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

HB17-12 : MATILDA NAKAI MATHE vs NYAMBE MATHE
Ruled By: NDOU J

The issue here is whether the plaintiff complied with Order 35 Rule 272(1) of the High Court Rules, 1971.The salient facts are the following:The plaintiff issued out, at this court, summons incorporating a declaration on 10 June 2011. The summons, together with the plaintiff's declaration, were served on the defendant ...

The issue here is whether the plaintiff complied with Order 35 Rule 272(1) of the High Court Rules, 1971.

The salient facts are the following:

The plaintiff issued out, at this court, summons incorporating a declaration on 10 June 2011. The summons, together with the plaintiff's declaration, were served on the defendant personally by the Deputy Sheriff of Bulawayo on 10 June 2011.

The defendant did not contest the summons.

After the expiry of the dies induciae, the plaintiff set the matter down for 28 July 2011. The notice of service of set down was served on the defendant personally on 14 July 2011.

The defendant was not in attendance on 28 July 2011.

It is common cause that the plaintiff did not serve the defendant with a notice described in Rule 272(1) supra. Rule 272(1) provides:

“(1) In an action for restitution of conjugal rights, divorce, judicial separation or nullity of marriage where the defendant has failed to enter appearance –

(a) If the declaration has not been served with the summons, the plaintiff wishing to obtain judgment shall file and deliver his declaration and either simultaneously or subsequently a notice in accordance with Form No.30 calling upon the defendant, if he wishes to defend, to purge his failure to enter appearance to plead, answer or except or make claim in reconvention within twelve days of the date of delivery of the notice and informing him that in default thereof judgment will be prayed against him;

(b) If the declaration has been served with the summons, the plaintiff wishing to obtain judgment shall file and deliver the aforesaid notice to the defendant after the expiry of the dies induciae, as calculated in the proviso to Rule 119.

(2) Thereafter, the plaintiff may –

(a) In the case of an action for conjugal rights, set the case down for trial without notice to the defendant.

(b) In the case of a claim for a final order of divorce, for judicial separation, or for nullity of marriage, set the case down for trial but shall serve personal notice of set down upon the defendant, and, in such case, the court shall not proceed to trial unless it is satisfied that the personal notice of the defendant has been drawn to the fact that the matter has been set down for trial or that for good and sufficient reason the giving of personal notice is impracticable.”…,.

Reading Rule 272(1)(b) supra, in isolation, the plaintiff is not entitled to the order prayed for because she did not file and deliver to the defendant the notice defined in Rule 272(1)(a) supra.

But, when Rule 272(1) is read with Rule 269A a different picture emerges.

Rule 269A reads –

“The summons commencing an action mentioned in this Order may, at the option of the plaintiff, be issued in Form No.30A, to which a copy of the plaintiff's declaration shall be annexed, in which case the provisions of Rule 272 shall not apply to such an action.”…,.

The summons in this case was issued in Form 30A and a copy of the plaintiff's declaration was annexed thereto. Both the summons and declaration were served on the defendant.

In the circumstances, the provisions of Rule 272 do not apply. There is no need for the plaintiff to file and deliver the notice prescribed in Rule 272(1).

This construction does not, however, dispense with the requirement for the personal service of the notice of set down as discussed in Strydom v Strydom 2003 (1) ZLR 379 (H).

The requirement that there be personal service is not only premised on the provisions of Rule 272. It is also based on the salutary rule of practice. As stated by TREDGOLD CJ in Butler v Butler 1951 SR 122;

“It has always been the practice in this court that where the divorce is sought on the grounds of desertion, the restitution order must come to the personal knowledge of the defendant: in other words, although he has knowledge of the proceedings, and has authorized attorneys to act on his behalf, the court has always insisted that, in its final stages, he should be given personal notice of the proceedings in order that he might reconsider his position.

It seems illogical that in other cases where a divorce reaches its final point it should be allowed to proceed without any notice to the defendant…,.

So, this seems to me to be a salutary rule of practice.”…,.

See also Africa v Africa 1944 CPD 78; Le Roux v Le Roux 1957 R & N 831 (SR); and Barkehuizen v Kruger 1959 (3) SA 506 (O).

This salutary rule is informed by the irreparable harm that may result in a final decree of divorce. Divorce results in a finality in the change of status of the parties.

Accordingly, because the plaintiff filed and served the summons in Form 30A, together with a declaration, there is no need for her to serve the notice prescribed in Rule 272.

It is for these reasons that I granted the divorce as prayed for.

HH55-09 : EBI ZIMBABWE (PVT) LTD vs OLD MUTUAL UNIT TRUSTS (PVT) LTD and ADVOCATE J.C.J. LEWIS
Ruled By: PATEL J

In May 2004, the applicant and the first respondent entered into a software licensing agreement. Following a dispute that arose between the parties in January 2006, the matter was referred to an arbitrator (the second respondent) for arbitration.

On the 23rd of June 2008, the applicant challenged the impartiality of the arbitrator in terms of Article 13(2) of the First Schedule to the Arbitration Act [Chapter 7:15] (the Model Law).

On the 28th of June 2008, the arbitrator rejected this challenge and his decision was communicated to the applicant on the 3rd of July 2008.

The challenge was then referred to this Court for determination on the 1st of August 2008 in terms of Article 13(3) of the Model Law.

The Issues

The issues for determination in this matter are as follows:

(1) The nature of the challenge before this Court....,.

Nature of Challenge before the Court

Counsel for the applicant submits that the arbitrator in casu decided the challenge before him without any substantive submissions having been made by the first respondent. He therefore contends that the latter is now estopped from making fresh submissions though its opposing papers before this Court. In other words, this Court must determine the challenge in the same form as was presented to the arbitrator, viz. without the benefit of any submissions from the first respondent.

Article 13(3) of the Model Law, First Schedule to the Arbitration Act [Chapter 7:15] enjoins the Court “to decide on the challenge” referred to it by the challenging party without elaborating the procedure to be followed.

Be that as it may, I have no doubt that the Court is confined to determining the challenge on the grounds of challenge presented to the arbitrator and cannot entertain any fresh ground of challenge. However, I am not persuaded that Article 13(3) of the Model Law narrows the scrutiny of the Court, when examining and ventilating the issues before it, to the same submissions that were presented to the arbitrator.

I am not so persuaded for several reasons:

(i) Firstly, although the challenge before this Court may be likened to an appeal, it is not described as such and cannot therefore be regarded as an appeal stricto sensu. Even if it were to be so treated, it does not invariably follow that a party to an appeal cannot make fresh submissions on the grounds of appeal or the issues that constitute the subject-matter of the appeal.

(ii) Secondly, Article 13(3) of the Model Law does not define or fetter the powers of the Court as to the procedure to be followed.

In practice, the procedure that is adopted in the referral of arbitral matters to the Court is by way of ordinary application, and there is nothing in the Rules of Court to preclude the filing of submissions by any party to the arbitration proceedings in question.

(iii) Last but not least, to construe Article 13(3) of the Model Law, First Schedule to the Arbitration Act [Chapter 7:15] in a restrictive manner would operate to constrict and offend the common law right to be heard which vests in every interested party, as embodied in the audi alteram partem rule, as well as the constitutional right to a fair hearing guaranteed by section 18(2) of the Constitution.

For all of these reasons, I am satisfied that the procedure for challenge before this Court cannot be curtailed in the manner propounded by counsel for the applicant.

HH42-08 : JAMESON MANDAVA vs TSITSI CHASWEKA
Ruled By: MAKARAU JP and HLATSHWAYO J

On 23 May 2005, the respondent issued summons out of Marondera Magistrates' Court. Her claim against the defendant, as it appears on the face of the summons, is recorded as “sharing property”. An affidavit was attached to the summons, curiously titled, in my view, as “Applicant's supporting affidavit (Property Sharing)”.

In the affidavit, the respondent alleged that she was in an unregistered customary union with the appellant, and that, during the subsistence of the union, the parties had acquired certain household goods and effects. She gave the estimate value of each item that she alleged the parties acquired. She further alleged that due to the violent conduct that the appellant exhibited towards her, the union between them had broken down irretrievably. She ended the affidavit by praying that the court confirms the distribution of the assets as suggested by her in the affidavit.

It is not clear on the record how the matter was set down for trial….,.

The record, however, indicates that on the day of the trial, the appellant was in attendance and verbally indicated that he was opposed to the proposals made by the respondent. Prior to the set down date, he had not filed any pleadings or other papers in the matter.

The matter proceeded to trial with the parties giving evidence. For the purposes of this appeal, it is in my view not necessary that I go into the details of the evidence that each party led.

After hearing the parties, the trial court made an award that dissatisfied the appellant, prompting him to note an appeal to this court. In his Notice of Appeal, the appellant challenged the distribution that was made in the lower court and prayed that it be set aside.

The parties were not legally represented at any stage of the legal battle between them. We thus could not engage them at all regarding the legal issues that arise in this appeal.

The legal points made in this judgment are therefore our opinions without the aid of argument by counsel.

The two issues that arise, are, in my view, so important that a copy of this judgment will be dispatched to the Chief Magistrate for his attention and for the benefit of other trial magistrates who may be falling into the same pitfalls that the trial magistrate in this matter fell.

I shall make the necessary order for this to be effected by the Registrar.

Firstly, all Magistrates' Courts in this country are formal courts whose proceedings are governed by a set of rules and established procedures. It is trite that the pre-setting of rules of procedure is, to date, the widely acceptable manner of avoiding arbitrariness and ensuring fairness in the airing of disputes by litigants. Rules of Court are framed for a purpose and any procedure done outside the Rules is susceptible of being set aside as being unprocedural.

In the lower court, the respondent commenced her suit by issuing summons against the appellant. She then filed an affidavit to support her claim.

This was a most unusual mixture of procedures and one that the Rules of the lower court do not provide for.

In accordance with the Rules, having issued summons in the matter, the respondent had to file her particulars of claim to be answered by the respondent by the filing of a plea or other answer.

Affidavits, on the other hand, such as the one filed by the respondent, together with her summons, are a part of the application procedure.

The two procedures, viz, one commenced by the issuance of summons and the other by the filing of an application, while overlapping and sometimes exchangeable in terms of utility, are quite distinct one from the other. They cannot be employed at the same time to resolve the same dispute.

I have indicated above that the parties were not legally represented before the lower court. I thus do not hold it against her that she filed incompetent papers before the lower court. In my view, the fault lies squarely with the Clerk of the lower court who accepted summons to which an affidavit was attached.

Even assuming that the incompetent procedure detailed above escaped the attention of the Clerk, the trial magistrate should not have proceeded to trial on a matter that had not reached litis contestatio.

After the issuance of summons, no further pleadings were filed in the matter. No pre-trial conference was held.

The matter was thus not at issue and should therefore not have been referred to trial.

In my view, the informality allowed in this matter by the trial court, of hearing the parties in the absence of pleadings filed of record, and before a pretrial conference was held in the matter, is unacceptable and cannot be allowed to stand. It destroys the integrity of Magistrates' Courts as courts of law. It reduces proceedings before the court to the same level as that before the traditional leaders and at village level.

Even if we assume that the procedure before the court was application procedure, the appellant, as respondent in the lower court, had to file his notice of opposition and opposing affidavit before the matter could be referred to a magistrate for hearing.

Application procedure is ordinarily determined on the basis of the papers filed, and, in the absence of papers from the respondent, a hearing of oral evidence was improper.

The magistrate should have returned the matter to the Clerk as not being ready for a hearing in the absence of such observance to the Rules as I have highlighted above. His lapse in this regard, in my view, cannot be condoned and is unacceptable.

It is hereby brought to the attention of the Chief Magistrate for corrective action to be immediately taken lest the procedures in the Magistrates' Court, and the integrity of such court, fall into disrepute.

HB23-09 : LARRY BEN MPOFU vs MIKA PARIRA MPOFU AND TWO OTHERS
Ruled By: NDOU J

Subsequent to receiving summons under action proceedings, a party must file an appearance to defend. Subsequent to receiving application proceedings, a party must file opposing papers.

HH120-12 : JOHN MAUCHAZA vs SARAH NOTA
Ruled By: GOWORA J and PATEL J

On 10 July 2006, the respondent herein, whom I shall refer to as the plaintiff, issued summons in the Magistrates Court, Harare against the appellant, the defendant, claiming “sharing of property.”Particulars of claim attached to the summons made reference to a customary union which resulted in the establishment of a ...

Particulars of claim attached to the summons made reference to a customary union which resulted in the establishment of a universal partnership. It was accordingly prayed that it would be just and equitable for the court to order that a house shared by the parties during the partnership be sold and the proceeds jointly shared between the parties.

The defendant pleaded to the claim in a manner which both denied and accepted the existence of the customary union, the existence of the universal partnership, and the acquisition of the immovable property over which the plaintiff was claiming a right to a share.

I find that the defendant's legal practitioners filed a plea which was not only vague and embarrassing but which did not clearly set out the facts upon which the defence was based.

The errors I have referred to above notwithstanding, the matter went before a magistrate for trial, and, on 19 April 2007, the magistrate rendered a judgment in terms of which the plaintiff was awarded a fifty percent share in the immovable property.

The defendant then noted an appeal against the judgment.

The evidence adduced at the trial, in the court below, established that the parties had an unregistered customary union which resulted in the birth of one child. The parties stayed together from 1982 to 1986 when the plaintiff left the matrimonial home. During the period in question, despite the absence of a formal relationship, the parties conducted themselves and treated each other as husband and wife. Evidence was led to the effect that a customary marriage ceremony took place where the defendant paid part of the bride price (lobola). According to the plaintiff the defendant had not finished paying all of it when they separated. The defendant accepts that the parties had such a union.

There are a number of issues on which the parties differ insofar as the evidence adduced at the trial is concerned.

The case for the plaintiff is that she had failed to return home after an excursion with the defendant. As a result, she and the defendant decided to get married. The defendant's case is that he and the plaintiff had not returned home. The next day, the plaintiff was told, by her relatives, she was not acceptable at home. She moved in with him. He was then forced to live with her, and decided to pay damages for having made her pregnant.

What is not in dispute is that the parties lived together from 1982 to some time in 1986. During that period, an immovable property, known as 82 Caledon Avenue, Hatfield, was purchased through a mortgage bond secured in the name of the defendant. The defendant was responsible for settlement of the mortgage payments whilst the plaintiff took care of the other household expenses. The deposit for the house was paid by the defendant even though the plaintiff indicated, in her evidence, that she had contributed towards half of the deposit paid by the defendant.

From the evidence adduced before him, it is my view that the magistrate correctly concluded that the defendant had paid lobola for the plaintiff and the parties were married in terms of custom. The union was however never solemnised.

Although the defendant did not plead lack of jurisdiction in his plea, when closing submissions were filed on his behalf, at the close of the trial, it was argued on his behalf, that if the plaintiff's claim was premised on a tacit universal partnership then the trial court lacked the jurisdiction to entertain the matter as the value of the property in dispute was in excess of Z$5 million.

It was conceded by the defendant's legal practitioner that no evidence had been adduced on the value of the property, but, the court was urged to take judicial notice of the fact that a half share in an immovable property in Hatfield could not possibly, at the time, be valued at less that Z$5 million. It was accordingly argued that the claim should be dismissed on that basis.

The trial court was addressed on the question of the lack of jurisdiction of the court given the monetary value of the items in dispute, but, it does not appear as if the magistrate addressed his mind to this.

It had not been pleaded, but, a defendant can consent to a claim where the value of the claim exceeds that set by statute.

Although there is no evidence on the value of the property, the defendant has urged this court to assume that it is in excess of Z$5 million.

In the exercise of its appellate jurisdiction, the High Court, being a superior court with inherent jurisdiction, is empowered to exercise review powers.

There are certain aspects to this matter that point to procedural irregularities.

First and foremost, the summons, in terms of which proceedings were instituted, is the form used for instituting divorce proceedings in the Magistrates' Court for the dissolution of a marriage solemnised in terms of custom. The summons to which the particulars of claim were attached appeared to be divorced from the cause that the plaintiff had brought to court. The summons spoke an action for sharing of property which is not a cause of action recognisable under General Law. The summons calls upon a defendant to appear at court to answer the plaintiff's claim and to file his defence before the date of hearing. This is in fact in terms of Rule 8(8) of the Customary Law Court rules.

To this the plaintiff had attached particulars of claim in which she sought a half share of the proceeds of the Hatfield property after a judicial sale of the same. There is no claim therein to a decree for divorce, despite the summons having been issued under rules utilised for divorce in a customary union.

On the other hand, summons, under General Law, in terms of the rules of the Magistrates' Court, allows a defendant seven days in which to enter appearance after service of summons. A defendant who enters an appearance to defend the claim is obliged to file a plea in which the basis of the defence to the claim is set out.

In terms of Order 19 Rule (1) the party wishing to have the action brought forward to trial must request the other party to attend a pre-trial conference at a mutually convenient time and place. This is normally done before a magistrate in chambers. At the pre-trial conference, all issues ancillary to the trial are dealt with including the issues for trial and the duration of such trial.

In casu, all these stages were skipped which leads one to conclude that despite the cause of action having been premised on General Law the parties conducted their dispute as if it were premised on customary law principles. There was therefore a mixture of procedures starting from the institution of the summons themselves.

I have no hesitation in concluding that the summons was defective.

HH56-12 : ELIAS KASEKE and WAFAWANAKA KUCHERA and SIBUSISO NCUBE vs MASTER OF THE HIGH COURT and MAVIS CHIZENGENI (as Executrix Dative of Estate Late Jessie Zengeya)
Ruled By: MAWADZE J

This is a chamber application in which the first applicant seeks an order in the following terms:“IT IS ORDERED THAT:1. Case Number HC5867/10 be and is hereby dismissed for want of prosecution; and2. The plaintiff be and is hereby ordered to pay costs of suit.”There is need to set out ...

This is a chamber application in which the first applicant seeks an order in the following terms:

“IT IS ORDERED THAT:

1. Case Number HC5867/10 be and is hereby dismissed for want of prosecution; and

2. The plaintiff be and is hereby ordered to pay costs of suit.”

There is need to set out the brief facts of the matter which give rise to this chamber application.

Background Facts

The first, second, third, and fourth applicants herein are the first, second, third, and fourth defendants respectively in the main action in which the respondent herein is the plaintiff. This chamber application is made by the first applicant, Elias Kaseke, only and the second to fourth applicants have not made any application….,.

In the main action, the respondent (plaintiff in the main action) issued summons out of this court on 25 August 2010 claiming the following relief against the first to fourth applicants (the first to fourth defendants in the main action):

“Wherefore the plaintiff claims against the defendants;

(a) An order declaring the sale and transfer of 1458 shares in Kennedine Investments (Pvt) Limited together with attendant rights in property known as Number 22 Kennedine Court, corner 7th and Central Avenue, Harare, from the third defendant to the second defendant and subsequent sale and transfer of same shares and rights from the second defendant to the first defendant held under share certificate number 98 to be null and void, and of no force or effect.

(b) An order setting aside the sale and transfer of 1458 shares in Kennedine Investments (Pvt) Limited under share certificate number 98, together with attendant rights in property known as Number 22 Kennedine Court, corner 7th Street and Central Avenue, Harare, from the third to second defendant, and the subsequent sale and transfer of the same shares and rights from the second defendant to the first defendant held under share certificate number 98.

(c) An order for eviction, forthwith, of the first defendant and any persons claiming occupation through him from certain premises known as Stand Number 22 Kennedine Court, corner 7th Street and Central Avenue, Harare.

(d) Costs of suit.”

The basis of the claim, in the main action, is that the respondent (the plaintiff in the main action) was appointed the Executrix Dative of the Estate of the Late Jessie Zengeya who died on 22 September 1992 as per Letters of Administration Number 2597/92.

In casu, the first applicant (the first defendant in main action) resides at Number 25 Armadale Road, Borrowdale, Harare. The second applicant (the second defendant in the main action) is a male adult residing at Number 5 Plymouth Road, Chadcombe, Hatfield, Harare. The third applicant (the third defendant in the main action) is a female adult residing at Number 34 Longford Road, Queensdale, Harare and the fourth applicant (the fourth defendant in the main action) is the Master of the High Court cited in his official capacity.

The dispute in this matter involves certain immovable property known as Number 22 Kennedine Court situated at corner 7th Street and Central Avenue, Harare. It is a unit within a block of flats which block is registered in the name of Kennedine Investments (Pvt) Ltd and is fully known as a certain piece of land situate in the District of Salisbury called No.1137 Salisbury Township measuring 892 square metres and ownership therein being evidenced by the issue of a share certificate in the aforementioned company corresponding to a particular unit in the block.

The property in dispute belonged to the late Jessie Zengeya, who, during her lifetime, did not dispose of this property according to the respondent (the plaintiff in the main action) who was later appointed the Executrix Dative of the same estate and also did not dispose of the property (hereinafter known as No.22 Kennedine Court).

On 26 September 2006, the third applicant (the third defendant in the main action), claiming to be the rightful owner of shares and rights pertaining to No.22 Kennedine Court, purported to sell the share and rights in question to the second applicant (the second defendant in the main action) as per an agreement of sale Annexture D to the respondent's (the plaintiff in the main action) declaration.

The respondent (the plaintiff in the main action) contends that the third applicant (the third defendant in the main action) did not have authority of the Executrix Dative (the respondent) of the Estate of the late Jessie Zengeya to dispose of the property hence her purported sale of the shares and rights of the property pertaining to No.22 Kennedine Court was not only unlawful but fraudulent.

Further, the respondent contends (the plaintiff in the main action) that the relevant consent from the fourth applicant (the fourth defendant in the main action), the Master of the High Court, was not obtained for the disposal of the shares and rights in the property in issue.

The point made by the respondent in the main action is that the third applicant (the third defendant in the main action) had no title in the shares and therefore could not pass title to the second applicant (the second defendant in the main action).

In fact, the first and final administration and distribution account was filed by the respondent (the plaintiff in the main action) in DR5597/92 on 23 September 1994 indicating that the property, No.22 Kennedine Court, was still the property of Estate Late Jessie Zengeya.

On 15 July 2007, the second applicant (the second defendant in the main action) purported to sell the rights, title, and interests in the property, No. 22 Kennedine Court, to the first applicant (the first defendant in the main action) for Zimbabwe dollars $450,000 as per an agreement of sale marked Annexture D to the respondent's (the plaintiff in the main action) declaration.

As a result, a share certificate (Annexture B) was produced in favour of the first applicant (the first defendant in the main action) purportedly showing that the first applicant had purchased 1458 shares in Kennedine Investments (Pvt) Ltd which shares correspond to the use and enjoyment of No.22 Kennedine Court.

As already stated, the respondent (the plaintiff in the main action) contends these shares belong to the Estate of Late Jessie Zengeya and the third applicant (the third defendant in the main action) could not pass title to the second applicant (the second defendant in the main action) who also consequently could not pass title to the first applicant (the first defendant in the main action).

The respondent (the plaintiff in the main action) stated, that, she only became aware of these illegal transactions involving the first, second, and third applicants (the first, second, and third defendants in the main action) sometime in July 2010 upon attempting to serve a notice of eviction on the current occupant of the property. This compelled the respondent (the plaintiff in the main action) to issue summons out of this court against all the applicants (the defendants in the main action) on 25 August 2010.

It is common cause, as per the record, that the second, third, and fourth applicants (all the defendants in the main action) did not enter an appearance to defend in terms of the Rules and the presumption therefore is that they are all barred.

It is only the first applicant (the first defendant in the main action) who entered an appearance to defend on 17 September 2010 after being served with summons on 30 August 2010.

It would appear from the record the respondent (the plaintiff in the main action) did not seek any order against the second and third applicants (the defendants in the main action) after their failure to enter any appearance to defend.

The first applicant filed his plea in terms of the Rules which was served on the respondent (the plaintiff in the main action) on 27 September 2010. The respondent (the plaintiff in the main action) in turn filed her replication on 11 October 2010. No further action was taken in the main matter/action.

This means, that, from 11 October 2010 until 25 October 2011, a period of about 12 months, nothing was done on the main action.

This then prompted the first applicant to file this chamber application, on 25 October 2011, seeking the dismissal of the respondent's (the plaintiff in the main action) claim in the main action for want of prosecution and costs of suit.

I was allocated the chamber application on 21 November 2011 and I directed the first applicant to file proof of service of the application and to cite the relevant Rule/Rules of this court upon which the application is premised.

Counsel for the first applicant only responded to the issues raised on 20 January 2012 and attached the relevant proof of service. In relation to the issue of the Rules of the Court relied upon the response filed is as follows:

“We refer to your letter dated 5 December 2011 wherein the honourable Justice MAWADZE wanted clarification and confirmation of two issues, viz:

(a) Cite the Rule or Rules relied upon; and

(b) Proof of service of this application.

In terms of Order 32 Rule 226, all applications, for whatever purpose, in terms of the High Court Rules, shall be made;

226(a)…,.

(b) As chamber application, that is to say, in writing to a judge.

226(2) An application shall be not be made as a chamber application unless -

(a)…,

(b) These rules or other enactment so provide; or

(c) The relief sought is procedural…,.

The relief that is being sought is procedural.

The plaintiff issued summons out of this honourable court and were served on the applicant on 30 August 2010. The applicant filed a notice of appearance to defend on 17 September 2010. The application was subsequently filed on 24 September 2010. The plaintiff, to date, only filed a replication and no other pleadings in order to advance action.

In terms of Order 9 Rule 61, the defendant is given a right to make a chamber application to dismiss the action for want of prosecution.

We respectfully submit that this matter falls within the provision of the Rules cited above and we pray for an order dismissing the court action for want of prosecution. The plaintiff won't suffer any prejudice as it can relaunch the court action when it feels like.”…,.

I received the above quoted response on 25 January 2012, and, in view of the ambiguity with which counsel for the first applicant had responded to the query raised I directed the first applicant's counsel to approach me in chambers and make further submissions.

Counsel for the first applicant was only able to do so on 30 January 2012.

Counsel for the first applicant…, had no meaningful submissions to make except to insist that her response, as filed of record, was in order. She conceded that she was only representing the first applicant and was unable to explain why she had cited the second to fourth applicants as the applicants.

Let me now deal with the merits of the chamber application.

This chamber application has been filed by the first applicant only, and, therefore, it is improper and irregular for counsel for the first applicant to proceed to cite the second to fourth defendants in the main action as the applicants in this matter.

The second to fourth defendants in this main action has not filed any application before the court nor any supportive affidavits.

As already said, the second and third defendants in the main action may, for all intents and purposes, be barred for failure to enter an appearance to defend: see Order 7 Rule 50.

It would therefore be incompetent, in my view to cite the second to fourth defendants in the main action as applicants in this chamber application which is only made by the first defendant in the main action.

The first applicant cannot stampede the second to fourth applicants to be part to the proceedings to which they have not expressed any interest.

I now turn to the response filed by the first applicant's counsel.

It is disheartening to note, that, in many chamber applications filed with the court legal practitioners do not seem to appreciate the need to cite the relevant Rules of the Court upon which such an application is premised.

Such an approach, in my view, would ensure that the legal practitioner, from the onset, is conversant with the Rules of the Court applicable. This would, in turn, save a lot of time wasted when queries are raised by the court on such mundane issues.

In casu, the first applicant's response is that this application is made in terms of Order 9 Rule 61 of the High Court Rules which provides as follows:

“Where the plaintiff has been duly barred from declaring or making a claim, the defendant may, without notice to the plaintiff, make a chamber application to dismiss the action for want of prosecution, and the judge may order the action to be dismissed with costs or make such other order on such terms as he thinks fit.”

I totally disagree with the first applicant.

The plaintiff in the main action has not been barred hence Order 9 Rule 61 of the High Court Rules is inapplicable in the circumstances of the case.

The first applicant also makes vague reference to Order 32 Rule 226 of the High Court Rules.

It is common cause that Order 32 of the Rules relates to application procedure. The question which arises, therefore, is whether it is proper, in the circumstances of this case, for the first applicant to file a chamber application of this nature. Put differently, can a defendant in a matter commenced by way of summons seek to have the plaintiff's case dismissed for want of prosecution after closure of pleadings.

I am of the firm view that there is no direct provision in the High Court Rules which provides for the dismissal of the plaintiff's case for want of prosecution where pleadings are closed and the plaintiff has not been barred.

Indeed, the applicant has not been able to cite the relevant Rule.

In the case of Anchor Ranching (Pvt) Ltd v Beneficial Enterprises (Pvt) Ltd & Anor 2008 (2) ZLR 246 H BERE J had to deal with a similar question and had this to say…,:

“Does Rule 236(3)(b) apply to actions commenced by way of summons?

It will be noted that Order 32 is headed 'Application Procedure'. A simple reading of the whole of that order shows, in very clear terms, that, it is exclusively devoted to the manner and form which applications must take. Order 236(3) deals specifically with aspects of filing of a notice of opposition, opposing affidavit, and answering affidavit. There is no reference to filing of pleadings in this Rule. In my view, the legislature was clear in what was intended and it would be stretching it too far to argue, that, the same provision should cover pleadings. The legislature would have been clear if it so desired. The words used are clear and they require no further stretched interpretation.”

HH43-09 : ZIMBABWE OPEN UNIVERSITY vs DR. O MAZOMBWE
Ruled By: HLATSHWAYO J

The applicant seeks an order setting aside the registration of an arbitral award granted in favour of the respondent. The award was submitted for registration at the High Court in terms of the provisions of the Labour Act [Chapter 28:01] and was duly registered on 25 February 2008. The applicant submits that the registration of the award ...

The applicant submits that the registration of the award was defective in that it was done by way of a chamber application, without notice to the applicant, instead of a court application, which would have required notice to be served on the applicant.

In response, the respondent maintains not only that it proceeded lawfully, but that the applicant, in its own application for the rescission of the registration of the award failed to comply with the Rules of Court in a manner fatal to its application for rescission.

I shall examine, first, the issue of the regularity or otherwise of the application before this court, i.e., the application for rescission of judgment. If the application is properly before this court, then the other issues will follow. If not, then cadit quaestio.

Rule 230 of the High Court of Zimbabwe Rules, RGN 1047/1971, as amended, prescribes, in mandatory terms, that a court application shall be made in Form No. 29, or, where it is ex parte, in Form No.29B, which latter form is generally used for chamber applications.

It is common cause that the form used by the applicant for the rescission of judgment is neither of the above stated forms, that is, it is in neither the court application form nor the chamber application form nor the hybrid ex parte court application form.

Now, Rule 4C gives the court or judge discretion to condone departures from the rules, while Rule 229C deals with a specific form of departure, viz., proceeding by way of court instead of chamber application and vice versa.

In terms of Rule 229C, the use of one form instead of another, of Form 29 instead of Form 29B, does not, in itself, constitute sufficient ground for dismissing the application, it being necessary for a court or judge to conclude that some interested party has thereby suffered prejudice which cannot be remedied by directions for service on the injured party, with or without an order of costs.

In his submissions on behalf of the applicant, counsel for the applicant sought to rely on Rule 229C arguing that the respondent had neither alleged nor demonstrated any prejudice. However, the applicant's error in this instance was not one of using one form instead of another but of using a completely different format from the authorized ones, and, therefore, falls directly under Rule 4C and not Rule 229C. (Ironically, it is the respondent's alleged breach of the rules – proceeding by way of chamber instead of court application in the registration of the arbitral award – which falls squarely under Rule 229C.)

Lest an impression be formed that this is a sterile dispute about forms, I have deemed it necessary to outline, in a summary way, what each of the two forms contains, on the one hand, and the unique features of the format used by the applicant, on the other.

In Form 29, the applicant gives notice to the respondents that he or she intends to apply to the High Court for an Order in terms of an annexed draft and that the accompanying affidavit/s and documents shall be used in support of the application. It goes on to inform the respondent, if he or she so wishes, to file papers in opposition in a specified manner and within a specified time limit, failing which the respondent is warned that the application would be dealt with as an unopposed application.

In Form 29B, an application is made for an order in terms of an annexed draft on grounds that are set out in summary as the basis of the application and affidavits and documents are tendered in support of the application.

By contrast, the unique format used by the applicant consists of a heading:

“Application for Rescission of Judgment” and the following terse statement: “Take notice that the Applicant, Zimbabwe Open University, hereby applies for Rescission of Judgment. The annexed affidavit is used in support thereof.”

Now, the format adopted by the applicant does not contain the plethora of procedural rights that the respondent is alerted to in Form 29 nor the summary of the grounds of the application required in Form 29B. Can this substantial departure from the rules be condoned under Rule 4C?

Rule 4C states as follows:

“The court or judge may, in relation to any particular case before it or him, as the case may be –

(a) Direct, authorize or condone a departure from any provision of these rules, including an extension of any period specified therein, where it or he, as the case may be, is satisfied that the departure is required in the interests of justice;

(b) Give such directions as to procedure in respect of any matter not expressly provided for in these rules as appear to it or him, as the case may be, to be just and expedient.”

In the cases of Simross Vintners (Pty) Ltd v Vermeulen, VRG Africa (Pty) Ltd v Walters t/a Trend Litho, Consolidated Credit Corporation (Pty) Ltd v Van der Westhuizen 1978 (1) SA 779, the applicants, in three applications for compulsory sequestration, had used the notice of motion prescribed in Form 2 of the South African Uniform Rules of Court, which was a form appropriate to ex parte applications. The applicant in the first application had not served the notice on the respondent but the applicants in the other two applications had so served the notices on the respondents. It was held that in the first application the use of the Form 2 was perfectly in order as the application was brought ex parte. However, as to the other two applications, it was held that as they were not brought ex parte, the notices of motion used in these applications (i.e., the Form 2 notice) were nullities and their use could not be condoned and the applications had to be struck off the roll:

“…,. This applicant also relies on a nulla bona return, but, it chose not only to address the Form 2 notice of motion to the respondent, but also to serve it on him. Hence, it is not brought ex parte and Rule 6(5) applies. It was suggested in some of the other applications which were eventually struck off the roll that this non-compliance might be condoned under Rule 27(3). I have considered that possibility in this case, but, apart from the fact that no cause at all is shown why there should be condonation, the more fundamental difficulty arises that the document which purports to be a notice of motion is, as I have indicated above, a nullity, and I have grave doubt whether the Court has power, under this Rule, to repair a nullity, a concept in law which carries within itself all the elements of irreparability…,. In addition it must be emphasized that Form 2(a) contains a description of the procedural rights of the respondent after service of the notice of motion. These rights are considerable and substantial. How could a Court, even if it were not a nullity, put a blue pencil through all these rights in the absence of the person in whom they reside and without notice to him that such an order which abrogates his rights might be made? This application is struck off the roll.”

Our own Supreme Court has agreed with the above approach to non-compliance with mandatory rules of court.

In the case of Jensen v Acavalos 1993 (1) ZLR 216 the superior court dealt with the non-compliance with provisions of Rule 29 of the Rules of the Supreme Court, RGN 380/1964 and said the following at p.220 A-D:

“The reason is that a notice of appeal which does not comply with the rules is fatally defective and invalid. That is to say, it is a nullity. It is not only bad but incurably bad, and, unless the court is prepared to grant an application for condonation of the defect and to allow a proper notice of appeal to be filed, the appeal must be struck off the roll with costs: De Jager v Diner & Anor 1957 (3) SA 567 (A) at 576 C-D.

In Hattingh v Pienaar 1977 (2) SA 182 (O) at p.183 KLOPPER JP held that a fatally defective compliance with the rules regarding the filing of appeals cannot be condoned or amended. What should actually be applied for is an extension of time within which to comply with the relevant rule. With this view I most respectfully agree; for if the notice of appeal is incurably bad, then, to borrow the words of LORD DENNING, in McFoy v United Africa Co Ltd [1961] 3 All ER 1169 at 1172, 'every proceeding which is founded on it is also bad and incurably bad. You cannot put something on nothing and expect it stay there. It will collapse.'”

As if the non-compliance with the mandatory rules noted above was not bad enough, the applicant has not bothered to apply for condonation of its failure to comply with the rules in spite of such non-compliance having been drawn to its attention as early as when the notice of opposition was served on it.

In my considered view, where the errant party has not applied for condonation in spite of its awareness of its non-compliance, it suffices for the objecting party merely to point out the non-compliance for the application to be struck off. Furthermore, the applicant's failure to even recognize the need to apply for condonation shows a cavalier approach to compliance with rules of court, which must be discouraged by an exemplary order of costs.

Accordingly, this application is struck off the roll with costs on the legal practitioner and client scale.

HH205-10 : AFRICA CONSOLIDATED RESOURCES (PVT) LIMITED AND FOUR OTHERS vs MINISTER OF MINES AND MINING DEVELOPMENT AND TWO OTHERS
Ruled By: HUNGWE J

Finally, counsel for the applicants took the point that since this application is premised on an allegation of fraud, the first respondent adopted the wrong procedure. He ought to have realized that there would be a serious dispute of fact requiring proper ventilation through action rather than motion proceedings. The question remaining for decision is whether on ...

HH32-08 : LOVENESS SENGEREDO vs ERIC CABLE N.O.
Ruled By: MAKARAU JP

In my view, the purpose of an answering affidavit is akin to that of a replication in an action. It is filed not merely for the form but to specifically meet and traverse all the averments made in the opposing affidavit that have the effect of defeating the applicant's claim.Like ...

HH01-10 : RIVER RANCH LIMITED vs DELTA CORPORATION LIMITED
Ruled By: PATEL J

The plaintiff in this matter seeks an order requiring the defendant to vacate Stands 322 and 324 in Beitbridge Township and pay holding over damages from the 1st of April 2006 to the date of vacation. The defendant avers that it is the lawful purchaser of both houses in terms of written agreements of sale and counterclaims ...

HH37-08 : MOVEMENT FOR DEMOCRATIC CHANGE and MORGAN TSVANGIRAI vs CHAIRPERSON, ZIMBABWE ELECTORAL COMMISSION and CHIEF ELECTIONS OFFICER, ZIMBABWE ELECTORAL COMMISSION
Ruled By: UCHENA J

The first applicant, the Movement for Democratic Change, is a political party, commonly known as the (“MDC”). It will be referred to as the first applicant. The second applicant, Mr Morgan Tsvangirai, is its President. He was the first applicant's Presidential candidate in the just ended harmonized elections held on 29 March 2008. He will be referred to as the second applicant.

The first respondent is the Chairman of the Zimbabwe Electoral Commission, a Commission established in terms of section 61(1) of the Constitution of Zimbabwe. He was appointed in terms of section 61(1)(a) of the Constitution. He will be referred to as the first respondent. The Zimbabwe Electoral Commission is commonly known as (“ZEC”), in reference to the abbreviation of its name. It will be referred to as ZEC in this judgment.

The second respondent is the Zimbabwe Electoral Commission's (ZEC) Chief Elections Officer appointed in terms of section 11 of the Zimbabwe Electoral Commission Act [Chapter 2:12], hereinafter called the Zimbabwe Electoral Commission Act. He will be referred to as the second respondent.

The Facts

The first respondent, through the Zimbabwe Electoral Commission (ZEC), conducted harmonised elections which were held on 29 March 2008. The elections were contested by candidates aspiring for the following positions, Councilors of local authorities, Members of the House of Assembly and the Senate, and President of the Republic of Zimbabwe.

It is common cause that the contestants of the first three positions now know the results of their elections. The results were announced at the Ward Constituency, House of Assembly and Senatorial constituency levels. The winners were declared by the respective Ward and Constituency Elections Officers. House of Assembly and Senatorial results have also been announced by the National Collation Centre presided over by the second respondent.

It is conceded, by the respondents, that this was merely for the benefit of the general public as the legal requirements had been satisfied at constituency level.

The applicants, who have an interest in Presidential election results, filed an urgent application seeking this court's provisional order, compelling the respondents to announce the results.

The respondents, while conceding that Presidential results have not yet been announced, contented that they will announce them when they are ready....,.

Procedural Issues

In response to counsel for the applicants submissions on the merits, counsel for the respondents raised several procedural issues which he should have raised as preliminary issues.

He, in his first procedural issue, contented that the applicants application was not made in the correct form. He submitted that it should have been in Form 29 with appropriate modifications.

Counsel for the applicants, in reply, submitted that the applicants' application was made in the correct form and that even if it was not in the correct form, Rule 229C provides that such failure shall not, in itself, be a ground for dismissing the application.

The court can, however, dismiss such an application if it has caused prejudice to the other party which cannot be cured by directions for service of the application on the other party with or without an order of costs.

An examination of the applicants application reveals that it is in Form 29B when it should be in Form 29 with relevant modifications as provided by the proviso to Rule 241(2).

The applicants have, however, not suffered any prejudice.

They were served with the application and they took no issue until during their counsel's response on the merits.

Even though the issue was raised no prejudice was alleged.

I am satisfied that nothing turns on this as either Rule 229C or Rule 4C could be resorted to, to condone the application's failure to strictly comply with the proviso to Rule 241(2).

HH89-09 : THE DIOCESAN TRUSTEES FOR THE DIOCESE OF HARARE vs THE CHURH OF THE PROVINCE OF CENTRAL AFRICA AND CHAD GANDIYA
Ruled By: BHUNU J

The ordination has prompted the applicant to lodge this urgent application before me. The application, in the main, seeks to set aside the second respondent's appointment on the basis that the noting of the appeal in the Supreme Court was a nullity in that it was incompetent, fraught with serious procedural irregularities. The applicant has mounted a ...

The ordination has prompted the applicant to lodge this urgent application before me.

The application, in the main, seeks to set aside the second respondent's appointment on the basis that the noting of the appeal in the Supreme Court was a nullity in that it was incompetent, fraught with serious procedural irregularities. The applicant has mounted a two-pronged attack on the validity of the Notice of Appeal, namely:

(a) That it was irregular, and to that extent a nullity, in that it was lodged before the learned judge had delivered his judgment; and

(b) That it was incompetent, and to that extent a nullity, in that it was issued without leave of this court as is required by law.

As regards the first allegation, counsel for the applicant made serious allegations which impugned on the integrity and professional conduct of the respondents legal practitioners. The allegations necessarily raise serious factual disputes incapable of resolution without evidence.

After hearing argument..., I called for the Registrar's report seeking clarification as to whether or not the Notice of Appeal was filed before HLATSHWAYO J had delivered his judgment.

The Registrar has since filed his report. The report confirms that indeed the Notice of Appeal was filed in the Supreme Court, and served on the other part, before HLATSHWAYO J had delivered his judgment.

The respondents have challenged the Registrar's report pointing out that it was, to a large extent, computed from hearsay evidence.

Counsel for the respondents also sought to place in issue the integrity, and conduct, of personnel in the Registrar's office concerning the processing of the Notice of Appeal.

After deliberations, it was unanimously agreed that the respondents were within their rights in challenging the Registrar's report. It was further agreed that there was need to call for evidence from those concerned in the actual processing of the Notice of Appeal to assist the court in determining disputed facts.

The parties were, however, unable to agree on the format and procedure for laying that evidence before the court....,.

Relying on Rule 246, counsel for the applicant proposed that viva voce evidence be led from the relevant witnesses.

The Rule provides that:

“246(1) A judge to whom papers are submitted in terms of Rule 244 or 245 may:

(a) Require the applicant, or the deponent of any affidavit, or any other person, who may, in his opinion, be able to assist in the resolution of the matter, to appear before him in Chambers or in court, as may to him seem convenient, and provide on oath, or otherwise, as the judge may consider necessary, such further information as the judge may require.

(b) Either party's legal practitioner to appear before him to present such further argument as the judge may require.”

On the other hand, counsel for the respondents preferred that evidence be provided through affidavits as provided by Rule 227(4) which provides that in an application:

“(4) An affidavit filed with a written application –

(a) Shall be made by the applicant, or respondent, as the case may be, or by a person who can swear to the facts, or facts set out therein; and

(b) May be accompanied by documents verifying the facts or averments set out in the affidavit, and any reference, in this Order, to an affidavit, shall be construed as including such documents.”

It must be noted that Rule 246 is premised on the presiding judge's discretion to call for oral evidence to help him determine the matter after perusing the papers. The judge is, however, under no obligation to call for such evidence. The discretion is entirely his, depending on the exigencies of the matter.

On the other hand, Rule 227(4) imposes an obligation on both parties to file affidavits in support of their respective factual averments.

A perusal of the papers shows that neither party has so far filed any affidavits concerning whether or not the Notice of Appeal was filed after HLATSHWAYO J had delivered his judgment.

As I have already pointed out, the issues at hand are hotly contested. There are serious allegations and counter-allegations concerning the parties, and court officials.

We operate in an adversarial legal system where the contest is between the parties, and the judge's role is mainly that of an umpire.

Normally, the judge only descends into the arena to seek clarification of the facts, and not to advance either party's cause. That being the case, Rule 246 is sparingly used by judges for fear of descending into the arena, and having their vision clouded by the dust of the conflict.

Considering that there has been no affidavits concerning the issue at hand, I consider it inappropriate to enter the arena at this point in time because there is really nothing to clarify at this stage. It is up to the parties to advance their respective positions without the assistance of the judge.

For the foregoing reasons, I direct that the parties shall proceed in terms of Rule 227(4) reserving my rights to invoke the discretion conferred upon me by Rule 246 as and when it becomes necessary in the course of proceedings.

HH113-09 : DIDYMUS MUTASA vs NGONI NDUNA N.O. and ATTORNEY-GENERAL and COMMISSIONER-GENERAL OF POLICE and ROBERT MCKERSIE
Ruled By: PATEL J

The applicant herein is the Minister of State responsible for Presidential Affairs. He was formerly the Minister responsible for Land Reform and Resettlement. The applicant originally sought an order, inter alia, staying and eventually setting aside the execution of a warrant of arrest issued against him on the 6th of ...

HH114-09 : WANINGA ENTERPRISES (PVT) LTD vs MABUMBO (PVT) LTD AND TWO OTHERS
Ruled By: CHITAKUNYE J

The applicant approached this court on an urgent Chamber Application. The first respondent opposed the application. However, before the parties could go into the merits of the case, counsel for the first respondent raised a point in limine to the effect that the purported application is, in fact, not an application in terms of the Rules. ...

HH140-09 : CRUISER BOND (PRIVATE) LIMITED vs ZIMBABWE REVENUE AUTHORITY
Ruled By: UCHENA J

Rule 227(4)(a) and (b) provides as follows: “(4) An affidavit filed with a written application – (a) Shall be made by the applicant or respondent, as the case may be, or by a person who can swear to the facts or averments set out therein; and (b) May be accompanied by documents verifying the facts or averments set ...

HH158-09 : WILTON RENSBURG vs MARKO MAVHURUME N.O. and THE REGISTRAR OF DEEDS N.O and THE DEPUTY SHERIFF
Ruled By: MTSHIYA J

The applicant has correctly conceded that a wrong procedure was followed in seeking the relief...,. Counsel for the applicant has, as a consequence, urged the court that, in the use of its discretion, it should not dismiss the application but refer the matter to trial on the basis of the papers already filed. As already indicated, the respondent ...

The applicant has correctly conceded that a wrong procedure was followed in seeking the relief...,.

Counsel for the applicant has, as a consequence, urged the court that, in the use of its discretion, it should not dismiss the application but refer the matter to trial on the basis of the papers already filed.

As already indicated, the respondent has called for the dismissal of the application on the ground that it was quite obvious that disputes of fact would arise, and that the applicant should have foreseen that eventuality, and, therefore, the need to change course.

I agree with the respondent's admission.

In agreeing with the respondent, I fully associate myself with the authorities, cited in the heads of argument, dealing with this issue. I cannot do any better but to reproduce here below the relevant passages in the respondent's written submissions. The submissions state, in part –

In the case of Jamarillo (Pty) Ltd v BN Aitken (Pty) Ltd 1982 (1 )SA 398 (AD)..., MILLER JC/CJ said the following –

“A litigant is entitled to seek relief by way of Notice of Motion. If he has reason to believe that facts essential to the success of his claim will probably be disputed, he chooses that procedural form at his peril, for the court, in the exercise of its discretion, might decide neither to refer the matter for trial nor to direct that oral evidence on the disputed facts be placed before it, but dismiss the application.”

Similarly, CENTLIVRES CJ said the following in the case of Adbro Investments Company Limited v Minister of the Interior 1956 (3) SA (AD)..., -

“Where the facts are in dispute, the court has a discretion as to the future course of the proceedings. It may dismiss the application with costs, or order the parties to go to trial, or order oral evidence in terms of any rule of court. The first course may be adopted when the applicant should have realized, when landing his application, that a serious dispute of fact was bound to develop.”

The above case authorities, in my view, endorse the sentiments of MAKARAU J..., in Ex-Combatants Security Company v Midlands State University HH80-06.

In casu, it was clear from the onset that serious disputes of fact would arise.

In my view, therefore, the facts of this case dictate that the correct use of my discretion should be to dismiss the application with costs.

It is clear to me that the applicant, who enjoyed legal representation from the time of filing the application, should have foreseen that disputes of facts would arise. This was not only upon receipt of the opposing affidavit, but upon preparation of his own founding affidavit. He knew he was relying on an oral agreement signed between himself and the deceased person. That alone, in my view, was enough to indicate to the applicant that there were potential disputes of fact. The argument that the potential disputes were not foreseen does not accord with common sense at all.

Accordingly, I order as follows:

The application is dismissed with costs.

HH164-09 : ZIMRE PROPERTY INVESTMENT (PVT) LTD vs CITY CALVARY CHURCH
Ruled By: GOWORA J

I must confess that, given the manner in which the application was made, the respondent would have been confused as to the exact nature of the relief being sought by the applicant. The averments being made, as to the different parties on the plans and the application, were made from the bar, and I was ...

HH166-09 : THE DIOCESAN TRUSTEES FOR THE DIOCESE OF HARARE vs THE CHURCH OF THE PROVINCE OF CENTRAL AFRICA
Ruled By: HLATSHWAYO J

There still remains the submission made that my role in the settlement effort pertaining to an application may be equated with participation in a pre-trial conference, which..., constitutes a bar to presiding over the actual trial in terms of a time-honoured tradition of this court. My view is that this comparison ignores important differences between application and ...

HB28-09 : LANGALIBALELE ETHAN DUBE and THENJIWE DUBE vs THEOPHILUS MALI ZONDO and REGISTRAR OF DEEDS
Ruled By: NDOU J

Order 32 Rule 230 deals with the form of court applications.

HB42-09 : MARGRET MOYO vs MR SIZIBA and DOKOTELA OMNIBUS, represented by R DOKOTELA and TRUST INSURANCE BROKERS
Ruled By: NDOU J

I do not think the question of affidavits arises at this stage. We are dealing with action proceedings, and I do not understand why counsel for the first and second respondents wants the allegations of the interruptions of prescription to be in affidavit form. These are not application proceedings.

HB62-09 : SAI ENTERPRISES (PRIVATE) LIMITED vs GIRDLE ENTERPRISES (PRIVATE) LIMITED t/a QUALITY ENGINEERING SERVICES (PRIVATE) LIMITED
Ruled By: NDOU J

The Supreme Court has decided to follow the interpretation in Theunissen v Payne 1940 TPD 680..., that the making of the application is when the application is set down, and heard, and not merely when it is filed with the Registrar of the Court – Sibanda v Ntini 2002 (1) ZLR 264 (S)..., and ...

HB89-09 : DUMISANI NCUBE vs THE ZIMBABWE REVENUE AUTHORITY (ZIMRA)
Ruled By: NDOU J

The applicant was aware that his only recourse against the respondent was to sue for damages (compensation). The applicant is aware that such a claim has to be instituted by way of action (summons) proceedings, as evinced by his action under HC1034/09. Unfortunately, such a claim cannot be instituted under a certificate of urgency.

HH04-10 : MYDALE INTERNATIONAL MARKETING (PVT) LTD vs DR ROB KELLY and HAMMER AND TONGUES (PVT) LTD
Ruled By: GOWORA J

The first respondent herein had, under Case No. HC1049/09, instituted proceedings against the applicant and second respondent herein. On 30 March 2009, OMERJEE J issued an order as follows:“IT IS ORDERED THAT:1. Mydale International Marketing (Pvt) Ltd is entitled to receive from the second respondent and have in its custody ...

The first respondent herein had, under Case No. HC1049/09, instituted proceedings against the applicant and second respondent herein. On 30 March 2009, OMERJEE J issued an order as follows:

“IT IS ORDERED THAT:

1. Mydale International Marketing (Pvt) Ltd is entitled to receive from the second respondent and have in its custody and under its control vehicles registration number no. AAU 8190, ABC 3354 and AAP 1952.

2. Mydale International (Pvt) Ltd shall record the mileage on each vehicle from the time of receipt from the second respondent.

3. Mydale International (Pvt) Ltd shall be entitled to ordinary use of the motor vehicles and shall not sell or otherwise alienate the said motor vehicles without an order of court.

4. Messrs Byron Venturas & Partners shall within 24 hours of the order surrender to the Registrar of the High Court, Harare the US$28,500 the proceeds for the sale of the six motor vehicles owned by Mydale International (Pvt) Ltd for retention by the Registrar pending the determination of any dispute over ownership of Mydale International Marketing (Pvt) Ltd.”

On 4 April 2009, the first respondent noted an appeal against the order, and, as a result, he did not surrender the money to the Registrar as had been ordered.

On 21 April 2009, the applicant launched these proceedings under a certificate of urgency for the grant of a Provisional Order. The respondent, having filed a notice of opposition and opposing affidavits, the matter was not heard on an urgent basis.

Instead, the learned judge before whom the matter was placed gave directions to the parties to file pleadings and thus the matter was converted into an opposed court application.

The second respondent has not filed any papers in this matter, and I will, as a result, refer to the first respondent as the respondent.

The matter was not heard on an urgent basis and the interim relief being sought was not granted.

The applicant has not however filed an amended draft order, and, from the submissions by counsel, it is clear that what is sought is an order in terms of the final relief on the provisional order. That part of the order depended on the court having granted interim relief.

A word of caution should be sent to legal practitioners to ensure that a draft order must be filed where an urgent application has been ruled not to be urgent and the matter proceeds on the basis of the provisional order initially filed with the application. A party must ensure that it moves for the order that it wishes for.

Where a provisional order is left without interim relief having been granted it should not be left to the judge to decide what order should be granted to the prejudice to parties in the dispute.

HH06-10 : HARLAND BROTHERS (PVT) LIMITED and RAYMOND FINAUGHTY vs THE MINISTER OF LANDS AND RURAL RESETTLEMENT and MRS WINNIE MUSHIPE
Ruled By: MUSAKWA J

The next argument raised by counsel for the second respondent was that an order for spoliation cannot be granted on a prima facie basis. There must be proof on a balance of probabilities. According to him, the applicants have not discharged such and the matter should be referred to trial. He referred to the case of ...

HH12-10 : In re: THE ESTATE OF THE LATE PATRICK MATIMURA vs X
Ruled By: BERE J

It is necessary to re-state the arguments raised by the parties involved in this case since no formal papers were filed as Rule 313 of the High Court Rules, 1971 does not seem to provide for the filing of proper court papers.

HH54-10 : ANDREW BRUFORD vs ATTORNEY GENERAL and MAGISTRATE JARABINI
Ruled By: BHUNU J

The applicant is standing trial in the Magistrates Court on charges he has not specified in his founding affidavit. The nature of the charges that the applicant is facing is however immaterial to the determination of this application.

What is material is that on the 15th of February 2010 the applicant made an application for discharge at the close of the State case. The application did not find favour with the trial magistrate who has now been cited as the second respondent. The trial magistrate having found no merit in the application dismissed the application and ordered that the trial must proceed at 2:15pm on the 4th of March 2010. That date was subsequently extended to today the 12th of March 2010 at 12noon.

I have further extended the time to 3pm this afternoon.

In dismissing the application for discharge at the close of the State case, the trial magistrate did not give his reasons for his determination. Aggrieved by the trial magistrate's interim determination, the applicant's lawyers wrote to the Clerk of Court on the 22nd February 2010 in the following vain:

“We refer to the above matter in an application for discharge of the Accused at the close of the State Case which was dismissed on the 15th March 2010.

We confirm that our Miss Maphosa requested for reasons for judgment for the purpose of an appeal to the High Court against the decision of his worship, Magistrate Jarabini, on the same day.

Kindly place this letter before his worship as a reminder.”

In paragraph 5(c) of his founding affidavit, the applicant had this to say:

“(c) My legal practitioner indicated that the said reasons were required for an appeal the defence intended to file with the High Court on my behalf.”

(d) The 2nd Respondent advised that the said reasons would be furnished and directed my legal practitioner to check with the court before the end of the following week.

(e) On the 22nd February 2010, the beginning of the following week, Miss Maphosa wrote a letter to the Clerk of Court which was received on 24th February 2010 as a reminder to the 2nd Respondent's commitment…,.

(f)…,.

(g)…,.

(h)…,.

(i) The 2nd respondent stated that he had not seen the letters but that he had written on the record, that, despite the request by the defence, he would only give his reasons in the main judgment.”

Aggrieved by the trial magistrate's refusal or failure to give reasons for his interim determination the applicant lodged this urgent application to this Court seeking a provisional order staying the criminal proceedings pending receipt of the trial magistrate's reasons for dismissing the application for discharge at the close of the State case.

Finally, the applicant seeks an order compelling the second respondent to furnish him with the reasons for the interim determination.

During the course of argument, counsel for the applicant made the valid concession that it would be premature and incompetent to appeal against the trial magistrate's interim determination at this stage as intimated in her letter and confirmed in the applicant's founding affidavit.

The defence having realized the folly of its written word, counsel has now made an about turn and has submitted that the defence in fact meant that it intended to seek a review of the of the trial magistrate's interim determination.

That may very well be so, but, applications are determined on the record with affidavits constituting the evidence.

While counsel may seek to amend her own letter, it is virtually impossible to amend her client's affidavit.

HH92-10 : MUDZIMUUNOERA APOSTOLIC CHURCH BOARD OF TRUSTEES vs MUDZIMUUNOERA APOSTOLIC CHURCH –GURUVE DIVISION and THE DEPUTY SHERIFF-MT DARWIN
Ruled By: MAKARAU JP

While the use of a wrong form of application to approach the court for relief is not in general fatal to the application, in this instance it is my view that it is. By approaching that court by way of a chamber application, the applicant assumed a very light burden of ...

HH98-10 : FIONA EVELYN TAISEKWA JIRIRA vs ZIMCOR TRUSTEES LIMITED and REGISTRAR OF DEEDS
Ruled By: MAKARAU JP

To bring proceedings by way of application or by way of summons is an issue that must be uppermost in the mind of each and every legal practitioner who is given instructions to approach the court for relief. While application procedure is the more expedient manner of resolving disputes, it is not always suitable. Rules and ...

HH108-10 : INYANGA DOWNS ORCHARDS vs EDWARD BUWU
Ruled By: MUSAKWA J

The second point raised by counsel for the respondent was that the application does not conform to Rule 241 of the High Court Rules. His submission was that Rule 241 is clear on what form a chamber application should assume. Whereas the Rule requires that in a chamber application there must be a summary of the facts; what is before this court is merely the founding affidavit. Counsel for the respondent cited the cases of Ndebele v Ncube 1992 (1) ZLR 288 (S) and Beitbridge Rural District Council v Russell Construction (Pvt) Ltd 1998 (2) ZLR 190 (SC) as authorities on non-compliance with the Rules of Court.

On the defective form of the application, counsel for the applicant submitted that there is no strict requirement that there be a summary of the facts. In essence, he submitted that forms used are not rigid requirements and therefore non-compliance is not fatal to the application. The thrust of counsel for the applicant's submission on this issue is that if there is such an omission then it should be condoned by the court.

Concerning the form of the present application, it is quite clear that the applicant fell foul of Order 32 Rule 241 (1) which provides that -

“A chamber application shall be made by means of an entry in the chamber book and shall be accompanied by Form 29B duly completed, and, except as is provided in subrule (2), shall be supported by one or more affidavits setting out the facts upon which the applicant relies:

provided that where a chamber application is to be served on an interested party it shall be in Form No. 29 with appropriate modifications.”

Form 29B requires the applicant to set out, in summary, the basis of the application. It is a mandatory requirement by virtue of the wording of Rule 241(1). I am further fortified, in my view, by Order 1 Rule 4 which provides that -

“The forms in the First Schedule shall be used where applicable and any reference in these rules to a form by number is a reference to the form in that schedule bearing that number.

(2) The forms prescribed in the First Schedule may be used with such alterations as circumstances require.”

Appealed
SC67-14 : JONATHAN MOYO vs ROSELINE NKOMO
Ruled By: GWAUNZA JA, GARWE JA and GUVAVA JA

This is an appeal against the entire judgment of the Electoral Court, Bulawayo, handed down on 31 January 2014.

The brief facts of the matter are as follows:

The appellant was a candidate for the National Assembly seat for Tsholotsho North Constituency in Matabeleland North Province in the harmonised elections held on 31 July 2013. He was a nominee of the ZANU (PF) political party. The respondent was also a candidate for the same seat representing the MDC-T political party.

The respondent was declared the winner of the National Assembly election in respect of the said constituency. The appellant was not satisfied with this outcome and filed a petition in terms of section 167 of the Electoral Act [Chapter 2:13] (“the Act”).

Among other relief, the appellant sought an order in the following terms:

1. That the respondent was not duly elected as the representative of Tsholotsho North Constituency as declared on 1 August 2013 by the Zimbabwe Electoral Commission; and

2. That the said election be set aside and a by-election held within 90 days of the order.

At the hearing of the petition, the court a quo upheld the points in limine raised by the respondent and issued an order in the following terms:

“1.The Electoral Petition filed by the petitioner in this case is fatally defective and is of no force and effect for want of compliance with Rule 21(e) and (g) of the Electoral (Application, Appeals and Petitions) Rules, 1995.

2. The applicant's Petition is hereby dismissed with costs.

3. The respondent, Roseline Nkomo, be and is hereby declared duly elected member of the National Assembly for the Tsholotsho North Constituency.

4. The Registrar is hereby directed to proceed in terms of section 171(3)(a)(ii) of the Electoral Act [Cap 2:13].”

Dissatisfied with the judgment of the court a quo, the appellant noted an appeal to this Court and raised a number of grounds of appeal which may be summarised as follows;

1. The dismissal of the Petition without a trial was in contravention of section 171 of the Electoral Act, which makes a trial mandatory;

2. That the court a quo erred at law in finding that the form of the petition adopted by the appellant was not in compliance with the Electoral Act and Rules.

The appellant accordingly seeks an order that:

(i) The appeal be allowed.

(ii) The order of the court a quo be set aside and substituted with an order to the effect that the points in limine raised by the respondent be dismissed with costs and the matter referred to trial before a different judge of the Electoral Court.

Before the hearing in the court a quo the parties agreed on the issues to be determined by the court and these were set out in a joint pre-trial conference minute dated 13 December 2013.

Among such issues were two preliminary matters, one being whether the petition conformed to the provisions of the Electoral Act and relevant Rules.

As already indicated, the court a quo found that the petition did not comply with Rule 21(e) and (g) of the Electoral (Applications, Appeals and Petitions) Rules S.I.74A of 1995 (“the Rules”).

The appellant challenges this finding on the two grounds mentioned above. He contends;

(i) Firstly, that it is contrary to section 171(1) and (3) of the Electoral Act which requires that such a determination be made only at the end of a trial.

(ii) Secondly, he submits that in any case, the petition that he filed complied substantially with the requisite requirements of the Electoral Act and the Electoral (Applications, Appeals and Petitions) Rules S.I.74A of 1995.

The section reads as follows:

“1. An Election Petition shall be tried by the Electoral Court in open court.

2….,.

3. At the conclusion of the trial of an election petition, the Electoral Court shall determine whether the respondent was duly elected or whether any, and if so, what person other than the respondent was entitled to be duly elected…,.”…,.

The appellant argues on the basis of these provisions that in the court a quo a trial neither commenced nor was it concluded, as the matter had been determined on preliminary points.

It is the appellant's further argument that the order of the court a quo was therefore not competently made.

We find merit in the submissions made by counsel for the respondent that a trial is a process that consists of pleadings (which are adjectival and procedural) and substance (which is the oral hearing where viva voce evidence is led). Further, that, as part of any trial, a court is enjoined to hear arguments on points in limine, if any, and may dispose of the matter purely on those points.

As is evident from the joint pre-trial conference minute, both parties appreciated this possibility.

Indeed, at the commencement of the hearing before the court a quo the parties made submissions on the preliminary issues raised. The court was, after that, required to make a determination on these issues and properly proceeded to do so....,.

In the result, we are satisfied that a trial was properly held in accordance with section 171(1) and (3) of the Electoral Act [Chapter 2:13].

HH179-10 : TM SUPERMARKETS (PVT) LTD vs CHADCOMBE PROPERTIES (PVT) LTD and ROCKMOUNT TRADING (PVT) LTD
Ruled By: MTSHIYA J

This application was filed on 23 March 2010 as an urgent application. The papers before me show that, as at that date the applicant was already aware of both respondents' positions regarding the facts in dispute. This is confirmed in the correspondence exchanged between the parties' legal practitioners. Issues relating to ownership of property and removal of property were discussed in the correspondence. It, therefore, has to be ascertained, through viva voce evidence, whether or not the first respondent and the applicant were, indeed, together, preparing for the second respondent's quiet possession of the premises.

As already indicated, I believe that, in casu, the applicant was aware that serious disputes of fact would arise or had already arisen. He should therefore have avoided the application route. In Masukusa v National Foods Ltd & Anor ZLR 1983 (1) 232 McNALLY J..., said -

“Where the facts are in dispute, the court has a discretion as to whether to dismiss the application or allow the matter to go to evidence. The first course is appropriate where an applicant should, when launching his application, have realized that a serious dispute of fact was inevitable.”

(See also Tamarillo (Pty) Ltd v BN Aitken (Pty) Ltd (1) SA 398 (AD) and Adbro Investments Company Limited v Minister of the Interior 1956 (3) SA 350 (AD).

My finding in casu, therefore, is that the potential disputes were not only foreseen, but were already known, by the time this application was launched. I would, accordingly, in the use of my discretion, dismiss this application. I believe the finding that a wrong procedure has been used can, in certain circumstances, be so fatal as to mean that a matter is not properly before the court. Accordingly, in such a case, the court is disabled from proceeding to consider the merits of the case. That can only be done after a resolution of the disputes of facts. There is, therefore, merit in the submission that this matter should have been brought by way of action....,.

The application is dismissed with costs.

HH185-10 : MUHAMMAD ZAKIR vs CHIEF IMMIGRATION OFFICER and MINISTER OF HOME AFFAIRS
Ruled By: BERE J

The format of a chamber application, be it ordinary or urgent, is provided for in terms of Order 32 Rule 241(i) of the High Court Rules, 1971. The rules governing chamber applications do not make it mandatory that the applicant be the deponent to the founding affidavit. Anyone who can swear positively to the facts ...

View Appeal
HH186-10 : CAFCA LIMITED vs RESERVE BANK OF ZIMBABWE
Ruled By: MTSHIYA J

On 29 July 2008, the plaintiff issued summons against the defendant for the following relief:-

“(a) Payment of the sum of US$750,000.

(b) Interest a tempore morae at the London Interbank rate for United States dollars, 3.5% per annum, from 1 September 2005 to date of payment.

(c) Costs of suit.”

The background to the relief sought can briefly be narrated as follows:-

The plaintiff is a manufacturer and supplier of exclusive range of cables for the transmission and distribution of energy and communications involving entities like the Zimbabwe Electricity Supply Authority, the Rural Electrification Agency, and Tel-One.

The plaintiff's business caters for both domestic and export markets. As at end of 2003, 50% of its sales volumes were largely in exports.

In October 2004, the plaintiff approached the defendant for assistance. The defendant was then operating a foreign currency auction system. Through that system, the defendant made available, each week, from 25% of export proceeds, an amount of foreign currency for which commercial banks would submit bids for their customers. On the basis of those bids, allocations would then be made to the highest bidder(s).

In line with the auction system, on 24 October 2004, the defendant, through its Governor, informed the plaintiff, that, if it (plaintiff) submitted bids to the auction, the defendant would ensure that it (plaintiff) succeeded to the extent of US$150,000 per week to enable it to pay for essential inputs in its operations.

That process was indeed put into place on a weekly basis as from 14 January 2005 up to June 2005.

This was a special arrangement where the plaintiff would, instead of placing a bid, it would merely be advised, through a telephone call, each week, from the defendant's officials, that, the said allocation of US$150,000 was ready. All the plaintiff was required to do, in turn, was to pay the Zimbabwe dollar equivalent within 24 hours. The plaintiff would then, in turn, transfer, through a Commercial Bank, the requisite Zimbabwean dollar amount and details of the foreign suppliers to be paid in foreign currency (i.e from the US$150,000 allocated to the plaintiff).

The allocation of US$150,000, was, with effect from 16 June 2005, increased to US$250,000.

Weekly allocations, at that new level, were made to the plaintiff until the end of July 2005.

The allocation system was continued in August 2005 resulting in the plaintiff making three transfers of undisputed payments in Zimbabwe dollars for the equivalent of the amount of US$750,000 - now being claimed by the plaintiff.

The payments were, in each case, accompanied by details of external creditors to be paid by the defendant.

Notwithstanding the payment of the equivalent amount in Zimbabwe dollars by the plaintiff, the defendant has, to date, not forwarded the foreign currency to the plaintiff's external creditors or refunded the plaintiff with the said amount of US$750,000. In fact, the plaintiff has already, through other sources, paid its suppliers.

The above, in brief, explains why the plaintiff has resorted to this court action claiming the said amount of US$750,000.

With both the plaintiff and the defendant having amended their pleadings at the pretrial conference, it was agreed that the issues for trial were:-

“(a) Whether defendant is contractually obliged to pay plaintiff the sum of US$750,000;

(b) Whether defendant is estopped from denying its obligation to pay plaintiff the sum of US$750,000;

(c) Whether defendant's tender to repay the sums of Zimbabwean currency paid to it by plaintiff is a proper tender which plaintiff is obliged to accept.”

At the commencement of the trial, I indicated to both parties that, given the fact that both parties were generally agreed on what transpired, my view was that the matter could be determined through merely hearing arguments from both sides.

The plaintiff was, however, opposed to that approach and preferred to lead evidence. The defendant then also adopted the same stance.

I therefore had no option but to allow the parties to lead viva voce evidence.

HH194-10 : MANDLENKOSI NHLIZIYO vs GREYS SERVICES STATION and HILLARY NDEBELE and THE DEPUTY SHERIFF
Ruled By: MAWADZE J

The second point in limine raised by counsel for the first respondent is that the applicant has not complied with the mandatory requirement of Rule 241(1), and, on that basis alone, this application should fail. Rule 241(1) provided as follows - “241 Form of chamber applications (1) A chamber application shall be made by means of an ...

“241 Form of chamber applications

(1) A chamber application shall be made by means of an entry in the chamber book and shall be accompanied by Form 29B duly competed, and, except as provided in subrule (2), shall be supported by one or more affidavits setting out the facts upon which the applicant relies."

Form 29B provides that the grounds upon which the application is based must be set out in that form.

I understand counsel for the first respondent's argument in its regard to be two fold. Firstly, in that this application is not accompanied by Form 29B and, secondly, that the facts or grounds upon which this application is based are not set out in the format provided for under Rule 241(1). It is correct that this application is not accompanied by Form 29B and that on p1 of the application, which should be in the format of Form 29B, the grounds upon which the application is based are not set out.

Counsel for the applicant countered that the applicant complied with the requirements of Rule 241(1) as the applicant has proceeded to set out the grounds upon which the application is based in the founding and supporting affidavits.

I am not persuaded by counsel for the applicant's argument. Rule 241(1) clearly provides for two requirements, which are –

(1) That the application shall be supported by one or more affidavits; and secondly

(2) Be accompanied by Form 29B.

The grounds upon which the application is based should be stated both in the supporting affidavits and in Form 29B. This would imply that the setting out of the grounds upon which the application is based in the supporting affidavit would not obviate the need to attach Form 29B duly completed (which entails setting out the facts upon which the application is based). Indeed, this may sound redundant and unnecessary but the requirements set out in Rule 241(1) are clear.

Counsel for the first respondent referred to the case Inyanga Downs Orchards v Edward Buwu HH108-10 in which MUSAKWA J, in dealing with the effect of non-compliance with the requirements of the Rules, inclusive of Rule 241(1) extensively referred to the case of Forestry Commission v Moyo 1997 (1) ZLR 254 (S) (and an earlier decision by MALABA J..., in the same case).

I do not share the view that in Inyanga Downs Orchards v Edward Buwu HH108-10 MUSAKWA J dismissed the urgent chamber application solely on the basis of non-compliance with Rule 241(1) specifically failure to attach Form 29B. In that case, MUSAKWA J considered a number of points in limine raised by the respondent and arrived at the following decision..., -

“From a consideration of the points in limine I come to the conclusion that the application cannot be entertained. Therefore, the application is dismissed with costs.”

In casu, the applicant has partially complied with the mandatory requirements of Rule 241(1) by setting out the grounds upon which the application is based in the supporting affidavits…,. However…, I am not persuaded that, despite such partial compliance, I should still dismiss the application on the basis that it is fatally defective. In my view, proper and relevant arguments need to be made in that regard before this court can pronounce itself with finality on that issue.

My view is that counsel for the applicant should have sought condonation for the failure to fully comply with Rule 241(1). The remarks by GUBBAY CJ…, in Forestry Commission v Moyo 1997 (1) ZLR 254 (S) are pertinent -

“I entertain no doubt that, absent an application, it was erroneous of the learned judge to condone what was, on the face of it, a grave non compliance with Rule 259. For it is making of the application that triggers the discretion to extend time. In Matsambire v Gweru City Council SC183-95 (unreported) this court held that where proceedings by way of review were not instituted within the specified eight week period and condonation of the breach of Rule 259 was not sought, the matter was not properly before the court. I can conceive of no reason to depart form that ruling. One only has to have regard to broad factors which a court should take into account in deciding whether to condone such non-compliance, to appreciate the necessity for a substantive application to be made.”

The remarks by the learned CHIEF JUSTICE…, in my view, state the basic principle that where there is non-compliance with the mandatory requirements of the Rules, such an omission should, as a matter of principle, be cured by making a proper application for condonation.

In casu no such application was made.

HH220-10 : BACHI FARM (PVT) LTD and COBBLESTONE INVESTMENTS and TRIBACK (PRIVATE) LIMITED vs OLIVER DZVENE and HOWARD MATARE and OTHERS
Ruled By: CHIWESHE JP

It was reasonably foreseeable that there would be disputes of fact in this application. The applicants should have proceeded by way of action.

HH231-10 : AGRICULTURAL BANK OF ZIMBABWE LTD t/a AGRIBANK vs NICKSTATE INVESTMENTS (PVT) LTD and RICHARD MAKWARA and PLAXEDES MAKWARA
Ruled By: GOWORA J

I believe that generally the procedure for the amendment of pleadings is as stated by their Lordships in ZFC v Taylor 1999 (1) ZLR 308 and UDC v Shamva Flora (Pvt) Ltd 2000 (2) ZLR 210 (H). An application has to be made to court for the amendment to be granted and application procedure is ...

HB17-10 : NQOBANI SITHOLE vs SENIOR ASSISTANT COMMISSIONER – OFFICER COMMANDING POLICE – MAT. SOUTH PROVINCE – N. SIBANDA and COMMISSIONER GENERAL and THE MINISTER OF HOME AFFAIRS
Ruled By: NDOU J

It seems to me that the application is seriously flawed. The final order sought is a review of the decision by the Commissioner General of Police to transfer him to Murewa. In terms of Order 33 Rule 256 of the High Court Rules, 1971, an application for review should be by way of court application and ...

HB43-10 : QHUBEKANI DUBE and MQONDISI MOYO and PHATHISANI NONDO vs CONSTITUTIONAL SELECT COMMITTEE (COPAC)
Ruled By: NDOU J

The applicants equally cannot seek a review of the Constitutional Select Committee's decision in an urgent chamber application.

HB119-10 : NYARADZAI KAZUVA vs GILBERT DUBE
Ruled By: CHEDA J and MATHONSI J

The respondent in this matter issued summons out of the Magistrates Court of Bulawayo on the 14th August 2008. In that summons he claimed a “sharing of property” and “custody of children”.

At the same time, the respondent filed an affidavit, sworn to by himself, in which he alleged that he had been customarily married to the appellant in 1995 which union still subsisted and that there were three minor children born of the union, namely, Perfect Dube, born on 2nd April 1996, Prince Dube, born on 3 January 2000, and Priscilla Dube, born on 19 August 2004.

In that affidavit, the respondent persisted in his claim for custody of the children and a division of the property between himself and the appellant.

On the 6th May 2008, he filed an additional affidavit in which he sought to amend his papers by withdrawing House No.15913 Nkulumane 12, Bulawayo from the list of the property to be shared alleging that it belonged to his employer, Delta Beverages (Pvt) Ltd.

The appellant did not file any notice of appearance to defend, neither did she file a plea or notice of opposition.

The matter was set down for hearing on the 12th May 2008 on which date some kind of a trial commenced with the appellant in attendance.

The appellant verbally told the court that she was opposed to the claim made by the Respondent and both parties gave evidence before the Magistrate.

During the trial, the respondent told the Court that he was claiming the “matrimonial house” because he acquired it with the assistance of his employer who provided a loan for the construction of a two-roomed house. The house was completed in 1997 at which point he and the respondent moved in and although he produced Deed of Transfer No.629/02 with no mortgage bond registered on it, showing that the house is in his name, the respondent maintained that the house belonged to his employer.

The appellant also testified in Court to the effect that herself and the respondent acquired the house together after which they agreed that she should go and work in Botswana to raise money to improve the house as the respondent's income was too meagre for them to develop the house. With the extra income she got from Botswana, they managed to add six (6) more rooms to the house which now proudly stands as an eight (8) roomed house.

The appellant maintained that she wanted to remain in that house with the children and should be awarded custody of the said children.

The court allowed the two elder children to testify and both of them unequivocally told the court that they preferred staying with their mother. In fact, Perfect Dube said he preferred staying with his mother because his father “does not buy vegetables”; and, although Prince Dube insisted he wanted to live with his mother he did not give reasons for that.

In its judgment, the court a quo concluded that as the parties were living together as husband and wife both contributed to the extension of the house, and, for that reason, the appellant was entitled to a share of the house.

As there appeared to be no dispute on the sharing of the movable assets, the court a quo awarded the stove, two (2) blankets, colour television, double bed, and sofas to the respondent. The appellant was awarded another stove, kitchen utensils, three (3) blankets, mosquito net, display, radio, curtains, and a room divider.

The house was shared at the ratio of 80% to the respondent and 20% to the appellant with the respondent being allowed to buy out the appellant in order to retain the house.

The respondent was awarded custody of two (2) of the children, namely, Perfect and Prince - despite their avowed preference to be with their mother; while the youngest child, a girl, was awarded to the appellant.

Unhappy with that decision, the appellant appealed to this Court on the grounds, inter alia, that the division of the assets was not equitable and that she is the better custodian parent.

At the hearing of the appeal, the appellant, who appeared in person, exhorted us to overturn the decision of the court a quo and award her a 50% share of the house and custody of all the children together with maintenance especially as the respondent has now remarried and is unable to look after the children properly in those circumstances.

This matter presents some difficulty.

The first problem arises from the fact that the matter appears to be a hybrid of trial action and application procedure. The respondent issued a summons commencing action which was supported by affidavit. This was an unacceptable mixture of procedure which was not picked by both the Clerk of Court and the trial magistrate.

Without following the Rules relating to the filing of pleadings and the holding of a pre-trial conference before a trial could be conducted, the magistrate proceeded to trial and heard viva voce evidence from the parties while also accepting affidavits filed by the respondent. As stated in Mandava v Chasweka HH42-08 (as yet unreported)…,;

“All Magistrates' Courts in this country are formal courts whose proceedings are governed by a set of rules and established procedures.

It is trite that the pre-setting of rules of procedure is, to date, the widely accepted manner of avoiding arbitrariness and ensuring fairness in the airing of disputes by litigants. Rules of Court are framed for a purpose and any procedure done outside the Rules is susceptible of being set aside as being unprocedural.”

It is clearly incompetent for the Magistrates' Court to invent a new procedure of dealing with disputes which procedure is not provided for in the Rules of the Court and is a mixture of summons action and application procedure.

That procedure simply does not exist.

The two procedures are mutually exclusive and cannot be employed at the same time to resolve the same dispute. See Mandava v Chasweka HH42-08.

HH37-13 : CHAMPION CONSTRUCTORS (PVT) LTD vs MILTON GARDENS ASSOCIATION and THE CITY OF HARARE and THE DIRECTOR OF URBAN PLANNING SERVICES and DIRECTOR OF WATER SERVICES and ANOTHER
Ruled By: MATHONSI J

Counsel for the first respondent took two points in limine, namely, that the chamber application is defective as it does not comply with Rule 241 of the High Court Rules in its form as it does not set out concisely the grounds of the application.

HH71-11 : NIGEL DAMIAN MORRIS vs CHIQUITA MORRIS and MASTER OF HIGH COURT
Ruled By: MAWADZE J

It is trite law that where there is conflicting evidence the correct course to take is to proceed by way of action rather than motion proceedings. The consequences of choosing the wrong procedure are clear. See Masukusa v National Foods Ltd Anor 1983 (1) ZLR 232 (HC) in which Mc NALLY J..., ...

HB09-13 : ELLEN MBUVAH and MINING INDUSTRY PENSION FUND and NATIONAL RAILWAYS OF ZIM and OTHERS vs JAMES MANGACHENA & ANOR and DR ZIWAI MANESWA and DISHAI MARKETING & MERCHANDISING (PVT) LTD and OTHERS
Ruled By: CHEDA AJ

In case number 3891/12, the applicant filed a chamber application for a provisional order against the respondent. The provisional order was granted and served on the respondent. Thereafter, the respondent, having not opposed the confirmation of the provisional order, the applicant proceeded to file a notice of set down for the hearing and confirmation of ...

Instead of the applicant filing a proper court application, the application was set down for hearing still in the form of a chamber application. The Rules for setting down a case as a court application were not followed.

Order 32 and the Rules therein set out clearly how a court application is made to a court. A chamber application is made to a judge in chambers according to Rule 226(1)(b). A court application is made to a court in accordance with Rule 226(1)(a).

Rule 226(2) provides for a default judgment to be made as a chamber application. Rule 230 says a court application shall be made in Form Number 29.

Rule 241 directs that a chamber application shall be made on Form Number 29B.

It follows that a court application cannot be made to a court as a chamber application and vice versa. The correct format should be followed.

For the sake of clarity, a judge may, at his discretion, direct that a court application be heard by him in chambers and a chamber application be heard in court if he sees fit. A matter that starts as a chamber application should wear its correct court application jacket when it goes to court as it will no longer be a chamber application.

Accordingly, it was not proper to simply take chamber applications to court and attempt to treat them as court applications while they are still presenting themselves as chamber applications, yet the orders sought are court orders to be made in open court. Default judgments on simple claims are also chamber application as stated earlier. There is no justification for a default judgment to be set down in court, although there are specific cases, such as matrimonial cases and certain claims for damages which are made as court applications.

Accordingly, where a party seeks an order from a judge in chambers, or a court order from the court, the correct format should be followed in terms of the above Rules.

The above example applies to the above cases that were removed from the roll and must now be set down in terms of the appropriate Rules and format.

I have discussed the above with the other judges and they concur with the above directive.

HH40-14 : JERIPHANOS MUGAVIRI vs AUSTIN MURANGWANA ZVOMA
Ruled By: TAKUVA J and MUSAKWA J

Similarly, the raising of the provisions of section 11(1)(b)(iii) of the Magistrates' Court Act is as a result of a misreading of the section. It is totally inapplicable. In any case, if the criticism's epicenter is that the court a quo should not have dealt with the matter as a court application, the ...

HB118-11 : FANI MULEYA vs ROSINA MULEYA
Ruled By: NDOU J and MATHONSI J

The appellant did not enter appearance to defend but somehow the parties appeared before the trial magistrate and a kind of trial was conducted….,. The process filed and the manner in which the trial was conducted means that it is a hybrid of trial action and application procedure. A litigant cannot issue a summons commencing ...

Appealed
HB42-14 : MINISTER OF HIGHER & TERTIARY EDUCATION vs BMA FASTENERS PL and CHRISTOPHER MASWI N.O (as Provisional Judicial Manager of BMA FASTENERS PL) and MASTER OF THE HIGH COURT OF ZIMBABWE N.O.
Ruled By: MAKONESE J

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

HB105-14 : MARIA MANOLAKAKIS vs ESTATE LATE DR. JOHN MANOLAKAKIS and ESTATE LATE EVANGELIA PATRINOS and IOANNIS IOANNIDIS and CONSTANDINOS PATRINOS and ROBERT BOWES and DEPUTY MASTER
Ruled By: MAKONESE J

The plaintiff contends that the representation of the first to fifth respondents in these proceedings is not clear in that when proceedings resumed on the 14th October 2013, the defendants opened their case by calling a handwriting expert, Cecil Greenfield, to give evidence. Thereafter, on the 3rd of June 2014, the defendants called two further ...

The plaintiff contends that the representation of the first to fifth respondents in these proceedings is not clear in that when proceedings resumed on the 14^th October 2013, the defendants opened their case by calling a handwriting expert, Cecil Greenfield, to give evidence. Thereafter, on the 3^rd of June 2014, the defendants called two further witnesses, namely, another handwriting expert Mrs Louricka Buckley and an accountant, Mr Lunat, who both testified. After the evidence of these witnesses was recorded the defendants closed their case.

None of the cited defendants were called to give evidence to rebut the plaintiff's claims. The presence of the defendants in court was not formally registered.

The current position is that there is no executor, at present, in the estate of the late Dr. Manolakakis. The last executor was Evangelia Patrinos who died on the 9^th March 2008. After the death of Mrs Patrinos, the fifth defendant, Robert Malcom Bowes, attempted to have himself appointed as the executor in the estate of the late Dr. Manolakakis but was barred from such appointment by virtue of an order of this court, under case HC2236/08, which order effectively interdicted the Deputy Master from holding an edict meeting pending the resolution of the dispute in this matter.

During the course of the proceedings, no one appeared to represent the first defendant nor were any documents placed before the court to show any representation of the first defendant. The second defendant's executor ought to have at least given evidence, if only to formally place before the court his proof of authority in the form of Letters of Administration. The fifth defendant did not formally appear in court as a party to the proceedings. It must be noted that during the proceedings counsel for the defendants appeared to be receiving instructions from the fifth defendant who continuously followed the proceedings and handed notes to his legal counsel. It seemed quite evident that the fifth defendant has a deep rooted interest in the matter and the outcome of the proceedings and possibly is the only person who could have facilitated attendance of the expert witnesses, two of whom were from South Africa. What is disconcerting, and perhaps rather strange is that the fifth defendant was not formally referred to at any stage during the proceedings. There was no explanation as to the origin of all the documents introduced into the record on behalf of all the defendants. It seems probable that the fifth defendant was in the predicament that having attempted to have himself appointed as the executor of the first defendant, he could not be seen to be actively opposing the plaintiff's claims because there would be a conflict of interest. The defendants have chosen not to show their hand and in doing so they were actually in default. Even without dealing with the merits of the matter, it is clear that the plaintiff would be entitled to the relief sought by reason of the default of all the defendants.

In the absence of any reasonable explanation, where a party fails to attend court, the plaintiff is ordinarily entitled to the relief sought. If the defendants were represented by virtue of a Power of Attorney, then the agent should have appeared in court on their behalf to produce proof of such representation and formally register their interest in the matter.

The questions to be asked are;

(i) Without any of the defendants' appearance, on whose behalf were the defence witnesses giving evidence?

(ii) To whose benefit were the witnesses called?

In spite, however, of my finding that the defendants were in default, I shall proceed to determine the merits of the matter.

CC06-15 : ANNA CHIHAVA and BOAS MAPUVA and ZISHE CHIZANI vs THE PROVINCIAL MAGISTRATE FRANCIS MAPFUMO N.O. and THE PROSECUTOR GENERAL
Ruled By: CHIDYAUSIKU CJ, MALABA DCJ, ZIYAMBI JCC, GWAUNZA JCC, GARWE JCC, GOWORA JCC, HLATSHWAYO JCC, GUVAVA JCC and CHIWESHE AJCC

This Court is not able to call and hear viva voce evidence from the parties...,.

SC56-13 : ELIZABETH NDAVA vs TENDAI CHIVIZHE TAKARUWA and ELIZABETH ARTZINGER
Ruled By: MALABA DCJ, ZIYAMBI JA and GOWORA JA

In what was a clear procedural irregularity, the respondent's legal practitioner called a witness to give evidence in support of the respondent's case before any of the respondents gave evidence. It is not clear from the record why the learned judge allowed this to happen notwithstanding the objections by the appellant's legal practitioner.

HH11-15 : RM MINING AND INDUSTRIAL ZIMBABWE (PRIVATE) LIMITED vs STANBIC BANK ZIMBABWE LIMITED
Ruled By: MAFUSIRE J

The urgent chamber application was defective from the outset. It had not been in Form No.29 of the Rules of this court as required by the proviso to Rule 241(2): See Zimbabwe Open University v Mazombwe 2009 (1) ZLR 101 (H); Minister of Higher Tertiary Education v BMA Fasteners (Private) Limited ...

HH13-15 : MICHAEL BASIKITI vs CHIVERO STANELY MDOKWANI and MINISTER OF LANDS AND RURAL RESETTLEMENT and DEPUTY SHERIFF, MARONDERA
Ruled By: NDEWERE J

Rule 241 requires a chamber application to be accompanied by Form 29B “duly completed.” Form 29B provides as follows:- “Application is hereby made for an order in terms of the order/draft order annexed to this application on the grounds that: (Set out in summary the basis of the application) The accompanying affidavit/s and documents are ...

Rule 241 requires a chamber application to be accompanied by Form 29B “duly completed.” Form 29B provides as follows:-

“Application is hereby made for an order in terms of the order/draft order annexed to this application on the grounds that: (Set out in summary the basis of the application)

The accompanying affidavit/s and documents are tendered in support of the application.”

The applicant did not use Form 29B. He left out “…, on the grounds that”: and did not proceed to give a “summary of the basis of the application.”

The applicant's application is therefore defective. It did not comply with Rule 241. Yet Rule 241 is very instructive. The form includes the words '…, on the grounds that…,' to remind a litigant to put the grounds. The form then says 'summarise the basis for the application', again, to remind the litigant to inform the court and the other party the basis of the application. The Rule itself says the application 'shall be accompanied by Form 29B duly completed.' The use of the word “shall” shows that it is mandatory for a litigant to use Form 29B; but the Rule does not stop there, it proceeds further and says 'duly completed.' Again, a reminder that after adopting the Form, it must be completed eg where it says summarise the basis for the application.

It actually makes sense for a litigant to summarise the basis of the application - especially if the litigant wants the court to deal with the matter urgently. How can a judge deal with the matter urgently if he/she has to plough through the Founding Affidavit and supporting documents to find out the basis of the application? Precious time will be spent before the judge knows the grounds of the urgent application if litigants do not give a summary of the basis on the face of the application as provided by Rule 241 and Form 29B.

The case of New Vision Promotions v Ganya and Ors HB54-07 referred to by the first respondent's counsel is relevant to this case. In that case, the court said:-

“An urgent chamber application accompanied by a certificate of urgency should be accompanied by Form 29B as stipulated by Rule 241.”

The case of Mandlenkosi Nhliziyo v Greys Service and Ors HH194-10 is also a case in point. In that case, the applicant who had not used Form 29B argued that he had complied with the Rules because the applicant had set out the grounds upon which the application was based in the founding and supporting affidavits. The judge stated, on p 4 of the cyclostyled judgment:

“Rule 241(1) clearly provides for two requirements, which are that the application shall be supported by one or more affidavits, and, secondly, be accompanied by Form 29B. The grounds upon which the application is based should be stated both in the supporting affidavits and in Form 29B.”

The applicant, despite the repeated requirement for 'grounds' and 'basis' and a 'duly completed' form ignored the provisions of Rule 241. He did so at his own peril.

His application is therefore defective.

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

HB17-12 : MATILDA NAKAI MATHE vs NYAMBE MATHE Ruled By: NDOU J

HH55-09 : EBI ZIMBABWE (PVT) LTD vs OLD MUTUAL UNIT TRUSTS (PVT) LTD and ADVOCATE J.C.J. LEWIS Ruled By: PATEL J

HH42-08 : JAMESON MANDAVA vs TSITSI CHASWEKA Ruled By: MAKARAU JP and HLATSHWAYO J

HB23-09 : LARRY BEN MPOFU vs MIKA PARIRA MPOFU AND TWO OTHERS Ruled By: NDOU J

HH120-12 : JOHN MAUCHAZA vs SARAH NOTA Ruled By: GOWORA J and PATEL J

HH56-12 : ELIAS KASEKE and WAFAWANAKA KUCHERA and SIBUSISO NCUBE vs MASTER OF THE HIGH COURT and MAVIS CHIZENGENI (as Executrix Dative of Estate Late Jessie Zengeya) Ruled By: MAWADZE J

HH43-09 : ZIMBABWE OPEN UNIVERSITY vs DR. O MAZOMBWE Ruled By: HLATSHWAYO J

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HH32-08 : LOVENESS SENGEREDO vs ERIC CABLE N.O. Ruled By: MAKARAU JP

HH01-10 : RIVER RANCH LIMITED vs DELTA CORPORATION LIMITED Ruled By: PATEL J

HH37-08 : MOVEMENT FOR DEMOCRATIC CHANGE and MORGAN TSVANGIRAI vs CHAIRPERSON, ZIMBABWE ELECTORAL COMMISSION and CHIEF ELECTIONS OFFICER, ZIMBABWE ELECTORAL COMMISSION Ruled By: UCHENA J

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HH113-09 : DIDYMUS MUTASA vs NGONI NDUNA N.O. and ATTORNEY-GENERAL and COMMISSIONER-GENERAL OF POLICE and ROBERT MCKERSIE Ruled By: PATEL J

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HH140-09 : CRUISER BOND (PRIVATE) LIMITED vs ZIMBABWE REVENUE AUTHORITY Ruled By: UCHENA J

HH158-09 : WILTON RENSBURG vs MARKO MAVHURUME N.O. and THE REGISTRAR OF DEEDS N.O and THE DEPUTY SHERIFF Ruled By: MTSHIYA J

HH164-09 : ZIMRE PROPERTY INVESTMENT (PVT) LTD vs CITY CALVARY CHURCH Ruled By: GOWORA J

HH166-09 : THE DIOCESAN TRUSTEES FOR THE DIOCESE OF HARARE vs THE CHURCH OF THE PROVINCE OF CENTRAL AFRICA Ruled By: HLATSHWAYO J

HB28-09 : LANGALIBALELE ETHAN DUBE and THENJIWE DUBE vs THEOPHILUS MALI ZONDO and REGISTRAR OF DEEDS Ruled By: NDOU J

HB42-09 : MARGRET MOYO vs MR SIZIBA and DOKOTELA OMNIBUS, represented by R DOKOTELA and TRUST INSURANCE BROKERS Ruled By: NDOU J

HB62-09 : SAI ENTERPRISES (PRIVATE) LIMITED vs GIRDLE ENTERPRISES (PRIVATE) LIMITED t/a QUALITY ENGINEERING SERVICES (PRIVATE) LIMITED Ruled By: NDOU J

HB89-09 : DUMISANI NCUBE vs THE ZIMBABWE REVENUE AUTHORITY (ZIMRA) Ruled By: NDOU J

HH04-10 : MYDALE INTERNATIONAL MARKETING (PVT) LTD vs DR ROB KELLY and HAMMER AND TONGUES (PVT) LTD Ruled By: GOWORA J

HH06-10 : HARLAND BROTHERS (PVT) LIMITED and RAYMOND FINAUGHTY vs THE MINISTER OF LANDS AND RURAL RESETTLEMENT and MRS WINNIE MUSHIPE Ruled By: MUSAKWA J

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HH54-10 : ANDREW BRUFORD vs ATTORNEY GENERAL and MAGISTRATE JARABINI Ruled By: BHUNU J

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HH108-10 : INYANGA DOWNS ORCHARDS vs EDWARD BUWU Ruled By: MUSAKWA J

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HH185-10 : MUHAMMAD ZAKIR vs CHIEF IMMIGRATION OFFICER and MINISTER OF HOME AFFAIRS Ruled By: BERE J

View Appeal HH186-10 : CAFCA LIMITED vs RESERVE BANK OF ZIMBABWE Ruled By: MTSHIYA J

HH194-10 : MANDLENKOSI NHLIZIYO vs GREYS SERVICES STATION and HILLARY NDEBELE and THE DEPUTY SHERIFF Ruled By: MAWADZE J

HH220-10 : BACHI FARM (PVT) LTD and COBBLESTONE INVESTMENTS and TRIBACK (PRIVATE) LIMITED vs OLIVER DZVENE and HOWARD MATARE and OTHERS Ruled By: CHIWESHE JP

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HB119-10 : NYARADZAI KAZUVA vs GILBERT DUBE Ruled By: CHEDA J and MATHONSI J

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CC06-15 : ANNA CHIHAVA and BOAS MAPUVA and ZISHE CHIZANI vs THE PROVINCIAL MAGISTRATE FRANCIS MAPFUMO N.O. and THE PROSECUTOR GENERAL Ruled By: CHIDYAUSIKU CJ, MALABA DCJ, ZIYAMBI JCC, GWAUNZA JCC, GARWE JCC, GOWORA JCC, HLATSHWAYO JCC, GUVAVA JCC and CHIWESHE AJCC

SC56-13 : ELIZABETH NDAVA vs TENDAI CHIVIZHE TAKARUWA and ELIZABETH ARTZINGER Ruled By: MALABA DCJ, ZIYAMBI JA and GOWORA JA

HH11-15 : RM MINING AND INDUSTRIAL ZIMBABWE (PRIVATE) LIMITED vs STANBIC BANK ZIMBABWE LIMITED Ruled By: MAFUSIRE J

HH13-15 : MICHAEL BASIKITI vs CHIVERO STANELY MDOKWANI and MINISTER OF LANDS AND RURAL RESETTLEMENT and DEPUTY SHERIFF, MARONDERA Ruled By: NDEWERE J

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