This case has been triggered by the developments in a case involving the respondent in the Magistrates Court which was heard and concluded in favour of the respondent on 11 October 2011.  The lower court case bears reference number MC16435/11.

The respondent, having succeeded in the lower court, sought execution on the order obtained. The execution process could not proceed smoothly as the other part involved with the respondent in the lower court appealed against the decision made thereby prompting the respondent in the instant case to apply for leave to execute pending appeal which decision, again, found favour with the lower court.

Faced with the possibility of an imminent eviction from the property at the centre of the dispute between the parties in the lower court, the applicant in the instant case, despite its alleged claim of not having been party of the proceedings in the lower court, filed the instant urgent application seeking the following interim relief as per its proposed draft order….,;

“IT IS DECLARED THAT:

1. The eviction order granted by the Magistrates Court, Harare in the matter between Autoband Investment (Private) Limited t/a Trauma Centre v African Medical Investments PLc, under case number MC16435/11, be and is hereby declared to be of no force, effect or application as against applicant.

2. The respondent be and is hereby banned and interdicted from evicting or in any other way interfering with the applicant's agents, employees, occupation and possession of the premises known as Stand Number 2924, Salisbury Township, of Salisbury Township Lands situated at Number 15 Lanark Road, Belgravia, Harare utilizing the eviction order granted in case number MC16435/11.

3. The respondent pays costs of this application deboris propriis or an attorney client scale.”

So much has been thrown in this application but I understood the applicant's counsel to have raised two fundamental issues which have prompted the applicant to seek the declaratory order cited above.

The main thrust of the applicant's counsel's argument is that the respondent in the instant case has demonstrated lack of faith or confidence in this court by failing to prosecute to finality two matters which were instituted by the respondent in this case, viz HC 619/11 and case HC 2125/11. Counsel's argument, as expanded, was that it was wrong for the respondent to embark on forum shopping by taking the same dispute in the Magistrates Court under case MC16435/11. Counsel accused the respondent of adopting a casual or lackadaisical attitude in handling the two High Court matters.

I did not find this argument to be compelling for basically two reasons:

(i) Firstly, when the respondent took its case for eviction to the lower court, it made a full disclosure of the pending High Court matters in its founding affidavit. A simple perusal of the founding affidavit of Dr Vivek Dolanki (for the applicant in the lower court) explained in greater detail, on p57 of the consolidated record, the existence of the two High Court matters alluded to by the applicant's counsel in the instant matter. The affidavit lays bare why a new application for eviction was being preferred in the Magistrates' Court despite there being two other matters pending in the High Court. By making such disclosures, the now applicant was given sufficient opportunity to respond to such issues which it did on p64-65.

The lower court must have considered these submissions before it made a determination of the application for eviction.

(ii) Secondly, where an applicant to proceedings initiated by application procedure demonstrates a casual attitude in the finalisation of the proceedings, there is a procedure laid down which the respondent can initiate to bring the proceedings to finality to the detriment of the applicant. Order 32 Rule 236(3)(a) & (b) gives the respondent sufficient ammunition to bring litigation to finality in such a situation.

The respondent in the two High court matters has not been proactive in finalising the two High Court matters. In Anchor Ranching (Pvt) Ltd v Beneficial Enterprises (Pvt) Ltd & Anor 2008 (2) ZLR 246…, I dealt with an almost similar situation and explored the procedural approach as perceived.

The respondent (applicant in the Magistrates Court), having disclosed about the two High court matters and having explained the reasons why it was initiating a new eviction case in the lower court cannot be condemned for so acting….,.

Before concluding this matter, I wish to observe that the applicant has placed so much emphasis on the ownership of Stand 2924 Salisbury Township of Salisbury Township Lands (No,15 Lanark Road, Belgravia, Harare). 

The application for eviction had nothing to do with the ownership of the property but was restricted to the possessory rights of the applicant in the lower court.

Again, this issue was dealt with by the lower court in its judgment…,. The lower court made a specific finding that the now respondent had been unlawfully dispossesed of the property. The applicant exercised its right of appeal against the decision of the lower court and certainly it was not competent for the applicant to apply for a declaratory order in order to short circuit the appeal process.

Finally, the identity of the property in issue has never been an issue in these proceedings and it cannot become a hot issue at the time of execution. All the parties in this case are fully aware that the property in issue is commonly referred to as No.15 Lanark Road, Belgravia, Harare registered as Stand No. 2924 Salisbury Township of Salisbury Township Lands

In conclusion, I am more than satisfied that this application was motivated by nothing really other than to unprocedurally and unfairly interfere with a legitimate lower court process. It is clearly an attempt to undermine the authority of the lower court. The same arguments raised in the lower court are being recycled in this court. 

This approach is unacceptable….,.

Following from this decision, the provisional order is automatically discharged.

The applicant does not dispute that the application is before this court as a court of first instance. He, however, disputes that the nature of the relief that he seeks is what is provided for in section 89(1) of the Labour Act [Chapter 28:01]. He contends that what he seeks is a declaratur, the effect of which is sought to declare that the termination of employment is null and void. The basis for the nullity of termination of employment has not been specified in the founding affidavit., In such event the High Court would have jurisdiction to hear and determine the application.    

In., MAKARAU J had to consider whether or not, in the construction of section 89(6) of the Labour Act [Chapter 28:01] this court still retained the power to issue declaratory orders. This is what she had to say:

"Thus, the power to issue a declaratory order is not available in all courts that apply common law. It is specific to this court. It is common cause that the Labour Court has not been specifically empowered to issue declaratory orders as this court has been. It cannot create such a relief or the procedure for granting such relief as it is not a court of inherent jurisdiction."

The applicant seeks a declaratory order to the effect that the applicant is entitled to the issue of an unrestricted practicing certificate permitting her to practice as a specialist obstetrician and gynecologist. She also seeks consequential relief that the respondents issue her with unrestricted practicing certificate permitting her to practice as a specialist obstetrician and gynecologist and costs of suit.

The background facts are that the applicant is a Yugoslavian citizen. She has a residence permit which permits her to remain in Zimbabwe indefinitely. On 8 February 2000, the applicant applied for provisional registration as a medical practitioner and specialist registration as an obstetrician and gynecologist. She was duly registered on 7 August 2001 with the practicing certificate restricting her practice to a Government central hospital. She commenced work at Parirenyatwa Hospital. The applicant then took unpaid leave from 29 July 2002 to 28 February 2003.

In April 2005, the applicant applied for re-registration on the provisional register. This was approved in May 2005 subject to her obtaining a post of Senior Registrar Obstetrician and Gynecologist working in a Government hospital under the supervision of a specialist gynecologist.

In February 2006 the applicant wrote to the first respondent requesting re-registration as approved in May 2005. She attached confirmation of an offer of employment by Parirenyatwa Group of Hospitals. She was duly registered on the provisional register with effect from 23 February 2006 for a period of three years.

In January 2008, the applicant applied for the issue of an un-restricted practicing certificate. The application was not approved.

The applicant then filed the present application.

In its opposing papers, the first respondent raised a point in limine that the applicant had not exhausted the domestic remedies available to her before approaching the court.

I will deal with this point first.

Counsel for the respondents submitted that in terms of section 22 of the Health Professions Act [Chapter 27:19] (“the Act”), any person who is aggrieved by any decision taken in regard to him by Council may appeal against the decision to the Authority within thirty days after being informed of the decision.

Section 123 of the Health Professions Act provides for an appeal from the Authority to this court.

It was further submitted that the appeal procedure was capable of affording the applicant effective redress. No special circumstances or reasons were advanced by the applicant for approaching this court. The applicant ought to have exhausted the domestic remedies available to her under the domestic legislation.

Counsel for the applicant submitted that the point raised in limine is without merit and ought to be dismissed…,. He said that this court has already stated, in McGown v Health Professions Council 1994 (1) 86 (H), that in such disputes as the present one, the procedure for an appeal does not apply.

He further submitted that in an application for a declaratory order, such an order will be granted even if some other form of relief is available.

In my view, McGown v Health Professions Council 1994 (1) 86 (H) can be distinguished from the present matter. In that matter SMITH J, when he made the remark that “the applicant does not have a right of appeal against the condition imposed by the PCC” he was dealing with the provisions of the now repealed Medical, Dental and Allied Professions Act [Chapter 244]. That Act did not provide a procedure for an appeal where a person had a condition imposed by the PCC. The repealed Act did not have a provision similar to section 22(1) of the Health Professions Act [Chapter 27:19] which provides for an appeal to lie to the Health Professions Authority of Zimbabwe (“the Authority”) by any person who is aggrieved by any decision taken in regard to him by a Council. It did not also provide for an appeal to the High Court whereas the Health Professions Act further provides for an appeal to lie to this court where any person is aggrieved by a decision of the Authority. See section 128(1) of the Health Professions Act [Chapter 27:19].

In my view, the appeal procedure is available to the applicant as such a procedure is available in terms of the Health Professions Act to any person aggrieved by any decision taken in regard to him…,.

The applicant has decided to approach the court rather than proceed by way of domestic remedies provided for in the Health Professions Act.

It has been laid down in a number of cases that where domestic remedies are capable of providing effective redress in respect of the complaint, a litigant should exhaust the domestic remedies themselves unless there are good reasons for not doing so. See Girjac Services (Private) Limited v Mudzingwa 1990 (1) ZLR 243 (S)…,.

The same approach was adopted in Masunda v Chairperson of Cresta Lodge Disciplinary and Grievance Committee HH115-94…, and Moyo v Forestry Commission 1996 (1) ZLR 173 (H)…,.

The applicant did not advance, in her founding papers, good reasons for not pursuing the domestic remedies available to her. However, it was submitted on her behalf that a declaratory order will be granted even if some other form of relief is available. See Jansen v AFC 1995 (1) ZLR 63 (H)…,.

In Jansen v AFC 1995 (1) ZLR 63 (H) the point was also made that the merits of each case constitute one of the circumstances of the matter to which regard must be paid before a declaratory order is issued.

In casu, the applicant seeks a declaratory order to the effect that she is entitled to an un-restricted practicing certificate.

The nature of the relief being sought by the applicant is such that she is asking me to substitute my own decision for that of the first respondent.

It has been held in these courts that a court will not interfere in the sphere of practical administration. See Director of Civil Aviation v Hall 1990 (2) 354 (S)…,. There are issues which, in my view, can best be revolved by the administrative structure provided for in the Health Professions Act.

In my view, there are disputes of fact which this court cannot resolve.

They would require the expertise provided for in the Health Professions Act. In paragraph 13 to her founding affidavit the applicant disputes that she remains registered on the provisional register of medical practitioners. She refers to annexure C to disprove the respondents averments.

This court cannot say whether registration on the specialist register is the same as registration on the permanent register. The court does not know what to do with the fact that during the period of the applicant's initial registration on the provisional register, she was absent without leave for a certain period. Such issues can best be dealt with by the domestic remedies provided for in the Health Professions Act.

In view of the above, I am not able to grant to the applicant the relief that she seeks. The Health Professions Authority is capable of providing effective redress in respect of the applicant's complaint. She ought to have exhausted the domestic remedies available to her under the domestic legislation.

In the result, the point in limine is upheld.

Accordingly, the application is dismissed with costs.

Though in her heads of argument she indicated that this is not an application for a review but an application for a declarator, and the eight weeks rule did not apply, she was less than convincing in this regard.  

The decisions and administrative action she seeks to set aside were completed in 2003.

The relief that she seeks is clearly one to be sought in review proceedings.

In her founding affidavit, she clearly exhibited her dissatisfaction with the manner in which the estate was administered and wishes that to bet aside. She is not just seeking a declaration of rights.

The applicant is a duly registered company which, among other goods, imports top of the range motor vehicles for sale in Zimbabwe. It places the motor vehicles in its duly authorised bonded warehouse pending their sale to the public. It processes importation papers at the port of entry where customs duty and value added tax are calculated but payment is deferred till the motor vehicles are removed from the bonded warehouse.

The respondent is a statutory body established in terms of section 3 of the Zimbabwe Revenue Authority Act [Chapter 23:11]. It is responsible for the collection of duties payable for goods imported into this country.

The brief facts of this case are as follows.

The applicant imported several batches of motor vehicles into Zimbabwe and placed them into its bonded warehouse. The batches fell into three categories:

(a) Those imported and placed in the applicant's bonded warehouse before 5 April 2007.

(b) Those imported and placed in the applicant's bonded warehouse before 6 September 2007.

(c) Those imported prior to 6 September 2007 and warehoused on or after that date.

In the case of scenario (c), the respondent's officers had used one rate in calculating duty and value added tax at the port of entry, and another rate on entering the goods into the bonded warehouse.

The parties, however, resolved that dispute, and the rate used at the port of entry was also used when the goods were entered for warehousing.

The duty payable for these motor vehicles was calculated at the ports of entry but its payment was deferred until their removal from the bonded warehouse. The rate used to calculate the duty in foreign currency at the port was Z$250= to US$1=. The rate of exchange changed on 6 September 2007 to Z$30,000= to US$1=.

The applicant later sought to pay customs duty and value added tax for the motor vehicles in preparation for their removal from the bonded warehouse and subsequent sale. The respondent required the applicant to pay customs duty and value added tax at the exchange prevailing at the time of importation. The applicant offered to pay customs duty and value added tax at the exchange rate applicable at the time of intended removal of the motor vehicles from the bonded warehouse.

The applicant appealed to the respondent's higher offices, which concurred with the lower offices determination.

The applicant filed this application seeking the following declaratory order:

1. It is declared that in respect of any motor vehicle imported by the applicant and placed in its bonded warehouse, the rate of exchange to be utilized, for the purposes of converting any customs duty and value added tax required by law to be paid in foreign currency, shall be the rate of exchange stipulated in terms of section 115 of the Customs and Excise Act [Chapter 23:02] applicable as at the date the motor vehicle is taken from or delivered from the bonded warehouse.

2. It is ordered that in respect of the twenty-seven bills of entry listed in Annexure A to the founding papers in this matter, the respondent shall, within fourteen (14) days hereof, recalculate the amount of foreign currency due in settlement of the customs duty and value added tax reflected in the bills of entry, as required by para 1.  

3. The respondent shall pay the costs of this application.

The issue to be determined is the applicable rate of exchange to be used when the motor vehicles are taken from or delivered from the bonded warehouse.

The answer lies in the interpretation to be placed on the provisions of the Customs and Excise Act [Chapter 23:02]..., applicable for purposes of calculating duty and value added tax for goods to be removed from or delivered from a bonded warehouse. This case has been complicated by the introduction of the use of foreign currency in February 2009, and the subsequent demonitisation of the Zimbabwean dollar.  

The question which arises is whether or not a declaratory order to the effect sought is still relevant to the current circumstances.

I called the parties to appear before me on 29 July 2009 to clarify this issue. I requested them to make further submissions on:

(a) The formula now being used by the Zimbabwe Revenue Authority in the calculation of duty payable in respect of such matters.

(b) What effect, if any, has the introduction of multi currencies, and the demonitisation of the Zimbabwean dollar, had on the formula used by the Zimbabwe Revenue Authority as per 1.1 above?

(c) Whether or not there is still a dispute between the parties?

The parties agreed that they would make further submissions after hearing how the Zimbabwe Revenue Authority was now calculating duty and value added tax....,.

The applicant's application for a declaratory order in respect of goods imported before the introduction of the payment of duty in foreign currency, for luxury items, must succeed, but must be dismissed in respect of goods imported after the introduction of the payment of duty in foreign currency for luxury items...,.

In the result, the following amended Order is granted –

1. It is declared that in respect of any motor vehicle imported by the applicant, and placed in its bonded warehouse, before 5 April 2007, the rate of exchange to be utilized for the purposes of converting any customs duty, and value-added tax, required by law to be paid in foreign currency, shall be the rate of exchange stipulated in terms of section 115 of the Customs and Excise Act [Chapter 23:02], applicable as at the date the motor vehicle is taken from or delivered the bonded warehouse.

2. It is ordered that in respect of the bills of entry listed in Annexure A to the founding papers in this matter, for goods imported and warehoused before 5 April 2007, the respondent shall, within fourteen (14) days hereof, recalculate the amount of foreign currency due in settlement of the customs duty and value-added tax reflected in the bills of entry, as required by para 1 above.

On 29 March 2008, the applicant was one of the councillors successfully elected to the Bindura Municipal Council...,. The second and third respondents were also elected as councillors for the same municipal council. The fourth respondent is the Town Clerk for the council.

This council held its first meeting on 1 August 2008, and at that meeting, the applicant was elected Mayor for the Bindura Municipal Council. The third respondent was, in turn, elected as Deputy Mayor.

On 13 October 2008, one of the councillors moved a motion to rescind resolution 1406/08, which confirmed the election of the applicant to the position of Mayor. On 24 October 2008, the fourth respondent called a meeting at which a motion was introduced for the rescission of the resolution in terms of which the applicant had been elected as Mayor of the first respondent.

The applicant queried the correctness of the procedure, and when he received no support, he declared the meeting closed and left the Chamber. Three other councillors left with him.

Undeterred, the other council members carried on with the motion with the result that the said resolution was rescinded and the appointment of the applicant, and second respondent, as Mayor and Deputy Mayor, respectively, were rescinded. The third respondent was then appointed Mayor, and the second respondent Deputy Mayor.

It was as a result of that resolution that the applicant has launched these proceedings wherein he seeks a declaratur to the effect that the meeting of 28 October 2008 be declared null and void, and, further, that he is the duly elected Mayor for the municipal council of Bindura.

The provisions of section 103(2) of the Urban Council's Act [Chapter 29:15] are peremptory, and in the absence of a cogent argument as to why the council should not comply with the said provision, I am unable to find that section 89 of the Urban Council's Act [Chapter 29:15] applies in the removal of a Mayor from office.

The resolution passed for the removal of the applicant is thus declared to be null and void and of no force and effect. It follows, therefore, that the election of the second respondent to the post of Mayor is itself illegal.

The applicant is, in the result, entitled to an order in terms of the draft.

In the result, I make an order in the following terms –

1. It is hereby declared that the resolution 1422/FC/08 rescinding the election of the applicant as mayor, and I.Matanhire as his deputy, be and is hereby declared to be null and void and of no force and effect.

2. It is declared that the election of the second respondent as mayor of the first respondent on 24 October 2008 be and is hereby declared to be null and void and of no force and effect.

3. It is hereby declared that the applicant is the duly elected mayor for the first respondent.

Aggrieved by the state of affairs, the applicant filed this court application on 21 July 2008 seeking an order declaring her to be the sole holder of the rights in the immovable property in question, and also declaring that the first respondent did not acquire any rights in the property at any stage, and that the eviction order obtained by the first respondent under the main matter cannot be used to evict her.

The application was opposed.

At the time of the hearing of the matter, it emerged that the first respondent had proceeded to have the property registered in her name in terms of the Order in the main matter.

She, in turn, had sold the property to the third respondent, who was co-applicant in the main matter.

As indicated above, the applicant approached this court for a declarator to the effect that she is the holder of rights, title, and interest in the property known as Stand Number 8417 Mabvuku Township. In the second paragraph of her prayer, the applicant prays for an order declaring that the first respondent did not acquire any rights in the property. In the third and fourth paragraphs of the order, the applicant prays that it be declared that the Order in the main matter does not operate to set aside the cession of rights in her favour, and cannot be used to evict her from the property.

In my view, the essence of the declaratory sought by the applicant is that the order granted by this court in the main matter did not, and could not, at law, have taken away the rights that she had acquired in the property by another legitimate but quasi-judicial process in the form of intestate inheritance, and subsequent sale by the executrix dative.

The legal issue that falls for determination in this matter appears to me to be the effect of the Order in the main matter on the rights that the applicant had acquired in the property prior to the issuance of that Order.

The power of this court to issue a declaratory order in this matter is not in dispute.

It is trite that where there is a concrete controversy involving the invasion of an applicant's rights, the courts will issue a declaratory order in the matter – whether it is exercising its inherent jurisdiction, or acting under the specific powers granted it under section 14 of the High Court Act [Chapter 7:06]. (See Nolan v Povall and Others 1953 (2) SA 202 (SR); Barron v Greendale Town Management Board 1957 (2) SA 521 (SR); Musara v Zinatha 1992 (1) ZLR 9 (H); and Lupu v Lupu 2000 (1) ZLR 120 (SC).

The applicant herein seeks the following order:-

“WHEREUPON after reading the papers filed of record and hearing counsel: IT IS ORDERED AND DECLARED THAT:

(a) The applicant duly paid all import duties and taxes for the motor vehicle:

Make            : Toyota Landcruiser

Model           : 200 Series

Engine No.   : IVD0032379

Chassis No. : JTMHV05J004018755

(b) That the payment of duty released the motor vehicle from any and all encumbrances connected with the immigrants rebate.

(c) That the first respondent is not entitled to demand, seize, or impound the motor vehicle.

(d) That the first respondent shall not demand the surrender of the motor vehicle to itself for whatever reason or cause.

On 10 January 2008 the plaintiff sued the defendant. The plaintiff's claim was for -

1. An order declaring that the Agreement between the parties remains in force.

2. An order that the defendant transfer to the plaintiff Subdivision B of Subdivision D of Subdivision A of Lot 4 of Lot A  of Colne Valley of Rietfontein on payment of the purchase price in full in Zimbabwean currency, and on compliance with the other terms and conditions of the Agreement of Sale.

The defendant admitted entering into the Deed of Sale with the plaintiff with the terms and conditions as reflected therein.

The applicant approached this court seeking an order in the following terms -

1. That the applicant be and is hereby declared the legal owner of certain piece of land called Lot 1 of Orange Grove situate in the District of Hartley measuring 2,039,6170 acres held under Deed of Transfer Number 609/66.

2. That the offer letters issued in favour of the fifth to ninth respondents be and are hereby declared void and therefore of no force and effect on the ground that the farm was de-listed by Government on 21 January, 2005.

3. That the fifth to ninth respondents be and are hereby ordered to vacate the said farm, forthwith, and not to interfere with the applicant's workers and operations at the said farm.

On 8 May 2006, Marko, being assisted by Richard, through a power of attorney, approached this court on an urgent basis. He was seeking spoliatory relief against Tawanda. The Provisional Order was granted by consent. The matter was not set down for confirmation or discharge.

On 1 August 2006 Tawanda filed the present application before this court seeking an order that he be declared the lawful registered owner of Stand Number 134 Chadcombe Township 2..., eviction of the respondents and costs of suit.

The applicant in this matter seeks an order from this court in the following terms-

“It is ordered that:-

(a) The agreement of sale between applicant and 1^st respondent entered into on October 15, 2003 be and is declared to be valid and lawful;

(b) The agreement of sale between 1^st, 2^nd and 4^th respondents over the immovable property known as 231 New Luveve, Bulawayo be and is hereby declared to be null and void thus unenforceable;

(c) 5^th respondent be and is hereby ordered to amend its records so as to reflect that the rightful owner of 231 New Luveve, Bulawayo is applicant; and

The applicants sought and were granted a provisional order on 16 February 2011 whose interim relief was to the following effect:

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

1. That respondent is interdicted from purporting to be the President of the Movement for Democratic Change.

2. That the respondent is interdicted from exercising any function vested in the President of the Movement for Democratic Change.

3. That respondent is interdicted from in any way interfering with structures and organs of the party.”

In their amended final order they sought the following:

“Pending the finalization of case number HC612.11 in Harare:-

(a) That respondent be and is hereby interdicted from purporting to be the President of the Movement for Democratic Change and from interfering with its structures and organs as well as from exercising any functions or powers vested in the President of the Movement for Democratic Change.

(b) That respondent be and is hereby interdicted from attending any meeting of whatever description of Principals in the Inclusive Government of Zimbabwe or of any regional or international body in the capacity of Principal in the inclusive Government of Zimbabwe.

(c) That respondent be and is hereby interdicted from performing or exercising any function or power vested in the President of the Movement for Democratic Change and/or Principal in the Inclusive Government; and

(d) Respondent is declared not to be the President of the Movement for Democratic Change.

(e) Respondent is to pay costs.”

As can be seen from the final order being sought, this is an application for an interdict and a declaratur that the respondent, Professor Arthur Mutambara, is no longer the President of the Movement for Democratic Change – “the MDC”….,.

On 15 January 2009 a default judgment was granted by this court to the present respondents, who were then applicants, in the following terms:-

“It is hereby ordered that:-

(a) The notice gazetted by 1st respondent on the 26th of September 2008 purporting to acquire certain piece of land situate in the District of Bulawayo, being the remaining extent of Broad Acres, measuring one hundred and forty-five comma eight five six four (145,8564) hectares held under Deed of Transfer Number 2815/83 and registered in the names of the late Christopher Gutherless and Marie Elizabeth Gutherless be and is hereby declared unlawful and invalid to the extent that such action is in breach of the terms of the Certificate of No Present Interest issued in favour of 1st applicant on 4 September 2008 pursuant to the provisions of section 47 of the Land Acquisition Act [Chapter 20:11].

(b) In consequence, leave be and is hereby given to 1st applicant to proceed with the transfer of the said piece of land in favour of 2nd applicant pursuant to the terms of the agreement of sale executed and signed by the parties on 19th September 2008.

(c) The Registrar of Deeds be and is hereby authorized and directed to register the Deed of Transfer in favour of 2nd applicant.

(d) Pursuant to the above, 2nd respondent together with all those claiming through him be and is hereby ordered to vacate the aforesaid piece of land, forthwith and to give vacant possession thereof in favour of 1st applicant to enable the latter to give vacant possession thereof to 2nd applicant in terms of the agreement of sale executed and signed by the parties on 19th September 2008.

(e) Should 2nd respondent fail to vacate the aforesaid piece of land as provided for above, the Deputy Sheriff of this honourable court be and is hereby authorized and directed to forthwith evict 2nd respondent together with all those claiming through him from the aforesaid piece of land.

(f) The costs of this application shall be borne by 1st and 2nd respondents jointly and severally, the one paying the other to be absolved, on the legal practitioner and client scale.”

On 26 January 2009, the present applicant, who was the second respondent in the above matter, filed an application under a certificate of urgency seeking to interdict the then applicants from executing the warrant of execution under case number 2348/09 pending the finalization of the application for rescission filed simultaneously with the urgent application under case number HC127/09. In the event that execution had already been effected the Deputy Sheriff would be ordered to restore to the applicant vacant possession of Plot 6 Airport Road, Bulawayo.

The urgent application was dismissed with costs on 29 January 2009 and the full reasons for the dismissal are contained in judgment number HB33-09.

Thereafter, the application for rescission, which had been simultaneously filed with the urgent application, seems to have been abandoned. It has not been prosecuted up to this day – a period of over a year and half. It has not been withdrawn but is still pending in this court.

Instead, the applicant has launched the present application wherein he seeks an order in the following terms:-

“It is ordered that:-

1. It be and is hereby declared that the compulsory acquisition of land by the Government of Zimbabwe under the Agricultural Land Settlement Act [Cap 20:01] after the 8th of July 2005 is not, in terms of the Constitution of Zimbabwe Amendment Act No. 17/2005, justiciable except insofar as a challenge may be made regarding the amount of compensation payable.

2. It be and is hereby declared that the jurisdiction of the courts of the land to entertain challenges arising from the compulsory acquisition of land was as from 8 July 2005 ousted by the Constitution of Zimbabwe Amendment Act No. 17/2005.

3. It be and is hereby declared that any judgment or order by a court in which the compulsory acquisition of land by the Government of Zimbabwe under the Agricultural Land Settlement Act is under challenge would be void and of no force and effect.

4. The respondents jointly and severally pay the cost of this application, the one paying the other to be absolved.”

It is clear from the order being sought that the applicant is asking this court to make a declaratory order against its own decisions. He relied on section 14 of the High Court Act [Chapter 7:06] which provides that -

“The High Court may, in its discretion, at the instance of any interested person inquire into and determine any existing, future or contingent right or obligation, notwithstanding that such person cannot claim any relief consequential upon such determination.”

The procedure for a declaration of rights, like review proceedings, is either by way of summons and filing of pleadings in the usual way if there is a dispute of fact, or in the form of a special case on application if there is no dispute of fact.

When the facts are disputed the court has a discretion as to the future course of the proceedings – Hattingh v Ngake 1966 (1) SA 64 (O) and Adbro Investments Co Ltd v Minister of Interior 1956 (3) SA 345 (A).

The applicant in this matter seeks an order declaring the legality of her occupation of a piece of farmland in Seke District and the nullification of the consolidation of that land with an adjoining farm. She also seeks the eviction of the second respondent and an order for costs against him.

The Rent Board is a statutory body with quasi judicial authority. It is empowered to make rent orders and to issue eviction certificates.  

The applicants seek to contest the recurrent expenses claimed by the second respondent and the eviction certificates. The applicants' claim that the order for recurrent expenses should be declared invalid and set aside is not sustainable at all for the simple reason that it has not been shown that the Rent Board ever made such an order.

It is the first applicant who stated categorically, and under oath, at paragraph 6 of her founding affidavit as follows;

“Sometime in August 2009, having unsuccessfully tried to get the tenants of Bertha Court to pay rates and so-called recurrent expenses, the second respondent made an Application to the Western Region Rent Board as chaired by the First Respondent for a Recurrent Expenses Order. I annex hereto, marked 'B', a copy of a letter sent to us from the first Respondent's offices contents of which are self-explanatory. Other than confirming the monthly rental of $70= per month, the rent board did not make an Order with respect to the recurrent expenses and suggested that the parties should discuss the matter between themselves.”…,.

At paragraph 11 of the same affidavit she speculates as follows:

“I also wish to point out that in terms of the Rent Regulations the Rent Board has no power to make a separate order for payment of the current (sic) expenses. The First Respondent is only empowered to make a Rent Order or to vary the same. In the circumstances, if the First Respondent did make an order for payment of the current (sic) expenses, such order is, I submit, null and void as it would have been made contrary to the provisions of the rent regulations.”…,. 

This, coupled with the fact that no order for recurrent expenses has been produced clearly does not lay a foundation for nullification. The applicants want the nullification of something which does not exist. I am also mindful of the fact that in the eviction proceedings instituted in the Magistrates' Court, the second respondent relied on an alleged agreement for recurrent expenses entered into between the parties and not on an order for these made by the Rent Board.

That then leaves the challenge being made against the certificates of eviction.

The Rent Board is statutorily empowered to issue such certificates. Having issued such certificates, aggrieved parties have a remedy in terms of section 35 of the Rent Regulations to lodge an appeal to the Administrative Court. In the event that there are grounds for review, the aggrieved parties could proceed by way of a review application to this court in terms of section 26 of the High Court Act.

The applicant is the registered owner of LOT 1A, Johannesburg, Norton, held under Deed of Transfer No.1231/98.

The background is that in September 1997, the applicant purchased LOT 1A of Johannesburg at an auction done in terms of a writ of execution issued against Mawanzatsoka (Pvt) Ltd in a matter with Stanbic Bank Ltd under Case No.HC3242/92. The second respondent, Mr Chirenje was a Director of Mawanzatsoka (Pvt) Ltd.

The sale in execution was duly confirmed by the Master of the High Court and transfer was passed in favour of the applicant under Deed of Transfer No.1231/98.

The second respondent's wife and co-Director of Mawanzatsoka (Pvt) Ltd, Tabeth Chirenje, challenged the sale of the property in execution in the case Tabeth Chirenje v Adore Gold (Pvt) Ltd and Ors HC4420/98. Her application was dismissed. She did not appeal against the dismissal of her application. The second respondent himself never mounted a legal challenge of the sale of LOT 1A of Johannesburg, Norton. In his own words, he chose to negotiate a settlement out of court and later he decided to use what he calls “political muscle” in his opposing affidavit. So the sale in execution remained valid as there was no successful legal challenge to it.

Consequently, in 1998, the applicant applied for a subdivision permit which was granted as indicated by Annexure F in the record. In 2002, LOT 1A of Johannesburg was incorporated into the Norton Town Council area as part of the urban expansion of Norton Town in terms of Proclamation 8 of 2002 published in the Government Gazette of 31 May 2002. In the meantime, the second respondent approached the Ministry of Lands and Rural Resettlement with an application to lease LOT 1A of Johannesburg in 2004. Pursuant to this, on 12 March 2009, the second respondent was issued with an offer letter which offered him “the whole of LOT 1A of Johannesburg” for “agricultural purposes.” Paragraph 7 of the offer letter states the following:

“7. The Minister reserves the right to withdraw or change this offer if he deems it necessary or if you are found in breach of any of the set conditions. In event of a withdrawal or change of this offer no compensation arising from this offer shall be claimable or payable whatsoever.”

In my view, the applicant cannot seek to have this court review its own orders under the guise of declaratory relief. This court can only correct, vary, or rescind its judgements and orders in terms of Rule 449(1) (a) to (c) of the High Court Rules 1971.

The outstanding paragraph 4, being the only relief now being sought by the applicant, appears, on the face of it, to be a declaration of fact due to the manner in which it is couched. 

It appears, however, that such fact has an impact on the respective rights of the parties depending on whether or not such is found to be a factual situation. If the applicant made every reasonable effort and took every precaution, then it will be entitled to remission of duty. If the applicant did not, then the respondent will be entitled to payment of duty to it by the applicant.

It appears to me that the matter, besides involving huge amounts of money, is of such importance that full ventilation must be allowed in order for justice to be done. The matter, being incapable of resolution without hearing evidence, it will be referred to trial.

In the result, the matter is referred to trial.

The papers filed will stand as the summons and declaration on the one hand and a notice of appearance to defend on the other. The respondent will file a plea within 10 days of service of this order on it. Thereafter, the matter will proceed in terms of the Rules.

It is trite that a party is not entitled to use the court system in a manner that undermines the judicial process. 

The learned judge in the court a quo was of the view that, by seeking a declaratur before the High Court, the appellant was attempting to subvert a process that had started in the lower court and in which the appellant had participated. As a consequence of that view, the learned judge not only dismissed the application, he also granted an order of punitive costs against the appellant. 

The learned judge was clearly in error.

Contrary to the assertions by the respondent that the appellant had gone forum shopping by seeking a declaratur in the High Court, the entire process that plagues the dispute between the parties commenced in the High Court and not in the Magistrates Court as is being alleged by the respondent which error was further compounded by the learned judge in the court a quo.

A narration of the sequence of events appears from the appellant's heads of argument which sets out the facts as follows.

The respondent brought an urgent chamber application on 28 February 2011 in an effort to interdict the appellant from proceeding with the imminent opening of the hospital. The court however opined that the matter was not urgent. Despite the finding of the lack of urgency, the appellant filed opposing papers. It is common cause that the application has not been pursued by the respondent.

Apart from the urgent chamber application referred to above, the parties also filed documents under Case No. HC619/11. Again, this application is at a standstill. The application in the Magistrates Court was filed on 28 September 2011. It is obvious that by the time the respondent filed the application in the Magistrates Court, it had become aware, from the documents filed in the two High Court applications mentioned above, that the appellant was in occupation of the hospital, yet it chose deliberately not to cite the appellant in the application for an order for spoliation.

In addition, if regard is had to the attempt by the respondent to obtain an interdict against the opening of the hospital, the assertion that it had been despoiled sounds hollow and instead points to an apparent intent to mislead the court. The record speaks for itself and shows that before the filing of the application in the Magistrates Court the parties had been involved in other proceedings over the same issue in the High Court and that several matters were pending in that court which could have achieved the same result as the respondent sought to obtain from the Magistrates Court. Between 2 July 2010 and 28 February 2011, the respondent brought three applications before the High Court, all of them seeking the eviction of African Medical Investments Plc from 15 Lanark Rd.

Clearly, as argued by the appellant, the respondent went forum shopping after realising that it could not obtain relief in the High Court.

In an answering affidavit before the Magistrates Court, Dr Vivek Solanki averred that the respondent was seeking an order for spoliation before that court and went on to aver that in the High Court the applications were substantially different as the relief being sought in one of the applications was an order for the eviction of African Medical Investments Plc.

This was far from the truth, and, sadly, the learned magistrate failed to relate to the whole application by the respondent in respect of which the relief being sought was an order of eviction. The draft order was similarly worded….,.

The appellant argued before the High Court that the respondent, having been aware of its occupation of the premises, should have addressed the application to it and not to a party which was not in occupation at the relevant time.

The learned judge, however, was of the view that the appellant should have sought to be joined in the proceedings before the magistrate. 

In my view, he erred.

The appellant had placed before the court sufficient evidence which established that it was in occupation and further that it owned the premises. That should have alerted the learned judge to the very real danger of the appellant being evicted without due process. It was not the obligation of the appellant to seek joinder.To the contrary, the respondent had the obligation to seek the eviction of the party that was in occupation. The fact that the appellant had not sought to be joined in any of the cases was not sufficient cause for the court to dismiss the application. There was sufficient evidence of the interest that the appellant claimed to have in the property on the papers to entitle it to a declaratur being issued in its favour.

The finding, therefore, that the appellant lacked bona fides because of the failure to seek joinder is not correct. This is so for a number of reasons which I shall clarify below.

The application for a declaratur in the court a quo involved the existence or otherwise of two rights, viz; the right of the appellant to occupy the premises that it indisputably owned and from which it had operated in excess of one year, and, secondly, the right of the appellant to be afforded a fair hearing before the Magistrates Court. The appellant's legal representatives had clearly erred in the procedure that they adopted. They opposed a number of legal processes in which it was not cited as a party.  They should have applied for its joinder in the applications in question.

The papers filed on behalf of the appellant clearly exhibited that the premises in question were owned by the appellant - which fact was never disputed by the respondent. The papers, in addition, raised the possible existence of a prior management contract between the parties and the possibility of disputes of fact in the application before the learned magistrate and in the numerous applications filed by the respondent in the High Court which had seemingly been abandoned.

A declaratory order under section 14 of the High Court Act [Chapter 7:06] is appropriate to determine any existing, future or contingent right or obligation. An applicant for a declaratory order must be an interested person in the sense of having a direct and substantial interest in the subject matter of the suit which could be prejudicially affected by the judgment of the court. In addition, an applicant must establish that some tangible and justifiable advantage in relation to its position with reference to an existing, future or contingent legal right or obligation may appear to flow from the grant of the declaratory order sought. See Johnsen v Agricultural Finance Corporation 1995 (1) ZLR 65 (S)…,.; Munn Publishing (Pvt) Ltd v Zimbabwe Broadcasting Corporation 1994 (1) ZLR 337 (S)…,.

The dispute between the parties in the Magistrates Court was not concerned with a declaratory order and in this jurisdiction only the High Court is empowered to issue a declaratory order.

There can, therefore, be no legal justification to accuse the appellant of forum shopping in seeking a declaratory order from the High Court.

Counsel for the first respondent, prompted by the applicant's application to amend the order sought, submitted that a litigant who is not a holder of the right in issue has no locus standi to apply for a declaratory order.

In Bulawayo Bottlers (Pvt) Ltd v Minister of Labour, Manpower Planning and Social Welfare & Ors 1988 (2) ZLR 129, the following was stated:

In Geddes Ltd v Towonezvi 2002 (1) ZLR 479 (S), the court held that:

“In deciding whether an application is for a declaration or review, the court has to look at the grounds of the application and the evidence produced in support of them. The fact that an application seeks a declaratory relief is not itself proof that the application is not for review. The court should look at the grounds on which the application is based, rather than the order sought.”…,.

In the present application, by citing the irregularities that the first and third respondents made, and the unreasonableness of the amount that was set, the applicant is basically asking this court to review the decision of the first and third respondents so as to render their decision void. This makes it clear that the application should have been brought as an application for review.

One of the arguments put forward for and on behalf of the Minister, particularly in the heads of argument, was that despite the reference to the Administrative Justice Act, the applicant's Case 2 was simply one for review; that in terms of Rule 259 of the Rules of this Court, an application for review has to be filed within eight (8) weeks of the decision to be reviewed and that the applicant's application was out of time, allegedly it having been filed some five (5) weeks out of time.

Relying on the cases of Masuka v Chitungwiza Town Council & Anor 1998 (1) ZLR 15 (H) and Forestry Commission v Moyo 1997 (1) ZLR 254 (S), it was argued that if the applicant instituted Case 2 in terms of section 26 of the High Court Act, then the proceedings were common law proceedings for review.

In Masuka v Chitungwiza Town Council & Anor 1998 (1) ZLR 15 (H), DEVITTIE J rejected the position taken in Musara v Zinatha 1992 (1) ZLR 9 (H) that in the field of Administrative Law there is a distinction between, on the one hand, void acts which can be brought on review within the prescribed time limits but which also can be brought as ordinary applications even outside those time limits, and, on the other hand, voidable acts which can only be brought by way of review within the eight (8) weeks period prescribed by Rule 259.

In his heads of argument on this point, the applicant seemed confused.

In paragraphs 34 and 35 of those heads, the applicant argues that proceedings brought in terms of section 4 of the Administrative Justice Act “…, are not review proceedings simpliciter in the sense that they do not supplant the procedure of common law review.” He argued that proceedings under that Act amount to a form of statutory review but that circumstances might exist when they might not constitute a review at all.

The applicant's Case 2 was predicated on the withdrawal letter and on his argument that in terms of that letter his cause of action had matured and that he did not have to wait for the Minister's response to his representations. On the other hand, the Minister and TBIC Investments (Private) Limited insisted he ought to have waited for that response.

In his heads of argument, the applicant states unequivocally that in terms of section 26 of the High Court Act [Chapter 7:06], this court has power to review all decisions of, inter alia, administrative authorities; that the grounds of review, as specified in the High Court Act, are common law review procedures; that Rule 259 of the Rules of this Court is peremptory in providing that review proceedings “shall” be instituted within 8 weeks of the “…, termination of the suit, action or proceedings in which the irregularity complained of is alleged to have occurred”; and that if he failed to bring the review proceedings timeously then he would be non-suited.

What then confuses issues is that the applicant goes on to argue that it could not be said that there had been “termination” within the meaning of Rule 259 when the Minister issued the withdrawal letter, because, the argument persisted, such 'termination' would only have occurred after the Minister had either made a decision on the applicant's representations (as he had been invited to do so in the withdrawal letter), or if he had failed to respond to those representations within a reasonable time. The applicant stressed that the Minister had not yet become functus officio at the time of the withdrawal letter.

Such confusion by the applicant prompted the Minister to retort in his heads of argument as follows:

“8.0 At paragraphs 39 and 42 of his Heads of Argument, the Applicant says he was not out of time when he instituted these proceedings because the decision to withdraw the offer letter 'was not final' at the time it was made and it was therefore 'not reviewable' at that time. But he has now instituted these proceedings because of that same decision and the question is: When did the decision become final and reviewable?”

The applicant seeks a declaratory order which is a remedy provided for in section 14 of the High Court Act [Chapter 7:06] in terms of which this court may, at the instance of any interested party, inquire into and determine any existing, future or contingent right or obligation. In interpreting section 14 of the High Court Act [Chapter 7:06], GUBBAY CJ pronounced as follows in Munn Publishing (Pvt) Ltd v ZBC 1994 (1) ZLR 337 (S)…,.:

“The condition precedent to the grant of a declaratory order is that the applicant must be an interested person, in the sense of having a direct and substantial interest in the subject matter of the suit which could be prejudicially affected by the judgment of the court. See United Watch and Diamond Co (Pty) Ltd and Others v Disa Hotels and Another 1972 (4) SA 409 (C) at 415 in fine; Milani and Another v South Africa Medical and Dental Council and Another 1990 (1) SA 899 (T) at 902 G-H. The interest must relate to an existing, future or contingent right. The court will not decide abstract, academic or hypothetical questions unrelated to such interest.  See Anglo-Transvaal Collieries Ltd v SA Mutual Life Assurance Soc 1977 (3) SA 631 (T) at 635 G-H. But the existence of an actual dispute between persons interested is not a statutory requirement to an exercise by the court of jurisdiction. See Exp Nell 1963 (1) SA 754 (A) at 759 H- 760A. Nor does the availability of another remedy render the grant of a declaratory order incompetent. See Gelcon Investments (Pvt) Ltd v Adair Properties (Pvt) Ltd 1969 (2) RLR 120 (G) at 128 A–B; 1969 (3) SA 142 (R) at 144 D-F.

This, then, is the first stage in the determination by the court.

At the second stage of the inquiry, it is incumbent upon the court to decide whether or not the case in question is a proper one for the exercise of its discretion under s14. What constitutes a proper case was considered by WILLIAMSON J in Adbro Investment Co Ltd v Minister of the Interior and Others 1961 (3) SA 283 (T) at 285 B–C to be one which, generally speaking, showed that –

'despite the fact that no consequential relief is being claimed or perhaps could be claimed in the proceedings, yet nevertheless justice or convenience demands that a declaration be made, for instance as to the existence of or as to the nature of a legal right claimed by the applicant or of a legal obligation said to be due by a respondent. I think that a proper case for a purely declaratory order is not made out if the result is merely a decision on a matter which is really of merely academic interest to the applicant. I feel that some tangible and justifiable advantage in relation to the applicant's position with reference to an existing, future or contingent legal right or obligation must appear to flow from the grant of the declaratory order sought.'

See also Reinecke v Incorporated General Insurance Ltd 1974 (2) SA 84 (A) at 93 D-H.”

Another major objection raised by the Bank to this application was that it has been brought against a backdrop of an existing judgment granted by MUSAKWA J on 18 June 2014, which, in essence, authorised the disposal of the property.

It is the Bank's position that with this judgment not having been set aside there is effectively no litigant before this court as that judgment remains extant.

The gist of the objection that was articulated by counsel for the first respondent was that this court cannot interfere with the order of another judge of parallel jurisdiction since such order can only be set aside in terms of Rule 63 of the High Court Rules, 1971 which deals with a default judgment; or, alternatively, in terms of Rule 449 whereby a judgment can be set aside if it was made in error; or it can be set aside on appeal by the Supreme Court. He emphasized that regardless of the applicant's arguments her position boils down to asking this court to set aside the execution process. It was thus argued that addressing this primary issue will effectively dispose of this matter.

Counsel for the applicant's response…, was that what the court is being asked to do is make a finding that the applicant has a right in the immovable property. He emphasised that the core of his argument is that anything that treats the property as belonging exclusively to the husband is not binding. His position was that the declaration sought will not release the husband's indebtedness to the Bank. He also argued that the declaration will not naturally have consequences on what to do with the immovable property as the issue is about declaring ownership and rights. He further maintained that the rights that are sought to be spelt out are those of a spouse in relation to a home that is registered in the name of the other spouse only and that the declaration seeks to inform the Bank, in particular, of the rights and interests of such spouse.

Analysis of Declaration sought

The applicable provision which empowers the court to make a declaratory order in an appropriate case is section 14 of the High Court Act [Chapter 7:06].

The purpose of a declaration is to define rights of the parties. Issues, such as one before me, to declare title to property, are generally the subject matter of declarations in addition to a wide range of other issues that hinge on the construction of instruments be they wills, leases, policies, among others. Generally, also, where a declaration is sought the facts will not be contentious. Where rights are spelt out the expectation is that the other party will obey. Only if the other party fails to take action does the other party seek to enforce. Key to the exercise of its discretion is that the court must be satisfied that the person is an interested party in an existing, future or contingent right or obligation. If satisfied on this point then the court must also decide whether the case is a proper one for the exercise of the discretion conferred. See Munn Publishing (Pvt) Ltd v ZBC 1994 (1) ZLR 337; MDC v President of Zimbabwe & Ors 2007 ZLR 257 (H)…,.

In MDC v President of Zimbabwe & Ors 2007 ZLR 257 (H) it was also stated that the court must be satisfied that that there are interested persons upon whom the declaration will be binding and that by binding is meant that the decision of the court operates as res judicata between the parties.

The applicable procedure, on the other hand, for rescission or setting aside an existing judgment has been amply dealt with by our courts as resting on three possible avenues;

(i) An application brought in terms of Rule 63 for a judgment granted in default;

(ii) An application in terms of Rule 449 where a judgment is granted in error;

(iii) An application in terms of the common law.

Outside these avenues it is incompetent for a judge to set aside the judgment of another judge of parallel jurisdiction.

See, for instance, Mushoto v Mudimu & Anor HH443-13 which goes into depth about the use of each of these procedures.

In Mutyasira v Gonyora NO and Others HH180-14 MAWADZE J put it thus:

“In my view, applicant cannot seek to have this court review its own orders under the guise of a declaratory relief. This court can only vary or rescind its judgments and orders in terms of Rule 449(1)(a) to (c) of the High Court Rules, 1971. The applicant has not approached the court on that basis but seeks a declaratory relief.”

It is thus necessary to examine the content of the declaration to assess whether it indeed seeks to vary a judgment that is in place.

The order sought was initially couched as follows:

“IT IS ORDERED THAT:

1. The Applicant owns Stand 17759 Blakeway Drive, Lincoln Green, Harare.

2. That the rights of the applicant in the property cannot be defeated by the mortgage bond registered in favour of the First Respondent.

3. The mortgage bond registered in favour of the First Respondent by the second Respondent be and is hereby declared null and void.

4. The execution and implementation of the Writ of Execution of immovable property issued by the Registrar of the High Court, at the special instance of the First Respondent under Case Number HC495/12, on the 29^th of September 2014, be and is hereby set aside forthwith.

5. The Respondents to pay costs of suit each paying the other to be absolved.”

At the hearing, the applicant sought to amend the first paragraph so that it addresses the Constitutional issue at the nub of the matter. The quest in the first paragraph was therefore altered to read as follows:

“1. The common law position that recognises real rights in the matrimonial property as superior to personal rights held by the other spouse in the same property is in breach of section 80(3) and section 56 of the Constitution.”

On the other hand, the order that was granted by MUSAKWA J on the 18^th of June in the matter of Stanbic Bank Zimbabwe Limited v (1) HBD (Pvt) Ltd t/a Kalamazoo Business Systems (2) Clever Madzara (3) Elias Nhamo Madzara (4) Commercial Suppliers and Equipment (Pvt) Ltd, HC495/12, reads as follows:

“IT IS ORDERED THAT:-

1. The 2nd, 3rd and 4th defendants shall, jointly and severally, one paying the other to be absolved, pay the plaintiff the amount of US$96,348=99.

2. The 2nd, 3rd and 4th defendant shall, jointly and severally, the one paying the other to be absolved, pay interest on the amount of US$96,348=99 at the rate of 31.85% per annum from 04 November 2011 up to the date of payment in full.

3. Certain piece of land situate in the District of Salisbury called Stand 17759 Harare Township Salisbury Township Lands held under Deed of Transfer Number 11912/2001, dated 23^rd November 2001, be and is hereby declared especially executable.

4. The 2nd, 3rd and 4th defendants shall, jointly and severally, the one paying the other to be absolved, pay plaintiff's costs of suit on the higher scale of legal practitioner and client.”

Juxtaposing the existing order with the declaration sought, there is no denying that the declaration seeks instant coercive relief that impacts on the judgment that has been granted in favour of the Bank which has not been set aside. It seeks coercive relief in the active setting aside of the mortgage bond, the basis upon which the Bank regards the property as executable. The Declaration also seeks to declare the bond null and void. It also seeks to set aside the writ of execution and its implementation. All these are the issues that are at the heart of what informed the order that was sought before MUSAKWA J on 18 June 2014.

This leaves no doubt that that it seeks to set aside an existing court judgment while circumventing the main grounds and avenues upon which such a judgment can be set aside.

The respondent, in its heads of argument, contended that this application ought not to have been made, for the reason that the applicant was aware of the proceedings by which judgment was obtained, having been served with a copy of the application for registration of the arbitral award, in case number HC4641/13.

The respondent contended that this court ought to consider whether a person who has ignored legal proceedings which he was aware of can subsequently turn around and assert that the relief afforded was sought in error.

Section 14 of the High Court Act [Chapter 7:06] provides that:

“14 High Court may determine future or contingent rights

The High Court may, in its discretion, at the instance of any interested person, inquire into and determine any existing, future or contingent right or obligation, notwithstanding that such person cannot claim any relief consequential upon such determination.”…,.

It is a discretionary remedy which involves a finding by the High Court as to a person's legal status, rights or obligations. It cannot be directly enforced.

This is an application for a declaratory order to the effect that the applicant is entitled to two quarters of a third of the net estate of the late Existo Francis Hapaguti….,.

Jurisdiction

The first respondent contended that by asking the court to declare what she is entitled to and to what extent, the applicant is asking the court to usurp the jurisdiction vested in an administrative body and declare her as the first wife or the extent of her inheritance.

The applicant, on the other hand, contended that she is only seeking a declaratory and not to interfere with the Master of the High Court's jurisdiction.

A careful analysis of the applicant's case shows that she is, in fact, intent on this court making a decision on what has already been made by the Master of the High Court. For instance, the issue of ranking of wives is within the functions of the Master of the High Court upon being presented with evidence. What share a surviving wife inherits is dependent on that ranking. Section 68F(2)(b) of the Administration of Estates Act [Chapter 6:01] is very clear on how the Master has to proceed in this regard. I am of the view that this court cannot determine the issue of ranking of wives at first instance as that has already been done. If it is that the applicant is not satisfied with the Master of the High Court's decision the recourse is not to ask this court to make a fresh determination as if at first instance. There are procedures for review and appeal available to a dis-satisfied beneficiary which the applicant could have resorted to.

Section 68J of the Administration of Estates Act [Chapter 6:01] states that:-

“Any person who is aggrieved by any decision of the Master in terms of this Part may appeal against the decision to the High Court within the time and the manner prescribed in rules of court.”

In casu, on 17 August 2009, the Master of the High Court made a decision that the marriage of the applicant to the late Existo Francis Hapaguti did not nullify the other marriages and so the estate has to fall under customary estates. Upon the executor preparing the Inheritance Plan, as per guidance from the Master of the High Court, he prepared an Inheritance Plan and submitted it to the Master for approval.

In this regard, section 68E(3)(a) of the Administration of Estates Act [Chapter 6:01] states that:-

“If the Master is satisfied that a plan submitted to him in terms of subsection(1) has been agreed to by all the beneficiaries concerned or by such of them as the executor could, with reasonable diligence, have consulted, the Master shall approve the plan and authorise the executor to distribute or administer the estate in accordance with it.”

This the Master of the High Court did as confirmed by the approval of the Plan on 12 February 2010.

These decisions, by the Master of the High Court, were important and cannot be ignored as they determined the next step to be taken by the executor and the beneficiaries. It is my view that, in as far as the applicant did not challenge these decisions by the Master of the High Court, she cannot seek to undo those decisions through the back door under the pretext of seeking only a declaratory order.

Nature of the Application

The first respondent argued that though the application has been brought as an application for a declaratory order it is, in fact, an application for review. The applicant disputed that and contended that this is purely for a declaratory order.

In their submissions, counsel alluded to what would constitute an application for a declaratur and an application for review. There was not much of a dispute that the court has to look at the grounds of the application to ascertain the true nature of the application.

In Geddes Ltd v Tawonezvi 2002 (1) ZLR 479 (S), the court held that:-

“In deciding whether an application is for a declaration or review, the court has to look at the grounds of the application and the evidence produced in support of them. The fact that an application seeks a declaratory relief is not itself proof that the application is not for review. The court should look at the grounds on which the application is based rather than the order sought…,.”

In Musara v Zinatha 1992 (1) ZLR 9…, ROBINSON J had this to say on the same subject:-

“At the outset, I would observe that the bulk of the petitioner's petition raises matters, such as malice, gross irrationality, the application of the audi alteram partem principle and bias, which relate to the subject of review and which would only render the act in question voidable and not void.

Consequently, those issues are not properly before this court in the present application which seeks a declaratory order specifically and exclusively on the ground that the petitioner's purported suspension is null and void.

Fortunately for the petitioner, there is just sufficient information on the papers to enable the court to consider the petition as one seeking a declaratory order in regard to the petitioner's suspension. Had there not been such information, so that the petition amounted to a review simpliciter…, then I would have dismissed the petition on the ground that it was out of time as a review matter and that no cause had been shown on the papers for the court, in terms Rule 259 of the Rules of Court, to extend the prescribed eight week period within which a review is to be instituted.”

See also Kenias Mutyasira v Barbra Gonyora and Master of the High Court SC80-06.

Further, section 27(1) of the High Court Act [Chapter 7:06] outlines the grounds for review as follows:-

“(1) Subject to this Act and any other law, the grounds on which any proceedings or decision may be brought on review before the High Court shall be -

(a) Absence of jurisdiction on the part of the court, tribunal or authority concerned;

(b) Interest in the cause, bias, malice or corruption on the part of the person presiding over the court or tribunal concerned or on the part of the authority concerned, as the case maybe;

(c) Gross irregularity in the proceedings or the decision.”

In his submissions, counsel for the applicant argued that the application is not a review in that the grounds being advanced are nowhere near those for review. He then attempted to reproduce the grounds as -

“47. My case is, in terms of the law of Zimbabwe, am I entitled to inherit my late husband, and, if so, to what extent?

48. According to 1^st and 2^nd respondents, all I am entitled to is my husband's 50% share in our matrimonial home.

49. My interpretation of the applicable laws is clearly expressed in annexures 'D' and 'G'.”

It was from these grounds that she is asking the court to declare her entitlement.

A perusal of the applicant's founding affidavit shows that the above is an understatement of the actual grounds that she has put forth as the basis for seeking this courts interference. It is clear that the application is premised on the applicant's dissatisfaction from the manner in which the late Existo's estate was administered and the decisions made by the Master of the High Court in the process. The applicant alleges that:

“1st respondent was obviously too biased and personally interested in the estate and that the second respondent, through an Assistant Master, was biased and she felt she could not get justice.”

In fact, in paragraph 46 of her founding affidavit, the applicant states that:

“This is not an application for review but the palpably unfair treatment I got in Mrs Kashaya's hands cannot be swept under the carpet.”

Clearly, therefore, the application is to undo what Mrs. Kashaya (Assistant Master) did which the applicant felt was a biased decision.

The applicant further alleges that she was not consulted and she did not agree to the Inheritance Plan as contemplated by section 68E(2) of the Administration of Estates Act [Chapter 6:01]. She thus raises the issue of audi alteram partem principle in decision making by an administrative body.

The tone of the applicant's affidavit gives the impression that she is bitter about such decisions as the acceptance by the Master of the High Court of the existence of the two other wives, the approval by the Master of the Inheritance Plan and the failure to consult her in the decision-making process.

The decision to place her as the second wife and not the senior wife did not go down well with the applicant. This is evident from her constant reference to herself as the senior wife and hence entitled to two quarters of a third share yet she is aware the Master of the High Court, upon being furnished with information on the other marriages the late Existo had, ranked her as the second wife.

It is evident that the core of the applicant's dissatisfaction with the manner in which the estate late Existo was administered include allegations of bias, malice, collusion between the Master of the High Court and the first respondent and her agent, interests in the cause by the first and second respondents when the reaching out agreement on the Inheritance Plan.

It is clear to me that the applicant is, in fact and in truth, seeking a review of the Master of the High Court's decisions made from the start of the administration of the estate to the approval of the Inheritance Plan.

This is thus misplaced.

The applicant ought to have made a proper application for review in terms of the Rules or appealed against the Master of the High Court's decisions. As it is, she is way out of time, from the time those decisions were made, for either review or appeal.

Counsel for the thirty-fourth respondent…,. contended that there was no point in bringing the application when some cases have resolved the dispute; that this application won't overturn the orders already granted against the applicant. She argued that hypothetical issues cannot form the basis of a declaratory order.

The applicant submitted that it is not concerned with those matters where default judgment was granted against it and is prepared to let due process take its course. What the applicant simply requests is resolution of a dispute where it claims that there is legal uncertainty and it is entitled to do so….,.

Section 14 of the High Court Act [Chapter 7:06] empowers this court to deal with declaraturs and provides as follows;

“14 High Court may determine future or contingent rights

The High Court may, in its discretion, at the instance of any interested person, inquire into and determine any existing, future or contingent right or obligation, notwithstanding that such person cannot claim any relief consequential upon such determination.”

This court has, in its discretion, decided to entertain the application.

Section 85 of the Zimbabwe Constitution provides as follows:-

“Enforcement of fundamental human rights and freedoms

(1) Any of the following persons, namely;

(a) Any person acting in their own interests;

(b) Any person acting on behalf of another person who cannot act for themselves;

(c) Any person acting as a member or in the interests of a group or class of person;

(d) Any person acting in the public interest;

(e) Any association acting in the interests of its members;

is entitled to approach a court, alleging that a fundamental right or freedom enshrined in this chapter has been, is being or is likely to be infringed, and the court may grant appropriate relief, including declaration of rights and an award of compensation.”…,.

The appellant's case is predicated upon the assumption that section 85 of the Constitution now takes away the power conferred by the High Court in terms of section 14 of the High Court Act [Chapter 7:06]. That assertion cannot be a correct interpretation of the law. Section 14 of the High Court Act specifically provides as follows:-

“The High Court may, in its discretion, at the instance of any interested person, enquire into and determine any existing, future or contingent right or obligation, notwithstanding that such person cannot claim any relief consequential upon such determination.”

I am not persuaded that section 85 of the Constitution confers any rights upon the Magistrates' Court to grant orders for a declaratur…..,.

Now, dealing with the issue of whether the Magistrates' Court has the jurisdiction to entertain, let alone grant declaratory orders, there can be no doubt the Magistrates Court has no power to issue declaratory orders.

The High Court is empowered, in terms of section 14 of the High Court Act [Chapter 7:06] to make declaratory orders. The Magistrate's Court is a creature of statute. It operates in terms of the powers conferred upon it by the legislature. The Magistrates' Court cannot arrogate to itself powers that are not conferred upon it by statute….,.

In the case of Johnsen v AFC 1995 (1) ZLR 65, GUBBAY CJ had the occasion to consider when a declaratur can be granted. He stated…, as follows:

“The condition precedent to the grant of a declaratory order, under section 14 of the High Court Act 1981, is that the applicant must be an 'interested' person in the sense of having a direct and substantial interest in the subject matter of the suit which could be prejudicially affected by the judgment of the court. The interest must concern an existing, future, or contingent right. The court will not decide abstract, academic or hypothetical questions unrelated thereto.”

Furthermore, in terms of Order 33 Rule 259, proceedings by way of review should be instituted within eight weeks of the proceeding in which the irregularity complained of occurred although the court may, for good cause shown, extend the time.

This was clearly not done, and, in fact, a trial action may thus have been lodged simply because the plaintiff realised that he was way out of time to bring a review.

The applicants have brought several applications, initially trying to prevent the sale and transfer of the shares and now trying to reverse the transfer. They have been to the Supreme Court and back still pursuing the same issue….,.

In the present application, the applicants seek a declaratur that the sale of the shares by the first respondent to the second respondent “constituted unlawful parate executie”; that the securities transfer form executed by the fourth applicant in respect of shares held by it was invalid by reason that the certificate was defective and that ownership of the shares did not lawfully pass to the second respondent. The applicants also seek the return of the shares to them among other relief….,.

On its part, the second respondent's position is that considering that the issues raised by this application have already been subject of earlier judicial pronouncements, particularly by the Supreme Court, the present application is an abuse of process….,.Counsel for the second respondent made the additional point that the issue has long been settled by the Supreme Court and that the applicant is asking me to make a decision on matters already decided by the Apex Court.

I agree.

We are covering ground that has already been traversed merely because the applicants think they can try their luck. CHIDYAUSIKU CJ made findings adverse to the applicants in Chidawu & Ors v Shah & Ors SC13-12…,.

It ought to have been apparent to the applicants that this court is bound by the pronouncements of the Supreme Court. When they prosecuted this application, knowing what the Supreme Court had already determined, without even putting forward any new facts upon which a different conclusion could be made, they were abusing process.

It is the kind of conduct which should be frowned upon with a good measure of punitive costs.

It is my considered view that even if the High Court were to issue the decalaratur that is sought by the applicant, no consequential relief will flow from such a course of action….,.

In terms of section 14 of the High Court Act [Chapter 7:06] is empowered to:

“14 High Court may determine future or contingent rights

The High Court may, in its discretion, at the instance of any interested person, inquire into and determine any existing, future or contingent right or obligation, notwithstanding that such person cannot claim any relief consequential upon such determination.”

Rule 240 of the High Court Rules 1971…, states;

“240 Granting of Order

At the conclusion of the hearing or thereafter the court may refuse the application or may grant the order applied for, including a provisional order, or any variation of such order or provisional order, whether or not general or other relief has been asked for…,..”

Section 14 of the High Court Act (Chapter 7:06) provides as follows:

“The High Court may, in its discretion, at the instance of any interested person, inquire into and determine any existing, future or contingent right or obligation, notwithstanding that such person cannot claim any relief consequential upon such determination.”

In Johnsen v AFC 1995 (1) ZLR 65 (H) it was held as follows:

“The condition precedent to the grant of a declaratory order under section 14 of the High Court Act 1981 is that the applicant must be an 'interested person' in the sense of having a direct and substantial interest in the subject matter of the suit which could be prejudicially affected by the judgment the court. The interest must concern an existing, future or contingent right…,.”

In this application, the applicants seek an order declaring the Notice of Appeal filed by the respondent with the Registrar of the Supreme Court to be null and void....,.

The interesting point of law that arises is whether, in these circumstances, a Judge of this Court has the jurisdiction to declare the Notice of Appeal null and void.

The grounds of appeal are that:

1….,.

2….,.

3. The court a quo erred in issuing a declaratory order in an application brought on review when the court's power is limited by section 28 of the High Court Act….,.

The third ground of appeal questions the power of the court a quo to issue a declaratory order in an application for review. Section 28 of the High Court Act provides that:

“28 Powers on review of civil proceedings and decisions

On a review of any proceedings or decision, other than criminal proceedings, the High Court may, subject to any other law, set aside or correct the proceedings or decision.”

The wording of this section is to the effect that the power of the court, on review, is limited to setting aside and/or correcting the proceedings or decision. In fulfilling its review mandate, the court a quo ought to simply have set aside the decision to dismiss the respondents. Declaring the respondents to be councillors of the City of Harare was ultra vires section 28 of the High Court Act.

A declaration of fact is considered to be a solemn statement of truth that must have the legal effect designed to flow from it.

Forum shopping is what this matter is all about.

In a spectacular comedy of errors that would have made the legendary court jesters of the mediaval king's palace green with envy, the applicant achieved the impressive feat over a period of about 3 years, to approach every conceivable tribunal or court that could possibly deal with her labour dispute, managing to finally land on the door step of this court virtually panting, breathless and perspiring, from the long years of travail, with what she christened a court application for a declarator that;

“1. The portion of the penalty handed down by the Disciplinary Committee of the respondent against the applicant on 27 October, 2009 which reads:

'failure to pay the money by the said date will lead to dismissal from council employment;'

be and is hereby declared to be null and void ab initio and is accordingly set aside.

2. The purported dismissal of the applicant from respondent's employment be and is hereby declared null and void ab initio.

3. The respondent is to pay to the applicant the salary and other benefits due to her from the date of the purported dismissal, being the 4^th of December 2009 minus the sum of USD2,220= and any other deductions required by law.

4. That the respondent shall pay the costs of this application.”

The applicant was a proud employee of the respondent of long standing, she having dutifully served the respondent for a period of 17 years. Her troubles started when, on 10 July 2009, as Provincial Manager of the respondent, she was issued with US$3,120= travel and subsistence allowance for trainers of peer educators and youth friendly service providers in Karoi. Having paid part of the money to the intended recipients accordingly, and being left with $2,220=, the applicant committed the ultimate aberration of failing to surrender it to the accountant as required, but, instead, proceeding with it to a Global Fund workshop in Bulawayo.

Once in the City of Kings, in Bulawayo, the applicant checked in a flat belonging to her employer. On 21 July 2009 she left her room accompanying a colleague leaving her handbag which had the princely sum of $2,220= in it under a pillow in her room, only to find, upon her return, that it had been stolen. She was subsequently charged with “negligence of duty resulting in loss of $2,220=” for a donor funded project, in breach of the employer's registered code of conduct.

The applicant duly appeared before a disciplinary committee which found her guilty. The penalty imposed was that she makes restitution of the $2,220= by 30 November 2009 plus a final written warning and failing such restitution, that she be dismissed from employment. When she did not restitute she was dismissed on 4 December 2009. The applicant referred the matter to a Labour Officer for conciliation.

It would be noted that, in terms of clause 5 of the employment code of conduct of the respondent:

“5. All appeals against the decisions of the designated officer(s) shall, except in cases of dismissal, be made within three (3) days to the Provincial Manager of the respective province or unit/Divisional Head who shall determine as appropriate.

5.2. In all cases of dismissal, the appeal shall be made to the Appeals Committee as in 6 below.

5.3. An employee who is not satisfied by the decision in an appeal in terms of section 5.1 may appeal to the Appeals Committee.

5.4. An employee who is not satisfied by the decision of the Appeals Committee may appeal to the Labour Court within 30 days of receipt of Appeals Committee's decision.

5.5. An appeal shall not have the effect of suspending the decision appealed against.”

The provisions of the employment code did not deter the Labour Officer from adjudicating over the dispute, and, on 15 December 2009, the Labour Officer issued a Certificate of No Settlement. On 8 January 2010 the matter was referred to arbitration.

Not to be outdone, the ubiquitous Matthew Tapiwa Magureyi, arbitrating from Chinhoyi, made an award for the applicant's reinstatement without loss of benefits on 15 March 2010.

This propelled the respondent to lodge an appeal to the Labour Court against the decision of the arbitrator.

Probably realizing, rather late, that she had badly burnt her finger by proceeding to a Labour Officer, and, later, an arbitrator, contrary to the procedure laid down in the employment code of conduct, the applicant was forced to capitulate.

Down on her knees, she consented to an order of the Labour Court, issued on 16 February 2011, setting aside the arbitration proceedings on the pain of living to fight another day in terms of the appeal provisions of the employer's code of conduct.

The applicant returned to the Appeals Committee of the respondent launching an appeal against her dismissal, albeit hopelessly out of time, on 23 February 2011. At the same time, she sought the condonation of the Appeals Committee for the one year and 4 months delay in noting the appeal. The respondent politely advised the applicant that her appeal was not only out of time but also that the Appeals Committee did not have power to condone the late filing of an appeal.

Demonstrating an impressive 'never say die' attitude, the applicant approached the Labour Court for review. She was, again, forced to withdraw that Labour Court matter on 28 September 2011. Left without any sense of solution, despondent, and probably despairing, the applicant filed this application for a declaratory order that her dismissal from employment is void ab initio.

Having pain-stakingly traced the route navigated by the applicant to reach this court, my attention is drawn to the sentiments of MAKARAU JP…, which I share, in Mwanyisa v Jumbo and Ors HH03-10 where she said:

“Judges are public servants, and, as such, they are not to complain about what lands on their plates. I must, however, confess that the above matter is a dog's breakfast. The parties have been to this court on at least five occasions.”

In this case, the applicant ignored clear provisions of a registered employment code of conduct according her the remedy of an appeal from a decision of the disciplinary committee, to the Appeals Committee of the respondent. She elected to proceed, on a tryst with a labour officer and an arbitrator who had absolutely nothing to do with the matter. She clearly proceeded in the wrong forum, and, having realized that she was shouting in the wilderness, the applicant swung round and returned to the Appeals Committee prostrating in adoration and seeking condonation which the committee could not give. She tried her luck at the Labour Court, but, probably realizing that her remedy in that court had been rendered dysfunctional by prescription, she thought of coming to this court - clearly as an afterthought.

It is now fashionable for litigants who find themselves hamstrung in the labour dispute resolution structures of our justice system, for one reason or the other, to fall back on this court under the guise of seeking a declarator.

While it is true that this court has, at its discretion, authority and power bestowed upon it by section 14 of the High Court Act, to inquire into and determine any existing, future or contingent right or obligation, and that an interested party can approach the court for a declaration of its rights; Musara v Zinatha 1992 (1) ZLR 91 (H), there is no magic in the remedy of a declaratory order and this court will not easily jump to exercise its discretion where clearly the applicant had other remedies available to her which she spurned out of tardiness or poor legal advice.

As I have already stated, there is a procedure to be followed by an aggrieved party which is provided for in the employment code of conduct. We have a situation where the applicant was dismissed from employment in terms of an employment code of conduct. It provided relief to her which she chose not to pursue. She cannot then come now, because she has lost that relief by prescription, and seek a declaration of her rights which she could have enforced in a competent tribunal.

I agree with counsel for the respondent that the whole object of this application is to allow the applicant to do what she failed to ask the Appeals Committee to do by way of appeal. In the event that she was not happy with the decision of the Appeals Committee she was at liberty to approach the Labour Court.

Indeed, the substance of this application has nothing to do with a declarator. What she wants is to reverse a dismissal from employment which she failed to contest using internal remedies provided from in the code of conduct coupled with an order for payment of all benefits she would have enjoyed. A court of law should not be deceived by the form of the application, it will put aside the veil and examine its true nature and substance: Kilburn v Estate Kilburn 1931 AD 501…,.

To the extent that the applicant was entitled to appeal all the way to the Labour Court, it means that the substance of this application is, in essence, a labour dispute disguised as an application for a declarator.

Section 89(6) of the Labour Act [Chapter 28:01] has ousted the jurisdiction of all other courts, in the first instance, to hear and determine any application, appeal or matter falling under the jurisdiction of the Labour Court.

The present dispute clearly falls under that ouster provision as it should be determined by the Labour Court. No amount of flummery with the form of the application and the phrase “declaratory order” will change the complexion of this matter in substance. It remains a labour dispute which should be determined by the Labour Court.

The legislature, in its wisdom, has seen it fit that such matters should be reserved for the Labourt Court. Litigants who continue to ignore that legislation, by approaching this court, are clearly trying to defeat the intention of the legislature. It matters not that a litigant comes to this court seeking a declaration of rights, if such rights can and should be determined in the Labour Court, this court will decline jurisdiction. One cannot fight against the future, for the future, as pronounced by the legislature, is that such matters should not be entertained by this court: Matongo v Midlands State University HH174-13; Jambwa v Grain Marketing Board HH124-13.

I am fortified in that view by the fact that the applicant has been forum shopping for years now.

I do not agree with counsel for the applicant that the penalty imposed by the disciplinary committee in this matter is a glaring invalidity that is staring the court in the face which cannot be ignored.

That committee had authority to impose a penalty of dismissal. If the applicant was dissatisfied she should have appealed but she chose to waste time on other issues. This is a case where there must be finality to litigation as this agony cannot be allowed to continue, Ndebele v Ncube 1992 (1) ZLR 288 (S)…,.; Stambolie v Commissioner of Police 1989 (3) ZLR 287; Saloojee & Anor v Minister of Community Development 1965 (2) SA 135 (A) 141 C-E.

As a matter of policy, it is undesirable that a single cause of action should be allowed to give rise to endless actions. There must be finality.

I therefore come to the conclusion that the applicant has not made out a good case for the relief sought. The application is accordingly dismissed with costs.

One morning, in February 2009, Zimbabweans woke up and found themselves subjected to a 'multi-currency system'. The Zimbabwean dollar was no longer accepted as legal tender. A basket of other currencies, such as the United States dollar and the South African Rand, were introduced into our society.

The truth of the matter is that these currencies had been circulating on what had been dubbed a 'parallel market' for quite some time. There are those who welcomed the formal adoption of those currencies as legal tender in this country which had been ravaged by the knock-on effects of super hyper inflation. Others bemoaned the symbolic annihilation of our currency which they associated with a corresponding perception of the annihilation of our national sovereignty. The majority of the people were perturbed by the effect of the introduction of the multi-currency system on their pensions, insurance policies, and life savings.

This case is about a group of workers who, between them, gave more than twenty years of loyal service to their employer. In terms of the pension policy that was in operation at the outset both employer and employees diligently contributed monthly to a pension fund.

The issue that falls for determination, put simply, is whether all sixty seven employees are entitled to challenge the determination by the employer as to what constitutes their basic annual salary for purposes of calculating their pension benefits. Depending on the answer to this question, the court will have to determine, further, whether these employees are entitled to demand further payments by the employer towards their eventual pensions.

At the heart of these issues lies the contentious issue of the effect of the introduction of the 'multi currency' system on the calculation of pension contributions which had previously been based on our local currency, and were now set to be calculated on the basis of the United States dollars, the currency that the employees were now remunerated in.

Some would say that the question ought to be holistically and definitively addressed by Parliament as a matter of policy. Others feel that it is simply a question of implementing the provisions set out in the relevant pension fund.

We have been asked to issue an interdict and a declaratur as to the parties' rights and obligations in terms of the rules of their pension fund.

The application before the court was filed of record on 16 December 2013. The founding affidavit was deposed to by G. Chiparaushe in a personal capacity and as the duly authorized representative of the sixty six other applicants who attached supporting affidavits authorizing him to represent them.

The first respondent is a sugar cane growing and processing company duly registered in accordance with the laws of this country and the employer of the sixty-seven applicants.

To avoid confusion, the first respondent shall be referred to as TRIANGLE. The second respondent is the Triangle Senior Staff Pension Fund (to be referred to as TSSPF), a properly constituted pension fund, duly registered with the Commissioner of Insurance, Pension and Provident Funds Act (IPEC), in terms of section 6 of the Pension and Provident Funds Act [Chapter 24:09]. The Triangle Senior Staff Pension Fund (TSSPF) is governed by its rules (the Fund Rules).

The first applicant averred that the application before the court was brought in accordance with Rule 9 of the Triangle Senior Staff Pension Fund Rules which provides that a member or any person whose claim is derived from a member shall have the right to refer a dispute to a court of law in this country for determination.

The applicants had previously approached an arbitrator, Honourable J.T Mawire, in terms of the Labour Act [Chapter 28:01] to determine the dispute, and, on or about the 5^th of September 2013, the arbitrator found that he did not have the jurisdiction to determine the dispute between the parties.

It was submitted, on behalf of the applicants, that they had a clear right to the interdict and declaratur that they sought.

The first applicant averred that he became an employee of TRIANGLE on the 1^st of April 1980, and a member of the Triangle Senior Staff Pension Fund (TSSPF) on the 1^st of July 1996. As from the date of his membership to the Triangle Senior Staff Pension Fund, TRIANGLE commenced deducting his share of pension contributions from his basic salary. The applicant remains a member of the Triangle Senior Staff Pension Fund to date.

The first applicant averred, further, that in terms of clause 11 of his contract of employment, membership to the Triangle Senior Staff Pension Fund (TSSPF) became compulsory on the date of his appointment, and his contribution of 7% of his basic monthly salary was automatically deducted and forwarded to the Triangle Senior Staff Pension Fund (TSSPF), by TRIANGLE, every month. According to the Terms and Conditions of the employment of C Band staff (Loss Control Manager), as at 1 July 1996 the basic salary was pegged at ZW$90,948=. The pension contribution of 13% came to ZW$11,823=. Under the heading “remuneration” was a note to the effect that:

“The basic salary is pensionable and the company currently contributes 13% to the Triangle Senior Staff Pension Fund.”

After the basic salary was a list of benefits which were to be paid on behalf of the employee on a 50% contribution basis, such as CIMAS medical aid and a drug scheme. Further benefits included an education allowance which was expressly qualified as being taxable.

The first applicant averred that, currently, in terms of Rule 19 of the Triangle Senior Staff Pension Fund Rules, TRIANGLE is obliged to make a corresponding monthly contribution to the Triangle Senior Staff Pension Fund of 13.5% of the first applicant's basic monthly salary. On the basis of the aforesaid, the first applicant averred that he and his fellow applicants have a clear right to have a deduction of 7% of his basic monthly salary made and to have a corresponding 13.5% of his basic monthly salary contributed by TRIANGLE. Failure to match the first applicant's contribution would be a failure by TRIANGLE to abide by the Triangle Senior Staff Pension Fund Rules.

It was submitted that, in or about October 2000, the Managing Director of TRIANGLE, Mr. J. M. Cleasby, advised members of the Triangle Senior Staff Pension Fund (TSSPF) that it was closed to new entrants on the basis that its existing members would be given an option to transfer to a different pension fund, the Triangle Pension Plan (hereinafter referred to as The Money Plan). In November 2000, Mr. Cleasby wrote a letter to the members of the Triangle Senior Staff Pension Fund and advised them that the date of transfer to The Money Plan was the 1^st of January 2001. Paragraph 3 of the letter stated that:

“To assist you in making a decision please find enclosed;

(a) Comparison booklet.

(b) Illustration letter.

(c) Option form.”

It was submitted, on behalf of the applicants that, TRIANGLE caused a booklet called 'Defined Benefit Triangle Senior Staff Pension Fund or Defined Contribution The Money Plan', which compared the two schemes to be published. All sixty seven applicants opted to remain members of the Triangle Senior Staff Pension Fund (TSSPF).

The first applicant averred that the applicants suffered an injury and/or that, alternatively, an injury is reasonably apprehended by them. In support of this contention is the averment found in paragraph 18 of the first applicant's founding affidavit, that TRIANGLE has unilaterally decided to refuse to make its share of contributions to the Triangle Senior Staff Pension Fund and/or to deduct their 7% contributions from their basic monthly salaries. The allegation against TRIANGLE is that, by refusing to recognize most of the earnings of members of the Triangle Senior Staff Pension Fund (TSSF) as 'pensionable', it has, by its conduct, breached the terms of the Triangle Senior Staff Pension Fund Rules and interfered with the accrual of pension benefits.

In support of this averment, the first applicant referred to a letter to the trustees of the Triangle Senior Staff Pension Fund (TSSPF), dated 1 April 2009, written by the TRIANGLE managing director, Mr. S. D. Mutsambiwa. The letter was entitled “Pensionability of US$ Salaries”. It reads as follows:

“Kindly note that the January 2009, February 2009 and March 2009 salaries have been paid in USD$ to employees who are members of the Triangle Senior Staff Pension Fund (TSSPF). These salaries were paid in USD$ without any confirmation by the employer whether or to what extent the salaries would constitute pensionable emoluments. A decision in this regard is still to be made pending a review of the 'dollarisation' of the Zimbabwean economy and the bearing this will have, amongst other things, on the functioning of the Fund. The company will be arranging a meeting with the Board of Trustees in the near future to consider the way forward both in relation to existing pensioners and active member. In the meantime, and until further notice, contributions will be remitted to the Fund Administrators as an interim measure pending final decisions regarding the way forward in respect of the Triangle Senior Staff Pension Fund (TSSPF). This interim arrangement should under no circumstances be regarded as an implied decision having been taken that current USD$ salaries are indeed classified as pensionable emoluments.”…,.

On 8 July 2009, TRIANGLE introduced the “guaranteed package” to employees in the Executive grade, backdated to June 2009….,.

In paragraph 24 of his founding affidavit, the first applicant avers that all the applicants were forced to sign the acceptance letter in unilateral variation of their conditions of employment.

To prove this claim, he referred to an electronic mail communication dated 15 December 2009, addressed to Mr, Eston, in which Fred Nyangwe advised that Mr. Eston's failure to sign the letter which contained the new conditions of service, meant that, with effect from 1 December 2009, his salary, as set out in the letter, would be discontinued and he would go back to earning his old salary as at 31 May 2009. He was also advised that the difference between the two salaries, which he had been paid, would be deducted from his old salary until it had been recovered in full.

On 7 October 2010, TRIANGLE announced that the Triangle Senior Staff Pension Fund (TSSPF) would be discontinued and its active members moved to the Money Fund with effect from 1 November 2010. The Triangle Senior Staff Pension Fund Trustees refused to sign a resolution to approve the disbanding of the Fund on the basis that this violated the Triangle Senior Staff Pension Fund Rules and constituted a reversal of the undertakings made by TRIANGLE to the Fund members.

The Trustees were of the view that the procedure set out by Rule 36 of the Triangle Senior Staff Pension Fund Rules had not been followed.

A meeting was held at which TRIANGLE announced the transfer of the Triangle Senior Staff Pension Fund members to the Money Plan and told the members that the transfer values would be based on January 2009 salaries and not on current salaries.

Again, this was alleged to be in violation of the Triangle Senior Staff Pension Fund Rules.

The applicants' contention is that the relevant Rule equates pensionable emoluments to a member's basic salary or wage. Members' basic salaries had increased significantly since 2009, in some instances by 500%. TRIANGLE contended that following the Triangle Senior Staff Pension Fund Rules would result in its bankruptcy.

On 19 October 2010, the Triangle Senior Staff Pension Fund members delivered a petition to the trustees of the Triangle Senior Staff Pension Fund to demonstrate that they did not wish or agree to transfer from the Triangle Senior Staff Pension Fund (TSSPF) to the Money Plan. On 15 February 2011 the trustees addressed a letter to the TRIANGLE Human Resources Manager. Paragraph 3 of the letter reads as follows:

“…,. Of concern by members is why the trustees are not being consulted on the future of the Fund in accordance with the Fund's rules. Member trustees are not being kept informed as to what is happening and are not being asked for input or direction…”

In February 2011, TRIANGLE announced a further annual salary review together with changes to the structure of employment benefits. Members were asked to agree to and sign for these changes by 7 March 2011. Part of a letter written to Mrs. Eston (one of the applicants) on 21 February 2011, by Human Resources, reads as follows:

“Dear Mrs Eston,

The structure of your remuneration package has been reviewed in the context of the need to align the employee remuneration framework…,. It is confirmed that your actuarily calculated benefit in the TSSPF is to be based on the USD$ salary that has been used to determine your Fund contributions since 1 January 2009…,.”

In response to the petition by members of the Triangle Senior Staff Pension Fund (TSSPF), the Insurance and Pensions Commission (IPEC) called a meeting and advised that TRIANGLE was at liberty to disband the Triangle Senior Staff Pension Fund (TSSPF) - but only after fully funding it and complying with the requisite termination procedures.

In paragraph 38 of the founding affidavit, it is averred, on behalf of the applicants, that they have no other remedy. Various meetings with the trustees have not yielded any results. TRIANGLE has continued to refuse to recognize members' basic salary as the pensionable emolument. Repeated appeals to the Insurance and Pensions Commission (IPEC) to intervene have not yielded any tangible solutions.

The applicants reiterate that no other remedy other than a declaratur and an interdict can assist them to assert their pension rights.

On 20 January 2014, TRIANGLE filed a notice of opposition.

The opposing affidavit was deposed to by Fred Nyangwe, the Human Resources director. He raised various points in limine;

(i) The first of which was that the applicants had failed to exhaust domestic remedies.

(ii) The second preliminary point raised is that there are material disputes of fact which make this matter incapable of resolution on the papers filed of record.

(iii) The third preliminary point raised in the founding affidavit is that this matter is lis pendens, the decision of the arbitrator, Mr. Mawire, of 23 September 2013, not being final.

(iv) The final preliminary point raised is that this matter has prescribed because the applicants' claims arose in August 2009, or, alternatively, January and August 2010.

On 20 February 2014, an answering affidavit was filed on behalf of the applicants. TRIANGLE was accused of usurping the power of the Board of Trustees of the Triangle Senior Staff Pension Fund (TSSPF) and of attempting to close the Fund. The trustees deliberated over the dispute for more than two years and it was alleged that they have failed to resolve the issue because the chairman of the Fund frustrated all efforts to settle the matter. It was contended that TRIANGLE frustrated efforts by the Insurance and Pensions Commission (IPEC) to resolve the dispute starting with the meeting of 6 October 2011, by failing to comply with the Insurance and Pensions Commission directives.

The issues that fall for determination before this court are as follows:

1....,.

2....,.

3....,.

4....,.

5. What constitutes basic salary for purposes of calculating the contributions due from the applicants and from TRIANGLE for onward transmission to the Triangle Senior Staff Pension Fund (TSSPF) every month.

6. Whether the applicants are entitled to the relief sought....,.

AD MERITS

The heart of the matter, the crux of it, the issue that falls for determination in the main matter between the parties is the question of what constitutes basic salary for purposes of calculating the contributions due from the applicants and from TRIANGLE for onward transmission to the Triangle Senior Staff Pension Fund (TSSPF) every month.

In order to do justice to this question, it is necessary to inquire into and determine whether the court may, in the circumstances of this case, issue a declaratory order and an interdict.

(f) Basic salary for purposes of calculating pensionable emoluments

Rule 2 of the Triangle Senior Staff Pension Fund Rules defines pensionable emoluments as;

“'Pensionable Emoluments' of a member shall mean his basic annual salary or wages together with any contractual bonus. For purposes of the Fund, changes in Pensionable Emoluments shall be recognized immediately.”…,.

The dispute between the parties pertains to the definition of what constitutes 'basic annual salary or wages.'

I agree with the contention that in order to answer that question, it is necessary to examine who is entitled to make that determination.

The contract of the first applicant, of July 1996, shows that the employer set out the definition of basic salary and that the first applicant signed the contract in acceptance of this. TRIANGLE has promised to make its determination of what constitutes basic annual salary after a review, and the applicants appeared to have accepted this stipulation by signing to indicate acceptance of the 'restructured cash package'. The first applicant, in his answering affidavit…, appears to accept that the employer has a contractual right to set the basic salary at the point of initial engagement but not thereafter.

Let us examine this assertion to see if it is correct both in fact and law.

Subject to any statutory requirement, an employer is entitled to make an offer to its existing employees in respect of salary structures. The employees have no obligation to accept the offer made by the employer, and often negotiate in that regard. Subject to anything that comes out of the negotiations, the offer made as to the structure of the salary is made unilaterally by the employer. Once the employees accept the offer it becomes binding on both the employer and the employees.

It was contended that in this case, there was formal acceptance of the document containing the offer, and there was further acceptance by conduct in continuing to accept the salary package.

I find this contention persuasive.

The first applicant was first employed in 1980. In 1996 he signed a new contract on terms set by TRIANGLE. So, in fact, and at law, the employer has the right to set the conditions of employment, including a determination of what an employee's basic annual salary is.

Having gotten that out of the way, it is pertinent, at this stage, to consider whether the restructuring of the applicants' packages conformed with the Triangle Senior Staff Pension Fund (TSSPF) Rules, i. e. whether the definition of cash package that the applicants accepted in 2009, complied with the Triangle Senior Staff Pension Fund (TSSPF) Rules specifically in relation to the co-relation between the 'basic salary' and the calculation of the pensionable emoluments.

It has been contended that, by keeping the definition of basic salary in respect of the Triangle Senior Staff Pension Fund (TSSPF) members at their January 2009 salaries, despite subsequent increases in salaries, TRIANGLE is unilaterally varying the Rules of the Triangle Senior Staff Pension Fund (TSSPF) to the applicants' prejudice. The basic annual salary is being kept deliberately and intentionally low, at 2009 levels, for the specific reason that TRIANGLE intends to keep the basic annual salary down in order to keep the applicants' pensionable emoluments down.

That is the crux of the dispute.

TRIANGLE has taken the stance that it will review this decision in due course.

Nine applicants have retired and had their pensionable emoluments calculated on the basis of their January 2009 salaries despite the fact that their actual salaries may have increased significantly since January 2009.

Is this in accordance with the Triangle Senior Staff Pension Fund Rules?

In my view, it is not. The reasons why I hold this view are discussed extensively below. I hold the further view that the applicants are entitled to have their pensionable emoluments calculated in accordance with the Triangle Senior Staff Pension Fund Rules. Any continued contravention of the Triangle Senior Staff Pension Fund Rules is prejudicial to the applicants. The ways in which TRIANGLE has contravened the Triangle Senior Staff Pension Fund Rules, in regards to the calculation of the applicants' basic annual salary, are explored in detail below.

(g) Are the applicants entitled to the relief that they seek when regard is had to the Triangle Senior Staff Pension Fund Rules?

It was submitted, on behalf of TRIANGLE, that the Triangle Senior Staff Pension Fund Rules do not give the applicants such a cause of action as to be entitled to the relief sought in the draft order…,. It was submitted, further, that an analysis of the Fund Rules will show that no cause of action arises in favour of the applicants. It was submitted that the Rules do not require adjudication as to what constitutes basic salary for the purposes of determining pensionable emoluments or to compel TRIANGLE to make any particular contributions to the Triangle Senior Staff Pension Fund (TSSPF).

In a nutshell, the argument raised is that the applicant's action against TRIANGLE cannot lie in the Triangle Senior Staff Pension Fund Rules.

With all due respect to counsel for TRIANGLE, again, I find that this argument is circuitous and self serving and is not based on an accurate reading of the Triangle Senior Staff Pension Fund Rules.

Some of the parties rights and obligations set out in the Triangle Senior Staff Pension Fund Rules form part of the contracts of employment between the applicants and TRIANGLE. There is a correlation between the applicants' contracts of employment and the Triangle Senior Staff Pension Fund Rules.

The first applicant's initial contract of employment set out the terms and conditions of the employment of C Band staff (Loss Control Manager) as at 1 July 1996. The basic salary was pegged at ZW$90,948=. The pension contribution of 13% came to ZW$11,823=. Under the heading “remuneration” was a note to the effect that the basic salary was pensionable and that the company currently contributed 13% to the Triangle Senior Staff Pension Fund.

In terms of the submissions made on behalf of TRIANGLE…, the applicants have the right to be paid their cumulative contributions as at the date of termination of employment. That right is derived from Rule 29 of the Triangle Senior Staff Pension Fund Rules as read together with the contract of employment which specifies the parties respective pension contributions. The pension contributions are calculated in accordance with Rule 17 of the Triangle Senior Staff Pension Fund Rules as read together with the applicants' contract of employment.

Part of a letter written to Mrs. Eston (one of the applicants) on 21 February 2011, by Human Resources, confirmed that her remuneration package had been restructured. The restructured remuneration package was valid from 1 March 2011. The letter confirmed her actuarily calculated benefit in the Triangle Senior Staff Pension Fund was to be based on the USD$ salary that had been used to determine her Fund Contributions since 1 January 2009.

Now, surely, it not being suggested that Mrs. Eston's Fund contributions, since January 2009, had not been determined in terms of the Fund Rules as read with her contract of employment. The Fund Rules have a symbiotic relationship with the applicants' contracts of employments.

Some of the benefits which constitute the rights and obligations of the parties in the contract of employment depend on the Triangle Senior Staff Pension Fund Rules for their definition, and alteration, and amendment from time to time. It is simply not sustainable, in my view, to argue that, as a matter of law, the applicants' cause of action cannot be determined in terms of the Triangle Senior Staff Pension Fund Rules. The symbiotic nature of the parties rights and obligations is as clear as crystal, in my view.

In conclusion, it is this court's view that the cause of action of the applicants against TRIANGLE lies in the Triangle Senior Staff Pension Fund Rules as read with the parties contracts of employment.

Another contentious issue raised by TRIANGLE in opposition to the granting of the relief sought by the applicants…, is that the application was erroneously brought in the name of Godfrey Chiparaushe, a C Band employee of TRIANGLE. It was submitted that the application should have been brought in the name of 58 employees and 9 retirees, broken down as follows:

E Band (senior management) 10 employees 1 retiree

D Band (middle management) 21 employees 1 retiree

C Band (supervisors) 27 employees 7 retirees

The point being made is that in terms of the definition of member in clause 2 of the Triangle Senior Staff Pension Fund Rules those who are retirees are no longer members of the Triangle Senior Staff Pension Fund, a member being a 'person prospectively entitled to any benefits' and a pensioner being a retired Member…,.

TRIANGLE disputes, correctly in my view, the right of the nine retirees to the relief sought.

I find persuasive the argument raised on behalf of TRIANGLE, that the real cause of action concerns the determination of what constitutes basic salary for the purposes of contribution by the employer and the employees to the Triangle Senior Staff Pension Fund (TSSPF). It was submitted that, as such, the real cause of action in the present matter has already accrued to the nine retirees and will accrue to the other applicants when they become entitled to the benefit in terms of the Triangle Senior Staff Pension Fund Rules.

I agree that the nine retirees, having already attained retirement age, and having had their pensions calculated on their retirement dates, have already exercised their right to be paid their cumulative contributions made to that date - the date of retirement. They have exercised their right to be paid a pension upon retirement and declaratur made by the court at this stage cannot apply retrospectively to them in regards to TRIANGLE.

Rules 22 and 29 of the Triangle Senior Staff Pension Fund Rules are clear. The right to have one's pension calculated and paid accrues at the retirement date - no sooner and no later.

(h) Requirements of a Declaratory Order

The applicants seek a declaration of their rights. TRIANGLE is not opposed to the declarations sought by the applicants in terms of (a)-(c) and (d) of the draft order…,.

What is in issue is that the applicants want the court to declare that the pensionable emolument in respect of each applicant shall be his basic annual salary (as used for PAYE, Group Life Assurance and National Social Security calculations, together with any contractual bonus).

The applicants seek the consequential relief that TRIANGLE be directed, forthwith, to re-commence making its contributions towards the balance of the costs of providing benefits towards the applicants on terms of the Triangle Senior Staff Pension Fund Rules as determined by the Triangle Senior Staff Pension Fund actuary, including any arrears which have arisen until such a time as the Triangle Senior Staff Pension Fund has been terminated in accordance with the Triangle Senior Staff Pension Fund Rules.

Finally, the applicants seek an order as to costs.

It is not in dispute that the High Court has jurisdiction to issue a declaratur, in its discretion, at the instance of any interested person, i e. to inquire into and to determine any existing, future, or contingent right or obligation.

It was submitted, correctly in my view, on behalf of the applicants, that the requirements of a declaratur are as follows:

(i) Firstly, that, the issue of a declaratur is not contingent upon there being a possibility of providing consequential relief. The applicants referred the court to the following cases as authority for this proposition;

Munn Publishing (Pvt) Ltd v ZBC 1994 (1) ZLR 337 (S).

(ii) The grant of declaratory relief is discretionary; United Watch & Diamond Co (Pty) Ltd & Ors v Disa Hotels Ltd & Anor.

(iii) In order to qualify for a declaratur, the applicant must be an interested person with a direct and substantial interest in the subject matter of the suit that could be prejudicially affected by the judgment of the court; the interest must relate to an existing, future, or contingent right; the court must not decide abstract, academic or hypothetical questions which are not related to the applicant's interest.

See also Milani & Anor v South African Medical and Dental Council & Anor 1990 (1) SA 889 (T)…,.

(iv) The existence of an actual dispute between persons interested is not a statutory requirement to an exercise of the court's discretion. See Anglo-Transvaal Collieries Ltd v SA Mutual Life Assurance Soc 1977 (3) SA 631 (T)…,.

(v) The availability of another remedy does not preclude does not render the declaratory order incompetent. See Ex Parte Nell 1963 (1) SA 754 (A)…,.; Gelcon Investments (Pvt) Ltd v Adair Properties (Pvt) Ltd 1969 (3) SA 142 (R)…,.

The applicants submitted that, at the next stage of the inquiry, it is incumbent upon the court to decide whether or not the case is a proper one for the exercise of its discretion in terms of section14 of the High Court Act.

What constitutes a proper case has been described as follows:

“…, despite the fact that no consequential relief is being claimed or perhaps could be claimed in the proceedings, yet, nevertheless, justice or convenience demands that a declaration be made, for instance, as to the existence of or as to the nature of a legal right claimed by the applicant or of a legal obligation said to be due by a respondent. I think that a proper case for a purely declaratory order is not made if the result is merely a decision on a matter which is really of mere academic interest to the applicant. I feel that some tangible and justifiable advantage in relation to the applicant's position with reference to an existing, future, or contingent legal right or obligation must appear to flow from the grant of the declaratory order sought.”

See Adbro Investment Co Ltd v Minister of the Interior & Ors 1961 (3) SA 283…,. See also Johnsen v Agricultural Finance Corporation 1995 (1) ZLR 65 (SC)…,.; Exp Chief Immigration Officer 1993 (1) ZLR 122 (S)…,.

TRIANGLE contended that;

(i) The grant of declaratory relief is discretionary and will not be used to usurp the function of another court and cited the case of Khupe v Officer in Charge, Law & Order Section, ZRP, Bulawayo Central & Ors 2005 (2) ZLR 394 (SC)…, as authority for this proposition.

(ii) It was submitted, further, that, the courts will use the power to issue a declaratur sparingly and with utmost caution. See Russian Commercial & Industrial Bank v British Bank for Foreign Trade Ltd [1921] 2 AC 438 (HL)…,. Viscount Finlay.

(iii) It is a power that will only be exercised where there is a good reason for so doing. See Vine v National Dock Labour Board [1957] AC 488 (HL)…,.

TRIANGLE stated that, subject to its rights in terms of the Triangle Senior Staff Pension Fund Rules, it does not challenge the issues raised in the first three paragraphs of the draft order seeking declaratory relief. The other two orders sought were disputed on the basis that the factual and legal basis for such declaratory orders has not been established on the papers.

It was admitted that there is no dispute between the parties as to the rate of deduction from the salaries of the applicants nor that such deductions have been made each month. There is no dispute as to the rate of contribution by TRIANGLE nor as to the fact that TRIANGLE has been making that contribution each month.

It was submitted on behalf of the applicants that there can be no doubt that they are all interested parties, being members of the Triangle Senior Staff Pension Fund (TSSPF) or persons entitled to derive benefits from a member. On that basis, it is argued that they have a direct and substantial interest in the operation, existence, and regulation of the Triangle Senior Staff Pension Fund (TSSPF). In addition, the issues in respect of which a declaratur is sought are not academic and they have a bearing on the existence of the Triangle Senior Staff Pension Fund and on the accrual of the applicants' pension benefits. The applicants view is that there are some tangible and justifiable advantages to be gained by the grant of the declaration in regards to their pension rights.

It is this court's considered view that there is no legal impediment that would preclude the applicants (except for the retirees) from being issued with a declaration in these circumstances.

That leaves the issue of the definition of basic salary for the purposes of calculating pension emoluments as the only real dispute between the parties.

(i) Interdict

In order to obtain a final mandatory interdict (a mandamus), an applicant must show the following requirements:

(i) A clear or definite right - this is a matter of substantive law.

(ii) An injury actually committed or reasonably apprehended - an infringement of the right established and resultant prejudice.

(iii) The absence of similar protection by any other ordinary remedy. The alternative remedy must be:

(a) Adequate in the circumstances.

(b) Be ordinary and reasonable.

(c) Be a legal remedy.

(d) Grant similar protection.

See Tribac (Pvt) Ltd v Tobbacco Marketing Board 1996 (2) ZLR 52 (SC)…,.; Setlogelo v Setlogelo 1914 AD 221…,.; Diepsloot Residents and Landowners Association & Anor v Administrator Transvaal 1994 (3) SA 336 (A)…,.; Kaputuza & Anor v Executive Committee of the Administration for the Heroes & Ors 1984 (4) SA 295 (SWA)…,.

It was contended, on behalf of the applicants, that one of the requirements of a final interdict, a clear right, has been defined by the learned authors HERBSTEIN & Van WINSEN, The Civil Practise of the Supreme Court of South Africa…, as 'a definite right'.

The word 'clear' relates to the degree of proof required to establish the right. The existence of a right is a matter of substantive law. Whether the right is clearly established is a matter of evidence. In order to establish a clear right, the applicant has to prove, on a balance of probabilities, the right that he seeks to protect.

See Devilliers v Soetsane 1975 (1) SA 360 (E); Beukes v Crous 1975 (4) SA 215 (NC)…,.

It was submitted on behalf of the applicants, that, in terms of Rule 17 of the Triangle Senior Staff Pension Fund Rules, they have a clear right to have a compulsory contribution equal to7% of their pensionable emoluments deducted from their basic monthly salary. It was submitted, further, that, in terms of Rule 2 of the Triangle Senior Staff Pension Fund Rules pensionable emolumens are defined as basic annual salary together with any contractual bonus. In terms of Rule 19 of the Triangle Senior Staff Pension Fund Rules the Triangle Senior Staff Pension Fund has an obligation to contribute the balance of the costs of providing the benefits in terms of the Fund Rules, as determined by an actuary, which contribution shall be no less than the compulsory contributions paid by the members….,.

These obligations remain valid and binding for as long as the Triangle Senior Staff Pension Fund (TSSPF) has not been disbanded.

The applicants submitted that TRIANGLE cannot change the definition of a pensionable emolument without amending the provisions of Rule 2 of the Fund Rules. TRIANGLE was charged with 'unilaterally' changing the structure of a Member applicant's remuneration to introduce a new structure of remuneration called “Guaranteed Package” which excludes any mention of how the pensionable emoluments of Member applicants would be dealt with….,. It was argued that Rule 2 of the Triangle Senior Staff Pension Fund Rules includes a Member's basic annual salary and any contractual bonus. It was submitted that Member applicants have a clear right to have their basic salary considered to be their pensionable emoluments, to have 7% deducted therefrom, and to have TRIANGLE pay its share of the monthly contributions into the Triangle Senior Staff Pension Fund (TSSPF).

It was contended, on behalf of TRIANGLE, that the interdict, as claimed, is premised on the false allegation, or, alternatively, the disputed allegation that it is not making its contributions in terms of Rule 19 nor deducting the contribution of the members in terms of Rule 17 of the Triangle Senior Staff Pension Fund Rules. It was submitted that these allegations are incorrect, and, consequently, the requirements of a final interdict had not been met on the papers filed of record.

TRIANGLE relied on the following cases as authority for this proposition;

Nument Security (Pvt) Ltd v Mutoti & Ors 2007 (2) ZLR 300 (SC)…,. See also Stellenbosch Farmers Winery Ltd v Stellenvale Winery (Pty) Ltd 1957 (4) SA 234…,. where the court said that:

“It seems to me that where there is a dispute of facts a final interdict should only be granted in notice of motion proceedings if the facts as stated by the respondents together with the admitted facts in the applicant's affidavits justify such an order.”

I find myself unable to agree with the submissions made on behalf of TRIANGLE that there is a dispute of fact which is incapable of resolution on the papers for reasons previously stated. It was submitted, further, that the proposed interdict confuses the obligations of TRIANGLE under Rule 19 and Rule 41(iii) of the Triangle Senior Staff Pension Fund Rules.

Rule 19 of the Triangle Senior Staff Pension Fund Rules reads:

“Each Employer shall contribute the balance of the costs of providing the benefits in terms of these Rules as determined by the actuary and agreed by the Principal Employer from time to time provided that the Employer's contributions shall not be less that the compulsory contribution by the Members.”

Rule 41(iii) of the Triangle Senior Staff Pension Fund Rules, dealing with actuarial valuation, reads:

“If, as a result of a valuation by an Actuary, the Trustees decide that the benefits laid down in these Rules cannot be adequately financed by the maximum company contribution rate specified by the Principal Employer from time to time, then, notwithstanding the provisions of Rule 45, the benefits shall be reduced or the employee contribution rate increased as the Trustees, with the consent of the Principal Employer, and on the advice of the Actuary, decide.”….,.

The Principal Employer is TRIANGLE.

In this matter, the company contribution rate is 13.5% of each Members' basic salary. It is contended that this fulfills the obligation of TRIANGLE in terms of Rule 19 of the Fund Rules.

I agree with that interpretation of Rule 19 which requires that the employer's contributions be not less than 7%, which is what the employees are contributing. It was submitted on behalf of TRIANGLE that it is not in dispute that at present it is contributing 13.5% of each Member applicant's salary to the Triangle Senior Staff Pension Fund.

Rule 41(ii) allows a variation upwards or downwards of the monthly contributions by the employer and/or by Member applicants, on condition that, after the contributions that are proposed to be varied are valued by an actuary, the Trustees must agree to the proposed variation and TRIANGLE must agree with the decision of the Trustees.

The issue that is taxing the court is that, in these circumstances, there was no such agreement by the Trustees to vary the monthly contributions of the Member applicants or of TRIANGLE, and, consequently, TRIANLGE could not purport to do so in the absence of any agreement to that course of action by the Trustees.

By altering the composition of the Member applicant's basic salary, TRIANGLE caused a ripple effect which varied the calculation of the Member applicants' monthly contributions, as well as TRIANGLE's own monthly contributions, and failed, refused, or neglected to get the consent of the Trustees to the proposed variation.

A deduction of 7% and 13.5% of the Member applicants' basic salary as at January 2009, for onward transmission to the Triangle Senior Staff Pension Fund involves a decision to use Member applicant's January 2009 salaries as a benchmark for the deductions. The Member applicants' salaries as at January 2009 are not the same salaries that they were individually paid when they joined TRIANGLE. Nor is it the same as the salaries that the Member applicants are being paid now. The decision to keep the January 2009 salary benchmark as a basis for calculating the member applicant's pensionable emoluments, requires the approval of the Trustees to bring it into line with Rules 2 and 19 and 41(iii) of the Fund Rules.

In my view, the applicants have proved, on a balance of probabilities, that they have a clear right that they seek to protect;

(i) The right to enforce compliance with the provisions of Rules 2, 19 and 41(iii) of the Triangle Senior Staff Pension Fund Rules;

(ii) The right to have a valuation done by an actuary as to whether their benefits in terms of the Triangle Senior Staff Pension Fund Rules can no longer be adequately financed, and, if so, whether the benefits should be reduced, and, if so, to what extent in regards to the employer and in regards to the Members of the Triangle Senior Staff Pension Fund;

(iii) The right to have the valuation done by an actuary put to the Trustees for consideration;

(iv) The right to have a decision made by the Trustees; and

(v) Finally, the right to have the employer agree or disagree with the decision of the Trustees.

The second requirement for an interdict is an act of interference which is defined as 'injury actually committed or reasonably apprehended'. See Setlogelo v Setlogelo 1914 AD 221.

The word 'injury' must be understood in the wide sense to include any prejudice suffered by an applicant as a result of the infringement of his rights. See HERBSTEIN & Van WINSEN, The Civil Practice of the Supreme Court of South Africa…,. The injury must be a continuing one. The court will not grant an interdict restraining an act already committed for the object of an interdict is the protection of an existing right; it is not a remedy for a past invasion of rights. As authority for this proposition see Performing Right Society Ltd v Berman 1966 (2) SA 355 (R)…,.

The test for apprehension is an objective one. The applicant must show, objectively, that his apprehensions are well grounded. See Ex Parte Lipschitz 1913 CPD 737. The apprehension must be induced by some action performed by the respondent or authorized to be performed by his agent. See Goldsmith v The SA Amalgamated Jewish Press 1929 AD 441.

The applicants contended that TRIANGLE stated that it will not consider the basic salary being paid to the Member applicants as their pensionable emoluments. As evidence of this is the minutes of June 2011 where TRIANGLE stated that:

“…, considering all the events that have taken place over the past few years, for the Triangle Senior Staff Pension Fund (TSSPF) employees to argue that the full cash package should be pensionable is a position that the employer will not reconcile to.”

And minutes of the June 2011 Trustees meeting where the employer communicated a preference for employees to move to the Defined Contribution Fund:

“The Employer has signaled for some time that its preference is for employees to move to a DC Fund for the following reasons (amongst others): The Employer wants to ensure that going forward all employees are treated equitably in terms of their conditions of employment, there is a general move towards remuneration on a 'total package', or 'total cost of employment' basis, and once all employees are on a DC Fund, it would be much easier to ensure fair and equitable treatment of employees in terms of all their respective conditions of employment.”

The applicants' well grounded fear is that, for every month that passes without TRIANGLE complying with its obligations in terms of the Triangle Senior Staff Pension Fund Rules, it is interfering with the accrual of their pension benefits.

It is this court's view that the applicants have successfully discharged the onus on them and adduced sufficient evidence on the papers to show, on a balance of probabilities, that the applicant's fear is well-grounded. An injury of a continuing nature is actually being perpetrated against them. The injury actually committed, which is continuing to be committed, is prejudicing them. The injury is compounded by the fact that TRIANGLE did not bother to cause an actuary to re-evaluate the respective parties' contributions as provided in terms of Rule 41(iii) and Rule 19 of the Triangle Senior Staff Pension Fund Rules.

We are not taken into TRIANGLE's confidence with regards to the basis on which it decided to peg Member applicants' January 2009 salaries as the benchmark for calculating pensionable emoluments.

The third requirement for an interdict is that there be no other satisfactory remedy available to the applicants.

A final interdict is a drastic remedy which is within the discretion of the court. The court will not, in general, grant an interdict when the applicant can obtain adequate redress in some other form of ordinary relief. See Reserve Bank of Rhodesia v Rhodesia Railways 1966 (3) SA 656 (SR). It was held, in this case, that where there is an existing remedy with the same result for the protection of the applicant, an interdict will not be granted.

The applicants submitted that they have no other remedy that can provide them with satisfactory redress in these circumstances. Attempts to have the matter resolved by the Trustees failed. The Commissioner of the Insurance Pension and Provident Fund failed to resolve the dispute. The Labour arbitrator declined jurisdiction. A claim for damages would be inadequate.

It is this court's view that the three requirements of an interdict were met by the applicants.

The final mandatory interdict sought in this matter, in effect, is a direction that TRIANGLE abides by the Rules of the Triangle Senior Staff Pension Fund, more particularly, that it allows the Triangle Senior Staff Pension Fund actuary to determine what the balance of the cost of providing benefits towards the applicants is, in accordance with the Triangle Senior Staff Pension Fund Rules. The mandatory interdict sought is merely an order to TRIANGLE to comply with the Rules of the Triangle Senior Staff Pension Fund, by consulting the Triangle Senior Staff Pension Fund Trustees and actuary, and working with them to achieve consensus in terms of the Triangle Senior Staff Pension Fund Rules. It is accepted, however, as previously stated, that the nine retirees are excluded from the relief granted to the rest of the applicants in regards to the interdict.

(j) Whether the applicants are entitled to the declaratur sought and an interdict in the circumstances

It is common cause that TRIANGLE put in place an arrangement whereby each of its employees received a payment in United States dollars after dollarization in 2009. The arrangement was that each of its employees would receive payment in United States dollars, and, in respect of members of the Triangle Senior Staff Pension Fund who opted to remain with the Triangle Senior Staff Pension Fund, the question of the extent to which any payment or portion of payment in United States dollars was to be treated as a basic salary, and therefore pensionable, remained open.

TRIANGLE then purported to 'restructure' the conditions of employment of its employees, starting with the E Band employees. After negotiations with senior employees, the final restructured package was set out in a letter dated 31 July 2009. The letter carried a caveat that the employees would be advised, in due course, of the extent to which the current cash package would be pensionable. It is common cause that 11 of the E Band employees signed the letter. It was contended on behalf of TRIANGLE that, by accepting the revised remuneration offered each month thereafter 31 July 2009, the employees accepted this position by their conduct.

On 19 January 2009, a similar letter was dispatched to middle management employees, D Band. The letter was prepared by some of the E Band employees. 21 out of the 22 D Band employees signed the letter in acceptance of the 'restructured package'. Thereafter, restructuring of the salaries and other terms of employment of supervisory and skilled staff, C Band employees, was dealt with by way of a letter dated 24 August 2010. 29 out of the 34 C Band employees signed the letter and indicated acceptance of the revised terms.

The applicants contended that these changes to the conditions of employment were imposed unilaterally. It was submitted on behalf of TRIANGLE that the evidence does not support this contention.

I find myself in agreement with the position adopted by TRIANGLE, that the 'restructuring' of the remuneration packages was done in consultation with senior staff, E Band employees. It is common cause that 61 out of the 66 applicants signed acceptance of the new conditions of employment. Subsequently, the employees who had signed the letters received increases in their monthly cash packages which indicate further acceptance of the changes in their contracts. The letter of 16 August 2010 repeated the assertion that the review of the status of Defined Benefit Funds and of the Triangle Senior Staff Pension Fund was still in progress. The applicants continued to accept payment of their 'restructured cash package' on that basis.

Are the applicants bound by an issue estoppel?

In the celebrated case of Ais Enterprises (Finance) (Pty) Ltd v Protea Assurance Co Ltd 1981 (3) SA 274 (A)…, the court had this to say:

“The essence of the doctrine of estoppels by representation is that a person is precluded, i.e. stopped, from denying the truth of a representation previously made by him to another person if the latter, believing in the truth of the representation, acted thereon to his prejudice (see Joubert, The Law of South Africa, Vol 9 para 367 and the authorities there-cited). The representation may be made in words, ie. expressly, or it may be made by conduct, including silence or inaction, i.e. tacitly (ibid para 371); and in general it must relate to an existing fact (ibid para 372).”

I am in agreement with the contention that the essence of the issue in the present matter, and of the problem caused by the relief sought by the applicants, is that they have been paying less than what they should have as a contribution to their pension, 7% of the January 2009 salary and not 7% of the total cash package or total remuneration. Likewise, TRIANGLE has been paying 13.5% of the January 2009 salary as the employer's contribution to the pensions scheme.

The applicants seek that position to change only in relation to TRIANGLE (based on the terms of the mandatory interdict sought) and for a declaratur that their rights to a pension are based on quite a different figure from that on which they have been making payment - but with no corresponding declaration that they have to make a contribution based on their total cash package. This would create gross inequality between the applicants themselves and the nine retirees and cause prejudice to the Triangle Senior Staff Pension Fund and to TRIANGLE. The applicants have not tendered repayment of all the arrears of the difference between that which was paid and 7% of the remuneration received.

For these reasons, it is this court's view that the applicants, by conduct, accepted remuneration between January 2009 and the introduction of the total cash package with the explicit knowledge that TRIANGLE has been paying 13.5% of the January 2009 salary as the employer's contribution to the Triangle Senior Staff Pension Fund (TSSPF). With the introduction of the total cash package the applicants knew that there was no question that the amount being paid to them each month was to be treated as their basic salary, and each of them accepted that position. It was clear to them, and each of them accepted the position, that their pension contributions were based on an amount less than their actual total pay package. By their conduct, in continuing to accept that position, the applicants represented to TRIANGLE their acceptance of what TRIANGLE had determined. It must be borne in mind that, in granting declaratory relief to an interested person, person's interest must concern an 'existing, future or contingent right'.

The court finds that the applicants are estopped from enforcing their existing interests in the Triangle Senior Staff Pension Fund in the sense of recouping arrear contributions from TRIANGLE.

It would have been in the interests of justice to order both parties to pay their mutual arrear contributions to the Triangle Senior Staff Pension Fund had the applicants not accepted, by their conduct, the determination of basic salary by their employer. However, the court sees no reason why the applicants may not be granted consequential relief with regards to their future, or contingent rights. For these reasons the following orders are made:

The applicants are accordingly estopped:

(a) From disputing the right of their employer, TRIANGLE, to determine what portion of their total remuneration package is to constitute basic salary for the purposes of pension contributions and determining their pensionable emoluments between the period January 2009 to the date of this judgment.

(b) From denying that their basic salary in terms of the Triangle Senior Staff Pension Fund Rules is the full amount paid to each of them for the month of January 2009 up to the date of this judgment.

The parties being in agreement on certain issues in respect of which the applicants sought a declaratur, and these declaraturs not having retrospective effect:

IT IS HEREBY DECLARED, WITH THE CONSENT OF THE PARTIES, THAT:

(c) The Triangle Senior Staff Pension Fund is valid and binding in accordance with its Rules.

(d) TRIANGLE LIMITED can only disband the Triangle Senior Staff Pension Fund in accordance with its Rules.

(e) The applicants, who are members of the Triangle Senior Staff Pension Fund (a defined benefit fund), have no obligation to move to the Money Plan (a defined contribution plan).

IT IS HEREBY DECLARED AND IT IS COMMON CAUSE THAT:

(f) TRIANGLE LIMITED has an obligation to deduct 7% of the applicants' basic annual salary as their contribution towards the Triangle Senior Staff Pension Fund (TSSPF) and to meet its share of the contribution towards the Triangle Senior Staff Pension Fund in accordance with Rule 19 of the Triangle Senior Staff Pension Fund Rules.

(g) IT IS HEREBY DECLARED THAT TRIANGLE LIMITED has an obligation to cause the determination of the applicants' basic annual salary for purposes of the calculation of the applicants' pensionable emoluments, from the date of this judgment onwards, in accordance with the Triangle Senior Staff Pension Fund Rules, and, that this obligation shall be discharged in full within (90) ninety days of the date of this order.

(h) CONSEQUENT TO THE ABOVE DECLARATIONS, TRIANGLE is hereby directed, within (90) ninety days of the date of this order, to recommence making its contributions, and to deduct the applicants' contributions for onward transmission to the Triangle Senior Staff Pension Fund (TSSPF), towards the costs of providing benefits towards the applicants in terms of the Triangle Senior Staff Pension Fund's Rules as determined by the Triangle Senior Staff Pension Fund's actuary, and approved by the Triangle Senior Staff Pension Fund Trustees, EXCLUDING any arrears which arose between January 2009 and the date of this order, until such time as the Triangle Senior Staff Pension Fund has been terminated in accordance with the Triangle Senior Staff Pension Fund Rules.

(i) TRIANGLE shall pay the costs of this application.