or particular review shall be instituted before or shall be referred or remitted to the High Court for determination."...,.

As regards the second request, applications for directions are made by way of Chamber Application.

It is inappropriate to do so by way of a letter addressed to the Registrar of this Court for placement before a Judge of this Court.

I will, however, overlook that inadvertence and deal with this request for directions as if it has been made by way of a Chamber application, hence this judgment.

I have considered the request for directions and concluded, that, on the facts of this case, it is not competent for a Judge of this Court to issue directions for the review of a High Court judgment in terms of section 25 of the Supreme Court Act: see Chairman, Zimbabwe Electoral Commission and Anor v Bennett and Anor 2005 (2) ZLR 296 (S); and Nherera v Kudya N.O. 2007 ZLR 253 (S).

The background facts to this request are as set out by the applicant in his proposed Court Application for Review. The proposed Court Application for Review is attached to the letter to the Registrar.

The following are the facts:

The applicant is a legal practitioner practising law in Harare in partnership with others under the name and style of Zimbabwe Lawyers for Human Rights. He was one of the legal practitioners representing accused persons who are accused of murdering a police officer in June 2011. He is one of a team of about four legal practitioners representing about twenty-nine accused persons.

The trial of the accused persons commenced on 4 June 2012 in the High Court.

The applicant, on behalf of the accused persons, made a bail application, which the State opposed. The court, presided over by MR JUSTICE BHUNU, reserved its judgment. The trial continued while awaiting judgment on the bail application.

The incident that gave rise to this application for directions then occurred.

It would appear, that, while awaiting judgment on the bail application, there was an article in the Daily News newspaper stating the following:

"Human rights lawyer, Charles Kwaramba, who is representing the 29 MDC activists, said the law is not being applied fairly. It just goes on to show that there is no equal application of the law. This is a classical example. Here we have police officers who are supposed to protect the people being accused of murdering a civilian for a dollar. On the other hand, we have 29 civilians who have been in prison for over a year now, being accused of killing a cop. So far there is no evidence that points at them, but the speed of arrests shows that the police wanted to arrest them because they are MDC. There were no investigations when the 29 were arrested. One wonders how the Shamva cops (got) $50 bail each in a murder case while the 29 activists are failing to get the same even when there is no evidence. Kwaramba said the moment that a person is labelled MDC justice is politicised."

The newspaper article, by use of quotation marks, purports to quote the applicant as the origin of the above remarks.

The applicant admits that he was asked to comment on the manner in which the wheels of justice were turning in the matter. He also admits that he expressed disappointment at the lengthy stay of his clients in remand prison. He contends that any other lawyer would have felt the same.

The applicant's stance, on the Daily News article, is contained in paragraphs 4.6 to 4.12 of the founding affidavit of his proposed Court application. He states the following:

"4.6 I then made the bail application which the State opposed. The court reserved its judgment. The trial went on while awaiting judgment on the bail (application). The incident which gave rise to these allegations then occurred.

4.7 It is true that there was an article in the Daily Newspaper stating what the Honourable Judge repeated at page 3 of his (cyclostyled) judgment.

4.8 It is also true that the article quoted lawyers including Dewa Mavhinga and myself.

4.9 It is true that I was asked to comment (on) the manner that the wheels of justice were turning in the matter. It is true that I expressed disappointment at the lengthy stay of my clients in remand prison. I do not think any lawyer could have felt otherwise.

4.10 It is true that I was invited to make a comparison of our case with the Shamva case. I declined the invitation indicating that I did not know much about that case but commented that if the cases were similar then like-accused must be treated alike as this is the position of the law. In fact, I got much of the details of the Shamva case from the interviewing journalist. I did not know about it. I did not even know much about the circumstances of the murder.

4.11 So, while the article contained some correct information, it also contained inaccuracies. Statements such as 'THE LAW IS NOT BEING APPLIED FAIRLY' (and) 'THERE IS NO EQUAL APPLICATION OF THE LAW'' were wrongly attributed to me. I deny using these words.

4.12 Although the article was, to some extent, true, it contained several inaccuracies, which inaccuracies probably created the wrong impression in (the) minds of readers including the Honourable Judge."

The learned Judge, disturbed by the above article, summoned all the legal practitioners in the matter to his Chambers on the Monday following publication of the article.

In his Chambers, he expressed his concern over the contents of the article and asked the legal practitioners to comment on the issue.

The applicant indicated to the learned Judge that the article was inaccurate and that there was no intention whatsoever on his part to attack the court or make adverse comments. He tendered his apology to the respondent if the wrong impression had been created. He advised the respondent that newspapers were notorious for writing stories with a twist that sold papers. In short, the applicant alleged that the newspaper had misquoted him or misrepresented him.

He assumed that the matter had been resolved.

However, on 19 June 2012, the court delivered its judgment in the bail application. In the course of that judgment, the learned Judge castigated the applicant for his communication with the newspapers. The learned Judge has this to say at pp 2-4 of the cyclostyled judgment:

"There has been, however, an unfortunate development in this trial in that one of the defence team of lawyers, Mr Kwaramba, instead of adducing the required evidence according to law, has now decided to play to the gallery and the press in a bid to secure the release of his clients without complying with the law by demonising and attacking the dignity and integrity of this Court and the Judiciary of this country in general.

He is quoted in an article in the Daily News on Sunday of June 10 (2012) at p4 as follows:

'Human rights lawyer, Charles Kwaramba, who is representing the 29 MDC activists, said the law is not being applied fairly. It just goes on to show that there is no equal application of the law. This is a classical example. Here, we have police officers who are supposed to protect the people being accused of murdering a civilian for a dollar. On the other hand, we have 29 civilians who have been in prison for over a year now, being accused of killing a cop. So far, there is no evidence that points at them, but, the speed of arrests shows that the police wanted to arrest them because they are MDC. There were no investigations when the 29 were arrested. One wonders how the Shamva cops (got) $50 bail each in a murder case while the 29 activists are failing to get the same even when there is no evidence. Kwaramba said the moment that a person is labelled MDC justice is politicised.'

With respect, Mr Kwaramba's remarks cannot reasonably be true.

They are being made at a time when the very same police he is attacking have arrested ZANU PF activists in Mudzi for allegedly murdering an MDC member in politically motivated violence. They have since been denied bail by this very Court: see David Chimukoko and Others v The State HH254-12.

It is a well documented truth, and our Court records and law reports are replete with MDC members charged with treason or murder, including its leader, who owe their lives to this very Court that Mr Kwaramba has the audacity to publicly demonise and denounce as an enemy of the MDC.

This is not to mention countless others charged with various offences, including fraud and insulting the President, who also owe their freedom to the very Judiciary that Mr Kwaramba seeks to demonise and portray as being partisan and biased against the MDC. See:

1. State v Sonny Nicholas Masera HH50-04;

2. S v Tsvangirai & Ors 2003 (2) ZLR 88;

3. S v Tsvangirai 2004 (2) ZLR 210;

4. The State v Roy Leslie Bennett HH79-10;

5. The Attorney-General v Roy Leslie Bennett SC07-11;

6. The State v Elton Mangoma HH136-11.

Just to mention but a few.

This Court's mission is to dispense world class justice to all manner of people without fear or favour.

Right now, as I speak, the MDC President is busy defending, in the Supreme Court, this Court's landmark judgment issued in his favour against his arch rival, the President of ZANU PF and Zimbabwe.

That puts to shame Mr Kwaramba's ill-conceived, malicious remarks in the press bent on bringing the due administration of justice into disrepute.

Mr Kwaramba deliberately misrepresented the facts and the law to mislead gullible members of the public, and the press, when he launched that caustic, inflammatory, but baseless attack on the Bench and the Judiciary in general.

The simple answer to his insincere, rhetoric question is that Parliament has decreed that where a person is alleged to have killed a law enforcement officer, and in this case a policeman, the Court is prohibited from granting the accused bail until such time he or she has adduced evidence, to the Court's satisfaction, establishing the existence of special circumstances justifying his (or her) release.

The same considerations do not apply to a person or police officer who is alleged to have killed any person other than in circumstances falling under section 117(6) of the Act."

The learned Judge further stated in his judgment, at pp 4-5:

"In his demonisation of the Judiciary, Mr Kwaramba was well aware that the Shamva case was different from this case.

This explains why, in all his lengthy addresses and submissions in open court, he never mentioned the Shamva case or sought to draw any similarities between the two or any other case because he knew that they were different and that different legal considerations applied.

In judgment number HH182-12, I took the trouble to draw his attention to section 117(6) and to explain its legal implications to his apparent satisfaction such that he abandoned his ill conceived bid to appeal against my order inviting him to comply with the legal requirements prescribed by law.

Having failed to take refuge in the Supreme Court, he now seeks solace in the media and gullible members of the public together with some obscure self-styled, shallow minded, if not bogus lawyers whom I have never encountered at the courts in my 31 years in the Judiciary.

For him to then turn around, attack, and denigrate this Court on the basis of a case reference and arguments he never advanced in open court so that they could be subjected to legal scrutiny smacks of dishonest, slanderous, contemptuous, and unethical conduct on his part."

The learned Judge, after an analysis of the facts, and applying the law to the facts, dismissed the bail application.

The applicant objects to the learned Judge's remarks on four grounds, set out in the proposed court application for review, namely -

"1. There are/were gross irregularities in the proceedings or decision.

1.1 The applicant was not given an opportunity to be heard.

1.2. The findings against the applicant were made in a case in which he was not a party.

1.3 The applicant's rights to the protection of the law and to legal representation were violated.

1.4 The respondent's findings were not borne out by the facts before him."

It is on the basis of these facts that I am now requested to give directions, in terms of section 25(3) of the Supreme Court Act that a review be instituted or the matter be referred or remitted to the High Court for determination.

Before a Judge of the Supreme Court issues directions in terms of section 25(3) of the Supreme Court Act, he or she has to be satisfied of the existence of an irregularity that needs determination or correction which has occurred.

Generally speaking, an irregularity occurs when a judicial officer takes into account factors that he should not take into account or fails to take into account factors he should take into account in the process of the making of a determination the judicial officer is seized with.

An irregularity also occurs where the law is misapplied or an incorrect procedure is followed.

The court a quo was seized with a bail application. The learned Judge had to determine whether or not bail should be granted.

There is no allegation, that, in making the determination to grant or refuse bail the learned Judge took into account wrong factors or failed to take into account factors which he should have taken into account.

No misdirection in the determination of the bail application is alleged. Put differently, no irregularity is alleged in the determination of the bail application.

The remarks complained of by the applicant were obiter and were not part of the ratio decidendi of the determination of the bail application.

Sections 17(h) and 25 of the Supreme Court Act confer concurrent review jurisdiction on the Supreme Court with the High Court over inferior tribunals.

What this means is that a Supreme Court Judge, in the exercise of jurisdiction conferred by sections 17 and 25 of the Supreme Court Act, has the same review jurisdiction as a High Court Judge.

A Judge cannot order the review of a judgment of another Judge of the same jurisdiction.

Thus, from a jurisdictional standpoint, the request is not competent: see Chairman, Zimbabwe Electoral Commission and Anor v Bennett and Anor 2005 (2) ZLR 296 (S); and Nherera v Kudya NO 2007 ZLR 253 (S).

SC60-21 : LEATHOUT INVESTMENTS (PVT) LTD vs FUTURE MUVIRIMI and PETRONELLA MUVIRIMI
Ruled By: GOWORA JA, PATEL JA and BERE JA

The parties herein are engaged in various wrangles in the Magistrates Court and the High Court. The wrangles have seen the parties file complaints of alleged criminal activities against each other.

In this appeal, the dispute relates to immovable property.

On 2 April 2014, the appellant caused summons to be issued out of the High Court wherein it sought the eviction of the respondents, who are husband and wife, from the immovable property described as 69 Glenara Avenue, Highlands, Harare. The appellant averred therein that it was the registered owner to the property and that the respondents were in occupation of the same. The appellant alleged that their occupation was without its consent.

The respondents opposed the claim for their eviction.

They filed an exception on 14 May 2014. This was followed up with a special plea filed on 16 May 20104.

In the exception, the respondents challenged the appellant's claim of ownership in the immovable property described above. The same defence was raised in the special plea.

On 27 June 2014, the respondents filed a plea on the merits.

The substance of their defence was to challenge the appellant's claim to ownership of the property in question. They alleged that the registration of title was marred by fraud. They denied that the appellant had a legal and enforceable right to claim their eviction from the property in question.

On 20 November 2015, the parties jointly filed a special case with the registrar of the High Court.

A hearing for the determination of the Special Case was convened before a judge on 3 February 2017.

The Special Case was not heard or determined.

The respondents filed a chamber application for directions, which was heard on 22 February 2017.

On 29 November 2017, the court issued a judgment in which it ordered as follows:

“1. Case Number HC2741/14 shall proceed to hearing as a stated case, subject to the directions given in paras 2 to 7 of this order.

2. The applicants be and are hereby granted leave to lead evidence at the hearing of the stated case to deal with facts relevant to the central issue of the existence or otherwise of valid title for the purposes of the action of rei vindicatio.

3. The applicants shall have the duty to begin.

4. The respondent shall, if it so wishes, be entitled to lead evidence in rebuttal.

5. The respondent shall, if it elects to lead evidence in rebuttal, file a detailed statement of the evidence intended to be led, the witnesses to be called, and a bound and paginated bundle of documents, if any, upon which reliance will be placed. This paragraph shall be complied with at least five clear court days prior to the set down date of the special case.

6. The parties shall address the court on the factual and legal issues involved as provided for by the rules and practice of this court relating to closing submissions at the close of an action.

7. No order as to costs.”

The appellant was aggrieved by the grant of the order aforementioned, and, with the leave of the High Court, has noted an appeal on the following grounds:

“1. The court a quo erred in not coming to the conclusion that the only application for directions made was one made orally and a fortiori invalidly made and stood to be dismissed on that basis.

2. The court a quo erred in coming to the conclusion that a stated case could have its character changed pursuant to the application for directions, however made, and so erred in failing to consider the true nature of the written application belatedly placed before it.

3. The court a quo erred further in coming to the conclusion that any cause existed for respondents to depart from the stated case and so erred in concluding that it had a discretion over the matter.

4. The court a quo erred in directing that the trial proceeds in terms of a course which is unavailable at law and is inconsistent with the nature of a stated case.

5. The court a quo erred at any rate in concluding that there was a dispute of fact and that the respondents had raised a defence worth interrogating in a trial cause.”

ISSUES FOR DETERMINATION

Although the appellant has set out five grounds, only three issues arise;

(i) First, whether or not an oral application for directions was made and considered by the court;

(ii) Secondly, whether or not the court ought to have declined to hear the chamber application as not being properly before it; and

(iii) Last, whether the court a quo misdirected itself in granting the order for directions which was in direct contradiction of the Stated Case.

I will proceed to consider each of the issues ad seriatim....,.

Although the fact of title being in the appellant's name was admitted, there was an issue as to the legality of that title, with an allegation of fraud attaching to such registration.

The main issue for determination by the court was whether or not ownership of the immovable property was in dispute.

This has to be considered against a statement on the agreed facts to the effect that the defendants primary defence to the rei vindicatio was an allegation that the plaintiff's ownership of the property was tainted with fraud and irregularity, which the plaintiff disputed and believed to be irrelevant in the determination of the matter....,.

WHETHER THE COURT MISDIRECTED ITSELF IN GRANTING THE ORDER FOR DIRECTIONS

A Stated Case, or Special Case, is provided for in the rules of court, High Court Rules 1971. Order 29 of the Rules is pertinent and provides:

“ORDER 29

SPECIAL CASES

199 Special case by consent

(1) The parties to a civil action or suit may, after summons has been issued, concur, in a statement, of the questions of law arising therein in the form of a special case for the opinion of the court.

(2) Every such special case shall be divided into paragraphs numbered consecutively, and shall concisely state such facts and documents as may be necessary to enable the court to decide the questions raised thereby.

(3) Upon the argument of such case, the court and the parties shall be at liberty to refer to the whole contents of such documents, and the court shall be at liberty to draw from the facts and documents stated in any such special case any inference, whether of fact or law, which might have been drawn therefrom if proved at a trial.

200 Special case by order before trial

If it appears to the court that there is, in any cause or matter, a question of law which it would be convenient to have decided before any evidence is given or any question or issue of fact is tried, the court may make an order accordingly and may direct such question of law to be raised for the opinion of the court, either by special case or in such other manner as the court may deem expedient, and all such further proceedings as the decision of such question of law may render unnecessary may thereupon be stayed.

201 Special case to be typewritten, etc.

Every special case shall be typewritten or printed by the plaintiff and signed by the several parties or their counsel, and shall be filed by the plaintiff. If the registrar so requests, one or more copies of the special case shall be filed for the use of the court.

202 Special case affecting person under disability

If a minor, or person of unsound mind, is a party to such proceedings, the court may, before determining the questions of law in dispute, require proof that the statements in such special case, so far as concerns the minor or person of unsound mind, are true.

203 Judgment and directions regarding other issues

When giving its decision upon any question in terms of this Order, the court may give such judgment as may upon such decision be appropriate and may give any direction with regard to the hearing of any other issues in the proceedings which may be necessary for the final disposal thereof.

204 Judgment without hearing evidence

If the question in dispute is one of law, and the parties are agreed upon the facts, the facts may be admitted and recorded at the trial and the court may give judgment without hearing any evidence.”

The procedure provided for in the above Rules is available to parties to a civil dispute.

The parties must agree on the undisputed facts. The provisions are available when there is no dispute on the facts. It is meant for situations where only questions of law are in contention.

The uniform rules of South Africa contain provisions that are substantially similar to our own.

In Bane v D'Ambrisio 2010 (2) SA 539 (SCA), the court had to consider what meaning was to be ascribed to the phrase 'stated case'. At 543E-G, the court remarked:

“Rules 33(1) and 33(2) make it clear that the resolution of a stated case proceeds upon the basis of a statement of agreed facts. It is, after all, seen as a means of disposing of a case without the necessity of leading evidence. The case drafted by the parties, with both of them reserving their positions with regard to the factual assumptions, was plainly contrary to the basic object of the rule and the procedure of asking the court to rule on issues thus defined was tantamount to asking the court to give advice on possibly abstract questions.”

It is trite that a statement in a Special Case must set forth the facts agreed upon, the question of law surrounding the dispute, and the issue for determination by the court.

In this jurisdiction, the locus classicus on the requisites of a Stated Case is Kunonga v The Church of Central Africa SC25-17, GARWE JA set out the requisites to be the following:

“WHAT IS A STATED CASE?

[14] The rules of court of most countries make provision for the reference of a matter as a stated case.

But, what is a stated case?

It is a case that is brought upon the agreement of the parties who submit a statement of undisputed facts to the court but who take adversarial positions as to the legal ramifications of the facts, thereby requiring a judge to decide the question of law presented (Legal dictionary. The free dictionary.com).

Put another way, it is a formal written statement of the facts in a case, which is submitted to the court by the parties, jointly, so that a decision may be rendered without trial. The facts being thus ascertained, it is left for the court to decide the question of law presented.

A stated case is also called a special case, an amicable action, a case agreed, or a friendly suit (US Legal, Inc.).

[15] In the case of Elizabeth Mambus v Motor Vehicle Accident Fund, Case No. SA 4/2013, a majority decision of the Supreme Court of Namibia, handed down on 11 February 2015, the court noted:

'…, the intention is that the stated case will adjudicate the whole of the dispute as stated in the case that exists between the parties and that this is ideally done by setting out the facts agreed to, the questions of law in dispute, and the contentions of the parties. The parties may also require a court to decide an issue of law on the basis of alleged facts as if agreed.'

[16] The court further cited with approval remarks made by the Irish Supreme Court in Simon McGinley v The Deciding Officer – Criminal Assets Bureau [2001] IESC 49 that:

'The case should set out clearly the judge's findings of fact, and should also set out any inferences or conclusions of fact which he drew from those findings.

What is required in the case stated is a finding by the Judge of the facts and not a recital of the evidence. Except for the purpose of elucidating the findings of fact, it will rarely be necessary to set out any evidence in the case stated save in the one type of case where the question of law intended to be submitted is whether there was evidence before the Judge which would justify him deciding as he did…,. This court should not be required to go outside the case to some other document in order to discover them.

The same principle applies to the contention of the parties, the inferences to be drawn from the primary facts, and the Tribunal's determination. All these must be found within the case - not in documents annexed…,.'

[17] Once the facts are agreed, the court should proceed to determine the particular question of law that arises and not delve into the correctness or otherwise of the facts. It is bound to take those facts as correctly representing the agreed position and to thereafter determine any issues of law that may arise therefrom.

It is not open to the parties to the stated case to seek to re-open the agreed factual position or to contradict such position. Nor can either party seek to ignore existing legal principles or findings of fact made in connection with the same matter by another court.

Of course, either party has a remedy, at common law, to withdraw any concession made in a stated case owing to justus error, fraud, mistake, or any other valid ground.

[18] It has become necessary to restate what a stated case is owing to the fact that in some instances, the appellant, in this case, has made submissions contrary to the stated case brought before the court. The appellant has also ignored, in part, the decision of this Court on which the stated case is predicated.

It bears stating, that, if this happens, a party will be kept strictly to the terms of the agreed facts, as it is on the basis of those facts that the court would have been invited to make a determination on some specific question of law.”

The court a quo relied on Kunonga v The Church of Central Africa SC25-17 in deciding whether or not to grant the application for directions. The learned judge reasoned as follows:

“What, in essence, this Court is being asked to determine is if it can resolve the dispute between the parties based on the stated case.

Para 1.1 of the stated case states that the respondent is the registered owner of the property. In para 1.4 of the special case, the parties recognize that the applicants primary defense to the rei vindicatio is that plaintiff's ownership of the property is tainted with fraud and illegality.

The parties recognize that the applicants have a defence to the claim having filed a challenge to the respondent's title. An attempt to settle the matter failed after the withdrawal of a deed of settlement. The claim has since been re-instituted.

It is not surprising that the stated case has attracted so much controversy. The stated case states two mutually exclusive situations, one of which cannot be correct.

The statement that the plaintiff is the registered owner of the property cannot be accepted on the face of it especially in the face of indications to the contrary in the stated case.

The presumption of ownership can only be rebutted by evidence….,.

Mention is made of a fraudulent power of attorney used to support the transfer.

The stated case records that the respondent disputes the allegations of fraud. The stated case discloses a material dispute of fact over ownership of the property between the parties that cannot be resolved on the papers. The fact that the parties previously agreed that the matter should be dealt with as a special case, in a case where there are glaring material disputes of fact that require to be ventilated at a trial, has no effect of binding the court to such an arrangement.

Resort to the special case procedure for the relief of a rei vindicatio, in the face of the disputes existent on the papers, is inappropriate.

Where a special case discloses substantial disputes of fact, the court cannot simply rubber stamp it and accede to insistence on dealing with the case as a special case because the parties agreed on a statement of agreed facts.

Whenever a material dispute of fact appears on the face of a stated case, which cannot be resolved on the papers filed, that dispute will require full ventilation.

The applicants raise a defense of claim of right.

An allegation of fraud cannot be proved in the absence of the documents allegedly used to commit the fraud. The best course to take is to allow the applicants to call evidence to substantiate their claim of fraud. I am not persuaded by the respondent's argument that the defendants are bound by the stated case.

The stated case does not clearly or correctly articulate the issues to be dealt with.

An issue arises regarding whether the respondent acquired valid title from the applicants. What the parties ought to have done is to request the court to determine who the owner of the property is, hence asking the court to determine the issue of ownership. Instead, the court was asked to determine, “whether or not ownership of the immovable property is in dispute.”

What the court is being asked to do is just to make a declaration regarding the existence of a dispute over the property.

If the court determines that ownership is in dispute - then what? That determination does not dispose of the dispute between the parties.

The court ought to have been asked to resolve the real dispute between the parties.

The issue could have been worded along the following lines: 'whether the respondent acquired valid title from the applicants.' That is the issue disclosed by the agreed facts. This way, the trial court is equipped to make a determination over the ownership of the property and dispose of the dispute.”

The Special Case in casu was set out as follows:

“WHEREAS the plaintiff issued summons and declaration against the two defendants under case number HC2741/14 seeking a rei vindication order against the said defendants, together with costs of suit;

AND WHEREAS the said defendants having been served with the summons, defended the proceedings and filed their Plea of record on 27 June 2014;

AND WHEREAS the plaintiff filed its replication to the said plea;

AND WHEREAS the matter proceeded to a pre-trial conference before the Honourable Mrs Justice Matanda-Moyo;

AND WHEREAS at the pretrial conference the parties agree to proceed by way of a special case;

NOW THEREFORE it is stated that:

1. THE AGREED FACTS

1.1 Plaintiff is the registered owner of the property in dispute, that is, Lot 1 of Stand 21A Oval Park Township measuring 5653 square metres, otherwise known as No.69 Glenara Avenue, Highlands, Harare.

1.2 The defendants had filed a suit, under HC5960/13, challenging, inter alia, the plaintiff's title to the above-named property.

1.3 On 16th March 2015, a Deed of Settlement was executed under 5960/13 in terms of which defendants withdrew their claim against, among others, the plaintiff in respect of the abovenamed property. Find attached as annexure “A” a copy of the Deed of Settlement presented at the pre-trial conference.

1.4 Defendants primary defence to plaintiff's rei vindication is the allegation that the plaintiff's ownership of the property is tainted with fraud and illegality, which the plaintiff disputes and believes is of no relevance to its claim for rei vindicatio.

2. ISSUES FOR DETERMINATION

The parties set out the issues for determination in this matter as follows:

2.1 Whether or not the ownership of the immovable property in issue is in dispute.

2.2 Whether or not, therefore, the plaintiff is entitled to a rei vindicatio order.

3. HEADS OF ARGUMENT

The Parties Counsel agreed and undertook to file heads of argument in respect of their positions on the facts as set out above as follows:

3.1 The plaintiff's heads of argument shall be filed on or before 20 November 2015;

3.2 The defendants heads of argument shall be filed on or before 25 November 2015.”

A Stated Case must set out the facts as agreed by the parties. The facts must not be in contention nor should a material dispute of fact be manifest on the statement constituting the agreed facts.

In this case, the registration of title in the appellant's name is admitted.

The causa for the registration of title and how it came to be is challenged by the respondents ex facie the “agreed facts”. They allege fraud on the part of the appellant and suggest that they wish to defend the action on the premise that the registration of title was illegal.

The definition of a Special Case was spelt out in the South African case of National Union of Mineworkers v Hartebeestfon 1986 (3) SA 53 (AD)…, as follows:

“…,. In none of them is 'special case' defined, presumably because the expression has an accepted meaning. MOZLEY and WHITELY's Law Dictionary, 7th ed says sv 'special case' that it is:

“1. A statement of facts agreed to on behalf of two or more litigant parties, and submitted for the opinion of a court of justice as to the law bearing upon the facts so stated.”

STROUD's Judicial Dictionary 4th ed states that:

“A special case is a written statement of the facts in a litigation, agreed to by the parties, so that the court may decide these questions according to law…,. It is also known as a case stated.”…,.

It is, therefore, implicit in the expression 'in the form of a special case' that there should be a statement of the facts agreed by the parties.”

The appellant has suggested that the procedure “created by the court a quo is unknown at law and cannot produce valid proceedings.” It has sought reliance for that contention on Matanhire v BP Shell Marketing 2005 (1) ZLR 140 (S)…,.

I am unable to agree and I conclude that the reliance on Matanhire v B P Shell Marketing 2005 (1) ZLR 140 (S) in this context is misplaced.

The ratio in Matanhire v BP Shell Marketing 2005 (1) ZLR 140 (S) is to the effect that an application for directions can only be made by a court in respect of a matter that was pending before the court.

In this case, there was a claim for a rei vindicatio pending before the court and the court could entertain an application for directions.

The Rules permit the giving of directions and it is trite that the High Court can do anything except that which the law expressly forbids it to do.

In this case, the Rules permit the court to give directions and that is precisely what the court did.

In this case, however, there is no Statement of Agreed Facts.

The parties have set out their respective positions, with the respondents postulating a defence to the claim for rei vindicatio. The respondents challenged the validity of the appellant's title on allegations of fraud in the registration thereof.

What the parties filed did not comply with the requirements of a Special Case, and, given what the parties themselves set out on the 'Stated Case', I cannot conclude that the learned judge in the court a quo misdirected herself in finding, as she did, that there were material disputes of fact requiring the adduction of evidence.

Evident from the 'stated case' as formulated by the parties was a clear dispute on the facts.

The order gives the respondents leave to deal with facts relevant to the central issue of the existence or otherwise of valid title for seeking relief under rei vindicatio. The onus to begin is placed on the respondents and the appellant is afforded a right to rebut any evidence led by the respondents.

No one can be in doubt that these are the issues for determination - even under the stated case itself.

The issues as recorded by the parties are:

(a) Whether or not the ownership of the immovable property in issue is in dispute; and

(b) Whether or not the plaintiff was entitled to an order for a rei vindicatio.

It was the parties who were responsible for drafting the case and issues for determination. It was not the court.

It seems to me, that, the manner of pleading adopted by the parties has resulted in the adoption of a procedure that the pleadings did not support.

If the title to the property was not in issue, it should therefore not have been placed before the court for adjudication. The fact that it was so placed, and that upon a consideration of the pleading themselves, the court was of the view that it could not resolve the matter on the papers as a material dispute of fact was evident on title, cannot be blamed on the court.

The respondents, on the papers, raised a defence to the claim.

The court was duty-bound to consider the defence. It could not do so based on a supposed Stated Case.

The issue of how the appellant acquired its title was pertinent to the disposition of the dispute. The court could not, and is not expected to turn a blind eye to allegations of fraud or illegality. It realized that there were real issues the determination of which required that the parties adduce oral evidence.

There was a clear contradiction in terms of what the appellant's case was and what the respondents case was. The court exercised its discretion, and there is no allegation that such exercise was injudicious or capricious.

The matter was therefore not properly before the court and ought not to have been referred for determination as a Stated Case.

The appellant suggests, that, the court a quo erred in holding that the Stated Case could be maintained but that the parties could give evidence on the question of the registration of title.

I think this contention has merit.

Once the court a quo concluded that there were material disputes of fact on the 'stated case' the complexion of the matter was altered.

The claim for a rei vindicatio was premised on the appellant's title which was being challenged by the respondents. The challenge to the appellant's title, as a consequence, raised the appellant's right to claim eviction as an issue.

This was the only issue for determination between the parties. As a result, there was no Stated Case for adjudication.

Even if the court was inclined to entertain the application for directions, once it concluded that there were material disputes of fact, it ought to have given directions in which it ordered the matter back to a pre-trial conference for the settling of issues for trial purposes. This, in my view, would allow the parties to properly consider their respective positions vis-a-vis the dispute to ensure that all issues pertinent to the determination of the matter are placed before the court.

Counsel for the respondents submits that the Rules give the court the discretion on how to direct the case to be heard.

I accept as correct the contention by the respondents on this point.

Rule 154 provides, that, upon hearing the application, the judge shall, “as far as practicable, make such order as may be just to any matters in respect of which directions were asked.”

In my view, the Rules give the judge the discretion to make such order as may result in the matter being dealt with to achieve justice between the parties.

I did not understand the appellant to suggest that the court lacks the discretion to make an order for directions on the hearing of the matter. What the appellant suggested was that the order for directions was not one that the court is legally permitted to give.

However, in the instant case, there was no Stated Case to determine, and, to the extent that the court a quo continued to deal with the matter as if it was a stated or special case, there was a gross misdirection on the part of the court.

This is a misdirection that impacts upon the substance of the order issued by the court a quo.

It was the wrong order in view of the fact that there was no Stated Case. It was thus a procedural irregularity warranting interference by this court.

In my view, this is a proper case for this court to invoke its powers of review as provided in the Supreme Court Act [Chapter 7: 13], which provides as follows in relevant part:

“25 Review powers

(1) Subject to this section, the Supreme Court, and every judge of the Supreme Court, shall have the same power, jurisdiction, and authority as are vested in the High Court and judges of the High Court, respectively, to review the proceedings and decisions of inferior courts of justice, tribunals, and administrative authorities.

(2) The power, jurisdiction, and authority conferred by subs (1) may be exercised whenever it comes to the notice of the Supreme Court, or a judge of the Supreme Court, that an irregularity has occurred in any proceedings or in the making of any decision notwithstanding that such proceedings are, or such decision is not the subject of an appeal or application to the Supreme Court.

(3) Nothing in this section shall be construed as conferring upon any person any right to institute any review in the first instance before the Supreme Court, or a judge of the Supreme Court, and provision may be made in rules of court, and a judge of the Supreme Court may give directions, specifying that any class of review or any particular review shall be instituted before or shall be referred or remitted to the High Court for determination.”

Notwithstanding the fact that the appellant has not attacked the court a quo, in deciding to entertain the parties herein in what was purportedly a Stated Case which ex-facie the pleadings raised material disputes of fact, the judgment of the court a quo cannot stand. It must be set aside on the basis that it was irregular.

In my view, the court did misdirect itself in ordering that the matter should proceed as a Stated Case.

Once it found that there were material disputes of fact on the so-called Stated Case, it should have referred the matter to trial....,.

However, because of the irregularity that ensued when the court dealt with the matter as a stated case in the light of the material disputes of fact ex facie the alleged stated case, the order of the court cannot stand and must be set aside.

In the result, it is ordered as follows:

1. The appeal is allowed in relation to the fourth ground only.

2. In the exercise of review powers vested in the court, in terms of section 25 of the Supreme Court Act [Chapter 7:13], the order of the court is set aside in its entirety.

3....,.

4. The matter is remitted to the court a quo for the setting up of a pre-trial conference before a judge in chambers.

HHH242-13 : LEE WAVERLEY JOHN vs THE STATE and SIMON RODGERS KACHAMBWA N.O.
Ruled By: MAFUSIRE J

The Supreme Court decision by ZIYAMBI JA in Attorney-General v James Chafungamoyo Makamba SC74-04..., dealt with the position where a judge, in exercising review powers in terms of the High Court Act [Chapter 7: 06] would need the concurrence of another judge before he or she could set aside or ...

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 second respondent is established in terms of section 317 of the Constitution…,which states:

“(1) There is a central bank, to be known as the Reserve Bank of Zimbabwe, whose objects are -

(a) To regulate the monetary system;

(b) To protect the currency of Zimbabwe in the interest of balanced and sustainable economic growth; and

(c) To formulate and implement monetary policy.

(2) An Act of Parliament may provide for the structure and organization of the Reserve Bank of Zimbabwe and confer or impose additional functions on it.”

In issuing the impugned Exchange Control Directive No. RT120/2018, the second respondent was exercising its powers as conferred by the Constitution and the Reserve Bank of Zimbabwe Act [Chapter 22:15]....,.

Constitutional review differs from common law review, as was held in the case of Commissioner of Customs and Excise v Container Logistics (Pty) Ltd; Commissioner of Customs and Excise v Rennies Group Ltd t/a Renfreight 1999 (3) SA 771 (SCA) 1999 (8) BCLR 833 (SCA)…,.:

“Judicial review under the Constitution and under the common law are different concepts…,. Constitutional review is concerned with the constitutional legality of administrative action, the question in each case being whether it is or is not consistent with the Constitution, and the only criterion being the Constitution itself.

Judicial review under the common law is essentially also concerned with the legality of administrative action, but, the question in each case is whether the action under consideration is in accordance with the behests of the empowering statute and the requirements of natural justice.

The enquiry in this regard is not governed by a single criterion.

The grounds of review which the courts have developed over the years can never be regarded as a numerus clausus for the simple reason that Administrative Law is not static. As new notions develop and take root, so must new measures be devised to control the exercise of (official) functions….,."

However, the distinction is now only of academic interest given the pronouncement by the Constitutional Court of South Africa, in the case of Ex Parte President of the Republic of South Africa: In re Pharmaceutical Manufacturers Association of South Africa 2000 (2) SA 674 (CC) 2000 (3) BCLR 241 (CC).

ln that case, the Constitutional Court of South Africa held, that, given the entrenchment of the supremacy of the Constitution, there is only one system of law and that law is shaped by the Constitution.

All law, including the common law, derives its authority from the Constitution and is subject to constitutional control. There are therefore no separate common law grounds of review which are distinct from the constitutional grounds of review.

There is remarkable merit in this interpretation of the relationship between the constitution and the common law scope of judicial review which commends itself.

I respectfully endorse the approach embraced by the Constitutional Court of South Africa for the reason, that, the constitutional supremacy clause in this jurisdiction is worded in similar terms to that in the Constitution of the Republic of South Africa.

Thus, in considering the legality, rationality, and reasonableness of the impugned Exchange Control Directive, the court must measure it against the constitutional provisions.

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

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

HHH135-17 : SPARKLES SERVICES (PVT) LTD and GODFREY MUNYAMANA vs THE STATE and MAPFUMO FRANCIS (NO)
Ruled By: MAKONI J

On the day of hearing this matter, I issued an order in the following terms:

“1. The decision of the 2nd Respondent of dismissing the Applicants application for recusal in Case No. CRB12586/15 be and is hereby set aside.

2. That the proceedings in case number CRB12586/15 commence de novo before another Magistrate.

3. That there be no order as to costs.”

I indicated that reasons will follow later. These are they.

The applicants were arraigned before the magistrate court facing one count of fraud. The trial commenced. The State closed its case. The defence applied for discharge at the close of the State case.

On 7 April 2016, the second respondent dismissed the application and ordered that the applicants commence the defence case.

Instead, the applicants applied for a postponement of the matter on the basis that they needed to consider the decision to dismiss their application and whether they needed to invoke the review procedure.

The application was dismissed on the basis, that, the applicants ought to have known the matter could proceed to the defence case.

The matter was kindly deferred to 14 April 2016.

In the meantime, the applicants filed an application for review of the decision of the second respondent.

On 14 April 2016, the applicants made an application for a postponement of the matter on the basis that they had filed an application for review and an urgent chamber application for stay of the criminal proceedings pending the determination of the application for review.

The application was dismissed on the basis, that, the pending applications were not an order of court staying proceedings.

The matter was postponed to 25 April 2016.

On that date, the second applicant appeared with a letter from his doctor that he was not feeling well. He applied for a postponement - which application was dismissed.

The matter was finally postponed to 27 April 2016.

On 27 April 2016, the applicants legal practitioner was engaged in the Bail and Motion courts at the High Court. He sent a letter to that effect with the applicants.

The court refused to accept the letter but stood the matter down to 11:15.

At 11:15, another legal practitioner appeared and applied for a postponement to 5 May 2016 at 14:15hrs as that was the only time available.

The matter was however postponed to 3 May 2016.

On that date, another lawyer appeared and applied for a postponement to 15 May 2016 at 14:15 hours.

The court again refused.

The public prosecutor indicated to the applicants that they could proceed to make the application for recusal to the magistrate as indicated in their letter of 26 April 2016. The legal practitioner then requested to meet the trial magistrate and the prosecutor in chambers where the legal practitioner indicated his intention to apply for the recusal of the magistrate.

The application was dismissed and the applicants filed the present application.

The applicants grounds for review can be summarised as:

(1) Gross unreasonableness of the decision of the magistrate in dismissing the application for recusal.

(ii) Bias on the part of the magistrate which would result in a gross violation of the applicant's inalienable right as enshrined in section 69(1) and 70(1)(a).

The application was served on the respondents and none of them opposed the application.

The order was granted on the unopposed motion roll; it was made clear that the application was being granted for the sole reason of the notice of opposition filed by the second respondent.

Since the application was not opposed, it will not be necessary for me to look at the law relating to recusal of a presiding officer and the review of unterminated proceedings.

I felt compelled to write this judgment after having perused the notice of opposition filed by the trial magistrate to the application for review of his decision to dismiss the application for discharge. This was cited by the applicant, in the present matter, to show bias on the part of the presiding magistrate.

It was the applicant's contention, that, after having had sight of the notice of opposition, they had grounds for suspecting that justice will not be administered in an impartial and unbiased manner.

In paragraph 8(iv), the second applicant states the following:

“I submit, that, the use of the following words in the above mentioned paragraphs of the ruling dismissing applicants discharge application have led the 1st applicant to entertain a genuine apprehension that the matter would not be impartially adjudicated.”

The applicants complain that:

(i) The trial magistrate went beyond merely standing by his ruling.

(ii) The conclusive views expressed by the second respondent, on the guilt of the accused, before his defence case, were the basis for his apprehension on bias.

(iii) Both the trial magistrate and the prosecution were represented by the same legal practitioners in opposing the application for review and the urgent chamber applications.

I had occasion to deal with the propriety of a trial magistrate deposing to an opposing affidavit in Makandi Tea and Coffee Estate (Pvt) Ltd v The Attorney General of Zimbabwe N.O. and Gapara N.O. HH595-15. I relied on the authority of Leopard Rock Hotel (Pvt) Ltd v Warrent Construction (Pvt) Ltd 1994 (1) ZLR 255 (S) 278B-F where the following was stated:

“Such belief in the mind of the reasonable litigant is bound to be heightened by the fact, that, not only has the arbitrator refused to recuse himself, but, he has descended into the arena of battle by actively participating in the proceedings for his removal and making common cause with the party maintaining that he should not recuse himself.”

The court continued at 279B-F:

“In my view, in circumstances such as these, an arbitrator, umpire, judge, or other adjudicating body has one of two choices. The first is that he could file an affidavit setting out facts which he considers may be of assistance to the court. So long as such facts are stated colourlessly, no-one could object; but, if the affidavit should err plainly in support of one of the parties, it might expose the adjudicator to the odium of the court.

It is most undesirable that any arbiter or other adjudicator of a dispute should appear to be pitching camp with, or rendering assistance to, one of the contestants to the dispute before him.

For the other party is likely to gain that impression, that, the arbiter and his adversary are conspiring against him: and such an impression would reinforce his belief that the arbiter is biased against him: see the remarks of McNally JA in Blue Ribbon Foods Ltd v Dube NO & Anor 1993 (2) ZLR 146 (S) at 148.

When the arbiter makes common cause with one of the parties in such proceedings, any facase of justice is shattered; the arbiter is seen to have descended into the arena with the possible consequential blurring of his vision by the dust of battle. Unconsciously, he deprives himself of the advantage of calm and dispassionate observation.

The second choice of the arbitrator or umpire, when served with notice of motion for his removal or to set aside his award, is to take no action and abide by the court's decision.”

In casu, the applicants can be excused for believing that the respondent had pitched camp with or rendering assistance to the one of the contestants, who is the State, in this matter.

Both respondents were represented by the same legal practitioners which created the impression, in the minds of the applicants, that the respondents were conspiring against them.

The second respondent expressed some very strong views regarding the culpability of the applicants before they had presented their defence case.

The applicants can be excused for believing, that, were the trial to continue before the same magistrate, it was for purposes of going through the motions of a trial when the arbitor had already made up his mind.

At p3 of the cyclostyled judgment in Makandi Tea and Coffee Estate (Pvt) Ltd v The Attorney General of Zimbabwe N.O. and Gapara N.O. HH595-15 I made the following remarks:

“The proper approach in this matter would have been for the second respondent to set out facts which he considered would be of assistance to the court and end there; in the alternative, he would have asked a representative of the first respondent to file the opposing affidavit rather than file an affidavit where he clearly supports one side.”

I would add, the third option is to take no action and abide by the court's decision.

It might be comforting for magistrates to know that reviews are dealt with on the basis of what is contained in the record which they compile during the course of proceedings. The court will merely be enquiring whether there were any irregularities in the course of the proceedings which would warrant interference. The opposing affidavit by the magistrate does not add much value to the review proceedings except in so far as it clarifies facts.

It is for the above reasons that I decided to set aside the second respondent's decision not to recuse himself....,.

In the result, the decision by the second respondent, to refuse an application for his recusal, in the face of the notice of opposition he deposed to, is so unreasonable that no reasonable authority could ever have come to it. I will therefore make the following order:

(1) The decision of the second respondent, of dismissing the applicants application for recusal in case number CRB12586/15, be and is hereby set aside.

(2) The proceedings in case number CRB12586/15 commence de novo before another magistrate.

(3) There be no order as to costs.

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

This is an appeal against the whole judgment of the High Court, delivered on 5 March 2021, interdicting the appellant, in the interim, from administering the estate of the late Genius Kadungure among other relief.After hearing submissions from counsel, we dismissed the appeal with costs and stated that the reasons ...

This is an appeal against the whole judgment of the High Court, delivered on 5 March 2021, interdicting the appellant, in the interim, from administering the estate of the late Genius Kadungure among other relief.

After hearing submissions from counsel, we dismissed the appeal with costs and stated that the reasons for doing so would follow. What follows hereunder are those reasons.

THE FACTS

During his lifetime, Genius Kadungure was a colourful and prominent businessman with business interests in Zimbabwe, Botswana, and South Africa. He died tragically in a motor vehicle accident on 8 November 2020 at the age of 36.

At his funeral, the appellant, who is an administrator of deceased estates at Regional Executors & Trust (Pvt) Ltd, approached the first, second, and third respondents brandishing an unsigned “Will” allegedly prepared by herself on the instructions of the deceased a few weeks before he died.

The first and third respondents are the sisters of the deceased while the second respondent is his father. They shall be referred to either as the deceased's relatives or as the respondents.

The appellant persuaded the relatives of the deceased to accept the unsigned document as the last will and testament of the deceased. She also persuaded them to accept her appointment as the executrix of the deceased estate.

In due course, and following a meeting convened by the Master of the High Court, who is the fourth respondent herein, the appellant was appointed as the executrix. She was issued with Letters of Administration on 1 December 2020.

Meanwhile, the unsigned “will” was also accepted and registered by the fourth respondent.

The deceased estate of the late Genius Kadungure was then to be administered and wound up in terms of that document.

The appellant hit the ground running as she immediately entertained a claim of a Lamborghini Aventador Roadster Motor Vehicle, registration number ZM03, belonging to the estate, from one Nomatter Zinyengere.

I mention, in passing, that, that name does not appear anywhere in the unsigned will. In fact, that motor vehicle, which for some unclear reason is the only property specifically mentioned in that document, was bequeathed to one “Kit Kat”.

Without reference to the Master of the High Court, and without submitting any liquidation and distribution account for approval by the Master, the appellant sent what she called the “first interim liquidation and distribution account” to Nomatter Zinyengere's lawyers in which she demanded a payment of $48,230 from him in return for the release of the Lamborghini motor vehicle.

That interim account only contained the Lamborghini motor vehicle and no other property of the deceased. It also did not take into account any liabilities of the estate.

Nomatter Zinyengere must have paid the appellant what she demanded, because, by letter dated 27 January 2021, addressed to one Michael Mubaiwa at the deceased's mansion in Domboshava, the appellant directed that the motor vehicle be handed over to his lawyer.

It is then that the deceased's relatives sought legal advice.

As up to then, they had not been furnished with a copy of the Will, they unsuccessfully requested one from the appellant, including the minutes of the meeting held on 25 November 2020 at the Master's Office. They only got copies from the fourth respondent.

PROCEEDINGS IN THE COURT A QUO

The respondents brought an urgent application before the court a quo for interim relief interdicting the appellant from dealing with or administering the estate. On the return date, they seek a review of the fourth respondent's decision to accept the unsigned document as the Will of the deceased. They also seek the reversal of the appellant's appointment as the executrix testamentary of the estate.

The respondents case was that the appellant used undue influence to persuade them to accept the unsigned document as the deceased's will and to accept her appointment as the executrix. She had dissuaded them from seeking legal counsel regarding the will. She had claimed to be their lawyer who would handle the estate when she is not even a lawyer.

According to the respondents, they reluctantly worked with the appellant even though they had questions about the Will.

Their fears were confirmed when the appellant had, with indecent haste, proceeded to attempt to dispose of the Lamborghini motor vehicle during the lockdown period without following due process. The whole exercise was suspicious given that there was no detailed inventory of the estate property and no distribution account was submitted and approved by the Master of the High Court.

The respondents also complained about the manner in which the appellant was handling the estate in Botswana.

To them, the matter was urgent as the appellant had to be stopped in her tracks before causing more damage, especially as there are trucks in South Africa belonging to the estate which were in danger of disappearing if the issue of executorship remained unresolved.

In opposing the application, the appellant's case was that the matter was not urgent because the facts complained of occurred four months earlier. Her contention was that the respondents voluntarily consented to the Master's decision to accept the unsigned document as the deceased's will knowing it did not meet the requirements of the Will's Act [Chapter 6:06]. The appellant insisted that the respondents also consented to her appointment as the executrix of the estate.

In her view, the requirements of an interim interdict were not met.

Regarding the issue of the Lamborghini motor vehicle, while admitting that she had initially approved its release, the appellant contended, that, she later realized that she had not advertised the interim distribution account. For that reason, she had rescinded her decision to release the motor vehicle. The appellant admitted, further, that, her decision to do so was also informed by the reprimand she got from the fourth respondent.

It was the appellant's contention that the application was without merit. She sought its dismissal with costs.

The court a quo acknowledged, that, the respondents should have filed a separate application for review. It however took the view that the matter was so urgent that the court had to dispense with most of the formalities provided for in the Rules. This was so because of the then prevailing Covid 19 lockdown and Practice Direction Number 4 of 2021 which proscribed the filing of new cases and only permitted the filing of urgent cases.

The court a quo's view was that urgency stemmed from the appellant's rush to conclude part of the administration of the estate. In addition, she had advertised the estate in newspapers which action amounted to legal processes with legal consequences in the event of failure to act upon them.

Given the nature of the document being used to administer the estate, its emergence at the funeral, and the circumstances of its acceptance raised a red flag; the court a quo found that the respondents had a cause of action against the appellant. It found that, by her own admission, the appellant had tried to jump the gun in allowing the release of the Lamborghini motor vehicle.

Accordingly, the risk of irreparable harm was palpable and the balance of convenience favoured the beneficiaries. The court a quo then granted interim relief aforesaid.

PROCEEDINGS ON APPEAL

The appellant was riled by the judgment of the court a quo. She noted this appeal on the following grounds:

1. The court a quo erred in determining that the first to third respondents cause was deserving of an urgent hearing when the facts actuating the first to third respondents complaint had subsisted for well over 4 months.

2. The court a quo also erred in granting the first to third respondents an interdict in circumstances where such respondents had other satisfactory remedies available to them in terms of section 8 of the Wills Act and section 30 of the Administration of Estates Act.

3. The court a quo further erred in granting audience to a party which had, by express words and direct acts, accepted the appointment of the appellant and decision of the fourth respondent. In consequence, the court a quo erred in exercising jurisdiction in a matter redolent with material disputes of fact not resoluble on the papers.

4. The court a quo grossly misdirected itself in holding, that, it had the jurisdiction to bar the appellant from the administration of the estate of the late Genius Kadungure in South Africa when the court a quo has no jurisdiction over the South African assets of the deceased.

5. The court a quo erred in finding that the appellant used undue influence to compel the first to third respondents to accept the deceased's null absent any evidence disputed by the appellant. (sic)

6. On a point of law, the court a quo erred in its formulation of the order it handed down on the 5th of March 2021. In the court a quo's reasoning, it postulates the granting of interim relief. However, the order handed down is final in nature.

On the foregoing grounds, the appellant moved for the success of the appeal with costs and dismissal of the application a quo with costs....,.

ISSUES FOR DETERMINATION

Although there are six grounds of appeal, only two (2) issues commend themselves for determination in this appeal. They are:

1. Whether the court a quo erred in finding that the application was urgent.

2. Whether the court a quo erred in granting an interim interdict prohibiting the appellant from administering the deceased estate.

SUBMISSIONS ON APPEAL

Counsel for the appellant initially anchored his argument solely on two technicalities:

(i) He submitted, firstly, that, the form used by the respondents in approaching the court a quo was a new invention of their own which is fatally defective.

The respondents combined an urgent chamber application with a review application, and, in counsel's view, this rendered the whole application irregular. He entreated this Court, bearing in mind that the issue was not covered in the grounds of appeal, to invoke its review powers in terms of section 25 of the Supreme Court Act [Chapter 7:13] to set aside the proceedings on that basis.

In response, counsel for the respondents submitted, that, the issue of the form used was not raised by the appellant in the court a quo. It can therefore not be taken for the first time on appeal regard being had that this Court is not one of first instance.

In addition, so counsel continued, the court a quo gave the reasons why it allowed the procedure adopted by the respondents. The appellant filed her appeal on 12 March 2021 to which was attached the judgment sought to be impugned. Accordingly, she had all the time and opportunity to challenge the decision of the court a quo to allow the application in the form it was made.

(ii) The second technicality raised by counsel for the appellant relates to the non-joinder in the application of other beneficiaries of the unsigned Will who also have an interest in the dispute. He did not mention them by name, but, a reading of the document shows, that, other than the deceased's family members, a person called “Kit Kat” is mentioned as a beneficiary.

Again, as correctly observed by counsel for the respondents, the issue of non-joinder was not taken a quo wherein the proceedings remain unterminated. The court a quo still has to pronounce itself on the return date of the provisional order it granted. As with the issue of the form used, the non-joinder is only raised in the heads of argument and not in the grounds of appeal....,.

Regarding the form in which the application was made, there is no doubt, that, combining an urgent application with a review application would not meet the requirements of the Rules of the court a quo. A review application is made in terms of Order 33 and should be by court application.

However, Rules are made for the benefit of the court. The court a quo had power, in terms of Rule 4C of the then applicable Rules, to condone a departure from the Rules. It did just that. On that issue, the court commenced its judgment by stating:

“The applicants, through the urgent chamber application, seek an interdict, and, on the return date, a review. Ordinarily, an application for review should be filed separately, but, given the prevailing COVID lockdown and Practice Direction number 4 under which ordinary applications were not accepted for filing, I accepted the urgent application hence gave directives. Let me hasten to say that this case is peculiar and should not be viewed as setting a precedent that review applications can be commenced through an urgent application.”

Indeed, to illustrate that the judge a quo was conscious of the nature of the case, as part of the interim relief she granted, she added paragraph 4:

“4. The Registrar of the High Court of Zimbabwe at Harare is directed to expedite the return date (of) hearing.

The Registrar is directed to bring this judgment to the attention of the second respondent (The Master).”

In my view, the conduct of the judge a quo was informed by the exigencies of the matter and the prevailing Covid-19 conditions which inhibited the filing of court process. She properly applied her mind and excused a departure from the court rules. Nothing, whatsoever, has been said to suggest that this was an unreasonable or indeed irrational exercise of judicial discretion.

The rules of court are designed for the benefit of the court and the proper administration of justice. As has been said, they are “not laws of Medes and Persians:” see Scottish Rhodesian Ltd v Honiball 1973 (2) SA 747 (R)…,.

The Rules are just the court's tools fashioned for the court's own use and are not an end in themselves to be observed for their own sake: see Federated Trust Ltd v Botha 1978 (3) SA 645…,.

In my view, there is therefore no basis for interfering with the manner in which the judge a quo applied the Rules. Equally, there is no legal foundation for invoking section 25 of the Supreme Court Act [Chapter 7:13] in the circumstances of this case.

View Appeal
HH85-21 : JULIET KADUNGURE and ANDERSON KADUNGURE and NERIA KADUNGURE vs PATRICIA DARANGWA and MASTER OF THE HIGH COURT OF ZIMBABWE (N.O.)
Ruled By: CHIRAWU-MUGOMBA J

This matter was placed before me as an urgent chamber application having been filed on the 23rd of February 2021. Upon receipt, I gave directions for the filing of notices of opposition and opposing affidavits as well as heads of argument.The second respondent did not file a notice of opposition, ...

SC141-21 : WISE GARIRA and SHEPHARD MASHINGAIDZE and BAYAI BAYAI vs NATIONAL ENGINEERING WORKERS UNION and FIRST CAPITAL BANK
Ruled By: GUVAVA JA, BHUNU JA and KUDYA AJA

This is an appeal against the whole judgment of the High Court (the court a quo) which ordered the removal of the three appellants from being signatories to the first respondent's Bank account with the second respondent.The appeal is opposed by the first respondent....,.BRIEF BACKGROUND OF THE CASEThe first respondent ...

This is an appeal against the whole judgment of the High Court (the court a quo) which ordered the removal of the three appellants from being signatories to the first respondent's Bank account with the second respondent.

The appeal is opposed by the first respondent....,.

BRIEF BACKGROUND OF THE CASE

The first respondent is a duly registered trade union representing the interests of employees in the Engineering, Iron and Steel sector (hereinafter referred to as “the Union”). The Union opened and maintains a Bank Account Number 6327897 with the second respondent Bank.

On the other hand, the first and second appellants were employed by the Union as its President and Secretary General, respectively, whereas the third appellant was its Trustee.

At the inception of the Bank account, the three appellants were appointed by Union resolution, dated 15 February 2019, as signatories to the said Bank account in their respective capacities as Union officials. The union then sought to remove the appellants from the panel of signatories to its Bank account on the basis that they had ceased to be union officials.

In its founding affidavit, deposed to by Ben Mambara, the Union averred, that, the first and second appellants were dismissed from employment following disciplinary proceedings on 22 April 2019 and 14 June 2019, respectively. The third appellant's trusteeship had expired through the effluxion of time.

The Union provided documentary evidence of the appellants dismissal from office.

The appellants however resisted their removals from being Bank account signatories on the basis that they were still Union officials.

They also challenged the authenticity of the Union resolution that authorised their removal as signatories to the Union bank account.

They challenged the legitimacy of Ben Mambara as the incumbent President of the Union and deponent to its founding affidavit.

In that vein, they refused to relinquish their respective mandates as signatories to the Union's bank accounts hence the application for their removal as Bank signatories in the court a quo.

The case has been the subject of various conflicting judgments in the court a quo which are now pending in this court on appeal.

On 23 January 2020, MUSHORE J issued a lengthy order in favour of the appellants under case number HC8111/19. The order basically declared that the three appellants were the legitimate office holders entitled to run the affairs of the first respondent without let or hindrance. On the other hand, the order declared Ben Mambara to be an illegitimate President of the first respondent.

In short, the judgment restored the status quo ante prior to the appellants dismissal from office.

The judgment is now a subject of appeal and it triggered a series of other appeals under appeal case numbers SC27/2020, SC32/2020, and SC34/2020.

Following the restoration of the status quo ante by MUSHORE J's order the respondents were aggrieved by the manner in which the appellants were handling the first respondent's funds.

Resultantly, the first respondent, represented by Ben Mambara, approached the court a quo under case number HC6844/19 seeking their removal from office as signatories of its Bank account.

The first respondent was successful in this respect.

The current appeal challenges the judgment on the basis that MUSHORE J's order had barred Ben Mambara and six others from acting as the Union's officers. The appellants claim to have been declared the legitimate signatories to the Bank account by the judgment which is still extant.

Notwithstanding the appeal, the first respondent sought leave of the court a quo to execute the order removing the appellants from being signatories to its Bank account under case number HC444/20.

CHIKOWERO J dismissed the application.

Another application, for the re-activation of the Union's bank account was dismissed by MUSITU J on 15 September 2020.

DETERMINATION OF THE COURT A QUO

The court a quo found, that, Ben Mambara had the requisite authority to represent the Union.

In coming to that conclusion, the learned judge a quo reasoned that the Union, being a legal persona, could only be represented by a natural person duly authorised thereto by a valid Union resolution.

Consequently, upon the removal of the first appellant from office as Union President, the Union, by resolution, dated 15 February 2019, replaced the first appellant with Ben Mambara. The resolution also conferred him with authority to represent the respondent in these proceedings.

The resolution reads in part:

“IT WAS RESOLVED:

2. That the President, Ben Mambara, shall sign documents and represent the Union and at NEC level.

SIGNED AT BULAWAYO this 15th February 2019.

Signed
……………………………………
(SECRETARY).”

Having found that Ben Mambara was properly appointed as the Union President and Union representative, the learned judge a quo proceeded to hold, that, the appellants were no longer Union officials. That being the case, they could no longer continue to be signatories to the Union's bank account.

On the basis of such finding, he proceeded to issue the following order:

“IT IS ORDERED THAT:

1. The first respondent be and is hereby ordered to delete or remove Shepard Mashingaidze, Wise Garira, and Bayayi Bayayi from being signatories of applicant's Account No.6327897 held with the 1st respondent.

2. The 2nd to 4th Respondents jointly and severally one paying the others to be absolved, pay costs at the legal practitioner and client scale.”

Counsel for the first respondent has not, however, sought to sustain and enforce the above order.

She has, in fact, implored the court to exercise its review jurisdiction under section 25 of the Supreme Court Act [Chapter 7:13] on account of perceived irregularity.

Wherefore she prayed for an order in the following terms:

“Having utilised the powers granted to it under section 25 of the Supreme Court Act [7:13], the following is ordered:

(a) Appeals under S-27-2020, S–32–2020, S–34-2020 and S222-20 be and are hereby set consolidated.

(b) The judgment of the High Court under HC8111/2019 granted by MUSHORE J on 23rd January 2020 be and is hereby set aside.

(c) The judgment of the High Court under HC6844/20 by TAGU J on 20th May 2020 be and is hereby set aside.

(d) The judgment of the High Court under HC444/20 granted by CHIKOWERO J on 8th July 2020 be and is hereby set aside.

(e) The judgment of the High Court under HC594/20 by MUSITHU J on 15th September 200 be and is hereby set aside.

(f) HC8111/19 is remitted back to the High Court for a hearing de novo before a different judge.

(g) Pending the determination of HC8111/19, 2nd Plaintiff, third plaintiff, 3rd-9th Defendants Plaintiff shall not take any steps that will interfere with the operations of the 1st Defendant.…,.

2. It is thus prayed.”

It is plain that the above relief sought is premised on the ill-conceived assumption that the court would grant the request for consolidation.

Paragraph 'g' of the draft order, however, seems to have some merits because it seeks to protect the Bank account from abuse by persons who are, for the time being, no longer its officials pending the final determination of the parties competing rights.

The Court, having dismissed the prayer for consolidation, paragraphs (a) to (f) of the first respondent's prayer cannot stand as they are premised on the envisaged consolidation which never materialised.

For that reason, the Court cannot interfere with appeals which are not before it.

I will therefore focus on the instant appeal before this Court.

No application for review can be brought in terms of section 25 of the Supreme Court Act. The court acts mero motu. Thus, counsel for the first respondent was merely raising the court's attention to exercise its discretion in this regard.

HH595-15 : MAKANDI TEA AND COFFEE ESTATE (PVT) LTD vs THE ATTORNEY GENERAL OF ZIMBABWE N.O. and V. GAPARA N.O.
Ruled By: MAKONI J

This is an application for review of the second respondent's decision in which he declined to stay proceedings before him in terms of section 7 of the Arbitration (Resolution of International Investment Disputes) Act [Chapter 7:03] (the Act).

The background to the matter is that the applicant is a company duly incorporated in terms of the laws of Zimbabwe, which is in the business of growing coffee, macadamia nuts, avocados, and maize.

On 8 July 2010, the applicant registered a request for arbitration with the International Centre for Settlement of Investment Disputes (ICSZD), against the Government of Zimbabwe (State), in relation to land which the applicant lawfully owned and occupied before a dispute arose with the State.

The State subsequently defended these proceedings which are pending.

On 28 April 2011, a director of the applicant, Bernard Alexander Josef von Pezold (Pezold) was summoned to appear at Chipinge Magistrates Court facing charges of contravening section 3 of the Gazetted Lands (Consequential Provisions) Act [Chapter 20:28].

It was alleged, that, the applicant continued in occupation of gazetted land without lawful authority.

In his defence, the applicant denied the allegations and asserted, that, the State is prohibited from bringing the charges under the Constitution of Zimbabwe, the statutes, and international laws ratified by the State.

The applicant relied on Article 26 of the convention which deals with the effect of arbitration and section 7 of the Arbitration (Resolution of International Investment Disputes) Act [Chapter 7:03] which deals with stay of court proceeding where the matter is within the jurisdiction of the International Centre for Settlement of Investment Disputes (ICSZD).

The applicant then mounted an application for stay of proceedings in terms of section 7 of the Arbitration (Resolution of International Investment Disputes) Act.

It is this application that was dismissed by the second respondent which is the subject of this review.

The following are the grounds for review as set out in the Court Application:

“(i) The effect of section 7 of the Arbitration (International Investment Disputes) Act [Chapter 7:03] ('the Act') as read with Article 26 of the International Convention on Settlement of International Disputes Convention (18 March 1965), ratified by the respondent on 20 May 1994;

(ii) The significance of the Bilateral Investments Protection and Promotion Agreement (BIPPA) between Zimbabwe and Germany;

(iii) The effect of section 16(9b) of the Constitution of Zimbabwe on the dispute;

(iv) The difference between ownership and occupation, and, as such, the fact that the applicant had a residual right with respect to occupation;

(v) Instead, he erroneously suggested, that, a separate but related constitutional application had been dismissed by the Magistrates Court on the alleged ground that the applicant was abusing court process; and

(vi) He erroneously reasoned, that, because a previous application, on with the same parties, on a different cause of action, had been dismissed, therefore, the application before him was to be dismissed.”

The application is opposed.

The opposing affidavit was filed by the trial magistrate, the second respondent.

The applicant took issue, in limine, with the propriety of the second respondent deposing to the opposing affidavit.

It was submitted, that, the second respondent needed no protection which would justify his mounting of this opposition. The proper course would have been for a representative of the first respondent to depose to the opposing affidavit.

The respondents did not make any submissions in opposition to this point.

In Leopard Rock Hotel (Pvt) Ltd v Wallen Construction (Pvt) Ltd 1994 (1) ZLR 255 (S) at 278B-F, the following was stated:

“Such belief in the mind of the reasonable litigant is bound to be heightened by the fact, that, not only has the arbitrator refused to recuse himself, but, he has descended into the arena of battle by actively participating in the proceedings for his removal and making common cause with the party maintaining that he should not recuse himself.”

The court continued at 279B-F:

“In my view, in circumstances such as these, an arbitrator, umpire, judge or other adjudicating body has one of two choices. The first is that he could file an affidavit setting out facts which he considers may be of assistance to the court. So long as such facts are stated colourlessly, no-one could object; but, if the affidavit should err plainly in support of one of the parties, it might expose the adjudicator to the odium of the court.

It is most undesirable that any arbiter or other adjudicator of a dispute should appear to be pitching camp with, or rendering assistance to, one of the contestants to the dispute before him: for, the other party is likely to gain that impression that the arbiter and his adversary are conspiring against him: and such an impression would reinforce his belief that the arbiter is biased against him: see the remarks of McNALLY JA in Blue Ribbon Foods Ltd v Dube NO & Anor 1993 (2) ZLR 146 (S) at 148.

When the arbiter makes common cause with one of the parties in such proceedings, any façade of justice is shattered; the arbiter is seen to have descended into the arena with the possible consequential blurring of his vision by the dust of battle. Unconsciously, he deprives himself of the advantage of calm and dispassionate observation.

The second choice of the arbitrator or umpire, when served with notice of motion for his removal, or to set aside his award, is to take no action and abide by the court's decision.”

The proper approach in this matter would have been for the second respondent to set out facts which he considered would be of assistance to the court and end there. In the alternative, he would have asked a representative of the first respondent to file the opposing affidavit on behalf of the respondents rather than file an affidavit where he clearly supports one side.

The grounds upon which this court can exercise its powers of review are laid down in section 26 of the High Court Act [Chapter 7:06]. These have been canvassed in a number of authorities in our jurisdiction.

In Tenesi v PSC 1996 (2) ZLR 44, quoted with approval in Ramilewa v Secretary of the Public Service Commission 1988 (1) ZLR 257 (H)…, GREENLAND J quoted with approval from SA Defence and Aid Fund and Anor v Minister of Justice 1967 (1) SA 31 (C), where CORBETT J…, said…,:

“The court can interfere and declare the exercise of the power invalid on the ground of a non-observance of the jurisdictional fact only where it is shown that the repository of the power, in deciding that the pre-requisite fact or state of affairs existed, acted mala fide or from ulterior motive or failed to apply his mind to the matter: see eg Minister of the Interior v Bechler and Others supra [1948 (3) SA 409 (A)]; African Commercial and Distributive Workers Union v Schoeman NO and Another 1951 (4) 266 (T); Sachs 1953 (1) SA 392 (A).”

In casu, the applicant contends, that, the second respondent failed to address his mind to the issues before him. He asked himself the wrong question, and, as a result, addressed the wrong question.

The position, in such cases, was laid down in Bridges & Hulmes P/L v The Magistrate, Kwekwe & Ors 1996 ZLR 189 (HC)…, where it was stated:

“Because of the wrong question of law, he directed his inquiry at matters he should not have considered and failed to apply his mind to the matters in issue.”

In casu, the applicant had previously applied for referral to the Supreme Court of certain questions relating to the violation of the Declaration of Rights.

What was sought in that application was a determination of whether or not the applicant had been denied the right to the protection of law as guaranteed under section 18(1) of the Constitution.

The magistrate dismissed the application.

In the proceedings under review, the applicant made an application in terms of section 7 of the Arbitration (Resolution of International Investment Disputes) Act [Chapter 7:03].

Section 7 of the Arbitration (Resolution of International Investment Disputes) Act provides:

“7. Stay of court proceedings where matter within jurisdiction of Centre

If any proceedings are instituted in any court in regard to any matter which, under the Convention, is required to be submitted to the Centre for conciliation or arbitration, any party to the proceedings may apply to the court to stay the proceedings, and the court, unless satisfied that the matter is not required to be submitted to the Centre under the Convention, shall make an order staying the proceedings.”

The applicant argued, before the second respondent, that, the criminal proceedings before him were proceedings within the contemplation of section 7 of the Arbitration (Resolution of International Investment Disputes) Act. He therefore applied for relief pending the determination of related proceedings in the International Centre for Settlement of Investment Disputes (ICSZD) to which the Arbitration (Resolution of International Investment Disputes) Act applied.

The second respondent was therefore enjoined to interpret section 7 of the Arbitration (Resolution of International Investment Disputes) Act and determine whether or not the proceedings before him fall under the definition of proceedings as enunciated in the section.

The second respondent did not address his mind to this issue, but, instead, said the following:

“It is important to note, that, this application is preceded by another application under section 24(2) of the Constitution of Zimbabwe wherein was sought a referral of the matter to the Supreme Court of Zimbabwe for the resolution of what the applicant alleged were constitutional questions. The application was dismissed by this court and the reasons for the dismissal are filed of record.

The instant application was opposed by the State on the grounds, inter alia, that the applicant was abusing court process by bringing the same application before the Court which had already made its decision on it.

I do not see the difference, in essence and content, between the two applications.”

Clearly, the magistrate fell into error, as did the magistrate in Williams & Anor v Msipa N.O. and Anor SC22-10.

In that matter…,MALABA DCJ observed:

“The reasons for the refusal by the magistrate of the request by the applicant for the referral to the Supreme Court of the two constitutional questions show that he raised, for his consideration, the false issue of the postponement of the trial.”

In casu, the magistrate raised the false issue, that, the present application, being made in terms of section 7 of the Arbitration (Resolution of International Investment Disputes) Act, is the same as an application made for the referral of a constitutional issue to the Supreme Court.

This was not the same application. The issues are clearly different.

In the first application, the relief sought was referral to the Supreme Court on the basis that the prosecution was a breach of the applicant's fundamental rights.

What the second respondent was required to determine was whether the request was frivolous and vexatious.

This question did not arise in the present proceedings.

What the second respondent was required to determine, in the proceedings under review, was whether prosecution of the applicant amounted to 'proceedings' within the contemplation of section 7 of the Arbitration (Resolution of International Investment Disputes) Act.

If he had found in the positive, the second respondent would have no discretion. The section is couched in peremptory terms.

It is clear, that, the second respondent failed to apply his mind to these differences of substance.

He considered, that, the two distinct and separate applications that required distinct and separate jurisdictional facts for the determination, were the same.

The reasoning of the second respondent falls within the four corners of what has come to be known as the Wednesbury principles, namely, that:

“It is true to say, that, a decision on a competent matter is so unreasonable that no reasonable authority could ever have come to it, then the court can interfere.”

See Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] 2 ALL ER 280.

The second respondent, in its opposing affidavit and in his Heads of Argument, does not address the pertinent question whether the proceedings before him were 'proceedings' as contemplated by section 7 of the Arbitration (Resolution of International Investment Disputes) Act.

There is no mention of section 7 of the Arbitration (Resolution of International Investment Disputes) Act in his Heads of Argument at all.

He did not apply his mind to the real issue before him.

Before I conclude, I would want to observe, that, the second respondent, in his opposing affidavit, took offence by the adoption of the Wednesbury formulation in the court application.

He felt that it was contempous of his office and that of the entire judicial system.

Whilst the expression that the second respondent had “taken long leave of mind” might have gone over board, it is not uncommon to find, in court judgements, expressions such as 'no reasonable authority could ever have come to it:' see Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] 2 ALL ER 280; 'He just did not apply his mind to the consideration of that question:' see Williams & Anor v Msipa N.O. and Anor SC22-10 …,.

This is not meant to be an attack on the person of the second respondent or his office.

This might also support the applicant's contention, dealt with earlier on in the judgment, that, the opposing affidavit should have been done by a representative of the Attorney General.

Having found, that, the second respondent failed to apply his mind to the issue before him, I will therefore make the following order:

(1) The order of the court a quo be and is hereby set aside.

(2) The matter is remitted to the court a quo for determination before a different magistrate.

(3) That the respondents pay costs on a legal practitioner/client scale, jointly and severally, the one paying the other to be absolved.

HHMA03-19 : STATE vs JOHANIS MUKWENA
Ruled By: MAFUSIRE J and MAWADZE J

An integral part of the adjudication process is the exercise of discretion. It is done judiciously.Whim, caprice, impulse, irrationality, excitability, emotion, and all the other negative urges or passions of that nature have no role.There are many instances when the court is called upon to exercise its discretion. But, it ...

HHMA20-19 : THE STATE vs X
Ruled By: MAWADZE J and MAFUSIRE J

This review judgment has been occasioned by the need to assist judicial officers, especially Magistrates, in sentencing juveniles convicted of criminal offences in light of the decision of the Constitutional Court in the case of State v Willard Chokuramba & 4 Ors CC10-19.

The Constitutional Court outlawed corporal punishment administered on male juveniles as was provided for in section 353 of the Criminal Procedure and Evidence Act [Chapter 9:07]. This was with effect from 3 April 2019.

Male juvenile offenders convicted of any criminal offence cannot be sentenced to receive corporal punishment.

Consequently, Magistrates are now enjoined to resort to other forms or methods in dealing with juveniles in conflict with the criminal law - especially those convicted of such offences.

Prison sentences have long been regarded as undesirable in dealing with juvenile offenders.

In the case of S v Ncube and Ors 2011 (1) ZLR 608 (H) I discussed in some detail on other forms of punishment or options open to judicial officers in dealing with such juveniles. The guiding principle is that, in dealing with juveniles in conflict with the criminal law, is to impose a rehabilitative rather than a retributive sentence. This is in line with the international best practices and international instruments which include, inter alia, Article 40 of the United Nations Convention on Rights of the Child (1990) and Article 17 of the African Charter on the Rights and Welfare of the Child (1999).

I should applaud the trial magistrate in this matter for attempting to adhere to these principles. The only problem which arises in this case is that the trial magistrate did not fully adhere to the proper procedure.

The bare bones of the case is that a 15-year old male juvenile was convicted on his own pleas of guilt of 10 counts. Five counts relate to unlawful entry into premises as defined in section 131(1) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] and the other five counts relate to theft as defined in section 113(1) of the Criminal Law (Codification and Reform) Act.

The agreed facts are that between the period extending 28 February 2019 and 15 March 2019 in and around Chivi Growth Point, Masvingo, the 15 year old juvenile broke into five different premises from which he stole various goods all valued at $548=50 of which goods valued at $395 was recovered; this causing actual prejudice of $153=50.

The matter proceeded in terms of section 271(2)(b) of the Criminal Procedure and Evidence Act [Chapter 9:07] and the male juvenile was convicted on his own pleas of guilty in all the 10 counts.

A detailed Probation Officer's report was compiled and produced.

It was recommended, that, the male juvenile be found to be a child in need of care as defined in section 2(c), (d) and (g) of the Children's Act [Chapter 5:06]. The recommendation was that the male juvenile be placed in a Training Institute at Kadoma in terms of section 20(1)(b)(vi) of the Childrens Act [Chapter 5:06].

This recommendation was informed by a number of reasons:

(i) The male convicted juvenile is described, in the Probation Officer's report, as an habitual truant. His biological father is unable to exercise proper care and control over him.

(ii) Secondly, as already said, the male juvenile is facing and had been convicted of 10 counts which clearly shows his propensity to crime.

(iii) Thirdly, the convicted male juvenile has a relevant previous conviction for contravening section 131(1) of the Criminal Law (Codification and Reform) Act [Chapter 9:23] as per CRB CH275/18 dated 28 August 2018. In that case, passing of sentence was suspended for 5 years on the usual conditions of good behaviour.

Clearly, the said male juvenile has failed the test in less than a year.

The trial Magistrate proceeded, in this case at hand, to place the convicted male juvenile at Kadoma Training Institute for 3 years.

The first anomaly in this matter is that the trial Magistrate did not deal with the convicted male juvenile's previous conviction on CRB CH 275/18 in which passing of sentence had been conditionally suspended for 5 years.

The convicted male juvenile, as already said, breached the said conditions by committing these offenses at hand.

To his or her credit, the trial Magistrate, in the reasons for sentence, suggested that it would be prudent to further postpone the passing of sentence on CRB CH 275/18.

However, the misdirection is that this remained a wish on the part of the trial Magistrate as it was not captured on the ultimate sentence imposed.

The trial Magistrate profusely apologised for this oversight and implored this court to rectify the omission.

I am of the view that the convicted male juvenile should be afforded the proverbial second chance to reform hence the need to further postpone the passing of sentence on CRB CH 275/18 for another period of 5 years on the same conditions.

The second anomaly in this matter is that the trial magistrate did not comply with the provisions of section 351(3)(b) of the Criminal Procedure and Evidence Act [Chapter 9:07] which provide as follows;

“Section 351 Manner of dealing with convicted juveniles

(1) Irrelevant

(2) Any court before which a person under the age of nineteen years has been convicted of any offence may, instead of imposing a punishment of a fine or imprisonment for that offence, subject to subsection (1) of section three hundred and thirty-seven —

(a)…,. (irrelevant)

(b) After ascertaining from the Minister responsible for social welfare that accommodation is available, order that he shall be placed in a training institute in Zimbabwe or in a reform school in the Republic of South Africa for the period specified in subsection (1) of section three hundred and fifty-two.”

After I raised a query with the trial magistrate, as to whether he or she had complied with the provisions of section 351(2)(b) of the Criminal Procedure and Evidence Act, by ascertaining that that there is indeed accommodation at Kadoma Training Institute before committing the convicted male juvenile to that institution, the response by the trial magistrate was rather perfunctory.

The trial magistrate said he or she simply complied with the recommendations of the Probation Officer as per the Probation Officer's report.

This is incorrect.

The Probation Officer had suggested that the convicted male juvenile be referred to the Children's Court and dealt with in terms of section 20(1) of the Children's Act [Chapter 5:06].

The trial magistrate, although placing the convicted male juvenile at the said training institute, he or she did not do so sitting as a Children's Court and was not exercising the powers outlined in section 20(1) of the Childrens Act [Chapter 5:06].

The truth of the matter is that the trial court simply proceeded in terms of section 351(2)(b) of the Criminal Procedure and Evidence Act [Chapter 9:07].

Be that as it may, whether the trial Magistrate had exercised the powers outlined in section 20 of the Children's Act, sitting as Childrens Court, or acted in terms of section 351(2)(b) of the Criminal Procedure and Evidence Act, the bottom line is that the trial magistrate was enjoined to first ascertain from the responsible authority whether there is accommodation at Kadoma Training Institute before committing the convicted male juvenile to the institution.

The trial Magistrate, in a bid to explain this omission, said he or she telephonically contacted the said institution and was advised, telephonically, that there was such accommodation.

I have no reason to doubt the integrity of the trial Magistrate. His or her ability to think on his or her feet is remarkable!

However, the fact remains, that, a Magistrate Court is a court of record. This means, that, inquiries made in compliance with the law cannot be sufficient if they are made telephonically only. There is need for written documents or proof.

How will this court, in exercising its review powers, ascertain compliance with the law where such compliance has purportedly been made telephonically?

The proper way to comply with the provisions of section 351(2)(b) of the Criminal Procedure and Evidence Act is to simply obtain and attach such proof. This may be in the form of a letter of confirmation from the head of such a training institute that accommodation for the convicted juvenile is available.

The need for this confirmation is obvious.

In my view, it matters not whether such an inquiry is done by the trial magistrate or the Probation Officer.

The bottom line is that such proof of confirmation should be part of the record of proceedings.

CC04-22 : JOANAH MAMOMBE and CECILIA CHIMBIRU vs FAITH MUSHURE N.O. and THE STATE
Ruled By: MAKARAU JCC

The LawIn a long line of cases from this jurisdiction and elsewhere, the admonition is repeatedly sounded and explained, that superior courts should be very slow in interfering with the unterminated proceedings of lower courts.The exception is made for cases where there is a gross irregularity or a wrong decision ...

The Law

In a long line of cases from this jurisdiction and elsewhere, the admonition is repeatedly sounded and explained, that superior courts should be very slow in interfering with the unterminated proceedings of lower courts.

The exception is made for cases where there is a gross irregularity or a wrong decision by the lower court that will seriously prejudice the rights of a litigant or accused person and which irregularity or wrong decision cannot be corrected by any other means: see Attorney-General v Makamba 2005 (2) ZLR 54 (S); Rasher v Minister of Justice 1930 TPD 810; Ginsberg v Additional Magistrate of Cape Town 1933 CPD 357; Walhaus v Additional Magistrate, Johanesburg & Anor 1959 (3) SA 113 (A); Masedza & Others v Magistrate, Rusape and Others 1998 (1) ZLR 36 (H); Mantzaris v University of Durban-Westville & Others (2000) 10 BLLR 1203 LC; Rose v S HH71-02; Mutumwa and Anor v S HH104-08; Chikusvu v Magistrate Mahwe HH100-15; Chawira and Others v Minister, Justice, Legal and Parliamentary Affairs and Ors CC03-17 and Shava v Magomere HB100-17.

The above admonition is sounded to a superior court that has inherent or legislatively-conferred review powers over the proceedings or decisions of the lower court.

It is meant to guide the approach to be taken by such a court.

This is so because the power to interfere with the unterminated proceedings of a lower court either permanently, or as affording interlocutory relief, is nothing but an exercise of review jurisdiction by the superior court over the proceedings or decisions of the lower court.

The authorities clearly establish the position at law, that, proceedings in a lower court or its decision are only interfered with if there is a gross irregularity in the proceedings or the interlocutory decision is clearly wrong.

Both instances, respectively, encompass the common law review grounds of gross irregularity in the proceedings and/or gross unreasonableness in the decision.

By established practice of the courts, it is thus accepted, that, the existence of these two grounds of review may, in appropriate circumstances, justify a superior court of competent jurisdiction interfering with the ongoing proceedings of a lower court.

This Court decides only constitutional matters and issues connected with decisions on constitutional matters. It is not a court of inherent jurisdiction and thus lacks inherent review powers over lower courts.

The Court, however, has legislatively-conferred review powers. These are set out in section 19 of the Constitutional Court Act [Chapter 7.22].

Whilst fairly wide, the review powers of this Court are, correspondingly and in conformity with the Constitution, limited in scope to constitutional matters only.

Section 19 of the Constitutional Court Act thus provides:

“19 Review Powers

(1) Subject to this section, the court and every Judge shall have, in constitutional matters, the power to review the proceedings and decisions of the Supreme Court, the High Court, and all other subordinate courts, tribunals, and administrative authorities.

(2) The power, jurisdiction, and authority conferred by subs (1) may be exercised whenever it comes to the notice of the court or a Judge that an irregularity has occurred in any proceedings or in the making of any decision, notwithstanding that such proceedings are, or such decision is, not the subject of an appeal or application to the court.

(3) Nothing in this section shall be construed as conferring upon any person any right to institute any review in the first instance before the court or a Judge, and provision may be made in rules of court, and a Judge may give directions, specifying that any class of review or any particular review shall be instituted before, or shall be referred or remitted to the Supreme Court, the High Court or the Labour Court, as the case may be, for determination.”…,.

If it is accepted, which it must, that, this Court lacks inherent jurisdiction to review the proceedings and decisions of lower courts in non-constitutional matters, it stands to reason, that, this Court must be dead slow in interfering with the unterminated proceedings of any lower court and proceed only after it is satisfied that there is a constitutional matter arising in the matter.

Put differently, the review jurisdiction of this Court is only triggered and engaged after this Court has satisfied itself that the matter involved is a constitutional matter.

I venture to suggest, that, where the matter is intended to be brought before this Court, as a court of first instance, as in casu, this Court must only proceed to interfere with the unterminated proceedings of a lower court where it intends, in the interests of justice, to grant direct access in the matter and determine the matter itself.

Put differently, this Court must only interfere with un-terminated proceedings in the lower courts where it has jurisdiction in the matter.

If it were to proceed in any other manner, this Court would run the risk of rushing in and interfering with unterminated proceedings in a lower court, that, on final analysis, turn out to have been on a non-constitutional matter.

In such an instance, the interference by this Court would lack legitimacy as having been made in breach of the Constitution that confines the jurisdiction of this Court only to constitutional matters and decisions in issues involving a constitutional matter.

CC08-22 : IGNATIUS CHOMBO vs THE NATIONAL PROSECUTING AUTHORITY and THE PROSECUTOR GENERAL and THE ATTORNEY GENERAL
Ruled By: GARWE JCC, MAKARAU JCC and PATEL JCC

This is an application for leave to appeal against a decision of the Supreme Court handed down on 25 November 2021.

Holding that there was no proper appeal before it, the Supreme Court struck from its roll the appeal that the applicant had noted against a judgment of the High Court.

Using its review powers, the Supreme Court proceeded to set aside the proceedings of the High Court. In doing so, it held that the High Court did not have the requisite jurisdiction to determine the matter as it did or at all.

It is this order that the applicant intends to appeal against, with leave.

Background

The applicant was arrested by the police on 23 November 2017. He is facing one count of contravening the Prevention of Corruption Act [Chapter 9.16], and one count each of contravening sections 174(1)(a) and 126 of the Criminal Law (Codification and Reform) Act [Chapter 9.23]. These relate to abuse of office as a public officer and fraud respectively. He is appearing before the Magistrates Court.

Prior to his arrest by the police, the applicant alleges that he was unlawfully arrested by the military police, in particular, seven men in military uniform and armed with assault rifles. He further alleges that these seven men, in military uniforms, armed with assault rifles, blindfolded him and took him to an unknown place where they forcibly held and interrogated him for nine days.

Thereafter, the applicant was formally arrested by the police.

Upon being arraigned before a magistrate, the applicant pleaded with the court not to be placed on remand for the alleged offences as his arrest was unlawful.

In essence, he was seeking, as consequential relief, a permanent stay of his prosecution on the three charges.

In this regard, he contended that his arrest, for the purposes of the law, had commenced when he was arrested by the unknown military personnel, agents of the State and that such arrest was patently unconstitutional as he was not brought before a court within the forty-eight hours stipulated in the law.

The arrest and torture of the applicant by the men in military uniform was not challenged by the first and second respondents before the magistrate or in any proceedings thereafter.

In arguing that the applicant's rights had been duly observed upon his arrest, the first and second respondents confined their submissions to the events that unfolded after the formal arrest of the applicant by the police.

Ruling on the unlawful arrest and torture of the applicant, the trial magistrate found, that, the applicant had failed to prove that the seven men in military uniform, and armed with assault rifles, were agents of the State. After further finding that his subsequent arrest by the police was procedural, the trial magistrate placed the applicant on remand, denied him bail, and remanded him in custody.

The applicant was, in due course, granted bail by the High Court.

In doing so, the High Court expressed its disquiet over the failure by the trial magistrate to properly investigate the alleged infringements of the applicant's rights and freedoms.

The trial of the applicant commenced.

Whilst it was underway, the applicant approached the High Court, under section 85(1) of the Constitution, once again seeking a permanent stay of the criminal proceedings against him on the basis that his rights and freedoms had been infringed as detailed above.

At the hearing of the matter before the High Court, the issue of the jurisdiction of that court to determine the matter during the pendency of the criminal trial before the Magistrates Court arose.

The High Court dismissed the contention that it did not have the requisite jurisdiction to determine the matter.

It nevertheless went on to dismiss the matter on the basis, that, the torture of the applicant was for no apparent reason in that it had not elicited any evidence or confession from the applicant. Being gratuitous, the torture of the applicant by the military was, at law, not a sound basis for permanently staying the criminal proceedings against him, the High Court went on to rule.

Dissatisfied with the dismissal of his application by the High Court, the applicant noted an appeal to the Supreme Court. It is not necessary that I set out the grounds of the appeal. This is so, because, in its decision, the Supreme Court neither determined nor adverted to these grounds.

It is however pertinent to record, that, the finding by the High Court, that it had jurisdiction in the matter, was not appealed or cross-appealed against.

Mero motu, the Supreme Court raised the issue.

It thereafter properly invited the parties to make additional submissions addressing the legal position governing the jurisdiction of the High Court in the matter.

It was the view of the Supreme Court, and correctly so, that, the provisions of section 175(4) of the Constitution were integral to the appeal that was before it, and, in particular, on the issue it had raised with the parties.

This is the provision that details the procedure to be adopted when a constitutional matter arises during any court proceedings.

The Supreme Court was keenly alive to the pending criminal proceedings before the Magistrate's Court, and during which proceedings the constitutional question of the legal redress of the applicant's unlawful arrest and torture had arisen.

Consequently, the Supreme Court found, that, by approaching the High Court during the pendency of the proceedings before the Magistrates Courts, the applicant had contradicted the precepts of certainty of process as articulated by this Court in Chihava & Ors v Principal Magistrate & Anor 2015 (2) ZLR 31 (CC).

I advert to this point in greater detail below.

In the final analysis, the Supreme Court held, that, the ratio decidendi in Chihava & Ors v Principal Magistrate & Anor 2015 (2) ZLR 31 (CC) applied in full force to the facts before it. It also made the following four observations:

1. That, the Magistrates Court had vantage over the High Court in that it had heard evidence on the matter whereas the High Court was relying on an affidavit;

2. That, the Magistrates Court had jurisdiction in the matter;

3. That, the proceedings before the High Court had the potential to disrupt the proceedings in the Magistrates Court; and

4. That, the approach to the High Court was novel and was not supported by an elaborate procedure as the one set out in the rules of the Constitutional Court.

As a result, the decision by the High Court was found, rather euphemistically, to have been made on no sound jurisdictional basis and was accordingly set aside. In short, the Supreme Court held, that, the High Court had no jurisdiction in the matter.

The Intended Appeal

In the event that he is successful in the application for leave, the applicant intends to appeal against the decision of the Supreme Court on the following three grounds:

“1. The court a quo misdirected itself in not finding, that, the fact that the High Court is a 'superior court of record' under section 170 of the Constitution prohibited the Supreme Court from regarding the High Court as one of the 'inferior courts of justice' referred to in section 25 of the Supreme Court Act [Chapter 7.13].

2. The court a quo misdirected itself and erred in law in applying the precepts set out in Chihava & Ors v Principal Magistrate & Anor 2015 (2) ZLR 31 (CC) to take away the jurisdiction of the High Court to determine the appellant's application brought to it under section 85 of the Constitution, notwithstanding the pendency of criminal proceedings in the magistrates court.

3. The court a quo erred and misdirected itself in not finding, that, once the High Court, rightly or wrongly, assumed jurisdiction and determined on the merits, an application under section 85 of the Constitution, the resultant judgment could not be a nullity.”

The broad issue that falls for determination in this application is whether it is in the interests of justice that the applicant be granted leave to appeal to this Court against the order of the Supreme Court.

The narrow and more specific issue is whether the decision of the Supreme Court was on a constitutional issue that was clearly articulated, and, additionally, whether the intended appeal enjoys prospects of success.

I define the issues narrowly in this fashion following the requirements of the law governing the determination of applications for leave to appeal to this Court....,.

The first ground of appeal raises the issue of the review jurisdiction of the Supreme Court over the proceedings and decisions of the High Court.

It is the appellant's contention, that, the High Court is a “superior court of record” under section 170 of the Constitution and that this in turn prohibits the Supreme Court from regarding it as one of the “inferior courts of justice” referred to in section 25 of the Supreme Court Act [Chapter 7.13].

As correctly noted by the applicant, section 170 of the Constitution provides that the High Court is a superior court of record.

The term “superior court of record” is however not defined in the Constitution.

Counsel for the applicant relied on the remarks by the Supreme Court in Chidyausiku v Nyakabambo 1987 (2) ZLR 119 (S) where the court held, that, the High Court was not an inferior court as contemplated by section 25 of the Supreme Court of Zimbabwe Act.

Whilst this decision has not been specifically overruled subsequently, it has been studiously and routinely ignored by the Supreme Court itself.

Quite apart from the fact that the Supreme Court is not bound by its own decisions, this is one decision that is well known in the jurisdiction for the fact that it has been ignored more times than it has been applied.

For the purposes of determining this application, it is not necessary that I debate and determine the stare decisis effect of Chidyausiku v Nyakabambo 1987 (2) ZLR 119 (S) generally or seek to reconcile it with the numerous later decisions of the Supreme Court that have clearly gone against it.

This is so because it is my considered view, that, this application, and the intended appeal, turn and fall by the way side on the basis of the second issue raised by the applicant.

In the second ground of the intended appeal, the applicant contends that “the court a quo misdirected itself and erred in law in applying the precepts set out in Chihava & Ors v Principal Magistrate & Anor…, to take away the jurisdiction of the High Court to determine the appellant's application brought to it under section 85 of the Constitution, notwithstanding the pendency of criminal proceedings in the Magistrates Court.”

I cite in the contention the first ground of the intended appeal in full.

That the decision of the Supreme Court was squarely based on the ratio decidendi in Chihava & Ors v Principal Magistrate & Anor 2015 (2) ZLR 31 (CC) is not in dispute.

The ratio decidendi in Chihava & Ors v Principal Magistrate & Anor 2015 (2) ZLR 31 (CC), correctly understood, has a fairly broad and far-reaching impact on the right of persons to access a court in terms of section 85(1) of the Constitution for the enforcement of fundamental rights and freedoms in circumstances where section 175(4) of the Constitution can also, and should, consequently apply.

I understand the ratio decidendi of the case to lay down the legal proposition, unequivocally and without exception, that, any person who is appearing before any court and intending to raise and rely on any alleged violation of their fundamental rights or freedoms for any relief, must invoke the provisions of section 175(4) of the Constitution or forever lose their right to claim relief for such violations.

Put differently, Chihava & Ors v Principal Magistrate & Anor 2015 (2) ZLR 31 (CC) holds, that, the right of any person to access a court, in terms of section 85(1) of the Constitution, if that person is already a party to proceedings before another court, is completely negated and the constitutional jurisdiction of all other courts is ousted.

I pause to note, that, this negation of the right to access other courts or the complete ouster of the jurisdiction of other courts, other than the court wherein the proceedings are underway, is not a mere rule of practice and procedure which, in the interests of justice, may be departed from.

It is an interpretation of the Constitution by this Court.

It therefore forms part of the body of the Constitutional Law of this jurisdiction on access to the courts to enforce a fundamental right or freedom.

In consequence of the above, the broad position of the law then becomes, that, where a person is already before a court in any proceedings, an approach to any other court, in terms of section 85(1) of the Constitution, for the enforcement of a fundamental right or freedom, outside the provisions of section 175(4) of the Constitution, is legally incompetent.

It begets a nullity for want of jurisdiction.

The other court so approached is stripped of its constitutional jurisdiction under section 85(1) by the availability of the procedure under section 175(4).

The above interpretation of the Constitution, by implication, rightly or wrongly, also supersedes and overrules the common law position that grants the High Court inherent jurisdiction over all persons and all matters.

It would appear that the legal position that I have outlined above, unduly restrictive on the right to access courts for the enforcement of fundamental rights and freedoms as it seems to be, is the position that obtained under the repealed Constitution.

It was the settled position under that Constitution, that, any constitutional issues arising in a lower court, during the course of any proceedings, had to be referred to this Court in terms of section 24(2) and could not be brought, pursuant to section 24(3), as a fresh cause of action under section 24(1): see Jesse v Attorney-General 1999 (1) ZLR 121 (S)…,.

Notwithstanding the adoption of the current Constitution, the position of the law remains unchanged.

Section 175(4) of the Constitution is the equivalent of section 24(2) of the repealed Constitution whilst section 85(1) is the current version of section 24(1), albeit improved.

That, the two provisions are located in different chapters of the Constitution detracts not from their effect and import as interpreted by this Court.

If I have correctly understood its ratio decidendi, then, Chihava & Ors v Principal Magistrate & Anor 2015 (2) ZLR 31 (CC) is authority for the simple proposition, that, where any person is before any court on any non-constitutional matter, but intends to seek redress for the alleged breach of his or her fundamental rights and/or freedoms arising in connection with that matter, he or she must raise the alleged breach before that court and invoke the provisions of section 175(4) of the Constitution if he or she intends to have the matter determined by this Court.

The party may also petition that court directly for any appropriate relief.

The net effect of this position is, that, any purported approach to another court, in terms of section 85(1) of the Constitution, under the circumstances, is not only impermissible but is a nullity as the constitutional jurisdiction of all other courts, the High Court included, is not only arrested but is lost by operation of law.

The import of the decision in Chihava & Ors v Principal Magistrate & Anor 2015 (2) ZLR 31 (CC) is thus not only to render section 175(4) of the Constitution as regulating access to the Constitutional Court on issues arising during proceedings before any court, as argued by counsel for the applicant, but to render section 85(1) of the Constitution redundant and of no force and effect where proceedings involving the applicant are pending before a court.

On the basis of the above, I must reject the argument by counsel for the applicant, that, section 85(1) of the Constitution creates unimpeded access to the High Court.

It does not always do so.

It only does so where there are no pending proceedings before any other court to which the applicant is a party.

In casu, the applicant was appearing before the Magistrates Court where he correctly raised the allegations of the breach of his fundamental rights. By the mere fact that he was appearing before the Magistrate's Court where he was obliged to raise such allegations, the constitutional jurisdiction of all other courts, under section 85(1) of the Constitution, the High Court, and this Court included, was thereby extinguished and lost.

This is the import of the ratio in Chihava & Ors v Principal Magistrate & Anor 2015 (2) ZLR 31 (CC) which the Supreme Court correctly applied.

The ratio of Chihava & Ors v Principal Magistrate & Anor 2015 (2) ZLR 31 (CC), however, does not extinguish the right of the applicant to access this Court under section 85(1) of the Constitution, alleging that a lower court has wrongfully refused a request for a referral made under section 175(4) of the Constitution.

The cause of action in that matter will be the refusal by the lower court to refer the matter to this Court and not the alleged violation of the fundamental rights or freedoms giving rise to the referral.

It is therefore my finding, that, the applicant enjoys no prospects of success on the second ground of the intended appeal. It is most unlikely that this Court will reverse the order of the Supreme Court and find, instead, that, the High Court enjoyed jurisdiction, inherent or otherwise, in the matter.

By parity of reasoning, the third ground of the intended appeal falls by the wayside.

The assumption of jurisdiction by the High Court, in the circumstances of this matter, was erroneous and grievously so. It begot nothing that can be salvaged. Once it is accepted that the High Court did not have any jurisdiction in the matter that concludes the inquiry. Its proceedings fall away automatically by operation of law.

There is thus no possibility, in the circumstances of this matter, that, this court will find, as contended by the applicant, that “the court a quo erred and misdirected itself in not finding that once the High Court, rightly or wrongly, assumed jurisdiction and determined on the merits, an application under section 85 of the Constitution, the resultant judgment could not be a nullity.”

Disposition

The applicant has no prospect of success on its main contention that the High Court had jurisdiction in the matter that was placed before it. Accordingly, his application for leave to appeal cannot succeed.

Regarding costs, I see no justification for making an award of costs in this matter.

In the result, I make the following order:

The application is dismissed with no order as to costs.

HHMT06-20 : BOTHWELL NYAMANDE vs THE STATE
Ruled By: MWAYERA J and MUZENDA J

On 14 August 2019, the appellant appeared before the Senior Magistrate sitting at Mutare facing a charge of Robbery as defined in section 126 of the Criminal Law (Codification and Reform) Act [Chapter 9:23].

The State alleged, that, on 13 August 2019, and at Kale Church Federation, Dangamvura, Mutare, the appellant unlawfully and intentionally used violence and attempted to strike Tinashe Munyanyi on his hands with an axe and stole a GTel X5 cell phone.

The appellant, who was not legally represented, pleaded guilty; he was convicted and sentenced to 5 years imprisonment of which 1 year imprisonment was suspended for 5 years on the usual conditions of future good behaviour.

On 22 August 2019, the appellant noted an appeal against conviction and advanced two grounds of appeal which were spelt out as follows:

“Grounds of Appeal

1. The learned trial magistrate erred and misdirected himself at law when he failed to fully and exhaustively canvass the essential elements of the offence with the appellant who was not legally represented and the conviction is not proper and in accordance with real and substantial justice.

2. The learned trial magistrate erred and misdirected himself at law by failing to explain the gravity of the offence to the unrepresented appellant and to adequately inform him of his constitutional rights relating to legal representation.”

On the date of hearing the appeal, counsel who appeared on behalf of the appellant abandoned ground of appeal number two and chose to pursue the first ground.

The State did not have problems with that and the withdrawal of that ground of appeal was allowed.

Counsel for the appellant proceeded to attack the proceedings of the court a quo arguing that the trial court did not comprehensively and exhaustively put across to the appellant the essential elements of the offence of Robbery, moreso where the appellant was not legally represented.

He went on to argue that the essential elements of robbery consists of theft of property by unlawful and intentional using of violence or threats of violence to induce submission to the taking of it from the person of another or in his/her presence. The threat of violence or the violence itself should sustain a charge of robbery or be intended by the perpetrator to induce or cause the owner of the property to relinquish his or her property.

Counsel for the appellant further submitted, that, the reading of the record of proceedings does not show that the essential elements of robbery were established.

He added, that, the trial magistrate did not ask the pertinent question as to what the appellant intended to attain by threatening the complainant with an axe.

The essential elements of the charge of robbery, he goes on in his submissions, were not properly canvassed by form of questions put to the appellant by the court a quo.

When the court showed counsel for the appellant the manuscript of the record of proceedings, he admitted that the had not read the long hand noted by the court, he also admitted that when the Notice of Appeal was prepared, the legal firm's Professional Assistant might have not read the record of proceedings; he further admitted before the court, that, after reading the manuscript of the record of proceedings, the attack by the appellant, contained in the residual ground of appeal had no merit.

The trial court comprehensively covered all the essential elements of robbery and the appeal had no merit at all.

It is very disturbing to note, that, an appeal is prepared by a legal practitioner without first of all going through the whole record of proceedings, including the notes captured by a judicial officer, moreso where the fulcrum of the appeal is centred on the allegations of failure by a court to put essential elements of a charge to the appellant.

The whole idea of certifying the transcript by all stakeholders is to confirm that what is contained in the transcribed record is a true and accurate reflection of the manuscript.

Whether the Notice of Appeal was prepared by another legal practitioner, the legal practitioner arguing the appeal must acquaint oneself with both the manuscript as well as the transcript.

All this is done to avoid misleading the Appeal Court.

The appellant's legal practitioners found themselves in a very difficult position to attack the conduct of the trial magistrate as it clearly appeared in the record of proceedings that all the essential elements of robbery were competently and clearly put to the appellant and the appellant admitted to them without hesitation and was properly convicted on his own plea of guilty.

As earlier indicated herein, the appellant's legal practitioners conceded that the appeal had no merit and it was accordingly ordered as follows:

The appeal be and is hereby dismissed.

HMT45-19 : JAMES DRYNAN vs MAGISTRATE N. N KUTURE and ZIMBABWE NATIONAL ROADS ADMINISTRATION
Ruled By: MUZENDA J

On 18 September 2018, the applicant filed a court application for review seeking the following relief spelt out in the draft order:

“1. The decision of the first respondent in which she made an order for the rescission of default judgment in court case number 127/18 in favour of second respondent be and is set aside.

2. The application of second respondent for rescission of default judgment be remitted for rehearing before a different magistrate.”

On 28 September 2018, the second respondent filed its opposing papers.

BACKGROUND

On 5 February, the applicant initiated summons at the Magistrates Court claiming US$651 from the second respondent, the Zimbabwe National Roads Administration.

The applicant, on 21 May 2013, attempted to receive an exemption over a number of his motor vehicles from Zimbabwe National Roads Administration for the period extending 1 June 2013 to 31 May 2014.

The Zimbabwe National Roads Administration officials demanded a letter from a commercial garage certifying such automobiles inoperative for a specified period.

From 2013 to 2018, a number of correspondences took place between the applicant and the second respondent.

In January 2018, the applicant was told, by the Zimbabwe National Roads Administration, to pay a total of $696 licencing penalty and penalty fees up to 30 April 2018.

The applicant admitted to pay $45 but resolved to claim $651, being the difference between $699 and $45, which amount he argued was excessive and unjustified in his view.

On 25 February 2018, a default judgment was granted in favour of the applicant.

On 12 March 2018, the Zimbabwe National Roads Administration filed an application for rescission of judgment.

The second respondent also filed, on the same date, an ex parte application for stay of execution.

On 26 March 2018, the applicant filed his opposing papers for the rescission of judgment as well as stay of execution.

On 13 July 2018, the magistrate, the first respondent in this application, heard the application for rescission and stay and deferred her ruling to 27 July 2018.

It is common cause, that, both applications, for rescission and stay of execution, were granted.

The second respondent was given leave by the magistrate to file a notice of appearance to defend. It filed it, and, then, proceeded to file an exception to the current applicant's summons.

Meanwhile, the applicant embarked on a vitriolic attack of the judicial officer, the magistrate, through writing of letters up to the Chief Justice.

When the second respondent caused the exception to be set down for argument, the trial magistrate, recused herself, patently because of the attack by the applicant.

The exception was set down for 11 September 2018 and postponed to 20 September 2018 so that a different magistrate would deal with the matter.

Before the matter could be heard, as already indicated, the applicant filed a court application for review.

Meanwhile, the hearing of the exception was deferred indefinitely until the finalisation of the review application.

On 24 June 2019, I gave the following order, indicating that I would give reasons for that order:

“IT IS ORDERED THAT:

1. Points in limine raised by the 2nd Respondent is upheld.

2. Application for review is dismissed with costs on attorney client scale.”

On the very date, 24 June 2019, the applicant submitted a letter addressed to the Registrar which he wanted to be placed before me raising my attention “on matters which he might have overlooked in an attempt to deal expeditiously with the proceedings before him” to use the applicant's own words.

As a matter of comment, I read the letter, but, at that stage, the court was functus officio. I could not revisit the proceedings.

I opted not reply the letter, serve to mention, that, the very points raised by the applicant had been extensively covered by the applicant in a document he produced in court.

I had read the document, and, in principle, covered the chronicle of what has built up in the matter before the application.

I wonder why the applicant assumed that I had not appreciated what he had submitted, but, presumably because I had dismissed his application, he thought that I had missed the point.

I had not, and, the following are my reasons for upholding the second respondent's preliminary points.

The second respondent submitted, that, the application for review is fatally defective for want of compliance with Order 33 Rule 257 of the High Court Rules of Zimbabwe.

Rule 257 of the High Court Rules provides:

“The Court application shall state, shortly and clearly, the grounds upon the applicant seeks to have the proceedings set aside or corrected and the exact relief prayed for.”

The applicant did not outline these reasons on the application.

They appear in paragraph 70 of his founding affidavit and stretches from paragraph 71 to paragraph 80.

Even assuming that the grounds were stated by the applicant; they are not short and precise, and, maybe the applicant followed Rule 256.

In addition, the exact relief prayed for by the applicant does not appear on the face of the application.

It is peremptory that the provisions of Rule 257 must be complied with, as well spelt out by MAKONI J…, in the matter of Fabiola N. Gonye v Fadzai Mtombeni N.O. and Others HH356-17.

“The import of the above Rule is that an applicant seeking a review must approach this court by way of court application unless it is a proceeding in terms of any other law other than Rule 256. It is incumbent upon such application to state clearly in terms of which law is proceeding under in filing the application for review right at the outset. Where no such clear statement is made in the court application it will be taken that the applicant is proceeding in terms of Rule 256.”

Hence, failure to comply with this Rule constitutes a fatal flaw.

“As regards the failure on the part of Chataura to comply with Rule 257 of the High Court Rules, it seems to me, that, non-compliance would constitute good grounds for dismissing this application. Rule 257 requires that an application to bring proceedings under review shall state shortly and clearly the grounds upon which the applicant seeks to have the proceedings set aside or corrected and the exact relief prayed for. In the Pen Transport, Mushaishi and Marumahoko cases referred to earlier, the courts clearly stated that failure to comply with Rule 257 constituted a fatal flaw. The time has surely come to say enough is enough and to dismiss the defective applications without considering the merits:” see Chataura v Zimbabwe Electricity Supply Authority 2001 (1) ZLR 30 (H) per SMITH J.

In the matter of Dandazi v Wankie Colliery Co. Ltd 2001 (2) ZLR 298 (H) the rationale of compliance with Rule 257 of the High Court Rules was reiterated and the court held:

“At this stage, I wish to make an observation which is relevant to many review applications that are brought to the High Court. In terms of Order 33 Rule 257, it is a requirement that: the court application shall state, shortly and clearly, the grounds upon which the applicant seeks to have the proceedings set aside or corrected and the exact relief prayed for.

This is not an idle requirement.

It was inserted in the rules of the court so that an applicant for review may apply his mind to the grounds upon which he seeks a review and be able to state them clearly and in brief form.

Often, in review applications, all sorts of grounds are lumped together in the body by the founding affidavit making it very difficult for the presiding judicial officer to determine the grounds upon which the matter is to be reviewed.”…,.

This is exactly what the applicant did in this application.

He vehemently argued, that, the grounds for review or relief sought, are part of the affidavit.

I conclude, that, in the light of the above cases cited, that is a gross irregularity; such non-compliance with Rule 257 of the High Court Rules goes to the root of the application, which only can be addressed by dismissing the application.

The applicant's grounds for review is that of bias and irrationality on the ruling of the Magistrate.

Such a ground must equally be stated in the court application: see Dandazi v Wankie Colliery Co. Ltd 2001 (2) ZLR 298 (H).

A failure to do so is a gross irregularity which renders a matter improperly before the court and that is where the court held that:

“If, as in the present case, the grounds are based on bias and gross irregularity in the proceedings, then, those grounds must be stated in the application. A failure to do so, as was the case in this application, is a failure to comply with Order 33 Rule 257. The consequence of that failure is that the matter is not properly before the court and the applicant must not be heard.”…,: see also the matter of Minister of Labour & Others v Pen Transport (Pvt) Ltd 1989 (1) ZLR 293 (S) per GUBBAY JA…,.

I allowed the applicant to make submissions relating to both the points in limine and the merits.

However, having looked at the preliminary points capably addressed by the second respondent, I am of the view, that, the applicant's papers are not in order and the points in limine were accordingly upheld with an order of costs on a punitive scale.

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Law Portal
Zimbabwe

Review re: Terminated or Complete Proceedings iro Approach, Review Jurisdiction, Powers, Grounds & Record of Proceedings

SC26-21 : JOSEPH LUNGU and OTHERS vs RESERVE BANK OF ZIMBABWE
Ruled By: GUVAVA JA, MAVANGIRA JA and MAKONI JA

HH656-14 : DERDALE INVESTMENTS (PVT) LTD vs ECONET WIRELESS (PVT) LTD and THE CITY OF HARARE and HONOURABLE JUSTICE MANDEYA
Ruled By: DUBE J

HH656-14 : DERDALE INVESTMENTS (PVT) LTD vs ECONET WIRELESS (PVT) LTD and THE CITY OF HARARE and HONOURABLE JUSTICE MANDEYA
Ruled By: DUBE J

HHH63-21 : ROBERT GUMBURA B157/21 and BLESSING CHIDUKE B136/21 vs THE STATE
Ruled By: CHITAPI J

HHB14-15 : THE STATE vs ZONDIWE NCUBE
Ruled By: TAKUVA J and MUTEMA J

SSC46-12 : CHARLES KWARAMBA vs THE HONOURABLE MR JUSTICE BHUNU N.O.
Ruled By: CHIDYAUSIKU CJ

SC60-21 : LEATHOUT INVESTMENTS (PVT) LTD vs FUTURE MUVIRIMI and PETRONELLA MUVIRIMI
Ruled By: GOWORA JA, PATEL JA and BERE JA

HHH242-13 : LEE WAVERLEY JOHN vs THE STATE and SIMON RODGERS KACHAMBWA N.O.
Ruled By: MAFUSIRE J

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

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

HHH135-17 : SPARKLES SERVICES (PVT) LTD and GODFREY MUNYAMANA vs THE STATE and MAPFUMO FRANCIS (NO)
Ruled By: MAKONI J

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

View Appeal
HH85-21 : JULIET KADUNGURE and ANDERSON KADUNGURE and NERIA KADUNGURE vs PATRICIA DARANGWA and MASTER OF THE HIGH COURT OF ZIMBABWE (N.O.)
Ruled By: CHIRAWU-MUGOMBA J

SC141-21 : WISE GARIRA and SHEPHARD MASHINGAIDZE and BAYAI BAYAI vs NATIONAL ENGINEERING WORKERS UNION and FIRST CAPITAL BANK
Ruled By: GUVAVA JA, BHUNU JA and KUDYA AJA

HH595-15 : MAKANDI TEA AND COFFEE ESTATE (PVT) LTD vs THE ATTORNEY GENERAL OF ZIMBABWE N.O. and V. GAPARA N.O.
Ruled By: MAKONI J

HHMA03-19 : STATE vs JOHANIS MUKWENA
Ruled By: MAFUSIRE J and MAWADZE J

HHMA20-19 : THE STATE vs X
Ruled By: MAWADZE J and MAFUSIRE J

CC04-22 : JOANAH MAMOMBE and CECILIA CHIMBIRU vs FAITH MUSHURE N.O. and THE STATE
Ruled By: MAKARAU JCC

CC08-22 : IGNATIUS CHOMBO vs THE NATIONAL PROSECUTING AUTHORITY and THE PROSECUTOR GENERAL and THE ATTORNEY GENERAL
Ruled By: GARWE JCC, MAKARAU JCC and PATEL JCC

HHMT06-20 : BOTHWELL NYAMANDE vs THE STATE
Ruled By: MWAYERA J and MUZENDA J

HMT45-19 : JAMES DRYNAN vs MAGISTRATE N. N KUTURE and ZIMBABWE NATIONAL ROADS ADMINISTRATION
Ruled By: MUZENDA J

Categories

Law Portal Zimbabwe

Review re: Terminated or Complete Proceedings iro Approach, Review Jurisdiction, Powers, Grounds & Record of Proceedings

SC26-21 : JOSEPH LUNGU and OTHERS vs RESERVE BANK OF ZIMBABWE Ruled By: GUVAVA JA, MAVANGIRA JA and MAKONI JA

HH656-14 : DERDALE INVESTMENTS (PVT) LTD vs ECONET WIRELESS (PVT) LTD and THE CITY OF HARARE and HONOURABLE JUSTICE MANDEYA Ruled By: DUBE J

HH656-14 : DERDALE INVESTMENTS (PVT) LTD vs ECONET WIRELESS (PVT) LTD and THE CITY OF HARARE and HONOURABLE JUSTICE MANDEYA Ruled By: DUBE J

HHH63-21 : ROBERT GUMBURA B157/21 and BLESSING CHIDUKE B136/21 vs THE STATE Ruled By: CHITAPI J

HHB14-15 : THE STATE vs ZONDIWE NCUBE Ruled By: TAKUVA J and MUTEMA J

SSC46-12 : CHARLES KWARAMBA vs THE HONOURABLE MR JUSTICE BHUNU N.O. Ruled By: CHIDYAUSIKU CJ

SC60-21 : LEATHOUT INVESTMENTS (PVT) LTD vs FUTURE MUVIRIMI and PETRONELLA MUVIRIMI Ruled By: GOWORA JA, PATEL JA and BERE JA

HHH242-13 : LEE WAVERLEY JOHN vs THE STATE and SIMON RODGERS KACHAMBWA N.O. Ruled By: MAFUSIRE J

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

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

HHH135-17 : SPARKLES SERVICES (PVT) LTD and GODFREY MUNYAMANA vs THE STATE and MAPFUMO FRANCIS (NO) Ruled By: MAKONI J

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

View Appeal HH85-21 : JULIET KADUNGURE and ANDERSON KADUNGURE and NERIA KADUNGURE vs PATRICIA DARANGWA and MASTER OF THE HIGH COURT OF ZIMBABWE (N.O.) Ruled By: CHIRAWU-MUGOMBA J

SC141-21 : WISE GARIRA and SHEPHARD MASHINGAIDZE and BAYAI BAYAI vs NATIONAL ENGINEERING WORKERS UNION and FIRST CAPITAL BANK Ruled By: GUVAVA JA, BHUNU JA and KUDYA AJA

HH595-15 : MAKANDI TEA AND COFFEE ESTATE (PVT) LTD vs THE ATTORNEY GENERAL OF ZIMBABWE N.O. and V. GAPARA N.O. Ruled By: MAKONI J

HHMA03-19 : STATE vs JOHANIS MUKWENA Ruled By: MAFUSIRE J and MAWADZE J

HHMA20-19 : THE STATE vs X Ruled By: MAWADZE J and MAFUSIRE J

CC04-22 : JOANAH MAMOMBE and CECILIA CHIMBIRU vs FAITH MUSHURE N.O. and THE STATE Ruled By: MAKARAU JCC

CC08-22 : IGNATIUS CHOMBO vs THE NATIONAL PROSECUTING AUTHORITY and THE PROSECUTOR GENERAL and THE ATTORNEY GENERAL Ruled By: GARWE JCC, MAKARAU JCC and PATEL JCC

HHMT06-20 : BOTHWELL NYAMANDE vs THE STATE Ruled By: MWAYERA J and MUZENDA J

HMT45-19 : JAMES DRYNAN vs MAGISTRATE N. N KUTURE and ZIMBABWE NATIONAL ROADS ADMINISTRATION Ruled By: MUZENDA J

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Law Portal
Zimbabwe

SC26-21 : JOSEPH LUNGU and OTHERS vs RESERVE BANK OF ZIMBABWE
Ruled By: GUVAVA JA, MAVANGIRA JA and MAKONI JA

HH656-14 : DERDALE INVESTMENTS (PVT) LTD vs ECONET WIRELESS (PVT) LTD and THE CITY OF HARARE and HONOURABLE JUSTICE MANDEYA
Ruled By: DUBE J

HH656-14 : DERDALE INVESTMENTS (PVT) LTD vs ECONET WIRELESS (PVT) LTD and THE CITY OF HARARE and HONOURABLE JUSTICE MANDEYA
Ruled By: DUBE J

HHH63-21 : ROBERT GUMBURA B157/21 and BLESSING CHIDUKE B136/21 vs THE STATE
Ruled By: CHITAPI J

HHB14-15 : THE STATE vs ZONDIWE NCUBE
Ruled By: TAKUVA J and MUTEMA J

SSC46-12 : CHARLES KWARAMBA vs THE HONOURABLE MR JUSTICE BHUNU N.O.
Ruled By: CHIDYAUSIKU CJ

SC60-21 : LEATHOUT INVESTMENTS (PVT) LTD vs FUTURE MUVIRIMI and PETRONELLA MUVIRIMI
Ruled By: GOWORA JA, PATEL JA and BERE JA

HHH242-13 : LEE WAVERLEY JOHN vs THE STATE and SIMON RODGERS KACHAMBWA N.O.
Ruled By: MAFUSIRE J

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

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

HHH135-17 : SPARKLES SERVICES (PVT) LTD and GODFREY MUNYAMANA vs THE STATE and MAPFUMO FRANCIS (NO)
Ruled By: MAKONI J

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

View Appeal
HH85-21 : JULIET KADUNGURE and ANDERSON KADUNGURE and NERIA KADUNGURE vs PATRICIA DARANGWA and MASTER OF THE HIGH COURT OF ZIMBABWE (N.O.)
Ruled By: CHIRAWU-MUGOMBA J

SC141-21 : WISE GARIRA and SHEPHARD MASHINGAIDZE and BAYAI BAYAI vs NATIONAL ENGINEERING WORKERS UNION and FIRST CAPITAL BANK
Ruled By: GUVAVA JA, BHUNU JA and KUDYA AJA

HH595-15 : MAKANDI TEA AND COFFEE ESTATE (PVT) LTD vs THE ATTORNEY GENERAL OF ZIMBABWE N.O. and V. GAPARA N.O.
Ruled By: MAKONI J

HHMA03-19 : STATE vs JOHANIS MUKWENA
Ruled By: MAFUSIRE J and MAWADZE J

HHMA20-19 : THE STATE vs X
Ruled By: MAWADZE J and MAFUSIRE J

CC04-22 : JOANAH MAMOMBE and CECILIA CHIMBIRU vs FAITH MUSHURE N.O. and THE STATE
Ruled By: MAKARAU JCC

CC08-22 : IGNATIUS CHOMBO vs THE NATIONAL PROSECUTING AUTHORITY and THE PROSECUTOR GENERAL and THE ATTORNEY GENERAL
Ruled By: GARWE JCC, MAKARAU JCC and PATEL JCC

HHMT06-20 : BOTHWELL NYAMANDE vs THE STATE
Ruled By: MWAYERA J and MUZENDA J

HMT45-19 : JAMES DRYNAN vs MAGISTRATE N. N KUTURE and ZIMBABWE NATIONAL ROADS ADMINISTRATION
Ruled By: MUZENDA J