Final Orders re: Principle of Finality in Litigation, Decree of Perpetual Silence, Sitting on Judgments & Superannuation

HH283-17 : IGNATIUS MASAMBA vs THE SECRETARY – JUDICIAL SERVICE COMMISSION and MERCY GORONGOZA
Ruled By: CHITAPI J

Courts have a duty to guard the abuse of the court process, and, where there is unmitigated abuse...,, it is only reasonable, expected, and indeed proper, for the court to shut its doors to the abuser and/or place such abuser on terms with regards how he may be allowed to ...

HH283-17 : IGNATIUS MASAMBA vs THE SECRETARY – JUDICIAL SERVICE COMMISSION and MERCY GORONGOZA
Ruled By: CHITAPI J

On 7 November 2016, the applicant filed this chamber application....,.The Nature of the ApplicationThe chamber application purports to be founded on Rule 449(1)(b) of the High Court Rules, 1971. The Rule provides as follows:“449 Correction, variation and rescission of judgments and orders(1) The court or a judge may, in addition ...

On 7 November 2016, the applicant filed this chamber application....,.

The Nature of the Application

The chamber application purports to be founded on Rule 449(1)(b) of the High Court Rules, 1971. The Rule provides as follows:

“449 Correction, variation and rescission of judgments and orders

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

(a)…,.

(b) In which there is an ambiguity or a patent error or omission, but only to the extent of such ambiguity, error or omission; or

(c)…,.

(d) The court or a judge shall not make any order correcting, rescinding or varying a judgment or order unless satisfied that all parties whose interests may be affected have had notice of the order proposed.”

The Law

I consider it important to briefly deal with the interpretation which the courts have given to Rule 449(1)(b).

Firstly, it must always be borne in mind that when a court or judge is seized with a matter, once it or he pronounces judgment or an order on the matter, it or he becomes functus officio. The court or judge, as the case may be, will have discharged it or his function, rightly or wrongly, and may not revisit or change the determination or decision. A party who is not satisfied with the decision of the court or judge must, subject to any Rule relative thereto, take up the decision on appeal to the Supreme Court. I would say that at its simplest extrapolation, this is the procedure which a litigant who is not satisfied with a decision of the court or judge should follow or be guided by.

Rule 449 recognizes the fallibility of the court or judge inasmuch as decisions of the court are made by human beings. As human beings judges are not infallible.

The Rule, in addition to the common law inherent power of this court to supplement, clarify or correct its judgment, which power does not concern this judgment, allows the court or judge to revisit its judgment in which it or he is functus officio. The revisitation and the powers which the court or judge may exercise are not open ended. The powers which may be exercised, and the circumstances allowing for the revisitation, are circumscribed in the Rule. The court or judge will do so either on its or his accord or upon application by any affected party which means that in addition to the parties to the judgment, a party who was not party to the litigation can utilize the Rule if such party is affected by the judgment or order concerned where it was given in such party's absence; see Mashingaidze v Chipunza & Ors 2015 (2) ZLR 362.

Before the court or judge can correct, rescind or vary any judgment or order based on the provisions of Rule 449(1)(b) at the instance of a party, such party is required to point out to:

(a) The ambiguity; or

(b) Patent error; or

(c) The omission; sought to be relied upon to move the court or judge to exercise a discretion to make alterations to the judgment or order as the case may be.

In Wector Enterprises (Pvt) Ltd v Luxor (Pvt) Ltd 2015 (2) ZLR 57 (S) the learned ZIYAMBI JA gave an overview of the rationale behind Rule 449 generally in the following extract…,:

“Rule 449 of the Rules has been invoked, among other instances;

(i) Where there is a clerical error made by the court or judge; see City of Harare v Cinamon 1992 (1) ZLR 361 (S);

(ii) Where entry of appearance had been entered but not in the file at the time default judgment was entered; see Banda v Fitluk 1993 (2) ZLR 60 (H);

(iii) Where, at the time of issue of the judgment, the judge was unaware of a relevant fact, namely, a clause in an acknowledgement of debt; see Grantually (Pvt) Ltd & Anor v UDC 2000 (1) ZLR 361 (S)…,.

Where applicable, the Rule provides an expeditious way of correcting judgments obviously made in error. It envisages the party in whose absence the judgment was granted being able to place before the court the fact, or facts, which were not before the court granting the judgment. There is no need for the applicant to establish good and sufficient cause as required by Rule 63 of the Rules; See Banda v Pitluk (supra).

However, in each case, the error or mistake relied upon must be proved, and, in each case, the court exercises a discretion; see Gondo & Anor v Syfrets Merchant Bank Ltd 1997 (1) ZLR 201 (H)…,.

In any event, Rule 449 is not mandatory but confers upon the court a discretion to act in terms thereof…,.”

The decisions in Mashingaidze v Chipunza & Ors 2015 (2) ZLR 362 and Vector Enterprises (Pvt) Ltd v Luxor (Pvt) Ltd 2015 (2) ZLR 57 (S), specifically dealt with applications brought under Rule 449(1)(a). This notwithstanding the cases stand as a guide with respect to the overview of the purport of Rule 449 generally.

In Mpansi & Ors v Dube & Ors 2015 ZLR 1 (S), the learned HLATSHWAYO JA dealt with an application for correction or variation of a Supreme Court order pursuant to Rule 58 of the Supreme Court Rules 1964 as read with Rule 449 of the High Court Rules, 1971.

He corrected a costs order in which costs had been granted against the executor of a deceased estate in his personal capacity. The order of costs had not specified that the costs of appeal be borne by the estate. The order had simply read, inter-alia, that; “The appeal is allowed with costs.” Since the executor had been a party to the appeal which was allowed, as a co-respondent, it was argued that the order of costs was ambiguous unless corrected because it gave the impression that both the executor and the estate had to bear costs. The learned judge clarified the costs order.

In my view, an ambiguous judgment or order must be construed as one that is unclear and capable of various interpretations. This may usually come about as a result of the language used by the court or judge. The ambiguity will therefore be attributable to the court or judge in how it or he has expressed himself or herself in the language used. In such a case it has been held that relief should be granted where, from the language used, the ambiguity resulting therefrom has the effect that the true intention of the court or judge is not clear; see First National Bank of South Africa Ltd v Surgens 1993 (1) SA 245 (W)…,.

A patent error or omission, as the expression implies, is one which is clearly obvious to anyone reading the judgment or order. It does not appear to me that the expression should present difficulties of interpretation.

Examples of patent errors may relate, inter alia, to clerical errors with regard to figures, dates, or spellings. For good measure, a court may have ordered that an order be complied with by a certain date, but, when the judgment is typed and signed, it gives a date which had already passed through clerical error or an impossible date like 31 June yet the month of June ends on the 30th.

A court or judge may, for example, in making an order requiring a party to do a certain act or refrain from doing so mistakenly omit to name the party who should so comply, in circumstances where there are several parties in the judgment. Such an omission can be said to be patent, and, in my view, can properly be corrected and the judgment or order varied to make it explicit.

I should mention that I have read the views expressed by the celebrated authors HERBASTEIN and Van WINSEN in The Civil Practice of the The Courts of South Africa, Vol 1, 5th…, where they rely on the judgment, Isaacs v Williams 1983 (2) SA 723, on the interpretation which has been given to Rule 42(1)(b) of the South African Uniforms Rules of Court which reads the same as Rule 449(1)(b).

The authors state that “an order that has been correctly made but incorrectly typed cannot be corrected or amended in terms of this Rule, although a court has the inherent competence to correct the order so that it corresponds with the one made by the court.”

A typing error, in my view, is an error which should be covered by Rule 449(1)(b) because, if the court has made an order and it is say handwritten or verbal and it is recorded, an error in typing becomes patent by comparison between the actual handwritten or recorded order and the typed error. I do not see why the Rule would not cover such a situation.

Even if I am wrong in my reasoning, I would think then that Rule 449(1)(c), which allows for a variation, rescission or correction of a judgment or order on the basis of a mistake common to the parties, would cover the situation.

The distinction is too fine to call because what, in essence, is the judgment or order of the court would be the untyped judgment or order. The act of typing is merely there to reduce the judgment or order to a typed version, and, if the typed version does not reflect the un-typed script, then, in my view, it is patently erroneous to the extent of the mis-typed error.

I therefore respectfully disagree with the said authors for the reasons I have set out. In disagreeing with them, I do so in the hope that I did not misunderstand or misconstrue what they intended to convey.

Analysis of the Application

Having set out the law, and expressed the difficulties I have encountered in comprehending the applicant's founding affidavit, I proceed to analyze, as best I can, the application in casu in the understanding that the applicant must make out a case for relief under Rule 449(1)(b) of the rules of this court.

He must point out to the ambiguity, patent error, or omission which he alleges that the court made in its judgment in case no. HC6970/16. Once he has done this, he must satisfy me that the ambiguity or patent error or omission is such that I should be persuaded to exercise my discretion to exercise to set aside the judgment as prayed for by the applicant in his draft order.

The discretion which I am empowered to exercise, as with any judicial discretion, must, of course, be exercised judiciously which connotes that the discretion must be based on what is fair in the circumstances of the case whilst applying rules and principles of law.

By giving the court or judge a discretion to exercise the powers given in Rule 449, the applicant must understand, as a corollary, that he has no right or entitlement to demand the relief as of right.

I proceed to briefly outline the material facts arising or discernible from the judgment of this court prepared by my sister CHIGUMBA J in case no. HC6970/16 (ref HH660-16) which judgment the applicant seeks to impugn in this application.

On 1 September 2016, Case No. HC6970/16, in which the applicant therein was the applicant, was listed on the unopposed roll following several postponements by other judges who raised various queries. CHIGUMBA J, in her judgment HH660-16, which the applicant has annexed to his present application dismissed that application on the basis that:

“(a) There is no cause of action thereof and the relief sought is incompetent.

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

The applicant, as evident from the judgment, wrote several letters complaining about the dismissal of his application and requesting, if not demanding, for reasons for the order. I have gone through the actual court record in case no HC6970/16 because, in this application, the applicant has just bundled together annexures in the form of documents whose relevance and purport is not clear to me.

I should, at this stage, indicate that the present application was opposed by the first respondent which filed its opposing affidavit on 17 November 2016.

In paragraph 3 of the opposing affidavit, the deponent to the second respondent's affidavit states that he has “read and understood the applicant's founding affidavit…,.” I do not purport to deny his assertion that he has understood it save to state that I unfortunately have not understood it especially reading it in the context of an application purportedly being made under Rule 449 of the High Court Rules.

The contents of the founding affidavit are convoluted, twisted, and difficult to follow.

The applicant attacks the learned CHIGUMBA J as being careless, abusing authority, and going on a frolic of her own in how she dealt with the application HC6970/16. He then speaks about distress suffered by the second respondent which compels her to beam. He speaks of politics creating difficulties in his love affair with the second respondent, more particularly, that ZANU (PF) is blocking him from marrying the second respondent.

In paragraphs 14 and 15 of his founding affidavit, the applicant states as follows:

“14. The (i) beaming which is the act complained of; and (ii) the failure or omission to clarify about whether or not there is political meddling blocking the love affair going right to marriage; and (iii) the failure or omission to clarify or confirm whether or not I can marry her by the second respondent are the acts of carelessness or negligence which judge Chigumba fails to come alive to. See paragraph 37 of the applicant's founding affidavit on page 61. The civil wrong is negligence or carelessness.

15. The 2nd respondent was careless or negligent, in the failure to clarify about the acts or omissions that are complained of about which were specified or itemized in paragraph 37. The negligence or carelessness or failure or omission to clarify by the second respondent as itemized in paragraph 37 of the applicant's founding affidavit in case no: HC6970/16 is the civil wrong or delict or tort or common law breach of the duty of care complained of.”

From the above paragraphs, I got the impression that the applicant was arguing that the learned judge failed to understand or appreciate the cause of action in case no. HC6970/16.

The applicant then attempts to extrapolate the cause of action which the learned judge failed to appreciate or discern.

If I am correct in so holding, then, the applicant is ill-advised to seek recourse in terms of Rule 449(1)(b). Rule 449(1)(b) is not intended to circumvent the process of appeal.

A person who is dissatisfied with the judgment of this court, as would appear to be apparent in this application, if one has regard to the applicant's quoted and other averments, should have the judgment tested by a higher court, on appeal, rather than seeking to have the functus officio court or judge review its or his or her judgment and setting it aside as prayed for by the applicant.

The applicant's thought pattern has left me wondering whether he is compos mentis. I have already indicated that his documents are convulted. This equally applies to his thought pattern. For example, in paragraph 24 of his founding affidavit, which he has typed in bold, he states:

“24. As I write this applicant's founding affidavit: next door neighbours, at 7223A, 25th Street Western Triangle, High Field are emitting alternately both chemical and herbal very pungent smokeless smells. Which means it is just, I am having to deal with a probable political malevolent confederacy of a behemoth nature. And the second respondent is booming/beaming.”

Apart from the above deposition not having any relationship with the alleged ambiguity or errors or omissions in CHIGUMBA J's judgment, one cannot make out the content of the same. It is for this reason that I have found myself questioning the mental composure of the applicant.

I will, among other further meaningless paragraphs, quote paragraph 29 in which the applicant avers:

“29. Possibly, the Judge is complicity. Isn't she? In the postulated most-likely scheme of ZANU (PF) of wanting me to die of AIDS than marry as a targeted person by my political most inveterate adversary, Mr Mugabe, the president of Zimbabwe. What motivated the dismissal. All it does is to seem to confirm my allegations. So where have I lied against ZANU (PF). What motivates the Judge? Is she really incompetent?”

I note that CHIGUMBA J described averments made by the applicant, in his founding affidavit in HC6970/16, inter alia, as jumbled, garbled, and insensible and that no useful purpose could be served by repeating them.

I find myself, after painstakingly trying to make head or tail of the applicant's averments, having to say that the pattern observed by CHIGUMBA J has been repeated.

Although the first respondent has filed opposing papers on the merits, I cannot fathom why the respondent has been made a party to this application. No relief is sought against the first respondent and it is mind boggling why the first respondent would be cited as a party in an application based on Rule 449 of the High Court Rules.

To add salt to injury, the applicant, in his draft order, prays for the setting aside of the judgment in HC6970/16 with costs against the first respondent.

Whilst Rule 449(2) enjoins the court or judge to satisfy it or himself that all parties whose interests may be affected by an exercise of the powers set out in the Rule are made aware of any application made under Rule 449(1), it is not apparent as to how the first respondent is an affected party whether explicitly or implicitly.

The Judicial Service Commission does not supervise the content of a judge's judgment nor does it superintend or influence judgments. It was also not a party to case no. HC6970/16. There is also no reason advanced by the applicant to support or justify a costs order against the first respondent.

I do agree, though, with the first respondent when it states as follows in paragraph 16 of the opposing affidavit:

“16. The applicant has engaged in paranoid delusions throughout his Founding Affidavit, initially accusing everyone, from the President, the Judges of the High Court, political parties, alleged members of the Central Intelligence Organisation, and even the second respondent, whom the applicant alleges to love, of having a sinister plot against him simply because a judgment was entered against him.”

In particular, the applicant has made un-mitigated and virulent attacks on the judge of this court, CHIGUMBA J, without substantiation. He, among other expletives and profanities, accuses the judge of corruption, carelessness, and negligence in an open demonstration of contempt of the judge and court's authority simply because his unopposed application was dismissed for want of merit.

Whilst it is the right of every person to petition the courts, with the courts having a corresponding duty to adjudicate on all matters which come before them, the right does not include the right to abuse the courts and judicial officers.

This application is not only devoid of merit but lacks bona fides. It was filed by a delusional applicant who simply considered that the court, or judge, was wrong to dismiss his application. He then went into attack mode and mounted a sustained attack on the judge and anyone whom he thought, in his delusional state, to be against him.

Courts have a duty to guard the abuse of the court process, and, where there is unmitigated abuse, as in this case, it is only reasonable, expected, and indeed proper, for the court to shut its doors to the abuser and/or place such abuser on terms with regards how he may be allowed to exercise his rights of access to the courts.

There is nothing ambiguous in the judgment delivered by CHIGUMBA J by any stretch of imagination. There is no error or omission discernible - let alone proven by the applicant. The only error is the applicant's perception, which is ill conceived, that he should have been granted the order which he sought. He now seeks to argue why the judge should be held to have been in error by making all sorts of baseless, unintelligible arguments and accusations which clearly fall outside the scope of Rule 449.

I have already indicated that, if the applicant had been properly advised, he should have noted an appeal.

Before rounding off my judgment, I need to comment on a point in limine taken by the first respondent in paragraph 9 of the opposing affidavit, that the applicant adopted a wrong procedure in filing a chamber application for rescission of judgment instead of a court application.

The first respondent argues that because Rule 449(2) requires that interested parties be served, an application under Rule 449 should be brought as an ordinary court application.

I do not agree.

The first respondent should seek guidance from not only Rule 226(2) but should also have regard to Rule 241 and Rule 242.

It is not a correct statement of the law to hold that where a chamber application to a judge is to be served on other interested parties, such application should be brought as a court application or becomes a court application. The correct statement of the law, as I understand it, is that all chamber applications, unless excepted in terms of the exceptions in Rule 242, should be served on all interested parties. This is clear from a reading of Rule 242(1) of the Court Rules.

Thus, reverting to Rule 449, the applicant, or a party, seeking to utilize the Rule for relief can file a chamber application to a judge or a court application. The fact that the party has to notify interested parties does not work to convert the chamber application to a court application. It is on this basis that I have dealt with this chamber application, albeit it being opposed.

I also note that in terms of Rule 229C, the adoption of an incorrect procedure between a court and chamber application does not ground dismissal of the application.

I thus refused the relief of dismissal which the first respondent had prayed for in paragraph 11 of its opposing affidavit.

To conclude my judgment, it is my considered view that this application, for reasons I have pointed out, lacks merit and bona fides. It is, as already alluded to, a clear abuse of the court process.

The matter cannot just end with its dismissal because there is no gainsaying that the applicant will relent his abuse of the court processes. He is the kind of person who is so litigious over frivolous and baseless issues that a sanction is necessary as proposed by the first respondent to stop him from abusing the court process; see Munonyara v CBZ Bank Ltd & Ors HH91-15.

The first respondent has cited the judgment of this court in City of Harare v Tendai Susan Masamba HH330-16 to the effect that courts will shut their doors, justifiably, to curb abuse of their processes; see also Mhiri v Mapedzamombe 1999 (1) ZLR 561.

I have also noted from the judgments of MAKONI J involving the applicant in Ignatius Masamba v Director of Zimsec HH701-16 and Ignatius Masamba v ZTEDC HH699-16 that the learned judge noted in both cases that the applicant was given to dwelling on irrelevancies which were incomprehensible to a great extent. In both cases, which the learned judge dismissed, the applicant was debarred from issuing any process out of this court without first seeking the leave of the court. The two judgments were delivered on 9 November 2016.

The application before me was filed on 7 November 2016.

The learned judge's order did not affect process already filed before the court. This notwithstanding, I consider that it is proper for me to take into account the two matters as clear evidence that it is within the applicant's disposition to institute vexatious and frivolous proceedings and to abuse the process of court. There is need to protect other litigants from abuse as well.

In my judgment, the application in this case bordered on contempt of the judge and the courts.

It is clear that there was no basis for a Rule 449 let alone Rule 449(1)(b) invocation which was apparent or proven. CHIGUMBA J's judgement is clear as crystal. There is nothing to correct or clarify. That the applicant disagreed with the judgment is a different matter which is not remedied by Rule 449. The judgment however clearly shows that the applicant's claim was not sound at law.

For abusing the judge and court as well as for unnecessarily citing the Judicial Services Commission in circumstances where the reasons thereof are not clear other than to bring it to the Commission's attention how the applicant had little regard for the judge, a punitive costs order as prayed for by the first respondent will be justifiable.

I also propose to issue a decree of perpetual silence against the applicant.

Such an order is drastic in its nature and effects as, in essence, I have to order the applicant to abandon this action causa, that is, the one dismissed by CHIGUMBA J in case no. HC6970/16. It is akin to an order for permanent stay of proceedings; compare Sibanda v Attorney General & Anor SC44-07. The case is frivolous and vexatious and without legal basis.

See Ashman (Private) Limited v Harare Car Breakers Sales & Repairs (Pvt) Ltd & Bobby Maparanyanga HH26-04.

Admittedly, this court plays a central role in marriage dissolutions and consequential relief. The court cannot, however, be expected to nor is it empowered to set conditions under which a man who wishes to marry should pay lobola.

For the avoidance of doubt, in the application dismissed by CHIGUMBA J, in HC6970/16, the applicant had sought the following relief as set out in his draft order:

“IT IS ORDERED THAT:

1. The applicant be and is hereby granted his wish to be allowed to pay lobola at his own convenience on a date to pay that he will request from the in laws - only if the respondent is a virgin.

2. The respondent is ordered to stop her part in the beaming.

3. With no order as to costs.”

The applicant has no right of action under any cognizable law in this jurisdiction and it is therefore justiciable to order him to abandon the action by issuing a decree of perpetual silence.

Disposition

In the result, I make the following order;

1. The chamber application be and it is hereby dismissed.

2. A decree of perpetual silence is hereby granted against the applicant with regards any claim which the applicant may make seeking an order of court to permit him to marry the second applicant and any consequential or alternative relief.

3. The applicant shall pay the first respondent's costs on the legal practitioner and client scale.

HH390-18 : MIDLANDS STATE UNIVERSITY vs ALOIS MATONGO
Ruled By: MUZOFA J

The applicant seeks an order for perpetual silence against the respondent.

The order sought is, in the alternative, as follows:-

“1. The respondent be and is hereby ordered to maintain perpetual silence against the applicant, that is to say, the respondent be and is hereby barred and interdicted from instituting any litigation, claim, application, action against the applicant.

2. An order that respondent pays applicant's legal costs on an attorney and client scale; or that

3. The respondent be and is hereby ordered not to commence any litigation, claim, application, action against the respondent without first obtaining leave of this Honourable Court (which this Honourable Court, depending on the facts, will either decline to grant, or will grant subject to precedent (sic) terms and conditions which this Honourable Court, may, in its discretion, stipulate).

4. An order that the respondent pays applicant's legal costs on an attorney and client scale.”

The respondent was employed by the applicant as the director of the Graduate School of Business Leadership at the Midlands State University. Following allegations of misconduct against the respondent he was suspended, charged, and, after a disciplinary hearing, he was dismissed. An internal appeal was unsuccessful.

According to the applicant, after the dismissal of his internal appeal, in 2011, there was no peace for the applicant. Between 2010 and 2017 the respondent filed a total of thirteen (13) applications, actions, and appeals before the Labour Court and the High Court. The applicant stated that although in most cases the respondent was unsuccessful and costs granted against him, it did not pursue the issue on costs as it was aware that the respondent had no means.

The application is opposed.

The respondent does not deny filing the applications or claims. He said they were all completed. Only one matter is still pending between the parties. His main contention is that in terms of section 86 of the Constitution of Zimbabwe he has a right to access justice and the courts of law for redress. Such an application is a negation of his constitutional right. In addition, it was submitted that this court cannot grant an order for perpetual silence regulating processes of other courts. It can only issue an order that relates to the abuse of its own process.

At the hearing of the matter, the applicant sought to amend its order....,.

The notice to amend the draft order was filed on 6 March 2018 to read:

“1. The respondent be and is hereby ordered to maintain perpetual silence against the applicant, and is hereby barred and interdicted from instituting any litigation, claim, application, action, against the applicant, in any court or legal fear, in respect of the respondent's termination of employment, reinstatement of his appeal that was dismissed by the Labour Court, or purported claim of terminal benefits.

2. An order that respondent pays applicant's legal costs on an attorney and client scale.

Alternatively;

3. The respondent be and is hereby interdicted and restrained from instituting any action, application, or suit or proceedings in this Honourable Court, in the Labour Court, and in any other court, against the applicant or its employees, or its agents relating to the applicant or its agents, in respect of proceedings which relate directly or indirectly to the respondent's termination of employment, reinstatement of his appeal which was dismissed by the Labour Court, and purported terminal benefits due to the latter from the applicant, without leave of this Honourable Court first being applied for and obtained.

4. The respondent be and is hereby interdicted and restrained from setting down any matter already filed or commenced with this Honourable Court, the Labour Court, or any other Court subordinate to this Honourable Court, without leave of this Honourable Court first being applied for and obtained.

5. The Registrar of this Honourable Court, and the Registrar of the Labour Court, and the Registrar of any other Court subordinate to this Honourable Court shall not issue any process commencing any action or any application or set down any matter already filed or commenced by, on behalf of, or at the behest of, Mr Alois Matongo in connection with the termination of his employment, and the purported claim of terminal benefits or reinstatement of his appeal that was dismissed by the Labour Court, without the leave of this Honourable Court first being applied for and obtained.

6. Any application for leave to institute proceedings or set down any matter shall be made on notice to the applicant.

7. The respondent is to pay the costs of this application on the legal practitioner and client scale.”...,.

I now deal with the merits of the case.

In my view, two issues fall for determination;

(a) Firstly, whether the respondent has abused the court's process to warrant the order sought; and

(b) Secondly, whether the High Court can issue an order regulating process in other courts.

I had opportunity to peruse the judgments and orders between the parties. The following is evident;

1. Alois Matongo v Midlands State University LC/MD/18/11 (Labour Court, Gweru); an appeal against his dismissal. The appeal was dismissed. No evidence that an appeal against this decision was filed. The respondent was not legally represented. Each party to bear its costs.

2. Alois Matongo v Midlands State University HH1744/13; respondent issued summons action in this court claiming payment of a total of US$120,643=28 for salaries, cash in lieu of leave, cash in lieu of contract leave and cash in lieu of sabbatical leave. The matter was dismissed for want of jurisdiction with costs. The applicant was legally represented.

3. Alois Matongo v Midlands State University LC/MD76/13 (Gweru Labour Court); a claim for terminal benefits claim dismissed with costs. The respondent was legally represented.

4. Alois Matongo v Midlands State University (Arbitration award) award dated 15 September 2014; claim for terminal benefits. Claim dismissed based on prescription. The applicant was not legally represented.

5. Midlands State University v Alois Matongo LC/MS/APP/71/14 [LC/MS/ORD 54/15] (Chamber application for dismissal). Application granted. Appeal dismissed, the respondent in default at filing heads of argument. Costs were granted against the respondent.

6. Midlands State University v Alois Matongo LC/MD/APP/01/15 [LC/MD/ORD 2/15]. Chamber application for dismissal of a chamber application for condonation of late filing of heads of argument. Application granted. Chamber application for condonation dismissed with costs.

7. Alois Matongo v Midlands State University LC/MD/ORD 84/15. Application withdrawn by consent. Costs granted against the applicant. The applicant was legally represented.

8. Alois Matongo v Midlands State University LC/MD/ORD/157/16. Application for rescission of judgment. Matter struck off the roll. Costs were to be in the cause. The applicant was legally represented.

9. Alois Matongo v Midlands State University LC/H/ORD/1049/2017. Application for condonation of late filing of an application for rescission of judgment. Application removed from the roll in terms at Practice Direction 3 of 2013. No order as to costs. The applicant was legally represented.

10. Midlands State University v Alois Matongo LC/H/687/16. Application for an order of perpetual silence. Application dismissed for want of jurisdiction. No order as to costs. The respondent was legally represented.

11. Alois Matongo v Midlands State University LC/H/124/18 (ref LCH/APP/528/217 cited as 520/17. Application for condonation of late noting of an application for rescission of default judgment granted under LC/MS/APP/71/14. The application was struck off the roll with costs. The applicant was legally represented. This is the matter that was pending at the time this case was filed.

It is clear that case number 5 and case number 6 were preceded by an appeal and application by the respondent. The court failed to locate the two files that relate to those proceedings. Of the eleven files, orders, and judgments perused, in nine of the cases the respondent was legally represented. In six of the cases costs were granted against the respondent.

The applicant did not make any effort to recover the costs….,.

A decree of perpetual silence is recognized as a legal remedy in deserving cases. This court has inherent power to prevent abuse of its own process where there is a demonstration that the defendant or the respondent is a serial litigator whose underlying intent is to abuse not only the court's process but his adversary too.

In terms of section 69(3) of the Constitution, every person has the right of access to the courts. This right, though, can only be exercised reasonably and with due regard for the rights and freedoms of other persons in terms of section 86(1) of the Constitution. In essence, it is a balancing act.

In this balancing act, courts have pointed out that this drastic remedy, that muzzles an individual, should be granted in exceptional cases. It is not granted on the asking; see Hudson v Hudson 1927 AD…,.

The full Bench in Brown v Simon 1905 TS 311 analyzed various leading cases in such applications; the court concluded that the following considerations should be made;

1. The nature and subject matter of the claim;

2. The likelihood of prejudice to either party if the decree is granted;

3. The balance of convenience as shown by the circumstances of each case.

Bearing in mind the said principles, I shall proceed to determine the case.

The Claim(s)

The respondent filed numerous cases before the Labour Court. He did not deny it. However, he said he did not abuse the court process.

A reading of case law shows that there can be no one size fits all definition of abuse of court process. In jurisdictions where abuse of process is recognized as a remedy, the courts have looked more to the purpose for which the process is used. It is the improper use of process, after its issuance, in order to accomplish a purpose for which the process was not designed. Bone v Bernard 2008 Ark App Lexisti 569. Such abuse of process includes ligation in bad faith meant to harass and vex the respondent.

In casu, the respondent, upon his dismissal, he noted an appeal with the Labour Court. The appeal was dismissed. He did not appeal against this dismissal to the Supreme Court. It may be safely inferred that he came to terms with his dismissal. Thereafter, he filed an application to the Labour Court for his terminal benefits and/or outstanding salaries. His efforts to get his dues birthed the numerous applications and an appeal to the Labour Court and this court. It is evident, from the court records, that when his claim for benefits was dismissed by the arbitrator, he noted an appeal to the Labour Court. The appeal was dismissed for want of filing of heads of argument by the respondent. Thereafter, he mounted several applications for condonation and rescission of judgment all with a view to undo the dismissal of the appeal so that the matter could be heard on the merits. His efforts continued to hit a brick wall.

I must say, the respondent was represented by legal practitioners. This is a clear case where the legal practitioners failed to act timeously in terms of the Labour Court Rules, and, in some instances, a sheer lack of appreciation of the procedure in the Labour Court. It is unfortunate that it is the litigant who bears the brunt of such poor workmanship resulting in numerous applications to correct the anomalies.

In our jurisdiction, I have come across very few cases where the decree of perpetual silence was granted; in Ignatius Masamba v The Secretary, Judicial Service Commission HH283-17; City of Harare v Masamba HH330-16; Vigour B Fuyana v Moyo SC54-06; and Mhini v Mupedzamombe 1999 (1) ZLR 561.

What cuts across the cases is that a plethora of cases are filed stemming from one cause of action. In some cases the actions are not directed to one person only, they involve other persons including judicial officers who are impugned in the process. The respondent's conduct, in asserting his rights, must be such that it clogs the court system with groundless and unending litigation. In those cases, it can be said both the courts and the sued parties were harassed by litigation with no end in sight.

In Mabwe Minerals (Pvt) Ltd and 3 Ors v Peter Valentine and Anor HH793-16 the court dismissed an application for perpetual silence despite the fact that there were thirty (30) cases between the parties. The court noted that the applicant contributed to the confusion that beset the respondents who genuinely believed they had a grounded cause of action.

In casu, one claim is pursued, the cause of the numerous applications in the Labour Court is to reverse the dismissal of the appeal - which process is allowed in terms of the Rules. The respondent was genuine in the pursuit of his claim for terminal benefits. The purpose of the applications was not to abuse the process but to protect his rights.

In the circumstances of this case, I cannot find a deliberate intention to vex the applicant by the respondent nor abuse the court process as a result of the claims filed so far. Apparently, the one matter that the respondent submitted was outstanding before the Labour Court has since been determined.

Prejudice

The likely prejudice to the applicant, in the event the order is granted, is set out on p5 of the founding affidavit. I say this because a case stands or falls on the founding affidavit, on paragraph(s) 13.4 and 13.5 it is alleged;

“13.4 In the process of doing so, the applicant is not pursuing any recourse to vindicate any legitimate rights, but is, instead, harassing the applicant and putting it to unnecessary legal expenses.

13.5 There is no chance of the applicant recovering its expenses through an award of costs, as to applicant's knowledge and belief, the respondent is unemployed, lives in penury and abject poverty, and is a man of no financial means.”

And at 28.1;

“In five (5) matters that the applicant was awarded costs, it did not pursue the recovery of the costs, against the respondent, because to applicant's best knowledge, the respondent is a man of no means. To pursue recovery of costs under such circumstances would, at best, be vindictive, and, at worst, fishing in a dry river bed.”

I do not believe the respondent does not have a legitimate claim.

Nowhere in the founding affidavit does the applicant indicate it paid the terminal benefits and outstanding salaries.

The applicant's main contention is that it is incurring unnecessary legal expenses.

The foregoing extracts, from the founding affidavit, show that the applicant was awarded costs in five (5) cases although my count was six (6) cases. The costs were not recovered through a deliberate decision by the applicant not to recover the costs.

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

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

Even in deciding the scale of costs, courts have granted costs on a higher scale to deter unnecessary litigation; see Wilbert Munonyara v CBZ Bank Ltd and 2 Ors HH91-15, where costs on a legal practitioner and client scale were granted being admonitory costs to signify the court's displeasure at being taken for granted by litigants.

In an application such as this, recovery of costs, in my view, should be a deterrent to the respondent. An applicant should therefore demonstrate that it has recovered costs - yet the respondent continues to file litigation.

In the alternative, where an attempt to recover costs is unsuccessful, and the respondent is a self-actor with no means, there must be proof of a nulla bona return. The purpose of that return is to show that, as the applicant continues to incur legal costs, they cannot be recovered, and the respondent is a self actor with no legal costs, as was in Mhini v Mupedzamombe 1999 (1) ZLR 561.

In casu, there was no attempt to mitigate the prejudice by the applicant as per its admission. Its reasons for doing so are based on conjecture with no evidence, yet the respondent had legal representation in some of the cases.

On the other hand, the order sought, to silence the respondent, alternatively, to allow him to approach the courts with leave impinges on one of the respondent's fundamental rights - to access the court.

In the event that the decree of perpetual silence is granted, the respondent is likely to be prejudiced. The balance of convenience favours allowing the respondent to pursue his claim.

In view of the foregoing, this is not a proper matter for an order of perpetual silence.

I leave open the second issue whether this court can grant such a decree regulating process in other courts.

Costs

Costs are always in the discretion of the court and generally follow the event. I see no reason to depart from this approach.

Accordingly, the following order is made;

1. The application be and is hereby dismissed with costs.

CC09-20 : TUNGAMIRAI NYENGERA vs THE STATE
Ruled By: MALABA CJ

This is a chamber application for leave to appeal to the Constitutional Court (“the Court”) against a decision of the Supreme Court (“the court a quo”) in terms of Rule 32(2) of the Constitutional Court Rules S.I.61 of 2016 (“the Rules”), as read with section 167(5)(b) of the Constitution of Zimbabwe Amendment (No.20) Act 2013 (“the Constitution”).

The Court holds that it is not in the interests of justice that the applicant be granted leave to appeal against the decision of the court a quo because no constitutional matter arose or was raised in the decision of the court a quo. Consequently, the application has no merit and cannot succeed. The reasons for the decision are set out below.

FACTUAL BACKGROUND

In February 2015 the applicant was charged in the Magistrates' Court at Bulawayo with fraud as defined in section 136 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] (“the Criminal Law Code”). The background to the charge is that the applicant was the legal practitioner representing one Lungisani Sibanda (“Lungisani”), who was serving a seven-year prison sentence at Khami Maximum Prison for the offence of car theft. After a failed attempt was made to obtain liberty for Lungisani Sibanda, it was alleged that the applicant obtained a fake warrant of liberation misrepresenting that Lungisani had been granted bail pending appeal. It was alleged that the fake warrant of liberation was given to Lungisani's sister Lilian. She was the one to present the fake warrant of liberation of her brother from prison to the relevant authorities. In the statement she gave to the police, Lilian implicated the applicant.

After a full trial, the applicant was convicted of the offence and sentenced to forty-eight months' imprisonment, of which twelve months were suspended for five years on conditions of good behaviour.

Dissatisfied with the decision of the trial court, the applicant noted an appeal against both conviction and sentence to the High Court on the following grounds:

“Ad conviction

1. The learned magistrate in the court a quo erred, at law, in holding that Absolom Hlupo's evidence was admissible as against his co-accused, who, in this case, was the appellant.

2. The learned magistrate erred in holding that the Warrant of Liberation was fake when no evidence was led from the Clerk of Criminal Court's office in the Provincial Magistrates Court, that no record existed thereat where such bail had been granted warranting the Clerk of Criminal Court's stamp to be used.

3. The learned magistrate erred, at law, in holding that the call history regarding the cellphone was admissible as evidence against the appellant without considering, at all, the veracity, authenticity, and reliability of such evidence. A fortiori, the learned magistrate erred at law in holding that such evidence was admissible when it also clearly infringed on the appellant's constitutional rights and was obtained using a secondary legislation that is not supreme to the Constitution of Zimbabwe. Such evidence, in any event, had not been tendered in terms of the law.

4. The learned magistrate erred in accepting and considering Lilian Tapera's evidence admissible when she testified without being cautioned in terms of the law.

5. The learned magistrate further erred in seeking to have Lilian Tapera's evidence corroborated when, in the first place, it had been taken outside the purview of the law, had clear contradictions, prevarications (sic) and could not be relied upon. Despite this, the learned magistrate held that she had acquitted herself very well totally ignoring the aforesaid.

6. The learned magistrate erred in holding that Lilian Tapera's evidence was adequately corroborated by Joyce Sibanda and Richard Bhebhe's evidence totally ignoring, in the process, the glaring inconsistencies in her evidence and also between her evidence and that of these two witnesses.

7. The learned magistrate erred in holding that the envelope which Lilian Tapera saw at the appellant's office was one and the same envelope which was then delivered at Khami Prison and from which a Warrant of Liberation was discovered, and, on 23 December 2014, not on 24 December 2014 as appeared in the charge.

8. The learned magistrate further erred in holding that appellant's visit to Lilian Tapera's house was the reason why the said witness then gave a different statement at CID Frauds totally ignoring many factors that proved that such a finding was inconsistent with Lilian's own behaviour, her own evidence, and that of her mother, Joyce Sibanda, and the appellant.

9. The learned magistrate erred, at law, in totally disregarding the appellant's evidence which was most probable and accusing him of taking his legal role to the witness stand, and, in the process, ignoring the fact that he stood firmly and gave his evidence clearly.

Ad sentence

The learned magistrate's sentence was excessive and harsh to the extent that it induced a sense of shock in light of:

(a) The grounds of appeal highlighted above.

(b) Its inconsistency with the factors highlighted in mitigation i.e. the appellant's personal circumstances and that no prejudice was suffered.

(c) The fact that it basically amounted to paying lip service to the mitigating factors.”

The High Court found no merit in the appeal against conviction. It was dismissed.

The appeal against sentence succeeded.

The High Court held that the sentence was unduly harsh and excessive. It noted that the applicant was a young lawyer who was at the inception of his career. It was of the view that, in passing sentence, his immaturity as a lawyer had to be considered. As a result, the applicant's sentence was reduced from forty-eight months to thirty-six months' imprisonment, twelve months of which were suspended for five years on condition that the applicant did not within that period commit an offence involving dishonesty for which upon conviction he was sentenced to imprisonment without the option of a fine.

Still aggrieved, the applicant noted an appeal against the confirmation of his conviction to the court a quo.

In his grounds of appeal, he argued that the High Court erred in accepting the evidence of the two witnesses who testified that the Warrant of Liberation was fake, as such evidence was not in conformity with the law regulating the authenticity of public documents. He further argued that the High Court erred in failing to regard Lilian Tapera as an accomplice witness. The argument was also made that the High Court erred in dismissing the applicant's challenge against the admissibility of the call history of his cellphone. Lastly, it was argued that the High Court erred by failing to rule against the admissibility of the confession by the appellant's co-accused in convicting the applicant.

The court a quo was of the view that the warrant of liberation was fake beyond a reasonable doubt and that the evidence adduced put this fact beyond any doubt. As regards the issue whether Lilian Tapera was an accomplice witness or not, the court a quo held that the High Court was correct in finding that she was not an accomplice, as there was no evidence that she participated in the generation and presentation of the fake warrant of liberation. Further, the court a quo found that the call history from the applicant's cell phone could be used as evidence against him because his objections to its use in the trial court were not substantiated, and that, in any event, he had consented to it being adduced as evidence.

It was the court a quo's finding that, in terms of section 259 of the Criminal Procedure and Evidence Act [Chapter 9:07] (the “CPEA”), the confession of one Hlupo could not be used against the applicant. As such, it was held that the trial court erred in admitting the confession into evidence against the applicant. However, the court a quo found that, even excluding the confession, there was sufficient evidence against the applicant to prove beyond a reasonable doubt that he had committed fraud in contravention of section 136 of the Criminal Law (Codification and Reform) Act [Chapter 9:23].

The appeal was accordingly dismissed.

On 19 February 2019 the applicant filed the present application for leave to appeal in terms of Rule 32(2) of the Rules, as read with section 167(5)(b) of the Constitution. He alleged that his right to equal protection and benefit of the law in terms of section 56(1) of the Constitution was violated by the court a quo when it upheld the authenticity of the call records.

The applicant further alleged that his right to a fair trial, as enshrined in section 69(1) of the Constitution, was violated by the court a quo. The allegation was that the applicant's right to challenge evidence was violated because he was not given the opportunity to “cross-examine the person who informed Lungile Moyo that the warrant was fake.”

The applicant also averred that his right under section 70(1)(k) of the Constitution, not to be convicted of an act that was not an offence when it took place, was violated. He alleged that if investigations were still to be completed, the delivery of the warrant of liberation was not an offence at the time of the trial.

It was also the applicant's allegation that his right to be presumed innocent, in terms of section 70(1)(a) of the Constitution, was infringed upon by the court a quo. The applicant challenged the finding by the court a quo to the effect that “that the provincial court had issued a warrant was not only remote but fanciful.”

The application was opposed by the respondent.

Its argument was that the findings of the court a quo were correct because the evidence proved beyond a reasonable doubt that the warrant of liberation was fake. It was further denied that there were any infringements of the applicant's constitutional rights. Therefore, no constitutional issues arose for determination. It was prayed that the application be dismissed.

APPLICATION OF THE LAW TO THE FACTS

In terms of section 167(5)(b) of the Constitution, the Constitutional Court Rules must allow a person, when it is in the interests of justice and with or without leave of the Constitutional Court, to appeal directly to the Constitutional Court from any other court. Rule 32 of the Rules gives effect to section 167(5)(b) of the Constitution. It provides, in relevant part, as follows:

“32. Leave to appeal

(1)…,.

(2) A litigant who is aggrieved by the decision of a subordinate court, on a constitutional matter only, and wishes to appeal against it to the Court, shall, within fifteen days of the decision, file with the Registrar an application for leave to appeal and shall serve a copy of the application on the other parties to the case in question, citing them as respondents.”…,.

Section 167(1)(b) of the Constitution makes it clear that the jurisdiction of the Constitutional Court is limited to deciding only constitutional matters and issues connected with decisions on constitutional matters. It is the highest court in all constitutional matters.

The case of Lytton Investments (Pvt) Ltd v Standard Chartered Bank Zimbabwe Ltd and Anor CC11-18 is instructive with regards to the specialized jurisdiction of the Constitutional Court. At p9 of the cyclostyled judgment the Court said:

“The Court is a specialised institution, specifically constituted as a Constitutional Court, with the narrow jurisdiction of hearing and determining constitutional matters only. It is the supreme guardian of the Constitution and uses the text of the Constitution as its yardstick to assure its true narrative force. It uses constitutional review predominantly, albeit not exclusively, in the exercise of its jurisdiction.”

In Muza v Saruchera and Ors CC05-19 the Court noted that the purpose of the right of appeal granted to a person under Rule 32(2) of the Constitutional Court Rules, the procedure of an application for leave to appeal provided therein, and the contents of the application required under Rule 32(3)(c) of the Rules, are premised on the existence of a decision by a subordinate court on a constitutional matter.

The purpose of the Constitutional Court Rules is to ensure proper exercise of jurisdiction by the Constitutional Court.

The matter that gives rise to the need for the Constitutional Court to exercise its jurisdiction must be a constitutional matter decided by the subordinate court.

In Sadziwani v Natpak and Ors CC15-19 the Court emphasised the need for protecting its jurisdiction and process from abuse. It stated the following…,:

“Jurisdiction is the power or competence of a court to adjudicate on, determine and dispose of a matter.

In this regard, the Court is a creature of the Constitution. The principle of constitutional supremacy, as enshrined in section 2 of the Constitution, guarantees that the Court only exercises jurisdiction over matters which are specifically set out in terms of section 167, as read with section 332, of the Constitution.

The principle also ensures that the jurisdiction of the Court, as the highest court on constitutional matters and connected issues, cannot be ousted by legislation.

The Court's power to adjudicate on constitutional matters ought to be construed as a means by which life can be given to the objectives set out in section 3 of the Constitution. The Court, as the highest and most authoritative tribunal in constitutional matters, is tasked with the responsibility of safeguarding the values and objectives of the Constitution. It is charged with the duty of ensuring that these objectives are realised and given effect to. Thus, it is imperative that the Court is not unduly saddled with cases that have no bearing on the interpretation, enforcement or protection of the Constitution.

It is incumbent upon the Court to guard its jurisdiction jealously and eliminate the abuse of its powers. The integrity of the Court is of utmost importance and it ought to be protected.

The deliberately narrow jurisdiction of the Court is meant to shield it from abuse and ensure that it only adjudicates upon that which it is constitutionally mandated to adjudicate on.”

The object of the exercise of jurisdiction by the Court is always the protection, promotion and enforcement of the supremacy of the Constitution. Where there is no decision by a subordinate court to justify the allegation of actual or threatened violation of a constitutional provision, the Constitutional Court will have no cause for the exercise of its jurisdiction.

Section 332 of the Constitution defines a constitutional matter as “a matter in which there is an issue involving the interpretation, protection or enforcement of this Constitution.”

It is the applicant's case that the decision of the court a quo violated his right to equal protection and benefit of the law, enshrined in section 56(1) of the Constitution, when it upheld the authenticity of the call records and upheld the reliance of the trial court upon them.

With regards to the admissibility of the call history as evidence against the applicant, the court a quo held the following at paragraphs 46-49 of the cyclostyled judgment in Tungamirai Nyengera v The State SC67-18:

“The record indicates that the issue that was before the court a quo is whether or not the call histories were admissible.

The appellant contended that they were not as the evidence 'clearly infringed on the appellant's constitutional rights, and were obtained using secondary legislation that is not supreme to the Constitution of Zimbabwe.'

Clearly, there is no merit in this ground.

The right to privacy given in the Constitution is derogable and the law under which the call history was ordered by the Magistrates' Court is an example of one such derogation.

The rules governing the admissibility of documentary evidence in criminal trials are aimed at ensuring a fair trial through the elimination of any potential prejudice to an accused person, who is clearly the weaker of the two adversaries involved in a criminal trial.

All these rules, however, yield and fall by the wayside when an accused person consents to the production of documents tendered by the State.

Before the trial court, the appellant consented to the production of the call histories without any demur. There was therefore no issue before that court regarding the admissibility of the call histories.”

The court a quo dismissed the applicant's argument regarding the call history because the applicant had consented to the production of the records at his trial. The finding by the court a quo was a finding of fact, which was made after an assessment of the laws of evidence.

Where an accused person consents to the adduction of incriminating evidence, he cannot turn around and challenge a conviction which was secured based on that evidence.

In coming to this conclusion, the court a quo did not decide a constitutional matter because there was no need to interpret, enforce or protect the Constitution in order to come to the conclusion that the call history was admissible as evidence against the applicant. As such, the applicant's argument in this regard ought to fail.

The applicant also argued that his right to a fair trial, as enshrined in section 69(1) of the Constitution, was violated.

In this regard, he asserted that his right to challenge evidence was impinged upon because the evidence of one Lungile Moyo was at odds with section 253 of the Criminal Procedure and Evidence Act, in that he was not given the opportunity to “cross-examine the person who informed Lungile Moyo that the warrant was fake.”

The position of the law is that a purely factual matter does not amount to a constitutional issue.

In S v Boesak 2001 (1) SA 912 (CC), LANGA DP put this position beyond doubt when he stated the following…,:

“A challenge to a decision of the SCA, on the basis only that it is wrong on the facts, is not a constitutional matter.

In the context of section 167(3) of the Constitution the question whether evidence is sufficient to justify a finding of guilt beyond reasonable doubt cannot in itself be a constitutional matter. Otherwise, all criminal cases would be constitutional matters, and the distinction drawn in the Constitution between the jurisdiction of this Court and that of the SCA would be illusory.

There is a need for finality in criminal matters.

The structure of the Constitution suggests clearly that finality should be achieved by the SCA unless a constitutional matter arises.

Disagreement with the SCA's assessment of the facts is not sufficient to constitute a breach of the right to a fair trial.

An applicant for leave to appeal against the decision of the SCA must necessarily have had an appeal or review as contemplated by section 35(3)(o) of the Constitution. Unless there is some separate constitutional issue raised therefore, no constitutional right is engaged when an appellant merely disputes the findings of fact made by the SCA.”

As a result, the question whether evidence is sufficient to justify a finding of guilt beyond reasonable doubt is not, for the reasons given above, a constitutional matter.

The applicant also averred that his right under section 70(1)(k) of the Constitution, not to be convicted of an act that was not an offence when it took place, was violated.

He alleged that if investigations were still to be completed, the delivery of the warrant of liberation was not an offence at the time of the trial.

It is common cause that the applicant was charged with and convicted of fraud as defined in section 136 of the Criminal Law (Codification and Reform) Act [Chapter 9:23]. It is also common cause that the Criminal Law (Codification and Reform) Act was in force at the time the applicant's trial commenced. The allegation that the conduct for which the applicant was convicted was not an offence at the time of his trial was not made in seriousness and must be dismissed.

The applicant further advanced the argument that the finding by the court a quo that the warrant of liberation was fake infringed his right to be presumed innocent until proven guilty, as enshrined in section 70(1)(a) of the Constitution.

This finding by the court a quo is also alleged to be a violation of section 165(1)(a) of the Constitution, which guarantees that justice must be done to all irrespective of status.

The applicant further argued that section 70(1)(a) of the Constitution must be read together with section 18(1) of the Criminal Law (Codification and Reform) Act. Section 18(1) of the Criminal Law (Codification and Reform) Act provides:

“18 Degree and burden of proof in criminal cases

(1) Subject to subsection (2), no person shall be held to be guilty of a crime in terms of this Code or any other enactment unless each essential element of the crime is proved beyond a reasonable doubt.”

As already found, the findings of the court a quo, regarding the authenticity of the warrant of liberation, are within the realm of the law of evidence, particularly the assessment thereof, and do not give rise to a constitutional issue.

A decision as to the sufficiency of evidence that is required to sustain a conviction in a criminal prosecution does not ordinarily involve the interpretation or application of any provision of the Constitution. Neither does it involve the application of a law inconsistent with the Constitution, or have any other connection with the Constitution that would make that decision a constitutional matter.

The Constitution must be involved in some way before such a finding can be said to raise a constitutional issue within the jurisdiction of the Court. The fact that there was no constitutional matter that was raised before and determined by the court a quo cannot be meaningfully disputed. The applicant was merely aggrieved by the non-constitutional findings of the court a quo and this means that the jurisdiction of the Constitutional Court is not triggered in the circumstances.

In De Lacy and Anor v South African Post Office [2011] ZACC 17…, the Constitutional Court of South Africa held as follows regarding an applicant's dissatisfaction with the factual findings of a lower court:

“Then, the essence of their contention was that the Supreme Court of Appeal should have held that indirect intent was sufficient to render an organ of State vicariously liable for the wrongs of its employees and that on the evidence they had established that the Post Office's employees had acted with indirect intent to defraud.

That was the applicants' constitutional focus.

And yet the bulk of its papers were devoted to an exhaustive critique of the factual findings of the Supreme Court of Appeal. Their grievance had all the hallmarks of a mere dis-satisfaction with factual findings.

The Post Office opposed the application. On 9 July 2009, this Court dismissed it for lack of prospects of success.”…,.

See also Chiite and Ors v The Trustees of the Leonard Cheshire Homes Zimbabwe Central Trust CC10-17.

Consequent to the above, the issue relating to the hierarchy of courts, in non-constitutional, matters arises. In this regard, section 169(1) of the Constitution is paramount. It provides as follows:

“169 Jurisdiction of Supreme Court

(1) The Supreme Court is the final court of appeal for Zimbabwe, except in matters over which the Constitutional Court has jurisdiction.”

In Rushesha and Ors v Dera and Ors CC24-17 GWAUNZA JCC…, interpreted this provision in the following manner:

“The import of this provision needs no elaboration. Only where the Supreme Court determines a constitutional issue, may one appeal to this Court for a final determination. Because the Supreme Court in this matter did not determine any constitutional issue, the decision it rendered was final and not appealable.”

Section 26(1) of the Supreme Court Act [Chapter 7:13] reaffirms the above position. It states:

“26 Finality of decisions of Supreme Court

(1) There shall be no appeal from any judgment or order of the Supreme Court.”

In Lytton Investments (Pvt) Ltd v Standard Chartered Bank Zimbabwe Ltd and Anor CC11-18, the Constitutional Court held that the principles that emerge from section 169(1) of the Constitution, as read with section 26 of the Supreme Court Act, are clear. At p22 of the cyclostyled judgment, the Court said:

“A decision of the Supreme Court, on any non-constitutional matter in an appeal, is final and binding on the parties and all courts except the Supreme Court itself. No court has power to alter the decision of the Supreme Court on a non-constitutional matter. Only the Supreme Court can depart from or overrule its previous decision, ruling or opinion on a non-constitutional matter.

The onus is on the applicant to allege and prove that the decision in question is not a decision on the non-constitutional matter.”

There was no constitutional issue raised before and determined by the court a quo. The dismissal of the appeal by the court a quo remains final. It cannot be appealed against. As such, the application has no merit and it ought to be dismissed.

DISPOSITION

The application is dismissed with no order as to costs.

SC54-06 : VIGOUR FUYANA vs NTOMBAZA MOYO
Ruled By: CHIDYAUSIKU CJ

This is a Chamber application for the condonation of the late noting of an appeal. Although the applicant does not specifically aver this, I shall assume that the application is made in terms of Rule 31 of the Supreme Court Rules (“the Rules”).

On 25 July 2005, SANDURA JA, sitting with MALABA JA and NDOU AJA, issued the following order:

“WHEREUPON, after reading documents filed of record and hearing counsel, IT IS ORDERED THAT:

The matter be struck off the roll with costs.”

The record reveals that both parties were present, and the record of SANDURA JA, who presided over the matter, indicates that the matter was struck off the roll because the Notice of Appeal was filed out of time and no application for condonation had been made.

Because of the multiplicity of cases involving the same parties, it is important to understand that the Court was seized with appeal case no. SC236/2000, which was an appeal against judgment no. HB44/2000.

Where an appeal is noted out of time, before the matter can be heard by this Court an application for condonation has to be made, and such condonation granted, before the appeal can be entertained.

A matter that is set down for hearing without condonation being first granted will be struck off the roll, as happened in this case.

On 14 and 18 July 2000 the applicant filed a Chamber application for directions before KAMOCHA J. He handed down judgment dismissing the application on 20 July 2000. The judgment is judgment number HB44/2000, HB44-00.

Over a year after the handing down of the judgment, on 21 August 2001, the applicant filed a Notice of Appeal against the judgment of KAMOCHA J. The headnote of that Notice of Appeal reads as follows:

“Take notice that the applicant hereby appeals against the judgment of the High Court No. HB44/2000, in terms of which the Honourable Judge dismissed the applicant's application for discharge of the provisional order in case number HC5207/99 with costs on the grounds and reasons detailed below.”

Apart from the fact that the above Notice of Appeal does not comply with the Rules, in particular Rule 29(a) and (c), in that it does not give the date when the judgment was delivered nor state whether the appeal is against the whole or part of the judgment, and is therefore invalid, it was filed way out of time.

The applicant was appealing against the judgment of KAMOCHA J (No. HB44/2000) which had been handed down on 20 July 2000 and not any of the other judgments involving the same parties - of which there are several. Thus, the Court was seized with an appeal against judgment No. HB44/2000 and no other matter.

The applicant, in his submissions to the Court, alleges that he filed a Notice of Appeal against this judgment, No. HB44/2000, on 15 August 2000 and that the above Notice of Appeal, of 21 August 2001, was an amendment to the Notice of Appeal filed on 15 August 2000.

The alleged Notice of Appeal, of 15 August 2000, is not on the record.

The Notice of Appeal of 21 August 2001, cited above, is not an amendment but a Notice of Appeal on its own.

However, even if I were to accept that the applicant did file a Notice of Appeal on 15 August 2000, that Notice of Appeal would have been out of time. Judgment HB44/2000 was handed down on 20 July 2000, and, according to my calculations, the dies induciae for noting an appeal expired on 10 August 2000.

Thus, the Notice of Appeal filed on 15 August 2000 was outside the fifteen days prescribed by the Rules of the Supreme Court.

Thus, whichever of the two dates one accepts as the date for the filing of the Notice of Appeal makes no difference. Both dates were outside the dies induciae.

Consequently, the striking off of the matter from the roll admits no doubt.

The applicant contends that the matter should not have been struck off the roll and impugns the integrity of the Court for striking the matter off the roll....,.

Ten months after the appeal was struck off the roll, on 17 May 2006, the applicant filed the present application for condonation of the late noting of an appeal.

The Rules of this Court provide that condonation for the late noting of an appeal can be granted upon the establishment of a good cause.

It is well settled that the essential elements of a good cause are:

(a) A reasonable explanation for the failure to file the Notice of Appeal within the prescribed period;

(b) Some prospect of success on the merits; and

(c) The bona fides of the application.

REASONABLE EXPLANATION FOR THE FAILURE TO NOTE THE APPEAL IN TIME

The applicant's application for condonation, in this case, consists of unwieldy voluminous affidavits, submissions, and attached documents. The voluminous application for condonation does not provide the one thing that is critical to the applicant's case, namely, the explanation for the applicant's failure to file the Notice of Appeal in the time prescribed by the Rules.

Without such an explanation, it is difficult to see how a Judge can grant the applicant the indulgence or condonation sought.

The applicant, in paragraph 7.4 of the founding affidavit, makes the following averment:

“The Appellate Judge did not appreciate the fact that judgment Number HB44/2000 was uplifted on 3 August 2000; that the original Notice of Appeal in SC236/00 was filed on 15 August 2000; that the Notice of Amendment of the grounds of appeal was filed on 3 August 2001; and the fact that the Appeal Number is SC236/00 and not SCA236/01.

The Appellate Judge did not appreciate the fact that the main action matter number, HC4295/98, and its allied application, HC5207/99, were consolidated into one matter and that condensed arguments in both applications were presented on 14 July 2000. Therefore, there was no need to apply for leave to appeal or for condonation to appeal out of time, as there was nothing interlocutory about HC5207/99 and since the CHEDA J (as he then was) Orders and Judgments must not have been at all, as the respondent had recovered her $20,384.”

The applicant suggests the matters between the parties had been consolidated. The record shows no order consolidating the cases.

Cases do not consolidate on the mere say so of the litigant.

This near meaningless averment is the nearest that can be described as an explanation proffered by the applicant for the failure to file the Notice of Appeal on time.

The above averment falls far short of discharging the onus on the applicant to provide a reasonable explanation for his failure to comply with the Rules. In my view, the above averment is no explanation at all. If anything, the suggestion, in paragraph 7.4, is that the dies induciae should run from 3 August 2000 because that is when the applicant became aware of the judgment.

That contention is untenable and unacceptable.

The applicant has not provided an acceptable reason for his failure to comply with the Rules, and, on this basis alone, the application for condonation must fail.

However, even if I were to accept that the applicant filed his alleged Notice of Appeal, which is not on the record, within five days of the dies induciae, and, therefore, should be given some latitude, I would still dismiss this application on the basis that it has no prospects of success on the merits.

PROSPECTS OF SUCCESS ON THE MERITS

As I have already stated, the appeal that was before the Court, and that was struck off the roll, was the appeal against judgment No. HB44/2000. In that judgment, KAMOCHA J dismissed a Chamber application for directions by the applicant.

Judgment No. HB44/2000 is very brief and to the point.

The judgment very ably sets out the facts of this case and the reasoning behind the learned Judge's conclusion. I can do no better than refer to it extensively. It reads, in part, as follows:

“For convenience, the parties in this matter will be referred to as Fuyana and Ntombaza.

On 14 October 1998, Ntombaza obtained a provisional order whose terms, inter alia, barred Fuyana from taking transfer of Stand Number 11747 Nkulumane from one William Ndlovu who had allegedly sold the same property to Ntombaza using Fuyana as his agent. Ntombaza was also granted rights to re-occupy the house as she had been in occupation before the said house had been damaged by one Jericho Maphosa.

Fuyana filed his notice of opposition but did not anticipate the return date.

Exactly a year later, on 14 October 1999, Ntombaza made an ex parte application seeking for (sic) an order converting the papers in the first application to pleadings and the matter (to be) referred to trial. The parties were allowed to file further pleadings within fourteen days of the order if they so desired.

This application to refer the matter to trial was served on the legal practitioners of Fuyana on 8 October 1999.

There seemed to be no opposition from Fuyana's legal practitioners and the application was granted six days after it had been served.

To illustrate the confusion that reigned in Fuyana's camp, a belated attempt to oppose the application was made by Fuyana himself - not through his lawyers.

Ntombaza asserted that Fuyana's legal practitioners had agreed that the matter be referred to trial.

I am inclined to agree with her because if what she asserted was not true Fuyana's legal practitioners would have filed an affidavit denying that they had agreed to the matter being referred to trial with the terms of the provisional order standing.

When the court granted the application it must have been satisfied that the matter was not capable of being resolved on the papers filed of record. It then issued an order which has not been rescinded. The matter has been settled and yet Fuyana still calls upon the court to interfere.

The court had concluded that a robust approach could not be adopted in this particular case to resolve the matter on the papers in the light of the numerous disputes of fact therein. But, Fuyana still lodged this application requesting the court to discharge the provisional order in question. He also wanted Ntombaza, and all persons claiming through her, to be ordered to vacate Stand 11747 Nkulumane within forty-eight hours of service on them of the order, failing which the Deputy Sheriff be ordered to evict them and their possessions.

Fuyana is clearly abusing court process and this court should express its displeasure by ordering him to pay punitive costs.

In the result, the application is dismissed with costs on an attorney/client scale.”

It is difficult to see on what possible basis a Court of Appeal can interfere with the above judgment more so having regard to the grounds of appeal contained in the Notice of Appeal.

The reasoning and the conclusion of the learned Judge, in my view, are flawless and there is no prospect of an Appeal Court differing from the learned Judge. The Notice of Appeal filed by the applicant is no more than a series of senseless assertions that the learned Judge misdirected himself on this fact or on that point of law. The Notice of Appeal raises nothing worth serious comment or consideration.

I would also add that KAMOCHA J was dealing with an application for directions by the applicant.

The heading of the application specifically indicates that the application before the learned Judge was one for directions. An application for directions, as the word implies, is an application seeking directions on how to proceed in the main proceedings, usually the trial. Order 23 and Rule 152 clearly set out the purpose and content of an application for directions.

The application before KAMOCHA J, although headed application for directions, sought to canvass issues between the same persons referred to trial by another judge. The draft order attached to the application for directions sought substantive and not procedural relief.

In my view, an application for directions that seeks, in its draft order, the eviction of the respondent from the premises is totally misconceived and should have been dismissed on that basis alone without much ado.

The merits of the case involving the Agreement of Sale which the applicant is harping on ad nauseum could only be resolved properly at a trial. The judge in the previous proceedings was quite correct in referring the issues for trial. This was done with the consent of the applicant's legal practitioner and therefore with the consent of the appellant. The learned Judge, in my view, was correct in ordering the matter to go to trial.

It would appear from the record that the trial did not take place because the applicant was in default.

Where a default judgment has been granted, the recourse open to an aggrieved party is to apply for rescission of the judgment.

It may well be that the applicant applied for rescission of the judgment; that is not very clear on the record. But, whatever the applicant's grievance may have been in respect of those proceedings, they are totally irrelevant to the filing of an appeal against the judgment of KAMOCHA J.

I am satisfied that the applicant has no prospects of successfully appealing against the judgment of KAMOCHA J, No. HB44/2000. On that basis alone, even if I were to forego the failure to note an appeal on time, this application must fail.

Before concluding, I would like to make the following observations:

Voluminous submissions, affidavits, and documents relating to the validity or otherwise of an Agreement of Sale, and the issue and status of the Agreement of Sale, were filed in this application for condonation. These were totally irrelevant to the issues I need to determine in this case, namely, whether or not KAMOCHA J was correct in dismissing an application for directions seeking the discharge of a provisional order which had already been referred to trial by another Judge.

It is trite that supporting affidavits in an application should contain essential averments in support of the relief claimed.

The papers filed in this case bear no resemblance to the above requirement. For instance, the founding affidavit and its attachments run into some forty pages, yet there is no explanation as to why the Notice of Appeal was not filed in time. Further, as part of the application, a bundle of documents of about seventy pages headed 'Evidence' was filed. Another bundle of documents entitled 'Supporting Heads of Argument', consisting of not less than fifty-five pages was also filed. A good part of the so-called 'Supplementary Heads of Argument' is devoted to principles of what the applicant called 'Advocacy', 'Advocacy A Code of Conduct', 'Objections in limine'.

A long list of the cases that were cited and summarised in the supplementary heads of argument had no bearing on the application for condonation of the late noting of an appeal.

There was also another bundle of documents filed in this application headed 'Civil Appeal'. This bundle of documents amounted to some forty pages and consisted of what the applicant called 'Opening Speech', 'Consolidated Heads', and 'Closing Speech'.

In brief, this application was overloaded with rubbish.

Worse still, after hearing this matter, I reserved judgment. The applicant, without the leave of the Judge, filed yet another lengthy document, in which he sought to explain why the Notice of Appeal was not filed on time and to lecture me on how a CHIEF JUSTICE should discharge his duties and his intention to write a book about this case.

I have completely disregarded this document, as it was improperly placed before me. The application stands or falls on the founding affidavit. It is not open to litigants to file affidavits in complete disregard of the Rules.

Apart from this, the applicant has impugned the integrity of virtually all the Judges who handled this case.

There is absolutely no basis for impugning the integrity of the Judges who have handled this case. This case constitutes the most blatant abuse of court process I have ever come across. This kind of abuse of court process is unacceptable.

It is also apparent from the record that the applicant was imprisoned for contempt of court for refusing to obey a court order in respect of proceedings involving the same parties to this application. The inescapable inference is that the applicant has very little regard for court process.

It is quite apparent from the nature of the documents filed in these proceedings that the applicant is conducting himself in this manner at the instance of or with the assistance of some 'bush lawyer' with very limited knowledge of the law and the procedures of the courts.

Be that as it may, I hold the applicant accountable for this abuse of court process and warn him of the risk of an order of perpetual silence.

In the meantime there is need for the Court to protect its process from this kind of abuse.

The Court has inherent jurisdiction to regulate its own processes, which it can use to protect its process from abuse: see De Villiers and Anor v McIntyre NO 1921 AD 435.

In the exercise of that jurisdiction, I will therefore issue the following directive:

“THAT, the applicant is barred from commencing any litigation concerning the disputed sale of Stand No. 11747 Nkulumane, Bulawayo, without first obtaining the leave of a Judge of the High Court or this Court.”

For the foregoing reasons, the application is dismissed. There will be no order as to costs as none was asked for.

HB189-18 : CLAUDIUS MANAMELA and BRIGHTON NANGA and SIBONGILE MANAMELA vs ROSEWELL ZULU and APOSTOLIC FAITH MISSION OF AFRICA INTL and CLEMENT NYATHI and APOSTOLIC FAITH MISSION OF AFRICA
Ruled By: MABHIKWA J

On 30 January 2018, the applicants caused to issue legal proceedings, an application, out of this Honourable Court –

“In the High Court of Zimbabwe, held in Bulawayo. The applicant sought an order that it be declared that:

(1) That the President of the Apostolic Faith Mission of Africa International is Reverend Zulu.

(2) That the President of the Apostolic Faith Mission of Africa is Reverend Clement Nyathi.”

On the day of the hearing, on 10 July 2018, the first applicant quickly made what he termed an application for the matter to be removed from the roll.

That application, which must have taken everyone by surprise, was vigorously opposed by the first, second and fourth respondents.

The court may mention, at this stage, that, for all intents and purposes, it became clear, as the matter progressed, that this was an application (i.e. the main application and the “mini” application for removal from) were being orchestrated by the first applicant.

The second applicant, despite being present in court, and allegedly appearing in an individual capacity, said virtually nothing apart from bending over for a second to say he was associating himself with the first applicant's submissions - and this only when asked by the court.

The third applicant was not even present, although, upon inquiry by the court, the three (3) applicants were said, by the first applicant, to be appearing purely in their individual capacity.

The first applicant then told the court that for some reason, the third applicant had failed to attend court.

It was however clear that the first applicant, as he went on over-drive in submissions, was really speaking on behalf of all three (3) applicants - and moreso supposedly on behalf of a “church”.

This court had to discover later on…, that the third applicant is his wife, as shown by various other matters brought before the courts.

As the first applicant insisted, the court decided not to shut him out, as an unrepresented litigant, but to give him a long ear so to speak.

The court still asked him, however, to be clear on what application exactly he was making; in terms of what legal basis he was making it; and the reasons why he was making it.

The first applicant then said that this matter was heard before Mr Justice BERE who clearly recused and also clearly stated that no Judge from the Bulawayo High Court would hear the matter. He said that Justice BERE thus and then recused himself on his behalf and on behalf of all Bulawayo High Court Judges.

He went on to say both parties were therefore of the view that the matter would be transferred elsewhere and were shocked to be told that they were appearing before me.

He went on to say both parties would still press that no Bulawayo High Court Judge should hear the matter hence the application for its removal from the roll.

The court later learnt, from a copy of an order produced by counsel for the first, second and fourth respondents, and after reading a 'swarm' of other matters by the same litigants, that;

(i) Firstly, my brother Mr Justice BERE…, did not recuse himself from, this matter.

(ii) Secondly, and in any case, he did not and could not have legally recused himself on behalf of all other Bulawayo Judges. He clearly recused himself on his own behalf only.

(iii) Thirdly, both parties, the first applicant seemed to mean that the applicants and the respondents were all anticipating that the matter would be transferred elsewhere or would still pursue for that position. Clearly, that was not the case, he must himself have been taken by surprise, not only the respondents but also the second applicant. The third applicant was not in attendance anyway.

When the court sought to confirm whether indeed a transfer of the matter was the expectation and wish of both parties, counsel for the first, second, and fourth respondents emphatically disagreed and submitted that the court is being misled.

Counsel for the first, second, and fourth respondents also shed light on the plethora of cases, mostly applications brought before the courts by the three (3) applicants and/or their group. He further submitted that the applicants merely make a flurry of accusations, unfoundedly, with the sole purpose of diverting the court from its core business and mandate to properly deal with issues before it.

Ultimately, the first applicant in fact then and again went overdrive in his accusations, adding to the list counsel for the first, second, and fourth respondents himself and the Registrar's officer.

He even accused all Bulawayo Judges of “discussing” these matters before going into court.

He could not back down - even after being reminded that the Judge in this hearing had just come from Harare.

Unclear and unheralded as it sounded, the first applicant was directed to file his clear and written application before 18 July 2018 and serve it on the defendants' counsel.

He did not by close of business on 17 July 2018. The application/request had no merit, and, in any case, was vigorously opposed.

It is dismissed.

Coming to the main application, the court had sought to look at all the other matters involving the parties that kept on coming up in this application to have a better understanding of what was going on.

This was moreso because, from the reading of the papers, one was left wondering why such a matter was brought to court by way of an application in the first place. In fact, it had been initially brought as an urgent chamber application.

I must say that the respondents at…, point 18.4 of their opposing affidavit also make the same point; that the application procedure should not be used in matters that are as contentious as this one.

Secondly, the applicants, in their notice of application, state that the application is made in terms of Order 30 of the High Court Rules, 1971.

Order 30 provides for interpleader applications. The facts in this application have nothing to do with an interpleader – absolutely.

In addition to the court's reservations, as well as point 18.4 of the respondents' opposing affidavit, my brother, KAMOCHA J…, stated, on 5 February 2017, in case number HC302/17, that:

“This matter appears to have apparent and numerous disputes of fact about the ownership of the church and those can only be settled through a fully fledged trial.”

He dismissed the application.

This court managed to get 10 cases from this Honourable Court involving these parties - at times with other members of the church(s) involved. But, there appears to be about half a dozen more when considering those at the High Court, Harare, the Supreme Court, and Constitutional Court as well as the Magistrates' Court.

95% or more have been brought by the applicants or with their involvement.

There is no doubt, after reading a majority of those cases, that the applicants have taken it upon themselves to throw applications of whatever nature to these courts like confetti at a wedding.

Indeed, like my brothers and sister Judges before, it is like a hobby to them.

In my view, they seem like people who sit over coffee laughing and agree to file yet another application in the hope that they may get a contradicting decision, laugh their lungs out, and use it.

I would not agree more with my brother MATHONSI J, in case number HB236-17, that, “is common ground that when the church split in 2014, Manamela went with the group that totally moved away from the church premises…,. Quite clearly, Manamela wants to use the court to allow him to get into the premises which he left in 2014.”

The Judge went on to highlight what has been highlighted in various judgments involving the same litigants, that, from the checkered history of the matter, the applicants file application in the courts seeking literally the same relief, that of being allowed to “sneak back” into the church premises they abandoned out of their free will. This has become their pastime.

The current application is no exception.

MANGOTA J and the Supreme Court have stated the same.

In the current application, the applicants curiously make an application which seemingly brings no benefit to them but to one of the respondents in their application. This is the third respondent, a Reverend Clement Nyathi, who, for obvious reasons, does not oppose the application and makes no appearance.

A reading of the plethora of the other cases shows that the third respondent is, in fact, part of the applicants only thrown in the current case among the pigeons so to speak.

To that extent, this court would agree with counsel for the first, second, and fourth respondents that the intention is to pool wool over the court's face.

The court will agree that this application is more of an application made on behalf of Clement Nyathi, who has lost all matters involving and concerning the leadership of the church and control of the assets thereof. They are nothing more than foot soldiers of Clement Nyathi. They have lost almost all the matters.

The court will re-iterate my brother MATHONSI J's warning, that, a litigant or litigants cannot be allowed to enjoy filing frivolous applications at the same time abusing the court and other litigants.

This court will add a warning, to the first applicant in particular, that, it cannot allow a situation where officers of the court, legal practitioners included, are just scandalised by spurious allegations completely unfounded and unsubstantiated.

Surely, the allegations against BERE JA…, were quite stinging; a pattern developed when, in this case, similar allegations were made on counsel for the first, second, and fourth respondents, and the Registrar - all this because the applicant wants, at all cost, to achieve a particular objective at a particular time.

The court can only register its disdain for such an attitude to litigation and may not appear to condone it in future.

These courts are not meant for past-time games but for the genuine resolution of genuine disputes by genuine litigants.

In the result, the application be and is hereby dismissed.

The applicants be and are hereby barred from commencing litigation, whatsoever, in any court of Zimbabwe, in connection with, or concerning the first respondent or the respondent church whether described as Apostolic Faith Mission of Africa or Apostolic Faith International, without the leave of a Judge or the High Court of Zimbabwe.

The applicants be and are hereby ordered, jointly and severally, the one paying the other to be absolved, to pay the costs of suit of this application on an attorney and client scale.

HH443-13 : JONAS MUSHOSHO vs LLOYD MUDIMU and THE DEPUTY SHERIFF
Ruled By: CHIGUMBA J

This is an application for rescission of judgment in two matters, HC6627/10 and HC3805/08, brought in terms of Order 49 Rule 449(1)(a) of the High Court Rules, 1971.

The relief sought by the applicant, is for an order in the following terms:

1. The judgments obtained by the 1st respondent against the applicant in case numbers HC3508/08 and HC6627/10 be and are hereby set aside.

2. The title deeds to Stand Number 2819 Bluffhill Township, Bluffhill, Harare which 1st respondent obtained as a result of an order granted to him in case number HC3508/08 be and are hereby nullified.

3. Applicant be and is hereby declared the sole owner of Stand 2819 Bluffhill Township of Bluffhill held under Deed of Transfer number 004804/98 in his favor.

4. 1st respondent and any person claiming occupation through him from Stand Number 2819 Bluffhill Township of Bluffhill be and are hereby ordered to vacate the property within seven days of the date of service of this order.

5. 1st respondent pay costs of suit on a legal practitioner client scale.

In the founding affidavit, the applicant averred that: he is the lawful owner of Stand 2819 Bluffhill Township of Bluffhill, Harare (hereinafter referred to as the Bluffhill stand) in terms of a Deed of Transfer number 004804/98.

On or about 9 April 2007, he discovered that there was construction going on at this property, despite there not having been an agreement entered into by him to sell this property to anyone.

On making inquiry, he found out that the first respondent was responsible for the construction on the basis that he had bought the Stand from “an old man and pensioner, Jonas Mushosho, of Matepetepa in Mashonaland Central.”

During an initial telecommunication with the first respondent, he advised him that he was Jonas Mushosho; but that he had not sold the Bluffhill stand to anyone. The first respondent, in turn, advised him that he had already taken transfer of the property, and referred him to his legal practitioners, Messrs Dinha Bonongwe & Partners.

On his instructions, his legal practitioners wrote to the first respondent, on the 12 April 2007, advising him to cease construction on the Bluffhill stand, and to vacate within twenty-four hours.

He reported the matter to the police who accompanied him to the Stand on 28 April 2007.

On 30 April 2007, the parties met at the Criminal Investigations Department at Ahmed House in Harare. According to the applicant, the first respondent admitted that he did not know him and had never had dealings with him, and that he had been cheated by a person impersonating the applicant - the real 'Jonas Mushosho'.

The applicant averred that the first respondent voluntarily surrendered the keys to the property that he had built on the Bluffhill stand.

Detective Sergeant Rodwell Mwandayi, the Investigating Officer in this matter, deposed to an affidavit on 28 May 2007 in which he confirmed the applicant's version of events.

On 8 May 2007, the first respondent applied for, and was granted a spoliation order in the Magistrate's Court, under case number 3877/07. He attached to that application, an Agreement of Sale entered into by him and Jonas Mushosho, Identity card number NR63-286395 J18, of House Number 37 Matepatepa, Bindura. The agreement is dated 28 June 2006, and it states that Jonas Mushosho was the owner of Stand 2819 Bluffhill, Harare which he sold to the first respondent for ZW$1,2 billion.

The agreement was signed and witnessed before legal practitioners.

Attached to the Agreement of Sale was an affidavit in which Jonas Mushosho confirmed that he had sold the Stand to the first respondent. The affidavit was commissioned before the same firm of legal practitioners. Deed of Transfer number 4804/98 was attached, which showed that the registered owner of the Bluffhill stand was Jonas Mushosho, born on 24 November 1958.

On 4 July 2007, under case number HC3878/07, in the High Court, the applicant filed for the first respondent's eviction from the Bluffhill stand, and for a declaration that the agreement of sale relied on by him, was null and void.

Judgment was entered in favor of the applicant, in default of filing a plea by the first respondent.

The first respondent applied for rescission of this judgment, and the applicant admits that he did not oppose this application.

The first respondent then applied for an order compelling the applicant to sign transfer documents to transfer the Bluffhill stand into his name, under case number HC2775/07.

The applicant opposed that application.

On 8 February 2008, under case number HC538/08, it was ordered that:

1. First respondent be interdicted from carrying on further developments on Stand 2819 Bluffhill, Harare until the matter was finalized.

2. Applicant and the Deputy Sheriff stay execution of the default judgment granted in HC3878/07.

3. Cases HC2775/07 and HC3878/07 be joined as one action.

The two matters which had been joined were eventually set down for a pre-trial conference on 8 April 2010.

The applicant averred that the first respondent's legal practitioners of record at the time, Messrs Manase & Manase, refused to accept service of the notice of set down of the pretrial conference (see paragraph 15 of the founding affidavit).

It would appear, from the letter written to the Law Society by the applicant's legal practitioners, that service of the notice was attempted to be made at 9;30 am indicating that a pre-trial conference was set down before JUSTICE HUNGWE at 12:30pm that day.

JUSTICE HUNGWE made the following order, on 8 April 2008, in case numbers HC3878/07 and HC2775/07:

1. Respondent with action in HC2775/07 withdrew its case and tendered wasted costs on the 26th February 2008.

2. The Honorable F. CHATUKUTA J's order, in case number HC3878/07, is hereby revived thereby superceding the HONORABLE BHUNU'S order in case number HC538/08.

IT IS ORDERED THAT:

(a) Respondent (Mudimu) and any person claiming occupation through him from Stand 2819 Bluffhill Township Bluffhill, Harare be and are hereby ordered to vacate the property within seven days of the date of this order.

(b) The Agreements of Sale between respondent and one impersonator 'Jonas Mushosho' dated June 23 2006, and June 28, 2006 be and are declared null and void.

(c) Applicant be and is hereby declared the sole owner of Stand Number 2819 Bluffhill Township, Bluffhill, Harare, held under Deed of Transfer No. 004804/98 in his favour.

(d) The spoliation order granted in case number 3877/07 be and is hereby set aside.

(e) Respondent pays costs of this suit on an attorney-client scale.

The applicant averred that his attempts to enforce this order were met with stiff resistance, and that the first respondent refused to vacate the premises on the basis that he had since taken transfer and now held the Bluffhill stand under Deed of Transfer number 0005304/09.

The first respondent then applied for rescission of the judgment made by HUNGWE J, and for stay of execution pending determination of the application for rescission of judgement. These two applications were filed under case numbers HC6627/10 and HC6794/10.

The applicant opposed both applications, and filed a counter-application to the application for rescission of judgment.

On 11 October 2010, MAKONI J issued an order dismissing the first respondent's application in case number HC6794/10, the order to stay execution.

The applicant averred that he opposed the first respondent's application for rescission of HUNGWE J's judgment granted in the joined cases HC3878/07 and 2775/07.

The applicant's notice of opposition to the application for rescission appears to have been filed of record on or about 6 October 2010. His counter application was filed on the same date.

He counterclaimed for a declaratory order that he is the sole and legal owner of the Bluffhill stand held under Deed of Transfer 0004804/98, and for an order that Deed of Transfer 0005304/09 be declared null and void.

The application by the first respondent to rescind HUNGWE J's order was set down on the unopposed roll on 1 December 2010, and the following order was granted, unopposed, by BHUNU J:

1. Default judgment entered against applicant (Mudimu) in the consolidated case number HC2775/10 be and is hereby rescinded.

2. Costs of suit shall be borne by the respondent (Mushosho).

The applicant denied ever having been served with papers in case number HC3508/08, in which the first respondent obtained an order from MAVANGIRA J, in default of appearance by the applicant, on 24 September 2008, to the effect that the applicant sign all necessary documents to effect transfer of the Bluffhill stand into the first respondent's name within seven days of the date of that order, or failing which the Deputy Sheriff was authorized to sign the documents on his behalf.

The applicant averred that he suspects that Deed of Transfer number 0005304/09 came into existence that way.

The applicant contended that the first respondent obtained the order in case number HC3508/08 fraudulently and under unclear circumstances.

The applicant averred that he was never served with any papers and that had he been served, he would have vigorously opposed the granting of the order.

The applicant averred that the first respondent never approached him and requested that he sign transfer documents within seven days of 24 September 2008, as directed by the order.

The applicant averred, that, as at 24 September 2008, when the first respondent obtained the order from MAVHANGIRA J, the consolidated matters under HC538/08 were still pending determination on similar issues.

The applicant contended further, that, the order under HC6627/10, which rescinded judgment in the consolidated cases determined by HUNGWE J, was obtained irregularly and in unclear circumstances.

He contended that his counter-claim was not determined or referred to.

He reiterated that he was not in default, and that the matter was erroneously set down on the unopposed roll without his knowledge.

The applicant's claim is that the orders obtained by the first respondent, in HC3508/08 before MAVANGIRA J, and HC6627/10 before BHUNU J, were obtained fraudulently and irregularly and ought to be rescinded.

The first respondent, in his opposing affidavit, raised a preliminary point that the application is without merit and should be dismissed as it seeks the rescission of a judgment entered against the applicant on 25 September 2008 in HC3508/08, four years later, and on 1 December 2010, in HC6627/10, two years later.

The preliminary point raised is that an applicant has a period of one month, from the date when he becomes aware of a judgment, to apply for its rescission, and may not do so thereafter unless he applies for condonation of the late filing first.

The first respondent averred that the applicant, in bringing this application, is in breach of Order 9 Rule 63 of the Rules of this court.

The first respondent averred that the applicant ought to be ordered to pay costs de bonis propriis because his legal practitioners were advised of the apparent breach of the Rules of this court, on 3 December 2012, but have persisted with their application.

Regarding the merits of the application, the first respondent averred that the applicant sold the Bluffhill stand to him on 23 June 2006 through Messrs Dinha, Bonongwe & Partners legal practitioners.

The first respondent averred that the applicant received the full purchase price and tendered a letter dated 24 October 2012 in which Mr. Bonongwe of Messrs Dinha Bonongwe & Partners confirms that the parties entered into an Agreement of Sale in respect of Stand 2819 Bluffhill, Harare and that the sale was perfected.

The letter states that a Mr. Robert Nyawasha, a paralegal with that firm, was able to positively identify both parties as being the parties who entered into the Agreement of Sale.

Both parties' identity card numbers were supplied.

The first respondent contended that he was forcibly despoiled of the property by the applicant, and that he was intimidated into handing over the keys to the property, a cottage, that he had constructed and which he was in occupation of.

The first respondent averred that the applicant attempted to serve a notice of set down of the pre-trial conference before HUNGWE J, a mere thirty minutes before the set down time, and confirmed that the receptionist at Messrs Manase and Manase, his legal practitioners of record, refused to accept service of the notice of set down.

The first respondent averred that the applicant produced a fake notice to HUNGWE J, indicating that the first respondent had withdrawn its claim and tendered wasted costs, at the pre-trial conference, in the absence of the first respondent, who had not been correctly served with notice of set down.

The first respondent averred that he applied for rescission of the judgment handed down by HUNGWE J.

He confirmed that the title deeds in his name were obtained as a result of the order granted by MAVANGIRA J, under HC3508/08.

The first respondent contended that the court in HC3508/08 would not have granted the order had it not been satisfied that the papers had been duly served on the applicant, and that he was indeed in default.

He challenged the applicant to state whether a perusal of that record failed to show that there was adequate proof of service of the process on him.

The first respondent reiterated that the applicant failed to file opposition in time in both matters, and that he was justified in setting down HC6627/10 on the unopposed roll for determination.

The first respondent contended that no evidence of error on the part of those two courts had been alluded to or provided by the applicant.

The applicant filed an answering affidavit in which he denied that this application is devoid of merit.

He contended that his application is not premised on Rule 63, but on Rule 449(1)(a) of the Rules of this Court.

According to the applicant, an application in terms of Rule 449 is not time specific, and all that one has to show is that the order sought to be rescinded was erroneously sought or erroneously obtained in the absence of the applicant.

The applicant contended that the first respondent's point in limine ought to be dismissed and urged the court not to accede to the request for an order of costs de bonis propriis.

The applicant contended that Messrs Dinha Bonongwe & Partners participated in the fraud perpetrated against him by the first respondent, and caused the illegal transfer of the Bluffhill stand into the first respondent's name.

The issue that falls for determination is this: is there sufficient evidence before the court, on the basis of which the court should grant rescission of the two judgments in case numbers HC3508/08 and HC6627/10; and, if so, should the court be guided by the provisions of Order 9 Rule 63 or Order 49 Rule 449(1)(a)?

Put simply;

(i) The first issue to be determined is that of which of the provisions of the High Court Rules 1971, out of those that provide for rescission of judgments granted in default of one of the parties, is best suited to determine the dispute between the parties in this case.

(ii) The second issue for determination after that will be whether, in the circumstances of this case, on the evidence before the court, the applicant should be granted the relief that he seeks.

Order 9 Rule 63 provides as follows:

“63. Court may set aside judgment given in default

(1) A party against whom judgment has been given in default, whether under these rules or under any other law, may make a court application, not later than one month after he has had knowledge of the judgment, for the judgment to be set aside.

(2) If the court is satisfied, on an application in terms of sub rule (1), that there is good and sufficient cause to do so, the court may set aside the judgment concerned and give leave to the defendant to defend or to the plaintiff to prosecute his action, on such terms as to costs and otherwise as the court considers just.”

Order 49 Rule 449 provides as follows:

“449. Correction, variation and rescission of judgments and orders

(1) The court or a judge may, in addition to any other power it or he may have mero motu or upon the application of any party affected, correct, rescind, or vary any judgment or order —

(a) That was erroneously sought or erroneously granted in the absence of any party affected thereby; or

(b)…,.

(c)…,.”

The applicant relied on the case of Motor Cycle (Pvt) Ltd v Old Mutual Property Investments Corporation Ltd HH04-07…, where CHATUKUTA J said:

“…,. Mr. Mushonga submitted that the applicant was seeking rescission in terms of Rule 449 as read together with Order 9 Rule 63.

Firstly, applicant does not refer to Rule 63 in its pleadings. Rule 63 was first mentioned in the oral submissions and therefore was not pleaded.

Secondly, I am not sure whether the two rules can be read together. It is my view that there are three separate ways in which a judgment in default of one party may be set aside. This can be done in terms of Rule 63, or Rule 449(1)(a) or in terms of the common law.”

There are two noteworthy issues that distinguish Motor Cycle (Pvt) Ltd v Old Mutual Property Investments Corporation Ltd HH04-07 and the issue under consideration:

(i) The first is that in Motor Cycle (Pvt) Ltd v Old Mutual Property Investments Corporation Ltd HH04-07, it was not in dispute that a defective notice of entry of appearance to defend had been filed of record.

In the matter under consideration, it is not clear what the error was, and whether it was an error relating to the pleadings filed, or on the part of the court in accepting such pleadings.

(ii) The second distinguishing factor is that in Motor Cycle (Pvt) Ltd v Old Mutual Property Investments Corporation Ltd HH04-07, the alleged error was defined as an error of law and was clearly spelt out as such in the pleadings.

It is my view, that, in order to qualify for relief under Rule 449(1)(a), a litigant must show that:

1. The judgment was erroneously sought or erroneously granted;

2. The judgment was granted in the absence of the applicant or one of the parties;

3. The applicant's rights or interests were affected by the judgment: see Mutebwa v Mutebwa and Anor 2001 (2) SA 193;

4. There has been no inordinate delay in applying for rescission of the judgment.

It is my view, that, in order to qualify for relief under Rule 63, a litigant must show that:

1. Judgment was given in the absence of the applicant under these Rules or any other law.

2. The application was filed of record and set down for hearing within one calendar month of the date when the applicant acquired knowledge of the judgment.

3. Condonation of late filing has been sought, and obtained, where the applicant fails to apply for rescission within one month of the date of knowledge of the judgement.

4. There is “good and sufficient cause” for the granting of the order.

See Viking Woodwork v Blue Bella Enterprises 1988 (2) ZLR 249 (S)…,; Highline Motor Spares 1933 (Pvt) Ltd & Ors v Zimbank Corp Ltd 2002 (1) ZLR 514 (S)…,; Sibanda v Ntini 2002 (1) ZLR 264 (S); Pastor Jameson Moyo & 3 Ors v Reverend Richard John Sibanda & The Apostolic Faith Mission SC06-10.

5. The phrase 'good and sufficient cause' has been construed to mean that the applicant must:

(a) Give a reasonable and acceptable explanation for his/her default;

(b) Prove that the application for rescission is bona fide and not made with the intention of merely delaying the plaintiff's claim; and

(c) Show that he/she has a bona fide defence to the plaintiff's claim.

See Songore v Olivine Industries (Pvt) Ltd 1988 (2) ZLR 210.

It is also my view, that, in order to qualify for relief in terms of this court's common law power to rescind its own judgments, a litigant must show that:

1. The court's discretion that it is being asked to exercise is broader than the requirements of both Rule 449 and Rule 63.

2. Whether, having regard to all the circumstances of the case, including the applicant's explanation for the default, this is a proper case for the grant of the indulgence.

See Gondo & Anor v Syfrets Merchant Bank Ltd 1997 (1) ZLR 201; and De Wet & Ors v Western Bank Ltd 1979 (2) SA 1031…,.

The question is: what sort of error will suffice to bring an applicant squarely within the ambit of Rule 449(1)(a)?

Is it an error of fact, an error of law, or both?

An 'error' in common and ordinary parlay, is defined as: a mistake, fault, blunder, boo-boo, slip, slip-up, inaccuracy, and miscalculation.

The law is settled on the issue of if or when and whether this court ought to grant rescission of its own judgments in terms of Rule 449.

In South Africa, In Bakoven Ltd v G J Howes (Pty) Ltd 1992 (2) SA 466 (E)…, ERASMUS J said of the almost identically worded Rule 42(1)(a) of the South African Uniform Rules:

"It is an abuse of the process of the court to bring such an application some five years and eight months later. Matters must have some finality and Rule 449 was not designed to let defendants have a second bite at the cherry by raising a defense which should have been raised when the summons was issued."

The Zimbabwean courts have followed some aspects of the South African position and rejected others.

In Grantuilly (Pvt) Ltd & Anor v UDC Ltd 2000 (1) ZLR 361 (SC) the court held that;

“The judgment had been granted because, at the time of its issue, the judge was unaware of a relevant fact, the provisions of the clause in the acknowledgment of debt. Had he known of the clause, he would not have granted the judgment he did.

There was ample precedent for the proposition that a court to which application is made for rescission is not confined to the record of proceedings in deciding whether a judgment was erroneously granted. The wording of Rule 449(1)(a) of the High Court Rules made it clear that a party against whom default judgment had been granted was entitled to place before the correcting, varying, or rescinding court facts which had not been before the court granting the default judgment.

It was held, further, that it is not necessary for a party seeking relief under Rule 449 to show 'good cause'.

If a court holds that the default judgment was erroneously granted, it may be corrected, rescinded, or varied without further enquiry.

The court also found that Rule 449 is one of the exceptions to the general principle that once a court has pronounced a final judgment or order it is functus officio and has itself no authority to correct, alter, or supplement it…,.

See Firestone South Africa (Pty) Ltd v Genticuro AG 1977 (4) SA 298 (A) at 306 F-G; Stumbles & Rowe v Mattinson; Mattinson v Stephens & Ors 1989 (1) ZLR 172 (H) at 174 D-F; Tshivhase Royal Council & C Anor v Tshivhase & Anor; Tshivhase & Anor v Tshivhase & Anor 1992 (4) SA 852 (A) at 862 I-J.”

It is clear, that, to qualify for relief under Rule 449(1)(a), mistakes of fact are not precluded, although it is apparent that the mistakes referred to are not trivial or petty clerical ones. The mistake must have been made on the part of the party seeking the judgment in default, or of the judge who grants it, and the applicant ought to show that he was prejudiced as a result, or that there was a miscarriage of justice.

In other words, despite having a good defence on the merits, judgment was given against him in error, as a result of such mistake.

The law is also clear, that, any fact which was not brought to the attention of the court at the time judgment in default was given, may be placed before the court dealing with an application to rescind judgment in terms of Rule 449.

The allegations of fraud, made by the applicant, were not placed before the courts that determined the judgments that the applicant seeks to have set aside. The applicant is now entitled to place evidence of such fraud before this court.

Disposition

It is my view, that, the differences in the requirements of the two High Court rules are clear.

Rule 63 has strict time limits which must be adhered to, and, a litigant who falls foul of the time-limits will not be heard unless condonation is first sought and obtained.

The phrase 'good and sufficient cause' is seemingly wide-ranging and all encompassing. The explanation for the default must be reasonable and/or acceptable. The applicant must show that he has a bona fide defence to the claim.

On the other hand, the court's common law discretion to rescind its own judgments is wide and requires that regard be had to all the circumstances of the case, including the explanation for, and the length of the delay in bringing the application, and the prospects of success of the applicant in the main matter.

In my view, Rule 63 is more in tandem with this court's common law discretion to rescind its own judgments.

I say so because, when regard is had to the wording of Rule 63, that, “a party against whom judgment has been given in default, whether under these Rules or under any other law,”…, it becomes clear that Rule 63 recognizes the possibility that judgments may be rescinded under other laws which may not necessarily fall under the Rules of this court, such as the common law discretion that this court has to rescind its own judgments.

Rule 449(1)(a) is narrower than Rule 63.

It does not require evidence of 'good and sufficient cause' although it appears to require some consideration of an applicant's prospects of success in the main matter. It appears deceptively simple in its requirement of evidence of an error that caused or induced a court to grant judgment in default in circumstances where it would not have ordinarily granted such judgment.

It is my view that the law is clear on the question of which vehicle a party seeking rescission of judgment given in default may use.

There are three vehicles; Rule 63, Rule 449 and common law discretionary power.

Depending on the circumstances of the case, an applicant is at liberty to elect to utilize whichever one of those three vehicles best suits the circumstances of the case: see Gondo & Anor v Syfrets Merchant Bank Ltd 1997 (1) ZLR 201.

In my view, whichever vehicle a litigant chooses, the court will have to consider the question of length of time that will have elapsed since the judgment sought to be rescinded was granted.

It follows that the first respondent's preliminary point cannot be upheld.

The applicant is not duty bound to proceed in terms of Rule 63. However, the court's scrutiny of the circumstances of this case will show whether the applicant was wise in electing to proceed in terms of Rule 449(1)(a).

Having disposed of the point in limine, I now turn to the merits of the matter.

The applicant contended, that, its non-appearance in both instances was caused by the first respondent's fraudulent and/or irregular set down of the matters without notice, despite clear opposition, and despite the absence of proof of service on him.

Rule 449(1)(a) requires that an applicant demonstrates a simple error, either in the seeking of the default judgment, or on the part of the court in granting it.

My reading of the applicant's papers is that the applicant does not expressly state that the error lay in the erroneous seeking of the judgments. It is implied, in the applicant's papers, that the allegation is that the error lay with the court in being influenced by papers fraudulently or irregularly filed, being almost “duped” as it were, into granting the two judgments when it normally or ordinarily would not have done so.

The court must decide, having regard to the papers filed of record by the applicant, whether there was any mistake, or blunder, or miscalculation, on the part of the court in granting the two judgments that are sought to be impugned.

The applicant, correctly in my view, sought to rely on the case of Gondo & Anor v Syfrets Merchant Bank Ltd 1997 (1) ZLR 201 as authority for the proposition that any type of error will suffice for purposes of entitling an applicant to relief under Rule 449(1)(a).

It would appear, that, this case is distinguishable from the one under consideration because, in that case, judgment had been granted by consent and its rescission was sought on the basis of an error common to both parties in terms of Rule 449(1)(c). The error related to a question of law, the debtors had not opposed the granting of the judgment because they were not aware of the in duplum rule. It was held that, even assuming that the parties were laboring under a common mistake, the applicants would have had to go further and prove that the amount of the judgment debt had breached the in duplum rule.

In other words, the defence in the main matter must have merit.

I accept that the sort of error that entitles a litigant to proceed in terms of Rule 449(1)(a) can be one of fact or of law, as long as there is evidence that the court was influenced by such error in granting the default judgment.

I also accept that before rescinding the judgment, a court must consider whether the applicant has prospects of success on the merits of the matter.

In seeking the rescission of the two judgments granted in default of appearance by himself or his legal practitioner of record, in terms of Rule 449(1)(a), the applicant contended that, in case number HC3508/08, the first respondent obtained judgment in default of the applicant's appearance. The applicant averred that the error that occurred was that judgment was granted despite the fact that “…, court papers leading to the grant of such default judgment were never served on the applicant…, neither did the first respondent serve papers on the applicant's legal practitioners of record.”

It is my view, based on the papers filed of record, that the applicant did not provide any explanation, let alone an acceptable or reasonable explanation, as to why or how the court which granted the judgment in default did so in the alleged clear absence of proof of service, on him or his legal practitioner, or a certificate of service as required in terms of Order 5 Rule 42B(1)(b) of the Rules of this Court.

It is my view that the presumption that the judgment granted in default was done so on the basis of adequate proof of service to the court, was not adequately rebutted in the papers filed of record by the applicant.

The applicant contended, further, that, in case number HC6627/10, an “absurdity” occurred, in that, the applicant had filed his opposing papers to the application with the Registrar of this court and served the same on the first respondent's legal practitioners, who then erroneously set the matter down for hearing on the unopposed roll as if no opposition had been filed, and a default judgment was erroneously granted by the court.

The notice of opposition filed of record, as part of the applicant's papers, appears to have been filed of record with the Registrar of this court on 6 October 2010. Judgment in this matter was granted in 2012 - a good two years after the opposing papers were allegedly filed of record: yet, nowhere on those papers is there a date stamp to show that the opposing papers were served on the first respondent's legal practitioners of record.

The presumption that arises is that the notice of opposition may have been filed of record with the Registrar, but, there is no proof that it was served on the first respondent. Not even a certificate of service by the applicant was filed of record in terms of Order 5 Rule 42B(1)(b).

In the absence of service on the first respondent, and assuming that some administrative error was made, and that there was no copy of the opposing papers in the record, I fail to see the mistake made by the court in granting judgment in default.

The judgment of the court was based on the papers before it at the time.

The court could not have guessed that opposing papers had been filed of record and somehow fallen out of the record. No explanation at all has been given as to why those opposing papers were not served on the first respondent. The matter would not have been set down on the unopposed roll had the first respondent been aware that it was opposed.

The applicant has not rebutted the presumption that opposing papers were not served on the first respondent.

It is my view, that, no mistake was alluded to or proved from the papers filed of record.

There is evidence that the applicant is the one who sold the Bluff-hill stand to the first respondent. There is a witness who can identify him at Messrs Bonongwe & Partners legal practitioners as being the seller of the Bluff Hill stand.

He has not proved fraud on the part of the first respondent or Messrs Dinha Bonongwe & Partners.

In the absence of proof of fraud, the Agreement of Sale is valid and binding on him. There is evidence that the sale was perfected.

In my view, the applicant has no prospects of success in the main matter.

I find that the applicant has failed, in the circumstances of this case, on the papers before me, to furnish adequate proof of fraud, irregularities, or any fault in respect of both judgments sought to be impugned, on the part of the court in granting each judgment.

None of the elements of fraud were expressly averred or pleaded. Fraud is a criminal offence.

It is not clear whether there was a misrepresentation, and, if so, who made it to the court. There is no evidence that the court relied on any misrepresentation when it granted the two judgments.

There is a bald assertion that there was fraud in the filing of the papers; there is a vague reference to “irregularities”, and to an “absurdity”. But, there is nothing in the way of proof of these allegations - not even prima facie evidence.

All the applicant tells us is that the papers were not in order.

We are not treated to the courtesy of being told what exactly it is that was allegedly done, and by whom.

We are not provided with evidence that indeed the court proceeded to grant judgment on the unopposed roll when the papers before it clearly showed that it ought not to have done so. We are not told that despite proof that there was a notice of opposition duly filed of record and served on all interested parties, the court erred in overlooking it and proceeded to grant judgment in default.

There is simply no evidence of any error on the part of the court in both instances, whether an error of fact or an error of law.

It is my view that Rule 449(1)(a) does not apply to the circumstances of this case, and, to borrow the phrase in Gondo & Anor v Syfrets Merchant Bank Ltd 1997 (1) ZLR 201;

“…, the judgments in fact reflected the true decision of the court on the basis of the evidence presented.”

It is my considered view that the applicant is not entitled to the relief that he seeks.

In the never-ending quest for justice, litigants are becoming increasingly indefatigable in approaching the well of justice to quench their thirst for justice.

Uppermost in my mind, in considering the merits of the application before me, was a question the answer to which I knew would only be resolved by resorting to that vague and elastic notion – discretion.

The parties before me have made numerous applications and counter-applications, in regards to the same piece of property, Stand 2819 Bluffhill Township, Harare, over a considerable period of time, from 2006 to date.

Surely, there comes a time when justice and fairness demands that both the victor and the vanquished act sensibly and accept that the matter has been conclusively resolved?

I can do no better than other esteemed courts have done before me, in expressing my disquiet at the manner in which proceedings were conducted between these parties in such a protracted way and over such a lengthy period - with no light at the end of the tunnel.

In Grantuilly (Pvt) Ltd & Anor v UDC Ltd 2000 (1) ZLR 361 (SC), the court expressed the view that a judge would be “…, justified, in the exercise of his discretion, in dismissing the application by reason of the inordinate lapse of time. Rule 449 was a procedural step, designed to correct, expeditiously, an obviously wrong judgment or order…,. It is in the interests of justice that there should be relative certainty and finality as soon as possible concerning the scope and effect of court orders. It would be a proper exercise of the court's discretion to rule that, even if the applicant proved that the Rule applied, it could not be heard after the lapse of a reasonable time. The length of time the appellants waited in this case, whatever the explanation, was unreasonable and the application was an abuse of the court's process.”

The court has already found that Rule 449(1)(a) is not applicable to the circumstances of this case.

Even if Rule 449(1)(a) had been applicable to this case, no reasonable or acceptable explanation was given as to why the applicant waited so long to apply to rescind these judgments.

For these reasons, the application is dismissed with costs.

View Appeal
HH677-14 : MAXWELL SIBANDA vs ZAMBE NYIKA/GWASIRA and REGISTRAR OF DEEDS and EVERJOY MEDA
Ruled By: MATANDA-MOYO J

The applicant obtained default judgment against the first respondent in case No. HC12599/11 on 7 March 2012 in the sum of $4,000, delivery of 1,120m3 of sawn timber, or, alternatively, $392,000 together with interest at the prescribed rate plus costs of suit.

The applicant has not executed on the judgment to date.

Initially, the applicant brought this application against the first and second respondents. The third respondent sought to be joined in the matter claiming she had interest therein.

Such joinder was granted.

This is an application for an interdict barring the first respondent from disposing of a certain piece of property, namely, Stand 13552 Salisbury Township of Salisbury Township Lands measuring 1,569m2 held by the first respondent under Deed of Transfer number 5750/94 dated 21 September 1994.

The applicant also seeks an order declaring the above property specially executable in order to satisfy the judgment debt owed to the applicant under case no. HC12599/11.

The applicant also sought costs of suit from the first respondent.

The first respondent opposed the application.

In his opposition, the first respondent sought an order for rescission of judgment in HC case number 12599/11.

The first respondent has failed to meaningfully respond to the present application.

The first respondent seeks to rescind a default judgement via filing of opposition. Such procedure is irregular and not in compliance with the rules of this court.

Rule 63 and Rule 449 of the High Court Rules 1971 deal with applications for rescission of judgment.

Such application will take the format prescribed in Rule 230, that is, must be in Form No.29.

Rule 229A provides for counter applications which are the equivalent of a counter claim in an action matter. It provides:

“(1) Where a respondent files a notice of opposition and opposing affidavit, he may file, together with those documents a counter–application against the applicant in the form, mutatis mutandis, of a court application or a chamber application whichever is appropriate.”

From the above, it follows, therefore, that, a counter relief can be sought against an applicant by a respondent under a separate heading than the notice of opposition and opposing affidavit.

It is a stand-alone claim made against an applicant.

Even if the applicant later withdraws his application, the counter application could be proceeded with.

In the matter in casu, the purported counterclaim by the first respondent is not in terms of the rules of this court and is therefore invalid. The purported counter application for rescission of judgment is therefore improperly before the court and cannot be entertained.

Since the first respondent has not opposed the relief sought by the applicant, the first paragraph of the Order stands unopposed.

This was also confirmed by the counsel for the third respondent.

The only issue which falls for determination is whether I should declare the property in question specially executable.

The third respondent has opposed the granting of the relief sought on the basis that she has an interest in the property.

The third respondent was customarily married to the first respondent and the two have one minor child.

It is common cause that the third respondent and the minor child reside at the property in question. The respondent opposed the attachment of the immovable property on the basis that she owns 50% share of the value therein.

The third respondent relied on a provisional order granted in her favour on 20 March 2001 by ORMERJEE J…, in HC2784/01. The order was granted against the first respondent. The order was in the following;

“PROVISIONAL ORDER TERMS OF ORDER MADE:

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

1. That, the first respondent be and is hereby interdicted from selling the matrimonial home, namely, Stand No.13552 Salisbury Township of Salisbury Township lands situated in the District of Salisbury also known as No.48 Don Judson Road, Milton Park, Harare, registered in the name of the first respondent under Deed of Transfer No.5750/9 pending determination in the appropriate court by the applicant of a claim for her share in the matrimonial home and pending the finalisation of that suit.

2. That, alternatively, in the event that the transfer has been done, the first respondent is hereby interdicted from receiving any proceeds from the sale of the property without paying the applicant the sum of $1,000,000 being the applicant's half share of the value of the property or failing agreement thereon pending determination as the applicant's claim in the appropriate.

3. That, second respondent be and is hereby interdicted from transferring or registering the transfer of Stand No 13552…, to any third party pending the finalisation of applicant's claim for a share in the matrimonial property in a, and competent count as stipulated in para1 above.

INTERIM RELIEF GRANTED

That, pending the determination of this matter, the applicant is granted the following relief:

1. The first respondent be and is hereby interdicted from selling the matrimonial home, namely, Stand 13552…, known as No.48 Don Judson Road, Milton Park, Belvedere, Harare…, pending the filing in the appropriate court by the applicant of a claim for her share in the matrimonial home within 7 days of the granting of this order….,.

2. That, the second respondent be and is hereby interdicted from transferring or registering the transfer of Stand 13552…, registered under Deed of Transfer No.5750/94 to any third party pending the finalisation of the applicant's claim for a share in the matrimonial property in a, and by competent court stipulated in para 1 above.

3. That, alternatively, in the event that the transfer has been effected, the first respondent is hereby interdicted from receiving any proceeds from the sale of the property without paying the applicant the sum of $1,000,000 or failing agreement on the value of applicant's share, pending the determination of the applicant's claim in the appropriate court as set out in para 1 above.”

The above provisional order was never confirmed.

I also did not hear the third respondent to be saying she brought a claim for the share of the matrimonial home in compliance with paragraph 1 of the interim order granted. Such action was to be brought within seven (7) days of the Order. Such period has since lapsed.

In any case a provisional order simply grants prima facie rights. A provisional order should be real rights.

What the above order did was to bar the first respondent herein from selling the matrimonial property. Such order did not extend to banning sale by execution.

Counsel for the applicant referred to HERBSTEIN and Van WINSEN, 3ed in Civil Practice of the Superior Courts in South Africa where the author says:

“A judgment creditor is entitled to attach and have sold in execution the property of his debtor notwithstanding that a third party has a personal right against such a debtor to the ownership or possession of such property, which right arose prior to the attachment or even the judgment creditor's cause of action, and of which the judgment creditor had notice when the attachment was made. An attachment in execution creates a judicial mortgage or pignus judiciale.”

Counsel for the applicant argued, that, the third respondent's rights in the immovable property are of a personal nature. She does not have real rights in the property as her name does not appear in the Deed registry as co-owner of the property.

He argued that the third respondent's rights, even if accepted, are not such as to result in a situation where property is excluded from execution.

What are the third respondent's rights in the property?

It is common cause that no competent court of law has declared the rights of the third respondent in the immovable property. The third respondent attempted to rely on the interim order granted above in her favour, in a matter between her and the first respondent.

As I reiterated above, the third respondent has failed to persue the interim relief to finality. It remains a prima facie right.

The third respondent submitted, that, she has been staying in the house together with a son she had with the first respondent. The third respondent wants the applicant to respect her 50% share in the property.

I am of the view, that, the third respondent has personal rights in the property, but, such rights are as against the first respondent. Such rights cannot stop a judgment creditor from selling the property in execution.

BUNNS–WORD J, in ABSA Bank Ltd v Peterson (934/2011) (2012) ZA WCHC 18…, said:

“It is only when the exercise of the mortgage's right (to realise the security) is in bad faith that effect should not be given to the right. An indication of bad faith would be provided if the mortgage seeks to proceed with execution against the defendant's home when it is evident that the judgment debt can probably be satisfied in a reasonable manner without involving the drastic consequences of the loss of the mortgaged home.”

The above can be applied with equal force in this scenario where a judgment creditor intends to execute on a home.

The respondents did not argue that they are capable of settling the debt using other means. The first respondent has not been making payment towards the debt. There is, therefore, no evidence of malice on the part of the judgment creditor that has been placed before me.

I am satisfied that this is a case where execution against the first respondent's property should be ordered.

The first respondent has not shown any intention nor capacity to pay the judgment debt in reasonable instalments. There has been no evidence placed before me that the first respondent has movables which could be executed upon to satisfy the debt. The third respondent has not acted with diligence in protecting her rights in the above property.

As was reiterated in Mavhunduse v UDC Ltd & Ors 2001 (2) ZLR 337 that:

“Until such time as title deeds are issued in respect of Plot 216, and ownership thereof is registered in the Deeds Registry in the name of a particular planter, all that the applicant and the purchaser can acquire are rights and interests in the plot. Such rights are personal to the holder thereof. They are not real rights.”

I am, in the result, satisfied that the applicant has met the rest for the granting of the interdict sought. Accordingly, it is ordered as follows:

(1) That the application for a mandament, restraining the first respondent from disposing or otherwise alienating the immovable property be and is hereby granted.

(2) That the immovable property, known as Stand 13552 Salisbury Township of Salisbury Township lands, held by the first respondent under Deed of Transfer number 5750/94, dated 21 September 1994, be and is hereby declared specially executable.

(3) That the first respondent shall pay costs of suit.

SC19-21 : CHEVHU HOUSING CO-OPERATIVE SOCIETY LIMITED AND OTHERS vs CREST BREEDERS INTERNATIONAL (PVT) LTD AND MINISTER OF LANDS AND RURAL SETTLEMENTS
Ruled By: BHUNU JA, MATHONSI JA and KUDYA AJA

The appellants are nine cooperative societies which have been dishing out residential Stands at a piece of land known as Saturday Retreat Estate (the land) for quite some time. The land is held by the first respondent by Deed of Transfer number 4035/86 and was acquired by the Government of Zimbabwe for urban development by Acquisition of Land Order dated 20 March 2014.

Following the acquisition, the second respondent herein, who is the acquiring authority, filed an application against the first respondent in the Administrative Court (the court a quo) for confirmation of the compulsory acquisition order.

The matter was settled between the parties as a result of which a consent order was issued by the court a quo on 13 January 2015.

The consent order confirmed the compulsory acquisition and made provision for compensation due to the first respondent in terms of the agreement of the parties therein.

Almost five years after the consent order was granted in the matter involving the two respondents, the appellants approached the court a quo seeking a rescission of that judgment in terms of Rule 449 of the High Court of Zimbabwe Rules, 1971.

The basis of the rescission of judgment application was that the judgment was granted either in error or fraudulently in the absence of the appellants.

Before the court a quo, the first respondent raised a number of points in limine, namely;

(i) That the application was filed out of time without seeking condonation for the delay;

(ii) That the appellants lacked locus standi in judicio to seek a rescission of an agreement in which they were not a party; and

(iii) That there was no fraudulent misrepresentation in the grant of the consent order.

By judgment delivered on 6 March 2020, the court a quo upheld the preliminary points. This appeal is against that judgment of the court a quo.

This Court finds that the appeal is completely devoid of merit. It ought to be dismissed with costs.

BACKGROUND

By Government Gazette Extraordinary published on 7 September 2001, a preliminary notice in terms of section 5(1) of the Land Acquisition Act [Chapter 20:10], of the intent to acquire the land for resettlement purposes, was issued.

Subsequent to that, the acquisition for resettlement was not pursued, presumably upon a realisation that the land was earmarked for urban settlement.

Notwithstanding that, the appellants later occupied the land and started parcelling out residential Stands to their members. Their case is that they were offered the land for that purpose by the Government as it was by then State land given that a preliminary notice of intent to acquire the land had been published in 2001.

As I have said, it was not until 20 March 2014 that the Government commenced the process of the lawful compulsory acquisition of the land for urban development.

On that date, the second respondent issued an acquisition of land order. As required by law, the second respondent brought an application before the court a quo, under case number LA6/14, for confirmation of the compulsory acquisition and compensation to the first respondent.

The proceedings in the court a quo led to the signing of a settlement between the first and second respondents, on 18 December 2014, which was incorporated in the consent order sought to be rescinded. The Order reads:

“BY CONSENT IT IS ORDERED THAT:

1. The compulsory acquisition of the immovable property, being the remaining extent of Saturday Retreat Estate situated in the District of Salisbury measuring One Thousand and Fifty Seven comma three eight one (1,057,3810) hectares held under Deed of Transfer 4035/1986 (“the Property”) by the respondent be and is hereby confirmed.

2. The respondent is entitled to full compensation for the compulsory acquisition of its urban land.

3. The manner of compensation shall be as set out in the Memorandum of Agreement entered into between the Government of Zimbabwe and the respondent, dated 18 December 2014, a copy of which is annexed to this order as Annexure A.

3.1 The respondent be and is hereby allocated the unoccupied portion of the property measuring 401 hectares.

3.2 The respondent is hereby appointed the sole and exclusive developer of the property defined in the Deed of Settlement measuring 401 hectares.

3.3 The terms and conditions of such appointment shall be governed by the Agreement entered into between Government of Zimbabwe, represented by the Ministry of Local Government and Urban Development, and the respondent, a copy of which is annexed to this order as Annexure A.

4. The Government of Zimbabwe shall sign all such documents, pass all such instruments, give such instructions, and do all things necessary to give effect to this Court order.

5. There shall be no order as to costs.”

Following the consent order, the Deed of Transfer, in terms of which the first respondent held the land, was endorsed on 18 December 2015 to the effect that it now vests in the President.

It is common cause that the appellants became aware of the grant of the court order sought to be rescinded as far back as 2015. The application for rescission of judgement was only filed on 13 December 2019, about 4 years later, without seeking condonation.

PROCEEDINGS A QUO

Before the court a quo, the appellants' case was that the court a quo was misled into granting the consent order and therefore granted the order in error.

The error was in the sense that the first respondent was not the owner of the land in question, it having been acquired by the Government in 2001, and, following such acquisition, it was allocated to the appellants.

Further, the appellants have an interest in the land and had to be consulted before the consent order was granted.

In addition, the appellants contended that the consent order was fraudulently obtained in the sense that the first respondent fraudulently misrepresented to the second respondent, and the court, that, it had entered into agreements with them in terms of which the occupants agreed to pay $4 per square metre of land occupied by them. According to the appellants no such agreements were entered into.

The first respondent's case before the court a quo was that the application for rescission of judgment was filed out of time without seeking condonation at the time they had become aware of the consent order and had thus been complicit for years.

Further, the first respondent took the view that the appellants did not have locus standi to contest an agreement entered into in settlement of an application for confirmation of compulsory acquisition of urban land and compensation thereof.

As they lay a claim through the Government, the appellants could not possibly be cited in proceedings brought in the process of acquisition.

Regarding the agreement relating to payment for the land occupied by the appellants' members, the first respondent insisted that indeed it had agreements with individual occupiers. The appellants had been in illegal occupation of the land which was only lawfully acquired in 2014. The first respondent maintained that it had separate arrangements with some of the occupiers who are paying for the land directly to it.

FINDINGS A QUO

The court a quo found that the delay of almost 5 years in bringing the application was too long, and, as such, condonation should have been sought giving an acceptable explanation for failure to act expeditiously.

It found, further, that there was need for relative certainty and finality in litigation.

On the aspect of the alleged fraudulent misrepresentation to obtain the consent order, the court a quo found that none had been proved in court.

Regarding the appellants' locus standi, it was the court a quo's finding that none of the appellants were privy to the agreement entered into between the first and second respondents. As such, they had no legal standing to seek a rescission of an agreement they were not party to.

As I have already stated, the court a quo upheld the points in limine.

THE APPEAL

The appellants were aggrieved by the judgment of the court a quo and noted an appeal to this Court on four grounds of appeal. They are:

1. The learned judge a quo erred at law in failure to dispose of the first point in limine by the first respondent.

2. The learned judge a quo erred at law in holding that the appellants lacked locus standi to apply for rescission of the judgment granted by the court on 13 January 2015.

3. The Honourable Court erred at law, in so far as it may be taken to have upheld the first point in limine, in holding that there was need for the appellants to apply for condonation of the late noting of the application for rescission and that the appellant failed to prove fraud.

4. The honourable lower court erred at law in allowing a judgment obtained through fraudulent means to stand.

The grounds of appeal are inelegantly crafted, they are repetitive and lack clarity and conciseness required by the Rules.

Be that as it may, only two issues for determination on appeal arise from them. They are:

1. Whether there was a need for the appellants to seek condonation before filing the rescission of judgment application in terms of Rule 449 of the High Court Rules....,.

WHETHER CONDONATION SHOULD HAVE BEEN SOUGHT

Counsel for the appellants submitted that the judgment of the court a quo is not clear whether condonation was necessary or not.

He submitted that Rule 449 does not fix any timeframe for bringing the application. To that extent, there was no need to seek condonation as it could not be said that the application was out of time.

Per contra, counsel for the first respondent submitted that the mere fact that Rule 449 contains no time frame for the filing of an application made under it is not a licence for bringing the application anytime without seeking condonation.

I agree.

There appears to exist a misconception among legal practitioners that Rule 449 provides a gas station for all those who have failed to act timeously to re-fuel and breathe life into a cause that has run its course.

It was never the intention of the framers of the Rules that there must exist a remedy for eternity.

The policy of the law is that there should be legal certainty and finality in the relationship of parties after the lapse of a certain period of time. It is for that reason that society is intolerant to stale claims, generally, as a result of which a party that fails to enforce a right timeously, or within a reasonable time, loses the right altogether: see Ndebele v Ncube 1992 (1) ZLR 288 (S)…,.; John Conrad Trust v The Federation of Kushanda Pre-Schools Trust & Ors HH503-15…,.

It ought to be appreciated that Rule 449 provides for discretionary relief to be granted or refused in the exercise of discretion by a judge or court.

The case of Grantully (Pvt) Ltd & Anor v UDC Ltd 2000 (1) ZLR 361 (S) is authority for the proposition that the court may, in the exercise of its discretion, dismiss an application made in terms of Rule 449 by reason of the inordinate delay in bringing it. At pp365H-366D this Court said:

“Even if the learned judge was wrong in deciding that the judgment granted by MTAMBANENGWE J was not erroneously sought or obtained, I consider that he was justified, in the exercise of his discretion, in dismissing the application by reason of the inordinate lapse of time. After all, Rule 449 is 'a procedural step designed to correct, expeditiously, an obviously wrong judgment or order': per ERASMUS J in Bakoven's case supra at 471E-F: see also Firestone South Africa (Pty) Ltd v Genticuro AG supra at 306H.

In First National Bank of Southern Africa Ltd v Van Rensburg NO & Ors; In re First National Bank of Southern Africa Ltd v Jurgens & Ors 1994 (1) SA 677 (T) ELOFF JP (with whom VAN DER WALT and PREISS JJ concurred) stressed the important need to proceed rapidly in applications of this nature. He said at 681E-G:

'It is in the interest of justice that there should be relative certainty and finality as soon as possible concerning the scope and effect of orders of court.

Persons affected by such orders should be entitled, within a reasonable time after the issue thereof, to know that the last word has been spoken on the subject.

The power created by Rule 42(1) is discretionary (see Tshivhase Royal Council & Anor v Tshivhase & Anor, Tshivhase & Anor v Tshivhase & Anor 1992 (4) SA 852(A) at 862 in fine – 863A) and it would be a proper exercise of that discretion to say that, even if the appellant proved that Rule 42(1) applied, it should not be heard to complain after the lapse of a reasonable time. A reasonable time in this case is substantially less than the three years referred to.'

I respectfully agree with these observations.”…,.

In my view, Rule 449 is not an open cheque to bring an application for rescission, even where it applies, at any time in the life of a person.

It is an expeditious remedy which should be deployed rapidly the moment the party seeking to rely on it becomes aware of the existence of the order.

Where, for some reason, the application is not so made, an acceptable explanation must be rendered for failure to act timeously. Such an explanation can only be made in an application for condonation.

The court a quo cannot be faulted for upholding that preliminary point.

SC22-21 : STONEWELL SEARCHES (PVT) LTD vs STONE HOLDINGS (PVT) LTD and MUTOKO CONSORTIUM and MOSES CHINHENGO N.O.
Ruled By: GUVAVA JA, UCHENA JA and MAKONI JA

It is a salutary principle of law that there should be finality in litigation: see Ndebele v Ncube 1992 (1) ZLR 288 (S)…,.

HH261-16 : KARNEC INVESTMENTS (PRIVATE) LIMITED and ROBERT STRONG vs ECONET WIRELESS (PRIVATE) LIMITED
Ruled By: TSANGA J

This is an opposed application in which the applicants seek that the respondent, Econet Wireless (Private) Limited (“Econet”), be fined for contempt of a court of an order granted on 4 February 2011 by consent of both parties.

In terms of the order that was granted, Econet was to desist forthwith from carrying out building operations on its property. The property is located in a certain upmarket neighbourhood in the suburb of Highlands.

The applicants' residential home is directly opposite a property owned by Econet.

The allegations that gave rise to the court order granted on 4 February 2011 were that at the time, starting in November 2010, Econet was carrying out building operations without complying with the Regional Town and Country Planning Act [Chapter 29:12].

The acts complained of included the level of noise on a daily basis arising from the said operations and the intensity of building operations both inside and outside the house. The operations were said to have caused a heightened nuisance and a danger to the public as the road was narrow and heavy vehicles were blocking the road. The entrance that had been created, from knocking down a wall, was said, at the time, to have facilitated the movement of earth moving equipment, construction equipment and materials, 30 ton trucks, and large dumper trucks. Hundreds of tonnes of building materials were also said to have been delivered.

Econet also owned another adjacent property nearby where it was carrying out legitimate renovations.

An urgent application had been filed and an order had been granted, by consent, at the time. It was worded as follows:

“1. That 1st Respondent (having been Econet in that case) concedes that building operations/ developments were being conducted at 75 Orange Grove Drive, Highlands.

2. That the new entrance on 75 Orange Grove Drive, Highlands shall be sealed off within 7 days of this order.

3. That building operations/developments shall cease at 75 Orange Grove Drive, within 7 days of this order.

4. That within the 7 days period all traffic shall be managed by the 1st Respondent who shall ensure that all motorists are given adequate warning.

5. That the 1st respondent shall pay applicants costs on an attorney client scale.”

This order was complied with forthwith as Econet stopped its activities and the case was closed with payment of costs for the infractions.

However, more than three years following the granting of the above order, Econet again knocked the wall to create an entrance for the delivery of a generator.

It is the applicants' allegation, that, on 20 December 2014, the second applicant, Mr Robert Strong, observed that an entrance to the perimeter wall had been made.

This was the same entrance that had been ordered by the court to be closed in 2011.

On the same date, he observed that a freightliner truck delivered a massive generator. Through direct inspection of the premises, Mr Strong averred that he observed that there had been substantial developments on the premises which included a concrete slab and an oil soak away for the generator.

From this, he concluded that Econet was in fact carrying out commercial and industrial operations on the premises, contrary to the Regional Town and Country Planning Act and in violation of the Pockets Hill residential zoning.

The actions were said to be in violation of the court order as Econet should not have been carrying out any building operations.

It is these acts that have led the applicants to approach this court seeking that Econet be charged with contempt of a valid court order in that, once again, these developments were taking place without the requisite statutory authority.

The applicants, through their counsel…, stressed that the onus of proving that the contempt was not wilful and mala fide is on the respondent: John Strong (Pvt) Ltd & Anor v William Wachenuka (1) 2010 (1) ZLR 151.

Her interpretation of the court order, on behalf of the applicants, was that the entrance was to remain sealed off and that no building operations could take place on the premises whilst the order remained in force. She interpreted the order as referring to building operations in general. She stated that the order could not be read to imply that fresh building operations could resume at some future date. She insisted that what was being carried out were building operations as the wall which was knocked down was a structure and would need to be rebuilt. She also argued that slab for the generator is a structure normally undertaken by a builder.

The operations were also said to fall foul of the Regional Town and Country Planning Act in that they change the use of the building from residential to commercial/industrial.

Econet, through its legal counsel…, vehemently denied that it was in violation of the court order and maintained that it could not be in contempt as it complied with all aspects of the order in 2011 and the matter was closed.

If there had been violation, he said, the application would no doubt have been filed sooner.

Moreover, he maintained that the order did not interdict Econet from installing a basic necessity, such as a generator, which they regard as essential given the electricity situation in the country. He argued that a generator is a necessity and insisted that all activities complained were consistent with the purchase, supply, and installation of the said generator.

Moreover, he emphasised that there is no law which prescribes the maximum capacity of generators that individuals can purchase and utilise.

Since the generator was not on the property in 2011, his position was that it was never part of the order.

He also insisted, that, if so inclined to pursue legal action, then, the applicants ought to have approached this court by way of a fresh application rather than seek to enforce an order that was fully complied within the context of the facts that had given rise to its quest at the time.

As regards the soak away, he argued that no evidence was placed before the court that this was a recent development.

He asserted that the application was merely meant to frustrate Econet because the applicants were miffed at the occupation of the property by a company.

Counsel for the respondent maintained that the order was complied with and fell away.

The gist of his legal argument was that where the order has been served, and non-compliance is alleged, the onus is on the applicant to show wilfulness or mala-fides beyond a reasonable doubt: Ex Parte Mushambi 1989 (2) ZLR 191 (HC); Consolidated Fish Distributors (Pty) Ltd v Zive & Ors 1968 (2) SA 517…,.; Fakie NO v CCII Systems (Pty) Ltd 2006 (4) SA 326 (SCA); Gold v Gold 1975 (4) SA 237 D…,.

He argued that the meaning of the order must be sought from the four corners of the order itself: Firestone South Africa (Pty) Ltd v Genticuro AG 1977 (4) SA 298 (A)…,.

He also argued, that, to the extent that the respondent flouted the Regional Town and Country Planning Act, by not obtaining the necessary permit, then section 27 of the Regional, Town and Country Planning Act [Chapter 29:12] allows regularisation of any such development. Reliance was placed on the case of Bruce v Econet Wireless (Pvt) HH52-09 for this assertion.

Drawing on the case of Nzara & Ors v Kashumba and Ors HH151-16 he also argued that the judgment became superannuated after three years, meaning that the judgement became too old to use after three years expired and would need to be revived.

However, the applicant's response to this argument was that Order 40 Rule 324 applies to superannuated judgments in respect of execution.

In essence, the Rule provides that no writ of execution may be issued after the judgment has become superannuated unless the judgment has been revived.

Counsel for the applicants challenged the claim that the applicants should have made a fresh application as the basis of the consent order was to ensure that Econet complied with the Regional Town and Country Planning Act, yet, the operations were carried out without a permit.

She argued that installing an industrial generator and construction of an industrial septic tank is a violation of Part V of the Regional, Town and Country Planning Act.

The Legal Position on Contempt of Court

In terms of section 3 of our Constitution, Amendment (No.20) Act 2013, one of the founding values and principles upon which Zimbabwe is founded is respect for the rule of law (see section 3(1)(b) of the Constitution in particular).

If the court's authority is not respected there can be no fostering of respect for the rule of law.

Furthermore, in terms of section 164(3) of the Constitution, an order of a court binds the State and all persons and governmental institutions and agencies to which it applies and must be obeyed by them.

Contempt of court has clear bearings on legal proceedings in that if it is not addressed, the jurisdictional power of the courts would be illusionary. It is regarded as an act of disrespect and insult to the court and an obstruction to justice.

Contempt can take place inside or outside the court.

In the case of Nthabiseng Pheko & Ors v Ekurhuleni Metropolitan Municipality [2015] ZACC 10 contempt of court was explained as follows:

“Contempt of court is understood as the commission of any act or statement that displays disrespect for the authority of and officers acting in an official capacity. This includes acts of contumacy in both senses: wilful disobedience and resistance to lawful court orders….,. Wilful disobedience of an order made in civil proceedings is both contemptuous and a criminal offence. The object of contempt proceedings is to impose a penalty that will vindicate the court's honour, consequent upon the disregard of its previous orders as well as to compel performance in accordance with the previous order.”

Central to contempt is not only the disobedience to a court order but also contumacious or stubborn and wilful disrespect for authority.

Econet's counsel placed heavy reliance on the South African case of Fakie NO v CCII Systems (Pty) Ltd 2006 (4) SA 326 (SCA) in his argument that the standard of proof in contempt cases must now be beyond a shadow of doubt.

Materially, what was sought in Fakie NO v CCII Systems (Pty) Ltd 2006 (4) SA 326 (SCA) was committal to prison arising from the alleged contempt. It was in that context that it was laid down, in that case, that, an applicant for committal for contempt is required to prove all elements of contempt beyond a reasonable doubt so as to accord with constitutional protections availed accused persons.

However, it was highlighted that the respondent in such proceedings is “not an accused person but is entitled to analogous protections as are appropriate in motion proceedings.”

It was further explained, in that case, that, the applicant is not required to lead evidence on the respondent's state of mind.

Therefore, once an applicant in contempt proceedings proves three requisites, namely; the existence of the order; its service or notice; and non-compliance; it is the respondent who then leads evidence as to whether the non-compliance was wilful or mala fide. The respondent need only adduce evidence that establishes a reasonable doubt.

The parameters of contempt of court were summed up in Fakie NO v CCII Systems (Pty) Ltd 2006 (4) SA 326 (SCA)…, as follows:

“(a)…,.

(b)…,.

(c) In particular, the applicant must prove the requisites of contempt (the order; service or notice; non-compliance; and wilfulness and malafides) beyond a reasonable doubt.

(d) But once the applicant has proved the order; service or notice; and non compliance; the respondent bears an evidential burden in relation to wilfulness and mala fides. Should the respondent fail to advance evidence that establishes a reasonable doubt as to whether non-compliance was wilful and mala fide, contempt will have been established beyond a shadow of doubt…,.

(e)…,.”

Whether contempt has been committed or not is largely a question of fact, given that, contextually, not every act of disobedience of a court order amounts to civil contempt. Whilst a fine may be merited in some cases, in others, a rebuke or a warning may suffice given the circumstances of the case.

That there was an order of the court is not in doubt. That it was served and the respondent was also fully aware of it is equally not in dispute. The issue is whether, for decision in so far as the onus is on the applicant, is whether or not that order was complied with.

Given that the essence of bringing contempt of court proceedings is to induce compliance with a previous order, and that the court grants enforcement to foster obedience to a court order (Fakie NO v CCII Systems (Pty) Ltd 2006 (4) SA 326 (SCA)…,.), I do not think that the facts before me show that there was disobedience with the order granted by the court.

It is far from being alleged that any of the acts that gave rise to the complaint in 2011 continued unabated in the face of the court order.

I agree fully, that, if that had indeed been the case, given the wording of the court order, any contempt of that order would have been brought to the notice of the court at that time.

The entrance was sealed; the building operations did cease; and Econet managed all traffic as per the court order. It also paid costs. In other words, Econet was in full compliance with that court order in light of the facts to which the order related to. It was a readily enforceable agreement which was couched in a manner which gave finality to the dispute as much of the action was to be done within a specified period.

I am therefore also in agreement with Econet's counsel that what is complained of in this matter, more than three years later, arises from an entirely new set of facts which must, of necessity, be examined in context.

The breaking down of the wall, in the same spot as the previous one, cannot, in itself, be used as an indicator of disobedience and should not be looked at in isolation of the facts that gave rise for the need. The applicants themselves are clear that what they observed being delivered through the created entrance was a generator. An inspection by the second applicant of the premises also showed that a platform had been put in place for the mounting of the generator.

There are no allegations that besides this purpose the entrance was now being used for the very same operations that had led to the granting of the court order.

Having found that the order was complied with, and that the complaint before me is a new cause of action, there is no need, in my view, in this instance, to also delve into the superannuation argument and the import of Rule 324 in this instance which the respondent also sought to rely on.

In my view, the applicants have failed to discharge the onus of showing that this order was not complied with.

But, even if my conclusion is erroneous that the order was complied, and even if the evidential burden shifts to Econet, as respondent, to show that it did not act wilfully and with mala fides, I am of the view that the respondent succeeds in raising a reasonable doubt, which is all that is required of it, that its actions were not wilful or mala fide.

The respondent clearly highlighted that the major purpose of knocking down the wall was because the vehicle delivering the type of generator could not fit through its normal entrance.

It is not an unusual occurrence to have a household item delivered where his vehicle may not fit through the standard gate.

In the absence of clear proof that the respondent was motivated by disrespect for authority, the respondent's explanation succeeds, that it genuinely did not believe that it was acting in violation of the court order.

There was also no legal argument placed before this court that the type of generator in question is forbidden in residential areas.

It is common knowledge that in light of the electricity shortages that have faced this country for more than fifteen years now, individuals and companies have had to find ways of obtaining their own electricity. Installing generators has become one of the common solutions, in addition to solar panels and invertors.

The size of generator is dependent on the use to which the generator is to be put.

Others are designed for heavy duty needs which include not only lighting but running cookers, geysers, boreholes, among other requirements, while some provide basic power for lights and plugs.

It is the needs to which the generator is to be put that determines its size.

The applicants seem to allege that its mere size denotes that the premises are being used for commercial purposes.

No evidence of this was placed before the court other than the applicants say so.

While naturally, in light of the previous facts that had necessitated the obtainment of the court order by consent, the applicants may have had justifiable reason to panic at observing an opening and seeing a huge delivery truck, the circumstances that had necessitated opening the wall had been fully explained to them. The explanation had been reasonable. In the absence of any other evidence that Econet intended to wilfully resume operations without a court order, and that it has indeed done so, that should have been the end of the matter.

If indeed the slab constructed for the generator does need town planning authority, then Econet should rectify this by using section 27 of the Regional Town and Country Planning Act as they have already asserted.

Overall, this application lacks merit and there is no reason why costs should not follow the result.

In the result, this court makes the following order:

1. The application be and is hereby dismissed.

2. Applicants are ordered to pay the costs of suit.

HH272-22 : SLASHWOOD MINING (PVT) LTD and ZENIT GROUP LIMITED vs ONTAGE RESOURCES (PVT) LTD
Ruled By: ZHOU J

This is an application for the revival of an order by consent that was granted in Case Number HC13123/12 and for costs of suit.

The order in question was granted on 5 December 2012.

The application is opposed by the respondent.

The background facts to this application are as follows:

On 5 December 2012, this court granted an order pursuant to an application instituted by the respondent herein under Case Number HC13123/12. The applicants herein are the respondents in that case. The order granted incorporated the terms of a Deed of Settlement which had been signed by the parties on 19 November 2012. The applicant's case is that the order granted in HC13123/12 has superannuated and therefore must be revived by order of this court.

The respondent opposes the application on the following grounds:

(a) That the provision pertaining to superannuation of judgements and their revival was repealed, which means that the application is unnecessary;...,.

On the merits, the respondent's contention is that following the repeal of Rule 448 of the now repealed High Court Rules, 1971, superannuation of judgments no longer applies, hence the application in casu is unnecessary.

This issue has been resolved by this court in the case of Nzara and Others v Kashumba NO & Others HH151-16 where it was held that the repeal of the Rule simply meant that the common law relating to superannuation of judgments now applies. The court pointed to the continued existence of Rule 324 of the 1971 Rules.

Significantly, the same provision has been maintained under Rule 69(3) of the High Court Rules, 2021.

This provision merely restates the common law position with respect to superannuation of judgments.

In the heads of argument, and at the hearing of the application, counsel for the respondent advanced the argument that superannuation applies only to those judgments that are enforceable through a writ of execution. Put differently, the submission was that since the judgement which is being sought to be revived is not one that is enforceable by writ of execution, such a judgment is not covered by Rule 69(3) of the High Court Rules 2021, which was Rule 324 of the now repealed rules of court.

It is common cause that the judgment in casu is not sounding in money, hence it is not enforceable by writ of execution.

The issue of the ambit of the rule relating to revival of superannuated judgments was dealt with by this court in Nzara and Others v Kashumba NO & Others HH151-16…, in which, after an examination of the rule in question MAFUSIRE J said:

“In my view, the superannuation rule may not apply to all judgments carte blanche.”

This reasoning applies to the present case because the judgment in question is not one which is enforceable by writ of execution.

On this ground, I would dismiss the application....,.

1. The application be and is hereby dismissed.

2. First applicant shall pay the costs of suit.

SC81-21 : FRANK HUMBE vs DESMOND MUCHINA and SPARKLES SERVICES (PVT) LTD and GODFREY MUNYAMANA and SHERIFF OF ZIMBABWE and FADZAYI MUNYAMANA
Ruled By: BHUNU JA, MATHONSI JA and KUDYA AJA

It is not the number of times that a litigant approaches the court seeking recourse which determines a matter in the litigant's favour - but the existence of a sustainable cause of action.

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

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

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

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

The applicant seeks an order in the following terms:

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

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

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

4. There will be no order as to costs.

BACKGROUND

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

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

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

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

(d) That respondents pay costs of suit.

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

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

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

The agreement was in the names of the sellers.

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

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

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

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

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

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

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

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

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

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

(i) Whether or not the claim had prescribed;

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

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

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

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

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

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

It held that the first and second respondents, being the agents who facilitated the sale and subsequent transfer of property to the third respondent for and on behalf of their principals, were unnecessarily joined to the action procedure.

The sellers and transferors having been known, their non-joinder in the case was thus fatal.

The non-joinder was coupled with misjoinder of the first and the second respondents who were discharging legal functions for and on behalf of their principals; there was therefore no valid claim against them.

The court further held, that, in terms of the Prescription Act [Chapter 8:11], section 15(d), the claim should have been made within three (3) years of the cause of action.

The judge a quo reasoned, that, the cause of action arose in 2015 when the applicant was notified of the cancellation of his agreement of sale with the sellers. It was also noted, that, despite knowledge that the property had subsequently been sold and transferred to the third respondent, in 2016, the applicant had not acted to protect his perceived interests till June 2020 when he issued the summons in question.

In upholding the special pleas, the court a quo stated thus:

“Considering the totality of submissions, it is clear, that, the cancellation of the sale agreement between the Plaintiff and the first and second defendants principals was communicated as early as 2015. Further communication, in 2016, and subsequent sale of the property to third defendant, culminating in transfer in 2016, was to the knowledge of the Plaintiff. The Plaintiff, despite the knowledge, did not take action until June 2020 when he issued summons. The Defendants special plea, that the Plaintiff's claim must be dismissed on the basis of prescription, estoppel, non-joinder, and misjoinder is well supported by the facts of this matter. The special pleas must succeed.”

Accordingly, the applicant's claim was dismissed.

The applicant was aggrieved by the decision of the court a quo.

In terms of Rule 38(1)(a) he ought to have noted his appeal within 15 days from the date of judgment. He was unable to do so hence this application for condonation of non-compliance with the Rule and extension of time within which to appeal.

APPLICANT'S SUBMISSIONS

The applicant submitted that he only became aware of the judgment on 2 November 2020.

He further submitted, that, the reason for the late noting of the appeal was that he had assumed that he could file the appeal within thirty (30) days of that date. As a result of that assumption, he attested to the founding affidavit on 21 December 2020. When he later approached court to inquire on the matter he was informed that he was out of time as the dies induciae was fifteen (15) days.

The applicant did not, however, disclose the date he approached court.

It could certainly not have been before 21 December 2020.

He conceded, that, he had failed to give a reasonable explanation for the delay between 21 December 2020, when he attested to the affidavit, and 31 March 2021 when he filed the present application.

He, in fact, acknowledged that he had not rendered any explanation for that latter period of the delay.

The applicant averred, that, he, however, had bright prospects of success on appeal because the court a quo had failed to deal with the issues on the merits.

RESPONDENTS SUBMISSIONS

All the respondents opposed the application and contended that the delay was inordinate and the applicant had not proffered a reasonable explanation for the delay.

They also contended, that, there were no prospects of success on appeal as not only were the grounds of appeal defective, but they, in fact, did not impugn the decision of the court a quo in upholding the special pleas.

As far as the respondents were concerned, the applicant has not met the requirements for condonation of failure to file the appeal in time and for an extension of time within which to file the notice of appeal.

Both counsel for the respondents were in unison on these submissions.

Counsel also submitted that the applicant had approached the court on the wrong Rule, as he had made reference to Rule 30 and Rule 38 in the application.

They further submitted, that, the applicant had been very provocative in his language and relentless in the manner in which he approached the courts, which amounts to an abuse of court process.

The applicant had virtually attacked court officials, including the Judge a quo, on matters that had not been placed before that court.

They thus prayed that the application be dismissed with costs on a higher scale as a measure of censure and to caution the applicant to take court business seriously and desist from bitter and paranoid conduct.

ISSUE FOR DETERMINATION

The issue for determination is whether or not the applicant has established sufficient cause for the grant of the order sought.

APPLICATION OF THE LAW TO THE FACTS

It is trite, that, where a litigant realises that they have fallen foul of court rules, they ought to apply for condonation without delay. The litigant must give an acceptable explanation for the failure to comply with the particular rule and for the delay in approaching court seeking condonation: see Viking Woodwork (Private) Limited v Blue Bells Enterprises (Private) Limited 1998 (2) ZLR 249 (S)...,.

One must be candid with the court in their explanation in order to satisfy the court that the explanation is reasonable and deserves the court's empathy and that there are prospects of success on appeal if granted the indulgence.

In Kodzwa v Secretary for Health & Anor 1999 (1) ZLR 313 (S)..., the court aptly indicated that:

“The factors which the court should consider in determining an application for condonation are clearly set out in HERBSTEIN & Van WINSEN's The Civil Practice of the Supreme Court of South Africa, 4ed, by Van Winsen, Cilliers and Loots at pp897-898 as follows:

'Condonation of the non-observance of the rules is by no means a mere formality. It is for the applicant to satisfy the court that there is sufficient cause to excuse him from compliance…,.

The court's power to grant relief should not be exercised arbitrarily and upon the mere asking, but with proper judicial discretion, and, upon sufficient and satisfactory grounds being shown by the applicant.

In the determination whether sufficient cause has been shown, the basic principle is that the court has a discretion, to be exercised judicially upon a consideration of all facts, and, in essence, it is a matter of fairness to both sides in which the court will endeavour to reach a conclusion that will be in the best interests of justice.

The factors usually weighed by the court in considering applications for condonation…, include;

(i) The degree of non-compliance;

(ii) The explanation for it;

(iii) The importance of the case;

(iv) The prospects of success;

(v) The respondent's interest in the finality of his judgment;

(vi) The convenience of the court; and

(vii) The avoidance of unnecessary delay in the administration of justice.'”

In Bessie Maheya v Independent Africa Church SC58-07, MALABA JA..., reiterated the position as follows:

“In considering applications for condonation of non-compliance with its Rules, the Court has a discretion, which it has to exercise judicially, in the sense that, it has to consider all the facts and apply established principles bearing in mind that it has to do justice. Some of the relevant factors that may be considered and weighed one against the other are:

(i) The degree of non-compliance;

(ii) The explanation therefor;

(iii) The prospects of success on appeal;

(iv) The importance of the case;

(v) The respondent's interests in the finality of the judgment;

(vi) The convenience to the Court; and

(vii) The avoidance of unnecessary delays in the administration of justice.”

It is pertinent that the application must be bona fide and be premised on relevant factors. The applicant must be candid with the court on the factors he/she seeks to rely on in the application.

In casu, the applicant sought to rely on:

(i) The extent of the delay, which he deemed not inordinate;

(ii) The explanation for the delay; and

(iii) Prospects of success.

These factors must be considered in their proper perspective....,.

PROSPECTS OF SUCCESS ON APPEAL

It is settled, that, where no acceptable explanation for non-compliance with the Rules has been given by an applicant seeking condonation for the late noting of an appeal, one must, at the very least, show very good prospects of success if the indulgence is to be granted: see Mahachi v Barclays Bank of Zimbabwe SC06-06; and Kombayi v Berkout 1988 (1) ZLR 53 (SC).

The applicant is required to show that he has an arguable case on appeal.

In Essop v S [2014] ZASCA 114, the court aptly stated the following...,.:

“What the test of reasonable prospects of success postulates is a dispassionate decision, based on the facts and the law, that a court of appeal could reasonably arrive at a conclusion different to that of the trial court.

In order to succeed, therefore, the appellant must convince this Court, on proper grounds, that he has prospects of success on appeal and that those prospects are not remote, but have a realistic chance of succeeding.

More is required to be established than that there is a mere possibility of success, that the case is arguable on appeal, or that the case cannot be categorised as hopeless. There must, in other words, be a sound, rational basis for the conclusion that there are prospects of success on appeal.”…,.

See Dzvairo v Kango Products SC35-17.

In casu, the main issue for determination is whether or not the court a quo erred in upholding the special plea and dismissing the claim as a result.

For an appeal to enjoy any prospects of success it must attack the findings of the court a quo on the issues before it for determination. Grounds of appeal that do not address or attack the findings upon which the determination was made would have no prospects of success at all.

In casu, the court a quo's determination was on the special plea.

The court a quo upheld the special plea and dismissed the applicant's claim on the grounds that the claim had prescribed; that there was non-joinder and mis-joinder; and that the applicant was estopped from seeking the setting aside of the third respondent's title.

The applicant's grounds of appeal do not attack any of the above findings by the court a quo.

Instead, the purported grounds of appeal, defective as they are, pertain to issues that were not argued before the court a quo.

The grounds of appeal are crafted as follows:

“1. Non-Refund of the applicant's deposit of US$35,000 binds parties to this agreement.

2. The court a quo deliberately violated section 74 of the Constitution. No competent court ever heard this case which then ordered the cancellation of the agreement of sale.

3. Third respondent is a criminal accomplice as he bought a disputed property well aware a dispute existed.

4. The court a quo erred at law for deliberately non recuse (sic) of herself in a case (the Judge) has interest in, second respondent is an agent of the High Court Sheriff at Mutare High Court, fair judgment is impossible.

5. Conflict of interest as second respondent's duties as an Estate Agent and an Agent of the Sheriff of the High Court are in conflict.

6. Gross misconduct and criminal abuse of office by the Judge to preside in a case she has interest in.

7. Deliberate violations of the agreement of sale by the Judge, second respondent has no power of attorney, the purported cancellation by second respondent is unlawful and of no effect or force.

8. The court a quo deliberately ignores double sale by first and second respondents to third respondent.

9. The court a quo cannot prove a breach, neither do respondents.

10. The court a quo erred by assuming this case was brought to court in June 2020, when in fact it was at the courts in August 2017. See annexure E.

11. Fraudulent court orders, Annexures 'J' 0224983 and 'K' HC2042/19 are a result of a fraudulent Notice of set down urgent chamber application Annexure 'I' HC1377/19 as it is not served on the applicant. It has a wrong surname, wrong address, and faxed at odd hours of business, 2:11am.”

The grounds of appeal do not challenge findings that he was advised of the cancellation of the agreement of sale in 2015 hence when he filed the summons in issue, on 9 June 2020, a period of more than 3 years had lapsed; that the first and second respondents were merely acting as agents for the owners of the property who were known to the applicant and so could not be sued in place of known principals; and that he knew about the sale and transfer to the third respondent in 2016, and, so, by the time he issued the summons in question, a period of three years had lapsed.

It may also be noted, that, the relief that he seeks on appeal is on the merits and is the same as in the summons.

The relief is thus incompetent as it is premised on the merits of the matter when the intended appeal ought to have been on the determination on the special pleas.

Clearly, the applicant has lamentably failed to establish an arguable case on appeal for which I can grant the order sought.

There are no prospects of success at all.

The respondents counsel, in seeking costs on the higher scale, alluded to the litigious nature of the applicant in spite of extant court orders against him which he has not challenged and the fact that the property in question was transferred to the third respondent in 2016 to his knowledge.

Transfer to the third respondent was effected more than three years ago yet the applicant still drags the respondents to court on unsustainable claims.

In this regard, they submitted, that, the applicant has been constantly in and out of the courts in a plethora of matters, some of which were referred to as case numbers HC1236/17, HC8602/17, HC1377/19, HC2042/19, MUTP 3015-16/18, Mutare Magistrates Court 2102/17, not to mention open files before the Anti-Corruption Court, the Law Society of Zimbabwe, and the Judicial Service Commission Secretariat.

The applicant clearly is very litigious and unrelenting despite advice that his complaints were not sustainable.

It is in the interests of justice that court proceedings be brought to finality.

Competent orders affording real rights to the third respondent remain extant as the applicant has not appealed against them.

They thus submitted that the applicant be mulcted with costs on a higher scale.

I am inclined to agree with the respondents on this point.

The applicant's Achilles heel is his failure to seek appropriate legal advice in pursuit of litigation. In the result, he has pursued wrong causes, just as in this case, whereby, instead of appealing against the findings by the court a quo on the special plea, he opted to attack issues that were not determined by the court a quo.

In this regard, during the hearing, effort was made to direct him to the real issues at hand as he had submitted heads of arguments unrelated to the findings on the special plea.

The applicant seems to be confused as to the extent of the issues he can raise on appeal. He appears headstrong that this Court, if it is to condone his non-compliance, should proceed to hear his cause on the issues the court a quo did not hear at all.

The inevitable consequence is that he has caused the respondents to defend the spurious processes thus incurring unnecessary costs. The respondents were thus justified in seeking costs on a punitive scale.

DISPOSITION

Accordingly, it is ordered that -

The application for condonation of non-compliance with the Rules, and extension of time within which to appeal, be and is hereby dismissed with costs on the legal practitioner and client scale.

SC102-21 : DOVES FUNERAL ASSURANCE (PVT) LTD vs FERNABY INVESTMENTS (PVT) LTD and QUECOM ENGINEERING (PVT) LTD and DENNIS NGORIMA and STANDARD CHARTERED BANK LTD and HOMELAND REAL ESTATE and THE SHERIFF
Ruled By: BHUNU JA, MATHONSI JA and CHITAKUNYE JA

On 7 October 2020, the High Court handed down judgment in an application made by the first and third respondents in terms of Rule 359(8) of the High Court Rules, 1971.

It set aside the Sheriff's sale of a property known as Lot 8 Brooke Estate, Harare in execution of a judgment in favour of Standard Chartered Bank Limited and granted the first, second, and third respondents three months to either satisfy the judgment debt or find another purchaser willing to pay more than USD260,000 for the same property.

This is an appeal against that judgment of the High Court (the court a quo).

After hearing submissions by counsel, this Court issued the following order:

“1. The appeal succeeds.

2. By consent, the first, second, and third respondents shall bear the costs of suit.

3. The judgment of the court a quo be and is hereby set aside and substituted with the following:

'(i) The application to set aside the Sheriff's sale be and is hereby dismissed with costs.

(ii) The sale of the applicant's property, being certain piece of land situate in the district of Salisbury called the remainder of lot Brooke Estate, measuring 7258 square meters, held under Deed of Transfer No.4935/2004, sold by public auction to the third respondent, in the sum of $260,000 be and is hereby confirmed.'”

After issuing the order, we stated that the reasons for doing so would follow. What follows hereunder are those reasons.

THE FACTS

Quecom Engineering (Private) Limited, which is the second respondent herein, entered into a loan agreement with Standard Chartered Bank Limited, the fourth respondent herein, in terms of which the latter extended a revolving credit facility to it with a limit of USD800,000.

The first and third respondents, together with the third respondent's now deceased wife, bound themselves as sureties and co-principal debtors for the due performance by the second respondent of its obligations under the loan agreement.

In addition, the first respondent executed a deed of hypothecation over its immovable property, which is now the subject of the dispute between the parties, as security for the second respondent's indebtedness to the Bank.

In due course, the second respondent benefited from the loan but failed to pay the sum of $241,056 which remained owing.

The Bank sued and obtained judgment against the first, second, and third respondents in the sum of $292,272=12 together with ancillary relief.

A writ of execution against property was issued leading to the attachment by the sheriff of the immovable property forming the basis of the current dispute.

Then, began the haggling over the sale of the property, which, when put on sale, would attract unreasonably low prices.

The first attempt at selling the property, on 24 January 2015, attracted a sale price of US$150,000. The first, second, and third respondents filed a request to set aside the sale, which, by consent, was not confirmed by the sheriff.

On 6 August 2015, the judgment debtors were given an opportunity to sell the property by private treaty. They failed to do so, resulting in the property being placed on public auction, where, on 12 January 2017, it only fetched a price of $150,000.

Again, the judgment debtors requested the setting aside of the sale by the Sheriff.

At that stage, the parties agreed that they be given a further four (4) months to sell the property by private treaty failing which the sale for $150,000 would be confirmed.

Again, the judgment debtors failed to find a purchaser. As a result, the sale was confirmed by the Sheriff.

Unhappy, the judgment debtors filed an application to set aside the Sheriff's confirmation in terms of Rule 359(8). This was under case number HC7151/17.

They obtained an order, on 27 September 2017, setting aside the sale by private treaty. The court gave them another period of six (6) months to try and sell the property for a price above the $150,000 previously achieved, and, if they failed, the court directed that the property be sold by public auction.

The judgement debtors again failed to sell the property.

On 6 September 2018, the Sheriff sold the property by public action to the appellant for $260,000.

The judgment debtors would have none of it.

They still filed with the Sheriff a request in terms of Rule 359(1) for the setting aside of the sale on two grounds, namely, that:

(a) The sale was improperly conducted; and

(b) The property was sold for an unreasonably low price.

The Sheriff dismissed the request to set aside the sale and proceeded to confirm it on 29 November 2018.

PROCEEDINGS IN THE COURT A QUO

On 12 December 2018, the judgment debtors launched a court application in the court a quo, in terms of Rule 359(8), for the setting aside of the Sheriff's decision to confirm the sale. They cited two grounds for seeking that relief, namely, that;

(i) The property was sold for an unreasonably low price; and

(ii) That they had found a financier who was willing to pay the full judgment debt on their behalf from the proceeds of the sale of its property.

The financier was said to be in the process of selling its own property to raise funds.

The application was opposed by the appellant which set out the chequered history of the matter making it clear that the so-called financier was in fact a company known as Retour Investments (Private) Limited.

It had, in 2015, been touted by the judgment debtors as a potential financier - without any headway.

In the course of preparing its judgment, the court a quo came up with issues not raised by the parties.

It mero motu invited the parties to address it on two legal issues;

(i) Firstly, whether the application before it was one for a review of the Sheriff's decision.

(ii) Secondly, it desired to know whether it was open to the Sheriff to depart from the provisions of Rule 359 by allowing an oral hearing without the parties having filed formal pleadings.

Having done that, the court a quo refrained from determining the merits of the application before it but disposed of the application entirely on the issues raised by it mero motu.

The court a quo found, that, once a request to set aside the sale is made to the Sheriff, any person intending to oppose it should indicate the grounds for opposition and submit affidavits to support the grounds for opposition.

It found, further, that, as the appellant had failed to file written submissions opposing the objection to the sale, but appeared before the Sheriff to make oral submissions, the hearing by the Sheriff was a nullity.

Having concluded that the Sheriff's proceedings were a nullity, the court a quo set aside the decision to confirm the sale.

It however proceeded to grant the judgment debtors a further period of three (3) months to either satisfy the judgment debt or find another purchaser willing to pay more than $260,000 for the property failing which the sale to the appellant would be deemed confirmed and the property transferred to the appellant.

PROCEEDINGS BEFORE THIS COURT

The appellant was aggrieved by the judgment of the court a quo. It noted the present appeal on two grounds, namely, that:

1. The court a quo erred in granting the first to third respondents a further three months to sell the attached property by private treaty without considering the merits of their objection and whether the objection constituted good cause to justify such order.

2. The court a quo erred at law in granting the first to third respondents the right to sell the attached property by private treaty when such right no longer existed having been granted such opportunity several times before and when there was no firm offer from a prospective purchaser to pay a price higher than the public auction.

This appeal requires the court to determine one issue, namely, whether the court a quo erred in setting aside the confirmation proceedings of the Sheriff and affording the judgment debtors three (3) months period to secure a buyer by private treaty.

WHETHER THE COURT A QUO ERRED IN SETTING ASIDE CONFIRMATION OF THE SALE

Counsel for the appellant submitted, that, the court a quo erred in determining the matter on grounds other than those provided for in Rule 359(1) as read with Rule 359(8) and (9).

He submitted, further, that, the court a quo did not focus on the relevant grounds but on points that it raised mero motu and then relied on those points to dispose of the matter.

It was further submitted, on behalf of the appellant, that, where a request is made by an interested party, to the Sheriff, in terms of Rule 359(1), for the setting aside of a sale, the Sheriff has no power to grant default judgment as suggested by the court a quo.

In all the circumstances, the Sheriff is required, even where no opposing papers are filed, to consider the request and decide whether there is a basis for setting aside the sale.

In advancing that argument, counsel for the appellant relied on the authority of Zimunhu v Gwati & Ors SC43-02 which held, that, even if no opposing papers have been filed following a request to set aside the sale, the Sheriff still has a duty to consider the papers before him or her and decide whether they provide a basis for setting aside the sale.

In addition, the point was made, on behalf of the appellant, that, once an application in terms of Rule 359(8) had been made, the court a quo was enjoined to consider its merits. It could not set aside the sale on mere technicalities.

In this case, the property had been sold on a number of occasions previously but the sales were set aside on the basis of low price.

The sum of $260,000 offered by the appellant was the highest price ever achieved.

The judgment debtors had been accorded opportunities before to sell the property by private treaty. They failed to secure a buyer offering more than what was achieved at the Sheriff's sale.

The valuation report relied upon by the judgement debtors, which placed the forced sale value of the property at $307,500 was done on 5 December 2018 - long after the Sheriff's sale. It was therefore of no use in determining the application.

Per contra, counsel for the first, second, and third respondents submitted, that, the court a quo found an irregularity in the proceedings before the Sheriff. The irregularity was the failure by the appellant to file opposing papers to the request for the setting aside of the sale.

He submitted further, that, having found an irregularity, the court a quo was correct in concluding that the proceedings were a nullity and setting aside the sale. It was correct in not relating to the merits of the matter.

Regarding the issue of whether the judgment debtors have a right to procure a new purchaser, counsel for the first, second, and third respondents submitted, that, the Sheriff's price was unreasonably low. As such, nothing stopped them from doing so.

He however conceded, that, the valuation report submitted by the judgment debtors was irrelevant.

After the interventions of the court directed at whether the jurisdiction of the court a quo, in an application of that nature, could be triggered if the proceedings before the Sheriff were a nullity, counsel for the first, second, and third respondents capitulated; he then suggested that the matter be remitted to the court a quo for a determination on the merits.

The dispute which gave rise to this appeal was initiated by a request made to the Sheriff by the judgment debtors in terms of Rule 359(1) of the High Court Rules. It provides:

“(1) Subject to this rule, any person who has an interest in a sale in terms of this Order may request the Sheriff to set it aside on the ground that:

(a) The sale was improperly conducted; or

(b) The property was sold for an unreasonably low price, or on any other good ground.”

Subrule (1) of Rule 359 therefore imposes limitations on the grounds upon which an interested party may approach the Sheriff with a request to set aside the sale of property in execution of a judgment.

In his affidavit in support of the objection to the sale which was submitted to the Sheriff, the third respondent set out the grounds at paragraphs 20 and 21 as follows:

“20 The purchase price of US$260,000 is a slight improvement from the price of US$150,000 fetched in July 2015 which was roundly condemned by the parties and subsequently set aside by consent of the parties.

21. Applicant is still objecting to the confirmation of the sale on the basis that the purchase price that is being offered by third respondent is below the forced sale value and the actual market value.”

The Sheriff dismissed the objection and confirmed the sale.

The judgment debtors approached the court a quo, in terms of Rule 359(8), for an order setting aside the sale.

They did not seek to be given three months to sell the property by private treaty - which relief the court a quo granted mero motu.

I mention, in passing, that, the court a quo could not grant relief which was neither prayed for nor established in the application.

It is a cardinal principle of our civil practice and procedure, that, the onus is on a person who claims something from another in a court of law to satisfy the court that he or she is entitled to it: see ZUPCO Limited v Pakhorse Services (Private) Limited SC13-17.

Equally important is the principle, that, where there is a dispute on some question of law or fact, there must be a judicial decision or determination on the issue in dispute. A failure to resolve the dispute is a misdirection that vitiates the order given: see Gwaradzimba v CJ. Petron & Co (Proprietary) Limited 2016 (1) ZLR 28…,.

By the same token, it is a grave misdirection for a court to determine an issue not placed before it by the parties and proceed to grant relief not sought by any of the parties.

A party interested in a Sheriff's sale can only approach the court in terms of Rule 359(8) where the Sheriff has refused a request made in terms of Rule 359(1).

In terms of Rule 359(7);(8) and (9):

“(7) On receipt of a request in terms of subrule (1), and any opposing or replying papers filed in terms of this Rule, the Sheriff shall advise the parties when he will hear them, and, after giving them or their legal representatives, if any, an opportunity to make their submissions, he shall either -

(a) Confirm the sale; or

(b) Cancel the sale and make such order as he considers appropriate in the circumstances, and shall, without delay, notify the parties in writing of his decision.

(8) Any person who is aggrieved by the Sheriff's decision, in terms of subrule (7), may, within one month after he was notified of it, apply to the court by way of court application to have the decision set aside.

(9) In an application in terms of sub-rule (8), the court may confirm, vary, or set aside the Sheriff's decision or make such other order as the court considers appropriate in the circumstances.”

The court a quo found that the Sheriff deviated from the rules of court rendering the proceedings irregular and the “decision reached thereon a nullity.”

It however went on to issue an order giving the judgment debtors more time to sell the property.

The jurisdiction of the court a quo to exercise power reposed to it by Rule 359(9) arises from an application being made to it in terms of sub rule (8). Such an application can only be made following a decision by the Sheriff refusing to set aside the sale in terms of subrule (7).

The Sheriff can only make a decision in terms of sub-rule (7) upon a request made to him by an interested party in terms of subrule (1).

Where the proceedings before the Sheriff are a nullity, as the court a quo found, erroneously in my view, the jurisdiction of the court a quo, in terms of subrule (9), cannot be engaged.

It can only be engaged where there were valid proceedings conducted by the Sheriff.

There was a glaring misdirection in granting the judgment debtors relief as the court a quo did.

In any event, it occurs to me, that, the failure by the appellant to file written opposition to the request for setting aside the sale made to the Sheriff, as required by Rule 359(4), could not give rise to a default judgment.

I do not read subrules (4) and (7) as giving rise to an automatic bar against an interested party from contesting the request made to the Sheriff. The use of the word “may” in sub-rule (4) suggests discretion on the party to lodge written notice to the Sheriff.

Equally so, the expression: “On receipt of a request in terms subrule (1) and any opposing or replying papers” in subrule (7) is indicative of the fact, that, opposing papers may or may not be filed.

All that does not detract from the duty of the Sheriff to consider the request and decide whether there is a basis for setting aside the sale.

The Sheriff did that.

I am aware that having concluded that the proceedings before the Sheriff were a nullity, the court a quo did not fully engage the merits.

The court a quo however granted three (3) months for the judgment debtors to satisfy the judgment or find another purchaser.

One can therefore safely say that it regarded the price as being unreasonably low - without giving reasons.

This is therefore not a case in which the matter can be remitted to the court a quo for a determination on the merits. Either it determined the merits or its judgment had that effect.

More importantly, this case has a chequered history wherein a beneficiary of a court judgment has struggled to execute it since 2014. The judgment debtors have had ample time given to them by the court to either pay the debt or sell the property in question at a higher price. They have failed to do so.

There must be finality to this long standing case.

No case whatsoever was made, either before the Sheriff or the court a quo, for the setting aside of the sale.

It is for these reasons that we issued the order mentioned above.

HH974-15 : GUGULETHU HURASHA vs CENTRAL AFRICAN BUILDING SOCIETY and FIRST CAPITAL PLUS and ITAYI MUNYEZA and SHERIFF OF ZIMBABWE and MASTER OF THE HIGH COURT
Ruled By: NDEWERE J

The applicant and the third respondent divorced on 16 January 2014 in Case No. HC7328/13.

In terms of a consent paper concluded on 14 November 2013, which became part of the divorce order of 16 January 2014, the applicant and the third respondent agreed to give their matrimonial home, Stand No.17074 Giraffe Crescent, Borrowdale West, Harare to their two minor children in equal shares.

Paragraph E.5 of the Consent Paper stated as follows:

“E. Division of Matrimonial Property

5. Stand No.17074 Giraffe Crescent, Borrowdale West, Harare shall be awarded to the two minor children in equal shares. The property shall be transferred and registered in the said minor children's names within one year of the order. The parties shall sign all relevant papers to effect transfer to the minor children, failing which, the Sheriff Harare shall sign all such papers as if it were the plaintiff and defendant. The plaintiff shall pay the cost of the transfer. In addition, the defendant shall exercise the rights (usufruct) of use and occupation until she dies or remarries whichever occurs sooner.”

Stand No.17074 Giraffe Crescent was not transferred and registered in the children's names within one year, contrary to what was ordered by the court.

The court was not told of any steps which were taken by the applicant and the third respondent towards complying with the Divorce Order.

It also appears, that, the Sheriff, who was supposed to sign all the papers, for purposes of transfer and registration, if the applicant and the third respondent failed to do so, was never approached.

The property thus remained in the third respondent's name, in contravention of the divorce order.

It is common cause, that, in August, 2015, the above property was attached by the first respondent in order to satisfy a debt by the second respondent where the third respondent had signed as surety.

The applicant says she became aware of the attachment on 21 August 2015. On 2 September 2015 the applicant filed an urgent chamber application for stay of execution of the writ of attachment.

There was a delay of more than 10 days from the date of the attachment to the date of filing of the urgent application. That delay is not explained, contrary to case authorities which indicate that any delay in approaching the court urgently should be explained since an applicant in an urgent application should herself treat the matter urgently.

The first respondent opposed the urgent application....,.

I will..., proceed to consider the merits of the application.

The court order of 16 January 2014 said Stand 17074 Giraffe Crescent was to be transferred and registered in the minor children's names within one year of the divorce order….,.

This time limit was put to protect the interests of the minor children by ensuring a speedy transfer and registration into their names.

This was not done, and, as stated previously, no explanation is given as to why that was not done.

There is just a bald statement by the applicant, which was not supported by a supporting affidavit from the third respondent, that the third respondent did not have the money to process the transfer.

The attachment was done more than one and a half years after the divorce order.

Why then should the first respondent be prejudiced when it is the applicant and the third respondent who failed to protect their minor children's rights by complying with the terms of the divorce order to transfer and register the house into the children's names within a year of the divorce order?

The adage “the law helps the vigilant and not the sluggard” enunciated in Ndebele v Ncube 1992 (1) ZLR 288…, is applicable in this instance.

The applicant and the third respondent were not vigilant in safeguarding the minor children's interests.

Secondly, as indicated by the first respondent, the applicant was aware of the debt and the search for assets as far back as December 2014, yet, she still did not make effort to ensure registration of the house into the children's names.

What further compounds the matter for the applicant is that the relief she is seeking sounds permanent in nature.

It is not a stay pending some other application or action to be taken but a permanent stay of execution.

Her affidavit, in paragraph 18.3, also suggests that the second and third respondents have no financial means to clear the debt.

All these factors militate against the granting of the application.

Granting the application will mean that the first respondent cannot recover his debt from the second and the third respondent forever, when he has a court order entitling him to do so, and this court has no power to stop a creditor with a valid court order from recovering his debt.

In any event, the property is also mortgaged to another creditor so the rights of the children remain exposed even if the application were to be granted.

As correctly conceded by the applicant, in paragraph 19.1 of her founding affidavit, the attachment cannot be faulted since the property still belongs to the third respondent.

While the court sympathises with the minor children in this case, the court has no legal basis to stay execution of the attached property.

The application is therefore dismissed with costs.

SC35-17 : LEONARD DZVAIRO vs KANGO PRODUCTS
Ruled By: ZIYAMBI JA, GOWORA JA and GUVAVA JA

This is an appeal against the entire judgment of the Labour Court sitting at Gweru dated 12 March 2013 dismissing the appellant's application for condonation for leave to file his appeal out of time.BACKGROUNDAlthough the facts of this matter are mainly common cause, it is necessary to set them out ...

This is an appeal against the entire judgment of the Labour Court sitting at Gweru dated 12 March 2013 dismissing the appellant's application for condonation for leave to file his appeal out of time.

BACKGROUND

Although the facts of this matter are mainly common cause, it is necessary to set them out in some detail in order to determine whether the court a quo exercised its discretion judicially.

The appellant was employed by the respondent as a Creditor's Clerk. He was charged under the relevant Code of Conduct with the offence of “any conduct or omission inconsistent with the fulfillment of the express or implied conditions of his contract of employment and willful disobedience to a lawful order.”

It was alleged, that, the appellant failed to comply with written and verbal instructions given to him on 24 May 2001 regarding the checking of daily banking.

Following a disciplinary hearing, he was found guilty and dismissed on 15 August 2002.

He appealed against the decision to the internal Appeals Committee which upheld the decision of the disciplinary hearing on 4 September 2002.

About five months later, the appellant alleged, that, he filed a notice of appeal with the Labour Relations Tribunal Court on 26 February 2003. The respondent asserted, that, they were not served with the notice of appeal and there is no proof in the record that they were served.

The matter was never prosecuted.

The appellant states, in his founding affidavit, that, he made several inquiries with his legal practitioners about the appeal but did not get a satisfactory response. On 5 July 2006, he retrieved his file from his erstwhile legal practitioners and instructed new counsel. His new legal practitioners wrote a letter to the Registrar of the Labour Tribunal enquiring about the appeal. As they did not have a reference number, they did not receive a response.

Through his new counsel, the appellant then filed a chamber application for condonation of late noting of appeal and extension of time at the Labour Court in November of 2006.

This application, for some unknown reason, was only served upon the respondent in October 2012.

Perturbed by his new lawyers seeming ineptitude, the appellant wrote a letter of complaint to the Secretary of the Law Society of Zimbabwe in October of 2010 complaining against the legal practitioners. His legal practitioners then renounced agency.

He then enlisted the services of another lawyer.

Following the application for condonation made in 2006, the appellant then filed heads of argument in December of 2012.

The Labour Court dismissed the application for condonation of late noting of appeal and extension of time on 12 March 2013.

After a further five months, on 26 August 2013, the appellant filed for condonation for late filing of an application for leave to appeal to the Supreme Court.

This application was dismissed by the court a quo. He subsequently filed another application for leave to appeal which was eventually granted.

The appellant then filed his appeal with the Supreme Court on 19 November 2014.

The appellant has appealed to this court on four grounds which he set out as follows:

“1. The Court a quo misdirected itself by dismissing an application on the basis of the extent of delays occasioned to the appellant by members of this honorable court and their resultant failure to proffer reasonable explanation for the professional ineptitude.

2. The court a quo erred in failing to place importance of the case to the public at large which protection should only be seen to be given by this honorable court exclusively as one of the main purposes of the act.

3. The court a quo misdirected itself by upholding the need to put finality to litigation at the expense of justice thereby ignoring the record that clearly showed seriousness of purpose displayed by the now self-acting appellant throughout his case as a court of equality.

4. The court a quo erred by conditioning the glaring misrepresentation by a legal practitioner who forged appellants signature of an affidavit after inheriting the case from another lawyer who had also inadvertently and unjustifiably delayed to note an appeal as required by the hallowed rules of the Labour Court as provided for in Statutory Instrument SI59 of 2006.”

As can be seen from the grounds of appeal, the appellant is dissatisfied with the manner in which the court a quo dealt with his application for condonation of the late noting of an appeal.

It is therefore necessary to ascertain whether the court a quo complied with the requirements of the law in respect to such applications.

REQUIREMENTS FOR AN APPLICATION FOR CONDONATION

In the case of Forestry Commission v Moyo 1997 (1) ZLR 254 (S), GUBBAY CJ sets out factors to be considered in such an application. These are as follows:

(a) That the delay involved was not inordinate, having regard to the circumstances of the case;

(b) That there is a reasonable explanation for the delay;

(c) That the prospects of success, should the application be granted, are good; and

(d) The possible prejudice to the other party should the application be granted.

See also Marick Trading (Pvt) Ltd v Old Mutual Life Assurance Co (Pvt) Ltd & Anor HH667-15.

The appellant explains the delay by giving a series of unfortunate interactions with inefficient lawyers.

KORSAH JA, in Kombayi v Berkout 1988 (1) ZLR 53 (SC), stated thus:

“The broad principles the Court will follow in determining whether to condone the late noting of an appeal are:

(i) The extent of the delay;

(ii) The reasonableness of the explanation for the delay; and

(iii) The prospects of success.

If the tardiness of the applicant is extreme, condonation will be granted only on his showing good grounds for the success of his appeal.”

In casu, even if the court were to disregard the time the appellant spent changing lawyers, the appellant disregarded the restriction of time placed by the Labour Court Rules.

Rule 15(1) of the Labour Court Rules provides for 21 days to note an appeal once one has received the decision.

The period between the granting of the judgment in 2002 and noting of the appeal, after instructing the first lawyer in February of 2003, is well beyond the 21-day limit.

No justifiable excuse has been proffered by the appellant as to why it took him so long to file the appeal.

The application for condonation was made on 12 November 2006, but only served on the respondents in 2012. They quickly opposed the application, but, the Heads of Argument were only filed on 27 December 2012.

From the papers before me, no explanation was made for this delay.

The court a quo cannot be faulted for finding that the delay was caused by the appellant's own dilatoriness.

In the case of H. J. Vorster (Private) Limited v Save Valley Conservancy SC20-14 this court concluded that:

“…, there was no merit in the application for condonation because the applicant's predicament was due to its own dilatoriness. Having so found, the court proceeded to dismiss both applications with costs on the legal practitioner and client scale.”

With regard to the appellant's allegation that it was the incompetence of his erstwhile legal practitioner that led to the excessive delays, the court a quo, correctly in my view, held, that, even where this is the case one cannot seek to insulate himself using such a defence.

A litigant will not be completely absolved for the incompetence of his or her legal practitioner.

This principle was set out in the case of Kombayi v Berkout 1988 (1) ZLR 53 (SC)…, where KORSAH JA quoted with approval the case of Saloojee & Anor NNO v Minister of Community Development 1965 (2) SA 135 (A)…, where it was stated that:

“There is a limit beyond which a litigant cannot escape the results of his attorney's lack of diligence or the insufficiency of the explanation tendered. To hold otherwise might have a disastrous effect upon the observance of the rules of the Court. Considerations ad misericordium should not be allowed to become an invitation to laxity.”…,.

It should also be noted, that, in the case of Ganda v First Mutual Life Assurance Society SC01-05 the court was at pains to explain that it is not enough for one seeking condonation to simply explain the delay of the failure to observe the Rules in the main appeal - but one needs to do so also with the delay in the seeking of the condonation.

“In addition, it is pertinent to note, that, it has been stated in a number of cases that a person seeking condonation of the late noting of an appeal should give a reasonable explanation, not only for the delay in noting the appeal, but also for the delay in seeking condonation.

Thus, in Saloojee and Anor, NNO v Minister of Community Development 1965 (2) SA 135 (A) at 138H STEYN CJ said:

'What calls for some acceptable explanation is not only the delay in noting an appeal and in lodging the record timeously, but also the delay in seeking condonation.

As indicated, inter alia, in Commissioner for Inland Revenue v Burger 1956 (4) SA 446 (A) at p449, and in Meintjies case supra [Meintjies v H.D. Combrinck (Edms) Bpk 1961 (1) SA 262 (A)] at p264, an appellant should, whenever he realizes that he has not complied with a Rule of Court, apply for condonation without delay.'”

In the case of Musiyarira v Rufaro Marketing SC96-05 this court highlighted that it will be slow to interfere with a court a quo's decision on condonation as it involves the exercise of discretion.

“Condonation of the late noting of an appeal and granting an extension of time within which an appeal is to be noted are matters within the discretion of the court of first instance. Unless it has been shown that the learned President of the Labour Court misdirected herself in dismissing the application, this Court will not interfere with the exercise of that discretion.

The delay was indeed inordinate. The explanation given for the delay was correctly found unacceptable. There is nothing to gainsay the finding by the court a quo that there were no prospects of success on appeal.”…,.

The law is clear that there must be finality to litigation.

McNALLY JA spoke on this in Ndebele v Ncube 1992 (1) ZLR 288 (S)…, when he said the following:

“It is the policy of the law that there should be finality in litigation.

On the other hand, one does not want to do injustice to litigants.

But, it must be observed, that, in recent years, applications for rescission, for condonation, for leave to apply or appeal out of time, and for other relief arising out of delays either by the individual or his lawyer, have rocketed in numbers. We are bombarded with excuses for failure to act. We are beginning to hear more appeals for charity than for justice. Incompetence is becoming a growth industry. Petty disputes are argued and then re-argued until the costs far exceed the capital amount in dispute.

The time has come to remind the legal profession of the old adage, vigilantibus non dormientibus jura subveniunt- roughly translated, the law will help the vigilant but not the sluggard.”…,.

The appellant attempts to rely on Dalny Mine v Musa Banda 1999 (1) ZLR 220 (S)…, where the court stated, that, deciding labour matters on technicalities is not desirable.

However, if one examines the quote in full from this case, McNALLY JA stated as follows:

“As a general rule, it seems to me undesirable that labour relations matters should be decided on the basis of procedural irregularities. By this, I do not mean that such irregularities should be ignored. I mean that the procedural irregularities should be put right….,.

I would think it often superfluous for the Tribunal to hear evidence relating to the irregularities.

I say 'often' because there may be cases in which this is not so.

It may be that the existence of irregularities will affect the date from which the termination of employment takes effect. It may sometimes take effect from the date on which the irregularity is cured.”…,.

As can be observed, his remarks are not a blanket cover for all technical defects.

It was highlighted that there are circumstances where a decision on technicalities could be warranted, and, in my view, this case is one such example.

The appellant's lack of diligence was of such gross magnitude that it ceased to be a mere technicality that can be cured.

With regards to the prospects of success, the appellant has not shown that he has any prospects of success on appeal.

His complaint was merely that the case had never been heard on the merits.

This is not sufficient.

He must allege facts, which, if proved, would show that he had prospects of success.

To grant condonation in respect of an appeal with little to no prospects of success only serves to clog the judicial system.

In casu, the merits of the appeal cannot even be ascertained as they were never explored in a trial court.

From its inception, this matter has been a series of applications for condonation and cries for mercy. The appellant alleges, that, this amounts to denying him a right to be heard for procedural technicalities.

However, it is clear, that, in the twelve years the matter has lingered in the justice system, if the appellant had been diligent, he would have had his day in court.

In my view, the appellant has failed to establish any justification for the delay which necessitated repeated requests for condonation. Further, the appellant has failed to demonstrate any prospects of success if condonation were granted and the appeal were to be heard. Finally, the potential prejudice to the other party is totally unacceptable. Not only has the respondent been put out of pocket in defending the multitude of applications but the matter has not, to date, been finalized.

Finally, the appellant does not allege that the court a quo failed to exercise its discretion properly.

As was stated in H.J. Vorster (Private) Limited v Save Valley Conservancy SC20-14 by PATEL JA:

“As for the judgment appealed against, we are unable to find any fault or impropriety in the exercise of the court's discretion. Indeed, counsel for the appellant was unable to identify any misdirection by the court a quo in the exercise of its discretion to dismiss the applications for condonation and rescission of default judgment.”

DISPOSITION

There must be finality to litigation.

Twelve years is a remarkably long time before a matter is finalized by any standard. As such, the court a quo cannot be faulted in dismissing the application.

Accordingly, I make the following order:

1. The appeal is hereby dismissed.

2. The appellant shall pay the respondent's costs of suit.

HB38-15 : SIBUCO TRADING (PVT) LTD and EDITH KATAMBARARE vs LEADERS (PVT) LTD and MESSENGER OF COURT
Ruled By: MAKONESE J

The respondent filed an application for Directions in terms of Order 23 of the High Court Rules 1971.

On 26 November 2014, I directed that the Urgent Application for Stay of Execution, filed under case number HC2009/14, be set down for argument during the first term of 2015. The matter was set down for argument on 20 February 2015.

This judgment deals with the confirmation or discharge of the Provisional Order granted by this court on 28 August 2014.

Background

The factual background to this matter is as follows:

On 28 August 2014, the respondent (as plaintiff) obtained a judgment in the Magistrates Court for the cancellation of the lease agreement between the parties signed and concluded on 30 July 2012. The Applicant (as defendant) was also ordered to pay arrear rentals in the sum of $2,500 per month with effect from January 2013. The applicants were ejected from Shop Number 2, 79A Jason Moyo, Bulawayo and were ordered to pay collection commission together with interest at the prescribed rate and costs of suit.

Aggrieved by the judgment of the Magistrates Court, the applicants filed a Notice of Appeal and such appeal is pending before this court under case number HCA92/14.

Armed with the Notice of Appeal, the applicants approached this court, under cover of case number HC2009/14 on an urgent basis and obtained a provisional order whose interim provides that:

“Pending the finalization of this matter, execution of the magistrates court judgment under case number 732/13 is stayed.”

The respondents sought to set the matter for hearing, a move resisted by the applicants.

This prompted the filing of the application for directions.

I directed the parties to file their heads of argument and present argument on whether the application for Stay of Execution should be confirmed or discharged.

The first issue I must determine is whether the Notice of Appeal filed by the applicants is valid and complies with the rules.

Rule 29 of the Supreme Court Rules 1964 (which Rule applies to appeals to the High Court), provides that:

“Every civil appeal shall be instituted in the form of a notice of appeal signed by the appellant or his legal representative, which shall state:

(a) The date on which, and the court by which the judgment appealed against was given;

(b) If leave to appeal was granted, the date of such grant;

(c) Whether the whole or part only of the judgment is appealed against;

(d) The grounds of appeal in accordance with the provisions of Rule 3;

(e) The exact nature of the relief sought;

(f) The address of service of the appellant or his legal practitioner.”

In this matter, the Notice of Appeal does not state whether the appeal is against both liability for arrears and ejectment from the rented property.

This is far short from the peremptory requirements for the Rules.

Furthermore, to merely state, that, the appellants pray that their appeal be allowed with costs is grossly inadequate and not in compliance with the rules of the court.

The Notice of Appeal, is, in my view, fatally defective to the extent that it is a nullity.

There has been no attempt to seek to amend the Notice of Appeal in spite of the fact that the issue was raised way back in October 2014.

What this boils down to is whether the applicants can hold on to an Order for Stay of Execution obtained pursuant to a defective Notice of Appeal.

I am of the firm view, that, once it is established that the Notice of Appeal is defective and a nullity, the applicant's order for stay of execution cannot be allowed to stand.

In the case of Jensen v Acavalos 1993 (1) ZLR 216, KORSHA JA…, stated the position as follows:

“The reason is that a notice of appeal which does not comply with the rules is fatally defective and invalid. That is to say, it is a nullity. It is not only bad but incurably bad, and, unless the court is prepared to grant an application for condonation of the defect and allow a proper notice of appeal to be filed, the appeal must be struck off the roll with costs.”

HB57-15 : SIPIWO NKOMO vs MLWELIWENKULULEKO NCUBE
Ruled By: MUTEMA J

This is an application for rescission of a default judgment that was granted against the applicant in case number HC548/14.

The facts relevant to the resolution of the dispute between the parties are briefly these:

The applicant sold a BMW X5 motor vehicle registration number ACX 0734 to the respondent. The respondent paid a deposit of $12,000 and took possession of the vehicle. He, however, failed to pay the balance of $12,175.

The applicant then sued for the balance under case number HC2869/13 and obtained default judgment.

As a follow up to the default judgment, a writ of execution was issued which resulted in the vehicle in question being attached by the Deputy Sheriff.

The respondent filed an application for rescission of the default judgement under case number HC548/14.

The applicant's legal practitioners drew up papers to oppose the application, but, before they filed them, the parties reached a settlement which culminated in the signing of an agreement annexure “D” to applicant's founding affidavit. It was drafted in these words:

“MEMORANDUM OF AGREEMENT

It be and is hereby recorded that following a meeting between:

Plaintiff and her legal practitioner Mr G. Nyoni

Defendant and his legal practitioner Mr S.S. Mazibisa

It was agreed without force; duress and undue influence and the parties conscious of what they were doing, that:

1.The execution of Defendant's property be stayed only and strictly on the following conditions:

(a) That, he pays US$5,000 on 15 April 2014 and US$5,175 on the 6th of May 2014.

(b) That, he pays US$578 paid by Plaintiff to Sheriff of Zimbabwe; Sheriff's further costs and commission; interest of US$250 and costs as will be taxed, all by the 27th of May 2014.

2. The BMW X5 registration number ACX 0734 shall be removed by plaintiff from the Sheriff of Zimbabwe, at Defendant's expense (i.e. storage charges) and kept at Plaintiff's place or other safe place until the defendant has fully paid all monies detailed in paragraph (1) above.

3. Should the Defendant fail to make any one of the payments mentioned in (1) above, the plaintiff shall, without notice to the Defendant, take the vehicle to a car dealer (sellers of second hand vehicles) for the car to be sold by private treat at such reasonable price as will be determined thereat.

4. This memorandum shall stand as Defendant's mandate to the Plaintiff and the said car dealer to sell and transfer the car to the would-be purchaser.

DATED at BULAWAYO on this the 26 day of MARCH 2014.”

It was signed by both parties and their respective legal practitioners.

As a result of the agreement, the application and opposition for rescission under case number HC548/14 could not be pursued.

The respondent failed to meet the payments stipulated in the agreement of 26 March 2014 and the vehicle was taken to a dealer, but, the highest offer received was US9,000. There followed a series of correspondence between the parties legal practitioners concerning the value of the vehicle and whether the respondent should pay the applicant's costs.

On 3 September 2014, the current legal practitioners of the respondent wrote to the applicant's legal practitioners as follows:

“RE: M. NCUBE vs SIPIWO NKOMO

The above matter refers and to our previous conversation.

Kindly note, that, I am preparing a payment plan which is to commence at the end of September 2014 inclusive of clearing the balance if that option is still possible then.

In the meantime, may I please have photocopies of all the filed pleadings since Messrs Cheda and Partners seem to have lost the whole file in their moving offices. I have tried to photocopy directly from the High Court, but, at a dollar per page, it was too stiff, hence the favour that I now seek.”

The respondent was obliged with the documents he requested, which papers he then used to pursue his application for rescission of judgment in case number HC548/14 which had been laid in abeyance by the memorandum of agreement alluded to above - without alerting the applicant.

On 23 October 2014, the respondent obtained a default judgment, with costs, rescinding the judgment the applicant had obtained in HC2869/13.

The applicant says she was shocked to receive a letter, on 19 November 2014, written to her legal practitioners by the respondent's current legal practitioners to this effect:

“RE: MLWELIWENKULULEKO NCUBE vs SIPIWO NKOMO HC548/14 X REF HC2869/13

The above matter refers and to the attached court order.

Be advised that we have since obtained a rescission of judgment of the order which was in favour of your client. Mr Ncube had clearly wanted this matter to rest and had resigned himself to losing both the BMW X5 and the money, a sum of US$12,000, plus other monies that he had paid to the sheriff.

What he then found unfair was the fact that your client wanted to further make him pay a sum in excess of US$2,000 as legal costs when she had both the car and the money. Clearly, that was for all to see, a gross injustice.

In light of the rescission of judgment may the status quo before the judgment be restored, and the matter proceed through normal trial route and Mr Ncube pays the balance which was owing. Failing which, may your client make arrangements to refund the money paid to her by Mr Ncube, by the 1st of December, 2014.

As yours took back possession of the vehicle, which she is using, as we are told by Mr Ncube that he has seen her use the motor vehicle, there is therefore no legal basis for her not to return the money since she had taken back the motor vehicle and enjoys its use.”

That letter elicited a response from the applicant's legal practitioners in this vein:

“We refer to the above matter and to your 19 November 2014 letter. We are, we should confess, shocked by your stance which borders on lack of candour and dishonesty. There is a memorandum of agreement that you signed. Did you disclose it to the court? We are interested in this because we saw the papers in court and the agreement was not part thereof. Can we hear from you urgently as we are determined to take this back to court and to show the court that it was, in our view, at least, misled.”

This letter provoked no response from the respondent hence the current application.

At the hearing of the application, counsel for the respondent attempted, in vain, to introduce cases not cited in the respondent's heads of argument on the basis that he was only briefed by Ndove, Museta and Partners the day before.

I disallowed it in terms of Rule 238(2c) because Ndove, Museta and Partners had been served with the notice of set down on 12 February 2015 but briefed counsel on the eleventh hour. No explanation for that was forthcoming.

As if that was not enough, counsel for the respondent went on to smuggle into the hearing new issues that appear not anywhere in the papers in an endeavour to persuade the court to dismiss the application.

I will proceed to deal with those technical issues that he raised first before adverting to those raised in the opposing affidavit and the heads of argument....,.

3. That there should be finality to litigation

The argument raised is that instead of seeking to rescind a rescinded judgment, the applicant should simply let things stand as they are and concentrate on prosecuting the main suit thereby expediting the time honoured principle of finality to litigation.

Attractive as this may sound, it is not without trammel.

The complaint by the applicant, who was ordered to pay costs in the default judgment complained of, is that, to do so, would amount to blessing the respondent's conduct of snatching at a judgment.

Surely, the principle of finality to litigation cannot be embraced when to do so would wreak injustice along the way.

Counsel for the respondent's submission on this point cannot be sustained.

HB134-15 : STANLEY NANZOMBE vs SICINGILE MASUKU (NEE MOYO) and THE SHERIFF OF ZIMBABWE and THE REGISTRAR OF DEEDS
Ruled By: MAKONESE J

The applicant purchased the immovable property known as Stand 4022 Khumalo Township of Stand 4125 Bulawayo (commonly referred to as 36 Ellington Avenue, Khumalo, Bulawayo) at a public auction conducted by the second respondent on 19 July 2013.

The property is registered in the name of Raphael Masuku (the first respondent's husband).

The sale was confirmed by the second respondent on 17 October 2013.

The applicant complied with all the terms and conditions of the sale and duly paid the purchase price.

The transfer of the property cannot, however, be effected into the names of the applicant as the first respondent obtained a Provisional Order against her husband, Raphael Masuku, on 20 September 2000 under case number HC3089/2000. The interim order provides, in paragraph 4, that, pending an order of this court, the third respondent be and is hereby interdicted from transferring the property to a third party.

A caveat was registered against the title deed of the property in terms of that interim order.

The applicant has filed this application seeking an order for the discharge of paragraph 4 of the provisional order under case number 3089/2000 and for the upliftment of caveat number 808/2000 registered in pursuance of the interim order.

This is to enable the third respondent to effect transfer of the property from Raphael Masuku into the applicant's names.

In essence, the relief being sought by the applicant is to give effect to the judicial sale which has been stalled by the terms of the interim order granted by this court on 20 September 2000.

The first respondent has opposed the relief sought by the applicant primarily on the grounds, that, the judgment/order under case number HC1938/12 which led to the attachment and subsequent sale of the property in dispute is being challenged in court by her husband, Raphael Masuku.

In that matter, Raphael Masuku has filed an application for condonation for leave to apply for rescission of judgment under case number HC1938/12 which led to the attachment and auctioning of the property by the second respondent....,.

Background

The first respondent is married to Raphael Masuku and there is a divorce action which is pending under case number 3089/2000. On 20 September 2000, the first respondent obtained, against her husband, interim relief interdicting the sale of the property in dispute to a third party pending an order of this court.

The first respondent duly registered a caveat against the title deed bearing number 808/2000.

The divorce action, instituted some 15 years ago, has not been finalized. No proper explanation for the delay in finalization of this matter has been proffered by the first respondent.

Sometime in May 2012, Raphael Masuku was served with summons under case number HC1645/12.

At that time, Raphael Masuku was at Khami Prison on charges of theft of motor vehicle.

The plaintiff in that matter obtained judgment, and, subsequently, this led to the sale of the property known as 36 Ellington Road, Khumalo, Bulawayo in satisfaction of the judgement debt.

Under case number 1398/12, Raphael Masuku has attempted to seek a rescission of judgment.

Once again, as in the divorce matter, there seems to be no urgency in having that matter brought to finality. No sensible and plausible explanation has been advanced to explain the failure to have the application for condonation, and for rescission of judgement, resolved.

The first respondent and her husband seem content with maintaining the status quo.

It suits the first respondent to cling to the caveat registered in the year 2000. This is so because the property cannot be transferred to the applicant for as long as the caveat is not uplifted. As things stand, the first respondent is not proceeding with the divorce action and Raphael Masuku is not pursuing the application to rescind the default judgment that led to the sale of the immovable property.

Established Facts

It is not in dispute, that, the applicant purchased the property through a public auction conducted by the second respondent.

The applicant complied with all the terms and conditions of the sale and paid the full purchase price for the property.

The applicant is essentially an innocent purchaser.

It is further not in dispute, that, the property is registered in the names of Raphael Masuku, who is the registered owner of the real rights over the property.

The first respondent's opposition to the upliftment of the caveat is premised on the fact, that, the judgment which led to the property being auctioned is being challenged in court.

That judgment, which led to the sale in execution, is still operative and has not been set aside by a competent court.

It is beyond dispute, that, the immovable property was placed under attachment and sold to the applicant in terms of a valid court order.

I have already indicated, that, both the first respondent and Raphael Masuku have shown no interest in bringing to finality, firstly, the divorce matter, and, secondly, the application for rescission of judgment.

I also note, that, there is nothing in the papers to suggest, that, there was an attempt to challenge the confirmation of the sale.

The first respondent has taken no action at all to obtain an order setting aside the sale in execution.

There is therefore no basis to oppose the upliftment of the caveat registered in the year 2000, simply on the grounds, that, Raphael Masuku has not finalized his application for rescission of judgment.

As matters stand, the first respondent has remained in the property in dispute from 17 October 2013. The first respondent and her husband enjoy the use of the property - rent free.

Analysis of the Law

The onus is on the applicant to satisfy the court, that, there are special circumstances why an order uplifting the caveat should be granted: see the case of Maphosa and Another v Cook and Others 1997 (2) ZLR 314 (H).

In this matter, the learned judge goes further to state, at page 317, as follows:

“It is clear from the authorities, that, in the exercise of its discretion, the court will consider the fact that the attached property had been sold to the applicant, but, that, the applicant must show, in addition to that factor, the existence of facts or circumstances which satisfy it that it would be just or equitable to grant the relief sought.”

In the case of Bulle v Merchant Bank of Central African and Others HH02-96, it was held, that, a caveat recorded against a title deed does not confer on the judgment creditor real rights.

In the same vein, in this instance, the caveat placed against the title deed does not confer any real right on the first respondent.

In her heads of argument, the first respondent makes the following averments in paragraph 2.2:

“The first respondent stands to be prejudiced if the caveat is lifted since the said property forms part of the matrimonial property upon which a divorce matter is still pending under case number 3889/2000. This property cannot then be disposed of at the detriment of the first respondent who also happens to be an interested party. Lifting the caveat will be contrary to public policy since first respondent's husband's indebtedness cannot prejudice her interest in the property.”

I hold the view, that, the first respondent only holds personal rights against the registered owner of the real rights, Raphael Masuku.

The first respondent's opposition to the upliftment of the caveat, on the grounds that it would be against public policy, lacks merit as she may claim damages against the registered owner of the property, Raphael Masuku.

In the instant case, what the first respondent is in effect protecting is her 50% claim of the proceeds of the sale of the property upon the granting of a divorce.

That divorce, sadly, has not been resolved for 15 years, and there seems to be no interest on the part of the first respondent, or her husband, to bring the matter to a final conclusion because the issue of the caveat will then simply fall away.

The issue of the caveat is being used, in my view, as a shield against the enforcement of the applicant's rights arising from the sale of the property.

The position was aptly stated by HERBSTEIN and VAN WINSEN in Civil Practice and Procedure of the Superior Courts in South Africa, 3rd Ed…, where it is stated as follows:

“…,. A judgment creditor is entitled to attach and have sold in execution the property of his debtor notwithstanding that a third party has a personal right against such a debtor to the ownership or possession of such property, which right arose prior to the attachment or even the judgment creditor had notice when the attachment was made. An attachment in execution acts as a judicial mortgage or pignus judiciali.”

I make the further observation, that, the caveat, which has been in place for close to 15 years now, has been overtaken by events.

Since the caveat was placed on or about the time of institution of divorce proceedings, its real purpose was to prevent a sale which her husband could conclude with a third party without her knowledge, thus prejudicing her personal rights in and to the property.

The property has since been sold in terms of a sale in execution, and the first respondent can enforce her personal rights for her fair share of the proceeds of the sale against her husband.

The first respondent's opposition to the removal of the caveat lacks substantive and well-grounded basis at law.

In the result, I am satisfied, that, the applicant has made out a good case justifying the upliftment of the caveat.

In the exercise of my discretion in applications of this nature, the applicant is entitled to the relief sought.

I, accordingly, make the following order:

1. Paragraph 4 of the Provisional Order granted under case number HC3089/2000 be and is hereby discharged and caveat number 808/2000 registered over Stand 4022 Khumalo Township of Stand 4125 Bulawayo under Deed of Transfer number 3137/2000, more commonly known as Number 36 Ellington Road, Khumalo, Bulawayo be and is hereby set aside.

2. Third respondent be and is hereby authorized and directed to uplift the aforesaid caveat and allow transfer of the said property from Raphael Masuku into the names of the applicant.

3. Second respondent be and is hereby authorized to sign any relevant documents to enable transfer on behalf of the said Raphael Masuku.

4. First respondent shall bear the costs of this application.

Appealed
CC07-21 : MARX MUPUNGU vs MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS and OTHERS
Ruled By: GWAUNZA ACJ, GARWE JCC, MAKARAU JCC, GOWORA JCC, HLATSHAWAYO JCC, PATEL JCC and GUVAVA AJCC

MAKARAU JCC:This is an application in terms of section 175(3) of the Constitution of Zimbabwe, for the setting aside in its entirety, of a High Court declaratory order handed down on 15 May 2021. The order, issued in respect of two distinct and separately filed applications, invalidated certain conduct by ...

MAKARAU JCC:

This is an application in terms of section 175(3) of the Constitution of Zimbabwe, for the setting aside in its entirety, of a High Court declaratory order handed down on 15 May 2021. The order, issued in respect of two distinct and separately filed applications, invalidated certain conduct by the President as unconstitutional. This it allegedly did in the first of its two parts.

Background

We summarise the facts giving rise to this application from the two applications that were filed in the High Court under case numbers HC2128/21 and HC2166/21, respectively. The facts are not complex.

The facts of this application coalesce, and relevantly so, around 15 May 2021 when the Chief Justice, Judge Malaba, reached the age of seventy. A few days before that date, on 7 May 2021 to be precise, the Constitution of Zimbabwe Amendment (No.2) Act (No.2 of 2021) came into force.

Among other provisions, it amended section 186 of the Constitution to provide for the tenure of judges in the following terms:

“(1) The Chief Justice and the Deputy Chief Justice hold office from the date of their assumption of office until they reach the age of seventy years, when they must retire unless before they attain that age they elect to continue in office for an additional five years;

Provided that such election shall be subject to the submission to, and acceptance by the President, after consultation with the Judicial Service Commission, of a medical report as to their mental and physical fitness so to continue in office.

(2) Judges of the Constitutional Court are appointed for a non-renewable term of not more than fifteen years; but

(a) They must retire earlier if they reach the age of seventy unless, before they attain that age, they elect to continue in office for an additional five years:

Provided that such election shall be subject to the submission to, and acceptance by the President, after consultation with the Judicial Service Commission, of a medical report as to their mental and physical fitness so to continue in office.

(b) After the completion of their term, they may be appointed as judges of the Supreme Court or the High Court, at their option, if they are eligible for such appointment.

(3) Judges of the Supreme Court hold office from the date of their assumption of office until they reach the age of seventy years, when they must retire, unless, before they attain that age, they elect to continue in office for an additional five years:

Provided that such election shall be subject to the submission to, and acceptance by the President, after consultation with the Judicial Service Commission, of a medical report as to their mental and physical fitness so to continue in office.

(4) Notwithstanding subsection (7) of section 328, the provisions of subsections (1), (2) and (3) of this section shall apply to the continuation in office of the Chief Justice, the Deputy Chief Justice, Judges of the Constitutional Court and Judges of the Supreme Court.”

Acting in accordance with the provisions of section 186 of the Constitution, as amended, the Chief Justice exercised the option to extend his tenure of office beyond the age of seventy for an additional five years.

By letter dated 11 May 2021, the seventh respondent, the President, accepted a medical report as to the mental and physical fitness of the Chief justice to continue in office.

The third (Musa Kika), fourth (Young Lawyers Association of Zimbabwe) and fifth (Frederick Mutanda) respondents formed the firm view, that, the seventh respondent (the President), by accepting the medical report, that the Chief Justice was mentally and physically fit to so continue in office, had subverted the correct constitutional position.

They filed the two applications in the High Court that we have detailed above, challenging the continuation in office of the Chief Justice for an additional five years beyond 15 May 2021.

In his application, the third respondent (Musa Kika), in addition to the Chief Justice, cited as respondents all the judges of the Supreme Court and some judges of the High Court.

At the time of the filing of the application, the five judges of this Court, other than the Chief Justice and the Deputy Chief Justice, were Supreme Court judges, acting as Supreme Court judges and were cited as such. Substantive appointments to this Court were made subsequent to the filing of the applications a quo but before the hearing of this application.

Whilst materially and correctly so, the third respondent (Musa Kika) averred in his application, that, the Chief Justice had opted to exercise the option introduced by the amendment, no such averment was made in respect of any or all of the other judges who were cited as respondents under case number HC2128/21.

We revert to this fact in detail later.

The primary relief sought in the applications a quo was a declaration that the amendment to the Constitution, in section 186, did not apply to the Chief Justice and the judges cited as respondents. Specifically, it was claimed, that, the amendment did not have any force and effect on the tenure of the Chief Justice and the cited judges as such an interpretation would fall foul of the provisions of section 328(7) of the Constitution.

Section 328(7) of the Constitution provides that:

“(7) Notwithstanding any other provision of this section, an amendment to a term–limit provision, the effect of which is to extend the length of time that a person may hold or occupy any public office, does not apply in relation to any person who held or occupied that office, or an equivalent office, at any time before the amendment.”

The two applications, both brought urgently, were opposed on truncated dies induciae in accordance with the terms of a case management meeting order to which all the parties agreed.

At the end of the hearing of the applications, as indicated above, the court a quo issued a singular order in the following terms:

“IT IS DECLARED THAT:

1. The second respondent in HC2128/21 who is also the second respondent in HC2166/21 ceased to hold the office of the Chief Justice of Zimbabwe and judge by operation of law on 15 May 2021 at 4:00 hours.

2. The extension of the length of time in the office of the judge beyond the age of seventy provided for in section 186 of the Constitution does not apply to the second to fourteenth and eighteenth respondents.

3. There shall be no order as to costs.”

The respondents a quo, including the judges of this Court, were aggrieved by the order.

Under separate and different covers, they filed notices of appeal in the Supreme Court challenging the correctness of the decision.

It is not necessary that we set out the grounds of appeal of each appellant in full. As and when it is it necessary to do so, we shall advert to the notices of appeal.

The applicant, strongly believing, that, the effect of the first part of the order was to declare constitutionally invalid the letter of 11 May which constituted the legal authority for the Chief Justice to continue in office, filed this application in terms of section 175(3) of the Constitution.

As indicated above, he sought the setting aside of the entire order.

This he did notwithstanding, that, on its mere reading, the High Court order did not in any way refer to the conduct of the seventh respondent (the President) as constitutionally invalid.

We observe, at this stage, that, the interpretation of the High Court order by the applicant in this regard was conceded as correct by the fourth (Young Lawyers Association of Zimbabwe) and fifth (Frederick Charles Mutanda) respondent's counsel during the hearing of the application.

We shall advert to this concession in detail in due course.

The Application in terms of section 175(3) of the Constitution

It is common cause that the applicant was not a party to either of the two applications that were determined by the High Court. He brought this application in the first instance. In the application, he alleged that he is an adult Zimbabwean who is asserting his right to access this Court directly to defend and protect the Constitution.

Arguing that the state of affairs in the country following the issuance of the High Court order was undesirable as there should never, in any jurisdiction, be doubt as to who the Chief Justice is, the applicant made two basic contentions:

(i) Firstly, he contended, that, the juristic act by the seventh respondent (the President) of accepting a medical report as to the mental and physical fitness of the Chief Justice to remain in office for an additional five years, after attaining age seventy, was valid and the High Court orders purporting to hold such as constitutionally invalid had to be set aside.

(ii) Secondly, he contended, that, section 328(7) of the Constitution, relied upon by the third (Musa Kika), fourth (Young Lawyers Association of Zimbabwe) and fifth (Frederick Charles Mutanda) respondents as precluding the amendment of the Constitution from applying to the Chief Justice and other sitting judges was not applicable as section 186(4) of the Constitution was the applicable section.

The third, fourth, and fifth respondents opposed the application.

The first (Minister of Justice, Legal and Parliamentary Affairs), second (Judicial Service Commission), sixth (Attorney General) and seventh (the President) respondents were content to keep a watching brief during the hearing of the application.

The third respondent (Musa Kika) opposed the application on the basis of a sole preliminary point. It was his position that this court should refrain from exercising jurisdiction in the matter.

Put differently, it was his position, edified during the proceedings by an oral application, that, this Court should recuse itself. In his view, since the second part of the High Court order declared that the judges of this and the Supreme Court could not extend their respective terms of office beyond the age of seventy, the order under scrutiny in the confirmation proceedings affects the judges of this Court directly.

In this regard, he was keen to highlight and place it on record, that, the judges of this Court had not only participated in the proceedings before the High Court but had since filed a notice of appeal against the High Court order.

It was therefore the mainstay of his exception and position, that, the judges of this Court were completely non-suited to hear this application on account of their positions as active litigants who were already seeking the vacation of the High Court order by way of appeal.

In his further view, the determination of the application by this Court, as constituted, would, in the circumstance of the matter, implicate a breach of the common law principle nemo judex in sua causa.

In opposing the application, the fourth (Young Lawyers Association of Zimbabwe) and fifth (Frederick Charles Mutanda) respondents raised a number of issues:

(i) Firstly, they challenged the competence of this Court to determine the application. They also sought the recusal of the entire bench of this Court on the same ground that the third respondent (Musa Kika) had relied upon.

(ii) Secondly, and before a competently constituted Court, the fourth respondent took issue with the locus standi of the applicant to bring the application in the manner that he did. In essence, it was the fourth respondent's position that the applicant, not having obtained any rights under the High Court order, could not purport to challenge the order.

(iii) Thirdly, and regarding the merits of the matter, the fourth respondent challenged the procedural steps taken and leading to the acceptance by the seventh respondent (the President) of a medical report as to the mental and physical fitness of the Chief Justice to continue in office for an additional five years after his seventieth birthday.

Thus, broadly speaking, the application raised for determination three distinct issues. The second issue would only become relevant and fall for determination if the respondents were not successful on the first issue and the third issue would only require determination if the respondents failed on the second issue.

(i) The first issue was whether this Court should recuse itself;

(ii) If the Court did not recuse itself, the second issue would be whether the applicant had locus standi to bring the application under section 175(3) of the Constitution; and

(iii) Finally, if he did have the requisite standing, whether the application had merit....,.

PATEL JCC: It is pertinent, at this juncture, before addressing the substance of the matter, to make an observation concerning the conduct of the third respondent (Musa Kika).

Even though he was primarily instrumental in initiating the proceedings a quo, he deliberately chose not to address any issue other than that of recusal; either in his opposing affidavit or in his heads of argument.

Equally curiously, at the end of the proceedings on the question of recusal, he and his counsel elected not to appear in any further proceedings before the Court. In the event, the matter proceeded in the absence of the third respondent and without the benefit of his submissions on the substantive merits of the matter.

The relief sought by the applicant in this matter is essentially threefold:

(i) The first is a declaratur to the effect that paragraphs 1 and 2 of the operative part of the High Court judgment No.264-21, handed down on 15 May 2021, are orders of constitutional invalidity within the contemplation of section 175(1) of the Constitution.

(ii) The second is a further declarator to the effect, that, the aforesaid High Court orders have no force unless confirmed by this Court.

(iii) Lastly, the applicant seeks a substantive order declining to confirm and setting aside the impugned High Court orders.

My learned sister, MAKARAU JCC, in addressing the application for recusal, has earlier outlined the broad issues raised by this application. Having regard to the averments contained in the affidavits filed by the parties and the arguments presented before us, the specific issues that now arise for determination in this matter are as follows:

(i) Whether the applicant has the requisite locus standi to institute this application.

(ii) The effect of the failure by the applicant in the proceedings a quo (i.e. the third respondent herein) to seek and obtain leave to sue all the judges that were cited as respondents in that matter.

(iii) Whether the orders of the court a quo are orders of constitutional invalidity requiring the confirmation of this Court.

(iv) The correctness of the judgment of the court a quo -

(a) In its interpretation of sections 186 and 328 of the Constitution; and

(b) As regards the alleged violation of the right to equal protection of the law and the right of access to the courts.

(v) Whether this Court should decline to confirm and accordingly set aside the orders granted by the court a quo.

I propose to address and determine the foregoing issues ad seriatim....,.

Absence of Leave to Sue Respondent Judges

It is common cause, that, before instituting proceedings in the court a quo, the third respondent herein did not seek and obtain leave to sue the second to the eighteenth respondents in that matter, who were, at that time, the Chief Justice, Deputy Chief Justice, Acting Judges of the Constitutional Court, Judges of the Supreme Court and Acting Judges of the Supreme Court.

The court a quo reasoned, that, such leave to sue was unnecessary for a variety of reasons:

(i) The first was that the relevant rule of court only applied to actions instituted by way of summons and not to application proceedings.

(ii) The second was that the applications before the court were made in terms of section 85 of the Constitution and there was no requirement for leave to be granted in an application made in terms of that section.

(iii) Lastly, the court opined, that, the respondents in question were cited in their official capacities and had not filed any opposing papers challenging their citation without leave.

In the event, the court found, that, the failure to obtain the leave of the court to sue the judges in question did not nullify or render the entire proceedings fatally defective.

Rule 18 of the High Court Rules 1971 stipulates as follows:

“No summons or other civil process of the court may be sued out against the President or against any of the judges of the High Court without the leave of the court granted on court application being made for that purpose.”…,.

It is not in dispute that both the Chief Justice and the Deputy Chief Justice are also judges of the High Court by operation of section 170(a) of the Constitution.

In my view, it must also be accepted, that, Rule 18 of the High Court Rules applies as well to judges of the Supreme Court by dint of Rule 73 of the Rules of the Supreme Court 2018.

The latter Rule provides, that, in any matter not dealt with in the Rules of the Supreme Court, the practice and procedure of that court shall follow, as closely as may be, the practice and procedure of the High Court in terms of the High Court Act [Chapter 7:06] and the High Court Rules.

Thus, any suit lodged in the Supreme Court against a judge of that court would be subject to the grant of leave to sue in accordance with Rule 18 of the High Court Rules, as applied, by extension, to the practice and procedure of the Supreme Court.

That being so, it would be highly illogical and irregular if a suit instituted in the High Court, against a judge of the Supreme Court, were to be excluded from the protective ambit of Rule 18 of the High Court Rules.

Having regard to the purpose underlying Rule 18 of the High Court Rules, viz. to shield and safeguard judges against frivolous or vexatious litigation, it seems to me, that, the Rule must perforce be extended and construed so as to embrace and protect all judges of the superior courts, in addition to judges of the High Court, irrespective of the court in which they may be sued.

At the relevant time, the fourth to the eighteenth respondents in the proceedings a quo were substantive judges of either the Supreme Court or the High Court.

It follows that Rule 18 of the High Court Rules would have been applicable to any “summons or other civil process…, sued out against” the second and third respondents as well as the fourth to the eighteenth respondents in the proceedings a quo.

Counsel for the fourth and fifth respondents defends the stance taken by the third respondent, qua applicant a quo, and the position adopted by the court a quo in that regard.

He submits, that, an application made under section 85 of the Constitution does not require leave to sue any judge in terms of Rule 18 of the High Court Rules. He relies for this proposition on the decision in Zimbabwe Lawyers for Human Rights & Anor v President of the Republic of Zimbabwe 2000 (1) ZLR 274 (SC).

Rule 18 of the High Court Rules is designed to avoid frivolous or vexatious suits against sitting judges or the President and this aspect, so he argues, is already catered for in section 85 of the Constitution.

Counsel for the fourth and fifth respondents accepts, that, the court a quo did not address or consider whether the citation of the judges was frivolous or vexatious. However, so he contends, the consideration of that question was not necessary or relevant given the relief that was sought from the High Court.

As against this, Mr Zhuwarara, the amicus curiae, distinguishes the decision in Zimbabwe Lawyers for Human Rights & Anor v President of the Republic of Zimbabwe 2000 (1) ZLR 274 (SC) on the basis, that, the judgment in that case did not relate to section 85 of the Constitution but turned on the absence of any equivalent to Rule 18 of the High Court Rules in the Supreme Court Rules that were in force at that time.

He submits, that, the rationale behind Rule 18 of the High Court Rules is to protect the President and sitting judges against frivolous and vexatious proceedings.

He further relies upon Nicolle v Minister of Lands & Anor 2003 (1) ZLR 280 (H) for the submission, that, the intention behind Rule 18 is that leave to sue must be sought and obtained first before proceedings are filed for substantive relief against a judge.

Before valid proceedings could eventuate in the matter a quo, it was imperative that a separate application be instituted beforehand to obtain leave to sue the judges concerned.

Consequently, the decision of the court a quo was a nullity because the court proceeded without regard to Rule 18 of the High Court Rules, and, therefore, lacked the necessary jurisdiction to deal with the matter.

This renders the proceedings a quo susceptible to summary negation by this Court for want of jurisdiction.

Accordingly, so it is argued, there is no need for this Court to relate to the merits of the present disputation.

As there were no valid proceedings a quo, it follows, that, the constitutional issues therein were improperly determined. Therefore, this Court, employing its supervisory review powers, should set aside the impugned orders a quo and substitute them with an order dismissing the application for want of leave to institute proceedings.

Counsel for the applicant agrees, that, the court a quo misdirected itself in finding that Rule 18 of the High Court Rules does not apply to applications but only to actions by way of summons. This was contrary to the rationale of Rule 18.

Although the court took the view that the judges were sued in their official capacity, the substance of the suit was against the judges in their personal capacity. Consequently, the proceedings a quo were a nullity for want of jurisdiction.

Nevertheless, counsel for the applicant submits, that, the matter should not end there.

This is because the substance of the present proceedings is fundamental to the integrity of the Constitution and the meaning of section 186(4) of the Constitution must be pronounced upon.

Because of the effect of the orders a quo on the application of section 186(4) of the Constitution, there must be a decision by this Court to ensure finality in this matter.

This is so despite the nullity of the proceedings a quo.

As I have explained earlier, the court a quo rejected the objection to its assumption of jurisdiction on three grounds:

(i) That Rule 18 of the High Court Rules did not apply to applications;

(ii) That there was no requirement for leave to sue to be granted in applications under section 85 of the Constitution; and

(iii) That the respondents in question were cited in their official capacities only.

For the reasons set out below, I am of the view, that, the court a quo manifestly misdirected itself in all three respects.

Dealing, firstly, with the last aspect, there can be no doubt that the second to the eighteenth respondents a quo were cited nomine officio, i.e. in their official capacities.

However, it is equally evident that those respondents were cited on the basis, that, they would or might benefit personally, either immediately or in the indeterminate future, from the amendments to section 186 of the Constitution.

In any event, the court a quo nonetheless proceeded to issue two distinct declarators:

(a) The first declared, that, the second respondent, the incumbent Chief Justice, ceased to hold office by operation of law.

(b) The second declared, that, the extension of judicial tenure provided for in section 186 of the Constitution did not apply to the second to the fourteenth and the eighteenth respondents. (The exclusion of the fifteenth, sixteenth and seventeenth respondents from the latter declaratur appears to have been premised on the finding, that, they were High Court judges who were “just acting judges” of the Constitutional Court and/or the Supreme Court).

It is abundantly clear, that, the substantive impact of both declarators had a definitive impact on the rights and interests of the respondents in question.

Accordingly, although they were cited in their official capacities, they were substantively affected by the orders of the court a quo in their personal capacities. This serves to fortify the point, that, leave to sue them should have been obtained before they were cited in the proceedings a quo.

As regards the scope of Rule 18 of the High Court Rules, the court a quo patently mis-interpreted the provisions of that Rule.

There is absolutely nothing in the wording of Rule 18, or any other Rule, to justify the purported distinction between actions by way of summons on the one hand and suits by way of application on the other.

Nor is there anything in Rule 18 of the High Court Rules to support the curtailment of the obvious breadth of the phrase “other civil process” so as to exclude applications from its scope of coverage.

This finding is reinforced by having regard to the rationale behind the Rule, to wit, to shield the Head of State as well as judges from being harassed by frivolous or vexatious claims: see Gluck v The Governor 1947 SR 143…, cited with approval in Zimbabwe Lawyers for Human Rights & Anor v President of the Republic of Zimbabwe 2000 (1) ZLR 274 (SC)…,.

This is an aspect that the court a quo pointedly overlooked in determining the preliminary objection before it.

It thereby failed to properly exercise its discretion in the matter.

If it had applied its mind to the question, it would undoubtedly have found, that, the blanket citation of all the sitting judges of the Constitutional Court and Supreme Court was nothing less than deliberate and gratuitous vexation.

I now turn to examine the proposition which was advanced by the applicants a quo, and endorsed by the court a quo, to the effect, that, there is no requirement for leave to sue to be granted in an application made in terms of section 85 of the Constitution.

The judgment of the full bench of the Supreme Court in Zimbabwe Lawyers for Human Rights & Anor v President of the Republic of Zimbabwe 2000 (1) ZLR 274 (SC) appears to support this position.

In considering the provisions of section 24 of the former Constitution (the precursor to section 85 in the current Constitution), GUBBAY CJ stated as follows…,.:

“The fundamental purpose behind section 24(1) of the Constitution is to afford anyone who has lawful cause for complaint to come directly before the Supreme Court. Yet, the right to do so is subject to certain in-built limitations.

First, where the question as to a contravention of the Declaration of Rights was not referred by the High Court, or a court subordinate to the High Court, in terms of section 24(2), no application for the determination of such question will lie to the Supreme Court under subsection (1).

Second, the Supreme Court, in the exercise of its original jurisdiction, may, by virtue of section 24(4)(a), determine, without a hearing, any such application, which, in its opinion, is merely frivolous or vexatious….,.

This stricture is a sufficient protection against the possibility of harassment being caused to the cited respondent. Where, therefore, the relief claimed is against the office of the President, the aim of Rule 18 is recognised and implemented in subsection (4)(a).

Third, in accordance with the proviso to section 24(4), the Supreme Court may, in the exercise of its discretion, decline to entertain an application under section 24(1), or a referral under section 24(2), if satisfied that adequate means of redress for the contravention alleged are or have been available to the person concerned under other provisions of the Constitution or under any other law….,. This is precisely the same consideration material to an application for leave under Rule 18.”

The first inbuilt limitation referred to above is not directly relevant in casu, but, the second and third limitations are obviously pertinent.

They demonstrate, that, section 24(4) of the former Constitution contained specific safeguards against any direct application that was merely frivolous or vexatious or which could be resolved through the availability of other adequate means of redress. These safeguards rendered it unnecessary to invoke Rule 18 of the High Court Rules or any equivalent provision in any matter involving an application made under section 24(1) of the Constitution.

Turning to section 85 of the current Constitution, one finds, that, it does not incorporate any similar safeguards against applications that are afflicted with frivolity or vexatiousness or which are susceptible to resolution through alternative remedies.

What this means is that the application of Rule 18 of the High Court Rules, or any other equivalent, is not rendered unnecessary or redundant in the context of section 85 of the Constitution.

Therefore, the contention that there is no need for leave to sue in an application in terms of section 85 of the Constitution, because it is already catered for in that provision, is patently erroneous.

It follows, that, the decision in Zimbabwe Lawyers for Human Rights & Anor v President of the Republic of Zimbabwe 2000 (1) ZLR 274 (SC), predicated on a provision which is materially different in certain respects from the present section 85 of the Constitution, is clearly distinguishable and inapplicable in casu.

It also follows, that, the requirement of prior leave to sue, stipulated by Rule 18 of the High Court Rules, remains fully operative and enforceable in relation to any application made in terms of section 85 of the Constitution.

Additionally, it is necessary to underscore the point that access to this Court or any subordinate court under section 85 of the Constitution is subject to regulation by rules of court. This is made explicitly clear by section 85(3) which dictates that the rules of every court must provide for the procedure to be followed in cases where relief is sought under section 85(1). It is also spelt out in section 167(5) of the Constitution vis-a-vis direct access to the Constitutional Court.

One cannot institute an action or application in the High Court, or any other court, without due observance of and compliance with the Rules of that court.

The Rules inform a litigant of what is required of him to access the court concerned. If he fails to observe or comply with those Rules, he will inevitably be non-suited.

To conclude this aspect of the matter, I am satisfied, that, the proceedings a quo were fatally defective and constitute a nullity for failure to comply with Rule 18 of the High Court Rules and consequential lack of jurisdiction by the court a quo.

That, however, does not signal the end of the matter.

The question that remains is whether or not, despite the nullity of those proceedings, this Court should nevertheless proceed to canvass the merits of the application before us.

I am of the considered opinion, that, it is necessary for the Court to address and determine the merits of the application for the following very compelling reasons:

(i) First and foremost, it cannot be disputed, that, the matter is one of paramount public importance.

Whether or not the incumbent Chief Justice should continue in office to perform the functions of that office for a further 5 years is undoubtedly a question of critical public significance. The publicity surrounding that question bears ample testimony to that fact. By the same token, it is equally important that the possible extension of tenure availed to other senior judges by section 186 of the Constitution be resolved in order to obviate future controversy in that regard.

The obvious objection is that the substantive correctness of the judgment a quo is currently pending before the Supreme Court on appeal from the court a quo.

In my view, however, the pendency of that appeal, and the possibility of its being pre-empted should not detract from the over-arching supervisory jurisdiction of this Court, by virtue of section 167(3) of the Constitution, in critical constitutional matters.

Ultimately, it is this Court that makes the final decision as to whether or not any law or conduct of the President or Parliament is constitutional. And, it is this Court that must confirm any order of constitutional invalidity made by another court before that order has any force or effect.

In exercising its jurisdiction under section 175(3) of the Constitution, the Constitutional Court is not confined to purely procedural or preliminary issues that may arise for determination. In confirmation proceedings, the Constitutional Court is duty-bound to adjudicate all the relevant issues. These include not only the procedural propriety of the proceedings a quo, but, also, more importantly, the juridical correctness of the substantive findings of the subordinate court.

Moreover, section 176 of the Constitution endows this Court with the inherent power to protect and regulate its own process, taking into account the interests of justice and the provisions of the Constitution.

In all the circumstances, I am of the firm view, that, this Court should proceed to address and determine the merits of this matter, not only in order to bring it to finality but also in the interests of justice.

HB12-21 : ADHESIVE PRODUCTS MANUFACTURERS (PVT) LTD vs PARKAM ENTERPRISES (PVT) LTD (Under provisional judicial management of N. Motsi) and ASSISTANT MASTER OF THE HIGH COURT N.O.
Ruled By: DUBE-BANDA J

This application was set down during vacation, i.e. on the Motion Court for 17 December 2020.

When this matter was called, Mr Moyo, counsel for the applicant rose and made a submission that the papers were in order, and he prayed for an order in terms of the draft order. Mr Mazibiko stood up and said he was representing the first respondent.

I noted that the first respondent was not served with the notice of set down. Mr Mazibuko might have only become aware of the application because the matter was called out in his presence in the Motion Court.

I pointed out to Mr Mazibuko that the first respondent was barred and the application was not opposed.

He was not deterred.

He attacked the validity of the service of the application on the first respondent and attacked the competence of the application itself. Notwithstanding that he was further advised that the first respondent was barred, he argued that he was raising points of law, and, in his view, a court cannot grant such an order as sought by the applicant.

On his part, Mr Moyo contended that the first respondent was barred for want of filing a notice of opposition, and the application was not opposed, and he submitted that his papers were in order and prayed for an order in terms of the draft.

After briefly hearing both counsel, I granted the order sought, couched in the following terms:

“1. The provisional judicial management order issued on the 1st day of March by this court, under cover of HC3455/15 be and is hereby discharged.

2. Nyasha Motsi, in his personal capacity, be and is hereby directed to pay applicant's costs of suit on an attorney and client scale.”...,.

The brief relevant facts of this matter are, on the 1st of March 2016, the first respondent was placed under provisional judicial management. This is an application for the discharge of the provisional judicial management order.

The anchor of this application is that the order was obtained fifty-six months ago, and, it has not been confirmed.

It is contended, that, the order is a sham designed and calculated to shield the first respondent from paying its debts.

The applicant then sued out this court application on 12 August 2020. A copy of the application was served by the Sheriff, on the first respondent, on 9 September 2020. Again, another copy of the application was served by a clerk in the employ of the applicant's legal practitioners on 8 October 2020.

There is proof that the Assistant Master of the High Court was served with a copy of the application.

The first respondent, on the papers before me, had not filed a notice of opposition.

The Assistant Master filed a report, and made the point, that, she was not opposed to the order sought by the applicant, and made the point that the provisional judicial management order must be taken by the court as dead.

I then took the view that the first respondent was barred for failure to file a notice of opposition and opposing affidavit within the time allowed by the rules of court, then, the application was not opposed.

The bar against the first respondent, in such circumstances, is automatic and brings about a default: Rule 233(3) of the High Court Rules 1971 provides that a respondent who has failed to file a notice of opposition and opposing affidavit in terms of subrule (1) shall be barred.

I took the view, that, in this application, Mr Mazibuko had no right of audience before court, because the first respondent was barred. The effect of a bar is that while it is in operation, the party barred shall not be permitted to appear personally, or through a legal practitioner, in any subsequent proceedings in the action or suit; except for the purpose of applying for the removal of the bar: see Rule 83(b) of the High Court Rules 1971.

It is clear from Rule 83(b) of the High Court Rules, that, once a party is barred, the matter is treated as unopposed unless the party so barred makes an application before that court for the upliftment of the bar.

It is also clear, that, in making the application to uplift the bar, the party that has been barred can either file a chamber application to uplift the bar, or, where this has not been done, the party can make an oral application at the hearing: see Grain Marketing Board v Muchero SC59-07.

Mr Mazibuko was not applying for the removal of the bar. He was attacking the application.

In fact, I found his conduct somehow unacceptable, that, after I had pointed out to him that the first respondent was barred, and that the application was therefore not opposed, he persisted in argument.

After considering a number of factors, I refrained from calling him to order.

I take the view, that, such conduct is a deviation from the normal practice; it is inappropriate and unnecessarily belligerent towards the court, and it serves no useful purpose in litigation.

In the result, in deciding this application for default judgement, I did not factor into the equation Mr Mazibuko's submissions. I concluded, that, the respondents, having been duly barred in terms of the rules of the court, and not having made an application for the upliftment of the bar, the application was unopposed.

I took the view, that, the papers before me were in order, and the order sought was competent, I then felt inclined to grant the order in terms of the draft.

SC86-14 : W. CHOMUREMA and E. MUZOKOMBA vs TELONE
Ruled By: GWAUNZA JA

In chambers in terms of Rule 5 of the Rules of the Supreme Court 1964.

The applicants are appearing before a judge of this Court for the third time, their earlier applications having been dismissed on procedural grounds.

Essentially, in this, and the previous two applications, the applicants are requesting this Court to give to them leave, which they perceive to have been denied by the Labour Court, to file a belated appeal against their dismissal from employment with the respondent.

In this quest, the two have made tracks back and forth between the Labour Court and this Court, with the result that the matter is now hopelessly entangled in procedural niceties.

It became evident to me that this 'tangle' had to be unravelled first before a way forward could be ascertained. This is particularly so given that the legally unrepresented, but determined, applicants are pressing to have their day in court, albeit, they complicated matters further by filing lengthy and repetitive submissions with each application they brought before both the courts.

Accordingly, after hearing the parties, and, in order to enable me to properly determine the matter, I directed them to re-construct the record and arrange all the applications, and other papers, in the order they had been filed. I indicated I would then peruse the record and give any directions that may be necessary to unlock the process and have the matter move forward.

This would, at the same time, point the applicants to any options that may be open to them in terms of the way forward.

Chronicled below, in conveniently numbered paragraphs, are the relevant facts of the matter, as well as the sequence of events, in so far as I have been able to make them out. I have interspersed the narration/analysis with relevant observations or findings of my own;

1. The applicants are former employees of the respondent; they were dismissed on misconduct charges of theft and fraud in 2009.

2. Having unsuccessfully pursued all internal remedies for redress, they appealed to the Labour Court, on the 30th of October 2009 against their dismissal. In a detailed judgment, the Labour Court dismissed the appeal having found that the two had been properly charged, convicted, and dismissed.

3. The two resolved to appeal to this court but failed to apply to the Labour Court for leave to appeal within the 30-day period which is stipulated in that court's rules.

This, in my view, is where their problems started.3. The two resolved to appeal to this court but failed to apply to the Labour Court for leave to appeal within the 30-day period which is stipulated in that court's rules.

This, in my view, is where their problems started.

4. On the 16th of March 2010, some sixty-six days beyond the stipulated time limits, the applicants filed an application in the Labour Court titled “APPLICATION FOR LEAVE TO APPEAL TO THE SUPREME COURT.”

The relief sought, according to their draft order, mirrored the same title.

A look at the founding affidavit shows that the applicants appreciated the fact that their application would be filed out of time, and that, therefore, they would need to secure condonation of the late filing of the application.

This is evidenced by paragraph (viii) of the founding affidavit, which reads as follows;

“I humbly urge this Honourable Court to condone the delay in this application for leave to appeal to the Supreme Court on the basis that:

(i) I travelled to my rural home ending up in too much delay of noting an appeal (sic).

(ii) As a self-actor, I took too long to find the Labour Court Rules that I can prepare my application.” (sic)

The request for condonation, apart from not being reflected in the title of the application, was, in addition, not incorporated into the draft order.

As indicated later in this judgment, the Judge a quo took the view, that, no application for condonation was before the court.

5. Nevertheless, the Judge issued the following order on the 23rd of June 2010;

“The application for leave to appeal to the Supreme Court be and is hereby denied on the basis that it was out of time and the reason for the delay was not a reasonable one.”…,.

I find this order to be incomprehensible in a number of respects;

(a) Having taken the view that there was no proper application for condonation of the late application for leave to appeal to the Supreme Court, it is not clear why or how the court could have proceeded to 'dismiss' the application for leave to appeal to the Supreme Court.

(b) The reasons given for the 'dismissal' of the application for leave to appeal to the Supreme Court are reasons properly associated with an application for condonation of failure to comply with the rules of the court;

(c) While the reasons might have suggested that the Labour Court had in fact entertained an application for condonation of the late filing of the application for leave to appeal, the court dispelled this notion by specifically stating in its order, that, it had dismissed the application for leave to appeal to the Supreme Court; and

(d) Even were it to be taken that the court entertained the application for condonation, the absence of an order specifically granting such condonation establishes otherwise.

6. What is evident, though, is that the Labour Court did not consider the merits of the application for leave to appeal to the Supreme Court. Indeed, it could not have properly done so without first condoning the late filing of such an application. The applicants were barred, and, at that point in time, out of court.

The applicants should have filed a composite application;

(a) For condonation of the late filing of the application for leave to appeal; and

(b) For leave to appeal to the Supreme Court.

Because they did not do so, the application for leave to appeal to the Supreme Court was not properly before the Labour Court.

7. I am of the firm view, that, instead of dismissing the application for leave to appeal to the Supreme Court for the reasons it gave, the Labour Court should have properly struck the application off the roll.

It is also my opinion, that, since a court cannot dismiss what is not before it, the Labour Court's order of 23 June 2010, was incompetent.

8. Had the Labour Court struck the matter of the roll, the applicants would most likely have been alerted to the need to file a proper application with the same court, for condonation, together with one for leave to appeal to the Supreme Court.

9. As this did not happen, the applicants, who felt aggrieved by the decision 'dismissing' their application for leave to appeal, and had no reason to believe the order to be incompetent, mistakenly, but understandably (being legally unrepresented), filed a chamber application before this court on the 19th of July 2010, under case number SC175/10.

They sought the leave of a Judge to appeal to it (purportedly) in terms of section 92F(3) of the Labour Court Act (“the Act”).

10. The application was dismissed in chambers by GARWE JA on the 14th of December 2010, without considering the merits thereof. This was on the basis, that, this Court could not consider the application for leave to appeal to it before:

(i) Condonation for the late filing of that application in the Labour Court had been obtained; and

(ii) The leave of the Labour Court had been properly sought and denied.

11. After the dismissal of their application by a Judge of this Court, significantly, not on the merits, as indicated in paragraph 9, the applicants approached the Labour Court on the 21st of December 2010 and filed a composite application for -

(i) Condonation of the late filing of the application for leave to appeal to the Supreme Court against the Labour Court's order of 30 October 2009; and

(ii) Leave to appeal to the Supreme Court.

12. On the 21st of February 2011, the Labour Court made a ruling that it could not 'plough the same road' as it had already made a decision on that particular issue. It made the following order;

“1. The Court has dealt with the application for leave to appeal and dismissed it on 23 June 2010;

2. The court is thus functus officio and must dismiss the present application;

3. The application is accordingly dismissed.”…,.

13. It is my considered view, based on the foregoing analysis, that the Labour Court was misguided in its view that it had already heard and determined the application for leave to appeal to this Court. As stated above, and despite the wording of its order of 23 June 2010, the court had NOT properly heard nor determined the application for leave to appeal against its decision of 30 October 2009.

14. In stating this, I am fully cognisant of the fact, that, I am not sitting as an Appeal Court to consider this matter.

Accordingly, as a single judge in chambers, I cannot make, and indeed, should not be taken to be making, a final pronunciation on the matter.

Such a task would properly be within the preview of an appeal bench of this Court.

With this in mind, I nevertheless hazard to express the view, that, contrary to its finding, the Labour Court was, in effect, not functus officio and should properly have entertained the application filed by the applicants on 21 December 2010.

It seems to me, that, the Labour Court judge failed to appreciate the fact, that, the applicant's seemingly repeated filing of the same application was traceable, in part, to the court's failure from the onset (i.e. 16 March, 2010) to indicate to the applicants (by striking the matter off the roll) that they could not apply to it for leave to appeal to the Supreme Court without first seeking its condonation of the late filing of such application.

That the court fully appreciated that this was the correct sequence of events to be followed, is evident from the following observations contained in the judge's reasons for the decision in the question;

“The reason (for dismissing the application of 21 December 2010, for condonation and for leave to appeal) are that on 23 June 2010 an application for leave to appeal was dismissed because it was filed out of time. At that time, no application for condonation was made….,.

The two applications that were filed sought to resuscitate a matter that had been dealt with to finality - at least before this Court. Should I condone the application for leave that has already been denied? I could not consider the second application for leave to appeal because I had already denied it. It was water under the bridge. I could not deal with the application because it was ill timed. It ought to have preceded the first application for leave which I had already dismissed.”

15. A couple of pertinent observations can be made from this rather unclear reasoning.

(i) Firstly, the judge a quo properly realised that the first application by the appellants needed to be preceded by an application for condonation of its late filing. The learned judge, however, then fell into the error of not fully appreciating the implication of this default vis a vis the application for leave to appeal to the Supreme Court.

This was that, absent an application for condonation of late filing of the application for leave to appeal, there was nothing before the court to dismiss.

The later application could not stand on its own, being premised on nothing.

(ii) Secondly, since the dismissal in question was, in my view, incompetent, there would have been nothing to prevent the court from hearing the two applications.

Thus, nothing was dealt with 'to finality'.

16. Be that as it may, the applicants did not, as they may have done, take the requisite steps to appeal to this Court against the Labour Court's finding that;

(i) It was functus officio; and

(ii) That, it had already dealt with the application for leave to appeal to the Supreme Court.

17. The applicants, instead, came back to this court seeking an order for leave to appeal against the court a quo's decision on the main dispute.

18. Needless to say, this application was repetitive and therefore improper.

The ground upon which the first application had been dismissed, that is, absence of condonation by the Labour Court, was still in point.

19. The application was heard and dismissed by GARWE JA on 17 November 2011. As a mark of its displeasure, this Court ordered that the applicants pay costs on the higher scale.

20. To the extent that this court had earlier dismissed the same application, albeit, and also without considering the merits, it could have been argued that the matter was res judicata and that this court was functus officio.

The judge, however, did not make a pronouncement nor issue an order to this effect.

21. The appellants apparently felt they could still pursue the dispute, and, in a manner suggestive of their now being totally confused and entangled in a true web of procedural technicalities, the relentless applicants went back to the Labour Court on 7 December 2011 and filed an application with this somewhat confusing title;

“CHAMBER APPLICATION FOR CONDONATION FOR LATE FILING OF AN APPLICATION FOR LEAVE TO APPEAL AGAINST THE DENIAL OF CONDONATION AND APPLICATION FOR LEAVE TO APPEAL AGAINST THE DENIAL OF CONDONATION FOR LEAVE TO APPEAL TO THE SUPREME COURT”

What immediately becomes evident from this title is the fact, that, the application in question was premised on the view, that, an application for condonation of the late filing of an application for leave to appeal to the Supreme Court had been heard and refused by the Labour Court.

The opposite was in fact the case.

The learned judge, in the excerpt from her judgment that is cited in paragraph 14 above, made it very clear why she was not going to entertain such an application. Nor did she, in the end, do so.

The application was therefore misguided.

22. Having, again, found no satisfaction from the Labour Court, the applicants have now, yet again, approached this Court with this application, which is no less misguided than the last one they made before the Labour Court (see above).

The application brings nothing new to this Court unless it is to demonstrate the applicants sheer determination to pursue the matter to what they perceive to be its logical conclusion - whatever pitfalls may stand in their way.

As this Court has entertained the same matter several times, it is my view, that, the court is now functus officio.

The dispute has gone round in circles for a period of over five years and there must be finality to litigation.

The application now before me is, in any case, not sustainable in its current form.

Accordingly, the application is dismissed with costs.

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Final Orders re: Principle of Finality in Litigation, Decree of Perpetual Silence, Sitting on Judgments & Superannuation

HH283-17 : IGNATIUS MASAMBA vs THE SECRETARY – JUDICIAL SERVICE COMMISSION and MERCY GORONGOZA
Ruled By: CHITAPI J

HH283-17 : IGNATIUS MASAMBA vs THE SECRETARY – JUDICIAL SERVICE COMMISSION and MERCY GORONGOZA
Ruled By: CHITAPI J

HH390-18 : MIDLANDS STATE UNIVERSITY vs ALOIS MATONGO
Ruled By: MUZOFA J

CC09-20 : TUNGAMIRAI NYENGERA vs THE STATE
Ruled By: MALABA CJ

SC54-06 : VIGOUR FUYANA vs NTOMBAZA MOYO
Ruled By: CHIDYAUSIKU CJ

HB189-18 : CLAUDIUS MANAMELA and BRIGHTON NANGA and SIBONGILE MANAMELA vs ROSEWELL ZULU and APOSTOLIC FAITH MISSION OF AFRICA INTL and CLEMENT NYATHI and APOSTOLIC FAITH MISSION OF AFRICA
Ruled By: MABHIKWA J

HH443-13 : JONAS MUSHOSHO vs LLOYD MUDIMU and THE DEPUTY SHERIFF
Ruled By: CHIGUMBA J

View Appeal
HH677-14 : MAXWELL SIBANDA vs ZAMBE NYIKA/GWASIRA and REGISTRAR OF DEEDS and EVERJOY MEDA
Ruled By: MATANDA-MOYO J

SC19-21 : CHEVHU HOUSING CO-OPERATIVE SOCIETY LIMITED AND OTHERS vs CREST BREEDERS INTERNATIONAL (PVT) LTD AND MINISTER OF LANDS AND RURAL SETTLEMENTS
Ruled By: BHUNU JA, MATHONSI JA and KUDYA AJA

SC22-21 : STONEWELL SEARCHES (PVT) LTD vs STONE HOLDINGS (PVT) LTD and MUTOKO CONSORTIUM and MOSES CHINHENGO N.O.
Ruled By: GUVAVA JA, UCHENA JA and MAKONI JA

HH261-16 : KARNEC INVESTMENTS (PRIVATE) LIMITED and ROBERT STRONG vs ECONET WIRELESS (PRIVATE) LIMITED
Ruled By: TSANGA J

HH272-22 : SLASHWOOD MINING (PVT) LTD and ZENIT GROUP LIMITED vs ONTAGE RESOURCES (PVT) LTD
Ruled By: ZHOU J

SC81-21 : FRANK HUMBE vs DESMOND MUCHINA and SPARKLES SERVICES (PVT) LTD and GODFREY MUNYAMANA and SHERIFF OF ZIMBABWE and FADZAYI MUNYAMANA
Ruled By: BHUNU JA, MATHONSI JA and KUDYA AJA

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

SC102-21 : DOVES FUNERAL ASSURANCE (PVT) LTD vs FERNABY INVESTMENTS (PVT) LTD and QUECOM ENGINEERING (PVT) LTD and DENNIS NGORIMA and STANDARD CHARTERED BANK LTD and HOMELAND REAL ESTATE and THE SHERIFF
Ruled By: BHUNU JA, MATHONSI JA and CHITAKUNYE JA

HH974-15 : GUGULETHU HURASHA vs CENTRAL AFRICAN BUILDING SOCIETY and FIRST CAPITAL PLUS and ITAYI MUNYEZA and SHERIFF OF ZIMBABWE and MASTER OF THE HIGH COURT
Ruled By: NDEWERE J

SC35-17 : LEONARD DZVAIRO vs KANGO PRODUCTS
Ruled By: ZIYAMBI JA, GOWORA JA and GUVAVA JA

HB38-15 : SIBUCO TRADING (PVT) LTD and EDITH KATAMBARARE vs LEADERS (PVT) LTD and MESSENGER OF COURT
Ruled By: MAKONESE J

HB57-15 : SIPIWO NKOMO vs MLWELIWENKULULEKO NCUBE
Ruled By: MUTEMA J

HB134-15 : STANLEY NANZOMBE vs SICINGILE MASUKU (NEE MOYO) and THE SHERIFF OF ZIMBABWE and THE REGISTRAR OF DEEDS
Ruled By: MAKONESE J

Appealed
CC07-21 : MARX MUPUNGU vs MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS and OTHERS
Ruled By: GWAUNZA ACJ, GARWE JCC, MAKARAU JCC, GOWORA JCC, HLATSHAWAYO JCC, PATEL JCC and GUVAVA AJCC

HB12-21 : ADHESIVE PRODUCTS MANUFACTURERS (PVT) LTD vs PARKAM ENTERPRISES (PVT) LTD (Under provisional judicial management of N. Motsi) and ASSISTANT MASTER OF THE HIGH COURT N.O.
Ruled By: DUBE-BANDA J

SC86-14 : W. CHOMUREMA and E. MUZOKOMBA vs TELONE
Ruled By: GWAUNZA JA

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Law Portal Zimbabwe

Final Orders re: Principle of Finality in Litigation, Decree of Perpetual Silence, Sitting on Judgments & Superannuation

HH283-17 : IGNATIUS MASAMBA vs THE SECRETARY – JUDICIAL SERVICE COMMISSION and MERCY GORONGOZA Ruled By: CHITAPI J

HH283-17 : IGNATIUS MASAMBA vs THE SECRETARY – JUDICIAL SERVICE COMMISSION and MERCY GORONGOZA Ruled By: CHITAPI J

HH390-18 : MIDLANDS STATE UNIVERSITY vs ALOIS MATONGO Ruled By: MUZOFA J

CC09-20 : TUNGAMIRAI NYENGERA vs THE STATE Ruled By: MALABA CJ

SC54-06 : VIGOUR FUYANA vs NTOMBAZA MOYO Ruled By: CHIDYAUSIKU CJ

HB189-18 : CLAUDIUS MANAMELA and BRIGHTON NANGA and SIBONGILE MANAMELA vs ROSEWELL ZULU and APOSTOLIC FAITH MISSION OF AFRICA INTL and CLEMENT NYATHI and APOSTOLIC FAITH MISSION OF AFRICA Ruled By: MABHIKWA J

HH443-13 : JONAS MUSHOSHO vs LLOYD MUDIMU and THE DEPUTY SHERIFF Ruled By: CHIGUMBA J

View Appeal HH677-14 : MAXWELL SIBANDA vs ZAMBE NYIKA/GWASIRA and REGISTRAR OF DEEDS and EVERJOY MEDA Ruled By: MATANDA-MOYO J

SC19-21 : CHEVHU HOUSING CO-OPERATIVE SOCIETY LIMITED AND OTHERS vs CREST BREEDERS INTERNATIONAL (PVT) LTD AND MINISTER OF LANDS AND RURAL SETTLEMENTS Ruled By: BHUNU JA, MATHONSI JA and KUDYA AJA

SC22-21 : STONEWELL SEARCHES (PVT) LTD vs STONE HOLDINGS (PVT) LTD and MUTOKO CONSORTIUM and MOSES CHINHENGO N.O. Ruled By: GUVAVA JA, UCHENA JA and MAKONI JA

HH261-16 : KARNEC INVESTMENTS (PRIVATE) LIMITED and ROBERT STRONG vs ECONET WIRELESS (PRIVATE) LIMITED Ruled By: TSANGA J

HH272-22 : SLASHWOOD MINING (PVT) LTD and ZENIT GROUP LIMITED vs ONTAGE RESOURCES (PVT) LTD Ruled By: ZHOU J

SC81-21 : FRANK HUMBE vs DESMOND MUCHINA and SPARKLES SERVICES (PVT) LTD and GODFREY MUNYAMANA and SHERIFF OF ZIMBABWE and FADZAYI MUNYAMANA Ruled By: BHUNU JA, MATHONSI JA and KUDYA AJA

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

SC102-21 : DOVES FUNERAL ASSURANCE (PVT) LTD vs FERNABY INVESTMENTS (PVT) LTD and QUECOM ENGINEERING (PVT) LTD and DENNIS NGORIMA and STANDARD CHARTERED BANK LTD and HOMELAND REAL ESTATE and THE SHERIFF Ruled By: BHUNU JA, MATHONSI JA and CHITAKUNYE JA

HH974-15 : GUGULETHU HURASHA vs CENTRAL AFRICAN BUILDING SOCIETY and FIRST CAPITAL PLUS and ITAYI MUNYEZA and SHERIFF OF ZIMBABWE and MASTER OF THE HIGH COURT Ruled By: NDEWERE J

SC35-17 : LEONARD DZVAIRO vs KANGO PRODUCTS Ruled By: ZIYAMBI JA, GOWORA JA and GUVAVA JA

HB38-15 : SIBUCO TRADING (PVT) LTD and EDITH KATAMBARARE vs LEADERS (PVT) LTD and MESSENGER OF COURT Ruled By: MAKONESE J

HB57-15 : SIPIWO NKOMO vs MLWELIWENKULULEKO NCUBE Ruled By: MUTEMA J

HB134-15 : STANLEY NANZOMBE vs SICINGILE MASUKU (NEE MOYO) and THE SHERIFF OF ZIMBABWE and THE REGISTRAR OF DEEDS Ruled By: MAKONESE J

Appealed CC07-21 : MARX MUPUNGU vs MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS and OTHERS Ruled By: GWAUNZA ACJ, GARWE JCC, MAKARAU JCC, GOWORA JCC, HLATSHAWAYO JCC, PATEL JCC and GUVAVA AJCC

HB12-21 : ADHESIVE PRODUCTS MANUFACTURERS (PVT) LTD vs PARKAM ENTERPRISES (PVT) LTD (Under provisional judicial management of N. Motsi) and ASSISTANT MASTER OF THE HIGH COURT N.O. Ruled By: DUBE-BANDA J

SC86-14 : W. CHOMUREMA and E. MUZOKOMBA vs TELONE Ruled By: GWAUNZA JA

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Zimbabwe

HH283-17 : IGNATIUS MASAMBA vs THE SECRETARY – JUDICIAL SERVICE COMMISSION and MERCY GORONGOZA
Ruled By: CHITAPI J

HH283-17 : IGNATIUS MASAMBA vs THE SECRETARY – JUDICIAL SERVICE COMMISSION and MERCY GORONGOZA
Ruled By: CHITAPI J

HH390-18 : MIDLANDS STATE UNIVERSITY vs ALOIS MATONGO
Ruled By: MUZOFA J

CC09-20 : TUNGAMIRAI NYENGERA vs THE STATE
Ruled By: MALABA CJ

SC54-06 : VIGOUR FUYANA vs NTOMBAZA MOYO
Ruled By: CHIDYAUSIKU CJ

HB189-18 : CLAUDIUS MANAMELA and BRIGHTON NANGA and SIBONGILE MANAMELA vs ROSEWELL ZULU and APOSTOLIC FAITH MISSION OF AFRICA INTL and CLEMENT NYATHI and APOSTOLIC FAITH MISSION OF AFRICA
Ruled By: MABHIKWA J

HH443-13 : JONAS MUSHOSHO vs LLOYD MUDIMU and THE DEPUTY SHERIFF
Ruled By: CHIGUMBA J

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HH677-14 : MAXWELL SIBANDA vs ZAMBE NYIKA/GWASIRA and REGISTRAR OF DEEDS and EVERJOY MEDA
Ruled By: MATANDA-MOYO J

SC19-21 : CHEVHU HOUSING CO-OPERATIVE SOCIETY LIMITED AND OTHERS vs CREST BREEDERS INTERNATIONAL (PVT) LTD AND MINISTER OF LANDS AND RURAL SETTLEMENTS
Ruled By: BHUNU JA, MATHONSI JA and KUDYA AJA

SC22-21 : STONEWELL SEARCHES (PVT) LTD vs STONE HOLDINGS (PVT) LTD and MUTOKO CONSORTIUM and MOSES CHINHENGO N.O.
Ruled By: GUVAVA JA, UCHENA JA and MAKONI JA

HH261-16 : KARNEC INVESTMENTS (PRIVATE) LIMITED and ROBERT STRONG vs ECONET WIRELESS (PRIVATE) LIMITED
Ruled By: TSANGA J

HH272-22 : SLASHWOOD MINING (PVT) LTD and ZENIT GROUP LIMITED vs ONTAGE RESOURCES (PVT) LTD
Ruled By: ZHOU J

SC81-21 : FRANK HUMBE vs DESMOND MUCHINA and SPARKLES SERVICES (PVT) LTD and GODFREY MUNYAMANA and SHERIFF OF ZIMBABWE and FADZAYI MUNYAMANA
Ruled By: BHUNU JA, MATHONSI JA and KUDYA AJA

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

SC102-21 : DOVES FUNERAL ASSURANCE (PVT) LTD vs FERNABY INVESTMENTS (PVT) LTD and QUECOM ENGINEERING (PVT) LTD and DENNIS NGORIMA and STANDARD CHARTERED BANK LTD and HOMELAND REAL ESTATE and THE SHERIFF
Ruled By: BHUNU JA, MATHONSI JA and CHITAKUNYE JA

HH974-15 : GUGULETHU HURASHA vs CENTRAL AFRICAN BUILDING SOCIETY and FIRST CAPITAL PLUS and ITAYI MUNYEZA and SHERIFF OF ZIMBABWE and MASTER OF THE HIGH COURT
Ruled By: NDEWERE J

SC35-17 : LEONARD DZVAIRO vs KANGO PRODUCTS
Ruled By: ZIYAMBI JA, GOWORA JA and GUVAVA JA

HB38-15 : SIBUCO TRADING (PVT) LTD and EDITH KATAMBARARE vs LEADERS (PVT) LTD and MESSENGER OF COURT
Ruled By: MAKONESE J

HB57-15 : SIPIWO NKOMO vs MLWELIWENKULULEKO NCUBE
Ruled By: MUTEMA J

HB134-15 : STANLEY NANZOMBE vs SICINGILE MASUKU (NEE MOYO) and THE SHERIFF OF ZIMBABWE and THE REGISTRAR OF DEEDS
Ruled By: MAKONESE J

Appealed
CC07-21 : MARX MUPUNGU vs MINISTER OF JUSTICE, LEGAL AND PARLIAMENTARY AFFAIRS and OTHERS
Ruled By: GWAUNZA ACJ, GARWE JCC, MAKARAU JCC, GOWORA JCC, HLATSHAWAYO JCC, PATEL JCC and GUVAVA AJCC

HB12-21 : ADHESIVE PRODUCTS MANUFACTURERS (PVT) LTD vs PARKAM ENTERPRISES (PVT) LTD (Under provisional judicial management of N. Motsi) and ASSISTANT MASTER OF THE HIGH COURT N.O.
Ruled By: DUBE-BANDA J

SC86-14 : W. CHOMUREMA and E. MUZOKOMBA vs TELONE
Ruled By: GWAUNZA JA