Pleadings re: Inter-related Proceedings, Cross-Referencing, Record of Proceedings and Off the Record Submissions

This will be the fourth judgment in a series of applications that have been filed by the parties to this dispute.

Evidence of Oath, Evidence Derived from Previous, Concurrent or Criminal Litigation, Perjury & Submissions from the Bar

This will be the fourth judgment in a series of applications that have been filed by the parties to this dispute.

Proceedings Involving Insolvent Entities and the Procedure As To Extant Litigation re: Approach and Leave to Sue

This will be the fourth judgment in a series of applications that have been filed by the parties to this dispute.

The Chamber Application before the court has been styled as a Chamber Application or leave to “litigate” and “institute” action against the first respondent, a company under judicial management.

Whilst on the merits the application may have succeeded, the respondents have raised a number of procedural matters which require consideration by the court before going into the merits of the application.

The applicant prays for an order couched in the following terms:

“(i) That Applicant be granted leave to execute against first respondent's attached 800 harrows.

(ii) That the Applicant be granted leave to institute legal proceedings against 1st Respondent for any further outstanding levies due in terms of section 3 of the Manpower Planning and Development (Levy) Notice, Statutory Instrument 74/99 and any such surcharge imposed from the period starting from August 2011 to the date of this order.

(iii) That 1st Respondent and 2nd Respondent, Mr. Christopher Masani, pay costs of this application jointly and severally each paying the other to be absolved on an attorney and client scale.”

In case number HC3078/11, the applicant sued and obtained judgment against BMA Fasteners for US$9,350=13. The judgment was obtained on 12 January 2012 and a Writ of Execution was issued out of this court on 14 March 2012.

The Deputy Sheriff subsequently placed under judicial attachment harrows belonging to BMA Fasteners.

Efforts to execute the writ were fruitless as the respondents made various applications to stay the sale in execution.

The first respondent has now obtained an order of this court placing it under judicial management. Paragraph (c) of the Order provides as follows:

“All actions and applications and executions of all writs, summons, and other process against the respondent company shall be stayed and not proceeded without the leave of the Honourable Court.”

The application before the court is for leave of this court to execute the Writ issued by this court and to institute further proceedings to recover all due and outstanding levies.

The applicant contends, that, the provisional judicial manager is abusing the due process of the court to frustrate execution of the writs.

The respondents have raised..., points in limine...,.

The respondent also raised a third preliminary issue, arguing that the interim relief sought was not competent.

It shall not be necessary for me to consider this issue, as the matters raised seek to deal with the merits of the application.

Final Orders re: Writ of Execution, Enforcement of Judgments iro Approach, Execution Powers and Superannuated Orders

This will be the fourth judgment in a series of applications that have been filed by the parties to this dispute.

The Chamber Application before the court has been styled as a Chamber Application or leave to “litigate” and “institute” action against the first respondent, a company under judicial management.

Whilst on the merits the application may have succeeded, the respondents have raised a number of procedural matters which require consideration by the court before going into the merits of the application.

The applicant prays for an order couched in the following terms:

“(i) That Applicant be granted leave to execute against first respondent's attached 800 harrows.

(ii) That the Applicant be granted leave to institute legal proceedings against 1st Respondent for any further outstanding levies due in terms of section 3 of the Manpower Planning and Development (Levy) Notice, Statutory Instrument 74/99 and any such surcharge imposed from the period starting from August 2011 to the date of this order.

(iii) That 1st Respondent and 2nd Respondent, Mr. Christopher Masani, pay costs of this application jointly and severally each paying the other to be absolved on an attorney and client scale.”

In case number HC3078/11, the applicant sued and obtained judgment against BMA Fasteners for US$9,350=13. The judgment was obtained on 12 January 2012 and a Writ of Execution was issued out of this court on 14 March 2012.

The Deputy Sheriff subsequently placed under judicial attachment harrows belonging to BMA Fasteners.

Efforts to execute the writ were fruitless as the respondents made various applications to stay the sale in execution.

The first respondent has now obtained an order of this court placing it under judicial management. Paragraph (c) of the Order provides as follows:

“All actions and applications and executions of all writs, summons, and other process against the respondent company shall be stayed and not proceeded without the leave of the Honourable Court.”

The application before the court is for leave of this court to execute the Writ issued by this court and to institute further proceedings to recover all due and outstanding levies.

The applicant contends, that, the provisional judicial manager is abusing the due process of the court to frustrate execution of the writs.

The respondents have raised..., points in limine...,.

The respondent also raised a third preliminary issue, arguing that the interim relief sought was not competent.

It shall not be necessary for me to consider this issue, as the matters raised seek to deal with the merits of the application.

Urgency re: Approach, the Principle of Equality of Treatment & Discretion of the Court to Hear Oral Arguments on Urgency

In terms of Rule 232 of the High Court Rules, a respondent shall be entitled to not less than ten (10) days to file opposing affidavits. In urgent matters, the court may specify a shorter period than ten (10) days....,.

Counsel for the applicant was constrained to accept, that, once a matter is not treated as an Urgent Chamber Application, then, the normal rules regarding time limits given to the respondents ought to have applied.

Cause of Action re: Form, Manner and Nature of Proceedings iro Approach to Application, Motion and Action Proceedings

This will be the fourth judgment in a series of applications that have been filed by the parties to this dispute.

The Chamber Application before the court has been styled as a Chamber Application or leave to “litigate” and “institute” action against the first respondent, a company under judicial management.

Whilst on the merits the application may have succeeded, the respondents have raised a number of procedural matters which require consideration by the court before going into the merits of the application.

The applicant prays for an order couched in the following terms:

“(i) That Applicant be granted leave to execute against first respondent's attached 800 harrows.

(ii) That the Applicant be granted leave to institute legal proceedings against 1st Respondent for any further outstanding levies due in terms of section 3 of the Manpower Planning and Development (Levy) Notice, Statutory Instrument 74/99 and any such surcharge imposed from the period starting from August 2011 to the date of this order.

(iii) That 1st Respondent and 2nd Respondent, Mr. Christopher Masani, pay costs of this application jointly and severally each paying the other to be absolved on an attorney and client scale.”

In case number HC3078/11, the applicant sued and obtained judgment against BMA Fasteners for US$9,350=13. The judgment was obtained on 12 January 2012 and a Writ of Execution was issued out of this court on 14 March 2012.

The Deputy Sheriff subsequently placed under judicial attachment harrows belonging to BMA Fasteners.

Efforts to execute the writ were fruitless as the respondents made various applications to stay the sale in execution.

The first respondent has now obtained an order of this court placing it under judicial management. Paragraph (c) of the Order provides as follows:

“All actions and applications and executions of all writs, summons, and other process against the respondent company shall be stayed and not proceeded without the leave of the Honourable Court.”

The application before the court is for leave of this court to execute the Writ issued by this court and to institute further proceedings to recover all due and outstanding levies.

The applicant contends, that, the provisional judicial manager is abusing the due process of the court to frustrate execution of the writs.

The respondents have raised the following points in limine:

The Form of the Application

It is trite law, that, a Chamber Application must comply with the rules governing Chamber applications. Chamber Applications are provided for by Order 32 Rule 241 of the High Court Rules.

Rule 241(2) of the High Court Rules states, that, where a Chamber Application is to be served on an interested party, it should be in Form No.29 with appropriate modificiations.

In terms of Rule 232 of the High Court Rules, a respondent shall be entitled to not less than ten (10) days to file opposing affidavits. In urgent matters, the court may specify a shorter period than ten (10) days.

Counsel for the applicant contends, that, the proviso in Rule 241(2) of the High Court Rules, that the urgent application “…, shall be in Form No.29 with appropriate modifications” meant that the applicant could vary the period of 10 days to 5 days.

With respect, there is no order of this court granting leave to the applicant leave to give the respondents five (5) days within which to respond.

Counsel for the applicant was constrained to accept, that, once a matter is not treated as an Urgent Chamber Application, then, the normal rules regarding time limits given to the respondents ought to have applied.

The applicant's attempt to vary the period to five (5) days was clearly wrong and fatal to the application.

The provisions of Rule 232 of the High Court Rules apply in that this matter, once it is accepted that this is not an Urgent Chamber Application, a respondent shall be entitled to not less than ten (10) days to file opposing affidavits.

The applicant cannot abridge the time limits within which the respondent is entitled to file the opposing papers without the leave of the court.

See the case of Zimbabwe Open University v Mazambwe 2009 (1) ZLR 101.

The applicant has not adopted the proper form of the application, and, consequently, the court cannot condone departure from the Rules.

In any event, the applicant has not made an application to depart from the Rules.

The application is therefore defective in that regard - and is fatally so.

Rules of Court re: Approach, Abuse of Court Process, Strict and Substantial Compliance & Pleading of Form over Substance

This will be the fourth judgment in a series of applications that have been filed by the parties to this dispute.

The Chamber Application before the court has been styled as a Chamber Application or leave to “litigate” and “institute” action against the first respondent, a company under judicial management.

Whilst on the merits the application may have succeeded, the respondents have raised a number of procedural matters which require consideration by the court before going into the merits of the application.

The applicant prays for an order couched in the following terms:

“(i) That Applicant be granted leave to execute against first respondent's attached 800 harrows.

(ii) That the Applicant be granted leave to institute legal proceedings against 1st Respondent for any further outstanding levies due in terms of section 3 of the Manpower Planning and Development (Levy) Notice, Statutory Instrument 74/99 and any such surcharge imposed from the period starting from August 2011 to the date of this order.

(iii) That 1st Respondent and 2nd Respondent, Mr. Christopher Masani, pay costs of this application jointly and severally each paying the other to be absolved on an attorney and client scale.”

In case number HC3078/11, the applicant sued and obtained judgment against BMA Fasteners for US$9,350=13. The judgment was obtained on 12 January 2012 and a Writ of Execution was issued out of this court on 14 March 2012.

The Deputy Sheriff subsequently placed under judicial attachment harrows belonging to BMA Fasteners.

Efforts to execute the writ were fruitless as the respondents made various applications to stay the sale in execution.

The first respondent has now obtained an order of this court placing it under judicial management. Paragraph (c) of the Order provides as follows:

“All actions and applications and executions of all writs, summons, and other process against the respondent company shall be stayed and not proceeded without the leave of the Honourable Court.”

The application before the court is for leave of this court to execute the Writ issued by this court and to institute further proceedings to recover all due and outstanding levies.

The applicant contends, that, the provisional judicial manager is abusing the due process of the court to frustrate execution of the writs.

The respondents have raised the following points in limine:

The Form of the Application

It is trite law, that, a Chamber Application must comply with the rules governing Chamber applications. Chamber Applications are provided for by Order 32 Rule 241 of the High Court Rules.

Rule 241(2) of the High Court Rules states, that, where a Chamber Application is to be served on an interested party, it should be in Form No.29 with appropriate modificiations.

In terms of Rule 232 of the High Court Rules, a respondent shall be entitled to not less than ten (10) days to file opposing affidavits. In urgent matters, the court may specify a shorter period than ten (10) days.

Counsel for the applicant contends, that, the proviso in Rule 241(2) of the High Court Rules, that the urgent application “…, shall be in Form No.29 with appropriate modifications” meant that the applicant could vary the period of 10 days to 5 days.

With respect, there is no order of this court granting leave to the applicant leave to give the respondents five (5) days within which to respond.

Counsel for the applicant was constrained to accept, that, once a matter is not treated as an Urgent Chamber Application, then, the normal rules regarding time limits given to the respondents ought to have applied.

The applicant's attempt to vary the period to five (5) days was clearly wrong and fatal to the application.

The provisions of Rule 232 of the High Court Rules apply in that this matter, once it is accepted that this is not an Urgent Chamber Application, a respondent shall be entitled to not less than ten (10) days to file opposing affidavits.

The applicant cannot abridge the time limits within which the respondent is entitled to file the opposing papers without the leave of the court.

See the case of Zimbabwe Open University v Mazambwe 2009 (1) ZLR 101.

The applicant has not adopted the proper form of the application, and, consequently, the court cannot condone departure from the Rules.

In any event, the applicant has not made an application to depart from the Rules.

The application is therefore defective in that regard - and is fatally so.

Cause of Action and Draft Orders re: Appearance to Defend, Filing of Opposition Papers & Set Down of Matters

This will be the fourth judgment in a series of applications that have been filed by the parties to this dispute.

The Chamber Application before the court has been styled as a Chamber Application or leave to “litigate” and “institute” action against the first respondent, a company under judicial management.

Whilst on the merits the application may have succeeded, the respondents have raised a number of procedural matters which require consideration by the court before going into the merits of the application.

The applicant prays for an order couched in the following terms:

“(i) That Applicant be granted leave to execute against first respondent's attached 800 harrows.

(ii) That the Applicant be granted leave to institute legal proceedings against 1st Respondent for any further outstanding levies due in terms of section 3 of the Manpower Planning and Development (Levy) Notice, Statutory Instrument 74/99 and any such surcharge imposed from the period starting from August 2011 to the date of this order.

(iii) That 1st Respondent and 2nd Respondent, Mr. Christopher Masani, pay costs of this application jointly and severally each paying the other to be absolved on an attorney and client scale.”

In case number HC3078/11, the applicant sued and obtained judgment against BMA Fasteners for US$9,350=13. The judgment was obtained on 12 January 2012 and a Writ of Execution was issued out of this court on 14 March 2012.

The Deputy Sheriff subsequently placed under judicial attachment harrows belonging to BMA Fasteners.

Efforts to execute the writ were fruitless as the respondents made various applications to stay the sale in execution.

The first respondent has now obtained an order of this court placing it under judicial management. Paragraph (c) of the Order provides as follows:

“All actions and applications and executions of all writs, summons, and other process against the respondent company shall be stayed and not proceeded without the leave of the Honourable Court.”

The application before the court is for leave of this court to execute the Writ issued by this court and to institute further proceedings to recover all due and outstanding levies.

The applicant contends, that, the provisional judicial manager is abusing the due process of the court to frustrate execution of the writs.

The respondents have raised the following points in limine:

The Form of the Application

It is trite law, that, a Chamber Application must comply with the rules governing Chamber applications. Chamber Applications are provided for by Order 32 Rule 241 of the High Court Rules.

Rule 241(2) of the High Court Rules states, that, where a Chamber Application is to be served on an interested party, it should be in Form No.29 with appropriate modificiations.

In terms of Rule 232 of the High Court Rules, a respondent shall be entitled to not less than ten (10) days to file opposing affidavits. In urgent matters, the court may specify a shorter period than ten (10) days.

Counsel for the applicant contends, that, the proviso in Rule 241(2) of the High Court Rules, that the urgent application “…, shall be in Form No.29 with appropriate modifications” meant that the applicant could vary the period of 10 days to 5 days.

With respect, there is no order of this court granting leave to the applicant leave to give the respondents five (5) days within which to respond.

Counsel for the applicant was constrained to accept, that, once a matter is not treated as an Urgent Chamber Application, then, the normal rules regarding time limits given to the respondents ought to have applied.

The applicant's attempt to vary the period to five (5) days was clearly wrong and fatal to the application.

The provisions of Rule 232 of the High Court Rules apply in that this matter, once it is accepted that this is not an Urgent Chamber Application, a respondent shall be entitled to not less than ten (10) days to file opposing affidavits.

The applicant cannot abridge the time limits within which the respondent is entitled to file the opposing papers without the leave of the court.

See the case of Zimbabwe Open University v Mazambwe 2009 (1) ZLR 101.

The applicant has not adopted the proper form of the application, and, consequently, the court cannot condone departure from the Rules.

In any event, the applicant has not made an application to depart from the Rules.

The application is therefore defective in that regard - and is fatally so.

Founding, Opposing, Supporting and Answering Affidavits re: Deponent, Representative Authority & Affidavit of Collegiality

This will be the fourth judgment in a series of applications that have been filed by the parties to this dispute.

The Chamber Application before the court has been styled as a Chamber Application or leave to “litigate” and “institute” action against the first respondent, a company under judicial management.

Whilst on the merits the application may have succeeded, the respondents have raised a number of procedural matters which require consideration by the court before going into the merits of the application.

The applicant prays for an order couched in the following terms:

“(i) That Applicant be granted leave to execute against first respondent's attached 800 harrows.

(ii) That the Applicant be granted leave to institute legal proceedings against 1st Respondent for any further outstanding levies due in terms of section 3 of the Manpower Planning and Development (Levy) Notice, Statutory Instrument 74/99 and any such surcharge imposed from the period starting from August 2011 to the date of this order.

(iii) That 1st Respondent and 2nd Respondent, Mr. Christopher Masani, pay costs of this application jointly and severally each paying the other to be absolved on an attorney and client scale.”

In case number HC3078/11, the applicant sued and obtained judgment against BMA Fasteners for US$9,350=13. The judgment was obtained on 12 January 2012 and a Writ of Execution was issued out of this court on 14 March 2012.

The Deputy Sheriff subsequently placed under judicial attachment harrows belonging to BMA Fasteners.

Efforts to execute the writ were fruitless as the respondents made various applications to stay the sale in execution.

The first respondent has now obtained an order of this court placing it under judicial management. Paragraph (c) of the Order provides as follows:

“All actions and applications and executions of all writs, summons, and other process against the respondent company shall be stayed and not proceeded without the leave of the Honourable Court.”

The application before the court is for leave of this court to execute the Writ issued by this court and to institute further proceedings to recover all due and outstanding levies.

The applicant contends, that, the provisional judicial manager is abusing the due process of the court to frustrate execution of the writs.

The respondents have raised the following points in limine:...,.

Authority to institute proceedings

The founding affidavit was deposed to by one Nyasha Njowa, who is a Regional Manager employed by the Zimbabwe Manpower Development Fund.

The deponent claims to derive his authority from a letter dated 23 July 2002. The letter is signed by Dr Washington Mbizvo, the Permanent Secretary in the Ministry of Higher and Tertiary Education.

The said letter purports to confirm that the deponent is authorised to represent the Minister in any litigation for the recovery of outstanding training levies.

The letter is not written by the Minister, who, in terms of the Act, is authorised to act on behalf of the Ministry.

No proof was placed before the court to establish that the said Nyasha Njowa was authorised by the Minister to institute legal proceedings.

There was equally no proof to show, that, the Permanent Secretary in the Ministry was authorised by the Minister to act in the manner he did.

It seems to me to be quite clear, that, the founding affidavit was improperly secured in that there was no legal basis upon which Nyasha Njowa could purport to represent the Minister in these proceedings.

The maxim delegatus non potest delegare would apply to the circumstances of the matter before the court: in other words, the Permanent Secretary could not delegate authority to sue even if it were proved that he was himself properly authorised.

See Mhanyami Fishing and TSPT Co-op Soc Ltd v Director General, Parks and Wildlife Management Authority and Others 2011 (1) ZLR 555.

The applicant failed to prove, that, Nyasha Njowa was properly authorised to depose to the founding affidavit, and, for that reason, the application cannot survive this second preliminary point.

Locus Standi re: Approach and the Legal Capacity to Institute or Defend Legal Proceedings

This will be the fourth judgment in a series of applications that have been filed by the parties to this dispute.

The Chamber Application before the court has been styled as a Chamber Application or leave to “litigate” and “institute” action against the first respondent, a company under judicial management.

Whilst on the merits the application may have succeeded, the respondents have raised a number of procedural matters which require consideration by the court before going into the merits of the application.

The applicant prays for an order couched in the following terms:

“(i) That Applicant be granted leave to execute against first respondent's attached 800 harrows.

(ii) That the Applicant be granted leave to institute legal proceedings against 1st Respondent for any further outstanding levies due in terms of section 3 of the Manpower Planning and Development (Levy) Notice, Statutory Instrument 74/99 and any such surcharge imposed from the period starting from August 2011 to the date of this order.

(iii) That 1st Respondent and 2nd Respondent, Mr. Christopher Masani, pay costs of this application jointly and severally each paying the other to be absolved on an attorney and client scale.”

In case number HC3078/11, the applicant sued and obtained judgment against BMA Fasteners for US$9,350=13. The judgment was obtained on 12 January 2012 and a Writ of Execution was issued out of this court on 14 March 2012.

The Deputy Sheriff subsequently placed under judicial attachment harrows belonging to BMA Fasteners.

Efforts to execute the writ were fruitless as the respondents made various applications to stay the sale in execution.

The first respondent has now obtained an order of this court placing it under judicial management. Paragraph (c) of the Order provides as follows:

“All actions and applications and executions of all writs, summons, and other process against the respondent company shall be stayed and not proceeded without the leave of the Honourable Court.”

The application before the court is for leave of this court to execute the Writ issued by this court and to institute further proceedings to recover all due and outstanding levies.

The applicant contends, that, the provisional judicial manager is abusing the due process of the court to frustrate execution of the writs.

The respondents have raised the following points in limine:...,.

Authority to institute proceedings

The founding affidavit was deposed to by one Nyasha Njowa, who is a Regional Manager employed by the Zimbabwe Manpower Development Fund.

The deponent claims to derive his authority from a letter dated 23 July 2002. The letter is signed by Dr Washington Mbizvo, the Permanent Secretary in the Ministry of Higher and Tertiary Education.

The said letter purports to confirm that the deponent is authorised to represent the Minister in any litigation for the recovery of outstanding training levies.

The letter is not written by the Minister, who, in terms of the Act, is authorised to act on behalf of the Ministry.

No proof was placed before the court to establish that the said Nyasha Njowa was authorised by the Minister to institute legal proceedings.

There was equally no proof to show, that, the Permanent Secretary in the Ministry was authorised by the Minister to act in the manner he did.

It seems to me to be quite clear, that, the founding affidavit was improperly secured in that there was no legal basis upon which Nyasha Njowa could purport to represent the Minister in these proceedings.

The maxim delegatus non potest delegare would apply to the circumstances of the matter before the court: in other words, the Permanent Secretary could not delegate authority to sue even if it were proved that he was himself properly authorised.

See Mhanyami Fishing and TSPT Co-op Soc Ltd v Director General, Parks and Wildlife Management Authority and Others 2011 (1) ZLR 555.

The applicant failed to prove, that, Nyasha Njowa was properly authorised to depose to the founding affidavit, and, for that reason, the application cannot survive this second preliminary point.

Agency Law re: Acting For Another iro Power of Attorney, Resolutions, Proxy, Negotiorum Gestio, Conduct & Derivative Action

This will be the fourth judgment in a series of applications that have been filed by the parties to this dispute.

The Chamber Application before the court has been styled as a Chamber Application or leave to “litigate” and “institute” action against the first respondent, a company under judicial management.

Whilst on the merits the application may have succeeded, the respondents have raised a number of procedural matters which require consideration by the court before going into the merits of the application.

The applicant prays for an order couched in the following terms:

“(i) That Applicant be granted leave to execute against first respondent's attached 800 harrows.

(ii) That the Applicant be granted leave to institute legal proceedings against 1st Respondent for any further outstanding levies due in terms of section 3 of the Manpower Planning and Development (Levy) Notice, Statutory Instrument 74/99 and any such surcharge imposed from the period starting from August 2011 to the date of this order.

(iii) That 1st Respondent and 2nd Respondent, Mr. Christopher Masani, pay costs of this application jointly and severally each paying the other to be absolved on an attorney and client scale.”

In case number HC3078/11, the applicant sued and obtained judgment against BMA Fasteners for US$9,350=13. The judgment was obtained on 12 January 2012 and a Writ of Execution was issued out of this court on 14 March 2012.

The Deputy Sheriff subsequently placed under judicial attachment harrows belonging to BMA Fasteners.

Efforts to execute the writ were fruitless as the respondents made various applications to stay the sale in execution.

The first respondent has now obtained an order of this court placing it under judicial management. Paragraph (c) of the Order provides as follows:

“All actions and applications and executions of all writs, summons, and other process against the respondent company shall be stayed and not proceeded without the leave of the Honourable Court.”

The application before the court is for leave of this court to execute the Writ issued by this court and to institute further proceedings to recover all due and outstanding levies.

The applicant contends, that, the provisional judicial manager is abusing the due process of the court to frustrate execution of the writs.

The respondents have raised the following points in limine:...,.

Authority to institute proceedings

The founding affidavit was deposed to by one Nyasha Njowa, who is a Regional Manager employed by the Zimbabwe Manpower Development Fund.

The deponent claims to derive his authority from a letter dated 23 July 2002. The letter is signed by Dr Washington Mbizvo, the Permanent Secretary in the Ministry of Higher and Tertiary Education.

The said letter purports to confirm that the deponent is authorised to represent the Minister in any litigation for the recovery of outstanding training levies.

The letter is not written by the Minister, who, in terms of the Act, is authorised to act on behalf of the Ministry.

No proof was placed before the court to establish that the said Nyasha Njowa was authorised by the Minister to institute legal proceedings.

There was equally no proof to show, that, the Permanent Secretary in the Ministry was authorised by the Minister to act in the manner he did.

It seems to me to be quite clear, that, the founding affidavit was improperly secured in that there was no legal basis upon which Nyasha Njowa could purport to represent the Minister in these proceedings.

The maxim delegatus non potest delegare would apply to the circumstances of the matter before the court: in other words, the Permanent Secretary could not delegate authority to sue even if it were proved that he was himself properly authorised.

See Mhanyami Fishing and TSPT Co-op Soc Ltd v Director General, Parks and Wildlife Management Authority and Others 2011 (1) ZLR 555.

The applicant failed to prove, that, Nyasha Njowa was properly authorised to depose to the founding affidavit, and, for that reason, the application cannot survive this second preliminary point.

Administrative Law re: Approach iro Delegated Authority

This will be the fourth judgment in a series of applications that have been filed by the parties to this dispute.

The Chamber Application before the court has been styled as a Chamber Application or leave to “litigate” and “institute” action against the first respondent, a company under judicial management.

Whilst on the merits the application may have succeeded, the respondents have raised a number of procedural matters which require consideration by the court before going into the merits of the application.

The applicant prays for an order couched in the following terms:

“(i) That Applicant be granted leave to execute against first respondent's attached 800 harrows.

(ii) That the Applicant be granted leave to institute legal proceedings against 1st Respondent for any further outstanding levies due in terms of section 3 of the Manpower Planning and Development (Levy) Notice, Statutory Instrument 74/99 and any such surcharge imposed from the period starting from August 2011 to the date of this order.

(iii) That 1st Respondent and 2nd Respondent, Mr. Christopher Masani, pay costs of this application jointly and severally each paying the other to be absolved on an attorney and client scale.”

In case number HC3078/11, the applicant sued and obtained judgment against BMA Fasteners for US$9,350=13. The judgment was obtained on 12 January 2012 and a Writ of Execution was issued out of this court on 14 March 2012.

The Deputy Sheriff subsequently placed under judicial attachment harrows belonging to BMA Fasteners.

Efforts to execute the writ were fruitless as the respondents made various applications to stay the sale in execution.

The first respondent has now obtained an order of this court placing it under judicial management. Paragraph (c) of the Order provides as follows:

“All actions and applications and executions of all writs, summons, and other process against the respondent company shall be stayed and not proceeded without the leave of the Honourable Court.”

The application before the court is for leave of this court to execute the Writ issued by this court and to institute further proceedings to recover all due and outstanding levies.

The applicant contends, that, the provisional judicial manager is abusing the due process of the court to frustrate execution of the writs.

The respondents have raised the following points in limine:...,.

Authority to institute proceedings

The founding affidavit was deposed to by one Nyasha Njowa, who is a Regional Manager employed by the Zimbabwe Manpower Development Fund.

The deponent claims to derive his authority from a letter dated 23 July 2002. The letter is signed by Dr Washington Mbizvo, the Permanent Secretary in the Ministry of Higher and Tertiary Education.

The said letter purports to confirm that the deponent is authorised to represent the Minister in any litigation for the recovery of outstanding training levies.

The letter is not written by the Minister, who, in terms of the Act, is authorised to act on behalf of the Ministry.

No proof was placed before the court to establish that the said Nyasha Njowa was authorised by the Minister to institute legal proceedings.

There was equally no proof to show, that, the Permanent Secretary in the Ministry was authorised by the Minister to act in the manner he did.

It seems to me to be quite clear, that, the founding affidavit was improperly secured in that there was no legal basis upon which Nyasha Njowa could purport to represent the Minister in these proceedings.

The maxim delegatus non potest delegare would apply to the circumstances of the matter before the court: in other words, the Permanent Secretary could not delegate authority to sue even if it were proved that he was himself properly authorised.

See Mhanyami Fishing and TSPT Co-op Soc Ltd v Director General, Parks and Wildlife Management Authority and Others 2011 (1) ZLR 555.

The applicant failed to prove, that, Nyasha Njowa was properly authorised to depose to the founding affidavit, and, for that reason, the application cannot survive this second preliminary point.

Documentary Evidence re: Caveat Subscriptor Rule iro Effect of Representative Signations

This will be the fourth judgment in a series of applications that have been filed by the parties to this dispute.

The Chamber Application before the court has been styled as a Chamber Application or leave to “litigate” and “institute” action against the first respondent, a company under judicial management.

Whilst on the merits the application may have succeeded, the respondents have raised a number of procedural matters which require consideration by the court before going into the merits of the application.

The applicant prays for an order couched in the following terms:

“(i) That Applicant be granted leave to execute against first respondent's attached 800 harrows.

(ii) That the Applicant be granted leave to institute legal proceedings against 1st Respondent for any further outstanding levies due in terms of section 3 of the Manpower Planning and Development (Levy) Notice, Statutory Instrument 74/99 and any such surcharge imposed from the period starting from August 2011 to the date of this order.

(iii) That 1st Respondent and 2nd Respondent, Mr. Christopher Masani, pay costs of this application jointly and severally each paying the other to be absolved on an attorney and client scale.”

In case number HC3078/11, the applicant sued and obtained judgment against BMA Fasteners for US$9,350=13. The judgment was obtained on 12 January 2012 and a Writ of Execution was issued out of this court on 14 March 2012.

The Deputy Sheriff subsequently placed under judicial attachment harrows belonging to BMA Fasteners.

Efforts to execute the writ were fruitless as the respondents made various applications to stay the sale in execution.

The first respondent has now obtained an order of this court placing it under judicial management. Paragraph (c) of the Order provides as follows:

“All actions and applications and executions of all writs, summons, and other process against the respondent company shall be stayed and not proceeded without the leave of the Honourable Court.”

The application before the court is for leave of this court to execute the Writ issued by this court and to institute further proceedings to recover all due and outstanding levies.

The applicant contends, that, the provisional judicial manager is abusing the due process of the court to frustrate execution of the writs.

The respondents have raised the following points in limine:...,.

Authority to institute proceedings

The founding affidavit was deposed to by one Nyasha Njowa, who is a Regional Manager employed by the Zimbabwe Manpower Development Fund.

The deponent claims to derive his authority from a letter dated 23 July 2002. The letter is signed by Dr Washington Mbizvo, the Permanent Secretary in the Ministry of Higher and Tertiary Education.

The said letter purports to confirm that the deponent is authorised to represent the Minister in any litigation for the recovery of outstanding training levies.

The letter is not written by the Minister, who, in terms of the Act, is authorised to act on behalf of the Ministry.

No proof was placed before the court to establish that the said Nyasha Njowa was authorised by the Minister to institute legal proceedings.

There was equally no proof to show, that, the Permanent Secretary in the Ministry was authorised by the Minister to act in the manner he did.

It seems to me to be quite clear, that, the founding affidavit was improperly secured in that there was no legal basis upon which Nyasha Njowa could purport to represent the Minister in these proceedings.

The maxim delegatus non potest delegare would apply to the circumstances of the matter before the court: in other words, the Permanent Secretary could not delegate authority to sue even if it were proved that he was himself properly authorised.

See Mhanyami Fishing and TSPT Co-op Soc Ltd v Director General, Parks and Wildlife Management Authority and Others 2011 (1) ZLR 555.

The applicant failed to prove, that, Nyasha Njowa was properly authorised to depose to the founding affidavit, and, for that reason, the application cannot survive this second preliminary point.

Onus, Burden and Standard of Proof re: Evidential Standard and Burden of Proof iro Factual Issues in Doubt

This will be the fourth judgment in a series of applications that have been filed by the parties to this dispute.

The Chamber Application before the court has been styled as a Chamber Application or leave to “litigate” and “institute” action against the first respondent, a company under judicial management.

Whilst on the merits the application may have succeeded, the respondents have raised a number of procedural matters which require consideration by the court before going into the merits of the application.

The applicant prays for an order couched in the following terms:

“(i) That Applicant be granted leave to execute against first respondent's attached 800 harrows.

(ii) That the Applicant be granted leave to institute legal proceedings against 1st Respondent for any further outstanding levies due in terms of section 3 of the Manpower Planning and Development (Levy) Notice, Statutory Instrument 74/99 and any such surcharge imposed from the period starting from August 2011 to the date of this order.

(iii) That 1st Respondent and 2nd Respondent, Mr. Christopher Masani, pay costs of this application jointly and severally each paying the other to be absolved on an attorney and client scale.”

In case number HC3078/11, the applicant sued and obtained judgment against BMA Fasteners for US$9,350=13. The judgment was obtained on 12 January 2012 and a Writ of Execution was issued out of this court on 14 March 2012.

The Deputy Sheriff subsequently placed under judicial attachment harrows belonging to BMA Fasteners.

Efforts to execute the writ were fruitless as the respondents made various applications to stay the sale in execution.

The first respondent has now obtained an order of this court placing it under judicial management. Paragraph (c) of the Order provides as follows:

“All actions and applications and executions of all writs, summons, and other process against the respondent company shall be stayed and not proceeded without the leave of the Honourable Court.”

The application before the court is for leave of this court to execute the Writ issued by this court and to institute further proceedings to recover all due and outstanding levies.

The applicant contends, that, the provisional judicial manager is abusing the due process of the court to frustrate execution of the writs.

The respondents have raised the following points in limine:...,.

Authority to institute proceedings

The founding affidavit was deposed to by one Nyasha Njowa, who is a Regional Manager employed by the Zimbabwe Manpower Development Fund.

The deponent claims to derive his authority from a letter dated 23 July 2002. The letter is signed by Dr Washington Mbizvo, the Permanent Secretary in the Ministry of Higher and Tertiary Education.

The said letter purports to confirm that the deponent is authorised to represent the Minister in any litigation for the recovery of outstanding training levies.

The letter is not written by the Minister, who, in terms of the Act, is authorised to act on behalf of the Ministry.

No proof was placed before the court to establish that the said Nyasha Njowa was authorised by the Minister to institute legal proceedings.

There was equally no proof to show, that, the Permanent Secretary in the Ministry was authorised by the Minister to act in the manner he did.

It seems to me to be quite clear, that, the founding affidavit was improperly secured in that there was no legal basis upon which Nyasha Njowa could purport to represent the Minister in these proceedings.

The maxim delegatus non potest delegare would apply to the circumstances of the matter before the court: in other words, the Permanent Secretary could not delegate authority to sue even if it were proved that he was himself properly authorised.

See Mhanyami Fishing and TSPT Co-op Soc Ltd v Director General, Parks and Wildlife Management Authority and Others 2011 (1) ZLR 555.

The applicant failed to prove, that, Nyasha Njowa was properly authorised to depose to the founding affidavit, and, for that reason, the application cannot survive this second preliminary point.

Final Orders re: Procedural Irregularities and Discretion of Court to Condone, Interfere, Dismiss, Remit, Strike or Remove

This will be the fourth judgment in a series of applications that have been filed by the parties to this dispute.

The Chamber Application before the court has been styled as a Chamber Application or leave to “litigate” and “institute” action against the first respondent, a company under judicial management.

Whilst on the merits the application may have succeeded, the respondents have raised a number of procedural matters which require consideration by the court before going into the merits of the application.

The applicant prays for an order couched in the following terms:

“(i) That Applicant be granted leave to execute against first respondent's attached 800 harrows.

(ii) That the Applicant be granted leave to institute legal proceedings against 1st Respondent for any further outstanding levies due in terms of section 3 of the Manpower Planning and Development (Levy) Notice, Statutory Instrument 74/99 and any such surcharge imposed from the period starting from August 2011 to the date of this order.

(iii) That 1st Respondent and 2nd Respondent, Mr. Christopher Masani, pay costs of this application jointly and severally each paying the other to be absolved on an attorney and client scale.”

In case number HC3078/11, the applicant sued and obtained judgment against BMA Fasteners for US$9,350=13. The judgment was obtained on 12 January 2012 and a Writ of Execution was issued out of this court on 14 March 2012.

The Deputy Sheriff subsequently placed under judicial attachment harrows belonging to BMA Fasteners.

Efforts to execute the writ were fruitless as the respondents made various applications to stay the sale in execution.

The first respondent has now obtained an order of this court placing it under judicial management. Paragraph (c) of the Order provides as follows:

“All actions and applications and executions of all writs, summons, and other process against the respondent company shall be stayed and not proceeded without the leave of the Honourable Court.”

The application before the court is for leave of this court to execute the Writ issued by this court and to institute further proceedings to recover all due and outstanding levies.

The applicant contends, that, the provisional judicial manager is abusing the due process of the court to frustrate execution of the writs.

The respondents have raised the following points in limine:

The Form of the Application

It is trite law, that, a Chamber Application must comply with the rules governing Chamber applications. Chamber Applications are provided for by Order 32 Rule 241 of the High Court Rules.

Rule 241(2) of the High Court Rules states, that, where a Chamber Application is to be served on an interested party, it should be in Form No.29 with appropriate modificiations.

In terms of Rule 232 of the High Court Rules, a respondent shall be entitled to not less than ten (10) days to file opposing affidavits. In urgent matters, the court may specify a shorter period than ten (10) days.

Counsel for the applicant contends, that, the proviso in Rule 241(2) of the High Court Rules, that the urgent application “…, shall be in Form No.29 with appropriate modifications” meant that the applicant could vary the period of 10 days to 5 days.

With respect, there is no order of this court granting leave to the applicant leave to give the respondents five (5) days within which to respond.

Counsel for the applicant was constrained to accept, that, once a matter is not treated as an Urgent Chamber Application, then, the normal rules regarding time limits given to the respondents ought to have applied.

The applicant's attempt to vary the period to five (5) days was clearly wrong and fatal to the application.

The provisions of Rule 232 of the High Court Rules apply in that this matter, once it is accepted that this is not an Urgent Chamber Application, a respondent shall be entitled to not less than ten (10) days to file opposing affidavits.

The applicant cannot abridge the time limits within which the respondent is entitled to file the opposing papers without the leave of the court.

See the case of Zimbabwe Open University v Mazambwe 2009 (1) ZLR 101.

The applicant has not adopted the proper form of the application, and, consequently, the court cannot condone departure from the Rules.

In any event, the applicant has not made an application to depart from the Rules.

The application is therefore defective in that regard - and is fatally so.

Authority to institute proceedings

The founding affidavit was deposed to by one Nyasha Njowa, who is a Regional Manager employed by the Zimbabwe Manpower Development Fund.

The deponent claims to derive his authority from a letter dated 23 July 2002. The letter is signed by Dr Washington Mbizvo, the Permanent Secretary in the Ministry of Higher and Tertiary Education.

The said letter purports to confirm that the deponent is authorised to represent the Minister in any litigation for the recovery of outstanding training levies.

The letter is not written by the Minister, who, in terms of the Act, is authorised to act on behalf of the Ministry.

No proof was placed before the court to establish that the said Nyasha Njowa was authorised by the Minister to institute legal proceedings.

There was equally no proof to show, that, the Permanent Secretary in the Ministry was authorised by the Minister to act in the manner he did.

It seems to me to be quite clear, that, the founding affidavit was improperly secured in that there was no legal basis upon which Nyasha Njowa could purport to represent the Minister in these proceedings.

The maxim delegatus non potest delegare would apply to the circumstances of the matter before the court: in other words, the Permanent Secretary could not delegate authority to sue even if it were proved that he was himself properly authorised.

See Mhanyami Fishing and TSPT Co-op Soc Ltd v Director General, Parks and Wildlife Management Authority and Others 2011 (1) ZLR 555.

The applicant failed to prove, that, Nyasha Njowa was properly authorised to depose to the founding affidavit, and, for that reason, the application cannot survive this second preliminary point.

The respondent also raised a third preliminary issue, arguing that the interim relief sought was not competent.

It shall not be necessary for me to consider this issue, as the matters raised seek to deal with the merits of the application.

In the result, I accordingly, uphold the points in limine and dismiss the application with costs on the ordinary scale.

Pleadings re: Nullity of Proceedings or Acts, Peremptory Provisions & the Doctrines of Strict and Substantial Compliance

This will be the fourth judgment in a series of applications that have been filed by the parties to this dispute.

The Chamber Application before the court has been styled as a Chamber Application or leave to “litigate” and “institute” action against the first respondent, a company under judicial management.

Whilst on the merits the application may have succeeded, the respondents have raised a number of procedural matters which require consideration by the court before going into the merits of the application.

The applicant prays for an order couched in the following terms:

“(i) That Applicant be granted leave to execute against first respondent's attached 800 harrows.

(ii) That the Applicant be granted leave to institute legal proceedings against 1st Respondent for any further outstanding levies due in terms of section 3 of the Manpower Planning and Development (Levy) Notice, Statutory Instrument 74/99 and any such surcharge imposed from the period starting from August 2011 to the date of this order.

(iii) That 1st Respondent and 2nd Respondent, Mr. Christopher Masani, pay costs of this application jointly and severally each paying the other to be absolved on an attorney and client scale.”

In case number HC3078/11, the applicant sued and obtained judgment against BMA Fasteners for US$9,350=13. The judgment was obtained on 12 January 2012 and a Writ of Execution was issued out of this court on 14 March 2012.

The Deputy Sheriff subsequently placed under judicial attachment harrows belonging to BMA Fasteners.

Efforts to execute the writ were fruitless as the respondents made various applications to stay the sale in execution.

The first respondent has now obtained an order of this court placing it under judicial management. Paragraph (c) of the Order provides as follows:

“All actions and applications and executions of all writs, summons, and other process against the respondent company shall be stayed and not proceeded without the leave of the Honourable Court.”

The application before the court is for leave of this court to execute the Writ issued by this court and to institute further proceedings to recover all due and outstanding levies.

The applicant contends, that, the provisional judicial manager is abusing the due process of the court to frustrate execution of the writs.

The respondents have raised the following points in limine:

The Form of the Application

It is trite law, that, a Chamber Application must comply with the rules governing Chamber applications. Chamber Applications are provided for by Order 32 Rule 241 of the High Court Rules.

Rule 241(2) of the High Court Rules states, that, where a Chamber Application is to be served on an interested party, it should be in Form No.29 with appropriate modificiations.

In terms of Rule 232 of the High Court Rules, a respondent shall be entitled to not less than ten (10) days to file opposing affidavits. In urgent matters, the court may specify a shorter period than ten (10) days.

Counsel for the applicant contends, that, the proviso in Rule 241(2) of the High Court Rules, that the urgent application “…, shall be in Form No.29 with appropriate modifications” meant that the applicant could vary the period of 10 days to 5 days.

With respect, there is no order of this court granting leave to the applicant leave to give the respondents five (5) days within which to respond.

Counsel for the applicant was constrained to accept, that, once a matter is not treated as an Urgent Chamber Application, then, the normal rules regarding time limits given to the respondents ought to have applied.

The applicant's attempt to vary the period to five (5) days was clearly wrong and fatal to the application.

The provisions of Rule 232 of the High Court Rules apply in that this matter, once it is accepted that this is not an Urgent Chamber Application, a respondent shall be entitled to not less than ten (10) days to file opposing affidavits.

The applicant cannot abridge the time limits within which the respondent is entitled to file the opposing papers without the leave of the court.

See the case of Zimbabwe Open University v Mazambwe 2009 (1) ZLR 101.

The applicant has not adopted the proper form of the application, and, consequently, the court cannot condone departure from the Rules.

In any event, the applicant has not made an application to depart from the Rules.

The application is therefore defective in that regard - and is fatally so.

Authority to institute proceedings

The founding affidavit was deposed to by one Nyasha Njowa, who is a Regional Manager employed by the Zimbabwe Manpower Development Fund.

The deponent claims to derive his authority from a letter dated 23 July 2002. The letter is signed by Dr Washington Mbizvo, the Permanent Secretary in the Ministry of Higher and Tertiary Education.

The said letter purports to confirm that the deponent is authorised to represent the Minister in any litigation for the recovery of outstanding training levies.

The letter is not written by the Minister, who, in terms of the Act, is authorised to act on behalf of the Ministry.

No proof was placed before the court to establish that the said Nyasha Njowa was authorised by the Minister to institute legal proceedings.

There was equally no proof to show, that, the Permanent Secretary in the Ministry was authorised by the Minister to act in the manner he did.

It seems to me to be quite clear, that, the founding affidavit was improperly secured in that there was no legal basis upon which Nyasha Njowa could purport to represent the Minister in these proceedings.

The maxim delegatus non potest delegare would apply to the circumstances of the matter before the court: in other words, the Permanent Secretary could not delegate authority to sue even if it were proved that he was himself properly authorised.

See Mhanyami Fishing and TSPT Co-op Soc Ltd v Director General, Parks and Wildlife Management Authority and Others 2011 (1) ZLR 555.

The applicant failed to prove, that, Nyasha Njowa was properly authorised to depose to the founding affidavit, and, for that reason, the application cannot survive this second preliminary point.

The respondent also raised a third preliminary issue, arguing that the interim relief sought was not competent.

It shall not be necessary for me to consider this issue, as the matters raised seek to deal with the merits of the application.

In the result, I accordingly, uphold the points in limine and dismiss the application with costs on the ordinary scale.

Law Portal
Zimbabwe

HB42-14 - MINISTER OF HIGHER & TERTIARY EDUCATION vs BMA FASTENERS (PVT) LTD and CHRISTOPHER MASWI N.O. (as Provisional Judicial Manager of BMA FASTENERS) and MASTER OF THE HIGH COURT OF ZIMBABWE N.O.

Pleadings re: Inter-related Proceedings, Cross-Referencing, Record of Proceedings and Off the Record Submissions

Evidence of Oath, Evidence Derived from Previous, Concurrent or Criminal Litigation, Perjury & Submissions from the Bar

Proceedings Involving Insolvent Entities and the Procedure As To Extant Litigation re: Approach and Leave to Sue

Final Orders re: Writ of Execution, Enforcement of Judgments iro Approach, Execution Powers and Superannuated Orders

Urgency re: Approach, the Principle of Equality of Treatment & Discretion of the Court to Hear Oral Arguments on Urgency

Cause of Action re: Form, Manner and Nature of Proceedings iro Approach to Application, Motion and Action Proceedings

Rules of Court re: Approach, Abuse of Court Process, Strict and Substantial Compliance & Pleading of Form over Substance

Cause of Action and Draft Orders re: Appearance to Defend, Filing of Opposition Papers & Set Down of Matters

Founding, Opposing, Supporting and Answering Affidavits re: Deponent, Representative Authority & Affidavit of Collegiality

Locus Standi re: Approach and the Legal Capacity to Institute or Defend Legal Proceedings

Agency Law re: Acting For Another iro Power of Attorney, Resolutions, Proxy, Negotiorum Gestio, Conduct & Derivative Action

Administrative Law re: Approach iro Delegated Authority

Documentary Evidence re: Caveat Subscriptor Rule iro Effect of Representative Signations

Onus, Burden and Standard of Proof re: Evidential Standard and Burden of Proof iro Factual Issues in Doubt

Final Orders re: Procedural Irregularities and Discretion of Court to Condone, Interfere, Dismiss, Remit, Strike or Remove

Pleadings re: Nullity of Proceedings or Acts, Peremptory Provisions & the Doctrines of Strict and Substantial Compliance

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HB42-14 - MINISTER OF HIGHER & TERTIARY EDUCATION vs BMA FASTENERS (PVT) LTD and CHRISTOPHER MASWI N.O. (as Provisional Judicial Manager of BMA FASTENERS) and MASTER OF THE HIGH COURT OF ZIMBABWE N.O.

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